S. Hrg. 104-694 TOIBAL SOVERHGN IMMUNFTY HEARING BEFORE THE COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE ONE HUNDRED FOURTH CONGRESS SECOND SESSION ON TRIBAL SOVEREIGN IMMUNITY SEPTEMBER 24, 1996 WASHINGTON, DC c S. Hrg. 104-694 TRIBAL SOVEREIGN IMMUNITY HEARING BEFORE THE COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE ONE HUNDRED FOURTH CONGRESS SECOND SESSION ON TRIBAL SOVEREIGN IMMUNITY SEPTEMBER 24, 1996 WASHINGTON, DC U.S. GOVERNMENT PRINTING OFFICE 35-542 CC WASHINGTON : 1996 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 ISBN 0-16-054225-1 COMMITTEE ON INDIAN AFFAIRS JOHN McCain, Arizona, Chairman DANIEL K. INOUYE, Hawaii, Vice Chairman FRANK MURKOWSKI, Alaska KENT CONRAD, North Dakota SLADE GORTON, Washington HARRY REID. Nevada PETE V. DOMENICI, New Mexico PAUL SIMON, Illinois NANCY LANDON KASSEBAUM, Kansas DAMEL K. AKAKA, Hawaii DON NICKLES. Oklahoma PAUL WELLSTONE, Minnesota BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota CRAIG THOMAS, Wyoming ORRIN G. HATCH, Utah Steven J.W. Heeley Majority Staff Director /Chief Counsel Patricia M. Zell, Minority Staff Director /Chief Counsel ai) CONTENTS Page Statements: Allen, W. Ron, President, National Congress of American Indiana 68 Anderson, Robert T., Associate Solicitor, Division of Indian Affairs, De- partment of the Interior 8 Anoatubby, Bill, Governor, Chickasaw Nation 59 Becker, Daniel, Esquire 53 Cagey, Henry, Chairman, Lummi Nation 57 Coleman, Jennifer A., Esquire 38 Dawson, Marlene, Council Member at Large, Whatcom County, WA 36 Dorgan, Hon. Byron L., U.S. Senator from North Dakota 13 Endreson, Douglas B.L., Esquire, Sonosky, Chambers, Sachse and Endreson 28 Gorton, Hon. Slade, U.S. Senator from Washington 3 Hatch, Donald C, Jr., Vice Chairman, Tulalip Tribes Of Washington 66 Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Com- mittee on Indian Affairs 1 Johnson, James J., Esquire, Olympia, WA 45 Long, Lawrence, Chief Deputy Attorney General, South Dakota 14 Marcussen, Lana E., Esquire 40 Metcalf, Hon. Jack, U.S. Representative from Washington 5 Pressler, Hon. Larry, U.S. Senator from South Dakota 6 Simon, Hon. Paul, tJ.S. Senator from Illinois 5 Smith, Darrel, Mobridge, SD 43 Swaney, Rhonda R., Chairwoman, Confederated Salish and Kootenai Tribes of the Flathead Nation, Pablo, MT 53 Taken Alive, Jesse, Chairman, Standing Rock Sioux Tribe 60 Williams, Susan M., Esquire, Cover, Stetson and Williams, P.C, Albu- querque, NM 22 Yazzie, Herb, Attorney General, Navajo Nation 63 Appendix Prepared statements: Allen, W. Ron 563 Anderson, Marge, Chief Executive, Mille Lacs Band of Ojibwe (with at- tachments) 569 Anderson, Robert T. (with attachments) 83 Anoatubby, Bill 396 Bourland, Gregg J., Tribal Chairman, Cheyenne River Sioux Tribe (with attachments) 582 Bums, Conrad, U.S. Senator from Montana 74 Cagey, Henry (with attachments) 362 Clinton, Robert N 606 Glower, W. Dewey, President, NATSO, Inc 75 Congdon, Robert 620 Coleman, Jennifer A. (with attachments) 277 Davis, Sam, Mayor, Parker, AZ 75 Dawson, Marlene (with attachments) 217 Dorgan, Hon. Byron L., U.S. Senator from North Dakota 73 Endreson, Douglas B.L. (with attachments) 197 Hatch, Donald C. Jr 558 Hill, James D., Esquire, Assistant Professor, School of Justice Studies, Arizona State University 632 Johnson, James M., Esquire (with attachments) 337 Johnson, Wesley 620 (III) IV Page Prepared statements — Continued Jordan, Derril B., Attorney General, Seneca Nation (with attachments) .... 639 Long, Lawrence (with attachments) 88 Marcussen, Lana E., Esquire 78 Murphy, Virgil, President, Stockbridge-Munsee Community Band of Mo- hican Indians 655 Oneida Indian Nation 77 Rco, Anthony, Tribal Chairman, Viejas Band of Kumeyaay Indians 659 Pommersheim, Frank, Professor of Law, School of Law, University of South Dakota 663 Risling, Dale Sr., Chairman, Hoopa Valley Indian Tribe, California 668 Shields, Caleb, Chairman, Assimboine and Sioux Tribes, Fort Peck Res- ervation 675 Smith, Darrel (with attachments) 321 Sunchild, John R., Chairman, Chippewa Cree Tribe 683 Swaney, Rhonda R 357 Taken Alive, Jesse 79 Teller, John, Chairman, Menominee Indian Tribe, Wisconsin 686 Whitefeather, Bobby, Chairman, Red Lake Band of Chippewa Indians 693 Williams, Susan M. (with attachments) 131 Yazzie, Herb (with attachments) 410 Young, Dora S., Principal Chief, Sac and Fox Nation 706 Additional material submitted for the record: Letters with attachments to: Committee on Indian Affairs 710 Domenici, Hon. Pete V., U.S. Senator from New Mexico 748 Gorton, Hon. Slade, U.S. Senator from Washington 749 Inouye, Hon. Daniel K., UJS. Senator from Hawaii, Vice Chairman, Com- mittee on Indian Affairs 879 McCain, Hon. John, UJS. Senator from Arizona, Chairman, Committee on Indian Affairs 887 Miscellaneous letters, position papers, Jeff Kent Interview chain of own- ership, court cases, Lummi Nation response to testimony of Marlene Dawson, et cetera 916 TRIBAL SOVEREIGN IMMUNITY TUESDAY, SEPTEMBER 24, 1996 U.S. Senate, Committee on Indian Affairs, Washington, DC. The committee met, pursuant to notice, at 9:30 a.m. in room 106, Senate Hart Building, Hon. Daniel K. Inouye (vice chairman of the committee) presiding. Present: Senators Inouye, Simon, Gorton, Dorgan, and Conrad. STATEMENT OF HON. DANIEL K. mOUYE, U.S. SENATOR FROM HAWAH, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS Senator Inouye. Good morning. Delivering the opinion for a unanimous court in the Supreme Court's 1991 ruling in a case enti- tled Oklahoma Tax Commission v. Citizen Band Potawatomi In- dian Tribe of Oklahoma, Chief Justice Rehnquist addressed the subject of the committee's hearing today, when he stated the law of the case, and I quote: Indian tribes are 'domestic dependent nations' which exercise inherent sovereign authority over their members and territories. Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or Congressional abrogation. However, in his concurring opinion. Justice Stevens expressed a somewhat different view, and again I quote: The doctrine of sovereign immunity is founded upon an anachronistic fiction. In my opinion, all governments — ^Federal, State, and tribal — should generally be ac- countable for their illegal conduct. The rule that an Indian tribe is immune from an action for damages absent its consent is, however, an established part of our law. Such is the nature of the debate which is the focus of the com- mittee's hearing today. Whether one views it as anachronistic or relevant in contemporary times, the assertion of sovereign immu- nity to suit is a right that is jealously guarded by most sovereign governments. The genesis of today's nearing arises out of a pro- posal that was contained in the Senate's fiscal year 1997 Interior Appropriations bill. Section 329 of that bill provided: In cases in which the actions or proposed actions of an Indian tribe or its agents impact, or threaten to impact, the ownership or use of the private property of an- other person or entity, including access to such property that might arise from such impacts or which impact the receipt of water, electricity, or other utility to such property, an Indian tribe receiving funds under this Act or tribal oflicial of such tribe, acting in an oflicial capacity, shall No. 1, be subject to the jurisdiction, orders, and decrees of the appropriate State court of general jurisdiction or Federal district courts for requests of injunctive re- lief, damages or other appropriate remedies; and No. 2, shall be deemed to have waived any sovereign immunity as a defense to such court's jurisdiction, orders and decrees. (1) When the bill was brought before the full Senate Appropriations Committee, the author of the proposal agreed to an amendment to delete the provisions from the bill, so that the authorizing commit- tee of jurisdiction, the Committee on Indian Affairs, could conduct a hearing on the issue sought to be addressed by the provisions of section 329. However, the committee's hearing this morning also has a broader focus, which is the assertion of sovereign immunity by tribal governments. In the Federalist No. 81, Alexander Hamilton wrote. It is inherent in the nature of sovereignty not to be amenable to suit of an individ- ual without its consent. This is the general sense and the general practice of man- kind, and the exemption, as one of uie attributes of sovereignty, is now enjoyed by the government of every State in the Union. The member States of our Union decided that this organizing principle was so fundamental to our constitutional framework that in 1795, they ratified the 11th Amendment to the U.S. Constitu- tion, and by their action, made their sovereign immunity to suit part of the supreme law of the land. The doctrinal foundation of the concept of sovereign immunity has several sources. In English law, the traditional immunity of the English sovereign was ex- pressed in the phrase, "The king can do no wrong." Others attribute the doctrine of sovereign immunity to another constitutional doctrine of equal force in American law, the separa- tion of powers, and conclude that the assertion of sovereign immu- nity is to protect the official actions of the Government from undue judicial interference. Or put another way, that the courts, as one branch of the government, cannot enforce judgments against an- other branch of the Grovemment without the latter's consent. Especially relevant to smaller governments is the notion that the doctrine prevents burdensome financial losses that could seriously impair or destroy governmental operations. In fact, this was the driving force behind the ratification of the 11th Amendment by the States. They feared suits to collect unpaid war debts and to recover property seized during the Revolutionary War. As recently as March of this year, 32 States sought and success- fully secured a reaffirmation of their sovereign immunity to suit in the Supreme Court of the United States, making clear to one and all that the several States which comprise our Union do not view their sovereign immunity to suit as anachronistic. Whatever may be one's views on the subject of sovereign immunity, and whether the Federal Govemment, the State governments, city and county governments or tribal governments should be able to assert their sovereign immunity to suit, I believe the underlying concern is ac- tually a concern about due process. Our Constitution also guarantees to all of its citizens a right to due process, an opportunity to be heard. What process is due to each citizen depends upon the nature of the affected interest. The Supreme Court has held that this right may be satisfied in any of a number of forums, including administrative proceedings or hear- ings of regulatory bodies, and may range from notice in the publi- cations of general circulation to litigation in the courts of the var- ious sovereign governments. In Indian country, there are courts established either by a tribal government or by the Federal Government. For actions in tribal courts involving non-Indians, tJiere is an additional process af- forded such citizens, which is the review by the Federal courts of the exercise of a tribal court's jurisdiction. It was 5 years ago, this committee held a hearing on a report which had recently been completed by the U.S. Commission on Civil Rights. Following a comprehensive study of tribal courts na- tionwide, the U.S. Civil Rights Commission concluded that notwith- standing the meager resources with which they were forced to oper- ate, tribal judicim systems were providing due process to all liti- gants, both Indian and non-Indian. For over 200 years, the Nation has recognized the sovereignty of the Indian tribes. Federal law and policy has been built upon this foundation, which finds its expression in the Constitution of the United States, in treaties, in statutes, and in the rulings of the Su- preme Court. Today we recognize that sovereignty is also a defin- ing element of the economic future of governments. As a Harvard law professor informed this committee last week, after years of study in this area: K we look back on this history of Federal Indian policy in the 20th century, it is not a coincidence that it has only been in the era of self-determination that a sig- nificant number of reservations have begun to break the cycle of poverty and de- pendence. Sovereignty is one of the primary development resources tribes can have. And the reinforcement of tribal sovereignty under self-determination should be the central thrust of public policy. One of the quickest ways to bring development to a halt and prolong the impoverished conditions of reservations would be to further undermine the sovereignty of Indian tribes. For the many representatives of the tribal governments gathered this morning for this hearing, there is much at stake. Just as the States have, over the years, sought to accord due process while pro- tecting their rights as sovereigns to assert their immunities from suit, so do other sovereigns, including tribal governments. In the course of our history as a Nation, we have learned that our constitutional framework has stood well the tests of time. So too have the fundamental principles which inform the powers and rights of the sovereign governments which make up our Union. Our task this morning is not to revisit the provisions of our Con- stitution that recognize the Indian tribes as sovereigns, nor is it to overturn 200 years of Federal law. But rather, it is, I believe, to develop a better understanding of the rights and responsibilities that tribal governments have assumed in the exercise of their in- herent sovereignty. May I call upon my distinguished colleague, Senator Gorton. STATEMENT OF HON. SLADE GORTON, U.S. SENATOR FROM WASHINGTON Senator GrORTON. Thank you, Mr. Chairman. You are certainly accurate in describing the genesis of this hear- ing, a hearing on a vitally important subject which I believe was last discussed in the late 1980's or early 1990's in connection with the Indian Civil Rights Act. The question before this committee, as it was in connection with the Appropriations Committee provisions, is the degree and the extent to which sovereign immunity is an ap- propriate or a live doctrine in the last decade of the 20th century, in connection with disputes over property rights, most broadly de- scribed when the contending parties are Indian tribes or nations and non-Indians. I think perhaps without meaning to, Mr. Chairman, you have stated better than I possibly can the total anachronistic nature of sovereign immunity for Indian tribes or any other, when you stated that one of the grounds, historic grounds for sovereign immunity was the traditional doctrine in England that the King can do no wrong. We know perfectly well that the king can do wrong. And that is the reason that every other government, I suspect in the free world, but certainly the Government of the United States and the government of each of the States and the local governments that are dependent on them have increasingly over the course of the last century either abolished or severely restricted the doctrine of immunity. It is only in connection with Indian tribes in the Unit- ed States that it retains its original scope and extent. And the real question in my view is not one of an abstraction, whether the King can do no wrong or not. It is one of simple jus- tice. It is one of due process. Citizens of the United States of Amer- ica have an inherent right to have their disputes decided by a neu- tral court or a neutral arbitrator. Citizens of the United States now who live on Indian reservations and have disputes with an Indian tribe lack that right. They are literally the only American citizens who lack that right. And in my view, it is clear that tribal sovereign immunity, as it applies to Indian/non-Indian disputes is an anachronism. I do not here raise the question of whether or not it also ought to be abol- ished with respect to disputes between individual members of In- dian tribes and their tribal governments, though I rather suspect it should be. But in any event, it has long since outlived its useful- ness in this connection. The Chairman also quoted the statement of Justice Rehnquist, which in turn is based on much earlier statements that Indian tribes are domestic dependent sovereigns. That is true. That is true because the Constitution of the United States grants specifically to the Congress the right to govern our relationships with Indian tribes. I think we ought to do so, because here we're dealing, as I've said, with the rights of individuals, with people who feel left out, who are not able to get a neutral decision with respect to very im- portant, often life-important, problems that they have, simply be- cause they own land or live on Indian reservations. I think there are a number of really significant questions that we can ask and discuss here. One of course is whether or not sovereign immunity, if it is abolished, should be abolished only with respect to Federal courts. Perhaps it is an argument that at least at this point, only courts of the United States should have jurisdiction over these disputes — an original matter, rather than as an appeal with respect to jurisdictional questions from the decision of tribal courts. Personally, I believe that citizens of a State ought to have access to their State courts for anything which takes place that they feel wrongs them within a State. But that question, the question of sov- ereign immunity from actions in State courts is a separate one from allowing all such courses of action to be tried in Federal courts themselves. It is true that for Indians and for their tribal governments, much is at stake. But for non-Indians, who in many areas are a majority of the residents on Indian reservations, much is at stake as well. And essentially what is at stake, is their rights as American citi- zens and their rights to due process. With that, Mr. Chairman, I'm ready to hear our witnesses. But I would ask for two favors. We have, I understand it, some hun- dreds of letters from non-Indians in various States across the coun- try, from New York to the Pacific Coast, that I would appreciate being included in the record. And Senator Bums' office has called and asked that a statement from him on his behalf and for the Governor of Montana and various Montana citizens also be in- cluded in the record. Senator Inouye. Without objection, so ordered. [Referenced material appears in appendix.] Senator Inouye. May I now call upon Senator Simon. STATEMENT OF HON. PAUL SIMON, U.S. SENATOR FROM ILLINOIS Senator SiMON. Thank you, Mr. Chairman. I'm not going to comment on the question at hand, and I regret I'm going to have to be in and out for the Judiciary Committee meeting. But I think this will be my last meeting of this committee. And I just want to say what a great contribution you have made to this country, Mr. Chairman. And I am pleased that Senator McCain has joined you in keeping this a bipartisan committee. And I think my colleague. Senator Gorton, would agree with this. This committee operates without partisan rancor more than any other committee on which I serve. And that is a tribute to you, Mr. Chairman, and to Senator McCain. And I really appreciate the contribution that you're mak- ing. Senator Inouye. Thank you veiy much. Senator Simon. As al- ways, you are very generous. And now it is my pleasure to call upon a Congressman from the State of Washington, who wishes to introduce his witnesses, his constituents. Congressman Jack Metcalf. STATEMENT OF HON. JACK METCALF, U.S. REPRESENTATIVE FROM WASHINGTON Mr. Metcalf. Thank you very much, Mr. Chairman. I appear here as a member of the Native American and Insular Affairs Committee of the Resources Committee of the House. And I'm very pleased to be here. I don't have an opening statement, other than to say it's my pleasure to introduce five different people from the State that are on the panels. On panel IV is Marlene Dawson, from Watkin County, Jim Johnson from Olympia. And I've known both of those people for quite some time and I welcome them here. On panel V is Henry Cagey, Chairman of the Lummi Business Council of Bellingham, one of the seven tribes in my district. Don Hatch, Vice Chairman, Tulalip Tribes of Marysville. I was born in Marysville, so I'm very familiar with this area. Ron Allen, the President of the National Congress of American Indians, is from the Jamestx)wn S'Klallam Tribe, in Port Angeles, which is Norm Dicks' district. So I'm just pleased to be here, and thank you for this oppor- tunity. Senator Inouye. Thank you veiy much, sir. And now it's my pleasure to calf upon our colleague, U.S. Senator Larry Pressler. STATEMENT OF HON. LARRY PRESSLER, U.S. SENATOR FROM SOUTH DAKOTA Senator Pressler. Thank you, Mr. Chairman. I'm pleased to be here today to discuss tribal sovereignty, an issue which is very important to my home State of South Dakota. I am particularly pleased that the committee has invited three dis- tinguished South Dakotans to testify before you today. Larry Long, the Deputy Attorney Greneral for South Dakota, has had many years of hands-on experience working on tribal jurisdic- tion issues. Currently, he is working on several cases involving tribal sovereignty conflicts, including one case which may be heard by the Supreme Court as early as next January. This court case could be a landmark decision. Specifically, the State of South Dakota and the city of Oacoma, South Dakota, ap- pealed the transfer of 91 acres of non-reservation land into trust for the Lower Brule Sioux Tribe. Much of this land was located within the city's limits, approximately 7 miles away from the res- ervation. The State argued against the loss of property taxes on the land, and against the loss of State and local jurisdiction over the lands to be transferred into trust. The Eighth Circuit Court of Appeals ruled against the transfer. The Court deemed it unconstitutional for the Secretary of the Inte- rior to take land into trust for Indian tribes or individual Indians without clearer direction from Congress. I'm sure we'll be watching this case carefully as the Supreme Court examines it. In another unique case, a recent Federal district court decision reestablished the boundaries of the Yankton Sioux Indian Reserva- tion, which now includes most of Charles Mix County. This decision could have drastic consequences on civil and criminal judicial juris- diction within that county. For nearly a century, ever since Congress opened the Yankton Sioux Indian Reservation to non-Indian settlement, residents of fee-owned land in the county understood themselves to be subject to the State of South Dakota law. The Eighth Circuit court re- versed this. If this decision is upheld, the tribe could exercise juris- diction over those landowners. Disagreements would have to be re- solved in Federal court. Civil and criminal jurisdiction would be- come blurred. The basic question of who's in charge would turn on the parties' involved and the particular set of circumstances present in the case. The court's reinstatement of the reservation also raises a number of concerns regarding the validity of prior State court judg- ments. This could result in years of costly new litigation testing the validity of prior court action. Mr. Chairman, you also will be hearing testimony from Barrel Smith from Mobridge, SD. Barrel's ranch, located just west of the Missouri River, lies within the boundaries of the Standing Rock Sioux Indian Reservation. Barrel will be sharing his personal expe- riences as a non-Indian resident of a reservation. As you know, Mr, Chairman, it has been almost a century since Congress and the President opened many of the reservations in the west to non-Indian settlement. In addition, Federal allotment poli- cies divided up Indian reservations, giving tracts of lands to indi- vidual Indians. In many cases, these individual allotments were sold in fee to non-Indians. As a result, we now have the situation where many acres of non- Indian, fee-owned land lie within the borders of Indian reserva- tions. This has created a checkerboard ownership pattern. Non-In- dians, such as Barrel Smith, own some of the land. Tribal members own other parcels of land. And finally, some land is held in trust by the Federal Government for the tribes. This is a complex situation. It has prompted many court cases, which often must resolve the question of whether the State or the tribe has jurisdiction over non-Indians or non-Indians in Indian country. We now have four different jurisdictional layers in Indian country, the local, State, Federal and tribal. This is nothing less than confusion to the people living there. They have no clear un- derstanding of which set of rules apply to them in varying situa- tions. It is far too costly and far from practical to have a court hearing every time someone needs and answer to who's in charge. When I meet with people living in Indian country, this jurisdic- tional quagmire is cited as one of the most pressing problems fac- ing them every day. Finally, Mr. Chairman, the committee will hear testimony from Jesse Taken Alive, Chairman of the Standing Rock Sioux Indian Tribe. A couple of years ago, I attended a July 4 pow wow in McLaughlin, SB. I had the privilege of standing with Jesse during the opening ceremonies. It is something Til never forget. I am pleased Jesse is here to testify of his own run-ins with sovereignty conflicts. Mr. Chairman, it is time for Congress to address these problems. It is time to untangle the jurisdictional quagmire. This hearing is a good first step. I thank you for allowing me to speak before you today. I look for- ward to working with you in the future as we consider legislation to resolve these jurisdictional conflicts, and I thank you very much for your time. [Prepared statement of Senator Pressler appears in appendix.] Senator Inouye. I thank you very much. Senator Pressler. Thank you very much, sir. And now it is my pleasure to call upon the Associate Solicitor of the Bureau of Indian Affairs, the Bepartment of the Interior, Rob- ert Anderson. 8 STATEMENT OF ROBERT T. ANDERSON, ASSOCIATE SOLICI- TOR, DIVISION OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR Mr. Anderson. Thank you, Mr. Chairman and members of the committee. I am pleased to be here this morning to present the Ad- ministration's views on this very important topic. Thank you for your interest generally in Indian affairs and for the improvement of tribal governments and tribal court systems. I believe that the self-determination era, the adoption of tne Indian Civil Rights Act in 1968 and the continued support through the Indian Tribal Jus- tice Act of 1992 have resulted in great strides within Indian coun- try and that have allowed forth implementation of effective tribal forums to vindicate the rights of Indians, non-Indians and States and in some circumstances the Federal Government. As you pointed out, Mr. Chairman, the genesis of this hearing is the proposal set forth in section 329 of the Interior Appropriations Bill, which would result in a blanket waiver of tribal sovereign im- munity and authorize actions for injunctive relief and damages, in Federal and State courts. Let me emphasize two points at the outset here, as I summarize my remarks. First, the administration firmly supports tribal self- determination and the doctrine of tribal immunity from lawsuits. We feel that Indian tribes, like States and the Federal Govern- ment, should and may waive their immunity under appropriate cir- cumstances. But like States and the Federal Government, the choice of when and whether to waive tribal immunity is something the tribe should be free to decide for itself. As the testimony of Doug Endreson, points out, there are numer- ous tribal court decisions citing to tribal codes, and tribal constitu- tions, wherein tribes have waived their immunity from suit to allow appeals from administrative actions and other actions of In- dian tribes within Indian country. The administration supports the efforts of tribes to actively regulate activities within Indian country that affect their lands, healtn, and welfare of members generally, and views it as the ultimate aspect of self-determination — ^that the decision whether to waive immunity be left to the tribes. What follows from that perspective is the administration's oppo- sition to any blanket Congressional waiver of immunity without the consent of the tribes. Congress has legislated waivers of immu- nity, most notably in water rights settlements in the last 10 years. I hasten to say that those waivers of immunity were the result of negotiations between tribes. States, non-Indians and tribal mem- bers, relative to the use of those resources. The waiver of tribal immunity provided in section 329 will not resolve the jurisdictional conflicts alluded to by Senator Pressler just a few minutes ago. Rather, such a waiver would simply spawn additional litigation within Indian country and result in great hardship to tribal economies, as tribes are forced to expend great resources in defending their actions in State and Federal courts, and tribes could also be subject to damage awards in State courts which could have the potential for bankrupting tribal governments. The jurisdictional conflicts alluded to in checkerboard situations common on many Indian reservations are best dealt with through negotiations between tribes. States, the Federal Government, In- dian and non-Indian neighbors. Such arrangements have already been worked out in Indian country, in many circumstances. These arrangements are typically difficult and require lengthy negotia- tions. Our view is that solutions to problems among tribes and their Indian and non-Indian neighbors are best dealt with at the local level through negotiations between the sovereign govern- ments, so that solutions can be reached which will accommodate the interests of all the local parties and is not something that should be legislated in a blanket fashion from Washington, DC. I also want to emphasize that Congress carefully considered the waiver of tribal immunity in 1968 when the Indian Civil Rights Act was passed, and decided, after great deliberation, on a limited waiver of tribal immunity to accommodate the interests of who might be incarcerated, and provided a habeas corpus relief in the Indian Civil Rights Act. As you pointed out earlier, Mr. Chairman, the Civil Rights Com- mission conducted extensive hearings throughout Indian country and in major urban areas to consider the actions of tribal govern- ments and the role of tribal courts in vindicating the rights of Indi- ans and non-Indians within Indian country. They recommended that there not be a waiver of tribal immunity and that causes of action against Indian tribes in Federal courts not be provided. Rather, tney recommended tiiat additional funding and support be provided for the improvement of tribal justice systems within In- dian country. I submit that their recommendation is still the wisest course. Again, as Mr. Endreson's testimony states, tribes are making great strides. The Indian Law Reporter demonstrates the great ac- tivity within tribal courts, and demonstrates that tribal courts are fair and neutral forums. And they vindicate the rights of non-Indi- ans and Indians alike. Tribal courts like State and Federal courts, are willing to rule against the tribal governments in appropriate circumstances, and a waiver of tribal immunity in such a blanket fashion is not appropriate. Finally, the provision in section 329 would authorize actions for simply proposing tribal actions to regulate the conduct of non-Indi- ans and their property within Indian country would have a nega- tive effect on the operations of tribal government and the ability of tribes to assume and continue their proper role as governments regulating activities within Indian country. For example, a non-In- dian with fee land might propose a toxic waste dump which could harm tribal natural resources, a river system and the reservation environment and its people generally. If a tribal committee were to merely discuss a proposal to regu- late that activity or to discuss possibly bringing a lawsuit in tribal or Federal court to halt that activity, the terms of this provision would allow the proponent of the toxic waste dump to bring an ac- tion in State or Federal court for damages that, if the individual were precluded from engaging in that activity. I submit that this type of action is not appropriate. In closing, I would reiterate the administration's support for trib- al immunity and self-determination and indicate our continued op- position to Section 329 in any legislated Congressional waiver of tribal immimity. 10 Thank you, Mr. Chairman. [Prepared statement of Mr. Anderson appears in appendix.] Senator Inouye. Thankyou very much, Mr. Anderson. I note the presence of Senator Dorgan. Would you care to make an opening statement? Senator Dorgan. I'll put a statement in the record. [Prepared statement of Senator Dorgan appears in appendix.] ' Senator Inouye. Thank you very much. Mr. Anderson, would you agree that an integral part of the Fed- eral Government's trust responsibiHty to tribes is to protect their sovereignty, which also includes the protection of their sovereign immunity? Mr. Anderson. Yes; I would, Mr. Chairman. Fd add that the Federal Government has an obligation to protect tribal trust re- sources: land, water, hunting and fishing rights, and that sovereign immunity is integral to the protection of those resources on the part of the tribes. Therefore, it's critical that tribal immunity be preserved and that the United States support that immunity. Senator Inouye. Are there any limitations on the types of activi- ties for which tribes can waive their sovereign immunity? Mr. Anderson. I believe that tribes would choose not to waive their immunity with regard to protection of trust resources. A tribe, for example, could not waive its immunity and authorize lEind that's subject to Federal restrictions to be taken without the con- sent of the United States. Likewise, I believe a tribe could not waive its immunity and authorize tribal trust funds to be taken without its consent or other resources that are, in essence, owned in fee by the United States. Because technically, the legal title is held by the United States and tribes could not authorize actions which would affect those resources. However, tribes can waive their immunity and indeed, lack im- munity generally, under the Ex parte Young doctrine, which allows non-Indians and Indians alike in States to bring actions against tribes to allege that a tribal government lacks a particular power to regulate some activity within Indian country. For example, the power to zone an action for prospective relief, can be brought in the Federal court against tribal officials for a determination of whether the tribe has that power. Senator Inouye. While in some cases dicta has suggested that the Congress has the power to waive tribal sovereign immunity, do you know of any cases which have upheld the legality of a Federal waiver of tribal sovereign immunity? Mr. Anderson. I'm not aware of such a case, but I believe that it is certainly within Congress' power and really is a matter of horn book Federal Indian law that Congress, having the ultimate au- thority to terminate the Federal-tribal relationship, likely has the authority to eliminate tribal sovereign immunity under various cir- cumstances. Senator Inouye. In your opinion, would conferring jurisdiction on State courts over matters governed by tribal law raise 10th amend- ment concerns about the power of the Congress to affect the juris- diction of the State courts over matters not within the judicial power of the United States, or otherwise a subject of affirmative, substantive legislation by the Congress? 11 Mr. Anderson. I usually think of 10th Amendment concerns in terms of limiting the Federal Government's power to regulate and coerce action on tiie part of the States. That's where most of the litigation has been. Whether or not the lOth Amendment itself would be applicable here or whether an analogous Federal common law doctrine under Federal Indian law principles would apply is something I'm not certain of. However, I believe that the concerns over whether the Federal Government should regulate, as em- bodied in 10th Amendment limitations, are certainly applicable to consideration of whether Congress should engage in such inter- ference with the exercise of inherent tribal sovereignty and sov- ereign immunity. Senator INOUYE. Thank you very much. I have many other ques- tions which I will submit and look forward to your responses. [Referenced material appears in appendix.] Senator Inouye. Senator Gorton, Senator Gorton. Mr. Anderson, I think the operative language in your statement, if I caught it correctly, was that the administra- tion opposes any blanket waiver of the sovereign immunity of In- dian tribes without their consent. Does that accurately state your position? Mr. Anderson. That's our position. And in fact, I would elabo- rate that we oppose any waiver of tribal immunity, even a limited waiver, absent the consent of the tribe. Senator Gorton. Well, you certainly anticipated my second ques- tion. So the word blanket was not an operative word in your — ^you could rephrase that to say you oppose anv waiver of Indian tribal sovereign immunity without the consent of the tribes? Mr. Anderson. That's correct. Senator GrORTON. And while you worked around it, Mr. Anderson, you're not going to sit here and tell this committee that there are any limitations on the power of the Congress of the United States with respect to this matter? Mr. i^^ERSON. I am loathe to try to overturn the Supreme Court's clear statements to the effect, first in Lone Wolf v. Hitch- cock, then as modified in Delaware Tribal Business Committee, that Congress has plenary power over Indian tribes and Indian af- fairs, so long as the Congress' action is tied rationally to its rela- tionship with Indian tribes. So, I believe that it's quite clear that this body's power is quite strong. Senator GtORTON. And the 10th amendment to the Constitution of the United States reads that the power is not delegated to the United States by the Constitution, nor prohibited to it by the States or reserved to the States respectively, or to the people is ir- relevant in this debate, is it not? Mr. Anderson. It would seem to be, based on the plain language of the Constitution, but as we've learned from our 11th amendment jurisprudence, the court has firom time to time interpreted provi- sions of the Constitution as embodying other common law notions. And as I pointed out to Chairman Inouye, it might be appropriate to consider whether, in the Federal Indian law context, similar lim- itations on Federal power might be applicable. Fm rather skeptical 12 that this would be the case, but it's something that I must think about further. Senator Gorton, Now, is the position of the administration sim- ply one of an abstract concern for Indian sovereignties and for the trust responsibility of the Federal Government, or is the position of the administration that non-Indian residents and landowners who live and own their land within the exterior boundaries of res- ervations are perfectly well served by their access to Indian tribal courts? And therefore the administration has no concern with re- spect to whether or not they are dealt with justly in connection with actions that relate to their land ownership or their rights as landowners? Mr. Anderson. It's more than an abstract notion of protection of tribal sovereignty, Senator Gorton. The administration is concerned that justice be provided equally to all citizens of the United States, wherever they reside, including within Indian country. It is our view that tribal courts do in the vast majority of instances provide good access to justice for non-members. We often hear anecdotal evidence of injustices worked by tribal courts, just as we often hear anecdotal evidence of injustices wrought by State and Federal courts on other citizens. To ensure that tribal courts and Indian tribes generally are able to provide justice to all, the Administration strongly supports and works with the Justice Department to improve the administration of tribal courts. We've worked with this committee and the Appro- priations Committee to provide additional funding, so that tribes can administer justice eflfectivelv. Senator Gorton. But from the point of view of the administra- tion of justice with respect to these non-Indians, as a general prop- osition, they are as likely to obtain that justice in an Indian court as they are in a State or Federal court? Mr. Anderson. That's correct. Senator Gorton. Does the Department of Justice or the adminis- tration make any distinction with respect to sovereign immunity in connection with actions in State courts and sovereign immunity with respect to actions, based on the same complaints in Federal Court? Mr. Anderson. Well, as I believe Senator Pressler pointed out, and as I believe that you pointed out in vour opening remarks, some view tribal courts as imfair forums. As I noted earlier, that is not correct. I think many Indians and Indian tribes view State courts as biased forums against tribes. And while we oppose, and I believe all tribes would oppose the waiver of immunity in State and Federal courts as currently cast in section 329. The tempera- ture gets a little hotter when you talk about subjecting tribes to the jurisdiction of State courts. Senator Gorton. One other question, or set of questions, Mr. An- derson, while not directly relevant to this hearing, I think you brought the subject up. Is it the position of the Administration and of the Department that Indian tribes have full, that is to sav, the same degree of land use, regulatory authority and taxing authority over non-Indians on reservations and non-Indian lands as they do over Indians and In- dian lands? 13 Mr. Anderson, That depends on the analysis of the factors laid out in the recent Supreme Court decisions. Specifically in the Mon- tana case, where tJie activities of Indians or non-Indians who reside on fee lands affect Uie health, welfare and economy of the tribe, or where the non-Indians have entered into consensual relations with the tribe, then I believe that the tribe does have jurisdiction over those non-Indian activities. A fact-specific inquiry must be under- taken. Senator Gorton. Thank you, Mr. Chairman. Senator Inouye. Thank you. Senator Simon. Senator Simon. Thank you, Mr. Chairman. Seems to me that in response to Senator Gorton's question, the nub of the question is, what you described as anecdotal evidence of abuses. Just as there are anecdotal evidence of abuses outside of tribal governments. Is what you have seen, on the basis of anec- dotal evidence, is this so widespread that Congress has to act? I think that's the fundamental question. And I would be interested in your response. Mr. Anderson. I don't believe that the, problems with tribal courts in Indian country are so widespread that Congress needs to act. And I would point out that the extensive hearings held by the Civil Rights Commission in the late 1980's and early 1990's to in- vestigate problems or alleged problems with the administration of justice within Indian country came to that precise conclusion. There were extensive hearing in Indian country. And fi-ankly, out of all the mail that we receive at the Interior Department, to the Secretary and to the Solicitor, problems associated with the admin- istration of justice within Indian country are an extremely low and very insignificant portion of the matters that are brought to the at- tention of the Interior Department. So I don't believe that Congres- sional action is necessary or appropriate at this point. Senator Simon. I thank you. Thank you, Mr, Chairman. Senator Inouye. Senator Dorgan. STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH DAKOTA Senator Dorgan. Mr. Chsdrman, thank you. Mr. Anderson, thank you for your testimony. I am, regrettably, Mr. Chairman, having to chair a hearing at 10:30. So I'm not able to stay for the entire hearing. But Chairman Jesse Taken Alive, Chairman of the Standing Rock Sioux Tribe, is going to be testify- ing a little later. And I want to welcome him here. And rd like to say to Mr. Anderson that I appreciate your testi- mony, because I think these jurisdictional issues involving non-In- dians who live on or do business on an Indian reservation, these are very complex issues that have some serious consequences for all sides of the issues. And I think it's unwise to undo the basic notion of tribal sovereignty over civil legal matters without a lot of veiT careflil consideration of what would all this mean. When I was a State official. State tax commissioner in North Da- kota, I was actually in court with some friendly suits to try to re- solve a whole range of issues, to try to get some finality and cer- 14 tainty on some of these legal issues. And having just touched the surface of some of these issues, I understand how incredibly com- plex they are. And that's why I joined the vice chair in opposing the provision that was attached to an appropriations bill. I think these are very significant, very serious issues that need broad air- ing and a broad understanding of what all the consequences will be before anyone proposes action. So, Mr. Chairman, thank you, and I did want to, again, I've read the testimony by Chairman Taken Alive from the Standing Rock Sioux Tribe. Ana I think he makes some excellent points, and I re- gret that I won't be able to attend the entire hearing. Senator INOUYE. Mr. Anderson, is sovereignty determined by the size of that nation, population? Mr. Anderson. No; all tribes, from the smallest to the largest, are acknowledged through the continuous hne of Supreme Court cases as having inherent powers of self-government. There are cer- tain limitations that the court has found to be implied in the fact that tribes exist within the United States. However, all tribes start out with the basic inherent power of self-government which may be modified by tribal law or treaty and other Federal law. Senator Inouye. Does the sovereignty of an entity depend upon the existence within that entity of a judicial system? Mr. Anderson. No; it doesn't. And indeed, you know, many tribes have existed without one. It's been a relatively recent phe- nomenon for tribes to develop tribal court systems in the western mode of a separate branch of government. Many small tribes that I worked with before I came to government service administered justice very well through tribal councils. And tribal councils that sit as courts or that appoint special bodies to hear certain disputes also exist. Tribes have a great deal of flexibility in terms of estab- lishing the matter in whicn they administer justice. And they work quite well. Senator Inouye. I thank you very much. And as I indicated, the committee would like to submit questions to your office and we look forward to your responses, sir. Mr. Anderson. Thank you. Senator Inouye. Thank you. Our next witness is the Chief Deputy Attorney General of the Of- fice of Attorney General, State of South Dakota, Larry Long. General Long, welcome, sir. STATEMENT OF LAWRENCE LONG, CHIEF DEPUTY ATTORNEY GENERAL, SOUTH DAKOTA Mr. Long. Thank you, Mr. Chairman and members of the com- mittee. I appreciate the opportunity to come and address the committee on £in issue which I personally have been involved with since I began practicing law in Indian country in 1972. I appreciated some of the questions which were asked in attempting to determine what the nature and the scope of the problem is out there in Indian country. And I would like to tell the committee what I did in an attempt to prepare for testimony in this proceeding. Mr. Anderson referred to the Indian Law Reporter and indicated that one look at it would indicate that there is really no problem 15 in Indian country in terms of whether or not legitimate claims of Indians and non-Indians are being resolved on the basis of sov- ereign immunity. I attempted to do that, I spent 3 or 4 days before preparing my testimony reviewing the summaries of Indian law cases that appear every month in the In- dian Law Reporter, commencing at about 1980. I attempted to re- view the headnotes and to review the text of the cases which ap- pear there, to ascertain which cases were resolved on the basis of a dismissal, a successful dismissal or an unsuccessful attempt to dismiss a case on the basis of tribal sovereign immunity, I identified 214 cases since 1980 which appeared to have been re- solved one way or another on a sovereign immunity issue asserted by a tribe or a tribal entity. And I have attempted to summarize those, and I have attached those to mv testimony. I found 56 cases tJiat have been determined by the U,S. Court of Appeals since 1980, And in those cases, 44 of the 56 were dis- posed of based upon a determination that tribal sovereign immu- nity prevented the court from reaching the merits of the particular litigants' claim. In that particular situation, at the U.S. Court of Appeals levels, I determined that 14 of those litigants were Indi- ans, 27 of them were non-Indians. And in 15 cases, I couldn't deter- mine whether the litigant was Indian or non-Indian from reading the headnote or the text. At the district court level in the same timeframe, I identified 64 cases. And in 52 of those 64 cases, the case was disposed of based upon a defense asserted by a tribe or tribal entity based on sov- ereign immunity. And in those cases, 18 of the complainants were Indian, 24 were non-Indian, and in 22 cases I couldn't determine from reading the headnote or the text whether the litigant was In- dian or non-Indian. At the State court level, I identified 33 cases with the same is- sues. Three of those litigants were Indian, four were non-Indian and in 26 cases, I could not make a determination. Eighteen of those 33 cases were resolved based upon the State court granting a tribe or a tribal entity's motion for dismissal based upon sov- erei^ immunity. And the litigant never got his claim heard on the merits. And finally, in tribal courts, the Indian Law Reporter I think is probably the only resource available that I know of where one can go and find reported Indian law cases. Because many tribal courts do not have their own reporter systems. And I know many tribes, Indian Law Reporter does not have access to, obviously, all the tribal court decisions. Many of them are not written, are not pub- lished, and are not available. But of those that were available, and they seem to show up in approximately 1982 or 1983, I identified 61 cases from various trib- al courts throughout the country where the issue of tribal sovereign immunity was utilized to dispose of a litigant's claim without hear- ing it on the merits. And in 33 of those cases, the litigant was In- dian. In two of the cases he was non-Indian. And in 26 of the cases, I couldn't tell from reading the text whether he was Indian or not. Now, the, and so I have attempted to, I have attempted, and ad- mittedly, I will not, I will not say that this analysis was as in- depth as I could have done it had I had more time £ind obviously 16 access to tribal court decisions and unreported decisions. I know there are State and tribal court decisions out there that I do not have access to. However, I do believe that the analysis I've done of the 214 cases that I've looked at suggest that in two out of three cases of these 214, the litigant's claim, whatever it was, whether it was civil rights or personal injury or a real estate dispute, or a contract, commercial deal with a tribe or tribal entity, in two out of those three cases, the litigant's claim, whatever the merit, was disposed of based on a sovereign immunity defense, and the litigant was left without a forum within which to assert his claim. Now, so I believe that a detailed examination of the information which is available at the public level from sources like Indian Law Reporter and other sources like that, will demonstrate that the doc- trine of tribal sovereign immunity is clearly alive and well in In- dian country, and is recognized by courts at all levels. I think it also indicates that the doctrine is utilized widely and accepted widely to dispose of litigants' legitimate claims without those claims being heard on the merits. And that the harshness of the doctrine cuts across racial lines, and it cuts across all lines. Be- cause an Indian litigant is inherently in no better shape to get his case heard at any court level than a non-Indian or in the many in- stances when I simply could not determine what the race of the litigant was. A couple of other points I would like to make. I agree with the comments that have been made by the committee that at the bot- tom, this is a due process issue. In my judgment, it's a civil rights issue. It is true that the Federal Government has sovereign immu- nity. It is true that the State government has soverei^ immunity. And clearly, tribes vigorously assert their sovereign immunity in court litigation on a regular basis. However, because the remedy is so harsh, the Federal Govern- ment has seen fit to waive it in a variety of circumstances: the Fed- eral Tort Claims Act, and in other situations. The Federal Congress has also seen fit to waive the State sovereign immunity. And this of course was effectively done right after the Civil War with the en- actment of 42 U.S.C. 1983 and tne associated statutes there, which give the opportunity to individuals to enter U.S. District Court and sue for money damages, attorneys fees and injunctive relief against State officials or against any person who under the color of State law invades the civil rights of any individual. Those remedies are simply not available to these litigants at the tribal court level, I understand the committee's position with ref- erence to protecting the sovereignty of tribal government. I would submit that the committee should also consider whether or not there is a responsibility to the individuals, both Indian and non-In- dian, who live in Indian country, who have legitimate individual civil rights that also require protection, and to assure that with the support that this committee gives to sovereignty of tribal govern- ments, they also require tribal governments to be responsible to the individuals over whom the tribal governments wish to and attempt to exercise jurisdiction. I would point out that some tribal courts I think have moved for- ward. Some tribal councils have moved forward and made statutory 17 attempts to waive sovereign immunity in certain limited contexts. I see the Navajos apparently have enacted a sovereign immunity waiver in some limited circumstances. It appears from the case law that the Mashantucket Pequots have also enacted what appears to me from the case law to be what amounts to a procedure for people who are injured in their casino to be able to recover for personal injuries. I applaud those efforts. However, there are over 500 tribes out there. And the Indian Law Reporter suggests that very few tribes have taken those types of responsible steps. And I think this com- mittee has the power to consider whether or not it has also the re- sponsibility to see that all tribes respond in a responsible way. I have a, I guess I have a personal interest in making a request of the committee to consider whether or not they can ultimately make tribal government more responsible and in effect more sov- ereign by enacting a procedure such as is suggested by Senator Gorton. Because in my view it will have the effect of strengthening the tribal court svstems. As I note in my text, it is my experience that judges, tribal court iudges who feel the responsibility of enforc- ing tne Indian Civil Rights Act in their courts, sometimes do so at their peril. They are subiect to being discharged by tribal councils. And in many instances, tney have no recourse for tnat action. I believe that the, if a review system is put in place so that a tribal judge who rightly in face of the tribal council enforces an In- dian Civil Rights Act violation of whatever variety, that there will be a Federal judge standing behind him who will pat him on the back and say, you've done it right and you've done a good job. On the other hand, if he does it wrong and does not enforce the Indian Civil Rights Act, there will be a Federal judge and a Federal judici- ary who will say, go back and do it right. I think that that would be the single thing that this committee could do to strengthen the tribal court systems on the reservation, would be to give the tribal judges the autonomy and the respon- sibility to enforce the Indian Civil Rights Act as the Supreme Court suggested in the Martinez decision that it ought to be done. Again, I appreciate coming before the committee. Senator, and thank you for your time. [Prepared statement of Mr. Long appears in appendix.] Senator Inouye. I thank you very much, Mr. Long. Before proceeding, without objection, all of the statements of all witnesses will be made part of the record in total. Mr. Long, your statement suggests that sovereign immunity of State and county and local governments have been substantially abrogated. But the sovereign immunity of tribal governments re- mains largely intact. I am certain you are aware that most of the tribes that administer Federal programs under the Self-Determina- tion Act are subject to the provisions of the Federal Tort Claims Act. I think you indicated that. Mr. Long. We mentioned that in our text. Senator iNOUYE. Are you aware that the Congress has authorized waivers of tribal sovereign immimity in the Indian Reorganization Act of 1934? And in the Indian Civil Rights Act for purpose of ha- beas corpus actions? And the McCarran amendment for the adju- dication of water rights? 18 Mr. Long. My background, Senator, in water law, is very limited. I am familiar with the Indian Civil Rights Act is it relates particu- larly to the Martinez decision. And as I understand that, the Fed- eral Courts will enforce Indian Civil Rights Act violations if habeas corpus in that context would be available. In other words, if the ap- plicable is basically in custody or in jail. And in those cir- cumstances, I think that the system works rather well, in terms of enforcing those rights. I'm not familiar with water law, so I cannot comment on that. Senator Inouye. I am certain you are aware that only the U.S. Grovemment can waive sovereign immunity for purposes of suits in- volving tribal trust land, or land which is held in trust for individ- ual Indians? Mr. Long. Well, I don't know that that's a sovereign immuniW issue. I agree with the result that you state. Senator, but I think that perhaps is not a sovereign immunity issue so much as it is the fact that the U.S. literally owns the land. The land literally is owned by the United States. And so obviously United States con- sent would have to be obtained before something could be done rel- ative to that property. Senator Inouye. And you are aware that most of the reservation lands are held in that status? Mr. Long. No question. Senator Inouye. In your written testimony, you suggest that a State court cannot sue a tribe because of tribal sovereign immu- nity, but you indicate tJiat the reverse is not true. For example, you say, the reverse, of course, is not true, the tribe is free to sue a State in State court, and in most circumstances, also free to sue the State and Federal court. But I am certain you are aware that in March of this year, the Supreme Court held, as it had in an ear- lier Alaska case, that tribes cannot sue States in Federal court, be- cause of the State's sovereign immunity guaranteed by the 11th amendment to the U.S. Constitution. Is that correct? Mr. Long. I'm aware of the Seminole decision, yes, Your Honor. In that context, Senator, the 11th amendment, there may be an emerging doctrine, and I will not attempt to predict what the Su- preme Court will do, I don't know if there's an emerging doctrine relative to 11th amendment sovereignty or the reaffirmation of what the 11th amendment says in terms of the Supreme Court. However, relative to that, I am familiar with State law, which in- dicates that sovereign immunity only exists in the State of South Dakota for money damage claims, and in very limited contexts. Any tribe obviously has access to State courts for declaratory relief, and I think that, I think the 11th amendment, I will be surprised, frankly, if the Federal courts hold that the 11th amendment does not allow the tribes to continue their very common practice of suing individual State officials for declaratory relief, and as long as the State itself is not named as a defendant the courts are going to continue to act and to determine those cases on the merits. And I think that will continue to happen. Perhaps it will not, but I would be surprised if it does not. Senator Inouye. Thank you very much, sir. Senator Gorton. 19 Senator GrORTON. In your view, Mr. Long, has the State of South Dakota lost its sovereignty by reason of the close to total dis- appearance of sovereign immunity from suit granted by the State itself? Mr. Long. No, Senator Gorton; I note in my text, and I quote from a Cheyenne River Sioux tribal, superior court case, which sug- gests that it is a measure of the responsibility of a sovereign to as- sure that the wrongs which the sovereign does are handled respon- sibly in those courts. And I think that the limited analysis that I've done of the Indian Law Reporter decisions suggests tnat in many instances, tribal governments do not act responsibly to see that those wrongs done to the persons within their jurisdiction, or the persons against whom they attempt to assert jurisdiction are dealt with responsibly. I think that's the ultimate measure of a sov- ereign, is to be responsible to the citizens that they govern. Senator Gorton. And so your answer would be the same if I were to ask you whether or not the Republic of France has lost its sovereignty because it can be sued in the courts of the United States under certain circumstances? Mr. Long. Well, the U.S. Congress, as we noted in the text, has waived the sovereignty of foreign governments to the extent that they engage in activity in the United States. Senator Gorton. But that doesn't make France less a sovereign? Mr. Long. Not that I'm aware of, Senator. Senator GrORTON. So the rights of self-determination and self-gov- ernment are not implicated by the extent or even the existence of sovereign immunity from lawsuits, when someone claims that he or she has been robbed? Mr. Long. I would agree with that. Senator GrORTON. Thank you, Mr. Chairman. Senator INOUYE. Senator Conrad. Senator Conrad. Thank you, Mr. Chairman. I thank the wit- nesses who are here as well. Last week, we had testimony from a Joseph Kalt, talking about economic development on Indian reservations, and making the ob- servation based on analysis that he had done that you can't have successful economic development without the presence of, number one, sovereignty, that is, tribes being able to make their own deci- sions rather than them being made for them by some bureaucracy here in Washington, And second, that to be effective, there needs to be separation of Eowers, iust as we have it at the Federal level, that is that there e an administrative, a judicial and a legislative branch. And that because of the constitution that many of the tribes have been given, that there is an inadequate separation of powers, that is that there is not, in many cases, a fully independent judiciary. And as I've listened to the testimony here this morning and read some of the testimony to be given here today, it strikes me that there may be a larger question and a larger problem here that goes to the question of an independent judiciary. Have you found that in your analysis of cases? Mr. Long. Yes, I have. Senator, I quote from two tribal court cases, one from the Lummi Tribe and one from the Lac du Flam- beau Tribe, I believe. And as I understand those cases, each of 20 those tribal courts was asked to make a determination of the vahd- ity of some tribal ordinance that had been enacted. And they did an internal constitutional analysis in both of those cases, and de- termined that they had not been granted the power to make those determinations. In other words, they had not been given the power to, by the tribal council, to make a determination, for example, of the constitutionality of a statute or a tribal ordinance, because they were only allowed to exercise those powers that had been granted them by the council. And in both circumstances they concluded, our tribal form of government is not a separation of powers style gov- ernment, as the Federal system is, and we simply don't have the power to make the determination that we've been asked to make. I think that an independent judiciary could be established on res- ervations. And I tihdnk Federal court review of Indian Civil Rights Act violations, for example, or allegations of Indian Civil Rights Act violations, in a broad spectrum, could go a long way toward estab- lishing or assisting the tribal courts to become independent. Let me give you an example. I was, I served as counsel to the Rosebud Sioux Tribal Election Board for the elections of 1977 and 1979 and 1981. And the reason I was hired in 1977 was because there was a time period between the adoption of the Indian Civil Rights Act in 1968 and the issu- ance of the Martinez decision in 1978 where the Federal courts largely believed that the Indian Civil Rights Act allowed Federal court review of all allegations of civil rights violations in Indian country, much more broad than habeas corpus. And I was hired by the election board and the tribe to be counsel to the election board, because the previous election in 1975 had been very fractious, had been highly litigated. And the resulting litigation had been very expensive and had been very disruptive to the tribe. And so they hired me and my directive was, do it right, and see that the election board does it right, so that if we go to Federal court, we will be sustained in whatever decisions nave been made. And so I served for three elections in that capacity. Shortly after the Martinez decision, we had a similar difficulty in the 1981 election, and of course there was no Federal court remedy at that point. A tribal judge on the eve of the general election, the night before the general election, attempted to issue a temporary restraining order to my clients to stop the election for what he per- ceived to be a civil rights act violation that had been brought before him. He issued the TRO and I think legally he was wrong. But I don't question his power to issue the order. And we elected to follow the order. Well, the candidate for chairman and the opposition can- didate got together about 2 o'clock in the morning and they round- ed up the judiciary committee from the tribal council, and they fired the chief judge, and appointed a new chief judge, who lifted the restraining order. So by 8 o'clock, we had a new judiciary and we carried oflf the election the next morning, pretty much on sched- ule. I don't think that was an independent judiciary, and I do not think that would have happened had the Martinez decision gone the other way. 21 Senator Conrad. Would you, just my final question, would vou say that one appropriate conclusion from the testimony that has been given, and I don't know if you have had a chance to look at testimony that will be given, but one appropriate conclusion is that an independent judiciary should be fostered on reservations. And that is one part of addressing the set of problems that are being discussed here. Mr. Long. I don't think that would be the cure-all, end-all. But I do believe it would be a vital first step. Senator Conrad. A vital first step? Mr. Long. Yes. Senator Conrad. Thank you. Senator Inouye. Mr. Long, I believe that the Supreme Court has also addressed tribal suits against State officials, and that the Su- preme Court has barred these suits as a result of the 11th amend- ment, the most recent expression of which was in the Seminole case. Mr. Long. Excuse me? Senator iNOUYE. The Supreme Court has ruled that suits against State officials may be barred by the 11th amendment. You said that tribes are free to bring such suits but the Supreme Court has ruled otherwise. Mr. Long. I will be surprised, Senator, if — I've not reviewed the Seminole case recently, but Fll be surprised if that becomes a wide- spread position in the Federal courts, that actions where a tribe is seeking relief against State officials can be dismissed on 11th amendment grounds. We've attempted to do so under that theory in the lower courts, and we have cases pending where we've at- tempted to do that since the Seminole decision and have not been successful. So I agree that some commentators read the Seminole case to say that, and believe that will be applied in a broad context. We have not seen it up to tliis point. Senator Inouye. In fact, this is the Seminole decision. The doc- trine of ex parte Young may not be used to enforce that section against a State official. Mr. Long. I understand what it says, Senator. We have not seen that it has been applied by the courts in that broad context, al- though they may. I have not seen that it's happened. Senator Inouye. You spoke of waivers that your State has made. Do waivers vary from State to State or are they uniform through- out the Nation? Mr. Long. In the context of personal injury claims and that sort of thing, I do think they waive the, they vary from State to State. But the one which is universal is of course the waiver which exists for civil rights act violations under 42 U.S.C. 1983, and that's of course the one that was imposed by the Federal Congress on State officials. Senator Inouye. So with the exception of the civil rights waiver, it is up to the State to decide what to waive? Mr. Long. Each State does that individually, yes. And almost all have, at some level in some context. Senator Inouye. I thank you very much. Senator Grorton. 22 Senator Gorton. No more questions. Senator Inouye. Senator Conrad. Senator Conrad, No more questions. Senator Inouye. Now it is my pleasure to call upon Susan Wil- liams, Esquire, of Cover, Stetson and Williams law firm, and Doug- las B.L. Endreson, Esquire, of Sonosky, Chambers, Sachse and Endreson, of Washington, DC. Ms. Williams, it is good to see you. STATEMENT OF SUSAN M. WILLIAMS, ESQUIHE, COVER, STETSON AND WILLIAMS, P.C^ ALBUQUERQUE, NM Ms. Williams. Thank you, Mr. Chairman. Senator Gorton, good morning. Senator Conrad, good morning. I'm pleased to be here to testify on the subject of tribal sovereign immunity and in the course of the hearing, some broader issues re- lating to tribal sovereignty with respect primarily to non-Indians within Indian reservations. My testimony, which I have submitted to the committee for the record, basically makes two points. One is that the doctrine of trib- al sovereign immunity, as it exists today, is not an unqualified im- munity, /^d in fact, the U.S. Congress on several occasions in the exercise of its broad power over Indian tribes, has waived tribes' sovereign immunity fi*om suit for limited purposes, such as the In- dian Civil Rights Act and the citizen suits in the Resource Con- servation and Recovery Act that was described in the Blue Legs de- cision. In addition to that, tribes themselves have waived their immu- nity fi-om suit in numerous contexts. In addition, the United States' Congress and tribes have provided for extensive participation in tribalgovemment by not only tribal members, but also non-Indi- ans. There is repeated examples of non- Indians participating in various agencies and tribal governments, such as on housing au- thority boards, water board allocating the use of water on reserva- tions, Navajo Tax Commission in its creation contemplated that there would be non-tribal members participating in the tax com- mission. There's numerous examples of tribes providing much more than due process, but actual participation in tribal government. But before I turn to my testimony on those two points, I wanted to raise and address a number of issues that have been discussed already here this morning, if I might, Mr. Chairman. First of all, I think it's very important as a backdrop to these questions about tribal sovereign immunity and tribal sovereignty today to under- stand the origins of tribal sovereignty in this country. Because I be- lieve that Congress has long paid due respect to that sovereignty, that unique sovereignty and the unique tribal relationship in our government. As this committee knows so well, tribal sovereignty predated United States' sovereignty in this country. The U.S. Supreme Court, since the early 1800's, has recognized that Indian tribes are sovereign governments, and that their governments predated the United States' colonization of this land. Indian tribal governments in the course of U.S. tribal history, enjoy a unique standing of sovereignty, in that unique standing in sovereignty is also a great, great responsibility uniquely for the In- 23 dian tribes. Indian tribal governments, unlike State and Federal Grovemments, have the responsibility to provide protections, police power, fire services, et cetera, to all citizens of the reservation, not just the tribal members, not just non-Indians, but also non-member Indians, such as mvself, who grew up on an Indian reservation other than the one that I was enrolled in. Those tribal governments have these responsibilities at a time when there is very Httle support, diminishing Federal support for their activities and at the same time that there are very difficult questions of Federal law facing these governments: The jurisdic- tional quag^nire discussed earlier. It's very difficult in these set- tings for Indian tribes to govern their reservations and take care of all the citizens. And it is a difficulty that I ask this Congress to understand and to respect. But even broader than those difficult burdens that tribal govern- ments uniquely face, I think it's very important to understand, and this Congress has long recognized, that tribes are sovereigns not only in the traditional sense as we know it, growing up and learn- ing about social studies and government in our system. Because In- dian tribes not only have the responsibility to exercise the police power, but Indian tribes also have the responsibility, and this Con- gress long has respected the right of Indian tribes, to protect their tribal traditions and their customs. And as the U.S. Supreme Court recognized in Santa Clara Pueblo v. Martinez, Confess has long considered the question of tribal sovereign immunity, and in so doing, has considered questions of tribal tradition and custom which tribal forums may be in a better position to evaluate than Federal courts. Quoting from Martinez: Our relations with Indian tribes have always been anomalous and of a complex character. Although we early rejected the notion that tribes are foreign states, we have also recognized that the tribes remain quasi-sovereign nations, which by gov- ernment structure, culture and source of sovereignty, are in many ways foreign to the constitutional institutions of Federal and State governments. Because Indian tribal governments have this responsibility, which was recognized in the Indian Civil Rights Act, in that Con- gress did not prohibit Indian tribes from establishing religion, the unique character of tribal sovereignty must be understood by this Congress and respected in any decisions this Congress may make under a purported power to affect tribal sovereignty. Let me say also as to a question raised earlier, I believe by Sen- ator Grorton, about whether Congress has the power to waive sov- ereign immunity, there is a long line of cases, beginning with Lone Wolf V. Hitchcock, which suggest that Congress has broad power over Indian property. And I would simply like to suggest that I do not believe that same broad power necessarily extends to broad, unrestricted Federal power over tribal sovereignty. The Federal trust relationship is to protect tribal lands, tribal property. I would suggest that trust relationship also extends to respect for tribal sovereignty. And I do not admit, nor do I see any case law support- ing broad, unrestricted Federal power over sovereignty as com- pared with tribal property. Let me turn to the point raised earlier about whether tribes have an immunity that somehow surpasses the immunity of Federal and State governments. Well, the simple fact of the matter is that sov- 24 ereicTi immunity is alive and well in both the State and Federal governments. They're not anachronisms for the Federal and State government, any more than sovereign immimity is an anachronism for tribal governments. And in fact, the very question of whether or not a tribe would lose sovereignty by having its immunity waived is really the ques- tion at issue here. That is, the tribe, itself, can waive its sovereign immunity £ind has done so in repeated instances. Virtually every commercial transaction entered into on an Indian reservation today has a sovereign immunity waiver in there for usually the limited purposes of enforcing the commercial transaction. Tribal laws throughout this country have provisions in there under which ap- peals of agency actions in water codes, housing codes, zoning codes, tax codes, et cetera, in which appeals from those decisions can be taken into the tribal courts. So yes, tribes have waived their sovereign immunity, just like the Federal Government waives its sovereign immunity and States waive their sovereign immunity for limited purposes, as earlier tes- timony provided, for usually injunctive relief, and rarely, and in few instances, damages. And in fact, this committee probably knows quite well, it's very difficult for Indian tribes to sue the United States for breach of its trust responsibility to Indian tribes in the court of claims to obtain monetary damage relief. If you look at the jurisprudence in the U.S. claims court, time after time again tribes have had trouble penetrating the United States' sovereign immimity from suit, even where there's a Federal solemn obliga- tion to protect and defend tribal property. So I would say the question of sovereign immunity is a broader one, not just one regarding tribal sovereignty and the appropriate scope of that sovereign immunity. Let me turn now to my testimony and just tick through instances in which the United States has in fact waived tribal sovereign im- mimity from suit. Recall again that tribes in the first instance are immune from suit. And so then the question is, has Congress waived that immunity for certain purposes, and if Congress has not had tribes independently of Congress, and I think the case law now supports the ability of tribes to, independently of Congress, waive their immunity from suit, with the exception of exposing tribal trust assets, that is, trust assets held by the United States for the benefit of the tribes. With that exception, tribes can waive their own immunity from suit. But again, the U.S. Congress already has faced this question of whether tribal sovereign immunity ougnt to be waived. And as the Supreme Court in Santa Clara Pueblo v. Martinez pointed out, the Congress has said in the context of whether or not there should be Federal court review of Indian civil rights actions, the Supreme Court noted that Congress, After considering numerous alternatives for review of tribal convictions, Congress apparently decided that review by way of habeas corpus would adequately protect the individual interests at stake while avoiding unnecessary intrusions on tribal governments. Tribal governments today in the modern era, in the modern form of governments, usually promoted by the United States in the con- text of the Indian Reorganization Act, have tribal constitutions in 25 which very shortsighted notions of separation of power were im- posed on many tribes, where separation of power into three dispar- ate branches of government may not have been a great idea, given the size of the tnbe, the resources of the tribe, and thus, these con- stitutions are very difficult to operate under. And many tribes are trying to update their constitutions into a more sensible form of government. But the reality is, tribal governments today are relatively infant in their growth and their use of modem forms of government. Many tribal governments do not have extensive tribal treasuries. And this is the very reason why the United States and the State governments don't open up their tribal treasuries to imlimited judi- cial actions, because of the concern that the tribal government would be bankrupt, the State government would be bankrupt, the United States government would be bankrupt. For those concerns that really were the basis for the common law notion of sovereign immunity today very much are alive and well on the Indian reservations. And because that's so. I would urge this Congress to appreciate that tribes have a very delicate balance to strike here, and they are balancing it tribe by tribe, just like the United States and each State balances the right of its individual citizens to obtain remedies with the very important objective of maintaining the integrity of those governments. Tribes are making those decisions on a daily, virtually a daily basis. And I would urge that this Congress not disturb those tribes in making those deci- sions. Because after all, in each of these decisions, tribes are mak- ing their courts, and in fact their governments, directly available to not only tribal members, but tribal non-members like myself and non-Indians as well. Let me just give you some examples of how tribes are currently waiving their own sovereign immunity from suit, in addition to the Federal waivers that were talked about earlier in the context of the Indian Civil Rights Act, their Federal court review, their habeas corpus review. In the context of Resource Conservation and Recov- ery Act, tribes are subject to citizen suits. The McCarran amend- ment waives the United States' sovereign immimity for purposes of adjudicating tribal water rights. There are numerous other exam- ples in which Congress has acted. But in addition to that, take the example in Arizona of the Yavapai-Apache Tribe has a compact with the State of Arizona. Fortunately there, the State of Arizona didn't erect sovereign im- munity as a barrier to have a neutral forum resolve the dispute be- tween the State and the Indian tribe there. Unfortunately, after the Seminole decision, we now have a bigger problem, from my point of view, about sovereign immunity, and that is, what are we going to do to enforce Congress' wishes in the arrangements that tribes are trying to make with States? How do we get a neutral party there? How do we get a neutral forum there to resolve those disputes? That is a big problem indeed in sovereign immunity that I would hope this Congress would attend to. But in Arizona, the Yavapai- Apache Tribe made a compact with the State of Arizona. And as part of that compact, the requirement was that the tribe enact a law protecting patrons of their casinos from slip and falls, torts. And that was done. The Yavapai-Apache 26 Tribe now has an ordinance that waives its sovereign immunity from suit for purposes of slip and falls of all citizens that come to the tribal casino, Indian and non-Indian alike. And that immunity is limited to the extent of insurance proceeds, just like States do it. There is a remedy there, and people are taking advantage of it, and we are solving those problems, even damage claim problems incurred by both non-Indians and Indians on that reservation. And that is a trend that youll see nationwide, as tribes attend to the concerns, not only the injunctive relief concerns, but the damages concerns of individual citizens. Numerous examples exist in tribal laws where, after an adminis- trative process such as water codes or housing authority codes, a decision is taken by a tribal government. Those decisions are ap- pealable to tribal courts. Mr. Chairman, I have been practicing in Indian tribal courts for over 10 years now. And I have seen re- peated instances of individual citizens attacking the system and yet not taking advantage of it, not following the rules. Time and time again I've seen individual citizens come in, with and without attor- neys, filing their complaints but forgetting to read the rules of civil procedure of these tribal courts. They file late, they don't file prop- er documents, and 111 tell you what, in State and Federal court if that happens, you're rarely given a second bite at the apple. But time and time again, I have seen the tribal courts extend them- selves for these individuals to let them have their case be heard. So in my view, I think that the tribal courts are providing ample opportunities for remedies where the tribal government has waived its immunity from suit. Testimony earlier from the Assistant Attor- ney General from South Dakota, going over the Indian Civil Rights Act cases, well, I've done that, too. And what you see in the tribal courts is a due regard and respect for the legislative power of the tribe in determining whether or not there has been an appropriate waiver of sovereign immunity in individual cases. And it has hap- pened on many occasions. Some tribal constitutions waive the tribe's sovereign immimity from suit for purposes of an Indian Civil Rights Act claim. Other tribes use their statutes. Some tribal courts are using the ex parte Young doctrine to restrain tribal officials who are acting outside the cloak of sovereign immunity. So I do not believe it's true that there are a whole arrav of cases out there, even under the Indian Civil Rights Act, in which no rem- edy has been made available. If there are problems on individual Indian reservations, I'm sure that those individual tribes are inves- tigating £ind having hearings about these problems, and are debat- ing, what is an appropriate solution on a case by case basis. That ought to go on, and this Congress should not at this time step in and interfere with that delicate balance of the tribal government on the one hand, and the integrity of that government, and the rights of individuals as well. Mr. Chairman, there is so much to say on the subjects facing this committee. The power of Indian tribes over non-members, non-Indi- ans on Indian reservations, is a power that's under attack. And it's most unfortunate. Because just like myself, I'm a non-member In- dian, I was TEiised on the Navajo Reservation. I grew up there, and I took advantage of Navajo tribal government. I took advantage of 27 the police power. I took advantage of their fire protection services. I took advantage of them giving n e a civilized form of government. And I would never claim that the Navajo Tribe does not have au- thority over me. I lived on the Navajo Reservation, and I enjoyed the protections of that government, and I respected that govern- ment. The concern about non-Indians on fee lands usually is that they don't get to vote in tribal elections. Well, there's many ways to par- ticipate in government. And tribes in fact have provided those many ways. At Lummi, for example, in Washington State, and as you know. Senator Grorton, I spent a lot of time up there trying to negotiate outside of court litigation the water rights solution up there, we're constantly distracted by numerous initiatives by other governments that keep us from the very important task of trying to resolve that water dispute on a local level, where it should be resolved. Nonetheless, we're here, and in an attempt to defend the sovereignty of Indian tribes. It's very unfortunate, because tribes provide protections to these non-members. I see it over and over again, that fi-equently the non- members, they don't like the answers they get and the due process they get in tribal governments, so they attack the heart of tribal sovereignty itself. But the/re not getting the answers they want. I dont have the prerogative in State and Federal courts. I have to accept the decisions, rightly or wrongly, taken in a biased or un- biased fashion. I don't go attacking the power of States, the power of Federal Governments. Unfortunately, these non-members, even at Lummi, participate in tribal government. The Lummi water and sewer ordinance provides directly for an election by all reservation citizens for two members of their five member board to be on the Lummi water and sewer board. In fact, those non-members have a right to know and are agents of the tribal government. So there's full participation there. There's a right to appeal to the tribal court and on to the Federal court. These remedies are already there, provided by the Lummi Nation, like other Indian tribes are providing remedies. Nothing is perfect, especially when you live in the context of In- dian country, where the tribal governments have the solemn obli- gations to protect all citizens where their authority is somewhat in question with respect to non-Indians on fee lands. That's a very dif- ficult burden tribal governments face, because they are trying to govern their reservations in a uniform, careful manner, treating all citizens alike. But when some citizens can st£ind up and say, you have no power over me, therefore you cannot enforce your water laws, or you cannot enforce your zoning laws in the public interest of that tribe, that makes for very difficult burdens for tribal self- government. I believe that the U.S. Supreme Court has strayed way afar in analyzing tribal sovereignty. The old rules in the early 1800's were States have no power over non-Indians on fee lands, much less anybody on Indian reservations, absent Congressional consent. And that is where I think the law ought to be today. Tribes should have unquestioned sovereignty over all persons on tneir reservations and their territories. And that would solve many of these problems. 28 Mr. Chairman, I appreciate again the opportunity to testify, and would be happy to answer any questions at this time, [Prepared statement of Ms. Williams appears in appendix.] Senator Inouye. I thank you very mucn, Ms. Wilhams. I was listening so intently to your statement that I failed to see the clock. But I should point out that there are many other activi- ties scheduled today and many other witnesses, so Mr. Endreson, if you will keep in mind, the committee would be most grateful. STATEMENT OF DOUGLAS BX. ENDRESON, ESQUIRE, SONOSKY, CHAMBERS, SACHSE AND ENDRESON Mr. Endreson. I will. Thank you, Mr. Vice Chairman, Senator Gorton. I appreciate very much the opportunity to testify before you this morning. My name is Douglas Endreson, I'm with the law firm of Sonosky, Chambers, Sachse and Endreson. I want to first express my appreciation to the committee for maintaining its commitment to ensure that Indian tribes are heard before action is considered that would affect their governmental rights. Recent attacks on tribal sovereignty have made it starkly apparent how important this committee is to the protection of In- dian rights and to the tribal future. If I may, I'd like to make two comments on those attacks, both of which I think are relevant to this hearing. First, the question is being asked of Indian tribes today in Congress, with respect to many issues, why? Why tribal sovereignty? Why Indian gaming rights? Why a right to have land put in trust? These are questions that ask tnbes to justify their sovereignty, repeatedly. The same questions, I would point out, are not asked of other governments. For States, the question is, why not State sovereign immunity? Why not State gaming rights? Why not a right to regu- late, to tax? Indian tribes find themselves on the defensive, because the question that is being asked fails to recognize that the sov- ereignty of Indian tribes is established in Federal law, is changing the United States, and is good for the United States, Indian and non-Indian citizens alike. Let me also make one comment about the nature of the discus- sion that we're having today, and express some mild discomfort with it. Many of the comments about tribal courts that are made are highly critical. Many of these comments are made by lawyers. We should not ignore the fact that lawyers are officers of the court. They have obligations to seek to improve the administration of jus- tice in every tribunal that they appear in. One question, then, that ought to be asked, is what are members of the bar that appear in these courts doing to help address the problems that they see? What contributions are they making to the administration of jus- tice in Indian country? I doubt that Federal courts or State courts would sit quietly, as tribal courts have done, while their power was attacked, their in- tegrity impugned, and their competence questioned. You have my written testimony, so let me briefly summarize the points that I make there. Let me first talk briefly about what's at stake when a waiver of sovereign immunity is vmder consideration. In plain terms, sovereign immunity protects a government's right 29 to address and resolve disputes that arise in the course of its gov- ernance. It does this for all governments, Federal, tribal, State. Here's what I mean. All governments seek to meet the needs of their citizens through the exercise of their sovereign authority. Today, as you've heard, Indian tribes are actively engEiged in using their sovereign powers to tax, to regulate, to adjudicate disputes, to improve the quality of life on the reservation, to develop the res- ervation economy, to preserve law and order, to protect the rights of children and tne elderly, to protect individual rights under tribal and Federal law. These are rights in which all members of the res- ervation community, Indian and non-Indian alike, have the same interests. That the tribes are able to pursue these goals today is largely a result of the success of the self-determination policy. But let me point out that all governments, all governments from time to time find that the exercise of their powers creates disputes. Questions of individual rights, personal injury claims, questions about the scope of governmental authority, these questions arise with respect to tribal government as they do with respect to other governments. The sovereign immunity of these governments, tribal. State and Federal, is a vital part of their right of self-government. This is so for the fundamental reason that it permits these governments to protect their right in resolving disputes that arise in the course of their exercise of their authority. For Indian tribes, this right is pro- tected by the Oklahoma decision that the Vice Chairman cited, by the Santa Clara Pueblo decision, and it is protected as well by this country's commitment to the trust responsibility and this Congress' protection of that same obligation. Let me turn to a discussion of what would happen, what the im- pact would be, of a waiver of tribal immunity, of an authorization to adjudicate disputes with Indian tribes in non-tribal forums. First, the judicial branch of tribal government would be rendered impotent, unable to enforce tribal law in tribal forums without the affirmation of the sovereign or sovereigns in whose courts Congress had permitted these actions to be heard. Second, all exercises of tribal power, whether involving children's rights, environmental rights, consumer law, commercial law, all exercises of power by any branch of tribal government would be subject to nullification by rulings of the courts of other sovereigns. Third, Indian tribes would lose their fiindamental right to bring justice to the tribal community, and to define the expectations on which Indians and non-Indians rely on a daily basis in living, working and visiting Indian reservations. Let me emphasize that that interest in protecting rights, meeting expectations, is no dif- ferent for Indians than it is lor non-Indians. There is no basis for the assumption that tribal government would somehow benefit by treating non-Indians less adv£intageously than Indians. In sum, if immunity were waived, the tribal future would again depend on how another government made decisions concerning the rights of Indian tribes. The result would be the death of the self- determination policy. To illustrate that point, let me quote briefly from the Penhurst decision before the Supreme Court, where the Court held that the ex parte Young doctrine does not apply to claims that a State offi- 35-542 97-2 30 cial is acting in violation of a State rather than Federal law. The Court's statement has, I believe, equal application with respect to tribal rights. The Court stated, it is difficult to think of a greater intrusion on State sovereignty than when a Federal court instructs State officials on how to conform their conduct to State law. I would submit that the same is true with respect to Indian tribes. The Congress, since 1991, supported by the Civil Rights Commis- sion report, has rejected calls to reverse the Martinez decision. Un- like tribal opponents. Congress has sought to define what tribal courts needed to enhance their administration of justice, has sought to meet those needs, by enacting the Indian Tribal Justice Act. Congress' judgment has been correct. As you heard today, a number of tribes have enacted legislation, waiving immunity to permit actions to be heard in tribal courts. Administrative remedies have been created in a number of areas. A review of the tribal court decisions also establishes that tribal courts are committed to protecting individual rights under Federal and tribal law, and to effective enforcement of the Indian Civil Rights Act. Let me note with respect to General Long's testimony that a re- view of the figures that he cites shows that in 30 of the 61 Indian law cases that he cites the Court found immunity not to apply. Thus, half of these cases preceded. Compare that figure with the two-thirds dismissal rate that he cites for State and Federal courts. In reviewing his figures, it also occurred to me that one might reasonably point to certain subject areas that he examined and em- phasize those. Only two of four civil rights claims that he identified were dismissed on immunity grounds. None were dismissed involv- ing the regulation of non-Indians. Let me also express some discomfort with the process of calculat- ing wins and losses in an area such as sovereign immunity. Dis- putes get to court because they can't be settled without a judge. Disputes that can be resolved because the law is clear and the rem- edy apparent do not. Disputes that are resolved because the parties are either well represented or the parties are amenable to a rea- sonable solution do not get to court. The court deals with problems that can't be solved without its intervention. Finally let me say that the decisions of the tribal courts that I focused on, with one exception, are decisions fi'om 1988. I think it's clear that the tribal courts are in a process of rapid development, the whole of tribal government is. This Congress's enactment of the Indian Tribal Justice Act in 1991 set a course in favor of support- ing these courts. The journey has just begun. But the progress that these courts have made is remarkable. First, a number of the court decisions discuss the doctrine of ju- dicial review, the threshold question of whether a court can exer- cise review over a legislative body's determination. This is an issue that Federal courts, the Marbury, Madison v. Marhury decision, is historic. I would suggest that these decisions are no less historic for the courts that handed them down among the Indian tribes. Second, these decisions demonstrate that tribal forums often ad- judicate whether the action before the court is barred by tribal sov- ereign immunity. When agencies and officials assert immunity, the tribal courts determine whether Congpress or the tribes expressly 31 waived immunity from suit. Several courts have held that that im- munity has been waived by provisions in the constitution or tribal code. Others have relied simply on the Indian Civil Rights Act. Third, as my sister Sue Williams has described to you, my sister in the bar, a number of courts have adopted the doctrine of ex parte Young, making available as a matter of tribal common law the same remedy that's available in Federal courts to enforce Fed- eral law. In sum, these decisions show that tribal courts are committed to the protection of individual rights under both Federal and tribal law, and that as the Supreme Court said in Santa Clara Pueblo v, Martinez, tribal courts are appropriate forums for the adjudication of disputes affecting important personal and property interests of both Indians and non-Indians. Congress should continue to reject calls to reverse the Santa Clara Pueblo decision and should continue its support for tribal courts. These courts are both bringing justice to the tribal commu- nity for Indians and non-Indians alike, and are defining the legal expectations on which members of that community, Indians and non-Indians alike, will rely on in the future. The tribal courts' success calls for the continued pursuit and sup- port of the self-determination policy, not its abandonment. Thank you. [Prepared statement of Mr, Endreson appears in appendix.] Senator Inouye. Thank you very much. Ms. Williams, when the Federal Government has waived sov- ereign immunity, it is waived for suits in Federal courts, is that correct? Ms. Williams. That's correct. Senator Inouye. With the exception of the Ms. Williams. Indian Civil Rights Act habeas corpus review. Senator Inouye [continuing], the Indian Civil Right Act, the McCarran Act and such? Ms. Williams. That's correct. Senator Inouye. In similar fashion, when Indian tribes waive their sovereign immunity, it is in tribal courts, is that correct, with other exceptions? Ms. Williams. That's correct. Senator Inouye. Now, can vou give this committee any examples that you feel would justify a Federal waiver of tribal sovereign im- munity in the courts of another sovereign? Ms. Williams. No; I cannot, Mr. Chairman. And in fact, I wish to reemphasize the Supreme Court's decision in Santa Clara Pueb- lo V. Martinez on that point, in which the Court there rejected any notion that Federal courts should have broad authority to review Indian Civil Rights Act decisions in light of Congress' very careful pact carved in this area. Because as the Supreme Court noted, Congress recognized that issues imder the Indian Civil Rights Act will likely arise in this context of the Indian Civil Rights Act. And they will frequently depend on questions of tribal tradition and cus- tom, which tribal forums may be in a better position to evaluate than Federal courts. And as my brother in the bar said, it's very important in this dav for the tribes to, either by legislation or by their courts, establisn 32 the norms and the laws of the reservations in a clear fashion, so that all persons understand what the rules are, what the public in- terest is on the Indian reservations. So I believe it is not appro- priate at this time for this Congress to authorize any more intru- sion into tribal sovereignty and the tribal courts than has already been authorized in the context of the Indian Civil Rights Act. Senator Inouye. Thank you. Mr. Endreson, how long have you practiced law? Mr. Endreson. For 15 years. Senator Inouye. And during that time, have you practiced in tribal courts? Mr. Endreson. Yes; I have. Senator Inouye. Now, in your experience, have you found the tribal courts to be biased and incompetent? Mr. Endreson. I have not. If anything, my observations in tribal courts is that they are keenly aware that they are facing litigants who question their commitment, their competence, their ability to provide justice to non-Indians as well as Indians. That deep bur- den, which I believe neither the Federal nor the State court judges must deal with, hasn't stopped the courts in my observation, from doing anything other than providing the same quality of justice to Indian and non-Indian, and from making every effort to bring jus- tice to the tribal community for the same purpose that the judici- ary is established in other jurisdictions. Senator Inouye. We speak of due process. Do you believe that it is necessary to protect the due process of non-tribal members by this waiver of tribal sovereign immunity? Mr. Endreson. I do not. Again, I believe that the interest an In- dian tribe has in providing due process is an interest that is served without distinction in its dealings with Indians as well as non-Indi- ans. And it seems to me that every government has found great benefit from being able to identify, address, resolve, the conflicts that inevitably arise from governance. So I believe that sovereign immunity is a tool that enhances a government's responsibility to deal with the problems that government raises. Senator Inouye. I have a multitude of questions I would like to submit to both of you, and I look forward to your responses. [Referenced material appears in appendix.] Senator Inouye. Senator Gk)rton. Senator (jORTON. Thank you, Mr. Chairman. Ms. Williams, I guess there really is a great gulf fixed between your views on this subject and mine. As I understood your conclud- ing statement, it is that this whole series of problems, going far be- yond sovereign immunity, would best be solved by granting to each Indian tribe or nation plenary authority over all persons and prop- erty located on its reservations, so that non-Indian American citi- zens on reservations would have no less but no more rights, even though they are in the United States, than American visitors have in France, Russia, or China. If I'm incorrect in that, you can correct me on it. You did, however, recognize, and outline to us, a number of areas in which the courts or the Congress of the United States has uni- laterally limited or waived a degree of sovereign immunity on the part of Indian tribes. And I take it, and this is a question, that 33 while you recognize those waivers, you disagree with them. And while you're here to oppose a blanket waiver of sovereign immu- nity, ycu would oppose Congressional actions to limit sovereign im- munity in any respect that it has not already been limited, is that right? Ms. Williams. That's correct. Senator Gorton. Okay. Even though the committee addressed appropriations bill dealt only with property rights disputes involv- ing the property of non-Indians and mostly non- Indian residents on Indian reservations, to allow such persons general open access to either State or Federal courts with respect to those property dis- putes, in your view, is wrong? Ms. WlLUAMS. That's correct. Senator Gorton. And that's based partly on the importance of sovereign immunity to the tribal government itself, but also signifi- cantly on the proposition that those people simply don't need the access to any courts other than the tribal courts for the resolution of their disputes, is that correct? Ms. Williams. That's correct. Senator Gorton. Now, do those views also apply to any land taken in trust, either in the past or in the future, and grant a trust status by the Department of the Interior, off of reservation, outside of reservation boundaries? Ms. Williams. The Federal law on tribal sovereignty and Federal authority on an Indian community extends to all of Indian country, which includes all lands within a reservation and also trust lands dependent Indian communities. So to the extent that land becomes part of Indian country, yes, I think that tribes should have sov- ereignty there as does the Federal Government. Senator Gorton. So the Department of the Interior therefore has the right and should exercise the right to deprive States and for that matter the Federal courts of jurisdiction over land outside of reservation boundaries, simply by reason of taking it into trust? Ms. Williams. Just as one treaty set aside Indian reservations and limited our authority to our own territories, I think yes, once the land is recovered back into our territories and our communities, yes, we should have power. Senator Gorton. Thank you, Mr. Chairman. I think I under- stand her views perfectly. Senator Inouye. Thank you. Senator Conrad. Senator Conrad. Thank you, Mr. Chairman. I'll try not to pro- long this unduly. This is really a question of competing rights, and it is a question of balance. And I would ask the witnesses if this committee were to find a pattern of property rights being violated or a pattern of personal injury claims that were not addressed, if we were to find in our judgment a pattern in those areas, what in your judgment would be the appropriate solution for this committee to come to? Because I hear you saying very clearly sovereign immunity ought to be retained. What would the remedies be? If this committee be- came convinced that in fact there were a problem, what would you propose? Ms. Williams. Senator Conrad, I think that if this committee were to find such a pattern throughout Indian country, I would 34 urge the committee first to give forewarning to the tribal govern- ments that the committee is contemplating or this Congress is con- templating the severe action of extending the Indian Civil Rights Act or some other Federal law even further into tribal sovereignty. And give the tribes the chance, the opportunity, to correct these wrongs. Often you will find, I believe, as part of that pattern, that the tribal courts suffer from the terrible problem of inadequate re- sources. And I guess I would urge this Congress to find every avail- able means to help the tribes in their tribal governments improve the quality of that tribal government with some clear mandates or directives from the Congress in terms of the kinds of things tribes should consider doing. And then and only then, if that doesn't work and the pattern per- sists, then I think Congress has broad authority over tribal prop- erty, at least. And might consider at that time fiirther extending the Indian Civil Rights Act waiver of sovereign immunity to in- clude certain types of Indian Civil Rights actions. But even in that area, Senator, there are so many, having looked at this Indian Civil Rights Act and looked at the kinds of claims that come up against tribal governments, this Congress should be very, very careful in looking at how to extend that sovereign immu- nity waiver. Because oftentimes, tribal custom and tradition, which is very important and vital to the heart of tribal sovereignty, is very much at stake. And to impose standards that are borrowed from the United States Constitution and State constitutions and impose them wholesale on tribal government, I think would be a serious misstep on the part of this Congp'ess. So we'd have to look very, very carefully at how that sovereign immunity would be lifted even fiirther than it is today for the lim- ited purpose of habeas corpus review. Senator CoNRAD. If I could pursue this 1 minute more, I'd be in- terested in your answer too, sir. I go back to the testimony of Mr. Kalt, who was with us, I believe it was last week. And he said, I found it quite interesting, he said in the constitutions that were given many of our tribes, there was not provision for an independent judiciary. But he said in the tribal tradition, and he talked specifically about the Sioux tribal tradi- tion, there was an independent judiciary in the way the Sioux Tribes functioned before thev had a constitution that in many cases was given to them by us. They had an independent judiciary. And they don't now, or at least in many cases do not. Would you see this as something that ought to be pursued in terms of this committee and this Congress urging tribes to pursue constitutional reform that would give them an independent judici- ary? Ms. Williams. The essence of due process is that there be a full and fair opportunity to be heard regarding the dispute, and a fair and impartial hearing on that dispute. Now, for some tribes, that is provided, not necessarily by an independent judiciary as we un- derstand it in the classic three part government that the U.S. (gov- ernment is patterned after. The Pueblos in New Mexico, for exam- ple, some have judiciaries that are independent, some don't. But in 35 the process of adjudicating disputes by the Pueblo councils, what's important is that there be a full and fair opportunity to be heard and for that council sitting as a decider of disputes to render a de- cision in a neutral and impartial way. And that often does take place. So I would counsel caution in urging tribes to pattern themselves directly after the United States. Now, some tribes have, in fact, there are many tribal constitutions that have now been revised to establish by constitution an independent judiciary. That is a judici- ary that is either elected or appointed and cannot be removed ex- cept for very severe breaches of tribal law. Other tribes have set up tribal judiciaries for certain limited functions to review disputes arising under tribal codes, or commercial transactions, but not nec- essarily to review all legislative actions. So depending on the tribe's resources, size and maybe other fac- tors that are relevant, the question of an independent judiciary has to be examined very, very closely. But the bottomline is that I think each tribe does need to establish some mechanism by some entity in which disputes are heard in a mginner that provides due process, and the dispute is heard by an impartial, fair entity. Senator Co^fRAD. Sir. Mr. Endreson. If I could just add a couple of comments. I think it's a very perceptive question, because it goes right the heart of the reason that I think we're here, one of the big reasons, and that is that proponents of Federal court review or waivers of immunity or other actions of the kinds we've been talking about typically sug- gest, seek to suggest to the Congress, to you, that the problem that they present is, exists everywhere. And tney do that using a device that, here's what happened. Well, that may or may not be so, but what they then say is, this could happen to you, too. And they then ask Indian tribes to prove that it couldn't. They then say, here's a case where justice misfired. Prove this can't happen everywhere. Well, the pattern that you referred to, let me respond to it much as Sue Williams did. I think if there were problems in tribal courts that were understood and recognized to exist with regard to a tribe or several tribes that the correct approach is the one that your comment about constitutional reform suggested, which is to deal with the problem on a tribe by tribe basis, to seek to provide the resources, the expertise, the financial resources as well as the tech- nical expertise, I should say, to help the tribe deal with the prob- lem. Your statement is correct, in my experience. The tribal justice systems that I'm familiar with that predated the European arrival did recognize that disputes should be resolved by someone other than a participant in the dispute. I once researched that and found some old articles in a periodical called the Journal of Criminal Law and Criminolog:, , that described in great detail the systems of the Huron, the Potawatomi, the Menominee and other trioes, and illus- trated the very point that you made. Many of the constitutions in existence now were constitutions drafled by the Bureau of Indian affairs following the Indian Reorganization Act. In some ways it would be the height of hypocrisy for the United States to force a constitution on Indian tribes that lacks an element 36 that Congress later finds compels the Government to waive the tribe's immunity. If a tribe wants to revise and amend its constitu- tion, it should certainly be given support in trying to do that. I do think that I should add one other pomt about this kind of debate, and that is, in many ways, this is an argument that the end justifies the means, that a single case justifies a waiver of im- munity. Let me point out that that argument ignores the balance of the benefits that organized government provides to everyone. To illustrate, when the Los Angeles police department was found to have problems following the Rodney King incident, no one sug- gested that the police powers of Los Angeles should be divested. No one suggested in Chicago after the Greylord scandal in the courts in Chicago, no one suggested that Chicago's judicial power should be withdrawn. Indian tribes operate governments for the same purposes that the United States and the States do, within the limits of the re- sources available to them. And they should be treated the same as the other governments are when problems of the kind that your question refers to arises. I should say finally, I don't believe tnere is any such pattern presently. Senator Inouye. Thank you very much, Ms. Williams, Mr. Endreson. And now may I call on a member of the Whatcom County Coun- cil of Ferndale, Washington, Marlene Dawson; Jennifer Coleman, Esquire, of Buffalo, New York; Lana Marcussen, Esquire, of Albu- querque, New Mexico; Barrel Smith of Mobridge, South Dakota; and Jim Johnson, Esquire, of Olympia, Washington. Ladies and gentlemen, welcome to the committee. May I first call upon Ms. Dawson. STATEMENT OF MARLENE DAWSON, COUNCIL MEMBER AT LARGE, WHATCOM COUNTY, WA Ms. Dawson. Thank you, Mr. Chairman, and members of the committee. I am Marlene Dawson and reside within the exterior boundaries of the Lummi Reservation in the State of Washington. It is with utmost gratitude that I wish to thank you for allowing this hear- ing. The Lummi leadership on this reservation is violating good faith negotiations that occurred with the city of Bellingham oy denying public waters to non-Indian property owners. They are interfering with non-Indian aquifers, and despite a Federal consent decree that requires sewer service on a first come, first served basis, the tribe is denying sewer extensions and hookups so as to prevent non-Indian development, sewer and water lines, I must add, which have all been federally ftmded. The tribe is collecting illegal taxes fi-om non-Indian businesses operating on fee land. The taxes have never received Department of the Interior approval per the tribal constitution requirement, and the tribe uses threats and intimidation, not consent, to secure payment. One tax the tribe coerced was an employment tax fi*om a con- struction company called Wilder. The tribe used the threat of confiscation of road equipment fi"om this construction company, 37 which was a county subcontractor. The tribe is currently collecting taxes from pulalic utility companies, even though company lines cross county roads and their easements, which qualify the land as property in fee, and outside tribal jurisdiction. Since all the taxed parties were unfamiliar with the Lummi trib- al constitution which required Department of the Interior approval for the ordinance affecting non-Indians, the Utility and Transpor- tation Commission approved rolling the tax to the ratepayers. They felt the cost of potential litigation by the tribe outweighed the per- sonal rights of t^e consumer. Unfortunately, litigation is now re- quired to reverse the action of the U.T.C. In the meantime, tribal membership recently voted to eliminate the need of Department of the Interior approval for ordinances af- fecting non-Indians from their constitution. And we have no reason to expect the Department of the Interior not to validate this tribal amendment. Based on my experiences, the Department of the Inte- rior turns a deaf ear to non-Indian civil rights violations. In included in my written testimony is the extent of my Alice in Wonderland experiences in tribal court with the tax issues. The tribal attorney who wrote the utility tax ordinance for Lummi In- dian Business Council also represents them. In addition, he rep- resents the Lummi Sewer and Water District, which collect the utility tax from consumer, and as well, served as the hearing exam- iner at the sewer board tax case where my hearing ori^nated. My written testimony mentioned my private meetmg with the tribal judge, and the court intimidation, after explaining I was there for a personal appearance and was not consenting to tribal court jurisdiction. There is no question in my mind that my private meeting with the tribal judge, which included his statement to me that my le^al argument was good, but which still resulted in his determination that I had insufficient evidence, clearly dem- onstrates that one cannot expect justice in tribal court when there is no separation of powers. While the tax issues are important, of greater concern is the de- nial of basic utilities to our property which affect the health, safety and utilization of our land. When a tribe can come onto a fee resi- dential development, erect a huge storage tank next to a resident, construct a pump house, install a chain link fence with barbed and razor wire, and proceed to drill a well 100 feet away and below the association's outtake, which serves over 600 homes on fee land without permits, then something is basically wrong. To further il- lustrate the blatant, hostile nature of acts like this, one needs to understand, the tribe had available road access, several lots from their well site, to a huge tract of trust land where they could have erected their well 1,000 feet away and avoided interference. Senator Slade Gorton and Congressman Jack Metcalf, to their credit, interceded. When you have a tribal government that uses their Lummi law and order to physically accost people on their pri- vate beach, who threaten confiscation of well drillers equipment, who refuse to pav their educators the full payment due their con- tract, when you have a tribal government whose leader threatens a road closure and even goes so far as to try to eject a candidate for Congress from the reservation when that candidate is on pri- vate property at personal invitation, then something must be done. 38 I respectfully plead, give non-Indian residents who thought that they would be living in a community where diversity was cele- brated, the opportunity to protect themselves and their property from tribal tyranny. At the same time, you'll be benefiting the live- lihood of tribal members. If tribes cannot be held accountable, eco- nomic development on reservations will continue to be stunted and non-existent. Thank you very much, and Fm sorry if I got a little emotional. [Prepared statement of Ms. Dawson appears in appendix.] Senator Inouye. I thank you very much, Ms. Dawson. At times it helps to be a little emotional in getting your message across, and I believe your message was very eloquently presented. May I now call upon Ms. Coleman. STATEMENT OF JENNIFER A. COLEMAN, ESQUIRE Ms. Coleman. Thank you, Senator Inouye and members of the committee. I'm an attorney in private practice in Buffalo, New York. For the past 6 years, I've been representing a group of non-Indian lessees of the Seneca Nation of New York Indians. Before I begin my remarks, let me just point out some ways in which the New York Indian situation is very different and unique from the western Indian and indeed, Federal Indian, situations generally. We are not dealing here with fee land. My clients reside on Indian reservation land pursuant to land leases that were granted by Congress in 1875 and 1890. The enabling statutes that authorized these leases clearly state that the non-Indian lessees are the owners of the improvements on the leased land. There were provisions made in the statutes and in the leases for renewals. And without getting into the merits of the renewal process, let me just say, it cmled wr negotiations for new leases. Failing negotiations, it called for arbitration. That is, one arbitrator selected by the nation, one arbitrator selected by the non-Indian lessees, and those two arbitrators to select a third arbi- trator who would then, the panel would then propose the terms and conditions of the new leases. Second, the Seneca Nation of Indians has never exercised police powers or other sovereign powers over the boundaries, over the people within the boundaries of the city of Salamanca. That also is pursuant to the 1875 Congressional act, which explicitly states that city and local law applies within the boundaries of the city of Salamanca. Furthermore, by State law and pursuant to the Federal statutes I've mentioned and those I will mention, the Seneca Nation Peace- makers Court has no jurisdiction over non-Indians or disputes in- volving non-Indians, and explicitly, no jurisdiction over matters arising from these land leases. In other words, tribal court is not an option. In 1990, Congress acted in a manner that completely upset the renewal expectations of the United States, the State of New York, the Seneca Nation of Indians and the non-Indian lessees. It did so by enacting the Seneca Nation Settlement Act of 1990, which pur- ported to adjust past inequities in terms of low rentals that were paid for more than a century to the Seneca Nation. 39 In so doing, Congress acted over the objections of the representa- tive of the Department of the Interior Walter Mills and effectively ratified and imposed a 40 year lease on my clients. Let me repeat. Congress imposed a lease on my clients. At the time hearings were held, my clients had the lease in their possession for a matter of days. The leases and the statutes incorporate by reference agree- ments that they did not see until 1 month after Congress held hearings on this matter. Needless to say, the lessees did not accept or approve this lease. It's also worthy of note that in the 1990 act, perhaps realizing there may be a problem, Congress provided, and I will quote, at section 1774(g), Notwithstanding any other provision of law, any action to contest the constitu- tionality or validity under law of this Act shall be barred unless the action is filed on or before the date which is 180 days after the date of enactment of this act. Ex- clusive jurisdiction over any such action is hereby vested in the United States Dis- trict Court for the Western District of New York. Now, surely, Congress intended that a challenge to the constitu- tionality of the 1990 act could be maintained, provided it was brought within 180 days, and brought within the Western District Court. Within 1 month, we commenced a lawsuit in Western Dis- trict Court, challenging among other things the constitutionality of the Settlement Act of 1990. The outcome at the district court level, at the court of appeals level, and at the Supreme Court level by virtue of its denial of cer- tiorari, was this: Because the 1990 Settlement Act affected the rights of the Seneca Nation and the interests of the Seneca Nation under the settlement act, these U.S. citizens were unable to chal- lenge the constitutionality of an act of Congress because of Indian sovereign immunity. Effectively, the ruling of the court, which I attach to my state- ment, is that Indian legislation from Congress is immune from ju- dicial review unless the party seeking judicial review is an Indian tribal government. The Second Circuit, which has dealt with the unique problems of New York Indians, recently stated that the availability of a forum should not turn on the ancestry, or shall I say, race, of the party seeking the claim to be resolved. The Court stated. There is simply no room in our constitutional order for the definition of basic rights on the basis of cultural affiliations, even with respect to communities whose distinctive sovereignty our country has long recognized and sustained. Adding insult to injury, after four separate opportunities to sign this lease, after the Supreme Court refused to hear the case, most people signed. They wanted to sign under protest. The Seneca Na- tion said that if they indicated under protest beneath their signa- ture, it would be treated as if they rejected the lease. Sixteen people still refused to sign, placing their houses, their businesses, on the line. It's not about rent, by the way. The rental on these parcels would be approximately $100 to $200 a year under the Settlement Act of 1990. Rather, it's that the Settlement Act of 1990 and the agreements it ratifies transfers ownership of the im- provements to the Seneca Nation of Indians. It furthermore im- poses zoning rules of the Seneca Nation of Indians within the city of Salam£inca, and there are other infirmities with the statute. 40 At this point in time, as I sit here today, there is pending before the District Court judge in the Western District of New York, a mo- tion, not by the Seneca Nation of Indians, but by the U.S. Govern- ment through its Department of Justice, to evict these 16 people from their homes. They have argued, so far successfully, to the magistrate judge that these citizens, my clients, these non- Indian, U.S. citizens, who bought their homes pursuant to federally-ap- proved mortgages, are to be evicted from their homes without an opportunity to defend on the merits. We understand there can be no counterclaims because of Indian sovereign immunity. There can be no counterclaims because the Nation is not even in court seeking eviction. But the United States, acting on its behalf, has arguedf successfully to the magistrate judge that my clients may not defend the action based on the prior rulings where the court held that they could not maintain a chal- lenge to the constitutionality of the Settlement Act of 1990. 'Hiey are going to lose their homes. And the reason they are going to lose their homes is that Congress entered into an area and upset the settled expectations of all parties, and failed to provide a forum for resolution of this dispute. I'll end, again quoting the Second Circuit in its recent decision: Indian nations will continue to use their connection with Federal authorities as a sword, while employing notions of cultural relativism as a shield from Federal court jurisdiction. I thank you. [Prepared statement of Ms. Coleman appears in appendix.] Senator Inouye. Thank you very much. Ms. Marcussen. STATEMENT OF LANA E. MARCUSSEN, ESQUIRE Ms. Marcussen. Thank you. Senator Inouye. Let me first introduce myself. My name is Lana Marcussen, I want to thgmk the committee today for holding this hearing and giving us the opportunity to be heard. It's quite a change. I practice in several Federal districts, Federal district courts rep- resenting Indians and non-Indians who have felt that they have not received due process of law in a tribal court and want political accountability. Political accountability is the new test that the U.S. Supreme Court has been using. It is this new argument that ap- pears to be changing a lot of court tribal policy. It s hard to say at this time how far it s going to go. But by the time clients come to me, usually through uie Citizens Equal Rights Alliance, they're pretty frustrated. The first thing I always have to do when they walk into my office or they call me on the phone is explain to them why they've lost their rights. They don't understand. I mean, when people are out there and they're doing business with the tribe, when they're living on lands and suddenly those lands are declared to be in a reserva- tion, and they find out, just like these people in Seneca, New York, did, that they don't have any rights, they're on the phones. They call everybody trying to figure out what happened. These people are very upset. They have oelieved in this country. I'm from New Mexico. New Mexico has one of the largest public lands movements anywhere going on. These people are firm believ- 41 ers in the Constitution. They^re firm believers in the power of Con- gress. They're firm believers in all of the things this country is sup- posed to stand for. And all of a sudden, they have no rights. It is very difficult to explain to someone why they have no choice but to litigate in an Indian court because of Indian sovereign im- munity. I have been trying to do it now for several years, and fi-ankly, I'm not good at it. I don't think I'm ever going to get good at it. Because fi-ankly, I don't understand it. My clients not only don't understand it, but they additionally don't understand why they don't have the right to claim reverse discrimination. I mean, they walk in and the first thing they see is a tribal court where they have no right to vote, they have no rep- resentation, they have no voice, they don't have any of the constitu- tional rights, and they're sitting there saying, well, isn't this a vio- lation of my basic civil rights? Isn't there a civil rights action here? And I have to tell them basically, no. There isn't. Because of the territorial status of that land and the exclusive powers of the United States Government under the property clause, you don't have any rights. That's the way it works. I know that's a very complicated explanation. There's a lot of case law that explains it. And I'm going to just move forward here. Let me give you some very, very specific details. I represent a Navajo man by the name of Dennis Williams. Mr. Williams had land that he inherited fi-om his mother that was probated through the Navajo Probate Court and awarded to him. Two years later, 2 years after all litigation had ceased on this matter, he is told that the Navajo Court of Appeals is going to hold a hearing to deter- mine whether or not he actually inherited this land, or whether this land belongs to his cousin. He finds out through his attorney that the case had been tele- phonically reopened by an opposing counsel. He was given no no- tice, he was given no right to be there, because he objected to the Navajo court doing this. He turns around, he loses his land, two years after this ca&e was totally closed. He pursues the matter, goes in, he starts searching around, goes to the Navajo Supreme Court Building, pulls records. It turns out that on the records, and we have this, and they have been intro- duced in the Federal court, that the case numbers of the appeals documents had actually been switched. Someone had actually gone in and taken a number of a case that had been properly put on ap- peal and stuck it on his probate action, 2 years afi^r the fact. When he found that, he went to the Navajo District Court and said, fix this. He didn't get all upset, he just thought it was going to be a matter of, fix this. The Navajo Tribal Court not only re- fused, they sent him all the way through the appeals process, all the way through the Navajo Supreme Court, noDody disputed the case numbers had been switched. This man didn't get his land. He gets done with the Navajo Supreme Court. His cousin initiates a damages action against him, which he refuses to pay, because he feels like he's been totally deprived of his rights. He gets thrown in jail for civil contempt, and we end up with a Federal habeas cor- pus petition. That's how far this has gone. Now, my client spent 18 days in jail, until he was released by Judge Parker. Now, I think because of the sheer egregiousness of 42 this particular case and our ability to produce the documents, the United States Federal District Court in the District of Arizona has actually agreed to hear the review of the Navajo court decisions that created this situation. To my knowledge, it's the first time that a Federal district court has claimed judicial review authority over Indian court decisions. I may be wrong on that. The Navajo Nation, of course, is challenging that. But I think at this time that's exactly what's going to happen. It would be very helpful, though, if we didn't have to go through any fiirther claims of tribal sovereign immunity. Another case that I have is for a man by the name of Bruce Wil- liams. Mr. Williams was arrested by the Navajo Police Department for refusing to sign a Navajo ticket. Now, unlike Susan Williams, who's from the same town I'm fi-om, Albuquerque, NM, I believe Oliphant v. Susquamish Tribes makes it very clear that the Indian nations are not supposed to be exercising police power authority over non-Indians. But Bruce Williams was thrown in jail for refus- ing to sign a Navajo citation. Now, that Navajo officer was State certified, and my client ex- pressly told this Navajo officer that he would sign a State citation. He didn't object to the race of the officer. He didn't have any prob- lem with that. He objected to the loss of his rights of being cited, by the Navajo Nation actually claiming police power authority over him. That case is now in the New Mexico State court. By the way, since my client objected to this, his business has been attacked. There are three tribal court actions that have been brought against my client in the tribal courts since he made this objection and filed this lawsuit. That is not unusual in these cases. This one just hap- pens to be very specific. Another situation is in Arizona against the CRIT Tribe, the Colo- rado River Indian Tribe. My clients happened to have some very valuable land that they had leased. They made some people angry in the tribal council, the leases were revoked. When the Talleys ob- jected to the leases being revoked, all of their leases were canceled. This family had been farming on the CRIT Reservation for 50 years. And every single lease that they had was canceled by the tribe. Now, they didn't have any rights. A Federal judge in Arizona has just accepted our civil rights action against the Colorado River In- dian Tribe. I represent people at Lake Havasu that have a situation, on the California side, that have a situation almost identical to the Seneca situation. They were leaseholders under a BLM lease. All of a sud- den, the Secretary of the Interior in 1974 corrects the reservation designation, and they're suddenly on an Indian reservation, and told that their leases, their brand new BLM leases, are being re- voked. And that's exactly what happened. We are now locked in litigation in the court of appeals of tne Ninth Circuit. These are individual cases. But tribal sovereign immunity has gone far beyond just the implication of individual rights. Now in Montana, there's all kinds oi discussion of serious taxation on fee owned lands. I mean, tribal sovereign immunity is so strong that you can't object to anything that a tribe does. 43 The other thing that's happening in Montana is that there's some outrageous tribal court jud^ents. The one that I'm specifically in- volved with in the Marchmgton case is for $65 million. Another tribal court has awarded a $250 million claim for a wrongful death action. Now, that's not pimitive damages. The tribes are real smart, the Indian people are very capable of making good decisions. What do you do? More bluntly, the worst problems that are going on right now have to do with gaming. And of course, I'm coming from New Mex- ico. And I'm wondering today whether or not the Mescalero Apache Reservation is actually going to close their casino per the Federal court order. Now, I haven't heard anything yet, and I hope the committee takes that into consideration today. Tribal sovereign im- munity has become so extreme that there is now, there are now tribes in New Mexico claiming that they don't have to obey Federal court orders. And it's quite a few of them over what's happened with the gaming. Senator Conrad, this is a question of competing rights. It's a question of whether we're going to have constitutional rights to due process and equal protection, or we're going to have tribal sov- ereign immunity. Senator Gorton's proposal to waive tribal sov- ereign immunity is a measured response choosing the rights of the Constitution over the right to tribal sovereign immunity. I urge the committee to adopt section 329, Thank you, Mr. Chairman. [Prepared statement of Ms. Marcussen appears in appendix.] Senator Inouye. I thank you very much, Ms. Marcussen. May I now call upon Mr. Smith. STATEMENT OF DARREL SMITH, MOBRIDGE, SD Mr. Smith. Thank you, Senator. I ranch near Mobridge, SD on the Standing Rock and Cheyenne River Indian Reservations. I'm a third generation reservation resi- dent, and one of over 370,000 non-Indians that live on Indian res- ervations in this country. Both my grandparents moved to the Cheyenne River Indian Reservation in the 1920's, where my father and my mother met and married in the early 1930's. My parents bought the ranch that I presently live on in 1946, and I inherited part of that ranch from my dad, and have bought part of it from other family members, and I'm continuing to buy some from my mother. I live in an area that was opened up to homesteading by a 1908 Surplus Land Act, a phrase in this act refers to the respective res- ervations thus diminished. Based on the Surplus Land Acts and the Dawes Act, early homesteaders did not think they lived on res- ervations. Based on the Dawes Act, they expected even neighboring reservations to cease to exist within a short time. They couldn't have anticipated or imagined the problems we face today. Over the years, non-Indians have been put back onto res- ervations and subjected to tribal taxes, license and regulations without the right to vote or participate in tribal government. A con- troversial Supreme Court decision put me back on the reservation in 1984. Both the tribes and the BIA have the legal right to dis- 44 criminate. And since tribes are governed by Federal law, govern- mental powers that are granted to one tribe generally can be adopted by others. In contrast, tribal members can rightly participate in county and local governments. Because of the reservation boundaries, the tribes and their members are exempt from paying the taxes or obeying the laws that they make as participants in city and county government. This threatens non-Indians in towns and counties on reservations. Thus, non-members are being forced to pay taxes, ob- tain licenses and obey regulations of a government that they are excluded from, while tribal members can participate in local gov- ernments that they may not have to support or obey. Tribes are asserting the right to collect many different kinds of taxes from non-members. I pay tribal tax that tribal members are exempted from paying. What limits taxes that can be discriminately collected from people that are excluded from the po- litical process? How do these taxes differ from the British tax on tea imports prior to the Revolutionary War? Tribal taxation also results in double taxation and raises busi- ness costs for non-member reservation businesses. A neighboring tribe has required that non-Indian businesses, even those located on non-Indian land, must have tribal business licenses. License ap- plicants must agree to comply with tribal laws, including tax and preference laws. Applicants also must consent to the jurisdiction of tribal courts over any business conducted on reservations. Inherent in the power to license is also the power not to license. These powers can, and I might add are being used to intimidate or force non-members off reservations. Few reservation businesses can afford effective legal remedies. Contracts with tribes or tribal members can only be enforced in tribal court and sovereign immunity protects them from being sued. Recently, a tribal casino was built near me. Two contracts were entered into by the tribe and unilaterally canceled after con- siderable money was spent by the non-tribal party before a third contract was honored. This risk greatly reduces commerce with tribes. Non-Indian communities and whole counties can't enforce regula- tions against tribal members. In a neighboring community, four In- dian youths vandalized the public school. Protected from effective prosecution by their immunity, several of them vandalized a busi- ness a few months later. In the business, they left Polaroid pictures of themselves behind. Less than 2 months later, they desecrated a church, spreading excrement on walls and also on floors with a buffer. Available chemicals were dumped everywhere. And again, they left photocopies of their faces and genitals. Law enforcement is severely impaired on reservations. Economic prosperity requires certain conditions, and is difficult in rural areas, in the best of circumstances. These added problems and un- certainties resulting from the inability of non-Indians to sue a tribe because of sovereign immunity and other uncertainties related to tribal court devastate the economies of many reservations, nega- tively affecting everyone. It is no accident that my county is one of the poorest in the country. 45 In addition, many potential purchasers of reservation assets are simply not interested when they find out they will be confronted by these problems. When purchasers can be found, asset prices are regularly discounted about 25 percent. These facts make it difficult for non-Indians to either stay or leave. I have a beautiful ranch that is close to town and has miles of shoreline. But I have considered selling it just to avoid these prob- lems for myself and my children. I heard about a potential ranch purchaser that was interested in a ranch like mine. When I con- tacted the realtor that was involved, he said that the word was out about reservations, and he didn't think it was ethical for him to even talk to this purchaser about my ranch. I estimate that if my ranch were sold, I would have to discount it at least $400,000, msiking it very difficult for me to replace it somewhere else. It is time to end the sovereign immunity of Indian tribes, and at least to make them subject to suit for violation of constitutional rights for torts and for breach of contract. Thank you. [Prepared statement of Mr. Smith appears in appendix.] Senator Inouye. Thank you very much, Mr. Smith. Mr. Johnson. STATEMENT OF JAMES J. JOHNSON, ESQUIRE, OLYMPIA, WA Mr. Johnson. Mr. Chairman, members of the committee, thank you for this opportunity. My name is James Johnson. I am an attorney now in private practice in Olympia, WA. Preceding entry into private practice, I worked for about 20 years in the Attorney General's office in the State of Washington. We're here today to ask you to finish the job Congress com- menced with the Indian Civil Rights Act many years ago. In the interim, you have spent millions of dollars. It's now time to help, allow or even force the tribes into our constitutional judicial sys- tem. Chief Deputy Long firom South Dakota systematically analyzed and others have, including my testimony, nas anecdotally shown hundreds of cases of allegations of tribal abuse of both members and non-members, in which there is no remedy in court. Not shown among those reported cases, of course, are the thousands of cases not reported because this arcane English sovereign immunity, to which both the Chair and Senator Grorton alluded, has blocked peo- ple fi'om even having the opportunity to get into court, to repeat; the cases which A.G. Long summarized, are those where people have tried to get into court and have usually been frustrated. At the extreme in my testimony, I observe that when tribes act more like gangs than governments, there must be a remedy. That remedy in our society must be judicial. I take Mr. Endreson's criti- cism, by the way, members of the committee, very seriously. I shouldn t speak of the extremes. Because we do too often call to the attention these anecdotal examples of the extreme. We should talk about the general proposition. And the general proposition is this: that the smaller cases; the trip and falls, the general kinds of land use problems and the others illustrated in this testimony, also cry out for a judicial remedy, in the event there is a problem occurring. 46 And not to be overlooked is the salutary effect even the Indian Civil Rights Act has had on avoiding those things. We provide remedies in the hope not that there will be more and more violations, we provide remedies in the hope there won't be violations, tfiat either the tribal courts or the tribal performance will improve just as by analogy State courts and States improve under tne impetus of an earlier Congress adopting the Civil Rights Act to force fiiem to be accountable in Federal court if necessary. And surely enough, in 25 years, the judicial system, the justice sys- tem improved. It is our hope, and Fm sure that of those who reside on reservations, that would be the effect here. As I walked over here this morning, I walked by the U.S. Su- preme Court and noted, as Tm sure others have in their testimony here, the porticos have "Equal Justice Under Law," a promise to all United States citizens that remedies will be found in a court somewhere, and theoretically all the way to the U.S. Supreme Court. As you know for most of the anecdotes which have been told here and most of the cases Mr. Long describes, the hundreds, there is no remedy. And by the way, even if you get into tribal court, there is no review into the U.S. Supreme Court. I digress for a moment to an exchange between Mr. Anderson and I think Senator Conrad, because an attorney general once told me, answer the judge's questions first of all, get to what they're in- terested in. And a couple of propositions are important here. Mr. Anderson said, many tribes nave recently adopted courts. But a piece of what my testimony notes is that many tribes don't have courts today. Many tribes of the 560 odd that are now shown as tribes, and entitlea to sovereign immunity under Interior's listing of tribes and tiie r^ulation which I cite don't even have courts even as we speak. There is no judicial remedy. Others of them have C.F.R. courts and some others share courts. A second and important proposition. Senator Conrad, we should all remember, is there are limited constraints of the Indian Civil Rights Act. But as a general proposition, tribal courts do not en- force the United States constitutional provisions such as due proc- ess in civil cases. As just one example, you don't get a jury of vour peers. Whether tJiose who have to go into those courts correctly or incorrectly perceive that they're not getting a fair hearing, the fact is, they can't be on that jury. And if they beheve their peers can't be on that jury, it adds to the impression that they're not getting a fair hearing. But I digress, as I sav. Mr. Long has also shown, I think, a very important proposition here, that the impacts are on non-Indians and Indian members al- most equally among the reported cases. My anecdotal part of the testimony, which I shan't go back through in length, is an off-res- ervation illustration of a recent Federal court degree involving tens of thousands of private landowners in the State of Washington. And I call it to your attention, as most lawyers do, their own cases are real important. Of course, my case is important because of that, and because there are lots of private landowners on what used to be peaceful Puget Sound. But also because the judge held that a remedy was necessary. His original decree said, here are conditions to avoid conflict be- 47 tween the tribal treaty citizens and non-Indian citizens owning the land. And he included those conditions and a remedy. Only when the United States and the tribes came back and said, sorry, this remedy is not available because it's barred by sovereign immunity, did he reluctantly, I believe, amend his judgment, and remove that remedy. It is an illustration, I think, of a kind of civil remedy, I hope an illustration also of the point I was earlier making: Do I expect to get my clients damage claims for the tens of thousand, hundreds of thousands? Absolutely not. And I have told them it's not work that I could or would want to do. The salutary effect would be, hopefully, that there would be no such claims. That if there is a remedy available, it has this constraint of avoiding these kinds of problems. And that general proposition, I think is true with the waiver of immunity we seek here. At a second level, I think it would improve the tribal courts just as it has improved State courts, as I had earlier mentioned. One final point, the argument has been made, I think by Ms. Williams most recently, and it's an aged, historic argument that somehow tribes would be bankrupted by this waiver of immunity. I think I have responded to one point. She says, the tribes need fair warning. I say. Congress gave them fair warning when they passed the Incfian Civil Rights Act. It's now time to finish that job. The courts have progressed. More directly on point, you will hear testimony fi*om three Wash- ington tribes following me. And at least several of those illustrate quite clearly why the so-called fear of tribal bankruptcy is unlikely. A first and separate proposition is for two of those tribes, the Tulalips, Congress has gpranted over $9 million last year, to the Lummi Tribe, over $11 million. And those figures are taken from 92 audits that were submitted in this very same case. The point is, it's not just the money. The point is that many of these actions are actually taken under funding by the United States. And therefore citizens such as Ms. Dawson are doubly ag- grieved in that not only have they no remedy, but some of the ac- tions that are taken with respect to their property are funded by their own tax dollars and funded by this Congress. And it is not too much to ask that at least to that extent the tribes be held re- sponsible. In my testimony, Fve gone back through acts of Congress in the last century in which this was a fairly common practice, that Con- gress would hold the tribes responsible at least up to the amount of dollars made available. A separate and important proposition is of these two tribes, actu- ally three who will be testifying to you later, at least the one, the Tulalip Tribe, we know what their casino gambling revenues are. Last year, the public figures show they made $24,800,000 in prof- its. I highlight that point to say they're in business, they're big business now. And second, unlikely to be bankrupted by the kinds of claims which, as I've already said, we hope will not be made. That this waiver of immunity will not necessarily bring big claims, but big responsibility, which the big tribal governments should have, big responsibility. 48 I know it's late, Mr. Chairman. I suspect I had best conclude, and conclude, as lawyers are wont to do, with the quote from the Supreme Court, 16, 17, 18 years ago, Justice Blackmun wrote: "I entertain doubts about the continuing vitality in this day of the doctrine of tribal immunity. I am of the view that the doctrine may well merit reexamination." He was speaking of reexamination by the Supreme Court, I suggest a more appropriate place for such reexamination is the body with plenary autiiority over the tribes, and you and the Con- gress are that bo^. Now is the time for that reexamination. They have, in Ms. Williams' terms, been given fair warning that they will be held accountable and all deliberate speed requires that the total implementation of constitutional rights now be done by waiving those tribes' immunity. Thank you. [Prepared statement of Mr. Johnson appears appendix.] Senator Inouye. I thank you very much, Mr. Johnson. I am cer- tain that the assembled leaders of Indian country in the audience have tsQcen note of the testimony of all of you here. Ms. Dawson, I will most certainly review your statement, as I will all statements. And I will further confer with the Lummi Na- tion to see what is going on there. Because obviously, I am not aware of the specifics of your problem and your case. But I will most certainly discuss this matter with them. And if I feel that something can be resolved here, I will communicate with you, if I may. Ms. Dawson. Yes, Senator. Senator Inouye. And Ms. Coleman, I recall that this committee did handle the Seneca legislation. What you are speaking of, if I am not mistaken, is Federal immunity, isn't it? Ms. Coleman. No, Your Honor. It's that Indian sovereign immu- nity has been apphed to bar Federal judicial review of an act of Congress. It's not Federal immunity at all. It's the immunity claimed by the Seneca Nation of Indians. Senator Inouye. But your suit is against the Federal Govern- ment? Ms. Coleman. No; it's not. It originally was against the Seneca Nation of Indians, to enforce the renewal provisions in the expiring leases and in the 1875 and 1895 statutes. We also brought the con- stitutional claim, which required joinder of the U.S. Government as well. But it was dismissed solely on grounds of Indian sovereign immunity. Senator Inouye. I will most certainly review your testimony and confer with my staff on that matter. Ms. Coleman. Thank you. Senator Inouye. Ms. Marcussen, I listened to your testimony with great interest. If I am not mistaken, there have been hun- dreds of tribal court cases reviewed by the Federal courts. The Su- preme Court has held that the exercise of jurisdiction is a Federal question over which Federal courts have exclusive jurisdiction. But usually, the Federal courts will insist that all tribal remedies have been exhausted before they exercise jurisdiction. Is that correct? Ms. Marcussen. Senator Inouye, I basically agree with you. When I stated what I did about the Dennis Williams case, what is 49 unusual about the case is that the^re actually going to review the Navajo judgment. Now, to my knowledge, there had been exhaus- tion, you're rirfit, there's has been eimaustion of remedies, and that's a normal process. But I've never actually seen, in a matter of internal self-governance like this, where vou actually have In- dian lands on an Indian reservation where they would actually go through and make a due process determination like that. Now, I may be wrong, Your Honor — excuse me. Senator, you know how trial lawyers are. [Laughter.] But this to my knowledge, and certainly the way the Federal Dis- trict Court in Phoenix is treating this matter, they've never actu- ally gone through that due process analysis like that. I mean, they may disagree, they may turn around and do a de novo review. De novo review after exhaustion of tribal remedies has happened many, many times. But I've never actually gone, I've never actually seen the court go back and actually look and see if the process it was given was really fair. Senator Inouye. Your example of your Navajo client is one in which your client went before the tribal probate court, is that cor- rect? Ms. Marcussen. That's correct. Senator Inouye. Did you appeal to the Interior Board of Indian Appeals? Ms. Marcussen. Yes, Your Honor, my client did. And he ex- hausted all of the DOI process. Senator Inouye. Was that trust land? Ms. Marcussen. It is trust land. Senator Inouye, So I would think that the trust land would give the Federal court jurisdiction, it is a Federal question. Ms. Marcussen. Actually, Your Honor, there are other ques- tions. Tribal sovereign immunity is a big issue. When you're actu- ally dealing with public lands questions, the Federal courts have often disclaimed jurisdiction also under the quiet title act. There's more than just one immunity problem to overcome in most cases like this. In this particular situation, Senator Inouye, the court expressly took jurisdiction under the Indian Civil Rights Act, under the ha- beas petition of the Indian Civil Rights Act, and based on the 14th amendment, because of the Adaran decision. And that's the express order of the court. Senator Inouye. In the New Mexico gaming case, if I recall, with regard to the order to close the tribes casinos, that has been stayed pending appeal to the 10th Circuit, is that correct? Ms. Marcussen. Senator Inouye, there are actually three dif- ferent suits. The main suit against the Nine Pueblos was stayed. I do know that as I was leaving New Mexico yesterday that Chair- man Wendell Chino had requested Judge Vasquez to stay the clo- sure order of Judge Parker. I have not heard whether or not that stay was granted m that case. Senator Inouye. Mr. Smith, you have presented a very compel- ling case. But I do not think that individual Indians, the ones that had their pictures taken, have any sovereign immunity. If these perpetrators were not prosecuted, I do not think that it is because of sovereign immunity. So I will most certainly discuss this matter 50 with their tribe. But can you tell me the name of the tribe in- volved? Mr. Smith. That particular case was the Standing Rock. I think that you'll have that opportunity this afternoon. Senator Inouye. The Standing Rock Tribe? Mr. Smith. Yes. Senator Inouye. I thank you very much. Mr. Johnson, your suggestion that Indian nations should take note of some of the concerns expressed by you and others I hope will be seriously taken. I take them very seriously. Mr. Johnson. Thank you. Senator. Senator Inouye. Senator Gorton. Senator GrORTON. Ms. Coleman, your testimony is the first I've ever heard in connection with a statute recommended by a commit- tee of which I was a member at the time in a Congress of which I was a part. I'm not sure whether Senator Conrad was here or on the committee then. But certainly Senator Inouye was chairman. At least fi'om my own point of view, I can't imagine that any of the members of the committee believed that in passing a section that expressly disallowed for a constitutional challenge, that we would be, that we were engaged in a frivolous or a meaningless act. The Chairman can speak ror nimself in that connection. But I take it that the decision in the district court and the court of appeals was on the basis that that section didn't expressly waive the sovereign immunity of the Indians to be sued, and that if want- ed to do so, we would have had to have done so in the act? Ms. Coleman. It's more fiilly expounded in the district court opinion, which is impublished. But that's precisely it, that this lan- guage by Congress, which I read to you, was not explicit enough to authorize suit in the face of Indian sovereign immunity. Senator Gorton. Well, as I said, I can't imagine that there was anything in the committee report, if there was a committee report to that effect, I can't imagine that there was anything in the memo- randa that our staff present to us when we're considering a case to that effect. But I can tell you, as cold comfort as it may be to yours, that I think I can assure you that while I'm here, there won't be another such statute that grants those rights without an express waiver of sovereign immunity. You've described the true outrage. I don't know at this point wnat if anything there is that we can do about it. But it was certainly wrong. Now, for Ms. Dawson and for Mr. Johnson, in answer to the very last question by Senator Conrad, Mr. Endreson analogized his de- fense to a proposition in the Rodney King case in Los Angeles, when there was a feeling that an injustice had been done, we didn't deprive the Los Angeles police department of its police powers. What we did do, however, was when a jury of their peers in a State court found those police officers to be not guilty, the Department of Justice and the Federal Government started an entirely new ac- tion in Federal district court and successfully prosecuted them. My question to you is, I assume that you would be perfectly ame- nable to an analogous set of remedies in your case, in your cases, that if when you go to a tribal court and feel that you have not been dealt with justly, as was the case in the Rodney King case, you would find it a perfectly appropriate remedy if you could then 51 go to a Federal district court and get a decision de novo on the merits of your case, would you not? Mr. Johnson, Yes; I believe the answer to that is yes, Senator Gorton. There are circumstances, however, where exhaustion of remedies is exhaustion of plaintiff. And there are certain causes of action that ought to be brought originally in the Federal court and against the tribe. And so some of those cases, it seems to me, should be brought directly into Federal court. Senator GrORTON. Ms. Dawson, in your case, if you could get a de- cision of a court outside of a tribal court on the merits, you would perforce have to be satisfied with whatever that decision was, would you not? Ms. Dawson. Yes. Senator GoRTON. Mr. Smith, in your case, have you told us in ef- fect that for the purposes of a proposed sale, your realtor has told you that your property is worthless, that it can't be sold? Mr. Smith. No; Fve actually had several situations. That particu- lar realtor with that particular purchaser basically said that he would not talk to that purchaser about my ranch. That doesn't make it worthless, because there's other people out there. But I've had that particular situation in relationship to my ranch. I also had another guy come to me and ask if I'd be inter- ested in selling. And after some consideration, I said, yes, I would, for this amount of money. And after we talked about it and thought about it, he said, well, if your ranch wasn't on the reservation, I might be willing to pay that amount for it. But I'm not, since it's on a reservation. So as a practical matter, because you're dealing with a lot of peo- ple, you're dealing with a discount. And the situation varies, de- pending on who you are, what the situation is, how much that is. But I think in most cases it's 25 percent. And I think there's a lot of cases where it's considerably more than that. Mr. Johnson. Senator Gorton, in my testimony, I recount one witness testifying, an appraiser who had done over 150 waterfront property appraisals, that the diminishment in value was up to 40 percent. And so it is not a total taking, which mi^ht give you dif- ferent causes of action. This diminishment, there is no remedy for that. Senator Gorton. One final question, I think, really for the three of you in the middle. One of the objections of great emphasis on the part of those who are opposed to the bill has to do with the potential of a damage judgment bankrupting a tribe or particularly a smaller tribe. Mr. Johnson, you spoke to that situation. But let me present this question to the three of you. Would your concerns about tribal sovereign immunity and the ability to get what you consider to be due process, an objective deci- sion of controversies, largely be served if the waiver of sovereign immunity affected only a suit for a declaratory jud^ent or a suit for an injunction and suits for damages were not waived? Mr. Johnson. I think that would be an appropriate remedy, Sen- ator Gorton, with this caveat, that as the historic statutes which I alluded to in my testimony today, and have summarized in the written testimony with reference to Felix Cohen's book, as with those statutes, it seems to me that you, Congress, should provide 52 a remedy up to the amount that is made available to the tribe from tax revenues. So in the example I used, if the Lummi Tribe gets $12 million this year, it seems that Ms. Dawson should be able to get declaratory relief, injunctive. But there shouldn't be an impu- nity with respect to the damage claim. But I would say yes to your first proposition, and say if I could get a little more, it seems like this additional remedy would be appropriate under those cir- cumstances. Ms. Marcxjssen. Senator Gorton, it's kind of a tough question. Because by the time clients come to me, they're so angry and they're so frustrated that they are typical clients walking into your office, they want to go for the jugular. So, you know, they would not want me to say what Fm about to say. I think what you are proposing by giving iust a, even a more lim- ited waiver tJian what section 329 does at this time, for the declar- atory judgment actions, and just for injunctive relief, would be very acceptable. It would allow the concept of accoimtability and some review to actually be introduced with respect to the Indian tribes without being a total waiver of tiieir immunity or a threat to their pocketbooks. I would say 95 percent of my, of the people I see, once they calmed down and actually started thinking about what the impHca- tions would be for these huge damages claims, would agree that tribal sovereignty in general needs to be protected. I have found that the clients that walk in my door, once you get them past that point of what iust happened to them, most of them really do believe and respect the Indian nations. And what you're talking about I think would be a very balanced remedy. Ms. Dawson. When you were talking about the real estate, I think you'd have a lot of declaratory relief being asked for by tribal members as well as non-tribal. And Senator Inouye was so kind as to say he would follow through on some of the issues. I talked to a Grace Ericson, who is up in years, she is one of three tribal mem- bers, sisters, two of the sisters were able to sell their property be- fore the tribe became a tribe of self-governing. And she recently has tried to sell her property, I guess it's been in the last five or six years, since the Lummis were appointed a self-governing tribe. And she has been unable to sell her property, even though there's a Federal consent decree that says that the tribe is not to interfere with the buying and selling of properly. They will not re- lease it. And she had a real estate person that had negotiated in good faith a good sale, the tribe had the first option of refusal in terms of buying that property. And I talked to her before I came. And she's one^alf Indian. She married a non-Indian. She has grandchildren who are one-eighth Indian. She has pursued the American dream off the reservation years and years ago, after she was married. And she is unable to sell her property. And she is at her wits end. If she could have some kind of a rem- edy, I think that the tribe would not be doing this to their own peo- ple, their own members. Senator Inouye. Thank you. Senator Conrad. Senator Conrad. What is your intention with respect to the next panel? 53 Senator INOUYE. I have learned a long time ago that once you re- cess, it is almost impossible to get everyone back again. While I re- alize lunch is upon us, I would Uke to stay here until we finish. Senator Conrad. Then I will forego questions of this panel. Senator Inouye. Well, ladies and gentlemen, I thank you once again. And I will now call upon the next panel. The Chair of the Con- federated Salish and Kootenai Tribes of Flathead Nation, Pablo, MT, Rhonda S. Swaney; the Chairman of the Lummi Business Council, Bellinrfiam, WA, Henry Cagey; Bill Anoatubby, the Gov- ernor of the Chickasaw Nation of Oklahoma; the Chairman of Standing Rock Sioux Tribe of South Dakota and of North Dakota, Jesse Taken Alive; the President of the Navajo Nation Council of Window Rock, AZ, Albert Hale; the Vice Chairman of the Tulalip Tribes of Washington, Donald Hatch; and the President of the Na- tional Congress of American Indians, W. Ron Allen. I have been advised that there is a slight change. We have Herb Yazzie, the Attorney General of the Navajo Nation. May I now call upon the Chairwoman of the Confederated States, Rhonda Swaney. STATEMENT OF RHONDA R SWANEY, CHAIRWOMAN, THE CON- FEDERATED SALISH AND KOOTENAI TRIBES OF THE FLAT- HEAD NATION, PABLO, MT, ACCOMPANIED BY DANIEL BECK- ER, ESQUIRE Ms. Swaney. Good morning, Chairman and members of the com- mittee. I'm honored today to represent the Salish and Kootenai Tribes of the Flathead Reservation of Montana in presenting testimony to you concerning tribal civil jurisdiction in Indian country and tribal sovereign immunity. I'm accompanied today by my attorney, Daniel Becker. And if we have any legal questions following my testimony, he will assist me in answering those questions. We would like to offer today some of the many examples of how an inclusive, creative approach to tribal protection of the rights of all citizens living on or near reservations and the implementation of successful dispute resolution mechanisms offer alternatives to unnecessary legislation intended to correct a perceived problem. Perception is one of the major limitations of all of us legislators. We focus on a complaint, dispute, or problem, based on our per- sonal experiences, our knowledge or our feelings. This committee is attempting to deal with the perception that non-tribal members liv- ing on or near reservations have no civil remedies because of tribal sovereign immunity. That's simply not the truth. I would share with you our tribe's perspective of the rights of all Eeople living on or near reservations, and the resolution of conflicts etween, among those people and a tribal government. Tribal gov- ernments all over the Nation, whether they're traditional or reorga- nized forms of government, are all too familiar with the distrust, anger and fear associated with lost property or property rights. For example, my forefathers, by agreement made in good faith with the Federal Government, ceded, relinquished and conveyed to the Unit- 54 ed States property outside an area that we reserved for our exclu- sive use. As with every treaty made, the U.S. Government broke nearly all the promises made in the treaty, including the right to use the re- served area exclusively. By 1934, only 75 years after the treaty ratification, we have lost approximately 66 percent of our reserved land base. Today we own about 60 percent. But we represent only about 30 percent of the population. We realize that the traditional ways of protecting our property and property rights have not worked. And so we turned to innova- tive means of protecting, preserving and enhancing our homeland. This approach benefits all the residents of the reservation. It also provides all types of civil remedies, and provides for governmental participation by non-tribal members. The primary responsibility of any government is to regulate the conduct and the activities permitted within the government's juris- diction. On the Flathead Reservation, we've taken steps to protect the health, safety of persons on the reservation, and to encourage productive enterprise, while attempting to protect natural re- sources. We've also taken many steps to ensure that non-members have the opportunity to play an active role in the promulgation and implementation of government regulations and ordinances. Let me tell you about some other things we've done and are doing. First of all, I'd like to talk about two ordinances: the shore- line protection ordinance and the aquatic lands conservation ordi- nance. The shoreline protection ordinance is an ordinance intended to regulate the kind of construction that takes place below the high water mark in Flathead Lake. As a result of a challenge the tribes made about development of a commercial breakwater and dock, constructed by a non-Indian in Flathead Lake, the Ninth Circuit Court affirmed that the tribes owned the bed and banks of the south half of Flathead Lake. They determined that the Flathead Nation had not been disestablished, and they determined that the tribes were the ones to rightfully exercise regulatory authority over structures constructed below the high water mark. The tribe's regulator/ authority in this ordinance is exercised by a seven member board.. Three of them are non-members and four are tribal members. The board also oversees implementation of the aquatic lands conservation ordinance, which regelates construction in riparian and wetlands on the reservation. It also acts in conjunc- tion with the Army Corps of Engineers dredge and fill permitting program. ^ain, that board representatives containing both non-members and members, actually implement the tribes regulatory authority. We also have a Flamead Lake fisheries comanagement plan, be- cause our ownership extends only to the middle of the lake, we co- manage Flathead Lake fisheries pursuant to an agreement between the tribes and the Montana Department of Fish, Wildlife and Parks. We've also, as a result of litigation, reached agreement with the State of Montana as to regulation of non-member hunting and fish- ing on the reservation. All reservation residents who are non-mem- bers have to buy a tribal permit to hunt and fish tribal resources. 55 But tribal, State and Federal officers all enforce the regulations, citing violators into courts of appropriate jurisdiction. We also operate the reservation utility, an electrical utility. We serve over 16,000 meters, which represents most of the businesses and homes on the reservation. When we took over operation of the utility, pursuant to a self-determination contract, we instituted an independent utility board to manage the utility, and we instituted a consumer council to represent consumer interests. Both entities contain non-member representatives and tribal representatives. And it was a first that a consumer council be given equal power to the utility board in recommending rate changes. Actually, the Federal Government conducts the rate changing or rate change process. But it's pursuant to recommendations made by both of these entities and the tribal council. We also have a tribal administrative procedures ordinance which sets forth a process by which administrative decisions can be chal- lenged by any affected party. The law judge hearing most of these cases is a non-member attorney. Several years ago, our tribes with- drew from concurrent criminal misdemeanor jurisdiction with the State of Montana over tribal members committing offenses on the reservation. This decision came about because we had an extremely high percentage of tribal members incarcerated in the State prison. Actually, we represent about 1 percent of the State population, but our tribal member inmate population is 60 percent of the Indian inmate total — which is about 40 percent of the inmate total. The cooperative agreement reached between the tribes. States and local governments implementing the retrocession provides for cross-citation authority, stop and detain provisions, and emergency powers. Anticipating the increased work load connected with this retrocession, we took steps v/ith tribal fimds before retrocession took place to improve and expand our tribal court system. We have an independent prosecutor's office, a separate defender's office, an expanded legal services program, and adult-juvenile probation serv- ices. Most of the attorneys working in each of these different offices are all non-member attorneys. We also provide civil representation to individuals meeting our representation guidelines. And we provide criminal representation in all matters where people face a criminal charge in our tribal court system. We've also instituted and expanded our appellate court. We have a full panel consisting of three attorney justices and two lay jus- tices. The three attorney justices, including the chief justice, have been non-members and the two lay justices tribal members. Addi- tionally, each side in an appeal has a right to recuse one justice without stating cause. We feel this is a method to provide addi- tional fair and impartial decision making. We also have an instituted regulation development process. Whenever regulations asserting jurisdiction over non-tribal mem- bers and members are adopted, we adopt a fully inclusive public comment process. We include notice and hearing. And the kind of regulations that we promulgate are water quality standards, hunt- ing and fishing and recreation regulations, migratory water fowl regulations, shoreline protection regulations, aquatic lands con- servation ordinance regulations, and many more. 56 Over the years we've also developed many environmental initia- tives, including establishment of a 90,000 acre wilderness, mini- mum in-stream flow protections, establishment of water quahty standards for the reservation, closures for grizzly bear, bull trout, nesting water fowl, elk, bighorn sheep, and other species that have been reintroduced. We've accomplished redesignation of air quality to class 1 status. All of these kinds of initiatives protected and improved the qual- ity of life for all reservation residents. Consequently, the property values for non-members on our reservation have substantially in- creased. In fiact, they've appreciated at about the rate of 15 percent the last 4 or 5 years. We also have a governmental immunity ordinance. Section 2 of the ordinance contains limited waivers of immunity for injunctive, declaratory or mandamus rehef. And it allows waivers for such things as infringement of any civil or constitutional right of an in- dividual arising under the tribal constitution or the Indian Civil Rights Act; for specific waiver of immunity by resolution or ordi- nance, and judicial review of the governmental implementation of those ordinances; for intervention as a party in a lawsuit, except for counterclaims; for agreements with the United States which re- quire us to purchase liability insurance, and then we consent to waiver of liability up to the policy limit; when we enter into agree- ments expressly waiving sovereign immunity and when an agent or officer of the tribe, acting within the scope of authority of his posi- tion, causes serious personal injury or death through negligently breaching a duty of care owed to another individual. Finally, section 2 of the ordinance contains a provision that ad- dresses situations where we've chartered tribally owned businesses. Those businesses operate pursuant to direction given by an inde- pendent board of directors which include non-members, and all ar- ticles of incorporation include sue and be sued provisions. While there are many more stories we could share, we believe that the examples given here indicate that an inclusive, rather than exclusive, approach to tribal civil jurisdiction works. Addition- ally, our experience has shown that tribal civil jurisdiction is not something that needs to be fixed. More to the point, the solution proposed by section 329 would virtually eliminate all these creative and inclusive methods. This would occur, because there would be no incentive for non-tribal members to work within our administra- tive and judicial processes. A waiver of any government's sovereign immunity, whether it's tribal. State or Federal government, would result in judicial chaos by authorizing any one person or entity to file frivolous lawsuits that could virtually bring justice to a standstill. Although it's possible to find anecdotal stories that justify ex- treme remedial responses, as you've been asked to do today, we be- lieve that cooperative examples cited in our testimony prove that tribal and Federal laws as they presently exist already provide suf- ficient authority to protect interests of all concerned parties. We appreciate the efforts of this committee to examine allegations and to hear from tribal witnesses, and we look forward to working with you on this and future matters. 57 Thanks very much for the opportunity to present these comments today. And we will be submitting more detailed testimony for the record. [Prepared statement of Ms. Swaney appears in appendix,] Senator INOUYE. All right, thank you very much, Ms. Swaney. May I now call upon Chairman Cagey. STATEMENT OF HENRY CAGEY, CHAIRMAN, LUMMI NATION Mr. Cagey. Yes; thank you, Mr. Chairman. My name is Henry Cagey, Chairman of the Lummi Nation. And I'm here today to express some concerns that the committee has about I guess due process for Indians and non-Indians on the Lummi Reservation. The hearing today is really, it's not simply a question on due process. But really it's a whether or not the tribe is really com- petent enough to do the things a government needs to do in work- ing for its people. And some of our people have really traced these arguments back to some of the Pope's legal arguments back to the 1500's. And the non-Indian acquisition of the Indians lacking self- governance capacity is over 460 years old. The whole problem is Based on the Grovemment's reliance on the doctrines of conquest and discovery, which are legal fictions created for the benefit of non-Indians. Speaking in a more contemporary vein, the tribe has four points that we'd like to make to the committee. First, our rights began not with treaties, but with the historic fact that the Lummi people have never been conquered, nor have they relinquished their inher- ent sovereignty. Second, the treaties are bilateral agreements be- tween the Indian nations and the United States, and cannot unilat- erally be altered. Third, the govemment-to-govemment relation- ship between the Indian tribes and the United States is embedded in the U.S. Constitution. Permit me to refer to Concurrent Resolution No. 76, in which it states: The Congress — hereby reafiinns the constitutionally recognized govemment-to- govemment relationship with Indian tribes which historically nave been the comer- stone of the Nation's ofiicial Indian policy. Last, I'd like to quote from the Treaty of Point Elliott that the reservations were set apart for the exclusive use of Indians, nor shall any white man be permitted to reside upon the same without permission of the said tribes and the Superintendent or his agents. Reflecting on some of the things that we're doing at home, as you heard a previous witness. Sue Williams stated that the tribe is doing different things with due process for Indians and non-Indians on the reservation. We have a water and sewer board in place that is elected by the resident of the reservation, Indian and non-Indian, which has three members from the tribe and two members from the reservation. For the last 14 years now we've had only two appeals, one of which was Marlene Dawson herself, a non-Indian resiaent and also a county council member. And she did stipulate that the hearings were fair and in accordance with due process. Other areas that we're working with in due process is that the tribe does have a permitting process in natural resources, which in- clude licensing, a hearing in tribal courts for citations, availability 58 of tribal courts for de novo trial. In the area of zoning on the res- ervation, we have in place comprehensive procedures that include a permitting process for open public hearings, and a process for re- view and appeals based on written record. In contrast, we've had a few problems working with the system on the reservation. For example, we've had a non-Indian resident who basically had some land cleared on the reservation which we did note that there was eagle nests in the area. We noted that there was a fish bearing stream also in that area. We also noted that there was an archaeological site. To date there has been no, nothing done about this issue. There has been nothing done be- tween the Federal Government or the State government to address these concerns that we pointed out before this land was cleared. Also, we recognize, Mr. Chairman, that really no system is per- fect. We have been making great strides since self-government to improve our codes and ordinances for the nation and for the people. And it does tstke time. And we're doing the best we can to keep up with some of the things that need to be fixed on the reservation. We have a lot of problems. We have a lot of problems in the fact that we have things happening around us today. We have wells being put on the reservation right now in consideration that we're also in negotiations for the Federal negotiating team. And it's been ignored by certain citizens, non-Indian citizens, on the reservation today. We have also witnessed in an area of due process Congressional legislation that directly adversely affects our abilities to exercise treaties on the reservation. And we also look forward to the day, I'm sorry to see Mr. Gordon leave, but we're also looking forward to the day that we can be cooperative and begin to look at how we can better work together on some of these things that we're hear- ing and seeing the effects of Indians and non-Indi£ins on the res- ervation. And it is going to take some time, Mr. Chairman. But we think about the negative energy that is being spent, we could spend bet- ter positive energy working together. I guess Fd like to close our remarks with a quote from the min- utes of the treaty. This is firom Isaac Stevens, the Governor of Washington Territory, as recorded in the minutes of the signing of the Treaty of Point ElHott in 1855: There will be witnesses. These witnesses will be tides. You Indians know that the tide goes out and comes in, that it never fails to go in our out; you people know that streams that flow from the mountains never cease flowing. You people know the sun rises and sets and never fails to do so. Those are my witnesses, and you Indians, your witnesses, and these promises will be carried out, and your promises to me and the promises the Great Father made to you will be carried out as long as these three witnesses continue. Mr. Chairman, tribal members, I think we've got a lot of work to do ahead of us. I'd hate to see this committee take such drastic action because of a few people. And we should not be judging prob- lems based on patterns, as I heard Senator Gorton talk about. There's a lot of problems out there, not just with our system, but with the whole system. And I, as a tribal leader, elected official for the Lummi Nation, look forward to seeing the day that we can do this. And I think there's a lot of things that we can begin to talk about. 59 One other point, Mr, Chairman, is that I'd like to reserve some time here to respond to Marlene Dawson's comments about some of the things that she was making. You mentioned that you wanted to hear about it. I would also like to extend some of those concerns that Mr. Gorton has on her testimony as well. And thank you, Mr. Chairman. [Prepared statement of Mr. Cagey appears in appendix.] Senator INOUYE. Thank you very much, Chairman Cagey. Now may I call upon Governor AnoatiJbby of the Chickasaw Na- tion. STATEMENT OF BILL ANOATUBBY, GOVERNOR, CHICKASAW NATION Mr. Anoatubby. Good afternoon, Mr. Chairman. I'm Bill Anoatubby, Grovemor of the Chickasaw Nation from Oklahoma. I'm very thankful for the opportunity to be here today. And I thank this Congress and you. Senator, for your effort in al- lowing us to have input. I sat veiy quietly here today listening to much of the testimony. When you hear both sides of an issue, it tends to shed considerable light. However, I think that when instances are verbalized, such as those of the previous panel, we must examine both sides of those questions and those issues as well. I don't think that sovereign im- munity is entirely the problem having to do with these matters. I come from a tribe that believes itself to be very progressive, and has shown it in its actions. We do not condone mistreatment of anyone by anyone. It's just not in our code of ethics. We believe that we must be responsible in our approach to tribal government. In the case of those who may have been damaged in some way, we do our best to provide an avenue for them to be made whole. An example would be one that was given by a previous person who testified, having to do with insurance for Uability claims. We carry insurance, we carry that because we believe that the individ- uals who may be harmed in some way deserve to be made whole. And we do not allow, in fact we bar, sovereign immunity as a de- fense by the insurance carrier. In our business agreements with others, we allow that that particular agreement be enforced by ei- ther party, whether it be the tribe or the other party to the agree- ment. In our case, it would require us to waive sovereign immunity at least in the enforcement of that agreement. We heard this morning the testimony, I believe it was Senator Pressler, and the dilemma about who is in charge, who has juris- diction. And that's not a new question. That question's been there for generations. In fact, it dates back to the time of expansion of this great United States from eastern to western United States. Of- tentimes, the American Indian has seemed to be in the way. In fact, we were in the way. And oftentimes, the argument that was given is that we weren't taking care, we were not showing our re- sponsibility. And even today, we hear some of those same argu- ments. And such is not always the case. We know that we have competing interests. And I believe that these things can be worked out without a blanket wmver of sovereign immunity. Oftentimes the argument is a level playing field. And for tribes, a level playing field can only be maintained if we maintain our im- 60 munity from suit and we maintain our sovereignty. Without it, the tribe itself then will be controlled. With it, we can deal with others. Because then we are on a level playing field. With it, we can find common ground and can reach agreements. Without it, history has proven that we are subject to one-sided, and often discompassionate rule. The answer to our questions today I think rest in our delibera- tion with one with the other, one sovereign with another, and working to reach agreements, agreements that will not only benefit the tribes, but will benefit those around us. And when it comes to the waiver of sovereign immunity, it should be up to the tribe to determine when and how sovereign immunity will be waived. The Chickasaw Nation strongly opposes the language in Section 329. We truly believe that there is another way, and we need to look for those ways, not trash all the work that's been accom- plished by tribes to this point and the progress that's been achieved in developing our tribal governments, but to continue the process and sit down across the table and do our best to work together co- operatively. Thank you. [Prepared statement of Mr. Anoatubby appears in appendix.] Senator INOUYE. I thank you very much, Governor Anoatubby. May I now call upon the Chairman of the Standing Rock Sioux Tribe, Chairman Taken Alive. STATEMENT OF JESSE TAKEN ALIVE, CHAIRMAN, STANDING ROCK SIOUX TRIBE Mr. Taken Alive. [Remarks given in native tongue.] My firiend Senator Inouye, I thank you for this opportunity you have given to us to talk about the tribe's waiver of sovereign immu- nity. I first want to say, as I did in our language, that these laws are your laws. When I go back home to Standing Rock amongst the Lakota people, the descendants of Sitting Bull and Gaul and Rain In The Face, I can't find any of these laws. These are your laws. So most graciously, humbly, I thank you for this opportunity to re- spond to these. Senator Inouye, members of the committee, for the record, the in- terpretations of these laws is what we're talking about. The reason we are here today is simple. The reason we are here today is be- cause we represent nations. Just because we have situations that plague us socially and economically does not make us less than na- tions. As we look at these situations, we are finding the resolve to these situations in only a short period of time. The resolve that we find is within our own cultures. The resolve that we find are within our own languages. The resolve that we find are in the ways that the Creator has given to us. So respectfully, again, I appreciate this opportunity to offer to you and this committee and this Congress and this Government our interpretation of these laws, because truly we are nations, and we are rebuilding. We are living in a prophecy today that our fore- fathers gave to us when we were put on those concentration camps, that what's going to return is now here. As I stated, this is a clear and simple example that yes, there are jurisdictional issues. Ours come from the fact that we have 61 treaties in your interpretation. But in our interpretation, ours come before treaties. Ours come before nationhood of the United States. That is what is still alive and well out there. Having said that, this is an issue of respect, respecting those laws, respecting those issues. As you have given us this oppor- tunity to offer our comments, our recommendations, our responses to what's being said about our little nations, because we've abided by those land lease documents, and have maintained in those little boxes called reservations. We've abided by those. We haven't abro- gated. We haven't broken any laws. It's imperative that we offer these responses. First of all, to the gentleman from South Dakota, I would not talk about juveniles piiolicly. As a matter of fact, the juveniles, one of the mothers I talked to recently involved in this matter that he cited, I will take this testimony and share it with her. Share it with her, because she knows well the truth that there was prosecu- tion. There was things done for these, two of these juveniles in our court system. I say that reluctantly, but I know I must respond. The taxes he mentions are taxes about lands on trust lands. And they've already been heard in court. Trust lands which he's been able to lease 1,250 acres of tribal land from the Standing Rock Sioux Tribe. We talk about economic development, I appreciate his assess- ment. But economic development goes beyond his assessment. Eco- nomic development is something, again, that we know we have re- solve to. But I must respond to those. Yes, we do have and are working cooperatively and do have cooperative agreements with fel- low States, in particular with North Dakota. We would like to do likewise with South Dakota. We have an accord with the State of North Dakota, signed by myself and the Honorable Governor Schafer of the State of North Dakota. As a result of that accord, many, many meetings have followed. Many, many other attempts to work jointly and together are being talked about. For example, we are working jointly with our hi^way department. Most re- cently, there's discussions now to turn over the highway mainte- nance to the Standing Rock Sioux Tribe. I can go on and on and on. Likewise, within our judicial system, there's a Northern Plains Court body that meets periodically. This body is made up of tribal. State and Federal court judges to talk about the jurisdictional mat- ters and look to resolve. And some of the resolve has already been reached. So as we take a look at all of these issues that are in front of us, again, it's important for me to state that I appreciate this op- portunity to be in front of you, Senator Inouye, who represents the United States. I want to say that the tribes that were mentioned here should also be given an opportunity to respond here in person. Because that's the Indian way, to give each other that respect. And I hope in the future that that can happen. I concur with the good Senator from Washington, Senator Gor- ton, when he looks for neutral decisions, our interpretation of that, yes, let's find an international court system to hear issues between indigenous nations of North America and the United States of America. I agree with Senator Pressler when he references Indian 62 country, particularly the Lakotas, because we live there yet. That's where our origins developed from, I agree with all of the comments that were made, because we in- terpret them in a way that we do, and we can interpret them in another way. I invite Mr. Long from the State of South Dakota to set up a meeting with our judiciary committee chairperson. I invite anybody who has comments, recommendations, qualms with the Standing Rock Sioux Tribe to come to any of our committee meet- ings, any of our council meetings, to my office. We've never closed a door on anybody. The matters are at home, the resolve to them are also at home. I invite them to come, respectfully, to our committees and our council. Finally, the comment that was made by the previous panel mem- bers that it's imperative that we finish a job that was started, what job was started? Hopefully it's not the annihilation and eradication of indigenous peoples of North America. Because we're having a heck of a time, as you well know, and appreciate your efforts in that, Senator, with the NAPRA laws, trying to get the bones of our ancestors off" shelves. We hope that's not the job that was ref- erenced. I appreciate the comments that were made, when it was said that we must be allowed to have consent to things. We humble ourselves to other peoples, to other cultures, to other men, other governments, in hopes that this is not mistaken for in- competence or fear. It's done out of respect. We are here for two reasons yet as American Indians. First of all, the compassion and love of the Creator and our belief in that, that he loves all men, regardless of what history shows. The second rea- son we are here is because of treaties. In my opening comments, when I said [remarks given in native tongue], that means ordinary, common men with a simple view of life. And that's what we are un- derstanding these treaties with. So in the upcoming meeting this weekend, as we meet with the State Department of the United States in Fort Laramie, Wyoming on Saturday, we intend to build upon that govemment-to-govern- ment relationship. We intend to offer our interpretations of those treaties. Last, it was offered to me one time, when we were having de- bates between the State government and our tribal government, the State government official asked me to lay an olive branch out there to the State legislators. My only response to him was that sir, that's all we have left. You have all the olive trees, you have all the olive groves, and all we have left is that olive branch. And I can't lay that out there. [Remarks given in native tongue.] Thank you very much. Senator Inouye. [Prepared statement of Mr. Taken Alive appears in appendix.] Senator Inouye. I thank you very much. Chief Taken Alive. May I now call upon the Attorney General of the Navajo Nation, Herb Yazzie. 63 STATEMENT OF HERB YAZZIE, ATTORNEY GENERAL OF THE NAVAJO NATION Mr. Yaztje. Thank you, Mr. Chairman, members of the commit- tee. On behalf of President Albert Hale and the Navajo Nation, I would like to thank you for giving the Navajo Nation this oppor- tunity to present testimony today. My name is Herb Yazzie, and I'm the Attorney General of the Navajo Nation. Today I speak on behalf of 250,000 members of the Navajo Nation and on behalf of the several thousand non-member citizens of the Navajo Nation. This amendment would subject Indian nations and Indian gov- ernment officials to State and Federal jurisdiction for claims relat- ing to actions or proposed actions of such governments, or govern- ment officials impacting or threatening to impact the ownership or use of private property. The Navajo Nation, quite frankly, is ap- palled by the language of section 329. The language would grossly, grossly impinge upon the sovereign status of the Navajo Nation, and would violate the inherent rights of self-government of the Navajo people, rights which are granted to the Navajo people in the 9th and 10th Amendments to the U.S. Constitution, and in the treaties that we have between us and the United States. Quite sim- ply, section 329 would make a mockery of the Navajo Nation's so- phisticated, professional court system by subjecting the Navajo Nation to suits in traditionally hostile State forums, by Navajo Na- tion members and non-members. Proven remedies currently exist in Navajo law and Navajo legal institutions to protect all persons, whether Navajo or not, from the risk of harm intended to be addressed by section 329. The written testimony that we have submitted goes into detail citing those laws and institutions. The legitimacy of the Navajo Nation government is beyond question. Nevertheless, the obvious underlying premise of section 329 is that all Indian nations are incapable of providing justice to non-members within the framework of their governments. This view is misinformed and is without factual foundation. Speaking just for the Navajo Nation at the moment, you have heard from witnesses today citing Navajo Nation examples, such as our government allowing non-member participation in our system, such as participation on the Tax Commission, implementing the most basic function of any government. And also other examples, such as participation on the Navajo Labor Commission, which reg- ulates labor problems within the Nation. I would also say that our system allows — there has been so much talk about laws and lawyers today — the Navajo Nation has a sys- tem to allow people who wish to practice before the justice system of the Navajo Nation, if they would take the exam. I would say to those lawyers, as was mentioned earlier by another witness, that it behooves them to take that exam, because then it teaches them what laws provide the foundation for the government. Just as I would, if I were to venture to practice in Federal court or any State court, I would have to comply with those rules. There's a lot to be said to the point that was made that when one practices before an- other government, one ought to know those laws, the foundation and the policies of those governments. And then as a bar member 64 of that government, they have an obligation to not only educate but also to participate in the development and the improvement of the system, rather than attack the system. The Navajo Nation has a civil and criminal court system which operates effectively at the tribal and appellate levels as a separate branch of the Navajo Nation government. The courts of the Navajo Nation have been in continuous operation since the early years of the 20th century. And a system of just dispute resolution has ex- isted under the Navajo common law far longer. The concept of justice runs deep within the culture of the Navajo people. In the Navajo way, individual rights and responsibilities, as well as the rights and responsibilities of the larger community, are considered in every dispute resolution. It is deeply offensive to the Navajo people to suggest that its government engages in conduct that deliberately and consistently violates the rights of persons within its jurisdiction. Nearly 30 years ago, the Navajo Nation Council enacted the Nav- ajo Nation Bill of Rights in order to ensure that individual liberties 01 all persons are secured within the nation. The nation guaranteed fundamental liberties against violation by the Navajo Nation gov- ernment even before the United States Congress enacted the In- dian Civil Rights Act of 1868 the following year. The Navajo Nation Bill of Rights is more expansive and protective of individual rights than either the Indian Civil Rights Act or the Bill of Rights within the U.S. Constitution. Most importantly, in the context of section 329, the Navajo Nation Bill of Rights protects private property. The Navajo Nation Bill of Rights expressly mandates that private prop- erty shall not be taken, nor its lawful private use be impaired for public or governmental purposes or use without just compensation. These words were interpreted more than 20 years ago by our su- preme court. These enumerated rights, as well as other unenumerated rights retained by the people, apply to all persons, irrespective of race, nation affiliation, gender or religion. As an ex- ampk, non-member citizens of the Navajo Nation sit on civil juries in Navajo Nation courts, along with Navajo Nation members. Thus, in the Navajo Nation, all persons have every one of the rights enu- merated in the United States Constitution and more. In the Navajo Nation, there is no need for section 329. On the contrary, section 329 would only destroy an effective Navajo Nation judicial systems already attuned to the individual rights of all persons, Navajo and non-Navajo alike. Indian nation courts have been thoroughly studied and have been found to provide effective protection oi individual civil rights. It is significant that the Honorable Sandra Day O'Connor of the U.S. Supreme Court most recently in 1966, in a speech before the annual sovereignty symposium sponsored by the Oklahoma su- preme court and tne Indian courts of Oklahoma, praised the third judicial sovereigp for effectively guaranteeing the rights of all. Jus- tice O'Connor singled out Navajo peace making as an effective al- ternative to litigation. Legislation like 329 is completely unnecessary for another rea- son. There are already adequate remedies in Federal court for al- leged interference with private property rights by Indian nation governments. Under controlling U.S. Supreme Court precedent, ac- 65 tions of an Indian government which are alleged to be in excess of its authority as defined by applicable Federal statutory and com- mon law are redressable in Federal courts. Thus, where an Indian nation government acts in excess of its authority, particularly where alleged interference with private property rights or other individual rights of a non-member are con- cerned, there already is a remedy in Federal court. The nation urges this committee to consider other ramifications of 329. The language of the section would expose virtually all In- difin nation property interests to suit in foreign jurisdictions, in- cluding disputes between Indian nation members and their own In- dian nation governments over private property rights. The section does not limit itself to non-members of Indian nations, but reaches out to encompass any person with a private property interest which might be impacted by the actions of an Indian nation government. This will have a chilling effect on the ability of all Indian nation governments to provide effective government within Indian nation territories, particularly the ability of Indian nation governments to effectively regulate for the health and safety of both Indian nation member and non-member citizens alike. Fundamentally, that Congress might even consider imposing such legislation upon Indian nations reflects a lack of appreciation of the conceptual basis of Indian peoples' right to self-government. Governments only have such powers as the people delegate to them. The 10th amendment teaches us that the power is not dele- gated to the United States by the Constitution, nor prohibited by it to the States or reserved to the States respectively or to the peo- ple. Indian people generally have never delegated any of their inher- ent political rights to the States. Rather, Indian people have ex- pressed their constitutionally protected retained rights through del- egations to their respective Indian nation governments. Much of the conflict between Indian nations and non-Indian property owners is a direct result of the checkerboard land owner- ship patterns which exist within many Indian nations. These land ownership patterns are a direct result of actions by the United States during the allotment era, where the United States carved up and distributed Indian nation Igmds to Indian families and sold surplus lands to non-Indian settlers and speculators. The United States imposed this policy in a deliberate attempt to destroy traditional Indian governments and institutions, and to force Indian people to abandon their culture and to assimilate into mainstream America. After two generations, the United States Congress found this policy to be a complete failure and abandoned it in 1934 in favor of reorganizing and promoting Indian self-gov- ernment. However, the damage had already been done. Non-Indian people came to own land within the boundaries of many Indian nations. And cultural and legal conflicts have arisen as Indian nation gov- ernments increasingly seek to fulfill their responsibilities as gov- ernments. Nevertheless, it would be both unfair and unwise to pe- nalize Indi£in nations and Indian people further for the con- sequences of this failed Federal policy. 66 To the witnesses, and for the committee's information, to the wit- nesses that cited incidents involving the Navajo Nation government and the treatment of individuals, I would respond by saying that in addition to the comments I made earlier about learning what the law is and participating in that government system that you are practicing in, I would also say that they must realize that Navajo Nation, like other Indian governments, have a different system, have a different culture as to land. Their regard for land is dif- ferent, basically different. In our nation, land is held in common ownership. And the laws and statutes that you will see and are cited regulate the use of the land, not title to the land. Only the Creator can say who has title. So the people who cited those cases, if they would learn and edu- cate themselves about Navajo law, I believe fruitful discussion can be held. Now, it is the Navajo Nation position that section 329 really re- veals the intent of the drafters, which is to destroy the judicial and political integrity of all Indian nations, in complete disregard of the covenant of trust and good faith, which binds the United States and those Indian nations. The Navajo Nation can say with cer- tainty that it is not the only Indian nation to afford all persons within its jurisdiction such basic protections as I have described. American Indian people taught the European immigrants to North America about democracy over 200 years ago. iGid those teachings found their way into the U.S. Constitution and the con- stitution of the States. To suggest now that Indian nations know or practice less justice, less protection of individual liberty or less democracy than do the States is based upon ignorance. It's prob- ably rooted in racism, and is therefore immoral and contrary to the American ideals of government. Accordingly, the Navajo Nation urges this committee to reject the concept of section 329. As we all engage in this great endeavor of building a more perfect Union, the Federalism,, which includes In- dian nations, must be protected from such concepts as that ex- pressed in 329. Mr. Chairman, I thank you for this opportunity to present these comments. [Prepared statement of Mr. Yazzie appears in appendix.] Senator Inouye. Thank you very much, General Yazzie. And may I now call upon Vice Chairman Hatch. STATEMENT OF DONALD C. HATCH, Jr., VICE CHAHIMAN, TULALJP TRIBES OF WASHINGTON Mr. Hatch. Good afternoon, Mr. Chairman and members of the committee. My Indian name is Spat-ub-kud. My EngHsh name is Donald Hatch, Vice Chairman of the Tulalip Tribes of Washington. I'd like to thank my Indian people that are here, who are behind me and on the panel, and what's happening here today. There's a lot of hurt in my heart to come here today. There's a lot of hurt for my people, my elders, my yoimg children and my children's children and their children, and what might happen ailer this is over. We don't look at a lot of things in the long nm at what could happen. 67 But I'd like to thank the committee for this opportunity to send tes- timony in an oversight hearing on this tribal sovereignty immunity. I have a prepared statement which I'd like to submit for the record and summarize. First, Mr. Chairman, I'd like to raise here the strong opposition of the Tulalip Tribes to language such as pro- posed in section 329 of H.R. 3662, as reported by the Senate Sub- committee on Interior Appropriations. Such language would un- justly penalize In(^an tribes who are asserting their legal rights in disputes with non-Indian reservation residents and neighbors. And I'd like to paint another picture, a little different picture than the word that was stated in an earlier panel of gangs, Indians are like gangs in my tribe, my Tulalip Tribe and all the other tribes and nations. Under our treaties and other legal precedents the Tulalip Tribes have a government-to-govemment relationship with the United States. These treaties and precedents also created legal protected governmental resource rights into the tribes. We do not onlv have Constitutionally protected rights, but we also have adopted a process inclusive of non-Indians to manage our lands with good government. The Tulalip Tribe has established a track record with the Fed- eral, State and local government, as well as a positive record with our community, tribal and non-Indian. In my written testimony I detail several examples of how the Tulalip Tribes have entered into a friendly relationship with cooperative, accepting local govern- ments and entities. On the Federal and State level, I would like to cite two specific examples. First, on Interstate 5, we were successful in adding an interchange at 88th Street, where the Tribe assumed the lead role in the NEPA process. Second, under the Clean Air authorities, the Tribe has worked with the State of Washington and EPA to estab- lish a tribal regulatory management. Mr. Chairman, one of the things that was stated earlier was that the Tribe made x amount of dollars in our casino. I wish they could find that for me so I could carry it home in a suitcase to bring it back to my people. We have 1,300 employees of our tribe and 51 percent of them are non-tribal members. So we're feeding a lot of non-tribal, non-Indians, 51 percent. Also, Mr. Chairman, the tribe has established a good working re- lationship with Snohomish County. For example, the tribe and Sno- homish Coimty entered into a comprehensive plan relating to res- ervation development. Under the plan, there was a clear division of permitting responsibilities, with the county regulating non-In- dian property and the tribe regulating Indian property on the res- ervation. Tulalip has in this process a planning commission com- posed of Indian and non-Indian residents. Also, to further enhance the law enforced coverage within the boundaries of the reservation, the tribes, Snohomish County Sher- iffs office, has entered into agreement with the result of the estab- lishment of a sheriffs substation on the reservation. The Sheriffs department is on our reservation, cooperative with our tribe. Finally, Mr. Chairman, I want to show that the tribe has been able to work well with the local government within our boundaries. The Tulalip Boys and Girls Club is a prime example of the Tulalip Tribe's Marysville School District, the Boys Club of America, the 68 Department of Housing and Urban Development, the Indian and non-Indian individuals coming together to fulfill a dream which has been a positive influence on everyone in our community. That is going to be the first Boys and Girls Club in the State of Washing- ton on Indian land, on a reservation, only the eighth in the United States, eighth, first in the State of Washington. And it's a coopera- tive between the Boys and Girls Club, all Snohomish County, and the Tulalip Tribes. Mr. Chairman, I think the remarks and my written statement made it very clear that there are leaders of good will, mutual re- spect on both sides of these Indian and non-Indian disputes. They can be resolved without the need for ill consideration. Unjust con- stitutional actions, such as section 329, in many respects, the lead- ers and citizens of Snohomish County and cities of Marysville and Everett have accepted the governmental status of the Tulalip Tribes and have shown a great respect for our rights and our insti- tution. And as a consequence, we have done the same and have been able to resolve many of our differences cooperatively. This concludes my statement, and I would be happy to respond to any questions the committee may have. And one thing, Mr. Chairman, I think it's just things that I feel and it really hurts me to come here for my people, it hurts me in the heart. Sometimes we look at, what can I do. Ajid I come back here many times to fight a war that I think I could be home taking care of my people. But we as Indian people are back here, on that plane flying back here and trying to fight these wars day in and day out. -^d we talk about where the money's spent. That's where the money is spent. We need a cooperative agreement govemment- to-govemment to make things happen successfully for all our peo- ple, Indian and non-Indian. Thank you. [Prepared statement of Mr. Hatch appears in appendix.] Senator Inouye. I thank you very much. Vice Chairman Hatch. And now may I call upon the distinguished President of the Na- tional Congress of American Indians, Ron Allen. STATEMENT OF W. RON ALLEN, PRESIDENT, NATIONAL CONGRESS OF AMERICAN INDIANS Mr. Allen. Thank you, Mr. Chairman. It's an honor, as always, to be able to be here before you to tes- tify with regard to the matters before this committee and the Con- gress. I really do want to extend my appreciation to vou as a cham- pion and leader addressing Indian issues all over the map, eveiy- thing from our Indian Child Welfare issues to housing, to health, etc., and now the gravest and one of the heaviest concerns to In- dian country; tribal sovereignty. It is a pillar and foundation of our existence that you have been very clear about in terms of support- ing us. And we do appreciate it. I know the day is long and I know that you have sat through a great deal of testimony trying to capture the essence of this issue from all perspectives. I know that we at NCAI and I know that In- dian country does appreciate that you want to make sure that the focus on this issue is clear, and it is well balanced, and it is in 69 proper perspective not only with the current conditions, but also historical conditions. I think Chairman Jesse Taken Alive has captured a great deal of the spirit that has gone into this relationship historically. I don't think that a sjmopsis could be better captured on the legal and po- litical history of the Federal tribal relations than was done by the attorneys Sue Williams and Doug Endreson. In my opinion, it was outstanding. I was very encouraged to hear the administration officials say that they were going to im equivocally support and stand behind the tribes' sovereignty. When issues are brought before this Congress regarding sov- ereign immunity or even just small components of sovereign immu- nity, and try to look at it from the perspective that all we're doing is refining the notion of how comprehensive should it be, we can look at it maybe as a great oak. And the foundation of that great oak is our sovereignty. Well, if you keep chipping away at the foundation of that great oak, no matter how big it is, no matter how far it reaches out, no matter how old it is, it will fall. And that's the essence of our sov- ereignty. And we are very concerned about that. We come here with heavy hearts, as you can hear in the testi- mony of the people on this panel, the testimony of lawyers who un- derstand our issues, like Sue Williams and Doug Endreson. And the issues are conveyed to you by the many leaders and the many leaders who aren't even here. We're going to be conveying to you that our heart is heavy because the Congress has taken up a mat- ter that we think is of great concern to us. Should we even be tak- ing this issue up? But we're here with also our warrior hearts. We're here because we're going to fight. We're here because we're standing side by side, 557 nations across this Nation. This Nation is great because of us, because of the conciliatory disposition of our people, from the Iro- quois Confederacy to the California tribes. And I think that what you've been witnessing today is the fact that, for 500 years, we have moved over, we have adjusted. Every time you turn around in the course of our history, we've made adjustments. The fact that we have checkerboard reservations is not the fault of the Indian people. It is the fault of the Federal policies, the gyrations of the Federal policies in their attempt to take over Indian land, Indian resources, to dominate the Indian people, fi-om the very beginning. So we experience that today, again, in a new form. Arid the issue here is, as you have seen in witnesses here today, is that we are showing that our political systems do work. It does coexist very well with this system. And we've got a long way to go. We admit that. We don't have any problems admitting that we have a long way to go to refine our governmental system. But the fact is, the Federal Government has an obligation to as- sist us in refining our judicial systems to meet the kind of stand- ards that is expected in this Nation, within our political and judi- cial systems. Due process and remedies are available. The mere fact that you can find anecdotal examples, you can find those any- where. We discovered that in Indian Child Welfare. But does that 70 mean we throw the law out? No. Does that mean we try to refine and diminish tribal sovereignty? The answer is no. There are better answers, and there are great examples out there where you're seeing it working and being refined, if we're provided the opportunity. You see, these tribes here who have shown this committee countless examples, and we haven't even begun to add on to the list. We see tribal State accords in Washington and New Mexico, and North Dakota, where tribes and States are working things out and getting onto a better track. You see tribal State Memoranda of Un- derstanding [MOUs] with the tribes and the local counties. So those kinds of arrangements and processes are being devel- oped. They are there. You see the Congress recognizing the need for improved court systems, like the American Indian Tribal Justice Act in 1994. Is Congress funding it? Is Congress providing the kind of quality that we need as court systems to elevate their capacity and capabilities to provide due process and improve those systems? No, it is not. The Federal Government has an obligation there, and it should as- sist us in that effort. So what we're sajdng here, and what I think is being conveyed, is that the tribes, reflective of the theme of the NCAI convention in Tulsa, Oklahoma, is that we're standing our ground. We're not going to back off. And there is a better way. You have said many times over that you can't legislative atti- tude. But we quite frankly will keep working with all of our coun- terparts out there. You see it in Lummi Nation, you see it with the Navajo Nation, Standing Rock and every other tribe out there. We are constantly working, no matter what the size of the tribe, or no matter what the condition, no matter what the issue. We're there. And we're doing it very, very well if we're given due credit for that. The Congress must understand that. Everybody who was affected by this must understand that. We currently only own, still, 4 percent of the land in this Nation. Is the issue that they really want more than 4 percent, or should we be moving toward providing the tribes the opportunity to reac- quire the fee patent lands within reservation boundaries to help re- solve some of those problems? So there are lots of solutions, and we have lots of solutions here for this Congress. But the abrogation or the diminishment of tribal sovereignty is clearly not one of them. We have seen many treaties, we have seen many speeches throughout our history. And they all have said that we are distinct nations and we can and will and must live in peace and harmony. And I always like to reflect back on the treaty wampum belt that was a part of the Iroquois Confederacy, when I read a little clip about what it meant, and it has these two rows of purple beads. And what do they represent? The chiefs back then said very clearly that they represent two nations, two different kinds of cultures, different sets of values, that have to co-exist. They represent our two vessels that will tra- verse these rivers side by side. And it means we will live together, but we will not try to steer each others' boat, each others' vessel. 71 That is reflective of our governments, and that's what we're trying to do here. So we are here to help, we're here to make sure that the picture is clear, it's crisp and you understand the truth. The notion that our sovereignty, our governments are an anachronism is the re- verse really of what the situation is. The anachronism is to go back to any notions of termination and assimilation. The true solution here is to strengthen the tribal governments, so we can co-exist in a very meanin^l way, to the benefit of everybody, including our people. With that, I thank you very much, Senator. And I look forward to being able to work with you, the committee and the Congress in resolving this very serious issue. [Prepared statement of Mr. Allen appears in appendix.] Senator INOUYE. Thank you very much. President Allen. I had every intention of staying here as long as I could to carry on this discussion with you, to ask you questions. But I find that I will have to submit those questions, and further, to share with the Navajo Nation, the Lummi, and the Standing Rock Tribes, the transcripts of the testimony, because certain statements were made affecting your area. And I would hope that you will find it possible to respond to them. The reason I have to leave is something that may be of concern to you. We will soon begin the debate on the continuing resolution for fiscal year 1997 appropriations. It involves, among other things, the appropriations for the Interior Department. And we have been advised that there may be attempts made to amend that portion, and such amendments may place in jeopardy, grave jeopardy, your gaming enterprises, among other things. There may be an attempt to revive section 329, one of the subjects that we have been discuss- ing here, and include it in this resolution. And so I must be there to make certain that these things do not happen. It is a big responsibility, but I am prepared to accept that. As some of you are aware, as a U.S. Senator, and as a senior member of this committee, I have taken an oath to defend and up- hold the Constitution of the United States. I have also taken a pledge to uphold and support the laws of this land, the treaties of this land and the decisions of our courts. And to me, it is very clear that these laws, provisions in the Constitution, and the decisions of our courts, clearly declare that Indian nations are sovereign, and that sovereignty is inherent. It is further clear to me from these decisions and these provi- sions in Federal law Uiat sovereign immunity can be waived, but it should be waived with the consent of the tribe involved. I realize that these are difficult times, and for that matter, studying the history of Indian nations, it does not seem that there has ever been an easy time for you in the last 500 years. But not- withstanding the good reports that you have given of cooperation with your neighbors and working together, there is a perception, as other witnesses have testified, a perception that the legal process in Indian land, the judicial process is not fair, that it is somehow biased, that those providing such process are not quite competent. Whereas the realities do snow that to the greatest extent, as the 72 Civil Rights Commission indicated, the courts are not biased, and the courts are competent. I have over the years, ever since becoming chairman of this com- mittee, tried my best to assure fininacial support for the judicial systems of Indian country. And as President Allen has indicated, though we do have a law on our books calling for such improve- ment and enhancement, we have failed miserably in providing the necessary funds. Second, I have done my best to bring about better cooperation be- tween States, the Federal Government, county governments and Indian nations. We have spent years on one measure, gaming, to bring about this cooperation. I have personally met with dozens upon dozens of Governors, spent hours and days, I think we have had over 81 meetings already. But now the Seminole decision of re- cent days has frustrated our efforts. But 1 will not give up on that. I think we should continue to fos- ter cooperation. We should continue to insist upon the Ciovemment of the United States carrying out its trust responsibility to see that the courts of Indian country are improved. I think it is a trust re- sponsibility. And so with that, I have to bid you good-bye, because I am cer- tain you want me in the Senate Chambers instead of here. The work there is a bit more important at this point. But finally, I would hope that upon receipt of the transcript of this hearing, those of you who have been mentioned in the testi- mony would respond to what has been said. Because if not, our record will not be complete. So with that, to all of you, I thank you for your attendance, as well as your patience. Goodbye. [Applause,] [Whereupon, at 2:22 p.m., the committee was recessed, to recon- vene at the call of the Chair.] \ APPENDIX Additional Material Submitted for the Record Prepared Statement of Hon. Byron L. Dorgan, U.S. Senator from North Dakota Civil Jurisdiction in Indian Country September 24, 1996 Mr. Chairman, I would like to thank you for scheduling this hearing and for inviting Jesse Taken Alive, Chairman of the Standing Rock Sioux Tribe of North and South Dakota, to testify today. Chairman Taken Alive brings an interesting perspective to the issue of civil jurisdiction and tribal sovereign immunity, as the Standing Rock Reservation is lo- cated in two states. Because of this, opening up tribal £ictions to suit in state court and eliminating tribal sovereign inamunity as a defense to the court's jurisdiction would have an especially large impact for the Standing Rock Sioux Tribe. I would Uke to say a few words about the subject of today's hearing. I have been a long-standing supporter of tribal sovereignty. The Supreme Court ruled in 1987 that tribal authority over the activities of non-Indians on reservation lands is and important part of tribal sovereignty" and, as such, "civil jurisdiction over such ac- tivities presumptively lies in the tribal courts unless affirmatively limited by a spe- cific treaty provision or Federal statute." I support this Supreme Court ruling, and believe that Congress should exercise extreme caution when considering whether to infringe on Indian tribal sovereignty or the jurisdiction of Indian tribes over legal matters. For this reason, I joined Vice Chairman Inouye, Senator Murray and others in op- posing the so-called Lummi" provision in the 1996 Omnibus Rescissions and Appro- priations Act. This provision, contained in Section 115 of the Act, penalizes any Self- Governance tribe of Washington State involved in a dispute over water ripits by cutting its Federal funding in half. This language, which was intended to address a dispute on the Lummi Indian Reservation, set a dangerous precedent by legislat- ing fiscally punitive measures against any tribe in any state which attempts to exer- cise its legitimate governmental powers. In a broad expansion of the Lummi provision, the fiscal year 1997 Interior appro- priations bill approved by the Senate Appropriations Subcommittee on Interior would have provided that tribal actions or proposed actions which might impact pri- vate property would be subject to state and Federal court jurisdiction. It also would have waived tribal sovereign immunity as a defense in state and Federal courts. Thankfully, this onerous provision was deleted from the bill during full Committee consideration. I realize that jurisdictional issues involving non-Indians who live or do business on Indian reservations is a complex matter that has serious repercussions for both sides. However, I also believe that it is fundamentally unwise to undue the basic notion of tribal sovereignty over civil legal matters without careful consideration of the long-standing legal precedents surrounding this issue. I look forward to hearing from all of the witnesses at todajr's hearing and to working with my colleagues to ensure that legal disputes can be resolved equitably without trampling on tribal sov- ereignty. (73) 74 Prepared STATENrea^ of Hon. Conrad Burns, VS. Senator from Montana I would like to thank the Chairman for this opportunity to offer testimony on the issue before the Committee today. This is a matter of great importance to states with Indian reservations. The issue of non-tribal and tribal members with regard to tribal sovereignty and immunity dealing with private property rights is one that is extremely volatile in my state of Montana today. In reality the thought is one that is 80 very simple, it deals with the basic foundation upon which our country was established more than two centuries ago. I join with Governor Racicot of Montansi, in urging Congress to address and rec- oncile the competing visions of both tribal and non-tribal residents of reservations. Fortunately, I do not agree with the Governor's prognosis that Congress will not have the will to address and simply delineate the differences and seek a common answer to the concerns of all involved. We can look back in our nation's history and see that conflicts result between states and tribes due to the undefined concept of what we call tribal sovereignty. The line between what can and should be done, is at many times as gray as gray can be, and leaves no understanding for the states to react to the needs of their citizens. This is neither the fault of the state nor the tribes. The fault lies within the halls of the buildings within which we work. At best Congress has done a com- plete job confusing and complicating the situation. We started out more than a hundred years ago, with a policy which did nothing for the future of the Native Americans in this great land. We have turned now to the point of abandoning the private property ri^ts of non-tribal members, whose families settled on tribal lands under the full protection of Federal law. I come here today to challenge the members of this Committee and Congress to address these concerns so that the future may be blessed with a sense of peace and understanding among all Americans. Mr. Chairman, in the past 2 years I personally have seen conflict arise that could have been avoided if Congress had addressed the concerns of the people. The private property ri^ts of the non-Indians are being subjugated to appease a few Members of Congress. Peace and understanding on tirbal lands across the country are in con- fusion due to the indirect manner that Congress has taken to address the concerns of both the private citizen and the governments that represent them at the local level. Although I do not always agree with what the senior Senator from Washington is seeking in the legislative process, I do tip my hat to him for coming to the table to start the debate on behalf of all the people. In Montana the problems that we see and hear from the people are not just from the non-tribal residents of the res- ervations, but also from trioal members who feel that their rights as citizens of this great country are being taken advantage of by some, not all, but some level of tribal authority. Mr. Chairman, I have always commended you for your work on behalf of the In- dian population in our country, and I have appreciated the way that you have come out to the states to get an understanding of the problems facing both the tribes and the non-tribal menabers living on reservations. However, the difference between your state's reservations, and my state of Montana are huge. The concept of the open reservation has created problems that you cannot really understand with a few trips through the area. Earlier this year I invited you to come to Montana and visit with both tribal and non-tribal members living on reservations, and I thank you for accepting that offer. Yet neither of our schedules have allowed us the opportunity to travel around Montana and listen to the people. Today, I renew that invitation, and I hope that in the coming year we can make this trip happen. The basic problem which faces us today is not what is wrong, but how far we are willing to go to address the concerns of not just a select population, but of all the people. Before we go any further with any legislation, I hope that we will all go back to our homes during the upcoming time we have away from the confines of Wash- ington and haten to the people. For it is in their wisdom and understanding, their courage and ability to face tne problems and concerns on a daily basis that we can and will find the answers to the questions that this conunittee and Congress must ultimately address. Mr. Chairman, I would also like to have included in the committee record state- ments from the Governor of Montana, a Dumber of the Montana Legislature, the Montana Stock -growers and tribal and non-tribal residents of reservations in Mon- tana. Thank you, Mr. Chairman for providing me with this opportunity to address the Committee on this very important issue to the state of Montana. 75 Prepared Statement of Sam Davis, Mayor, Parker, AZ My name is Sam Davis, and I am the Mayor of Parker, AZ, an incorporated town with approximately 2,500 residents, located just east of the Colorado River in west- em Arizona. . Thank you for the opportunity to briefly describe to you the present situation in Parker. In 1908 Congress appropriated money to enable the Secretary of the Interior "to reserve and set apart lands for townsite purposes" in the Colorado River Indian Res- ervation. The Secretary subsequently created the townsite of Parker, AZ, and ap- proximately two-thirds of the lots in town were purchased by non-Indians at pubuc auctions. Ninety percent of the population of Parker is non-Indian. Following 5 years of litigation in Federal District Court in Phoenix, AZ, last month Ju&e Strand issuea a decision which concluded that the Parker lands are still part of the Colorado River Indian Reservation. He enjoined the Town from en- forcing its building code on "tribal lots" in the townsite. Parker is appealing Judge Strand's order. In the meantime, the court's decision leaves residents of Parker subject to a com- plicated and confusing combination of state, tribal and Federal jurisdiction. There are numerous unanswered questions regarding whether and how the tribes will as- sert jurisdiction in Parker in such areas as taxation, zoning, business licensing, liq- uor sales and health and safety reflation. The most serious and urgent problems relate to law enforcement. A particular law enforcement oflicer's authority in a given situation on an Indian reservation depends upon the identities of the sus- pect(s) and victim(s). The varying degrees of authority between Federal, state, coun- ty, town and tribal officers can lead to confusion, delay and even physical harm-to both citizens and police oflicers. Last month, for example, a tribal member driving a pickup truck repeatedly rammed, at high speeds, a squad car occupied by the Town s chief of police. Because the suspect is an Indian, the police chief and other Parker police ofiicers had no au- thority as police officers to taxe any law enforcement action in response to the sus- pect's unprovoked attack. They could only stand by as the suspect threatened the chiefs life, damaged property and fled from the scene. This attack was only the lat- est in a series of recent incidents in which tribal members have assaulted Parker police officers. The existing situation is very frustrating for town police officers. Our officers were trained to enforce the law fairly and uniformly for tne benefit of the entire commu- nity, without regard to race or creed. Now they are being required to discriminate on the basis of race, refraining from enforcing the law m any situation involving an Indian. Not surprisingly, the town is finding it increasingly difficult to retain ex- isting members of its police force and to recruit additional ouicers. Federal, state, county, town, and tribal officials agree that cross-deputization of law enforcement officers would constitute an effective and efficient solution to the law enforcement problems stemming from Judge Strand's decision. The tribes, how- ever, are refusing to cross-deputize Parker police officers. The town is attempting to secure deputy special officer commissions from the Bureau of Indian Affairs for all Pariker police onicers who do not presently have such commissions. The tribes have requested Federal funding for six additional tribed officers in order to provide increased law enforcement services in town. The town of Parker opposes tnat re- ?uest but, as a compromise, it is willing to have extra BIA officers assigned to 'arker on a temporary basis to supplement, as needed, the existing resources of the law enforcement agencies with jurisdiction in Parker. Both the tribes and the town are interested in working out a comprehensive, per- manent resolution regarding law enforcement and other jurisdictional issues relat- ing to the townsite. Representatives of the two governments are engaging in discus- sions to achieve that oojective, starting with the issue of law enforcement. We an- ticipate that any final agreement wall be presented to Congress for approval. Thank you again for this opportunity to discuss the difficulties in Parker. I would be happy to address any questions you may have. Prepared Statement of W. Dewey Clower, President— NATSO, Inc. On behalf of NATSO, Inc., the professional and legislative representative of Amer- ica's $28 billion travel plaza and truckstop industry, I am pleased to present testi- mony to the Senate Inoian Affairs Committee on the issue of Native American sov- ereignty and its effect on business competition between Indian and non-Indian re- tailers. Our association has over 1,050 travel plaza and truckstop members employ- ing nearly 200,000 individuals nationwide and more than 300 allied companies that provide products and services to the industry and its customers. As fuel sales con- 76 stitute the largest portion of our truckstops' retail sales, many of our members are increasingly concerned about retail fuel lacilities located on Native American res- ervations that sell fiiel state tax free to non-Indians. Native American sovereignty provides Indians with significant tax benefits includ- ing exemption from state sales and excise taxes on items they purchase on reserva- tion land. Though Federal law intends this tax exemption for Indians only, many tribal retailers extend the tax exemption to non-Indians who also purchase goods such as motor fiiel on reservations. State excise taxes on motor fuel range from 7.5 cents to 32.5 cents per gallon. Since taxes make up audi a large portion of the retail price, selling motor fiiel state tax-fipee provides Indian retailers with an unfair com- petitive advantage over non-Indian retailers who must collect and remit the taxes. For example, just outside of Buffalo, New York, along the New York State Thruway lies the Cattaraugus Indian Reservation. An Indian fuel retailer there cur- rently sells diesel fuel for $1.15 per gallon. Meanwhile, non-Indian truckstops else- where along the thruway sell diesef fuel for $1.39 per gallon — a difference of 24 cents per gallon. The fuel is the same, the only difference is the price. The Indian tax exemption unfairly allows tnis Indian retailer to offer fuel for sale at a price much lower than his non-Indian competition. By purchasing fuel on the reservation, a non-Indian trucker saves $26.40 on an average fiU-up of 110 gallons and $72 if he fills up to his tank capacity of 300 gallons. This price difference pro- vides a strong incentive for the non-Indian trucker to fill up on the reservation. And in the retail mel industry where profit margins are measured in pennies, this price difference will force non-Indian retailers out of business. Additionally, the uncol- lected tax deprives the state of New York critical funding for infrastructure con- struction and maintenance. The Supreme Court has ruled that states have a right to impose taxes on reserva- tion sales to non-Indians. However, the Court has also held that if a tribe fails to collect state taxes from non-Indian purchasers, tribal sovereign immunity prevents a state from bringing suit against the tribe to recover the taxes. States, then have a right to taxes on sales to non-Indians but no remedy when tribes fail to collect them. While several states such as Wisconsin, Minnesota and North Carolina have nego- tiated successful working agreements with tribes that provide for the collection of taxes on sales to non-Indians, other states such as New York, New Mexico, and Oklahoma have experienced great difficulty reaching this type of agreement. Native American sovereign immunity provides little incentive for tribes to work out an agreement with states over these taxes legally due the state. Although state taxes are at stake in this debate, NATSO believes the Federal Government can and should play a role in this policy question. The Constitution vests the Federal Government with exclusive authority over relations with the tribes. NATSO strongly encourages Congress to add reservation fuel tax collection firactices to the list of other Indian issues — ^like gaming and Bureau of Indian Af- airs [BLA] reform — already under congressional scrutiny. NATSO also strongly supports the Istook/Visclosky amendment included by the House of Representatives in tiie fiscal year 1997 Interior Appropriations. This amendment provides what we believe to be a fair incentive for tribes to work out an agreement over taxes rightfully due the state. The amendment simply requires that before any new lands can be transferred into tribal trust, the tribe must have a binding agreement with state and local governments providing for the collection and payment of state and local taxes on sales to non-Indians. Again, this amend- ment deals only with taxes on non-Indians. Enactment of this legislation this year would be timely. Several tribes are actively seeking trust land along busy trucking corridors. For example, the Peoria Indians of Okl^oma are seeking to open a large truckstop in Wright City, MO, just outside of St. Louis along Interstate 70. The tribe plans to aoply to the BIA to have the land placed in Federal trust. Once placed into trust, local and state laws wiU no longer be applicable on this land. To ensure collection of state taxes on any sales this truckstop will make to non-Indians, the Istook/Visclosky amendment would re- quire the Peoria Tribe to enter into an agreement with the state of Missouri regard- ing collection of these taxes before the land is placed into trust. NATSO believes this amendment to be a reasonable means of addressing state-tribal tax problems before they have a chance to escalate. Also on the Federal level, NATSO believes that limits should be placed on Federal grants that tribes receive for economic development absent an agreement between uie tribe and state over state taxes. In 1995, the Choctaw Tribe of Oklahoma re- ceived $750,000 from the Housing and Urban Development Indian Community De- velopment Program to help build a trudcstop along a busy trucking route. Mean- while the BIA is giving the Cherokee Nation of Oluahoma $150,000 to complete a 77 travel plaza on an Interstate highway. At the time these grants were awarded, no agreement was in place between the tribes and the state. In the interest of fairness, NATSO urges Congress to prohibit using Federal grants to help tribes construct re- tail fuel outlets on reservations that fail to collect and remit state taxes on fuel sales to non-Indians. In conclusion, NATSO urges Congress to close the legsil loopholes that allow tax- free sales by Native American retauers to non-Indians. Requiring Native American fuel retailers to collect state taxes due on sales to non-Indians wiU not jeopardize their economic viability; it will simply level the playing field for all retail fuel out- lets — ^both Indian and non-Indian. Additionally, collection of state taxes will prevent states from losing revenues vital to meeting infrastructure needs. Prepared Statement of the Oneida Indian Nation The Oneida Indian Nation thanks the Senate Conunittee on Indian Affairs for this opportunity to offer public testimony on the critical issue of sovereign immunity. Common law immunity &x>m suit is an inherent and essential attribute of sov- ereignty. It protects one sovereign fi^om unwarranted intrusions by other sovereigns and their citizens. It provides a sovereign with the power and freedom to express the will of its people in matters of culture, community and association. There are only three sovereigns within the outer geographical boundaries of the United States: the Federal Government, the states, and Indian nations. These three sovereigns have each chosen to allow the other two sovereigns some intrusion into their sovereign domain. In the case of the states, they voluntarily gave up a great deal of their original sovereignty in choosing to join the union. In the case of the Indian nations, they gave up millions of acres of land and established unique rela- tionships to the United States. The Federal Government's sovereignty has been waived in some respects to allow suits by states and Indian nations. Tins method of shared responsibility and sovereign authority is integral to the continued inter- governmental cooperation of these three governments. Pursuant to the Constitution and principles of Federal Indian law, the Federal government claims the power to alter the balance of this shared responsibility and sovereign authority. However, any chan^ to the balance has an effect on thousands of U.S. citizens, and should not be exercised without serious consideration of the po- tential consequences. In addition, the Federal Government owes a special treaty ob- ligation and treaty responsibility to Indian nations above and beyond the typical re- sponsibilities it owes to all U.S. citizens. It has made solemn vows, promises and covenants to the Indian nations throu^ the numerous treaties it has entered into with them, and it has a special relationship with the Indian nations by virtue of its own laws and recognizea international legal norms. The Supreme Court has recently restated the importance of sovereign immunity in Seminole Tribe of Florida v. Florida [1996]. There the Court noted that sovereign immunity, as preserved by the 11th Ajoaendiaaent, is an inherent attribute of sov- ereignty, and is essential to a sovereign's continued vitality as the protector of its citizens' right to choose their culture and the character of their communities. In re- gard to Indian nations the Court has repeatedly emphasized the importance of sov- ereign immunity, as demonstrated in California v. Cahazon Band of Mission Indi- ans [1987] [Indian nation is immune from state attempts to regulate high stakes bingo, in li^t of tribal interest in economic development and self-sufiiciency] and in Santa Clara Pueblo v. Martinez [1978] [Indian nation is immune from suit be- cause determination of citizenship is an inherent power of the sovereign]. The amendment recently proposed by the Senate Subcommittee on Interior and related Agencies to the fiscal year 1997 Interior Appropriations Bill [Section 329] would havejpermitted anyone who asserts that his or her private property interest might be affected by a proposed action of an Indian nation to sue tne Indian nation and its officials in state or Federal court to stop the Indian nation from proceeding. It would allow the party brin^g the suit to recover damages from the Indian na- tion for any harm the court might decide the action, or threat of action, has caused. The amendment would have empowered state courts, many of which have long histories of hostility toward Indian nations, to bankrupt Indian governments for even considering actions that mi^t adversely affect any private individual's inter- ests. Congress has never before provided such a blanket authorization for state court jurisdiction over Indisui nations and Indian officials. Indian nations, like the state and Federal Governments, have long been recog- nized as possessing immunity fix)m suit, unless that immunity was waived by the Indian nation or an Act of Congress. Congressional waivers of Indian sovereign im- munity are both rare and limited. The blanket waiver of sovereign immunity in this 78 legislation would allow disgruntled opponents of Indian nations to flood both state and Federal courts with litigation that has historically been reserved to tribal courts out of respect for the govemment-to-govemment relationship between Indian na- tions and the United SUtes. Indian nations would quickly be impoverished simply by the costs of defending this litigation. . „ , , r In addition to litigation fix)m their non-Indian neighbors, dissatisfied members ol an Indian nation would also be able to force the Inenihcrs owing or using land within Indian reservations. Both law and public policy suggest this conclusion. First, several dangers exi-st in legislating a broad waiver of tribal sovereign immunity. A broad waiver of this nature may result in serious, unintended impacts. It would undermine the historic common-law right and federal policy grantmg Indian tribes autonomy and self-determination as sovereigns, and it would expose tJie limited financial and economic resources of modem-day tribal governments to unfettered litigation and ultimate depletion. Second, a broad waiver of tribal iinuiunily from suit simply is not necessary to protect non-Indians and non-members. The federal government and tribal governments already afford substantial legal protections to the interests of non-tribal entities and individuals on reservation lands. 1 "ribai governments arc dealing with non-lribal entities and individuals with increased frequcnc)' in the civil regulatory, commercial, and environmental contexts. As proactive measures and of their own volition, tribes have initiated programs and policies designed to solicit input and participation of non-tribal members. This has resulted in more effective administration, enforcement, and adjudication of tribal laws and regulations. For these reasons, it is essential that Congress refrain from legislating a broad waiver of tribal sovereign immunity. I. Tht Doctrine of Tribal Sovereign Immunity from Suit Must be Preserved . It has long been recognized that Indian nations possess "the common-law immunity from suit traditionally enjoyed by sovereign powers."' The basis of this immunity has been cApres.scd as an inherent aspect of tribal sovereign powers predating the United States Con.s-titution and as ' Santa CTara Pueblo v. Martinez, 936 U.S. 49, 58 (1978) (citing United States v. United Statea V. United States Fidelity & Guaranty . 309 U.S. 506, 512-13 (1940)). 132 (^insistent with federal policy in preserving liic existence of tribal autonomy.' The United Stales thus must tread lightly in this area as the important federal interetit in tribal self determination is at stake.' Indian tribes, however, are not eloaked with an absolute, unqualified immunity from suit. Like other sovereign poweis of Indian tribes, iril^al immunity may be waived by eongressional aet.' Courts also have recognized exceptiun:> to tribal immunity from suit. In fact, tribal sovereign immunity is similar, but not identical, to that enjoyed by the federal government, state guvernmenls, oi other foreign .sovereigns. A. 0^^^^ln and Limited Scope of tlie Doctrine . As a general matter, the doctrine of sovereign immunity has been supported on the theory that official actions of government must be protected from undue interference.* As a practical and policy matter, the doctrine has been deemed necessary to protect public treasuries from depletion by unfettered litigation.' Thus, the common law doctrine of immunity from suit remains viable, not only for tribal governments but also the slate and federal governments. The Supreme Court applied the common law immunity doctrine to Indian tribes for the first time in 1940.' The Court has viewed the common law sovereign immunity possessed by *Id.; White Mountain Apache Tribe v. Bracker . 448 U.S. 136, 142 (1980); Turner v. United States. 248 U.S. 354, 357-58 (1919), ' See e.g.. Santa Qara Pueblo . 9.% U.S. at 66-67 (Cungre.s.s' provision in the Indian Civil Rights Act of 1968 "for habeas corpus relief, and nothing more, reflected a considerable accommodation of the competing goals of 'preventing injustices perpetrated by tribal governments, on the one hand, and, on the other, avoiding undue or precipitous interference in the affairs of the Indian people."'). ^ Santa Clara Pueblo. 436 U.S. at .58. " Sec Note, Tribal Sovereign Immunity: Searching For Sensible Limits, 88 Columbia L. Rev. 173 (1988); s(^ also The Federalist No. 81 at 548 (J. Cook E. 1961); See alse Reynolds, The Discreiionary Function Exception of the Federal Tort OaimsAct, 57 Geo. L.J. 81 (1968); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3654 (1985)(litigation must not be allowed to stop or slow down official activities tliat arc essential to governing a nation); )!^rson V. Domestic & Foreign Commerce Corp. . 337 U.S. 682, 704 (1 949)(the govemmeni represents the community as a whole and cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right) *Sg£ Ziontz, In Defense of Tribal Sovereignly: An Analysis of Judicial Error in Construction of the Indian Civil Rights Act, 20 S.D.L. Rev. 1 (1975). ' 'United States v. United States Fidclitv & Guaranty Co.. .309 U.S. 506, 512 (1940)(Indian nations are exempt from suit; "li]t is as tl)ough the immunity which was theirs as sovereigns passed to the United States for thdr liencFit . . . ."). 133 tribes as "a necessaiy corollaiy to Indian sovereignty and self-govcmajice."* Courts have recognized that tribal immunity from suit is essential to preserve tribes' autonomous political existence and tribal assets, as •well as to promote the federal policies of tribal self determination, economic development, and cultural autonomy.' From a policy standpoint, tribal immunity from suit advances the federal policy of assuring thai Indian nations remain viable cultural and political cnfilics.'° Current-day jurisprudence docs not regard the s«.>pc of tribal sovereign immunity from suit, however, as identical to that of oilier sovereigns. Indian nations arc subject to broad federal control and definition. Consequently, tribes are characterized as "ijuasi-sovercigns,"" and as such, tribal immunity from suit "is not congruent with that which the Federal Govcinmcnt, or the states, enjoy."" Thus, the scope of tribal sovereign immunity from suit isnot unlimited and is subject to a number of exceptions or waivers by the United States and tribes themselves. B. Excentloiis to and Waivers uf Tribal Soverclim Immunity . Tribes and tribal agencies and officials are subject to suit under various exceptions to tribal sovereign immunity recognized in the courts. For example, euuru have applied the age-old doctrine established by Ex parte Young " in the tribal context.'^ Tliis dtx;trinc works as an 'Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Enpinecrinp. P.C. 476 U.S. 877, 890 (1986), citing Santa Clara Pueblo v. Martinez. 436 U.S. 49 (1978). ' Native Village of Tvonek v. J^ucketl . 890 F.2d 1054 (901 Cir. 1989). ' "Sec Kerr-McGee Corp. v. Navaio Tribe of Indians . 471 U.S. 195, 201 (198.5). " SHnta Clara Pueblo . 436 U.S. at 71, 55, and 58 (1978). ' ^hree Affiliated Tribes of Ft. Berthold Reservation . 476 U.S. at 890-91 (1986)(becausc of the peculiar "quasi-sovereign" status of Indian tribes, the Tribe's immunity cannot be coextensive with that of the federal government, or even the states.), citing United States Fidelitv & Guaranty Co.. 309 U.S. 506, 513 (1940). "209 U.S. 123, 159-160 (1908)(where a state official attempted lo enfoi-cc an unconstitutional slate law, he was "stripped of his official or representative character;" his immunity from suit in federal court under the Eleventh Amendment did not protect him from the consequences of his individual conduct). This doctrine remains vital as a mechanism to force compliance with the commands of the federal Constitution although it is based, In part, on the legal fiction dial "unauthorized" or "illegar' actions of govcrnmcnis officers arc not actions of the sovereign itself. " Sec Wisconsin v. Baker . 698 F.2d 1323, 1332 (7tb Cir. 1983), cerL denied 463 U.S. 1207 (1983)("an official ot an Indian tribe should be stripped of his authority, and corresponding immunity, to act on behalf of his tribe whenever he exercises a power that his tribe was powerless to convey to him*^; Puvallup Tribe. Inc. v. Department of Game . 433 U.S. 165, 171 (1977)(a suit to enjoin violations of state law by Individual tribal members is permissible). 134 exception to the general rule of sovereign immunity from suit and is applied lo federal and state governments. At its core, the Ex parte Young doctrine permits suits for prosi>ectivc injunctive or declarative relief to require governmental officials to comply with the law. It is based on the notion that an action against individual government officials engaging in unauthorized or illegal conduct is not an action against the sovereign government itself. Thus, in the tribal context, a litigant may seek injunctive or declaratory relief" against individual tribal officials who allegedly have acted outside the scope of their authority." This exception to tribal sovereign immunity has been broadly construed, permitting, for example, developers or individuals to obtain adjudications of the validity of various tribal laws and actions." Thus, although the Ex parte Young doctrine was intended to waive state immunity to vindicate violations of federal law by state olTicials, the doctrine has been extended to act by tribal officials in demgation of tribal or federal law. Tribal sovereign immunity has been limited by various court decisions cstablisliing other exceptions to tribal immunity from suit. For instance, where particularly egiegious allegations of personal restraint and deprivation of personal rights were raised, the Tenth Circuit distinguished the Santa Clara Pueblo case and pennitted a claim for damages for constitutional violations of personal and property rights against a tribe." In addition, an exception based upon the equitable "As with suits against state or federal officials, an action against tribal officials can only seek injunctive or declaratory relief; suits for monetary relief arc barred under the notion that suits affecting the treasury are suits against the .sovereign itself. See Edclman v. Jordan . 415 U.S. 651 (]974)(action for retroactive relief barred); but sey Dry Creek. Lodge. Inc. v. Arapahoe and Shoshone Tribes . 515 F.2d 926 (10th Cir. 1975) and 623 F.2d 6«2 (K)th Or. 1980). cert, denied 449 U.S. 1118 (J981)(no tribal remedy, tlius non-Indians' claim for damages against tribe permitted). " Burlington N. R. Co. v. Blackfeet Tribe of the Blackfect Indian Reservation .. 924 F.2d 899, 901 (9th Or. 1991), amended and cert, denied 5U5 U.S. 1212 (1992). In this regard, some tribal governments insure or indemnify employees against lawsuits in a manner similar to some state and federal governments. Since the court must make a threshold deienmination of whether the tribal employee was acting within his or her authority before deciding if jurisdiction exists, there will be costs associated even with a successful defense of an officer suit. Sec e^ Hardin v. White Mountain. Apache Tribe . 761 F.2d 1285 (9th C1r. 1985), amended 779 F.2d 476 (10th Cir. 1985); sec also Santa Clara Pueblo v. Martinez , supra (the Governor of the Pueblo w.is required to litigate the extent of the protection the Pueblo's immunity afforded him). " See Kerr-McGee Corn, v. Navajo 1 ribe of Indians . 471 U.S. 195 (J985)(Supreme Qmrt decided case involving a non-Indian challenge to tribal taxes without discussing sovereign immunity); Tenneco Oil Co. v. Sac & Fox Tribe of Indians. 725 F.2d 572 (10th Cir. 1984)(oil company permitted to maintain action against individual tribal officials and challenge certain tribal licensing and taxing ordinances). '" Dry Creek Lodge. Inc. v. Aranahoc and Shoshone Tribes. 515 F.2d 926 (lOih Cir. 1975) and 62.^ F.2d 682 (lOlh Cir. 1980), cert denied 449 U.S. 1 1 18 (l981)(wrongful denial of access to a non-Indian guest ranch located on the reservation). 135 recoupment doctrine has been recognized in the Tenth Circuit." These trends are disturbing as the power of the United States to waive tribal sovereignty rests in Congress, not the courts, and Uiat power must be exercised judiciously. Tribal sovereign immunity may be waived by cither acts of Congress or acts of the tribes. Although Congress has power to waive a tribe's conunon law immunity from suit," Congress appropriately, only sparingly has exercised this power. Only a few instances can be cited where Congress has waived tribal immunity from suit.^' In addition, tribes may waive sovereign immunity fmm suit voluntarily.^ Tribal waivers of sovereign immunity must be "unequivocally expressed."" Courts have foimd tribal waivers of immunity from suit in a variety of circumstances. For instance, courts have held that an Indian tribe's contract providing for resolution of dL<;pules by arbitration and making the arbitration agreement enforceable in any court having jurisdialon creates a right to sue, and thus constitutes " Jicarilla Apache Tribe v. Andrus . 5S7 F.2d 1324 (10th Cir. 1982)(doctrine of equitable recoupment applies to tribes as It applies to federal and state governments) When a sovereign sues, it waives immunity to: (1) claims of the defendant which assert matters in recoupment (matters arising out of the same transaction or occurrence), or (2) claims of equal or less monetary value that arc of the same form or nature as those sought by the .sovereign plaintiff, sec Frederick v. United States . 386 F.2d 481, 487-88 (5th Cir. 1967). " >1 hrcc Affiliated Tribes of Fort Berthold. 476 U.S. at 891. " See e.g. Santa Clara Pueblo , supra (in the Indian Civil Rights Act. Congress waived sovereign immunitj' for habeas corpus proceedings to review decisions of tribal courts); Metropolitan Water Dist. of Southcni California v. U. S. . 830 F.2d 139 (9th Cir. 1987), cert, granted 485 U. S. 1020 (1987), afTd 490 U.S. 920 (1987)(in the McCarran Amendment. 43 U.S.C. § 666, Congress waived the United States' sovereign immunity as a paily defendant in suits to adjudicate all water rights in a stream system, which included Indian water rights); Blue Lcp> v. U.S. Bureau of Indian Attain. 867 F.2d 1094, 1097 (8th Cir. 1989)(tribal sovereign immunity from suit is abrogated under the Resource Conservation and Recovery Act, thus permitting "citizen sxiits" against tribes). '' Wichita and Atniiatcd 1 ribes v. Hodel. 788 F.2d 765 (D.C. Cir. 1986); Chemchuevi Indian Tribe v. California State Bd. of Equalization . 757 F.2d 1047 (9th Cir. 1985), rcv'd on other grounds 474 U.S. 9 (1985); Mcrrion v. Jicarilla Apache Tribe. 617 F.2d 537 (lOth Cir. 1980), M£d on other grounds 455 U.S. 130 (1982); United States v. Oregon . 657 F.2d 1009 (9th Cir. 1981); Fontencllc v. Omaha Tribe of Nebraska . 430 F.2d 143 (8th Cir. 1970); Maryland Casualty Co. v. Citizens Nat'l Bank . 361 F.2d 517 (5lh Cir. 1966), cert, denied 385 U.S. 918 (1966). "Santa Clara Pueblo, supra. 136 a waiver of the tribe's sovereign immunity." Most courts also have held as a general rule that the presence of "sue and be sued" clauses in corporate charters established under the Indian Reorganization Act ("IRA")" constitute a waiver of M^vcreign immunity." In the commercial context, increased economic development itivolving non-tribal entities has resulted in tribal governments wluntarily waiving tribal immunity and providing protections to non-Indians' and non-members' interests as necessary. For example, in its gaming compact with the State of Arizona, the Yavapai-Apache Nation agreed to a establish procedures for the disposition of tort claims arising from alleged injuries to patrons of Its gaming establishment. See. Exhibit 1, attached hereto. Under the gaming compact, it was agreed that tlie procedures may be analogous to the remedial system available for similar claims arising against the State. Pursuant thereto, the Yavapai-Apache Nation adopted comprehensive tort remedies procedures, wherein the Nation waives the sovereign immunity of the gaming establishment and/or the Nation for the express purpose of allowing patrons to bring tort claims against the Nation and/or the gaming establishment in the Nation's tribal court. Sec. Exhibit 2. attached hereto. These are but some examples of circumstances in whidi tribal immunity from suit has been limited. Given this discussion, it is clear that tribes are not cloaked by an impermeable shield of sovereign immunity from suit. The courts appear to be finding exceptions and waivers by tribes of tribal sovereign immunity with increasing frequency. Thus, a sweeping waiver of tribal sovereign immunity is unnecessary and will undermine tribes' entitlement as sovereigns to common law Immunitj' from suit afforded other sovereigns. As with any sovereign, tribal governments must retain their autonomy and ability to protect their treasuries from attack and to subject themselves to government on a casc-by-ca.sc basis. '^ Sokaopon Ciaminp Enter. Corp. v. Tushic-Montgomerv Assocs.. 86 F.3d 656 (7th Cir. 1996); Rosebud Sioux Tribe v. Val-U Construction Co. of South Dakota Inc.. 50 F.3d 560 (8th Cir. 1995); sec Aubertiii v. Colvillc Confcdcr.ited Tribes. 446 F.Supp. 430, 435 (E.D. Wash. 1978); sec also In re Colcgrovc . 9 B.R. 337 (Bankr. N.D. Cal. 198J)(where "sue and be sued" language is omitted from tribal corporate charter). '•'12 U.S.C. §§ 461. 462, 464-479 (1983); 25 U.S.C. § 463 (Supp. 1986). "Sec, e^. Merrion v. Jiearilla Apache Tribe. 617 F.2d 537, 540 (10th Cir. 1980), aCrd qu other grounds . 455 U.S. 130 (1982); Boe v. Fl Belknap Indian Communitv of Ft. Belknap Reservation. 455 F.Supp. 462, 463 (D. Mont. 1978). afPd 642 F.2d 276 (9th Cir. 1981)(corporate waiver of immunity, however, should not waive Irilial immunities); Maryland Casualtv Co. v. Citizens National Bank . 361 F.2d 517 (5th Cir. 1966), cert, denied sub nom. . Maryland Casualtv Co. v. Seminole Tribe of Florida. Inc. . 385 U.S. 918 (1966)(Seminolc Tribe adopted a § 17 corporate charter with a "sue and to he sued" provision, and Che court found this a waiver of immunity, which was expressly qualified, and the tribe's assets were beyond the reach of the gami.shment action in is.<5uc); see Fontenelle v. Omaha Tribe of Nebraska. 430 F.2d 143. 147 (8th Cir. 1970)(tribe subjected to action to quiet title to lands); Parker Drilling Co. v. M etlakatla Indian Community.. 451 F.Supp. 1127 (D. Ark. 1978)(tribe exposed to tort suit). 137 II. The Federal Government and Trilits are rrotcctlnp Sipiificant Intere sts of Non-Indians unJ Non-Members on Rgservations Now . A broad waiver of tribal sovereign immunity from suit is unnecessary because the federal government and tribal govemmenis already are providing protections to non-Indians and non- members within the boundaries of reservations. Existing federal oversight protects the interests of reservation residents without destroying tribal autonomy. A. Tribal Reyulatorv Undcrtaldngs Affecting Nun'lndians and Non-Menibers . Congress ensures the protection of non-Indians and non-members by requiring federal approval of certain tribal laws and ordinances governing a variety of civil regulatoiy areas. While it is arguable that Congress oversteps the "guardian" role of the United States over tribes and effectively usurps tribal governments through this type of legislation, it is certainly less harmful than legislating broad waivers of tribal immunitj' from suit in these aieas. Thus, where tril>es exercise regulator)' jurisdiction in these areas, the involvement and oversight of (he federal government already protects the interests of non-Indians and non-members. For instance, tribes are allowed to enact their own liquor laws wiihin the limitations set by a federal jurisdiction statute." While Congress has set forth the requirements of the tribal ordinances and maintained a federal certification and oversight role." actual regulation of the liquor sales remains vested in the 'ribcs within their jurisdictional boundaries. Several trilx»> have enacted liquor ordinances under these procedures." Significantly, a recent federal court deei-sion upheld a tribal ordinance that authorized the Cheyenne River Sioux Tribe to regulate liquor .sales in non-Indian communities, on lands held in fee by non-Indians within the reservation.'" Other examples include federal agency involvement in forcsiiy" and agriculture.'^ "18 U.S.C. § 1161. '*Thc statute requires that tribal ordinances be consistent with federal and state law and that the Secretary certity and publish the ordinance in the Federal Register. 18 U.S.C. § 1161. " See 59 Fe. Jlcg. 31496 (June 17, 1994)(St. Regis Mohawk Tribal Alcohol Beverages Control Act pa.sscd 11/19/93); .S9 Fe. Reg. .55316 (November 11, 1994)(Coushatta Tribe of Louisiana Liquor Control Ordinance passed 8/30/94); 59 Fed. Reg 26346 (May 19, ]994)(Jamestown S'Klallam Tribe Liquor Control Ordinance enacted 2/22/94). ^atv of Timber Lake v. Cheyenne River Sioux Tribe . 10 F.3d 554 (8th Cir. 1993). "Under the National Indian Forest Resources Management Act (the "Forest Act"), the Secretary must comply with tribal laws and ordinances, including laws, regulaluig the environment and historic or cultural preservation, and laws or ordinances adopted by the tribiU government to regulate land use or other activities under tribal jurisdiction. 25 U.S.C. S 3101 ct scq., P.L. 1010-630. Under the Forest Act, the Secretary is authorized to provide assistance in the enforcement of related tribal laws, notify others of such laws, and if the tribe so requests, require federal officers to appear in tribal court. Tribes must, however, adopt an ordinance identical to 138 In addition, Congress has autliorized federal agencies to a!>sist tribes in developing tribal ordinances and regulations related to the particular agency's areas of concern. For example, tlic Indian Energy Resources Act authorized the Secretaries of Interior and Energy to provide assistance to Indian tribes in the dtwelopmcnt, administration, inuplemcnialion, and enforcement of tribal laws and regulations governing the development of energy resources on Indian reservations." The Indian Gaming Regulatory Act authorizes the Chairman of the National Indian Qaming Commission, a federal agency, to approve tribal gaming ordinances and resolutions.^ I'he interests of all reservation citizens Is taken into account by the federal agency's evaluating tribal undertakings in these areas. B. Tribal Environmental Regulatk>ns . In the area of environmental protection. Congress has acknowledged that tribal governments, like .state governments, have the authority to regulate cnviroitmcnta! matters. This authority, however, is subject to federal agency oversight. The Environmental Protection Agency ("EPA'7 is authorized to approve certain tribal environmental codes as pari of federal government programs. Specific liFA auUiority is found in the Qean Water Act" and the Safe Drinking Water Act.*> Under the "primacy" provision of the Safe Drinking Water Act, tiibes arc provided the opportunity to assume principal responsibility for the enforcement of drinking water supply regulations within the jurisdictional boundaries of the tribe. To attain primacy status, a tribe must have drinking water regulations at least as strict as EPA's and establish an independent agency within the tribal government that has the power to enforce tribal regulations. Increasing numbers the Department of the Interior fore.<:t trespass regulations to obtain cuncurreut civil jurisdiction to enforce the trespass regulations. '^The American Indian Agriculture Resource Management Act, 25 U.S.C. §§ 3701-3745 (1993), contains provisions cxprc^y requiring the Secretary to comply with tribal laws and ordinances, similar to the Korestiy Act. For agricultural resources, the law requires tliat a lO-ycar plan be developed and implemented cither directly by the tribe or by the Secretary. Id. § 3711(b)(1)(C). A requirement for federal approval of the plan Is implied in the statute. See 25 U.S.C. §.371 1(b)(2). "25 U.S.C. § 3504. »*25 U.S.C. § 2710(b)(l)B), (d)(l)(A)(Jil), and (b)(2). "33 U.S.C. § 1377(c). "42 U.S.C. § 300j-ll(a). 8 139 of tribes arc undertaking principal responsibility, with the assistance of the EPA," for protecting sources used for drinking water under llie federal enabling legislation. Tribes also are undertakiitg environmental regulation under the Clean Water Act. Congress has permitted tribes to be "treated as states" for purposes of tliis legislation. As such, tribes can obtain funds necessary to pursue the planning required for protecting water resources vital to the tribes. Section 106 of the Clean Water Act allows for development of a siurface water management program, and section 104 provides for water quality matiagcracnt. Once a tribe's water quality standards have been approved by the EPA,^ the tribe also is treated as a state for purposes of the certification process under section 401 of the CWA. The section 401 certification process requires the technical review of pending permit applications to determine their impacts on water quality standards, and most tribal law-making bodies avoid becoming directly involved in carrying out this kind of technical review process. Another statutory requirement is that tribes, like states, adopting their own water quality standards must conduct a public review of tlieir standards at least every three years. These burdensome administrative procedures ensure the input and protection of the interests affected non-Indians and non-members. Despite the strict statutory burdens of undertaking tribal environmental regulation, many tribes arc establishing the necessary administrative and adjudicatory procedures and expertise in order to protect the resources that are vital to the welfare and future of their uihc. For example, tribal governments have developed extensive solid and hazardous waste regulations, particularly in response to tlie Eighth Circuit's 1989 decision in Blue Lx;gs v. U.S. Bureau of Indian Affairs. ^ which held that tribal governments arc responsible for managing solid waste disjwsal on reservations and may be held liable for failing to meet this responsibility. The Campo Band of Mission Indians, for example, ha.s established comprehensive tribal regulatory and enforcement mechanisms for regulating solid waste on the Reservation. See Exhibit 3, attached hereto. In many of these tribal ordinances, tribes provide a waiver of their sovereign immunity from suit for purposes of appeal of administrative decisions by tribal agencies. The Lummi Water and Sewer Ordinance is an example. "The EPA provides grants and technical assistance to tribes for drafting environmental codes under the Indian Environmental General Assistance Program Act of 1992. 24 U.S.C. § 436b. The Clean Air Act requires the EPA to treat tribes as states for the purposes of funding plaiming grants and program operational costs under those statutes. 42 U.S.C. § 7601(d). The EPA also revised its internal regulations to make it easier for tribes to obtxtin EPA approval to assume environmental rcgulatoiy authority, .59 Fed. Reg. 643.^9 (December 14, 1994). The revision shifted the emphasis from treating tribes the same as .states to treating tribes as sovereigns in their own right. Under the new regulation, a tribe must meet the applicable statutory requirements, rather than undergo a scpaiatc "trcatjncnt as state" approval process. **We note for the record that any affected person may seek judicial review of the EPA's approval of tribal water quality standards. Citv of Alhugucrauc v. Browner. No. 93-82-M Civil (D.C.D. N.M., Oct. 22, 1993)(federal court jurisdiction is based on the Administrative Procedure Act and Declaratory Judgment Act). »^7 F.2d 1094. 1097 (8th Cir. 1989) 140 C. Tribal Economic Development and Commercial PenHiigs . The interests of non-Indians and non-mcmbcrs are protected to the extent required by federal law or the tentis of commercial transactions. The federal government, for instance. Is inextricably involved in tribal housing development. The Department of Housing and Urban Development ("HUD") has requirements for tribal housing authorities receiving HUD funds. For example, tlie Indian Housing Loan Guaranty Program*" allows HUD to guarantee loans for the purchase, construction, or rehabilitation of family dwellings on restricted lands and in Indian areas. In order for an individual Indian borrower or an Indian Housing Authority to participate in the program, the tribal government must enact both eviction and foreclosure procedures to protect borrowers, lenders, and HUD, in the event of a default. Here, too, tribal housing ordinances often contain a waiver of tribal sovereign immunity from .suit to enforce Individual rights under these ordinances. In the commercial context, tribes have a built-in incentive to waive their immunity from suit or otherwise protect non-Indians. Interested parties will not be interested in conducting business on Indian reservations without an ability lo seek redress for gric^anc^s. Tribes, thus, will choose to waive immunity or take other similar steps to c^m.summate a business deal. Clearly, no intervention is necessary in ihis context. in. Regulatory Issties and PartidpaHon of Non-Indians and Non-Members in Trilml Governmfent. A. Regulatory Issues Involving Modern-PayTribal Govemtnents Authority Over Non- Indians . The authority of tribal governments to exercise tribal jurisdiction over non-Indians has been one of the most disputed issues in Indian affairs during the modem era. In 1978, the Supreme Court held in Oliphantv. Suquamish Indian Tribe *' that tribes could not prosecute and convict non-Indians, unless authorized to do so by Congress. In 1990, the Supreme Court extended the Oliphant ruling to non-member Indians," Congress later reinstated tribal authority over nou-member Indiaiis. Today, controversies relating lo tribal authority to exercise civil jurisdiction and regulatory authority over non-Indians and non-members residing within reservation boundaries pci-sist. In certain civil contexts, particulariy taxation and land use, tribal authority over non-Indians and non-members has l)ccn uphdd.*' *°42 U.S.C. § 1437a (amended 1992). *'435 U.S. 191 (1978). * *Diiro V. Reina. 49.*! U.S. 676 (1990). " Wasliington v. Confederated Tribes of Colville Indian Reservation. 447 U.S. 134 (1 980)(tribal cigarette tax for salc^ to non-Indians on tribal lands has been upheld by the Supreme Court); Mcrrion v. Jicarilla Apache Tribe. 455 U.S. 130 (1982)(tribal tax levied on mineral extraction from tribal lands upheld, even though tlie tribes wci* receiving revenues from the 10 141 TribaJ authority to regulate non-Indians on non-tribaJ trust land within reservation boundaries is subject to certain rules under federal law. In Montana v United States . 450 U.S. 544 (1981), the Supreme Court enumerated the rule for establishing tribal jurisdiction over non- Indians in this context. First, '{a] tribe may regulate, through taxation, licensing, or other means, the activities of non-mcnibcrs who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements."" Second, "(a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."*' Under the "tribal welfare" test, lower couns have upheld broad tribal civil powers over non-Indians on non-Indian land in a tribal zoning ordinance,*' a tribal health and safety ordinance,*' and tribal regulation of non-Indian lands bordering tribal trust property.** With regard to water use, the courts have upheld federal and tribal control to the exclusion of state control over water use by non-Indians on an Indian reservation.** B. Tribal Programs aiid Policies Involvhie Participation of Non-Indians and Non- Members in Tribal Govemmeiits. Many tribes have responded to the civil regulatory concerns involving non-Indians as well as tribal members by adopting extensive legal codes and restructuring tribal government capable of adjudicating Indian and non-Indian civil disputes in their own courts and administering their increased regulatory responsibilities. This makes tribal governments more accessible and "user- friendly" to tribal mcmtKirs and non-tribal members alike. mining companies under the mineral leases; the Court compared the tribe to states and cities, which can receive contract payments as landowners and levy taxes in tlteir governmental capacities as sovereigns); Kerr-McGee Corp. v. Navajo Tribe. 471 U.S. 195 (1985)(non-lRA tribal governments may tax on -reservation business activities without first obtaining approval by the Steeretary of Interior where the tribal convtitutiun docs not revjuire sueli advance ap)>roval). ** Montana v. United States. 450 U.S. 544, 565 (1981). "14. 450 U.S. at 566. ** Knight v. Shoshone and Arapahoe Indian Tribes, etc.. 670 F.2d 900 (lOth Cir. 1982). *' Cardin v. De La Qtiz. 671 F.2d 363 (9th Cir. 1982). * *Confcdcratcd Salish and Kootenai Tribes of Flathead Reservation v. Namen . 665 F.2d 951 (9ih Cir. 1982), ££il. denied. 459 U.S. 977 (1982). ** Colvillc Confederated Tribes v. Walton. 647 F.2d 42 (9th Cir. 1981), cert, denied 454 U.S. 1092 (1981). 11 142 For example, the Zuni Pueblo has adopted extensive legal codes, including the Zuni I3u$inci>s Code which controls and regulates the activities of non-Zunis and non-residents of the Reservation in their commercial dealing with the Zuni Reservation and the people living thereon. Sec . Exhibit 4, attached hereto. The Zuni Business Code establishes procedutes and requirements consistent with federal laws and regulations governing the conduct of business on the Zuni Reservation. In addition, because tribes have civil regulatory authority and jurisdiction over non-Indians and non-members, tribal governments are developing initiatives tu increase the participation of non-tribal members in the government. Kor example, the Navajo Nation has established a five- member Navajo Tax Commission, two of whom may be non-Indians and non-members. Sec. Exhibit 5, attached hereto. Particularly important to note here, also, is that Navajo law perniiu an adjudication of a refund action in tribal court in specific instance.<; for certain taxes.** Thus, reservation citizens have direct access to both regulatory and judicial relief. Another example of tribal initiatives to involve non-Indians include the six-nicmbcr Board of Commissioners of the Wind River Housing Authority, established by llie Shoshone Indian Tribe and the Arapahoe Indian Tribe, requires that two members of the Board be non-mcmbcrs. See . Exhibit 6, attached hereto. In addition, the Zuni Pueblo has establi.al sovereign immunity from suit and refrain from legislating a sweeping waiver of tribal immunity. * °See e.g. 24 Nav. Tr. Code § 433 (procedure for refund of Dtisiness Activity Tax). 12 143 EXHIBIT 1 r YAVAPAI-APACHE NATION AND STATE OF ARIZONA GAMING COMPACT 1993 Sj^SBSSSMHUbI . 144 In- addition, public health standards for food and beverage handling shall be in accordance with United States Public Health Service requirements. (b) Emergency Service Acegsaihilily. The Nation shall require the Gan\ing Facility Operator to make provisions for adequate emergency accessibility and service. (c) Tort Remedieg for Patrons . The Nation shall establish procedures for the disposition of tort claims arising from alleged injuries to patrons of its Gaming Facilities/ which procedures may be analogous to the remedial system available for similar claims arising against the State. The Nation shall not be deemed to have waived its sovereign immunity from suit with respect to such claims by establishing such procedures or by any provision of this Compact. (d) Liability for Damag e to Persons and Property . During the term of this Compact, the Nation shall maintain public liability insurance which provides no less than one million dollars ($1,000,000) for personal injury and property damage. The Nation's insurance policy shall include an endorsement providing that the insurer may not invoke tribal sovereign inununity up to the limits of the policy set forth above. SECTION 14. PATRON DlSPimy} 52 145 • (a) Kgfusat to Pay Winning s. Whenever the Gaming Facility Operator refuses pnyment of alleged winnings lo a patron, and tlie Gaming Padlity Operator and the patron are unable to resolve the dispute to tl\e satisfaction of the patron and (he dispute involves: (1) At least five hundred dollars ($500), the Gan\ing Facility Operator shall Immediately notify the Tribal Gaming Office. The Tribal Gaming Office shall conduct whatever investigation It deems necessary and shall determine whether payment should be made; or (2) Less than five hundred dollars ($500), the Gaming Facility Operator shall inform the patron of his or her right to request that the Tribal Gaming Office conduct an investigation. Upon request of the patron, the Tribal Gaming Office shall conduct whatever investigation it deems necessary and shall determine whether payment should be made. (b) Notice tq Patrons . The Tribal Gaming Office shall mail written notice by certified mail, tclurn receipt requested, to tlie Gaming Facility Operator and the patron of the decision rwolving the dispute witliin thirty (30) days after the dale that the Tribal Gaming Office first receives notification from the Gaming Facility 53 146 ■Operator or a request to conduct an investigation from the patron. (c) Effective Date of Pecigion . TJie decision of tlie Tribal Ganung Office is effective on the dale ii is received by the aggrieved parly as reflected on the return receipt. (d) Review of Decision . Witliin thirty (30) days after the date of receipt of the written decision, Ihe aggrieved party may file a petition with Uie Tribal Gaming Office requesting a review of the decision. The Tribal Gaming Office may set a hearing on the matter or may make a decision based solely upon the prior decision and other documentation provided to it by Ihe patron and the Gaming Facility Operator. The Tribal Gaming Office shall then issue a written decision and mail it to the parlies pursuant to the procedures set forth in Section 14(b). The decision of the Tribal Gaming Office shall be final and binding upon the patron and tixe Gaming Facility Operator and shall not be subject to judicial review, dispute resolution or other legal action. SECnONlS. DlSrUTERESQUmOl^ (a) Procedures and Provisions Subj ect to Dispute Resolution. The parties may discuss and reconsider Sections 4, 5, 7, 11, 12, 14 and all appendices to this Compact upon written notice and request by either party. Thereafter, if the Nation 54 147 EXHIBIT 2 RESOLUTION NO. 2^96 01= THE GOVEIUMINO BODY OF THE YAVAPAI AFACIfE NATION WHEREAS, pureumii ;o the Indian Gaming RcgiUwoiy Act ('IGRA"), 25 U.S.C. §5 2701, the Nation has entered into a Oanilng Compact ^"Compact*^ bct>>^n the Nation and the Stntc of Arizona, which Compact dcfincj the respective oWlgattons and rcsponslbUltlcs of the Nation and the state with rcspoct to Qass ID gaming activity' on the reservation, and the Tribal Council has reviewed and Appiwcd the Compact; and "WHEREAS Section 13 of the Compact trqaircs the Nation to establish pnx»durcs fot the disposition of tort claims arising from alleged Injuries to patrons of its samlng facilities; and WliEKCAS no procedure currently exists to addttss adequately such ton clalnu; and WHBREAS the Nation desires to comply ftilly wIlA Section 13 of the Compact by Adopting the anacfaed turt remedy procedures for gaming facility patrons; NOW, TWEREFORB, BE IT RESOL.VBD that the Tribal Council appiwcs the attached Yavapa Apache Nation Ton Remedy Procedures for Gaming Patrons and that these proccdutxs arc hereby adopted as laws of the Nation, effective immediately. CBRTinCA-nON I, the undersized, hereby ccxtl^ (bat at a dnly called mcctfng of i!ic Yovcpal Apcche Tribal Council, og Karcb 1? 1996. the Ttibal Council voted to adopt this Rcsoiudon with an HSuTOHtiw Yute vf B ({uunua of THboI Council fhnabvre. Cbainnaii ATTEST: Sccrctaiy 148 YAVAPAl-APAaiE NATION TORT REMEDY PROCEDURES FOR GAMING PATRONS Section 1. Policy. The purpose of these procedures is to provide a systcnufor the disi>ositiotv of tort claims arising from alleged injuries to the pcRon or property of patrons of the Naiton's Gaming Facility. Section 2. Applicability. These procedures apply to all persons who allegedly suffer personal injuiy and/or property damage arising out of their patronage of the Nation's Gaming Facility. Section 3. Tribal Court Juiisdielion. The Tribal Court shall have exclusive jurisdiction over all nutters arising from the administration and enforcement of these procedures. Section 4. DefinlUons. Tlie following wotdis have the foUomng meanings as used in thne procedures: A. "Gaming Facilit/' means all Qass m gaming focHitics ovmed and operated by the Yavapai-Apache Nation on its reservation, mcluding but not Ihnited to the Qiff-Castlc Casino; B. "Nation" means the Yavapai-Apache Nation; Q "Patron" means any pereon who is a customer of the Gaming Facility; D. "Peison" meatu any natural indhndual; E. • Tort" means an injuiy to the person or property of a patron; F. 'Tribal Council" means the Tribal Council of the Yavapai-Apache Nation; and G. 'Tribal Court" means the Yavapai-Apadie Nation Tribal Court. Section 5. Limited Waiver of Sovereign Immunity. A. The GanUng Facility is a tribally-owned business and possesses the Nation's 149 sovereign immunity from suit. B. The Nation hereby waives the sovereign immunity of ll>c Gaming Facility and/oi tlic Nation foi tlie express, sole, and limited purpose of allowing |»tron$ to bring tort claims against the Nation and/or tlie Gaming Facility in Tribal Couit; provided that such waiver is made only to tlic extent that the nature of a tort claim is within thccxprcss coverage of the Nation's or Gaming Facility's public liability insurance policy in cflcct at the lime of each judgniem, order, or award, and no judgment, order, or award for such a daim against the Gaming Facility and/or Nation may exceed One Million Dollars ($1,000,000X10); further provided that any such tort claim must be timely and property filed; and provided further thai any judgment, order, or award may be Katisficd only pursuant lo: (i) the e3q>ress provisions of the Nation's or Gaming Facility's public liability insurance policy in efCect at the time of cacfa jodgmeat, order, or awatti; and (ii) if necessary, an action by the pccvaHiog paity against the insurer under such policy. This waiver is strictly limited and docs not waive the imimini^ of the Nation or Gamiag Faality with respect to other suiu for monetary damages or to suits for puiutivo or exemplary damages and docs not waive the immunity of the Tribal Council or any <^Bcer, employee, agent, or Board or Commission member thcrcoC ' C. Except as otbeiwise provided in these procedures, nothing herein shall be interpreted or construed as: 1. a waiver of the sovocign immunity of the Nation and/or Gaming FacQiiy beyond the limits set forth herein; 2. a waiver of the sovereign immunity of the Nation and/or Gaming Facility to impose liability for punitive, double, treble, incidental, consequential, or exemplary damages, interest prior or subsequent to judgement, attorn^ fees, court costs, expert fees, or civil penalties; 3. a waiver of the sovereign imraunigr of the Nation and/or Gaming Facility 150 for any other claims or obligations asserted against the Nation or arising out the Gaming Facility operations; or 4. a vorvcr of the sovereign immunity of the Nation and/or Gaming Facility from levy on any jtidgmcnt, or from a lien, attachment, execution, or other judicial or non-judicial process upon Ihc assets of the Nation or Gaming Facility. ^ SecUon 6. Bringing Autliorixed Claims Against the Nation and/or Gaming Pacility. A. Except as otherwise limited by these procedures, any person may bring a tort claim against the Nation or Gaining Facflity arising out of the operation of the Gaming Facility by filing a written complaint wllh the Tribal Court within one hundred and eigh^ (180) days after the cause of action aecrues. The complaint shall contain facts sufficient to describe the basis upon which liability is claimed, tlie facu supporting the claim, and a specific amount for \^ich the claim is made and shall otherwise comply vrith the rules of procedures for the Tribal Court 'Any claim ° that is not Hied tlmdy under this Section is barred, and no aaion may be brou^i thereon in the Tribal Court or in any odicr court. B. For purposes of (his Section, a cause of action accrues when a patron realizes that he or slic has been injured or that his or her property has been damaged and knows or reasonably should know the cause, source, act. event, instrumentality, or condition that caused or contributed to the damage; provided that, for causes of action that arose prior to the date these procedures were adopted, the cause of action shall be deemed to accrue on the date of such adoption. Section 7. Ainendpient; Bflectivc Date The Tribal Oouncil retains the authority to amend these procedures, including but not limited to modification of the limited waiver of sovereign authority contained herein. Tlie effective date of these procedures is . 151 EXHIBITS CAMFO BAND OF MISSION INDIANS ENVIRONMENTAL POLICY ACT OF 1990 (As Amended Dcecmber 11, 1994) 152 |DMMib«r 1W4J TITLE II CAMPO ENVIRONMENTAL PROTECTION AGENCY (201. Establishment . There is hereby established the Campo Environmental Protection Agency ('CEPA"). § 202. Governing Body; Appointment; Terms; Vacancies . CEPA shall be governed by a Board of Commissioners (the "Board"), which shall be composed of three (3) Commissioners, all of whom shall be members of the Campo Band. The Commissioners shall be appointed by the Chaiiman of the Campo Band with the advice and consent of the General Council. Each Commissioner shall serve for a term of four (4) years, provided that, in order to stagger the terms of office, one of the original Commissioners shall be appointed for a term of two (2) years, one for a term of three (3) years, and one for a term of four (4) years. A vacancy on the Board, howsoever caused, will be filled by the appointment procedure set forth In this Section, provided that any appointment that does not begin coincident with the staggered terms will be shortened as necessary to maintain the staggered terms. § 203. Chairman; Quorum; Meetings . Tlie Commissioners shall elect a Chairman from among themselves. The business of the Board will be conducted at meetings of the Board duly called and noticed and at which a quorum is present. A quorum shall consist of two (2) Commissioners. Any substantive action of the Board must be taken by the afGrmative votes of at least two (2) Commissioners and must be recorded in a written resolution of the Board. The Board shall meet at such places and times as may be 153 IDwMtbv 1*941 TITLE ni MISCELLANEOUS PROVISIONS § 301. Review of Coimisrion Actions . (a) Campo Band Environmenlal Court There hereby is established the Campo Band Enviroamental Court ("Environmental Court"). The Enviromnenlal Court shall hear appeals from Goal actions and decisions of the Board in accordance witli such rules and procedures as CEPA may establish by regulation. Any aCccted party may seek review of any iinal action or decision of the Board by filing an appeal in the Environmental Court within thirty (30) days of the entjy of the final action or decision from which tlic appeal is taken. The Environmental Court shall hear app»eals from the final actions or decision only after exhaustion of aO administrative remedies provided by CEPA. The Environmental Court shall, upon the petition of an affected party, conduct a review of the record of the proceedings of CEPA but shall not take new evidence; it may niodKy or reverse a decision or action of CEPA only where such action or decision is not supported by law or is arbitrary and capricious. CEPA, upon request of the Environmenul Court, shall provide to the Environmental Court a certified copy of all documents, records, transcripts, or other information that formed the basis for any action or decision as to which an afiected party seeks review. The action of the Environmental Court on apj>cal shall be final (b) Review of CEPA Issuance of Preliminary or Pemiancnt Injunctions . An Adverse Party aggrieved by a decision of the Board issuing or failing to 10 154 IDMtBlMT 1W4J issue a prclimuiar)' or pennancnt injunction is entitled to judicial review thereof. Proceedings for review under this Subsection shall be instituted by filing a petition in the Environmental Court The petition shall be served and filed within five (5) days after service of the decision of the Board. Failure to file timely a petition for review shall be deemed a waiver of the right to appeal. The Environmental Court shall proceed to determine such petition as expeditiously as the ends of justice require. The filing of the petition shall not stay enforcement of the decision of the Board, unless the Board or the Environmental Court orders a stay upon such terms as either deems proper. The Environmental Court may afHrm the decision of the Board; it may remand the case for further proceedings; or it may reverse the decision, in whole or in part, if substantial rights of the Adverse Party have been abridged because the Board's findings, inferences, conclusions, decisions, rulings, or orders are not supported by law or arc clearly arbitrary and capricious. (c) Standing of Campo Band . The Campo Band, acting by and tlirough the General Council, shall have standing to object to any final action or decision of CEPA and may appeal such final action or decision in the Environmental Court, subject to the provisions of this Section. § 302. Waiver of Immunity . The General Cou ncil hereby waives the sovereign immuni^ of CEPA for the express and sole purpose of allowing reviews of CEPA actions by the Environmental Court under §301, provided that any such appeal must be timely and properly filed, and provided further, that such waiver is made only to the extent necessary 11 155 1994) to subject CEPA to soil for the s<^c purpose of declaring and adjud^g rights and obligations under the enviroiunental codes and regulations of the Campo Band. This waiver ts stricUv Itmited. specWadlv does not waive CEPA's immunity from siiit for monetary damages, and specificaUy does not vralve the sovereign immunity of the General Council, the Campo Band, or anv olTicer. emplovcc. or agent thereof . § 303. Unlavrftil Acta . (a) It is prohibited (or anjr person: (1) Forcftly, or by bribe, threat, or other corrupt practice, to obstruct or impede the activities of CEPA and the Board; (2) To commit fraud, or knowingly to assist anoUier in the couimi^ion of fraud, with the intent to evade or defeat Trfcal environmental codes or regulations; or (3) With knowledge and intent, falsely to verify by written declaration any report, apfdication for permit, or any other document submitted to or requested by CEPA. (b) Any person who commits any of the above prohibited acts may l>c subject to criminal penalties and also be liable for any civil damages caused by the commission of such acts and may be excluded from the Reservation. (c) Any person ■w^o commits any of the above prohibited acts, or whose employees or agents in the course of their employment or agency commit any of the 12 156 above prohibited acts, may have its lights to engage in activities on the Reservaticm suspended or terminated. (d) Tlie damages and sanctions for violation of this Section may be enforced in the Enviromneotal Court by CEPA under such rules and procedures as CEPA may establish by regulation. 13 157 CMSPO BAND OF mSSICK INDIANS SOLED IIASIE MANRGEKEUr OODE OF 1990 i^ AHQiDED TEBRCnia 13, 1594 35-542 97-6 158 [P^xuary 1994] Tmr. VI S 601. E tifux.L»an ent Aqoricy . C^ft is hftretiy designated as the e nf oroement agency entznisted wiUi the duty and r«s^)onsibillty of ensuring the proper handling, treatment, ocnposting, and disposal of solid waste cm the Reservation and of eiisuring crmTHifinnp by all persons %d.th this Code. S 602. Duties. CS>A shall: (a) PTforcement of Oode. Enforce all pcxjvisixjns of this Oode and regulations adc^ited hereunder that pertain to the minijium standaztls for solid vaste handling, treatntent, ocnposting, and disposal, all for the protection of the public health and stifety and of land, air, and water. (b) Enforoeaaent of mi tigation measures. Enforce oanplianoe vd.th feasible mitigation meeisures identified within Erwironmental Znipact Statements prepared pursuant to NEPA. (c) Enforceiaent by other agencies. Request enforoement by federal, state, and local agencies of their re^>ective laws governing solid waste tiandling; treatzient, ocnposting, and di^xjsal. (d) Provide infarroation to General Comcil. Provide to the General Oouncil information that the General Council requests. (e) Dgvelogmertt. of pr tx i LM ie * . Develop, impleanent, and maintain inflection, enfaroenent, and training programs. (£) Recordkeeping . Keep and maintain records of its inspection, enforcement, and training programs. 38 159 [F^aruaxy 1S94] (g) Oonsultatlon with health agencies. Consult with appropriate health agencies concerning all actions involving solid waste handling, treatment, ooaaposting, and disposal. S 603. Pgrlodlc Review . me General Council sheai periodically review CEPA and its isplementation of the enforoement program. mis review may inclvicle the inspection by the General Council, or any perscn authorized by the General council, of all boolcs, records, acaoounts, and other documents of CEPA. If the General council finds tliat dPA is not adequately fulfilling its enforcement respcaisibilities, the General Council etiall notify ca>A of its intention to take rcBiiadial action if CEPA does not correct the problems Gpecifiea by the Geivral Cowmsil. S 604. FWff ?"^ TBTfP?- In onler to recover operating costs, CEPA may inpose reeisonable fees or taxes on each operator of a solid waste facility and solid waste transportation servicse. The fee or tax may be based on the \rfeight, volume, or type of solid waste received, handled, treated, c on p osted, or disposed of by any such operator, or on any other apprc^iriate biisis or coonbination thereof. (e) Notioe to Chairman of General Council . Within ten days before issuing an enforcement order that is not for an emergency; within five days after issuing an enforcement order for an emergency; and within fifteen days after discovering a violation of a Tribal law, regulation, or permit that is likely to result in an enforcement action, CEFA shcUJ. provide a written statement providing an explanation of and 39 160 [P^zuary 1994] in vlolatJ-Csi of hie facility permit; who oonstructs or operates a solid waste facility without a facility pemit; tiio tran^xurts solid waste in violation of his solid waste tran^soctatloi pecnit; Who transports solid waste without a solid waste tran^xirtation permit; who violates art/ requirements found tn the Caoaopo Band of Mission Indians Solid Haste Management Code of 1990 or the Canpo Bard of Mission Indians Tribal Environmental Policy Act of 1990; or who violates any standard adopted tsy CEPh far ti)& handling, treatJirsnt, oon^xjsting, or disposal of solid waste shall/ xjpan cxder of C£E>A, oease and desist any iinproper action, clean up any solid waste, abate the effects^ thereof, euid take any other remedial action directed by CEPA. Whenever CQ>A determinpff; that the construction or cperatics) of a solid waste facility or the transportation of solid waste is causing or threatening to cause a condition of Iiazard, pollution, ar nuisance due to the migration of hazardous waste or solid waste or for jury ottier reason, CEPA may require the operator of the solid waste facility or the solid waste tran^xarter to taXe corrective action necessary to abate any hazazrl, pollution, or nuiseinoe or to pr o t ect public liealth and safety and the environment. (b) Imminent threats; remadlal actions bv CEPA . If any of the circumstances set forth herelneUOove pose an imminent threat to life or health, C^A may expend any available monies to perform any cleanup, etbatement, etnd remedial work required. (c) Pftiredifll actions bv SSE&- If any of the circumstances set forth hereinabove do not pose an imminent threat to life or health, but C^A deems it necessary for tlie public health and seifety to 41 161 [Fetauaiy 1994] S 607. Ocuplianoe Sefaedule . CQ>A shall dsvelop a ocopluux» scdiedule for ar^ pemitted solid vastB Caclllty or solid vwsta transporter that violates CEPA's nlnlinum standards. ihe coopliance schadule ahall assure that diligent progress sball be made to taring tba solid wast* facility or solid vnste tran^jortsr into cxmplianoa with c^A's miniimmi statviards within a spe c i t ic period of time detezadned by CEPA. If the solid waste facility or solid waste tran^xarter is not in coenplianoe within the period epecified, ceka xnay revcdce, suspend, or nodify the pen&it until such tine as violations of the m^Tl■illllnn standards are renedied. S 608. Rgypcaticn. Suspensjgpr «^ M9^1fg in this Section shedJ. authorize the inspection or copying of any writii^ or thing that is privileged from disclosure by law car otherwise made confidential or protected as attorneys' viorOc product or otherwise. 45 163 [February 1994] ea^laining othsr evSdenoe, but shall not be sufficient in Itself to support a finding unless It would be admissible over objection in civil actions. (3) m reaching a decision, official notice nay be ta)cen, prior to sidanission of the case for decision, of any generally aooepted technical or sclentif io matter pertaining to solid waste management, and of any fact that may be judicitUlly notioad by the co ur ts of Callfocnia. Parties present at the hearing shsill be Infanned of matters to be noticed, and those natters shall be noted in the record. Any sudi party shjill be given a reasonable opportunity an request to refute the officially noticed matters by evideice or by vri'tten or oral presentation of authority. (h) Issuance of decision . Within thirty days after the case is suknitted for decision, the hearing panel shall issue its decision. Cases shall be denlrlad by concurrence of at least two monbers of the panel. "Ona decision shall be in writing and shall contain findings of fact, a deteminatlon of the issues presented, and the as s ess m e n t of costs and penalt^ies, if any. Oopies of the decision shall be sent to all parties and to the chedxman of the General Oouncil. (i) Reduction of penalty or reinstatement. A person whose permit hcis been revoked or suspended by CB?A may petition CEPA for reinstatement after a period of not less than one year has elapsed from the effective date of the revocation or suspension or from the date of the denial of a sinilar previous petition. If CEPA declines to taKe the action requested, the petlticmer, if he so requests, shall be afforded a hearing. 47 164 [Fleteuary 1994] dasi^natad fas: ineetiing 'the costs o£ reqwnses to env i ro ti i ua ntal eateroencles on the Reservation. (c) PwttQtles In miyiii-\ an to otJiar^ . Penalties uiv3er this section are in addition to, and do not si^ersade or limit, any and all other remedies, civil cor criminal. In any civil action h*-"«jht purstiant to this cods in which injunctive relief is sou^bt, it shall not be necessary to allege or prove at any stage of the proceeding that Irreparable daniage will ocxair should the injvmctive relief not be issued, or that the remedy at law is Inadequate, and any £oeb of injunctive relief Shall issue without sucb allegations and witlioat axii proof. 49 165 CKUPO BAND OF MZSSIJCN ZMDIANS C3)MFO ZNVIPOimENZAL VFCfTECrZCK AGENCY KBGUIAmcHS TTTLR I AGQKY IWCEDORES AS AMENECD MAY 31, 1994 166 (May 1994] Itart: 130. Adjudicatiions S130.01. ^fT'MCT'yllfltY- "Biis pare applies to actions or decisions in any oontested case. $130.02. ptd3licafc< f»T nf, y<A. shall receive amd consider public ooBoments on t)ie proposed settlanent of the enforoenent action. The notice requir>Qd under this Sectixxi BttaH invite pubaic odcment and shall state a date after vAxich such oaoDents will no longer be accepted. S130.03. Raoonsixai 'mrtaqn- (a) Within five (5) workiiig days after authorization or issujuioe, CEPA fihekll publish notice of all. acticxis or decisions in civil enforcement actions in a local paper of general circulation. (b) Upon written request frxam any affected person, the Doard shall reocvtsider any action or decision. (c) I3be %a:itten request for reconsideration shall include the affected person's name, address, and telephone nunftser; the action or decision for ^*^iicii the haaring is to be held; (3) a r^eferencse to the particular provlslariB oi tribal lav involved; and (4) a short and plitin statement of the issues anA m&trters eisserted. (d) e xyotU mitv to Present Evidenoe . Any affected person who lias rec^Wstad a hearing under Subsection (c) of this Sectioi ch&ll have the opportunity to respond and present evidence and argustent on all issues before the hearing panel. (e) Iftforaal F'lfp^PiVJPI- Unless prohibited by law, infona&l disposition may also be made of any contested case by stipulation, agreed eettleaaent, consent order, or default. (f) Record . The record before the heeuring panel in a contested case shall include: (1) all pleadings, motions, and interaadiate rulings or orders in the ceise; (2) evidence received by CCPA; (3) a statestant of natters officially noticed by CEPA; (4) questions and offers of proof, objections, and rulings thex«an presented ait tbe reccxisideration heauring; (5) proposed findings aixl exceptions; and (6) any decision, c^inion, or report by the Board of OotnmissionerB at the reconsideration hearing. (9) Reoordina or Transcription of nvtr^nj. Hearings shall be recorded or transcribed. A cxjpy of the entire record or any peurt thereof shaOl be furnished to any affected person upon written request therefor and payment of the costs thereof. (h) riarriimg of Ffact . rindings of fact shall be btead exclusively on the record, on evidence presented to the heauring panel, and on matterB officially noticed. U 168 [May 1994] in the record shall be oonsidezBd in the determination of the case. Documentary evidence may be recseived In the form of copies or excerpts or by inoorporation by raferenoe. (c) Sacii affected party shall have the right of cross- e^cattination of witnesses who testify and shall have the right to submit rebuttal evidenoe- (d) Ihe heax-ing peinel may take notice of judicially cxxrnizable facts and general, technical, or scisitific facts within its specialised knowledge. Parties shall be notified either before or during the liearing, or by reference in prelim-inn ry reports or otherwise, of the material so noticed, and tJiey eitall be afforded an opportunity to contest the facts so noticed. Ihe hearing panel may use its experience, technical cocQ^etenoe, and E^pecialized knowledge in the eveauation of the evidence presented to it. S130.06. Subpoenag ? W^'tnpg sses; Confaoipt . (a) StApoenas . After proper servloe of notice, the heaririq panel may: (1) Issue a subpoena upcn the z^equest of any party and a statement by the party of the general relevance and reasonable scope of the evidenoe sought; or (2) Issue a subpoena on its own motion. Subpoenas may be served outside the Reservation to the iryiYlmiiia extent allowable in oonfonnanoe with the requirements of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303, with respect to any activity or any consequence thereof occurring within the Reservation. (b) witness Fees; Costs of Proauctlon . Witnesses shall be paid the same fees and allowances in the same manner and under the same conditions as provided for witnesses in the courts of the State of California, provided , that CEPA shall fix the allcKranoe for meals and lodging. Such fees and 2dJ.owanoes and the cost of producing records required to be produced by subpoena shzill be paid by the party requesting the issu«u>ce of the sut^oena. CEPA shall pay the fees and allowances and the costs of producing records of any witnesses issued a subpoena by CEPA. (c) Brt f c g oaBent of S ub uoe na . If an individual fails to obey a subpoena or obeys a subpoena but refuses to testify when requested oonoemii^ any matter under exaaination or investigation at the hezuring, the party that requested the subpoena may petition the EnvircaimBntal Court for enforcement of the subpoena. The petition shall be aooanpanied fcy a copy of tlve subpoena and prtx>f of service, ^^all set forth the specific manner in which the subpoena has not been oanfilied with, and shall ask the Environmental c»urt to issue an order to conpel the witness to appeeur and 16 169 [May 1994] Fare 140. Revocartlon. SusoenslCTi. or wodifira ifcloai of Pegmits §140.01. Grounds for Suspension. Rgvo catlon. 07- T*^^^^"«^^""- l^ter a hearing, any permit may bs suspended, modified, or revoked by CEPA tor cause, including but not limited to any or all of the following: (a) Any violation of any tern or oondition oontainad in the permit, tribal law or regulaticais prcsnulgated tijerexmder, or the trnderlylng lease or Izuid use permit. (to) Obtaining the permit by misrepresentation or failing to disclose fully aai relevant facts. (c) A change in any condition that requii«s either a teitporeury or permanent modification, reduction, or eliMnation of the permitted operation to bring it into oonplianoe witli the teriss or conditions of the permit, tribeO. law or regulations pro mu l g ated thereunder, or the underlying lease or land use permit. §140.02. statement of Charges . A hearing to determine whether a peanaiit should be revoked, suspended, or modified may be initiated by CEPA by filing a written Statement of Charges that sets forth the acts or amissions with which the permittee is ciieirged and specifies the terms, laws, conditions, rules, or regulations that the permittee is alleged to have violated. The Statenent of Qiazges and all aocompanyiiTj documents shaai be delivered personally or by certified or registered mail, return receipt requested, to the permittee. §140.03. Notice of Hearing . The Statement of Charges sliall be aoooiii?)anied by a notice advising the permittee of a date for a hearing, which hearing shzai be held no earlier than twenty days (20) and no later than fo^ty-five (45) days frtra CEPA's mailing or personal delivery of the Statement of Charges. The Notice shall inform the permittee that he or she has the ri^t to inspect and copy documents relative to the Statement of Charges. S140.04. Wotloe of Defense . (a) Within fifteen days (15) after service, the permittee may deliver to CEPA a Notice of Defense in which he or she may object to the Statement of Charges upon the ground that the allegations contained in the Statement of Charges are untrue, that it does not state acts or aaissxons 18 170 [May 1994 J is Less tJhan ISO nlles trcm his place ot residerxse, except that the hearing panel, i;¥on affidavit of ary party showing that the testimony of saich witness ie material and neoessary, nay endorse on the subpoena an order requiring the attendance of such witness. Fees and mileage shall be paid by the party at whose request the witness is subpoenaed. {140.07. Evldenoe a nd Witnesses. (a) Oml evidence shall be tiJcen only on oath or affirmation. Each party shall hove the right to call and examine witnesses, to introduoe exhibits, to cross-examine opposing witnesses on any loatter relevant to the issues even though that laatter was not covered in the direct examination, to ijipaadlx any witness regardless of whlcfti party first called him to testify, and to r^ut the evidence against hln. Any party who does not testify in his own b^ialf loay be called and evmnlnftd as If under cross- examination. (b) The hearing need not be conduct-etl aooording to the tecimlcal rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on vftilch responsible persons may rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule that ni^it ma)g presented, and the assessment of costs and penalties, if any. Copies of the decision shall be sent to aai parties and to the Chainnan of the General Council. Within five (5) working days «ifter issuance of any order or decision by the hearing panel, CEPA shall publish notice of the action in a local paper of general circulation. §140.09. REPTOcation of Permit . CEPA shall not revoke any permit until the pezmittee has exercised or waived the right to appeal to 20 171 [May 1994] Fart: 150. ,^^«^^rH^l7 t jbvjw of O Tft Actions S15O.01. .Tt»rt1rTA Board of Caamissioners or the BTvironmental Court as provided in such laws. Hie OEPA Bo2u?d of OcBauissioners or the environmental Court may, for good ca u is^ shcMn, order a stay upon socb t-^rnw as either deests proper. ilSO.oe. RaooTd on JftfTTWl- Hithin thirty (30) days after aervioa of the petition, or %fithin such further tline as the EnvironmBntal Court aay allav, CEPk shall tranaiit to the Environmental Court the original or a certified copy of the entire record of the proceeding under review, or such portions of the rec o rd as are requested by the parties. Any pariry unreasonably refusing to limit the record nay be taxed by the dvironisntal 22 172 [May 1994] orjuginal judges shall be appoixtted for a term of two (2) yeeurs, one for a term of thiraa (3) years, and one Cor a t«m of four (4) ya£urs. (C) Vacancies * a vacancy on the Environmental Oourt, howsoever caused, will be filled by the eippointiiient procedure set forth in this Section, provided that smy appointanent that does not begin coincident with the staggered terms will be shortened as neoesseury to maintain the staggered terms. (d) Renoval . Judges shall serve the entire length of tern and shall be removed frcm office only for good cavise. conmiseion of criiDes, misdeiDeanors, or malfeasance in office oonstitutes good cause for removal. (e) Oonfllcts of Interests . A judge of the E^ivironBental court nay not participate in decisions relating to the governance and management of CEPA if t^ie judge has a direct finamcial interest in the person or activity being regulated. Tribal nenibership does not preclude piirticipation in decisions involving activities on or relating to property owned by the Band. 24 173 EXHIBIT 4 TITLE XVi ZUNI BUSINESS CODE CHAFTCR 1. GENERAL PROVISIONS 516-1-1. Scope and Intent . It Is the purpose of the Zuni Business Code to establish procedures and requirements consistent with Federal laws and regulations to eovern the conduct of business on the Zunl Reservation. It is specifically Intended to control and regulate the activities of non-Zunls and non-residonts of the Reservation In their dealing with the Zunl Reservation and the people living thereon. {t6-1-2. Derinitloos Applicable to the Zuni Buslneas Code . (1 ) "Conmilttee* shall mean the Zunl License Committee appointed as ' provided herein. (2J "Established Business" shall mean a business set up at a pemanant location with an approved business lease. (3) "Itinerant Business" shal) mean a business of a person who travels from place to place. (*) "License" shall nean a formal permission to carry out a business authorized under this Business Code. A license shall be a revocable, nontransferable privilege to do a specified thing. (5) "License Clerk" shall mean the Cleric of t»Hs Zunl License Committee. (6) "Person" shall include individuals, groups of individuals, firms, partnerships and other associations, whether Incorporated or not. (7) "Surety bond" shall mean a written undertaking by one or more persons or companies acceptable to the Comilttce whereby such person or companies obligate themselves to be liable for another's debts, defaults or obligations. No surety bond shall be acceptable under this Code unless the sureties thereto consent in writing to the jurisdiction of the Tribe and its Tribal Courts for all purposes related to enforcing the obligations created therein. 174 (8) "Imitation Zuni Jewelry" shall aean any jewelry or prcclous-isctal ware which Is not in fact made t»y Zvnx Indians, and which In any way rescnbloe or Is represented to resemble jewelry of Zuni manuracturej or any Indian Arts or Crafts which according to standards established by the Zuni Tribe or the standard prevalent among Zuni crartsmon is imitation, ot poor quality or spurious. Sl6-1-3> Enfor c caent . (1) Jurisdiction over any act or failure to act declared herein to be a criminal offense shall be exercised by the Courts of the Zuni Tribe as in the case of other criminal offenses. (2) The Courts of the Zuni Tribe shall have authority to enforce the provisions of this Business Code by injunction or otherwise in any civil proceeding maintained in the name of tJie Tribe or otherwise. (3) Cancellation of any license or other privilege granted under this Business Code shall be handled In accordance with Chapter 3 of the Zuni Code of Creditors Rigtits and Ressjonsibilitiea. CHAPTER^ 2. LICQiSING OF BOSINESSES S16-2-1. Zuni License Committee . (1) The Zuni License committee (Committee) s^iall be responsible for reviewing and approving or rejecting all applications for' business licenses, for issuing and renewing business licenses, and for investigating abuses or violations of this Business Bude or licenses issued hereunder and recommending and prosecuting proceedings to cancel business licenses. (2) The Committee may adopt rules and regulations not inconsistent with this Business Code to govern the procedure for issuance of business licenses, the terms and conditions applicable to business licensees, record keeping and inspection requirements for licensees, and other matters reasonably related to the regulation and control oi" businesses on the Reservation. Such rules and regulations shall be subject to the approval of the Tribal Council and the Governor, and upon approval shal] have the force of law on the zuni Reservation. (3) The Clerk of the Zuni License Committee (License Clerk) sbal] receive applications for business licenses, keep records and files as directed by the Committee and perform such other functions relating to this Buiiiness Code as the Committee or the Tribal Council .-shall direct. (orrowed . , (2) The name of the lender of any borrowed capital , the [ date due, the rate of interest to be paid, and the i names of any endorsers and security. (3) A copy of any contract or trade agreement whether oral ; or written with creditors of financing individuals or institutions, Including any stipulations whereby financing fees are to be paid. 177 516-2-5. Established Business Llceosc . (1) Every person otherwise subject to the licensing requirements of this Business Code who maintains an established business as that tern Is defined herein shall be required to have an Established Business License. (2) Application for an Established Business License shall be on a form provided by the Comnlttee and shall fully provide all of the inforfiation requested thereon. 516-2-6. Itinerant BusAdcss License . (1) Every person otherwise subject to the licensing requirements of this Business Code who carries on an itinerant business as that term is defined herein shall be required to have an Itinerant business License. (2) Application for an Itinerant Business License shall be on a fom provided by the Connlttee and shall fully provide all of the information requested thereon. 516-2-7. ContractoT-s License . (1) Every person who engages In building or construction contracting for another shall be required to have a Contractors License specifying the type of work authorized to be done (e.g. general contr-actlng or electrical or plumbing, etc.). (2) Application for a Contractors License shall be on a form provided by the Comniittec and shall fulJy provide all of Ltie information requested thereon. (3) In addition to deatonstratlng proof of training or competence as a condition to receiving a Contractors License, any person receiving .1 Contractors License, any person receiving a Contractors License shall be subject to any llnitations as to type of work to be pei-fotTned indicated in the license. ('<) Any person receiving a Contraci.or-s License shall be required to conform all work f>crfortiied to not less than the mlninuiu New Mexico State, Federal or any Tribal codes, standards or regulations In Bxistence or which may be established to govern the type of work performed. 178 (5) All contractors or other Individuals subject to the requirements or Obtaining a Contractors License shall, berore any work is coimnenccd, obtain a surety bond m amount equal to tbe contract price, for each separate contract to be perrormed, and condltlcnied for the faltliTul performance of the contract ana prompt payment for materials furnished and Jabor performed under the contract. Such bond shall run to the owner and to any person who has furnished labor or inaterlals and nut been paid within forty ('lO) days, and such persons shall have a direct right of action against the sureties on the bond for enforceanent of payment or completion of the project. Such bond shall be exhibited to the Committee or any Interested person upon demand . $16-2-8. Fees and Bondte . (1) The Committee, with the approval of the Tribal Council and Governor, shall establish a schedule of fees to be paid for the issuance and renewal of business Jlnensea. (2) The schedule of license fees may, but need not, provide for reduced fees for enrolled members of the zunl Tribe living on the Reservation. (3.) Applicatlcm for any license or for the renewal of any license shall be accompanied by a surety bond of two or more sureties acceptab) e to the Committee In amount to be specified by the Committee, and such bond shall be for the duration of the license and shall guarantee the licensee's faithful compliance with the terms and conditions of the license, with any rules and regulations adopted by the committee and the payment of any fines or penalties assessed against the licensee for any violation of this Business Code. (U) Payment of all fees and bonds requrled by this Business Code shall be in addition to einy required under the tenaa of Part 252 of Chapter 1 of Title 25 of the Code of Federal Regulations. 516-2-9- Licens e Peri od and Renewal of Licenses . <1) The license period for all licenses shall be one year. (2) Application for renewal uf any business license may be made not more than 90 nor Jess than 60 days prior to the expiration of the license, shall be made on a form to be supplied by the Committee, ami lihall be accompanied by all required fees and bonds. 179 516-2-10. Pwtlea of Liceoace . (1 ) All licenses issued hereunder shall be conspicuously displayed in all businesses having a fixed place of business on ttie Reservation and shall be carried in the possession of all licensees on the Reservation while conducting business. The Coomlttee may authorl:se the issuance of licensee identification badges to be displaced by Itinerant Business, Jewelry, Arts and Crafts, emd contractor licensees. (2) The person to whoa the license is xssutsd shall, for all purposes related to the business license, be responsible for the entire operation of the business and for the conduct of his officers, agenta and employees in relation tnereto, and shall file and keep current with the License Clerk a list of all sucli officers, agents and employees. (3) All licensees shall file annually with the License Clerk a financial statement prepared by a certified public accountant. CHAPTHR 3. FEDERAL TRADERS REGULATIONS 516-3-1. Adoption of Federal Regulations . (1) The rules and regulations found m Part 252 of Chapter 1 of Title 25 of the Code of Federal Regulations as published in the Federal Register, Volume UO, Number ^6tt, on Friday, August 29, 1975, together witti any subsequent additions to, corrections of, or deletions from said rules and regulations are hereby adopted by reference 'aa Uie law of the Zuni tribe. (2) Any such rules or regulations whlcti are expressly applicable only to some other Reservation or are expressly not applicable to the Ituni fieservatlon are not adopted hereby. 516-3-2. Requirements Cwulatlve . The requireaients of the Federal Regulations adopted herein shall apply in addition to and not in the place of the requirements established in this Business Code. $]6-3-3. Prohibited Acts; Eoforcewent . (1) It shall be a civil offense for any person toj (a) Fail to do any act required to be done by such Federal negulationoi or to (b) Do any act forbidden to be done by such Federal Regulations. 180 (2) The Tribal Courts shall have jurisdiction over such offenses and may, In addition, enforce the requlreaents of said Federal REgulations by injunction or uUierwise to a civil proceeding. (3) The Tribal Courts will not assiime crininal Jurisdiction over non-Indians for any criminal offenses defined as sucb by said Federal Regulations. CHAPTER «. AHTIQaiTIES Sl6-'i-1. Definitions . "Protected Places and Objects* shall include, but not be limited to the following: abandoned vllla^ sites; abandoned hotnesites, village sites or honesites not abandoned but located at places of sacred, historical or scientific interest; gravesltes, both ancient and recent; sacred springs, shrines and other sites, locations, or structures having past or present religious signlMcance; hideaway places for rellcjj or sacred objects, whether ancient or recent; relics, objects and/or artifacts of present or past religious, historical and/or scicntlfJc interest; geological formations or natural resources of sacred, historical or scientific Interest; any other place, structure, formation, object or thing of past or present sacred, historical or sciejitiflc interest lucated on the Zuni Heservation. 516_A_2. Prohibited Acta; Penalties . (1) It shall be a civil offense for any person knowingly to excavate upon or move, reeove, destroy. Injure, deface, or desecrate any protected place or object within the Zuni Reservation. In the ca»e of the disturbance of burial grounds, each disturbed graveslte stiall constitute a separate offense hereunder, in the case of abandoned villages, each separate horaeslte which is disturbed shall constitute a separate offense hereunder. In the case of the removal or attempted removal of any object, each such object shall constitute a separate offense hereunder. <2) The provisions of the preceding subsection shall not apply to any person or group of persons or institutionaJ activity which is specifically licensed by both the Zuni Tribe and the Federal Government to carry on historical or scientific exploration, excavation or activity, provided, however, that the exception provided herein shall apply only to such person, persons or institutional activity while acting within the specific limits of permission and authority to carry on such activities contained in their license. 181 (3) In addition to any other penalty imposed herein, the Tribal Court shall order that imy protected objects found in the possession of anyone In violation of this section be forfeited to the Zuni Tribe. (w of Policy . It Is hereby declared as a natter of tribal policy that the uso or the name "Zunl" In connection with the production or sale of Items of Indion Jewelry, arts or crafts is of special and unique Importance and value to the Zunl Tribe and Jts members. It Is hereby further declared that the best Interests of the Zuni tribe and its nembers require that the use of the name "Zuni" be limited to use by the Tribe and Its merabcro. 516-5-2. Prohibited Acts; Penalties . (1) It shall be a civil offense for any person to do any of the following acts within the exterior boundary of the Zuni Reaervationi (a) design, manufacture, sell, advertise or otherwise knowingly aid In the design, manufacture, aale, or promotion of imitation Zuni jewelry as defined in §16-1-2(8) herein: (b) have in his possession for disposition or saJe to Indiana i or others, any limitation Zuni Jewelry as defined in §16-1-2(8) herein; j Ic) transport into, from, or through the Zuni Reacrvation any limitation Zunl Jewelry, which Imitation Zunl Jewelry is intended for sole, or so transport any materials intended to be used in the design, manufacture, sale, or promotion of Imitation Zunl Jewelry; ! (d) use, without the consent of the registrant, any reproduction, i counterfeit, copy, or colorable imitation of a trndemar)< or service mark registered for use in connection with jewelry , or precious-metal ware under the laws of the State of New I Mexico, or of the United States; I (e) affix, apply, or annex, or use in connection with any jewelry or precious-raetal ware or any container or containers for l jewelry or precious-metal ware, a false designation of origin, ' or any false description or representation, including words, j desif^s, or other symbols tending falsely to describe or represent the same, or with knowledge of the falsity of ssuch designation of origin or description or representation cause or procure ! the same to be transported Into, from, or through the Zuni ' Indian Reservation; (f) employ, contract, offer to employ or contract, or otherwise ] • induce or attempt to induce any person to aid in any of the j activities described In (a), (b), (c), (d) or (e) above. j (2) In addition to any other remedy or penalty imposed hereunder, the Tribal Court shall order that any imitation Zunl Jewelry found or confiscated on the Reservation be forfeited to the zunl Tribe. i I I I 183 EXHIBITS MEMpEBSHIP 1 1 rum Cn — U atop alMll coMSist; oC Ctva mmboru mt laaBi: thr«« of vhom 2] Hie CbAicaui of Um Havajo Tribal Couscll sliall at. the time* required u&der BBbeectloas |cl ead le), noeitee'te a person qiutlifled by virtue of edueatioAt experience, or oTf Ice and vipon conclxaatLon by tbe Adrieoary rn— fttae oC the Havajo Tribal CouacLl, socb person shall be appoiated to serve • tooe as a Caaalssiontr. 31 the tenw of oCCice o£ Gosptissioners Shall be Eire years, i) A Cii— Issiotter shall be reosTed only Cor canso by the ChalxmaB oC the nsTajo Urihel Goaacil and opon raticicstioa by the Mvisory CosHtlttes of the aavajo Tribal Goimcil) providsd, that the person so reaoved nay then aiyeal the rssnval to the Snprese Court of the IfAVS^o nation. For the purposas of this sobsectlon> "cease" bmmas; la) Xncapacityt Fhysical or nental incapacity, where such incapacity extends or is espected to ejcbend longer than six Months. Cbl Honfeasancoi Failure to pertoni the duties of office, Iscludiag, but not Itsdtod tOr repeated and onexcused faLlors to attena the- — tteje aad other official Conetif>aB oc tjte OoaailsBion. let Bx parte TielstioBt Participation in ax parte conaultatione vith any re|e wuteti^re of a taxpayer «bo ie an appellant in a dispote before or witli the CaBad.asion. 184 (d) Csr^ala otlMZ acts: Aay act.kbAt is a falony In the ^urlsdietlon wiier* connit:t«a, or any act; imroiTlag Boral turpltuda that is a adaduHABor in tlie jarlBdicticia itfiar* coaolttf^. 5) A vaeaaey in Uia CamDissioa. Nbatlier cransad by daatli, roMoral or rvaigaatioB ahall be CilleA by aa iateriat aopointaeafc awde in aceerdaao* wl4:h thla aae^loa to eoaplete tbe vacatad tern. 6) Orgaaizational Chart (SB EUIBIir' "A"1 . Article V MgETIWQS a COMPBMSATIQg 1 ) TIM oCficial boai&eBB oC tlie OcMftlasloB «ball b* coaduetdd by a quenm oC ita aMMBbersi at meetings OuXj called by its presldlsg officer or a designee. Ia> A quorutt shall coB^ariae tbree C o— > i iw toners «nd any substantive actios at the OooMijieioa sbell be taken by tba aftiznetive vote of a B&)ority e{ the Cii— iiislonegs present., ibi JBKcept tax apecial or eaBrgency SMetings whicb nay be called wben and if circiMBstanceB waxxant it, at least one oEfieial regular bosineaa maetlog sball be held by the Comtiiwion during each calendar quarter, le) ProB time to tine, the Or— ilsnioner snail select their presiding officers and way delegate f>taer apeclflc outlBs aaiong tbaiMMlves. 185 EXHIBIT 6 June 7, 19 91 Mr. Frank Armajo BxecutLi.ve Dlract^or Wind mv«r Housing Auchorlty P.O. Box 327 Fort: Hashakle, tfyomlng 82514 --' JUN 1 1391 •'•''' WIND RIvEM nv^uSING AUTHORITY Dear Mr. Armajoi Enclosed la a copy of the Tribal Ordinance enacted in 1977 for Wind River Housing Authority. You will note that the final page is missing. Therefore, we have attached a copy of Article VIII and IX of the model trilsal ordinance found in 24 C.F.R. 905.201. We have highlighted the language that was included on the final page of the 1977 Ordinance. You will aleo note the Footnotee, which explain allowable modifications. If we may be of further aasistance, please contact Ms. Nancy Todea, Housing ManageiDont Specialist, at (303) 844-2861. Sincerely f Ann Roman Chief, HouGing Manogement Branch Office of Indian Programs Enclosure w in 186 -HTUAt OUDlNftHCE I 4 « o .,.,r r,, M.. a.irl.otttv vented In the Sl.osl.onc li.cll.in Trlb» Oi.d tho Arapnlmo "^^n^r Tr t« ' U 1 wl..d'..iv.r Uo.erv-tlon. Wy„„i..,. l>oth with govern 1..., bod I e. r»co9 ized by U.. United Stato- .nd the Secretary of tho Interior « -uthotited to »ct for tholr r«Bpeoti«- Trlboa. and tho authority of auch cjovornln, bodios to provide tor the health, nalety. moral* and welfare of tholr reopeetivo "J>>«'" the Joint nusli.oBB Council of the Rhoohono ai.J Arapahoe Trlboa haraby eotabllahc; a public body known as the Wind River llousinq M»thorlty (hocalnaftcr trferrnil to as tho Authority) and enacts this ordinance which shall establish tho piirposer., powers anil dutios of the Authority. In any suit, sction or proeoedlng involving the validity or enforcement of or reXatlno to any of it. co,^tract=, tho Authority shall be conclUBlvely deemod to have bocoim) cstabllDhed anO iu.thoriied to iranaact bUBlnesB •■.(! .xerclat- 1 ( « powers upon proot of the adoption of this ordinance. h r:opy of the ordlnanrc- duly certifloa by the Seetot«ry of the rouncll bUoII be artmloelhlc In evJdn.-cr in any auit, action ur procecdinif. ABTICUE 1 D ECLARATIO N OF NE BU It is hereby doclarndt 1. That there exist on the wind Plver neservation inRnnitary, unsafe, and overcrowded dwelling aocommodationac that there in a ahortaqe oE decent, safe and sanitary dwelling accoamodatlona available at rents or prices which persons of low income can sffordi and that such shortage forces such )>«*r90nii to occupy insanitary, unsafe and overcrowded dwelling acconmodatf onai 2. Tliat tliese conditions cause an increase Jn and spread of disoase and crime and constitute a menace to health, safety, morals and welfarci nntl rhat t>ioso conditions noeocsitate oxcet^sivc and disproi'tor tiunst* oxpenrtltnrcs of pviblic Cundu for crlnn- |>reventlon and punishmnnt, public health and safety pro- tection, firn and accident provontion and other public nnrvicob and faciliticn: 3. Thai tl^e Bhortoiie ot dec«nt, sole und r..Ti of low Income cannol br rt;li«>vrd through the operation of private enterprise; 1. That the providing of decent, safe, and nanltary dwelling accomioodat i(>nr. tor persons: of low income aro pviblic uses and putf>one« for which money may be spent and private property acquired and are governmental functions of Tribal concwrni 5. That Tcsldontial construction activity and a supply of occept.iblr housing ore important factors to nonoral economic activity and that the undnr- taklngs author ir.od by tliis ordinance to aid the production of better huusinci and more desirable neighborhood and community dovolopmont at lower costs will make possible a more stable and larger volume of residential construction and housing supply which will assist materially in achieving Cull employmontt and 6. That the necessity in Om public interest for the previsions herein- after enacted Is hereby declared as a natter of legislative determination. ARTICLB II PUWPOSBS The Authority ahMll bo organized .-»fid operntod for the purpooea oft , 1. Remedying unsafe and insanitary housing conditions that ara ln)ur{oUS to the public hnalth, r.afety and mor-ila) 2. M !»..!• .. • 187 DEFIN I T1UN S Tl.c eollowlnq t-,r.ns . w.^rcvec us^d or refecr.-d Vo .n this orrtl,„,.,c«, ^.-oU l-we Che tollowing rost>ectlvc ttoai.ings. unloB. » diftereht mecinlng Clearly appears from th» eoutcxt! -ftrea of Operation - moai.r all areas wltliin tho juriedlctlon of the tribe. J, •t'''^'' Board" i»e*nB the noard o( CotwuiaBiomrre o' th« Authority, ,( *^^Aune\\" ilu>»n» the joint nuslt.ect Coi»ncll consiBtlnq of the Dusinnss Cooocil of tJtc SUoBhone TrSUo ond t)io nunlhoSB Council of tho Arapahoe Tribo. " Fcdaral Goveri«oent" inolodea Oio Uhited Statan of Miw^rlca, the neparVmnit of Housing and Ucb«n Davelopmcnt, or any other aqency or i nctrumcnCal ity corporate! or otherwise, of Iho United States of hRierlca. "Horecbuyer" txenrtv a pemonts) who hn« executed fi loBJv '.iiitablo mothod, Jnclvidlnn but not limited tr>: renval, sale of lndivldu.^1 iinitt In single or muJtifamlly str\>CMitcp undei convctntional couilominiure. or cooperative '^ales contracts or 1 cflso-pvirchrtr,^ arjrecmonts: loans; or suhsidizino of rrntale or charges) decent, safe an'' Svtnitary dwellings, apor tmentr,, or other living accoisraodnt ions fur person*", of low inconc. Such work or vindcrtok inroprriy and all tangible or intangible assets held or used in connection with the housing project. " Obi Igations " means any notes, bonds, intcrlum certificates, debentures, or othor forma of obligation issued by the Authority pursuant to this ordinance. " Obi iqne " Includes any holder of an obligation, agent or trustee for any holder of an obligation, or lessor demising to the Authority property used in connection with a project, or any assignee or assignees of such lessor' r- interest or any part thereof, and the Fodoral government when It is a partv to any contract with the Authority In respect to a housing project. " Persons of low income " means persons or families who cannot afford to pay enough to cause private enterprise in tlicJr locality to build an adequate supply of decent, safe and sanitary dwellings Cor their use. ARTICLE IV BOARD or COMKISSIONtR S 1. c managed by a Board of Conmlssionors coioposed of six persons, a. Two m.TQbors nf •!,. — •'•*^ "l^.jji^ o, memr/.iB t.i eiie anosnonc TriD*. __ ,- Af th^ B^nrd shall b« members of the Arapahoe Trib..' b. Two mewbers of the Bonr 3 -ne „lther Tribe. V::, ::re"- l< l^l ^olV. :ZU ..t be me.^ers of Cither Tribe. (J) The Board mewbars s^all be 188 EXHIBIT 7 I TITLE XXI I i ZUNI TRIBAL EafTEBPRISE BOARD OF DIRCCTOns CHAPTEH 1 ~ GEHEnAL PROVISIOWS I §21-1-1 Council Findings - The Zuni Tribal uonncll pursuant to its constitutional powers has created numerous tribal enterprises. These enterprises have, without exception, developed serious financial problems. The Zunl Tribal ' Council rinds that these problems are a direct result of inadequate oversight i of and direction to the employees of the various enterprises. The Zunl I Tribal Council does not have sufficient time or resources to adequately ' perform these policy making functions or to provide the necessary oversight. ' 521-1-2 Purpose - The purpose of this Title is to create a Board of Directors I with the power to make the necessary policy decisions for all of the Tribe's I enterprises. The Board of Directors shall exercise these powers wHh a | minimum of interference from the Zuni Tribal Council but be bound by an ' obligation to the people of the injeblo of Zunl to: I la) Provide meanlnsful employment to the people of the Pueblo of | Zuni( (b) Protect the resources and culture of the people of Zunl; I (c) Generate surplus revenues for the benefit of the Pueblo of Zunl; (d) Develope the reputation of Zuni Tribal Enterprises as financially sound buslneeses. §21-1-3 Creation of the Board of Directors - There la hereby created a five person Board of Directors to be known as the Zunl Tribal Enterprise Board of Directors and to have such powers as are set out in this Title. \ CHAPTER ^ — BOARD OF DIRECTOnS MEMDERSHIP I §21-2-1 Appointment of Board of Directors Members - The Zuni Tribal Council shall appoint the five members of the Zunl Tribal Enterprises Doard of Directors. A member nay be appointed for more than one tern. 521-2-2 Term of Office - The members of the Board of Directors shall servf! staggered thrf.e (3) year terms. Terms of office sha}l expire on the fjrst j day of the new year and new terms of office shall begin at the same time. One member of the initlaj Board of Directors shnJl have his/her term expire on January 1, 1982; two members of the initial Board of Directors shall have their terms expire on January 1, 1983; two members of the initial Board of Directors shall have their terms expire on January 1, i9Bii. 189 $21-2-3 Vacancy on Board of Plrectora - There shall be a vacancy on the Board of Directors when any of the following occurs: (a) There Is a death of a membar of the Board of Directors' (b) A inember of the Board of Directors resign;? voluntarDy; (c) A wember of the Board of Directors nlssenn three consecutive regular Board of Directors meetings and the remaining members of the Board of Directors by unanimous vote, including the vote of the Chairperson, detemine that the absent member no longer has the desire to act in the best interest of the Board of Directors and should be removed i (d) The tern of office for a aembcr of the Board of Directors has expired. §21-2-'t Filling Vacancies on the Board of Directors - Vacanele» on the Board of Directors shall be filled by action of the Zunl Tribal Council. A kperson appointed to fill an unexpired term on the Board of Directors shall be appointed for the remaining portion of that tern. 521-2-5 Eligibility for Membership - Any person, Zuiii or non-Zunl, resident or non-resident may be appointed to the Board of Directors If such person shows a willingness to further the purposes of this Title. 521-2-6 Ex-Offlcio Member - The Zunl Tribal Council may in its discretion appoint one ex-officio member of the Board of Directors. This inember may take part in any Board of Directors discissions In order to express the views of the Tribal Council. This member .uch surplus revenues; (f) To authorize the lending of enterprise money for cnterpriec purposes, to Invest and reinvest money and take and bold real and personal property as .security for the payment of funds so loaned or invested; 192 (g) To set all salaries for all enploye«a of all enterpriees; (h) To approve and authorize the sale, conveynace, mortgase, pledge, lease, exchange, transfer or other disposition of all or any part of the property or assets of any enterprise; (1) To approve and authorize the purchase, taking, receiving, leasing or other acquisition, owning, holding, Inproving, use or other dealing with real or personal property or other Interest therein, wherever situated when such property is an asset of an enterprise; (j) To authorize suit on behalf of any enterprise; (k) On behalf of any enterprise to make contracts and guarontces and Incur liabilities and borrow laoney at such rates of interest as it may detemine; (1) To exercise its powers or authorize such exercise within or without the reservation; (m) To delegate to any person or persons any of the powers of the Board of Directors. • ~ i CHAPTER 7 — LIMITS OF BOARD OF DIBECTORS POWEBS I §21_7-1 Conuninglins of Enterprise Funds - The Board of Directors may authorize the use of funds from more than one enterprise to be combined for a single purpose for the benefit of all enterprises so contributing. The Board of Directors shall not authorize the use of funds or assets of one enterprise to be used for the benefit of another enterprise or to have the assets Of onft enterprise generally coningled with the assets of any other enterprise. §21-7-2 Consent to Suit - The Board of Directors shall have the power to consent to suit against any enterprise. Skuch consent shall onJy create liability up to the lialts of the assets of the enterprise against which suit is authorized. Consent to suit against one enterprise shaJl not be , valid if the purpose of the consent was to obtain a benefit for another enterprise. This provision shall not be construed to allow suit against any enterprise, officer or employee thereof without an express consent to suit granted by the Board of Directors. No consent to suit shall be ! valid unless the consent is limited to suit in the Zuni Tribal Court. ^ CHAPTER 8 — BOARD DOTIBS ] §21-8-1 Reports to the Council - The Board of Director* shall prepare j and submit annual reports to the Tribal Council regarding the status of j each enterprise on December 15 of each year. ' 193 S21-8-2 Audit - The Board of Directors shall authorize an annual audit or other appropriate Tlnanclal report as to eacb of the enterprises and shall submit such reports to the Zunl Tribal Council. CHAPTER 9 — TnlBM> UABILITT {21_9_1 No Liability - No provision of the Title shall be read to authorize suit against the Zunl Tribe or any officer or employee therof. No provision of this Title shall be read to eapouer the Board of Directors to authorize suit against the Zunl Tribe or any officer thereof. CHAPTER 10 ~ UABILITT OF PIRBCTORS J21-10-1 No Liability - There shall be no liability against nny director for any action taken or not taken pursuant to the performance of their duties or the operation of any enterprise. CHAPTER 11 — EHTERPRISES GOVEBHED BY BOARD OF DIRECTOBS 521-11-1 Existing Enterprises - The Zunl Tribal Enterprise Board of Directors Is hereby given control over the following existing enterprises: (a) Zunl Candle Company; (b) Zuni Air Corporation; (c) Zuni Conservation Enterprise: (a) Zunl B.V. Campground; (e) Zuni Building Company; (f) Zunl Salt Lake E:nterprlse; (g) Zuni Rental Enterprise. 521-11-2 Hew Enterprises - The Zunl Tribal Diterprise Board of Directors shall have contro] over all new enterprises created pursuant to §21-6-1 (a) of thle Title. CHAPTER 12 — TRANSFER OF COHTWOL OVER EXISTIWG EHTERPRISES 521-12-1 Transition Period - It is recognized l-hat there will be a period of transition during which the existing enterprises must function and before the time when the Board of Directors has had tine to delegate powers of day to day operation to the enterprise managers. Until such time as the Board grants or removes any power from any enterprise personnel, such personnel shall continue to exercise such power previously given them by the Zun) Tribal Council. 194 121-12-2 Charter Issuance - The Board of Directors shall issue charters to the enterprises listed in "21-11-1. These charters shall be subject to ratiricatlon by the Zuni Tribal Council. Once ratified the enterprises shall be subject to the provisions of this Title and subject to the control or the Zunl Tribal Enterprise Board or Directors. $21-12-3 Revocation of Prior Council Actions - Any prior action of the Zunl Tribal Council in creating a Zunl Enterprise Board of Directors or similar body is hereby revoked. Any prior tribal action dealing with any tribal enterprise, wkhlch Is Inconsistent with this Title or which is inconsistent with any future Board of Directors action Is hereby declared to be superceded by this Title or by such future Board of Directors action and to the extent of such inconsistency such prior action is of no effect. 521-12-- Rejected Calk to Reverse the Santa Clara Pueblo Decision At Congress' direction, the United States Civil Rights Commission undertook an examination of tribal court enforcement of the Indian Civil Rights Act.'' Beginning in 1986, the Commission conducted numerous hearings and heard testimony from a wide variety of witnesses, including tribal judges, tribal council members, Indian law scholars. Bureau of Indian Affairs' officials, and United States Attorneys." The Commission collected additional information from field interviews, written statements from Indian tribes, correspondence, and responses to requests for information.'* In 1991, the Commission published its findings and recommendations in a report entitled "The Indian Civil Rights Act: A Report of the United States Conunission on Civil Rights, June 1991" ("Report"). The Report traced the evolution of tribal courts since the 1880s, and concluded that "[o]nly in the last 20 years have tfiese courts been permitted to develop."" The Commission frankly attributed the lack of development to "[sjhifts in Federal Indian policy,"'* and their recent development to the self-detemiinatioa policy and the congressional mandate that tribal courts " The Indian Civil Rights Act; A Report of the United States Commission on Civil Rights, June 1991 ("ICRA Report^. " liatl. " IjLatl-2. " Id. at 30. 203 enforce the ICRA." The Report recommended against the enactment of legislation that would reverse the Santa Clara Pueblo decision, stating that it would be a "further encroachment of tribal government sovereignty" which is "imwananted and inappropriate at this time in light of the Federal Government's poor record of support for the costs of insuring Indian civil rights."" Throughout the Report the Conunission observed that tribal courts have historically suffered from a lack of funding, training and resources." The Report also highlighted areas where tribal courts were experiencing difficulty as a result of inadequate training and resources. These areas included "[djefming the parameters of judicial review" particularly in actions brought against the tribal council," and the invocation of the defense of sovereign immunity.^' The Commission acknowledged that tribal governments should address these areas with fmancial support and with the encouragement of the federal government. For example, the Report suggested that the federal government could "play a positive role in encouraging the tribes to examine the extent to which they can enact statutory waivers of their sovereign immunity for adjudication of civil rights claims . . . ."^ Through the federal government's establishment of pilot projects, the Report proposed, tribal "lsLat31. " li at ii-iii. " 14 at 36, 41 (quoting statements reflecting inadequate funding of Uibal courts made by John Collier, the Commissioner of Indian Affairs in 1941 and Senator Daniel Inouye in 1988). » IsL at 51-63. ^' IjL at 63-67. ^ IsL at 67. 204 governments could "take the lead" in considering the enactment of limited waivers of sovereign immimity." Overall, the Commission recognized that tribal justice systems are in a period of " transition ."" and that the federal govenmient should permit Indian tribes, as sovereign nations, to strengthen and improve their tribal justice systems through the exercise of the powers of self- govemment without federal interference, "such as by way of imposing Federal court review."" The Commission also reconmiended that the federal government support the development of tribal justice systems by providing adequate resources, training and funding for their operation,^^ and encouraged Congress to go forward with legislative proposals that authorized funding of tribal courts.^^ In 1993, Congress took action to provide such support by enacting the Indian Tribal Justice Act, 25 U.S.C. §§ 3601 stSSQ- Rather than intrude on tribal sovereignty by providing for federal court review of tribal court decisions, the Act expresses strong support for the tribal judiciary and seeks to provide Indian tribes with the funding and resources essential to the further development of tribal justice systems. Congress' commitment to tribal self-govenunent is reflected in the Act's '■ declarations which state "Indian tribes possess the inherent authority to establish their own form of j ^* liL at ii (emphasis in original). " LLatSl. ^ LL at 51, 72-73. ^ Id. at 72-73. 205 government, including tribal justice systems" and that "tribal government involvement in and commitment to improving tribal justice systems is essentia] to the accomplishment of the goals of this Act."" The Act also declares that "Congress and Federal courts have repeatedly recognized tribal justice systems as the appropriate forums for the adjudication of disputes affecting personal and property rights" and "serve as important forums for ensuring the public health and safety and the political integrity of tribal governments."^ To promote the continued expansion and effective operation of tribal courts, the Act authorizes federal funding for inter alia "the employment of judicial personnel," "the development^ and maintenance of a law library and records management system, the "construction or renovation of facilities for tribal justice systems," and "the development, revision, and publication of tribal codes, rules of practice, rules of procedures, and standards of judicial performance and conduct."'" The Act also established the Office of Tribal Justice Support to provide technical and other assistance to tribal justice systems." Unfortunately, however, recent appropriations show that tribal courts continue to suffer from the lack of adequate resources.'^ " 25U.S.C. §360l(4)and(9). ^ 25 U.S.C. § 3601(5H6). 'o 25 U.S.C. § 3613 (bX2H7). " 25 U.S.C. §3611. '^ A principal purpose of the Indian Tribal Justice Act, Public Law 103-176, was to provide statutory authorization for funding for tribal court operations. Specifically, the Act authorized $58.4 million, with $50 million to be used for the basic operations of tribal judicial systems. However, since the enactment of the Indian Tribal Justice Act, funding for tribal courts has in fact declined. The amount expended for tribal judicial systems in FY 1996 was $10,443 206 In sum. Congress has to date responded to attacks on tribal courts by seeking to determine what could be done to provide assistance to these courts, and has rejected calls to abrogate their authority. Congressactions have been consistent with the recommendations of the United States Civil Rights Commission, which unlike tribal court critics, actually sought to determine the problems facing tribal courts before making its recommendations. Congress' judgment has been correct, as we show next. 2. Decisions of the Tribal Courts Show That Congress Was Correct and That Tribal Courts are the Proper Forum for The Adjudication of ICRA Claims There is no question that the exercise of tribal powers to improve the reservation economy and quality of life, and the growth of the tribal community have created a need for tribal statutory and common law to define the substantive law and protect the individual rights of residents of that community and participants in the reservation economy. This is a natural occurrence in the development of the tribal self-government. While the pace of this development has been unusually quick, the response of Indian tribes to these needs has, despite the limited resources available to do million, which was $4 million less than was expended in FY 1995. The lack of funding for tribal judicial systems has also been the subject of Congressional hearings, most recently in August of 1995, at which the Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, testified that the current lack of funding for tribal courts is a crisis and that "[a] collapse of the tribal court system for lack of resources would be a major judicial disaster, not just for the tribes and their courts, but for our whole system of civil and criminal justice." Statement of the Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, Oversight Hearing on the Indian Tri bal Justice Act. Senate Committee on Indian Affairs 103rd Congress, Second Session (August 2, 1995). 10 207 so, matched this pace. Indian tribes have responded to the expanded need for tribal statutory and common law through the enactment of codes by their legislative bodies and through the development of common law in the tribal courts. The reservation community - Indian and non-Indian - has responded to these developments by using the tribal courts to decide disputes in a broad variety of areas, including contract and tort claims." challenges to tribal tax laws," employment disputes," conservation " Pitts v. Earling . 22 Indian L. Rep. 6052 (C.S.&K. Ct. App., Dec. 5. 1994) (conUact for sale of undivided Indian trust and fee lands is not enforceable absent prior approval by Secretary of Interior); Puyaliup Nation Housing Authority v. Miles . 21 Indian L. Rep. 6049 (Puy. Ct. App., Dec. 9, 1991) (interpretmg housing lease); Greene v. Bourgeau . 21 Indian L. Rep. 6057 (Nez Perce Tr. Ct., Apr. 13, 1994) (under Nez Perce tradition there is no implied rental agreement for occupancy of plaintifTs trailer when the parties made no agreement for rent); Bauer v. Mashantucket Pequot Gaming F.nteiprise . 22 Indian L. Rep. 6145 (Mash. Peq. Ct. App., Oct. 24, 1994) (personal injury suit). ^ Mustang Fuel Corp.. et al. v. Chevenne-Arapaho Tax Comm'n et al. . 21 Indian L. Rep. 6058 (Chey.-Arap. Sup. Ct, Jan. 3, 1994) (Tribe has authority to tax extraction of natural resources on allotted Indian trust land by non-Indian company); Hercules. Inc. v. Skull Valley Band of Goshute Indians, et al. . 20 Indian L. Rep. 6025 (Goshute Tr. Ct., Mar. 25. 1993) (Tribe has authority to impose ad valorem tax on property held by non-Indian corporation). " Hoopa Valle v Indian Housing Authori ty v. Gerstner . 22 Indian L. Rep. 6002 (Hoopa Ct. App., Sept. 27, 1993) (affirming trial court's upholding TERO Commission's reinstatement of director of housing authority after a hearing); PC&M Constniction Co. v. Navajo Nation, et al. . 2 1 Indian L. Rep. 6016 (Nav. Sup. Ct, Nov. 16, 1993) (appeal of suit against company for failure to pay tribal minimum wage). 11 208 violations, '* and domestic relations and child custody matters." The use of the tribal courts to resolve these and other dispirtes reflects a growing confidence in the tribal judiciary within the Indian and non-Indian reservation community. Tliese cases also include actions against Indian tribes and tribal officials alleging that their conduct did not comport with the requirements of the Indian Civil Rights Act, or with procedural rights guaranteed under tribal law. The decisions in these cases address threshold issues, such as the application of the doctrine of judicial review, as well as the issue of whether such actions are barred by tribal sovereign inmiunity, and, when it is within the court's jurisdiction to do so, the merits of the underlying claim. Contrary to the claims made by the tribal opponents, these cases show that tribal courts are committed to protecting individual rights under federal and tribal law, and to effective enforcement of the Indian Civil Rights Act. We point out first that a niunber of these cases have required tribal courts to consider whether to apply the doctrine of judicial review. This is an issue of singular importance, the resolution of ^ Squaxin Island Indian Tribe v. Johns . 22 Indian L. Rep. 601 1 (Sq. I. Ct. App., Apr. 6, 1993) (violation of tribal fishing code); Naff v. Colville Confederated Tribes . 22 Indian L. Rep. 6032 (Colv. Ct. App., Jan. 26, 1995) (violations of tribal fish and wildlife code); Bowen v. Upper Skagit Indian Tribe . 21 Indian L. Rep. 6002 (U. Skag. Ct. App., Apr. 24, 1990) (conviction for fishing in closed area). " Miner v. Banlev . 22 Indian L. Rep. 6044 (Chy. R. Sx. Ct. App., Feb. 3, 1995) (child custody proceeding); Lulow v. Peterson. 22 Indian L. Rep. 6069 (C.S.&K. Tr. Ct., Mar. 21, 1995) (holding no cause of action for services rendered in relation to cohabitation without marriage); DuMarce v. Heminger . 20 Indian L. Rep. 6077 (N. Phis. Intertr. Ct. App., Sept. 25, 1992) (interpreting requirements of traditional adoption procedure). 12 209 which determines the role of the judiciary within the government, as is illustrated by the United States Supreme Courts historic decision in Marfaurv v. Madi«^n S U.S. (1 Cranch) 137 (1803). The reported tribal court decisions show that several different tribal courts have exercised judicial review of tribal council actions just since 1991." These decisions also demonstrate frequent consideration of the question whether the action SUbjudice is barred by sovereign immunity." When tribal agencies and officials assert immunity in an action brought under tribal law. the tribal constitution or the Indian Civil Rights Act, the tribal courts determine whether Congress or the Tribe has expressly waived tribal immunity from suit, or " Bums Paiute Indian Tribe v. Dick 22 Indian L. Rep. 6016 (Bums Paiute Ct. App., Feb. 14, 1994)(holding tribal exclusion order violates ICRAs due process provision); Colville Confederated Tribes v. Wilev. ei ai. 22 Indian L. Rep. 6059 (Colv. Ct. App.. Mar. 27, 1995); Hicis V- Cargrra. gt al. 22 Indian L. Rep. 6065 (Inter-Tribal Ct. App. of Nev., Jan. 30. 1995); Hudson v. Hoh Indian Tribe, d^/a the Hoh Tribal Business Comminee 21 Indian L. Rep. 6045 (Hoh Ct. App., May 28, 1992Xexercising review of tribal council's decision to discharge plaintiff); Shoshone Business Council v. .Skillines. 20 Indian L. Rep. 6007 (Shos. & Arap. Ct. App., Jan. 28, 1993)(exercising review of tribal business council's actions); Wells. Jr. et al. v. Blaine. Jr.. et al. . 19 Indian L. Rep. 6035, 6036-37 (N. Pins. Intertr. Ct App., Nov. 15, 1 99 1)( reviewing tribal council's removal of tribal couikH members). " S££ £.£^ Hudson V. Hoh Indian Tribe, d^/a/ the Hoh Tribal Business Committee . 21 Indian L. Rep. 6045, 6046-47 (Hoh Ct. App., May 28, 1992); Kakwitch v. Menominee Tribal EnleiEdSfiS. 21 ILR 61 12 (Men. Sup. Ct.. Aug. 9, 1994); Shoshone Business Counril v SJHIIinp ^ et al„ 20 Indian L. Rep. 6007 (Shos. & Arap. Ct. App., Jan. 28, 1993); Davis v. Keplin . 18 Indian L. Rep. 6148 (Turt. Mt. Tr. Ct.. Sept. 6, 1991); Sulcer v. Barren. Jr. . 17 Indian L. Rep. 6138, 6139 (C.B. Pot. Sup. Ct., Sept. 5, 1 990)(holding tribal business committee members immune from suit as long as they acted within the scope of their authority); Wells v. Blaine. Jr . 19 Indian L. Rep. 6035. 6036-37 (N. Phis. Inteitr. Ct. App., Nov. 15, 1991); Committee for Better Tribal Covprnment et al. v. Southern Ute Election Board . 17 Indian L. Rep. 6095 (S. Ute. Tr. Ct., Aug, 13, 1990); Francis v. Wilkinson. 20 Indian L. Rep. 6015 (N. Pins. Intertr. Ct. App., Jan. 21, 1993); Davis v. Turtle Mountain Housi ng Authority . 17 Indian L. Rep. 6035 (Turt. Mt. Tr. Ct., Feb. 13, 1990Xholding sovereign immunity does not bar declaratory judgment action brought against tribal housing authority). 13 210 expressly vested the court with jurisdiction over such actions/" Several decisions hold that immunity was waived in the tribal constitution or in the tribal code,'" while others find a waiver in the Indian Civil Rights Act/^ Where Indian tribes have enacted ordinances expressly waiving sovereign immunity, tribal courts have sought to give effect to both the purpose and policy of the ordinance. Thus, in Bauer *" Kakwitch v. Menominee Tribal Enterprises . 21 Indian L. Rep. 6112 (Men. Sup. Ct., Aug. 9, 1994)(holding that tribal constitution waived immunity of tribe and tribal enterprise with respect to actions brought under the tribal constitution, by-laws, ordinances and the Indian Civil Rights Act); Bordeaux v. Wilkinson . 21 Indian L. Rep. 6131, 6132 (Ft. Bert. Tr. Ct., Oct. 1, 1993)(holding tribal constitution waived immunity of tribal council members with respect to suits brought under ICRA); Davis V. Keplin . 18 Ind. L. Rep. 6148 (Turt. Mt. Tr. Ct., Sept. 6, 1991); sse alS2 Francis v. Wilkinson . 20 Indian L. Rep. 6015 (N. Pins. Intertr. Ct. App., Jan. 21, 1993)(holding tribal constitution waived sovereign immunity of tribal council from ICRA claims); rinn7a|p^ v. Allen . 17 Indian L. Rep. 6121, 6123-24 (Sho.-Ban. Tr. Ct., Sept. 17, 1990)(holding that sovereign immunity bars court from awarding back pay, but awarding injunctive relief); Murphy v. Standing Rock Sioux Election Commission . 17 Indian L. Rep. 6069, 6072-73 (St. Rk. Sx. Tr. Ct., Apr. 20, 1 990)(holding tribal election commission violated plaintiffs constitutional rights to due process and equal protection); O glala Sioux Tribal Personnel Board v. Red Shirt . 16 Indian L. Rep. 6052, 6053 (Ogl. Sx. Tr. Ct. App., Oct. 20, 1983)(holding sovereign immunity does not bar ICRA claim brought against tribal personnel board). ^'S££,£i£., Hudson v. Hoh Indian Tribe, d^/a the Hoh Tribal Business Committee . 21 Indian L. Rep. 6045, 6046-47 (Hoh Ct. App., May 28, 1992)(holding that tribal constitutional provision pennitting redress of grievances limited tribe's immunity for purposes of a wrongful termination challenge); Kakwitch v. Menominee Tribal Enterprises. 21 Indian L. Rep. 6112 (Men. Sup. Ct., Aug. 9, 1994); Bordeaux v. Wilkinson . 21 Indian L. Rep. 6131 (Ft. Bert. Tr. Ct., Oct. 1, 1993); Francis v. Wilkinson . 20 Indian L. Rep. 6015 (N. Pins, Intertr. Ct. App., Jan. 21, 1993); Murphy v. Standing Rock Sioux Election Commission . 17 Indian L. Rep. 6069 (St. Rk. Sx.Tr. Ct.,Apr. 20, 1990). *^ Sse, £=£.. Davis v. Keplin. 18 Indian L. Rep. 6148 (Turt. Mt. Tr. Ct., Sept. 6, 1991); Oglala Sioux Tribal Personne l Board v. Red Shirt, 16 Indian L. Rep. 6052 (Ogl. Sx. Tr. Ct. App., Oct. 20, 1983). 14 211 V. Mashantucket Pequot Gamine Enterprise." the tribal appellate court held that the tribal ordinance waived the tribal gaming entoprise's immunity from personal injury suits, and that the lower court had erred in dismissing plaintiffs claim on the ground that she had misnamed the tribal gaming enterprise in her complaint And in Raymond v. Nav^o Agricultural Products Industry .*^ the Supreme Court of the Naviyo Nation examined each of the four exemptions from sovereign immunity provided by die Navsyo Sovereign Immunity Act to determine whether they applied to the employment-related claims brought by plaintiff against a tribal entity. While holding that none of the exemptions applied, the Court explained that plaintiff should have pursued the administrative remedy provided under the Navajo Preference in Employment Act, which authorized an appeal to the tribal court These decisions also show that a number of the tribal courts have adopted as tribal law the remedy that the Supreme Court made available for claimed violations of federal law in Ex parte Young. 209 U.S. 123 (1908). The XfiUQS doctrine authorizes actions for prospective injunctive relief against government officials for claimed violations of federal law by declaring that actions of government ofiRcials that arc beyond the scope of their authority are not actions of the sovereign, and that therefore such actions are not baired by sovereign immunity. The Young doctrine has been applied by a number of tribal courts as a remedy for claimed violations of tribal law, thus avoiding « 22 Indian L. Rep. 6145 (Mash. Peq. Ct App., Oct 26. 1994). ** 22 Indian L. Rep. 6100 (Nav. Sup. Ct, July 20, 1995). IS 212 immunity in the same manner as do the federal courts.*' Applying the same doctrine, tribal courts have dismissed claims against tribal o£Bcials in the absence of allegations that the defendants acted beyond the scope of their authority,** and have recognized tribal immunity when an action brought against tribal o£Bcials is in reality an action against the sovereign.*^ In sum. the tribal courts have, through the development of tribal common law, made new remedies available to litigants whose claims would otherwise be barred by immunity. The individual rights claims that have been presented to and decided by the tribal courts address issues such as the right to equal protection of the law,*' the right to an opportunity to be *' S^, £^, Combrink v. Allen. 20 Indian L. Rep. 6029, 6030 (Ct. Ind. App., Tonkawa, Mar. 5, 1993)(holding sovereign immunity does not bar petition for mandamus directing president to comply with tribal law where president acted beyond the scope of her authority); Wells. Jr. v. Blaine. Jr.. et al. . 19 Indian L. Rep. 6035, 6037 (N. Phis. Intertr. Ct. App., Nov. 15, 1991)(holding that the doctrine of sovereign immunity does not bar actions against tribal officials who have acted outside the scope of their authority); accord Lovermi v. M iccosukee Tribe of Indians of Florida. 23 Indian L. Rep. 6090 (Mice. Tr. Ct, Apr. 17, 1996); Comminee for Better Tribal Government, et al. v. Southern Ute Election Board, et al. . 17 Indian L. Rep. 6095, 6097 (S. Ute Tr. Ct., Aug. 13, 1990). ** SfiS, £,g., Lovermi v. Miccosukee Tribe of Ind ians of Florida. 23 Indian L. Rep. 6090 (Mice. Tr. Ct., Apr. 17, 1996); Committee for Better Tribal Government, et al. v. Southern Ute Election Board, et al. . 17 Indian L. Rep. 6095, 6097 (S. Ute. Tr. Ct., Aug. 13, 1990); accord Sulcer V. Barrett. Jr. . 17 Indian L. Rep. 6138 (C.B. Pot. Sup. Ct., Sept. 5, 1990). *' S^ Sulcer V. Barrett. Jr.. 17 Indian L. Rep. 6138, 6139 (C.B. Pot. Sup. Ct., Sept. 5, 1990); accord Day v. Hopi Election Board, 16 Indian L. Rep. 6057, 6059 (Hopi Tr. Ct., Feb. 29, 1988, July 18, 1988)(holding that defendants were not liable for money damages because the doctrine of sovereign immunity bars any suit "that could potentially reach into the public treasury"). ** Bums Paiute Indian Tribe v. Dick, et al.. 22 Indian L. Rep. 6016 (Bums Paiute Ct. App., Feb. 14, 1994). 16 213 heard/' and to have adequate notice,'" privacy rights," as well as rights to a jury trial," speedy trial," and the right to counsel in criminal proceedings.** The tribal courts have also upheld the right of individuals to a hearing prior to significant governmental actions such as employment termination" and termination of parental rights* While these decisions cannot be evaluated simply *' In re the Welfare of P.P. . 22 Indian L. Rep. 6020 (Port Gam. S'Klallam Ct. App., Jan. 7, 1994) (parental rights may not be terminated without an adequate opportunity to be heard); In Re the Matter o f B.F.C.. a Minor Child . 21 Indian L. Rep. 6035, 6036 (Nook. Ct. App., Mar. 12, 1990Xtrial court's denial of motion for continuance reversed on grounds movant was not permitted to argue his motion). '" SfiC Chehalis Indi an Tribe v. Jansen . 22 Indian L. Rep. 6001 (Chel. Ct. App., Dec. 6, 1993)(personnel service of process adequate in lieu of service by certified mail); Baldv. Sr.. et al. V. Hoopa Valley Tribal Council. 22 Indian L. Rep. 6015 (Hoopa V. Ct. App., Mar. 16, 1 994)(publication of notice in local weekly newspaper of enrollment hearing adequate notice); Tulalip Housing Authority v. Moses . 22 Indian L. Rep. 6070 (Tul. Ct. App., May 25, 1994) (judgment vacated for improper service of summons and complaint on defendant); Hicks v. Harold. gt al,. 20 Indian L. Rep. 6091 (W. Nev. Intertr. Ct. App., May 13, 1994Xextraterritorial service of process permitted). " Tonasket v. CIPP . 20 Indian L. Rep. 6125 (Colv. Ad. Ct, Nov. 29, 1992Xright to privacy under tribjil law not violated by drug testing of tribal employee). " Sk Laramie v. Colville Confederated Tribes . 22 Indian L. Rep. 6072, 6074 (Colv. Ct App., May 1 , 1 995Xonce demanded in a criminal case a right to trial by jury cannot be waived by silence); Coleman v. Colville Confe derated Tribes . 20 Indian L. Rep. 6106 (Colv. Ct App., July 22, 1993) (defendant knowingly waived right to jury trial). " Suquamish I ndian Tribe v. Purser . 21 Indian L. Rep. 6090, 6092 (Suq. Ct App., Sept 18. 1992) (criminal case dismissed on grounds that new trial would violate defendant's right to speedy trial); Sisseton-Wa hpeton Dakota Nation v. Cloud . 21 Indian L. Rep. 61 15, 61 17 (N. Pins. Intertr. Ct App., Apr. 1 8, 1 994Xdeclaring right of criminal defendant to speedy trial); Yakima Indian Nation V. Settler . 20 Indian L. Rep. 6075 (Yak. Tr. Ct, June 25, I993Xcriminal case dismissed for failure to effect speedy trial). " Lununi Indian Nation v. Solomgn, 21 Indian L. Rep. 6085 (Lum. Ct App., Sept 21, 1992) (finding that appellant made knowing and conscious waiver of right to counsel). " Regan v. Finkbonner . 21 Indian L. Rep. 6026 (Nook. Ct App., Feb. 15, I990Xemployee has right to grievance hearing after termination at which she and her supervisors are present); 17 214 by looking at the judgment to see who won, they plainly show that tribal courts are committed to the protection of individual rights, and have no reluctance to rule against the tribal government." Tribal court decisions have also recognized that as tribal economic development creates more employment opportimities for tribal members and non-Indians, and brings more people to the reservation, the role of tribal law and of the tribal courts in protecting individual rights has become even more important.'* Furthermore, where tribal law and precedent have bound the court to dismiss em action on sovereign immunity grounds, two tribal courts have actually suggested that the tribal government take action to remedy the effects of the doctrine. Thus, in Lovermi . a wrongful termination case, the court recognized that the sovereign immunity defense constituted an "insurmountable obstacle" and that without a waiver "remedies Hudson V. Hoh Indian Tribe, d/b/a the Hoh Tribal Business Committee . 21 Indian L. Rep. 6045, 6046 (Hoh. Ct. App., May 28, 1 992Xtribal employee has right to challenge her termination in tribal court). ^ In the Matter of D.J. . 21 Indian L. Rep. 6083 (Hopi Child. Ct., Apr. 29, 1994)(due process requires adequate and timely petition by children's services agency prior to termination of parental rights); In the Matter of M.H. . 20 Indian L. Rep. 6040, 6042 (N. Pins. Intertr. Ct. App., Mar. 5, 1992)(parent has right to a hearing prior to removal of children). " SS£, £& Bums Paiute Tribe v. Dick, et al . 22 Indian L. Rep. 60 1 6, 60 1 7- 1 8 (Bums Paiute Ct. App., Feb. 14, 1994 (exclusion ordinance held overbroad and resulted in denial of equal protection); Schwab v. CTEC Construction . 21 Indian L. Rep. 6027, 6029 (Colv. Admin. Ct., Jan. 3, 1994) (termination of non-Indian held discriminatory). '» SSS Lovermi v. Miccosukee Tribe of India ns of Florida. 23 Indian L. Rep. 6090, 6901 (Mice. Tr. Ct., Apr. 17, 1996)(observing that the number of employment disputes in tribal court will continue to rise along with increasing economic development and employment opportunities for Indians and non-Indians). 18 215 may be unavailable for violations which are properly proven and shown."" While holding the claim barred by sovereign immunity because there was no waiver, the court suggested that the tribal government consider providing for judicial review of final decisions rendered by the tribal personnel board." Similarly, in Clement v. LeCompte . the tribal court recommended that the tribal legislature consider enacting an ordinance providing for a limited waiver of sovereign immunity." In sum, analysis of the reported tribal courts decisions shows that tribal courts are ready and willing to respond to claims of unfairness based on tribal law or the Indian Civil Rights Act. C. Congress Should Continue its Support for Tribal Courts and Should Continue to Reject Attempts to Secure Legislative Reversal of the Santa Clam Pueblo Decision Indian tribes have made remarkable changes in their economies and communities in the relatively short period that the Self-determination policy has been in effect. This has been accomplished largely through the exercise of the tribal powers confumed during the Self- determination era, and supported by Congress through enactments that implement the Self- determination policy, including the Indian Tribal Justice Act " liL at 6091 (internal citation and quotations omitted). *» IjL *' Clement v. LeCompte. 22 Indian L. Rep. 61 18 (Chy. R. Sx. Ct. App., Jan. 12, 1994). 19 216 As with any government, the exercise of these ]X)wers has in some instances generated conflicts between individuals and the tribal govenunent. Under settled law, these conflicts are subject to adjudication exclusively in the tribal courts, and as a result of the actions that have been brought, both the principle of judicial review and the applicability of immunity defenses to actions against Indian tribes and tribal officials are now the subject of a substantial tribal jurisprudence. The decisions in these cases show that tribal courts are committed to the protection of individual rights under both federal and tribal law. In sum, these decisions show that tribal courts are, as the Supreme Court held in Santa Clara Pueblo , "appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians." liL, 436 U.S. at 65 (citations omitted). As a result. Congress should continue to reject calls to reverse the Santa Clara Pueblo decision and should continue its support for tribal courts. Neither the rhetoric of tribal opponents, nor the duration of their attacks on tribal courts offer any reason to change the course that Congress has set. The sovereign immunity of Indian tribes protects the right of the tribes to craft their own remedies for claims against the tribe, both by legislative enactment and through the development of common law, and should not be modified. Rather than consider proposals to abrogate tribal immunity. Congress should continue its support of tribal courts and tribal self-government. DSO 1/8776- 1 20 217 COUNCIL OFHCE ^ Marienc Dawsen Council Mamb^r AILaiga OOB* (2061 e7e-S£9a Couly COe)3S«-«&]7 FAX: (20G) 738-2SS0 SCAM 7S»«6«> 311 Grand Avenu* HOOI*. C06I3S4-0823 Belngnam. WA 9&22S~<038 Septemoer ^'\ , 199o Members o-f Committee o-f Indian Affairs Subject: TRIBAL SOVEREIGN IMIMMUNITY I am here today to explain that -federal and state dollars »re -financing hostile, un-friendly tribal governments that are using sovereign immunity as a means to deny hundreds o-f thousands o-f citizens their due process and constitutional rights that Ars normally guaranteed all citizens o-f this great Nation, regardless o-f race or national heritage. We Are appealing to this body to provide -for us a level playing -field so we can protect our rights in a democratic formed court o-f law and hold tribal governaent accountable -for their tyranny. I reside in Ferndale, Washington within the exterior boundaries o-f the Lumai Reservation, Mtiich is considered a leader among self- governing tribes. This is an open reservation of an approximate equal percentage native and non— Indian residents where the land base excluding the tidelands is little over 13,000 acres. The treaty forming this reservation divided the land base into allotments so the individual native could sell their land when they saw fit and pursue the American Dream off the Reservation. In 1934 all the tribes of our nation were provided the option to reverse the federal government's goal of assimilation, through the Reorganization Act, and set up a separatist and socialistic form of government. The voting members of this reservation voted to continue assimi lation. But today, Lummi tribal council members refuse to honor the vote taken in 1934. Certai n counci 1 members have publ iclv stated they can not be h eld accountable to decisions made by prior counc i Is. The tribal council interferes with the buying and selling of land. Certain Lummi leaders refuse to pledge alliance to our nation's flag. Tribal cou nci 1 members state the Federal Supreme Court decisions on tribal 1 ssues don ' t apply to them because each reservat ion of the 557 total is un ique , so each tribe they say must 1 itiqate the issues at hand in order for it to be relevant to their reservation. It is tribal leadership found on this reservation and others which Are making life difficult, costly, unpleasant and impossible for tribal and non-tribal residents alike. The Lummi Law and Order have assaul ted Law abiding non— Indians on their beach front property, made false accusations against property owners, stopped non-Indian residents to search car trunks, chased small children from the beaches stating they were trespassing on tribal tide lands, threaten well dri 1 lers with confiscation of their equipment when they were complying with state Page 1 218 water law as it relates to -fee land and have allowed private non-Indian property to be used and abused by their members stating their treaty allows them use o-f private property. As well, a Lummi tribal member pulled out a resident's survey stakes which marked the mean high tide and boundary of his property. This -followed harassment by Lu mmi Law and Order wit_h a survey cre w which had been called out a-fter- a Whatcom County Judge ordered the survey to establish the jurisdiction boundary on a water-front con-f rontation. While the Lunwni Law and Order prevent non-Indians access to the 1,000 acre park land o-f Portage Island, purchased with state and -federal tax dollars, they allow their own members -free rein. Lummi Business Council, through their Law and Order, thr eatened con-f isc at ion o-f road equipment used by a subcontractor o-f the county unless the county and the contractor paid an employment tax to the tribe. This trib_al lead ership even went so -far as to try to eject a cand idate -for congress from the reservation when that candidate was on private property at personal invitation. This gentleman now serves as our congressman, Jack Metcalf. While an enter at your own risk sign should be hung at the entrances of this reservation, we have instead signs that state all entering are now subject to Lummi Laws. Lummi laws, which it must be added, are near impossible to access because tribes are not subject to the Freedom of Information Act or the Privacy Act. I have been contacted by prior tribal educators who have been shorted thousands of dollars in their teaching contracts. Unable to collect, they contacted the Interior Department and were told this kind of thing occurs all the time. This tribe as wel 1 as their leaders violate Whatcom County stop work orders for building and zoning violations for land in fee status. The former Humane Society director told me it was impossible to get closure from the tribe on a service contract as it concerns tribal dogs so neighbors Are faced with marauding and nuisance dogs. Is it true residents ask that Indian owned dogs have more rights than I do? Is it true people ask that this tribe can't be held accountable for their actions? Thjis tribal counc i 1 derai Is off reservation industry by refusing to meet, discuss or demonstrate good faith negotiation on tribal environmental concerns. Yet, the tribal council violated sound environm enta l practices by building a gas station in a wet land and has sabotaged two large residential developments by drilling commercial wells 100' from the association's wells when a 1,000' distance is recommended for noninterference. As one tribal member publicly stated, "Keeping non-Indian development out requires drastic action". As well, the Lummi Council Chair, Mr. Cagey stated to a news reporter, "We'd like to shut it down temporarily, Croads] not forever. We'd like to shut it down, keep all the non-Indians out". The hostile, unfriendly action of sabotaging non-Indian water aquifers began on the Lum«i Reservation in two non-Indian residential developments on two residential lots in 1993. One of the developments happens to be in the »re» I reside, Sandy Point. Two years after the initial tribal drilling of the well which included installation of a large storage tank and pump house surrounded Page 2 219 with a chain link -fence and razor wire, the tribe began to deplete our water to danserous levels. It was memorial day weekend o-f 1995 when we were le-ft with a two week supply o-f water -for -fire protection and domestic use to serve over 600 existins homes. Whi_le tribes ars pushing to use control o-f uti 1 i ties to stop non-India n development, across the nation tribes are also push ing to col l ect taxes in violation o-f Supreme Court cases 1 ike Montana, which states taxing o-f non-Indians must be consentual . Where tax issues are boiling and -festering on open reservations, tribal courts have the issue stuck in the tribal appeal process. The requirement to access tribal court be-fore going to state or -federal court is expensive and ine-f -feet ive. With S7S petitioners, I recently attempted to address the lesality o-f the Lummi Utility Tax Ordinance and it's lack o-f proper Dept. o-f Interior authorization in tribal court. The process began at the Lummi Sewer Board level Mhere the Lummi Indian Business Council's attorney rir. Johnsen, who dra-fted the tax ordinance, is also the attorney -for the sewer board Mhich collects the utility tax -from the ratepayers. At the sewer board appeal, this same attorney acted as hearing examiner. A-fter -failing at this level, I went to tribal court. The tribal judge requested a pre-court hearing Mith himsel-f, the sewer board attorney, Mr. Johnsen and aysel-f. The judge made a request, on behalf of the tribal council, that we try to settle out o* court. The tribal attorney, stated he would try to get Dept. o-f Interior approval. Knowing this tribe had failed to honor numerous contracts and agreements and knowing that siic months earlier, to no avail, the sewer board had directed dr. Johnsen to get confirmation that the tribe's tax ordinance had been approved, I declined to consider an out of court settlement. I wanted a court determination on the facts. Ihe tribal Judae then requested to speak with me privatelv. While b£ stated I had t good arnument. he stated it appeared he would have to dismiss my case on technicalities. I didn't have my signature notarized, so perhaps he thought, I'd want to reconsider a settlement. I explained that others were willing to bring the issue forward and that the second time loop holes could be addressed. I was also told I would not be able to represent the S7S petitioners and that I could only represent myself. I then documented what had occurred at the pre-court conference and asked for leniency from the court on technical issues because no one had been prejudiced or damaged by my omissions. In addition, I stated my presence was for personal appearances only and wanted it known that I was not consenting to the court having any jurisdiction over me. The clerk stamped my statement, took it to the judge, and gave me a copy. When the court hearing opened, I was berated by the judge for taking up the court's time, asked why I had not informed him earlier of <"y feelings on the court jurisdiction issue and was also asked to be fined by the tribal attorney, Mr. Johnsen. The Judge stated he was goina to 0tsmit# th« entire case sQ. S^ refusal £o submit tfi ttie court s juris diction. The legal technicalities had now become a non-issue. Page 3 220 The attorney -follOMed up by stating he had already spent thousands o-f dollars in preparing and addressing the court that the issue was sure to rise again, and that the Judge a-fter all was there not to determine the legality o^ the tax but only whether it was appropriate and cost e-f+ective -for the sewer board not to have addressed the issue o-f the tax's legality. Now, at no time was this a consideration I had raised. I wanted the -facts reviewed, the illegal nature o-f the tax was always the -focus along with the attorney s conflict of interest and conspiring by the tribal attorney. The Judge then agreed to continue the hearing, but told me I would be subject to the jurisdiction o-f the court. To make a long story short, the good argument, recognized privately by the judge was dismissed -for lack of suf-ficient evidence. It is quite obvious that where there is no separation of power, the tai l wags the dog as it concerns tribal court. The same tribal court story can be retold as it concerns two non- Indian property owners who tried to hold the tribe accountable -for their bad faith negotiations with the city o-f Bellingham. The tribe, in purchasing o-f-f reservation water -from the city o-f Bellingham, secured a contract a-fter tribal attorney, Mr. Johnsen, told the city council members that in addition to -federal law, their own Lummi tribal policies prevented then -from discriminating with water service. Yet, non-Indians are now being denied access to this o-f-f reservation water. This is occurring even though the water lines were paid with -federal tax dollars and run past their lots. Residents feel it unjust they are required to pay stand by fees for an available sewer connection, but can't receive it's compliment the water. In addition, a tribal member recently told me members will also be denied water unless they sign a contract stating they will never sell their land to non-Indians. Residents have even been threaten with litigation should we try to bring off-reservation water in -from the city of Ferndale. It is my opinion the Justice Department and the Department of Interior contribute to policies which violate better relations within re servations and sound federal policy. Interior funds helped to finance a 1981 Lummi Water Resource Planner who made specific recommendations to the tribe which included the question of whether the tribe really should get into the water perveyorship business. Jean C. Caldwell wrote the following, "Because of the amount of platted land out of trust ownership and because the tribe cannot regain control easily over the land, the Tribe needs to think very carefully before removing this constraint to development on the reservation .... Yet, if the tribe neglects water development, it is possible a non-tribal water district will form and continue development anyway... If tribal control over water development does not look like it can be maintained then the tribe should upgrade the aqua-culture water system independently from the domestic water system and address the negative option of limiting housing development and industrial growth on the reservation through water facilities". Besides the Interior Department financially supporting consultants like Caldwell who encourage tribal management of water and zoning to be used in ways which inhibit non-Indians from utilizing their land, our Justice Department supports segregated tribal schools. As a reservation resident who must pay illegal utility taxes to the tribe, 1 wondered how my son was going to be processed when he made application to the N.W. Indian College which is located on the Lummi. Page 4 221 Reservation. For tui t ion pu rposes, they wanted to consider him a non- resid ent bec ause o-f his race. Non-member Indians -from out o-f state get the lower resident rate as do in-state tribal residents. I appealed this school policy to the Justice Department and was told tribal "political status" permits them to use di -f -ferent lal treatment. Now I can understand differential treatment spelled out -for a tribe through property rights created in a treaty, but no where have I -found a treaty that obligates maintenance o-f segregated schools or the use of preferential rates -for Indians. Our federal pol icy against segregated schools and the use of preferential rates is being violated on reservat ions a cross the nation. If the education of Indian students is to be improved and all citizens treated fairly, education of Indian students must be integrated into the public school system where the federal and state dollars are held accountable. As well, i_£ the federal tax dol lar is going to be used to encourage the education of na tive re l iflion and culture, then the choice of any school should be al lowed to al 1 American parents. A C.E.O. could spend months negotiating a contract with a tribe and invest hundreds of thousands into his business only to learn that tribal councils don't adhere to agreements made by preceding councils. With out a strong economic base, Indian tribes are left with only two ways to get money, grants and the other in our area we call enviro blackmail or greenmail. Since the Lummi tribe is locatrrl on the shores of Puget Sound and has historically been a fishing tribe, one can well imagine the environmental road blocks that can be erected for industries trying to locate in our region. Yet, its a well known fact roadblocks disappear following the payment of large sums of money. Greenmail has become so common place across the United States on reservations that we are losing our once reliable sense of civic and moral outrage. Such compromising actions are not good for the tribal people and most definitely they are not good for business. Moral, cultural, and spiritual afflictions cant rely totally on politics but while other minorities flourish we must aSk ourselves why life for members on reservations is sub-standard in spite of the billions of dollars filtered through reservations. I will start by stating that there has been no other group of American citizens who have played the role of Peter Pan like the American Indians. The first essential step to promoting maturity and personal growth is to make our Native American groups personally responsible for their actions. This can only be done by eliminating the century old pattern of sovereign immunity to tribes. Such action, along with providing justice to non-Indians with direct access to state and federal courts, will be the beginning of a new and better age on reservat ions. Mhile federal policy prevents our financing socialistic, separatist governments abroad, there is irony to the situation that we breed and feed such system within our own borders. 1 respectful ly plead, if nothing is going to be done to reverse the trend of socialism and separatism inside our boarders, at least give reservation non- Indian residents an ability to defend themselves from tribal tyranny. It is imperative our constitutional and civil rights be protected. Our due process must not be set aside to benefit another citizen group. Page 5 ^R.RdO Q7 _ a 222 Today, along with the President, even the IRS is held accoun t ab le and can be sued_^ Tribal members living on reservations sre state citizens. They are eligible to run and hold any o-f-fice within our state and are entitled to all bene-fits without discrimination. There IS no reason concerns ini tiated by non-Indians shouldn't be direct ly addressed in state or -federal court. Non-Indian citizens deserve a judicial system with checks and balances. The en-forceabi 1 ty o-f promises and contracts made by tribal councils, along with the assurance o-f good faith negotiation will depend on eliminating sovereign immunity. Until Congress ensures tribal accountability, economic development on reservations will continue to be stunted or non-existent and tribal relationships with other governing bodies con-f rontat lonal . Page 6 223 Lower Elwha - Lummi WosHingion During the 1950s, the inbe was involved in a land ctaims suit j^ainst the United Slates, from which it was eventually awarded jBout $386,000 m 1970 The IGaUam Tnbe possesses guaranteed fishing rights as a result of the 1974 Bold! Decision, which allocated 50 percent ol the commercul salmon harvest to western Washington treaty tribes (the salmon runs had been largelv decimated between 1910 and 1926 by the construction of the Elwha and Glines Canvon dams) The Boldt I>cision also allows tribes some say over outside development activities which might leopardue the salmon runs. To this end, the tnbes have assumed an acnve role in the protection and enhancement of their natural resources Additionally, the 1992 Elwha River Ecosystem and Fishenes Restoration Act was designed to fully restore the nver s ecosvstem and native fishenes. The Lower Elwha Klallam Tribe operates a number of salmon hatcheries and mnains quite active in the regions commercial fishing mdustry, which pnmaniy targets salmon, crab, and other groundhsh and shellfish. GOVERNMENT The reservation is governed by the elected Lower Elwha Tnbal Community Council. The tribal constitution was adopted on May 6. 1968 The coiuatution was established under provisions of the 1934 IRA. The council elects three of its members to two-year terms on the tnbal business committee. ECONOMY CONSTRUCTION The tnbal Housmg Authority serves as the contractor for the construction of homes and other structures on the reservaDoiv In 1994, It constructed 43 homes and an office building; m 1995 another 20 homes were slated for construction. Significant numbers of tnbal members are employed m these protects. FISHERIES The tnbe operates a salmon hatchery, which presently employs seven tnbal members. Additionally, a number of tnbal members tmd employment m the region's commercial fishing industry Fishery development and enhancement projects have been funded in the past through grants from the BIA and other agencies. FORESTRY Though the region surrounding the reservation has traditionally been a maior timber-producmg area, this industry has a negligible economic impact on the Lpwer Elwha economv It has had a negative environmental impact, too: accordmg to the tnbe. over-harvesting of timber has muddied the Elwha f^ver and reduced viability for salmon runs. GAMING The tribe operates Saturday rught bmgo at the Tribal Center, an activitv which generates significant revenues and employs four tnbal members. Additionally, the tnbe recently signed a Class 111 gaming compact with the state of Washington. Casino development plans are now m the works. GOVERNMENT AS EMPLOYER The tnbal government employs approximately 60 people, mostiv through Its administrative, health, environmental, and fishenes programs SERVICES Tribally owned or affiliated businesses are limited to a smoke shop (which employs five) and the bmgo hall; several seasonal fireworks concessions are run by a number of families within the tnbe TOURISM AND RECREATION Though the reser\alion itself offers little in the wav of lacilities for visitors, nearbv Port .Angeles is a bustling tounst coininujurv' Outdoor activities are extremely popular in the area, these include fishing and boating, and in the spectacular Olympic National Park, hiking, camping, mountain climbmg, and skimg. INFRASTRUCTURE Scenic L' S Highway 101 offers the pnmary road access to the reservation .^Jearbv Port Angeles is served by commercial air, bus, rail, and truck tmes. Commercial truck imes also serve the reservation directly. Water transportation is widely available, as the reservanon sits at the mouth of the Elwha River, directly on the Strait of Juan de Fuca. COMMUNITY FACILITIES Electnoty is provided through the Klallam County Public Utility Distnct. The tnbe mamtains its own water system, while sewage services are provided through mdividual septic systems and dram fields. A tribal health clinic and vanous health programs are funded by the Indian Health Service under a federal contract. There is also a hospital m Port Angeles. The Tnbal Center houses administrative offices and other facilities such as the clinic. As for education facilities, children attend the local public schools. Lummi Reservation Federol reservation Lummi ond Nusack Whoicom County, Washingten Lummi Indian h4ation 2616 Kwino Rood Bellingham, WA 98226 (360)734-8180 ftw. 384-4737 > yn Total orwj ^ Alloit«J j*_i h4on-lndion "^ Total lobor force ^ High school groduote or higher ,' Bocheior's degree or higher '\^ Unemployment rote ^ Per copita income vj Total re»fvotioo populotion 3,164 LOCATION AND LAND STATUS The Lunuru Reservation i5 located m northwest Washington, five miles west of the citv of BeUin^am, 100 oules north of Seattle, and about 50 miles south of Vancouver. B-C. The reservation consists of a peninsula, which forms Lummi Bay on the west and Bellingham Bav on the east: a smaller peiunsuta; and a 1.000 acre island off the tip of the mam peninsula, named Portage Island. In total, the reservation area spans approximately 13,000 acres of upland area and 8.000 acres of tidelands About 9.700 acres are currently under Indian control, the maionty bcmg allotted. The Point Elliot Treaty of 1855 marked the creation of the Lummi Reservation. In 1873, by executive order, certain portioru of the treaty boundary were redrawn, which marginally enlarged the reservation. 224 Wasnmgfon CULTURE AND HISTORY Before the Treatv or Point Elliot and the subsequent establishment of the Lummi Reservation, the Lummi occupied the northern San |uan Islands and the adjacent mainland from Bellmgham Bav to Point Roberts. Salmon was the primary source of food Many tnbal ceremonies and beliefs are centered around salmon The western red cedar also played a significant role in the tnbe s matenal and spintual life, serving as buildmg material for sacred longhouses. uter\sils. and tools- During this tune, tnba! members made frequent visits to Hudson's Bay Company trading posts. The history of the tnbe during the 20th century is inexorably tied up with fishing and treaty fishing nghts. After the treaty, the federal government expected the tnbe to adopt agnculture as its primary means of subsistence. The Lummi, however, contmued to travel to off- reservation sites for fishing and gathering, particularly to their traditional reef-net locations. As it turned out, the tribe's reef-net fishmg territory placed it at the epicenter of the budding commemal salmon fishmg mdustry of the region. Gradually, organized commercial interests squeezed the Lummi out of the mdustry by appropnating their prime net locations. This development led to a lawsuit by the tribe during the 1890s, clamung a violation of its treaty-guaranteed fishing nghts. The government was finally ordered to pay $57,000 in 1970, a settlement refused by the Lummi as insultingly inadequate. In 1974, they participated in another lawsuit over treaty fishmg nghts, this time against the state of Washington. The suit culminated in a court-ordered allocation of the state's commeraal salmon harvest. In 1988. the tribe was involved in a federal ruling which held that mcome generated from a treaty nght is not subject to federal taxation. In 1969, the tribe developed an aquaoilture project on reservation tidelands for salmon to spawn and for oyster planting The salmon are released into the Noosack River; the oysters are planted in other reservation waters. In recent years, the Lummi have attempted to diversify their tnbal economy through investment in a gaming operation, seafood processmg plants, and the development of a maruia. Development of education facilities has been an important focus for the tribe dunng recent decades as well. For instance, the tribe has actively promoted a program m the tnbal school system to keep the language and other traditions alive and strong. GOVERNMENT The Lummi Nation operates under a constitution approved on Apnl 10, 1970. It is not organized under the 1934 Indian Reorganization Act. The governing body is the Tribal Busmess Council, which consists of 11 members elected to three-year staggered terms by the General Council. The General Council is composed of all enrolled adult members of the tnbe. The Business Council organizes on a yearly basis and elects a chairman, vice-chairman, secretary, and treasurer. ECONOMY AGRICULTURE AND UVESTOCK The region surrounding the reservation has traditionally supported a number of agncultural enterprises. Seasonal berry- pickmg is the mam source of agncultural employment amongst tribal members. FISHERIES Fishing remaiiu the primary source of pnxate employment on the reservation. The tribal fishmg fleet con ists of 302 skiffs, 105 gillnetters, and 30 purse seiners. At least 550 independent busmess people within reservation boundanes make their livmgs solelv through fishing Moreover, a tnballv owned seafooj''^; processing plant, the Lummi Processing Venture (leased to'i^ private contractor), employs about 70 persons during p^^^ season. Additionally, Fish Point Seafood is a pnvateiv owned processmg plant on the reservanon (owned by a Lummi member) which also employs as manv as 70 people at anv given hme Finally, the tnbe operates both a salmon and a shellfish hatchery which repopulate area waters FORESTRY The reservation forest consists mostly of scattered stands of Douglas fir, cedar, alder, maple, and hemlock. A BlA-funded reforestation program is replanting most of the unproductive forest lands at a rate of about 75 acres per year As for local employment in the timber industry, a Georg^a-Pacihc pulp mill m the area employs a number of Lummi Indians. GAMING The Lummi Casmo features poker and black|ack, as well as a GOVERNMENT AS EMPLOYER The Tribal Busmess Council is the largest single employer on the reservation, currently employing 236 people through its vanous departments. The Indian Health Service Clinic employs an additional 33 people, the Northwest Indian College faculty and staff consists of another approximately 145 full-time employees. MANUFACTURING The tribe operates no manufacturing concerns, though members find employment m area plants, which mclude a plastics manufacturer, an airplane parts plant, and two oil reftnenes. SERVICES Aside from the vanous sea food- re la ted businesses, there are several small businesses on the reservation. These mclude two native crafts and clothing stores featurmg baskets, wool blankets, and more. Also the tribe owns the Fisherman's Cove Complex, which consists of a restaurant, grocery store, marine repair, and a boat storage facility. TOURISM AND RECREATION The region of the reservation is extremely popular with visitors. given Its beautiful waters and forests which produce excellent fishmg, boating, hiking, and the like. The tnbe also hosts a number of special events such as the Lummi Stommish (Water Festival). This is held during the second or third week of June and features canoe races, dances, arts and crafts, and salmon bart>ecues. TRANSPORTATION The tribe maintains a significant fleet of fishing vessels (see Fishenes above) INFRASTRUCTURE Interstate 5 runs north-south two miles from reservation boundaries, while State Highway 540 crosses the reservation east-west. Commercial air, bus, and train service are all available in BeUingham, five miles from the reservation. Commercial truck lines serve the reservation directly. BeUingham also features a modem deep-water harbor. COMMUNITY FACILITIES Electricity is provided the reservation through Puget Power of Washington. Gas service is provided by Cascade Natural Gas Company. The reservation gets its water pnmanly from 586 225 ^^^u/rrvrru/o \JM/x^ Appendix: The Point Elliott (Muckilteo) Treaty TREATY WITH THE DWAMISII ic. INDIANS. Jan. 22, 1855. TREATIES. Treaty htlteeen the Uniltd Slain tmd the Dtedmith, Stt^miii, and other allifd and tubordinnle TriUs of Indiont in Watliington Territory. Con- eliideil at Point Elliolt, ll'at/iinijton Territory, January 22. 18'>.i. Rati' fed by the Seiiate. March R. 1850. Proclaimed by the President of tJit United States, April 11, 1859. JAMES BUCHANAN, PRK.SIDENT OF THE UNITED STATES, TO ALL ASD BINCULAK TO WDOSI TaCSK rBEBOTS tnALL COME, OR£«TWG : J»a. M. 1«U. fntaVlte- WiiFHEAS K treaty w«s made und concluded fit MiickUte-oh, or Point EHioli, in tlie Territory of Wnshinyton, the twenly-second diiy of January, one tliousnnd eijrht hundred and fifty-fiTe, by Isiiac I. Sicven*. governor and fupcrintcndent of Indian affiiira for the said Territory, on llie part of tlie Unilud Slnte^ and the hereinafter-named chiefs hmdmen, and dele- f^xtes of the Dwiniish, Suqudmi.hinglon. on behalf of raid tribe* and duly nuthorized by lliein ; which treaty i» in the wordi and Ogure* following to wil: Articles of a;r<>cment and conrention made and concluded at lluckl- Coetnotlii( (c-6h, or Point Ellioil, in the Territory of Washington, Ihm twenty-second I«*i«fc day of January, eighteen hundred and fifty-five, by I^^nac I. Steven*, gov- ernor and superintendent of Indian atTuint for the raid Territory, on the p.irt of the United Sliile», and llie undtr-isncd chiefii, henilmen and delc- gntcj of the Dndini-h, Suqudmi^h, Sk-tdhl-mish, Sam-iihmish, Smalh- ki«ini>li, Skn|ie-ithini-h, Si-kah-mish, Snoqudlmoo, Skal-wha-mish, N'Qiienll-m:i-mi>li, Sk-l;ih-le-jum, Stoluck-whd-mish, Sno-ll«/-mi^h, Skd- pil, Kik-i-dllu'', Swin-i-mi»h, Squin-dh-miih, Sah-ku-mehu, Noo-whd-ha, Nook-«vii-«hali-mi«h, Me—ee-qua-guilch, Cho-bah-dh-bish. and other allied and I'uboiilinale tribes and bands of Indians occupying certMin lnnd.1 iitu- atcd in .-.lid Territory of Washington, on behalf of uid trilMU, and duly authorized by them. AuTici.t: I. The faid tribes and band* of Indian* hereby cede, relin- ' C«MioBof UimIs j qui^h, :nul tonvey to tlie Ui.^ied Staici all their right, lille. and intere*l5j^ "' , ' in and to the land* and country occupied by them, bounded and dcKcribedv as follows : Commencing at a point on the eastern side of Admiralty Inlet, known as Point Pully, about midway between Commencement and Elliolt Days: Ihrnce eostwHrdly, running ak>ng the north line of land* hcrelofuru ceded to the United Slates by the Niiqually, Puynllup, and oilier Indians to the summit of the Cascade range of mountains ; tlicnce norihwnnlly, following the summit of said range to the 49lh par- allel of iiorlli laliiude; thence west, along raid parallel to the middle of the Gulf of Georgia ; thence through the middle of ;nid gulf and the main cluiniiel through the Cinal de Arro lo the Stmiu of Kuca,aiid crossing the came through thr middle of Admiralty Tnlet lo Soquamiih Hrad ; Ihenea •nulhwrMrrly, tlirou»h the prnin^uliv and following the divi.je briweea llood'a Cnniil and Adminilly Inlrt lo the pona)(e known as Wilke»' Poet- age; tlicnrc norihra«lw«rJly, and following the line of land 4 livrelofore r«-ded as aforr»«id lo J'oini .Soulhwonh, on the weatem side of AilmimUy Inlet, and ihvnrc round the fool of V«.«hon"» lalantl ea*twardly and Mnjlh- 66 Beaodahib VeL z. ^ UU. '"S 226 TEEATT WITH THE DWAMISH Ac. INDIANS. Jxk. M, 1855. CHAtwartllj to thr place of brpinninp, iiirludinf; >U the iilMiiiis comprised within »*iJ bounJnries. »n4 nil the risht, title, and interest of tlie »aid iriba* and Uindn to any Und.i wilhin the territory of the United Slates. BacrraUoB. AJtTiCLK II. T1i-«en, situated in the Lummi River at the point of sopnr^tion of the mouthi emptying respectively into n«Uinslu>m Uny and the Golf of Georgia. All which tracU shall be set apart, and m far as ncce.«»or7 aurveycd aiid marked W>ilie« nni to out for their exclu.tubli>liing thereon an agTicullui|«l and industrial school, as hcrcin-ifter mentioned nnd agreed, and with a view of ultimately drawing thereto and settling tlien.-on all the Indians living west of the Ca.en and unclaimed hinds. Provided, however, that they f linll not tnkc plicll-fish from any beds staked or cuhivateil by citizen.*. r.TmenibTih. AiiTlCLK VI. in consideration of the above ceision, the United Slates tuiUd buio*. agree to |i;iy to the s:iid tribes nnd bands the sum of one hundred and fifty ihoiisiiid dollars, in the following manner — thnl is to say : Kor the Cn.t year alter the mtificntion hereoC. fifteen thousand dollars ; for the next two years, twelve tiious.ind Uuthirs each yenr ; for the next three yeiirs, ten thousand dollars each ye;ir ; for the next four years, seven thousand five hundred dolkrs each year ; for the next five years, sir now to be thous;ind dollars each year; nnd for the last five years, four thousand applitd. l^^,J |,„„Jrcil uml fifty dollars eatli yi-ar. All which snid sums of money shall be n|i|ilieil to the ii-e .-Mi'l benefit of the said Indians under lli« direction ol tlie i're>idcnlof the United States, wlio may from lime to time dclrrmine at hisdivretion npon what hencficinl object* tn expend llic same ; and th<- Superinti-ndent of Indian Affair-, or olh^r proi>er offn-cr, shall each year inform the President of the wiilies of i^aid Indians in rr-|H-ct thereto. 1 I- -. ™.. Articlf. VII. The President mny hercaflrr. when in hi* opinion the l,» r..ii...e.l to interi-st« of the Tirritory •hnll require ami the welfare nf the faid Imlians l»c rcicnration, aicprQ^oK^I^ remove them frcm either or all of the special reservations lirrc- inlieforc mmlr. In the aaid gi-neral rtservniion, or such other •uitalile place within »ni.l Terriiorr as he mny ilrcin fit, on remum-riting ihcm for tlirir improvements and the exp<-n««-s of such removal, or mny con«oliilnte them with other friendly trilics or hand* ; and he mny <'iirther nt hi< di-rretion taii*c the n Imle or any piirtiiin of the land* hereby reserved, or of such other Innd ns may be felerleil in lielves of the privilege, and will hicale on the same as i jiermnnrnt hnmr on the unine term* nml mihiect to the same regiilnlion* a* arc pro- 227 -^ TREATY WITH THE DWASnSH 4tc. INDIANS. Jaw. 2J, 1835. TideU in llic nixih anirle of llie trmiy wiili ihe Oin.ili:i<, to fur a» ilie vimc V.,L i. p. loi*. IMJ be apiilicnlitv. Any »ulMianii;<, ami p romise lo l>o frifntl lTluii^w.. wilh all cititrns therrof, anH iht-y pl^lje ibcms^lvej t o commit no J<-pn .-V dalions on the propenv of >iicli riiiu-n.v .Sliould any one or more of them Tiolale t|ii< |iied:;c, ami (he fact Nr f:iii.>farioriIr proven before tlie Mfcnt, the property tnken tball be nlurm-d. or in dcfnult tlierrof, or if lo p.* for ^ injured or de^lmyed, c ompensation m.iT Iw mmle by the ;;ot i-ri!m«nt ou t dq>t«.l»iion». of I heir annuitit-a. Nor will ilicy m;ike w:ir on any oilier tribe exccjit ^^"^ '""!*• ill ulf-<]efrni-r, but will submit all malicm of differenre bitwecn llitm aixl v ^ ""P'' *^«- the other Indian.* to the ROTemmpni of the United Siate< or iu nynt for decision, and abide tl»ereby. And if any of ilie said Indian* commit dep- rtUalions on other Induini within U>e Territory the aame rule shall prernil as lliat pre»eribed in this article in cases of.dfpredaiions A;:uin«t citizen*. And the Miid tribe* a^rce not to sliclicr or conceal oflV-nders n^iaU the lo •nircoilw laws of the United Slates, but to deliver ihem up to the authorities for «*»»<>«»• iriaL Akticle X. Tbe abore trib^ and bnnds arc desirous to exclude from ^^^^Jj,'j" I" their re9er\-attons tbe use of ardent .«pirii<, and to prevent their people ohm' wh!. dnok from drinkinf the same, and therefore il i. provided that .iny Imlian be- sie., irUeoi ionjinj; to said tribe who is guilty of l.rin^in;; liquor into SJiid rcscr^a- ''*'""• tions, or wlio drinks liquor, may have his or her proportion of the annul. tics wilhbvU from liim or ber for such time as the President may deter* mine. Articls XI. The said tribes and bands ajree to free all shvc* now ,„ .'^.V^miwi held by tlicm ami not to purchase or acquire oihers hereafter. ^ «e.|ulr» other-. Article XII. The said tribes and baiiiU further nsn-e not lo trade at n^ ioir».l«iiut Vancouver's Inland or-eUewbere out of the dominions of the United States, ^^JjJ[ ^■"•' nor sliall forei^ Indians be permitted lo reside in their reservations with. out eoaicnl of ll>e luiperintendeni or a;:enl. Article XIII. To enable the ciid Indians to remove to and settle tis.noo sppro- upon their aforesaid reservation*, and to clear, fence, and brmk np a suf- P"»'«<1 '^ «»- fidenl quantity of bind for cultivation, the United Sl.iles furthtr a^ree to ^H^ ^„i^ l»j Ilie Mira of fifteen thousand dollars lu be laid out and expended under MtilcmeoL tbe direction of the PrrsidenI and in such m.-inncr as he shall approve. Article XIV. Tbe United Stales further a^rce to establish at the Vsited Sutas general a;;ency for the district of Pugeis Sound, within one year from l^d^'llj*"-^ the r»ti6catioa hereof, aod to support for a period of tweniT years, an ,ij, uutmetorf. a»rinj|nir9l ami indu«trinl school, to I* free lo rliildri'n of the 'aid trih.-« and band< in common with llio«e v( ilic uiln-r Irilx-- of -niil district, and to provide llir>aiuii.ilil>: rn-inii inr or iiislructun. nnd itl-o lo proviilc a Mniihy and carpenit-r's ^llo|•. :iii'l fumi-li ilii-ni with the iiiTr«ary tool", aiHl employ a l>L-«k nances thai app^ at Sandy Powt usooaiMM orTtan taid ■The CDunry, we ihuik. should be b*c*in| M up," Poiiie |4,d T>.e L«mm, |„d.,„ b„^,„^ Counol _ net the councy or iiaic — has junid^iion an the retcrvi- , i»n. tribal ofTK^u ^^ -^^ .t^^ OUT own iuihonry. ■ DearborU tauJ ' Jeff Monscn_ act.n, duecior of '. ^ Whajcom Councy PubK Works Department, taid the county lacks auihonry o*er mbal weib on the reaervaiwn and plans ao aciKM •famsi the *cU "County .urad«- ! Uo« B in doubi" he u>d The inbe bu.li it. »ell near the •Mociai^n well lo fom iurisd«- twnal Mues. .»ocu.wn member. I **t^ nioac ;ncJude who fcu Nrm mwA water ,n case the csmpetui. I a^Uj wind yp dfr.m| oft each Other or depkimg the lun.ied re- •owroe. ihcy aaid Sieve Hincftey. the Ecotofy De- P^tment i reponal water resowm •upervwor. agreed •Thaii no doubt.- he ukI "Vm •irprued ti took them (ibe Lun- M) ID kmi lo purtch the w«|| " Tnbal offoah contend ihc treaty and other fcdcraj laws |raai all wiler on the rocrvainn to the "TV wiier IS our reaource." Dcardorfl ia>d "li belonp to the But Hirachey said ti a uadear •bether Indian inbes own wdj "Her oo roervatiom. "T^n a de- batable topK." he said The sxaie recently granicd ihc S4«»y Pouti asaoaation enoitgh •^water to uppty IX mra bomn. Potiic a«j. TV ^-^^- rmi •«*e» abOTU no waur laen. bul lb« ootTMBuniry has 400 more uode- veioped tots- TV inbe opposes nsie microeo- oon. UKJiKJtni um «nocutxMi'i ad- A. ,^^^, aJtotmeni. and op- at Sandy Poini. poMa Bcw Oeardorfri Otsn/rc DE^ENS: ftuor win Mop a cyclone (wet urtMnNng i ntw \jim HMoniMi tiVw laicst ponoi contman btritMn tiui and nontribal nvmtan a Sandy Pom Hu^hPottt*. ■ SarKfy Point r*sltf«n( "TV waier a our reaour* li r '■'""•' » tbe tr*e," he Mid "W* f have lold ewytedy w are gout ' lo uae all the water we Vtieve be^ k»p to us' '■TV tribal wru could ihreaien - IV aanciatnn'i abiijiy to supp^ »*'<»e Aiture homca. Po«ik said ',. "T^ ■ Mr raaio amcern - »««Bg enough water lo serve ihoae »e art oMigaicd by law lo serve" ^V S4«L -We lU be noniioni^ ow welb »rry ctoKly when they UMn purapog- Hnidiey said iV well poacs m4By thorny <}uctiK)u not yet ao- t-mvi by law. or couru. If chal- 'eofed legalty. one pots>bk owi- owse a ihai Samty poini may have I » ainaJ -aier loe. Hirachey um) ~Sandv Po.ni know, thai »ery dcarty. ■ he »,^ But Hirachey laMJ he bel>c«es the •lie hat plenty of well waier to .«eei Ihc siiied utei of both (he iribe and assooaivn. poattbty pre- •enung the need to make the Lummi well « mi cmtt The tiBie u netifytng the tribe abowi some concerns wnh ih« well. mdudmi lu neantcss to a icpiK tartk. HirtrhcT uid Merk Jefferson the tribe i natu- ral resource director, said the L«m- mts wdl took (oi other plaoi on IV retervaiKNi lo dig more veil] lo meet the tnbe i gnnnng populamn and needs TV tescrvaiion h*. 3J4(J res.- denu - 31 percent Indian and 49 pcnaai non- Indian Census csii- ••les preset annual growth ai 2 pCltCBt "As «« have new howsuig needs. •«1I *| Mw w«ih." Jencraofl sMd. 235 © ® ® Service Area Map With Zoning y-cXJ^^-^^^'^'L^ '^ .■^ Z^ ,« '^' Courthouse .'..\j>'..yii. 311 Grand Avenue Sellingham, WA 98225-4030 Dear Ms. Dawson: This is a response to your letter dated July 6, 1995 to the Attorney General regarding federally funded segregated school gyetema on Indian reservations You raise a concern as Co whether federal funding of schools for Indian children on an Indian reservation is in violation of our federal desegregation policy. The answer is no. From the earliest daya of our Republic, the United States of America has recognized Indian tribes as domestic dependent nations, Cherokee Nation v. Georgia . 30 U.S. (5 Pet.) 1, 17 (1831), and our Conetitution recognized the self-government of Indian tribes in the Supremacy Clause affirmation of Indian treaties entered into under the Articles of Confederation, which governed our Nation from 1776 until 1789. In early Indian treaties, the United States undertook a duty to "protect" Indian tribes, establishing one of the base.q fn-r our Federal trviet i.e»ponslDility to Indian tribes. Accordingly, Indian people are not considered a "racial group, " but rather are considered to be members of domestic dependent nations with whom the United States has a special "political" relationehip. Therefore, the United States (€ag ) fund schools for Indian children on Indian reservations in accordance with the Constitution. In 1834, Congress reported that: "The education of the Indians is a subject of deep interest to them and to us." H.R. Rep. No. 474, 23rd Cong., 1st Sess . 20 (1834). Unfortunately, the United States education policy towards Indians was often laced with our cultural biases. For example, in 1838, the Commissioner of Indian Affairs reported: /? J X- U ^e a/v rn. o^"*"^^ 240 Honorable Marlene Dawson Page Two The principal lever by which Indians are to be lifted out of the mire of folly ... is education ... To teach a savage man to read . . is to throw a seed on a rock. . . . Manual-labor schools are what the Indian condition callB for. Comm'r Ind. Aff r. Ann. Rep., S.DOC. No. 1, 25th Cong., 3rd SesB . 450 (1838) . Given this attitude, and the many discriminatory ] policies applied to Indian people over the years, it is not Burprieing that the Handbook of Federal Indian Law explains: ' ...Indian education was characterized by a Senate subgommittee in 1969 as "A National Tragedy -- A j National Challenge," both because of its lack of < success in preventing high rates of illiteracy and dropping out, and because it ignored the needs and , culture of Indian people. I F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW (1962 ed.) at 678. | Today, the goal of Indian education ie to give Indian communities i greater control over the education of Indian children, so that these young people have an opportunity to succeed in their future endeavors and to continue the fine traditions of their people. This policy is consistent with our Nation's pledge to "protect" i the Indian tribes and our corresponding, crust responsibility. , We appreciate your concern for your constituents. If we may , be of any further assistance, please do not hesitate to contact UB . ] I Sincerely, \ w Herbert A. Becke Director 241 Tuition 1994-95 , page 2 Resident Non-Resident Resident Non-Resident Credits TuitioD Tuition Fees Total/Qtr. Total/Qtr. 1 12.00 32.00 32.30 44.50 84.30 2 24.00 104.00 65.00 89.00 169.00 3 36.00 156.00 97.50 133.50 253.50 4 48.00 208.00 130.00 178.00 338.00 5 60.00 260.00 162.50 222.50 422.50 6 72.00 312.00 195.00 267.00 507.00 7 84.00 364.00 227.50 311.50 391.50 8 96.00 416.00 260.00 356.00 676.00 9 108.00 468.00 292.50 400.50 760.50 10 120.00 520.00 325.00 445.00 845.00 11 132.00 572.00 357.50 489.50 929.50 12-18 144.00 624.00 390.00 534.00 1014.00 19 156.00 676.00 400.00 556.00 1076.00 20 add 12.00 add 52.00 add 10.00 add 22.00 add 62. 242 TUmON AND FEES 1994-95 Academic Year The cost of obtaining an education at Northwest Indian College is shared by Lummi Indian Tribe and other pa riiri paling Doithwest Indian tribes hosting NWIC classes aixl/or activities as well as the Bureau of Indian Aflfaif g which provides a per student subsidy for resident students meeting tribal enrollment criteria. Non-resident students are assessed a higher tuition to oflset BIA subsidy provided for resident students. Tuition and all fees are approved by the NWIC Board of Tr\istees and are subject to change with notice. Tuition, fees and book costs must be paid at the time of registration, unless special arrangements are approved by the Business or Financial Aid ofBce prior to registration. Unpaid tuition and fees will be deducted from financial aid awards to students. Tuition Registration and Computer Fee Non-Resident Student Resident Students: S12 per credit for 12-18credit5 Non-Resident Students: S32 per credit for 12-18 credits Tuition for credits in excess of 18 will be charged at the respective rate for each credit taken in that quarter. A fee of SIO per credit to suppoit the costs of maintaining and processing student records, including the college computer system and computer labs. A fee of S7.50 per credit, up to 12 credits, to support student government sponsored activities, for NWIC students. A fee of S13 per credit, up to 12 crediu for facility maintenance, improvement and/or expansion. A onetime fee of $25, paid by all full-time students sedcing admission into a specific degree or certificate program. Resident students are defined as those students who live on or near an Indian reservation and can d emonstrate Indian ancestry or enrollment in a federall y recognized tribe or Alaskan native cofTwralion. Spouses and/or dependents of resident students as well as employees (and/or their spouse or dependents) of NWIC and tribal (or other Indian agencies) within the NWIC service area may also be considered resident students. All students who do not meet the definition above, including members of indigenous groups from outside the United States. approved 6-21-94 243 LUMMI IMDIAIN BGSirSESS COGMCIL ?61G KWir4A RU • BELUNGKAM. WASHINGTON 98226 9298 • (206) 734 8180 I'Er-AniMENT pxt <£^^JiUxT July 14, 1993 Mr P. J. Murray- Jones South Cape fropertJeB Utd. ftio 55 Tai Hong Street Lei Kiny Wan ' Hong Kong Dear Mi'. Jones; On June 15, 1993 tlie Lunmi Indian Business Council (LIBC) reviewed your application for the pxtensioii of sewer services to your proposed development on tlie soutli cape of Sandy Point. Tlie LIBC denied approval for this sewer extension application. There are t lite'' lenson.g for this denial. First, the project hns not been approved by the Lunuiii t'lai ining Depart meiiL , as required by Section 4.011 of thp Lunuiii 'I'ribai bewer ana Water District Ordinance. Second, there is no assured supply of domestic water to your project that complies with Lunmi Nation laws and policies. And tliird, an internal review by our technical staff recommended against extending the sewer onto a laiidforiii th.TL Is uiisLabJp and Rnbjpct to ongoing erosion and flooding and is vulnerable to damage from seismic activity. You may contact us through the Planning Department if you wish to submit information In a hearing before the LIBC for a review tiiis decision. Sincerely, <^ '/ ^-' Henry Cacjey, Cliairman Lunmi Indian Business Council l.iinuiii .'^ewei Hoard I.iiiiuiil f'J.-iiMiln<| C'iMinil HsJon Liiiinnl Wal er Kcsoiii cr>R Dept Wiiatcom County Shorelines Dept 244 ii,..;.-l'.l ,1.- . ri- iin.i ■ ) ?". n;.i-.in I' I lUn Ui:>..:ul),:r \V., UJl I'lply I'o ALLli OC: jO-l'JO K^%, -3 Kg. Liiinca G. Cmil.li 7.;]C0 Leev/.itd VJay Llclliii'jli.Tm, V/JsIilnrjLon 9r.2P.o Dcjr Ms. ainith: I teceived your letter adiUesscd to Usgional Aoministrator Dana Rasmussen iiivhicli you raised concerns about the Luituni Tribal. Sawcr District's (uistrict) recent elections. Your letter raised issues rolatiny to the District's alleged failure to distributo information regarding candidates prior to the end oC the candidate sigi\-up period; to disseminata information regardiny absonteo ballots, even after such failure was brought to its attention; to allow non-tribal input into election oversight and ballot couiitiny; and to adopt election policies aivl procedures. The Eiivironiucntal Vrotcction Agency (EPA) in the late 1970 's assisted in Cundiny approximately 56 million dollars to the design and constructio*n of "a sewerage system ta serve the Lummi Indian reservation. The syutera includofl two outfalls, two treatment plants, and the associated interceptor system and puiT.p stations . to order to obtain tha EPA c2ai;G call mc -.Vc your earlicsc cotivenience al: (20G) 353- U311. I looK fot'./ard Lo ha.itrir.'j from you. Ginceroly, /J^ Sharon I. Haonsly Assistant Regional Counsel cc: Cecil Carroll, EPA V/asIiington Operations orfico Henry Cayey, Chair, Luaral Bvisinesa Council Julio JefCorsoii, Lummi Tribcvl Sewer District Election Committeo Skip Johnson, attorn-jy, I.urorai Tribal Sewer District Eucjcn.-* DeCoteciu, Ilan.v.j-ir, Lvimmi Tribal Sewer District 246 gOUTH CAPii^ PE PEQPEETIES LTlCf 25D, v;f:althy plaza 133 SIIAU KEI WAN ROAD HONG KONG Tl?:i,: 2560 0264,2560 0203 FAX: 2508 6066 Otir f<«f RCP/ "l'» 27 AUG 96 PERSONAL V S..P. fi. -^ />^- Ml- C Clarke ^ Regional Adini ni strateii- U.S. Envi ronmeiiha I Proherl.ion Age . ^ Region 10 ^ '**jP 1 700 .Sixt-.li AveniiP Knal. Mf!, WA 9H I O I :x>'^ '^1 \ce^^^y^f^^^^0^y^^^^ RE: COMPLA I N T O F HACIAL DISCRIMINATION DY LUMMT TRI B E IN VIOLAT I ON OF I T • S SEWER GRANT AGREEMENT I am very concerned ho receive the letter of 21 AUG 96 over your name, but <>igned for yoii by another, for the following reasons r- (A) Yon say- hhat my complaint was " filed untimely and could t herefore not be i nvnstiqa l :ed . " Your letter of 3 NOV 94 to which you refer, states that thi-^ 180 calendar days requirement may be ■■ w aived for qooi i c .ji is e . EPA's office of Civil Rights will dHtexjni ned i f .a_waj ver i?. just, i f ied . "' r would submit that the fact that I have been in contact and correspondence with youi- Agency for some two years, of itself constitutes a waiver, niherwise you would, of course, have informed me that I was our. of time in November 1994. (B) is Be that as it may, nni. an isolated this complaint of racial discrimination one-ofr incident, but of on-going 247 discrimination. The ?.ewHr was denied on 23 MAR ".'^ , was being denied on 9 NOV 94 and is still being denied tod.^" . Therefore, my legal advice ir. tliat l.lie 180 day rule cannot oossibly apply in tliis instance. (C) You make no mention .if the additional coinplairit about the Lummi Indian Tribe, which uas sent to Mrs Contrer.^s by courier on 17 MAY 96, concerniny r.ii;ial discrimination by the Tribe against non-Tndians on the re S'-ivation - including myself - by not supplying them with w.jt.-^i- provided by the City of Bellingham, despite earnest ns sur t nce_ to the City Council when the agreement was signe d that t here wmilc l be no such discrimination . (D) The prolonged delny in dealing with this matter - from 9 NOV 94 to 71 AUG 96. - i s I -tiii sure you will agree, unfortunate to say the least. r sf e no reason, other than reluctance to get involved, why you siioiild have waited for the Court decision before deciding th.it my application was "untimely." There appears to be no reason why the two actions could not have proceeded concurrent ly, as they concern three quite different breaches of three Jiffernnt undertakings freely given by the Lummi to three different bodies, not to practise racial discrimination . Then again your office "lost" the twenty page statement with the thirty-five enclosures I gave Mrs Contreras on 9 NOV 94, but did not let me know this until 22 AI^R 96. T received no letter from her dated 9 FEB 96. You are incorrect, by the way, in your assertion that the Judge liad s-iiuply said that ther^a was no remaining basis for exercising jurisdiction under the terms of the Consent Decree. You will see that she a i so added " with the possible excepti o n of par aoranh 24." [My attorneys and other attornays connected with thn case hnlieve the Judge should have omitted the word "possible"] Paragraph 24 states " However, f or good reason shown anti ijpon motion to the C nurt t>v any par ty , the Court may enter such f urther Clrder s as niay_ bn nece ssary or appropriate to effec:tuat e the purp oses of this Dec ree." Thi--, provision is without a time 1 imi t. 248 lliR Judge held l.hat South Cape Properties Ltd., not being a p^^rhy In the original Oficrne " accoidinqly cannot invoke paragraph 24." It is open to qiiRStion wliRtliRi' "any party" means any party to tliR Decree or any party who is affected by racial discrimination, .jHpendiny on your stance. Thn Court lliHrRfori? '^" UNITEO STATt£3 ENVIRONMENTAL PROTECTION AGBN REGION 10 J\ 1200 Sixth Avenue Seaitle, Washington 9&■\0^ A(i6 2 1 196_ Lt. conmiancler P.J- Hurray- Jones South Cape Properties, Ltd. 25B, wealthy Plaaa 13 8 Shau Kci Wan road Hong Kong RE: Complaint File #lU-94-R10 Dear Coajnander Jones: This is in response to your letter of July 22, 1996, regarding the status of your complaint in which you alleged discrimination on the basis of raoa when you were denied a sower extension by the Lummi Indian Tribe. Although you initially filed your complaint in Novombor 1994, LPA did not receive any of the documentation pertinent to the speoifics of your complaint until Hay 1996. ^ After ravleifing this documentation, va find that your complaint was filed untimely and therefore oannot be investigated. According to the records you provided, you wore denied sewer extension to South Cape at Sandy Point, Ferndale, on March 23, 1993. YOU filed yovir complaint on November 9, 199'1. This date was well beyond the 180-day time period within which a complaint should be filed. You were notified of the procedures to file a complaint in a letter (faxed to you by Cecilia Contrevaa) on November 3, i994. In December 1994 epa learned that you had made a request to reopen u consent decreee entered in 1902- regarding alleged violations of the decree. Issues related to your discrimination complaint were included in the consent decree. The decree, entered in Federal district Court, resolved litigation related to the construction of a wastewater treatment plant on the reservation. In October 1994, the court granted your request to reopen the decreee to diit-.ermine whether the decree has been viol-ited. Tor this ro^soii, EPA decided that we would await the outcome of the court's review before initiating an investigation of your complaint-.. In July 1993 the court determined that it had no remaining basis for o;:eroising jurisdiction because of the length uf time that had elapsed. EPA was informed about this determination in November 199S. 250 Due to govoriuaent fvirloughs during the period November, 1995 through Jcinuary 1996, wo were unable to pursue your complaint until the end of January 1996. At that time we asked you to reiterate tho issues raired in the complaint and to include documentation related to the issues. We received your response on May l , 1996. I apologize for the delay in advising you of our determination. However/ the delay did not affect the outcome of this complaint. This is tho final agency action regarding your complaint. If you have any questions about this matter, please contact Cecilia contraras at thu above address or at 206/553-2899. Sincerely, f^huck Clarke ( Regional Administrator cc: Mary St, Peter Office of civil Rights \ 251 WHATCOM COUNTY PLANNING AND DEVELOPMENT SERVICES 5280 Northwest Drive Sellinoham. WA 98226 MICHAEL T KNAPP. AJ. C.P. Director Co Py Directot Senate Commiaee on Indian Affairs 838 Hart Office Building Washington, D.C. 20510-6424 Aiteotioo: Nina Subject: Congressional Hearing/Senate Committee on Indian Affairs Dear Comminee Members: In so tar as Whatcom County issues buildiog permits on fee lands owned by Lummi Indians inside the boundaries Of the Lummi Indian Nation and the Tribe does not recoxnire Whatcom County lunsdicdon regarding County Zoning and enfbrceraent of County Ciides. management of Indian owned tee lands in contrast to Trust Lands is difficult if not impossible. By failing to recognize our jufis3iction. the situation creates potential liability for Whatcom County in that we may be let^ to correct health and safety problems on properties received by tribal or non-tribal members through ta» torecloxures and/or later sales to non-Indians. The Lummi Reservation is an open reservation. The roadi and ©jsem^nts are maintained by Whatcom County. In so far as the tribe manages the reservation sewer system, they must provide sewer availability slips before construction. During this process, the Tribe redirects fee land owners to their own tribal planning department for site and planning approval This situation creates confusion and often a burden on our tax assessor who uses Whatcom County Planning approvals to notify all landowners of their new tax assessments. While the solution to these issues is not easily resolved, it is imponant to consider methods and solutions that will enable Indian Nations and Counties to jointly agree on ways to insure life-safety compliance. Sincerely, Michael Kiapp, Director Whatcom County Planning and Development Services Po«i-ir Fax Note 7671 'moitLa^e. L>a,ijgW^^ KJUMZgi^CD 252 LUMMI INDIAN BUSINESS COUNCIL 26!t KWINA ROAC • B£^L'\3--r,- .VAS":'«3"0r.; oe226-C206 • (3aOl3SJ-U53 DEPARTMEN' ; ■ ■ Friday. June 7. 1996 Whatcom County Planning Commission ^^ ^f t ^C 5280 Northwest Road Co /9o Suite B % •%■ Bellingham. WA 98226 \,- Dear County Planning Commissioners. The Lummi Indian Nation urges you not to renew the County's 1972 Interim Zoning Ordinance for lands within the boundary of the Lumml Reservation Whatcom Count y has shown no legitimate governmental interest in continuing the Interim Zoning Ordinance and does not have the funds or staffing to provide planning services^to feg lands on the reservation. Furthermore, conlinuation of the Interim ironing Orainancfe perpetuates spot zoning, infnnges on the legitimate sovereignty of the Lummi Nation. and hinders the Tribal government in carrying out its responsibilities as the recognized governmental authority within the bounds of the Reservation. For land use planning to be successful and meet the goals of the community, zoning and development rules must be consistent throughout a neighborhood One set of rules for one parcel and another completely different set for the adjacent property will eventually lead to failure of both planning efforts. This type of "spot zoning" is considered poor planning, and in fact is illegal in most junsdictions. The current situation of Whatcom County attempting to apply its outdated zoning code to individual parcels of land on Lummi Reservation is a type of spot zoning, and defeats land use goals of both the Coun^y and the Lummi Nation This situation threatens the ability of the established Tnbal government to carryout meaningful land use planning for all reservation residents. Since the first adoption of the Intenm Zoninp Ordinance Whatcom County has shown no legitimate govemmental interest in continuing to apply the Ordinance to fee lands on ^m the Reservation. All individual fee parcels or groups of fee parcels are surrounded"E v ^ ■ Tribal lands, which are adversely affected by the County's outdated Intenm Zoning "" ~ Ordinance Reservation residents suffer from the confusion created Whatcom County's assertion of land use junsdiction on the Reservation, impeding economic development and residential development, and prohibiting consistent protection of environmental resources The County's application of its Shoreline Program to land within the Reservation has matenally harmed Tnbal tidelands by allowing the constoiction of shoreline structures that prevent natural shoreline process of erosion and deposition No county resources are protected or county interests forwarded by continuing the Interim Zoning Ordinance. However, important Tnbal interests and resources are ^^ 253 materially harmed by the continued imposition of the County's Intenm Zoning Ordinance. Whatcom County does not assert zoning jurisdiction over lands owned by its citizens which are located within the junsdictions of Bellingham. Skagit County, or British Columbia. What legitimate governmental interest does Whatcom County have in attempting to assert authority over lands outside its jurisdiction and within the legally defined bounds of the Lummi Reservation' The Lummi Zoning Ordinance, first a dopted in 1973 and since amended applies to all l ands within the Reservation and has~been approved by the Bureau of Indian Affairs The Lummi Zoning Ordinance provides for a variety of land use designations, residential densities, and development standards. The Tribal zoning and land use process provides for public participation, appeals and legal review of all land use decisions, regardless of property ownership status Tribal members, fee land owners, neighbors, and any interested party have the ability and nght to present their case and seek protection of property rights through the tnbal appeal system The fact that only enrolled Lummi Tribal members are eligible to vote in Tribal elections has no beanng on this issue on land use jurisdiction Canadian citizens who own property in Whatcom County are not eligible to vote in County elections just as US citizens are not eligible to vote in Canadian elections, even if they own land and live in British Columbia The fact that all residents of the Reservation have the right and ability to influence land use decisions through established legal process sufficiently protects their legitimate property rights. Not only has Whatcom County not shown any legal interest in imposing its zoning laws to lands within the Reservation, the county admits that it's funding and ability to regulate land use throughout the county, let alone the Reservation, is severely constrained by diminishing revenues Indeed, the level of staffing in the County Planning Department has been steadily reduced by the County Council since 1993 to meet revenue shortfalls. The county's inability to provide adequate planning services to fee land owners is evident in the fact that the Interim Zoning Ordinance has been hobbled together and recycled for the last 24 years. Based on the reasons stated above, the Whatcom County Planning Commission must not approve continuing the Interim Zoning Ordinance for lands within the boundary of the Lummi Reservation. To do otherwise perpetuates bad planning practices and disrespects the sovereign government of the Lummi Nation. I urge you to repeal the Interim Zoning Ordinance. Thank-you. Henry Oagey Chairman Lummi Indian Business Council 254 2a.6*334 606" LUMMI INDIAN BUSINESS COUNCIL 2B1S KWINA RO. • BELLINGHAM. WASMINQTON 9a226-B296 • (206) 734^180 OEPAHTMENT; . J.R. Kyan Building servlc«a Division iaBa9«r 5260 Horthweat Drive B«lllngham, MA 9822S I 5260 Horthweat Drive ! Re: Building Permit BtiD94-1050 3133 sungat Drive Dear Ma. Ryan; The Lunani Nation hae the following coefinentg on the above penult application: Juriadlotloa fThe Matlon does not recognize the jurledictlon of Whatcom^ County to iaevie permits on the Luanl Reaervation. _^ Btaorelanda Although this permit atates that the bluff la not eroding and therefore the setback is £rcn OHWK and not the top of the banJt, in April of this year a shorelines pemit was issued by the County for 3ii3 Sunset, several lots away, for construction of a retaining wall. In that permit, SaS94-oOOC and SK894-0003 a conditional use permit waS issued •to retard banX erosion.* Now this permit is issued that states that the bank is stable and not eroding. This is Inconsistent and we object to issuing a shoreline setback from OHWM. The Wiatcom County Shoreline Management Plan requires that setbacks be measured from the top of eroding banks (23. 90. CD, and this permit violates • the County ordinance. The setback should be measured from the top of the bank and no variance allowed. In addition, the maximum height of 30 ft violates the shorelands ordinance, as this residence Is within lOO feet of ORNM and therefore Is limited to 2S feet. The County hae been notified by the lummi Nation many times chat we object to allowing shoreline construction which later requires shoreline protection to be built. As property owners and government authority over the adjacent tidelands, we object to this process which results in damage to our tidelands and resources. Water supply The Sunset Water Association which is the w»ter supply Cor this residence is operating under a state permit based on Reservation groundwater withdrawals, mis Is water that belongs 255 to th« Lunwl Katlon under its Treacyreaerv« SjrDarj i Bfenne Turn Bfowf Martene Dawson Rob«rT A Imho' Ward Nelson Alvtn Starkenbur{: Kathv Sutter Sincerely, Marlene Dawson Council Member D«pl. '733-~<^L,'^D /'3?-(^S^^ Dana Brown-Davis, Clerk of the Council Correspondence file ^^U^a^^^Uxo 260 pjKlfSf THE COUNCIL Dana Brown-Oavis BUDGET/PROGRAM ANALYST Bob Woods WHATCOM COUNTY COUNCIL COURTHOUSE 31 1 Grand Avenue BeQinghain. WA 98225-4038 COUNCIL MEMBERS Barbara t Brenner Tom Brcywn MarHene Dawson Robert A Imhol Ward Nelson Alvin Starkenbur^ Kathy Suner April 17, 1996 Representative Jack Metcali Civic Center Builaing 322 N. Commercial Suite 203 Bellingham, WA 98225 SUBJ; SUtus oi Trital Employment Rigku Office (T.E.R.O.) Ordinance Dear Representative Metcalf : Since all ordinances adopted by the Lummi Trite affecting non-Indians must te approved by the Commissioner of Indian AffaiiB or his delegate, may we have the statxjs of the enclosed T.E.R.O. Ordinance. The Portland A "-a niiyrtnr A,-,pHc mimerous requesU concerning adoption of Irihal ordinances, has never provided any written documentation s howing his approval or disapproval. Consequently, I am ashing for a written verification of approval or denial tom the Interior Department and would appreciate your help in securing a written response. Sincerely, ^.^ Marlene Dawson Council Member Senator Slade Gorton Senator Patty Murray Jeff Monsen, Whatcom County Public Works Dana Brown-Davis, Clerk of the Council Correspondence file i:\(»uncil\iti^lcn>9d.417 261 Judge Barbara Rothstein United States District Court Western District of Washington Seattle, WA 98 1 04- 1 1 87 May 5,1995 Dear Honorable Judge Rothstein Subject: 1980 Consent Decree As you are the author of the 1980 Consent Decree in the Lummi Indian Tribe vs. Wilbur Hallauer case, I would like to draw your attention to the Lummi Business Council's violation of 1 1 d and 1 1 e. The Tribal Council has acquired through the Self-governance Act control of their tribal member's trust land as it related to real estate transactions. I am the agent for an out of the area Lummi tribal member by the name of Mrs Grace Erickson. Her two sisters had adjoining parcels of property that were transacted through the bureau of Indian Affairs and sold. Over a year ago I delivered a purchase and sale agreement, signed by both parties on Mrs. Erickson's property to the Lummi Tribal Council's real estate division. As of this time there has been no action taken after telephone calls plus letters by both myself and Mrs. Erickson. Mr. Hostlier, the manager of that division recently told me that they did not like land to be taken out of the trust. My client, needless to say, is very distraught about the situation. T he Tribe, while apparently not willing to purchase the property at market value, is holding their member economicall y hostage . Since she lives outside the area, it is difficult for her to address the problem herself In addition, she has financial limitations. As a federal judge currently reviewing the Consent Decree, you have some very important power and influence as it comes to protecting the lives and property of indians as well as non-Indian people on the reservation. Respectfully, Betty WaWace Licensed Real Estate Agent 2110 Iron Street Bellingham, WA 98225 (360)671-4624 262 CLERk OF TK£ COUNCIL /Y VV COfsCK M(MBSK> BUD^TPROCRA-M ANALYST lf^AA:^Lr?j' VUilenp OJv^-. ■ Bob woods \\ ^"V/ , ,^ c '■J'"^"'"' Robert A Imno" Mv.n Siarkenouf^ WHATCOM COUNTV COUNCIL COURTHOUSE 31 \ Grand Avenue Bellingnam. WA 98225-4038 October 17, 1994 The Honorable Slade Gorton 3206 Federal Bldg. 915 2nd Avenue SeatUe, WA 98175 Dear Senator Gorton: In so much as our State Attorney General's office will not address these questions, I am now requesting that your office help direa a response. Assuming the Lummi Tribe's tidelands are classified as Public Domain (Hagen vs. Utahl has there been any legislation to prevent recreational uses in properties under this classification? For example, is there legislation to prevent upland property owners whose land abutts Tribal tidelands from anchoring or resting their boats on them? Could you also answer whether there are present federal shoreline protection laws, or state laws that the Tribe must abide by, which would prohibit Tribal members from driving their cars on Tribal tidelands or setting up overnight or serai-permanent fish camps on the shoreline? In addition to Hagen vs. Utah, I am also aware of a 1960 Senate report stating there is no federal statute against trespass on trust land, which I assume pertains to open space and unallotted Tribal lands. Your prompt attention to this inquiry will be much appreciated. Sincerely, Marlene Dawson Whatcom County Council Member c: Shirley Van Zanten, County Executive Dan Gibson, Prosecuting Attorney Laura Eckert, Interagency Committee of Outdoor Recreation Ramona Reeves, Council Qerk AB 94-390 MD/nh g-\MD\Tidlnd.ol7 263 •^7K0F TH( COLSCIl 8U0CET/PROCRAM ANAIVST Bob Woods WHATCOM COUNTY COUNCIL COURTHOUSE 311 Grand Avenue Bellingham, WA 9822S-4038 COLSCIL M£MBCR> Kenneth R Hendersc Roben a imhof V\ard Nelson Alvin SUfhenburg September 27, 1994 Wyman Babby Assistant Secretary of the Interior United States Department of the Interior Office of the Secretary Washington D.C. 20240 Dear Secretary Babby: This is my fourth letter to you in over two months. While I have yet to receive any response, I am hoping to receive some in the near future. I am sure you are pressed for time like the rest of us. From my former letters you can tell that on an on-going basis, I have constituents who contact me about civilriglusjjwlations coming from the Lummi Reservation. These violations are being promoieaandsupported by Lummi Business Council. Who would you suggest as the best contact person in terms of addressing these problems and getting them rectified? TTie American Civil Liberties Union won't touch Tribal civil right violations. The Civil Rights Commission says they deal with only state issues. The Equal Economic Opportunity Council is a Federal agency that deals only with employment. The F.B.I, says they deal only with criminal violations. The Attorney General says they are not in a position to provide assistance. Sheri Freeman, who oversees tribes of selfgovernance, was of no help. The Bureau of Indian Affairs, an agent told me, is not to serve the general public. It is unconscionable when public officials dance around legitimate issues presented to them by citizens seeking redress. I want to help my constituents! Again, where do I go to get help as it concerns civil rights violations on a reservation? 264 Secretary Wavman Babby September 27, 1994 Page Two Enclosed is the latest letter from a constituent. In addition, I've enclosed pages from the Lummi Code Book, and a Sheriffs report which I've already copied to Attorney General Janet Reno, Senator Slade Gorton and Senator Patty Murray. Sincerely, Marie ne Dawson Whatcom County Council Member c: Slade Gorton, U.S. Senator Patty Murray,U.S. Senator Janet Reno, Attorney General Ramona Reeves, Council Clerk AB 94-390 MD/nh g;\MD\b«bby.927 265 FLOA FLYER MEMBERSHIP FEE s:o.00 Concerned* Send conrrihutioni to iht Ftt Land Chvnm Auocianon. ly^ TtltgropM Road. Suite 647, Bellmgham, WA 911226 NOOKSACK RIVER WATER RIGHTS I The following ii a j belated account of an I informative Water Rights presentation given Dy Tom Anoerson Manager of the , PUD#1, and Chair of the Noolcsack Water Usera ' Steonng Committee, I (composed of the cHles of Beillngham, Lyndon, the ' Agnculturai Preservation I Committee, and the PUD], to I the Whatcom County Council , at a special meeting on I Tuesday, Feb. 13 I The Steenno I Committee got together ' because they considered It necessary to address the I Tnbes' Intent to establish a ' senior "reaefved nghf daim to I NooksacK Basin water resources (to prepare for litigation should that be inevitable), to protect existing surface water rights, and ensure a prediaabie water supply for the future Anderson touched on many topics In his 45 minute talk Of special Interest virere nis comments on negotiations vs. Irtigatlon with the Tribes over water rights issues. The Steering Committee, he said, recommends negotiations for, several reasons An adjudication would be enormously expensive (the Yakima adjudication cost about $12 million according tc Anderson), take several years to be resolved, and while it would detenmine water rights, would not provide for enforcement of those water rights, or settle allocation issues. Anderson does not feel an adjudication woukj be permitted to happen under thi cunrent Governor and his administration. A different mind-set In the legislature and Governor's office wtfh a change at election time, might make triis more of a possibility. The Steering Committee feels that no matter what course of action is finally taken, the State should assist with funding for tne solution. Anderson said t;iat the Nooksaek Steering Committee is' committed to participating in a forum that seeks to include all the local interests and trie Tribe*. The Lummi Tribe has so far refused to attend. CunvnUy, the best forum for the purpose, he »ald. is the Nooksaek Initiative, led by the Oept. of Ecology. Most of the Steering Committee members are a'so on the Nooksaek initiative. raprasenting their constituency. Anderson encouraged anyone who does not feel rapretemed on water issues to conUd the Nooksaek Initiative and get Involved. Another iaaue Anderson touched on was the In-stream Flows a«t by the State as a way ^ to protect in-stream resources righu. The water rlghte ware dedleited to th* Tribe* ind the pfop«rty wu put In Truet for Fl«h Mitigation efTort* to an amount of about t1 mllllen. No new Industry hai built In Whatcom County ■Ince then. Some reaAioni to Anderton'e preientation follow: IS IT REALLY ABOUT SAVING WATER AND FISH? OR A MEANS TO GAINING POWER, WEALTH, AND RESOURCES? ''^ During Council \ . questioning for dartflcatJon,; and that are based on optimum i. Coundlmember Kathy Z flow rates for fish. The Steering / Suner termed the $1 million ) Committee believes they should ^ transfer 'blackmail*. y be re-eveluated and set for minimum flow rates for fish. He sak] this procass would be lengthy and costly as well An (tern of Intarest regartjlno the Tribes waa about the Tcnaska co^en plant, wherein Tenaaka asked for waur from the PUD. In order to build, Tenaaka had to go through the 8EPA proceaa. They did and ware approved to build. The Thbea appealed the daciBlon, The Tribea withdraw their objectlona and the plant waa allowed to proceed aflar Tenaaka purehaaed property on the Trtbes behalf In the South Fork Valivy that came wtth water During the question and answer period after the presentation, Jeff McKay, President of the Neptune Beach Water Association noted that he believes that the Nooksaek flsh issue is a very red hening - thet the tribe really wanu to sell the water. McKay also disagraed with Andeison aa to whether the County should forget adjudication as a solution He said that while It may be expenalve and time consuming, the adjudication on the Yakima did bring everyone to the table They were forced to come (Inelgding tribal), end ttey. or thay woula Be isff out ana not gat anything. Siup Richarai, eoniultenl to Witrington Asioeiateo Waie' Syitemt (WAWSl. »-a9»«« tnet 11 there truly it a water snoriage. exploring and invealing in long term lolutjoni. luch at a dam O' large lowland raaervoiri or lagoont to expend storag* and alleviate floods would &e a more practical u«e of fundi, and eliminet* a lot ofthadiMgreement ove- what It available now Overall. It was a very informatlva presentation to the County Council, and an enlightening evening' {BdNola: whit M/udKtien$ bring all uttn wUh wm*r ptrmDt to t/ie rap^. many current tgrleiAural uiari. including many npratanlaa ty tha afortmantionad Agnculturai Pratarvallon Commlnaa. do not hava watar parmHt and would not ba alowad at tha labia in an a ing groundwater withdrawal. If tribal control over water development does not look like it can be so main- tained, then: - serious discussion should be undertaken as to the Tribe's abilities and options for tribal control over development; - the aquaculture water system should be upgraded independently from the domestic water system; - the negative option of limiting housing development and Industrial growth on the reservation through lack of water facilities should be discussed. The question Is not whether the Tribe should develop a water supply and dellV' ery system, but whether the Tribe can maintain its chosen goals of tribal sovereignty and self-determination with a highly developed utility Infra- structure. As long as the tribal government Is connltted to enforcement of tribal (as opposed to county) land use codes, zonlno, and planning, the water system development is a possibility. If the Tribe feels that operation and maintenance of this system is Impossible, or that the side effects of increased real estate speculation on the reservation are too severe, or uncontrollable, then the negative alternative (neglect of water development) should be explored. However. If the Tribe neglects water development, It Is very possible that a non-tribal water district will fom, or continue to plan for such development anyway. 268 To SPIC Otis: 6/21/95 Tun* 09 43 49 P O 2 INTRODUCTION As part of an ongoing effort to secure tribal water rights and to plan for water resource developmentt the Bureau of Indian Affairs has been funding a water resources inventory program for the past several years. Funding and Implementation of this program have been phased: Phase I: Identification of the surface and ground water resource base for the reservation. A Groundwater ^"j'gstiqatlon of the Lumml Indian Reservation Area, Washington, USGS 1974. Surface Water Investigations of the Lunril Indian Reservation . USGS 1974. Phase II: Identification of the water resource demand on the Lutiml Reser- vation, both now and for the future. Water Resource Inventory Phase II: Proj ected Water Demand and Existing Facilities , Uuinni Planning Office. 19S0. Phase III: The discussion of alternative plans and programs to satisfy the anticipated water resource demand as identified in Phase II. This report represents a completion of Phase III of the water resources Inven- tory program. It is Intended to facilitate discussion of. and decision-making about, alternative plans to supply the water needs on the Lunini Indian Resarva* t1on. The estimation of quantities of water by use in this document in no way limits any further appropriation of water or water rights by the Lunml Indian Business Council. The Lunml Planning Office respectfully submits this Water Resources Phase III Report to the Lunini Indian Business Council. 269 T, SPIC D.l.«2i;95 T,m. 09 44 47 Pig* « ol S P C 3 POLICY QUESTIONS There 1$ a policy conflict In the development of b water system that the Tribe will have to iddress directly. Ther« are two stated tribal goals that could come Into conflict. One goal Is to supply water to the reservation in order to encourage and enable Indian families and businesses to flourish there. Another goal 1$ to minimize the growth of non-Indian land ownership and residence on the reservation. In theory, utility extensions can be used as a method of growth control. If a municipality decides that an area should not be developed, a decision limiting utility extensions in an area will partially limit development, even if it will not stop it. Similarly, if a municipality desires an area to be fully "built-up" before extensions to more rural areas are granted, utility service hook-ups can be used to enforce this. Continued reliance on groundwater for domestic use may be a partial answer to growth control on the reservation. Presently, much of the groundwater Is supplying coinnunity water systens that arc not under tribal control. One of the problems with the current water situation is that some effective non- Indian water systems, such as the Sandy Point Imprcvement Company System, is using groundwater, while the Luami Water District pays for imported water from Bellinham. Aquisitlon of these coeiminity waUr system's assets, while appropriate and fair, would be a great expense for the Tribe. While this may eventually have to happen as tfie comprehensive water system is developed, the benefits of acquiring water systems that do not serve Indian homes are questionable in the short term. The tribal planning proctts Is in the unique position of trying to maximize water available to tribal neabcrs (especially for new construction), desion a fair and impartial water supply system, and not encourage large non-Indian housing developments. The pressure exists on the reservation to develop the water delivery system. Indian and white property owners, and potential property developers, arc aware of the need for water. Whatcom County Water District #15 and #11, in spite of con^lax litigation about their rights to exist at all, arc develop- ing plans to bring nor* water (and thus more non-Indian development), to the reservation.- The Tribe, also, with conmon sense and oood planning, has based a good portibo of its case in the sewer lawsuit, Lmrnii Indian Tribe y. Hallauer . on the fact that the Tribe plans to serve all homes, Indian and non-Indian, with sewer service, to the limits of the reservation sewer system as It is designed. This Hikes it difficult, but not Impossible, for the Tribe to limit certain kinds of development by limiting other utility extensions. Like all planning or zoning restrictions, water service restrictions will be effective only if parties affected know of them in advance, and all parties are treated fairly. The Tribe may have to take steps to control growth on the reservation dircctjy, and be prepared for the inevitable legal conflict. One possible Uniting 270 OM Sni/95 Tim. M .46 18 ^'S* * ° ,om T^ SPIC P O 4 factor could bt the presently designed riewer capacity, The Tribe could define a maximum number of homes per year to be built on the sewer lines. i Within this limit, a preference schedule could be developed enforcing that I Indian housing, or low-income Indian housing, be the first priority for bu11d< 1ng>perm1ts. Any kind of development limit means that the tribal government would have to be prepared for the Inevitable legal test cases of the Tribe's ability to enforce It. Another method to control development would be to enforce the need for a trlbi building permit, as well as a county building permit. Possibly, under the Luiml Land Use Codes, building peraits could be granted on an Indian preferenc schedule. This process would also take considerable enforcement efforts, and could result In lawsuits with the County and with developers. It is Important that the reservation continue as a primarily Indian-owned land base. The Tribe can and oust tolerate non-Indian presence on the reser- vation. However. It Is crucial that In the provision of all these comprehensl services, Indians end tribal mbirs bt the primary parties that benefit. If the comprehensive services that arc being provided do not benefit these groupi the Tribe would do well to not Implenent its comprehensive water development and let partial growth control be a secondary effect of lack of water service, low water pressure, and lack of fire protection. Indian development does not have to lock like, or be like, the same develop- ment controlled by non-Indians. The problem Is how to enforce It. Economic development, and fishing opportunities are increasing the number of Indian fad lies wishing to move onto the reservation. Pressune Is increasing on the Tribe to allow more development of Indian homes and businesses, which need bet water service. On the other hand. In the past, the heirship situation and lack of sewer and water services have determined many of the' land values and land use patterns on the reservation. As sewer and water services are provide two of three fonner controls which have limited non-Indian land aquisltions ar removed. The most open way to encourage Indian preference development is to pass and enforce lawi In the Land Use Code which encourage land development along the patterns that suit the needs of the Tribe; and not to develop the water system until the other protections exist to keep the reMrvatlon pri- marily Indian owned. . I 1 i 271 , / DEPARTMENT OF HEALTH*. HUMAN SESVICZS i ' /flaT ^ ^ " ' J':.:' ^-.!... -.. '— — • . ; ■ . , .. Memorandum Data , ■; May 17/ 1989 ^r From £17165% J. Zsbem.vJrr. Assistant Regional. Covinsel Subject Lumi Payxoll Tax Ordinance To Williaa Picctte, Service Cnit Director HortLhwes-t Washington Service Unit Yott advised us that the Lumi Indian Business Council, by Resolution No. 89-56, has adopted a Payroll. Tax Ordinance requiring individuails employed on the reservation to pay 2% of their gross pay to the Tribe. The ordinance which is effective ' June 1, 1989, requires employers (business or governmental entities) operating on the reservation, to withhold the' 2% tax from their employees' pay. You have asJced whether the Tribe can enforce this ordinance against IHS employees.' In our opinion they cannot. • ' . " DIScnsSTOW " .. " !■'■»'..,■■,_ . Article VT, Section i of the Constitution and By-Laws of the Lumi Tribe provides' in perzinent part as follows: ", j./'j" Section 1 . The Lumi Business Council shall have the following powers, subject ' to any '. •_ , limitation imposed by Federal statutes or by the '•■. ~-- Constitution of the United States. " ■' ' ' ' ■''■ ***** ." -.:.. '•' T !.> (1) To safeguard and promote the peace," ' - ■-.• safety, morals, and general welfare of the Lumi .- Reservation by regulating the conduct of trade and - *" the use and disposition of property upon the reservation, provided that ordinances directly affectino nonmernbers of the tribe shall be subiec- to the approval of the Coirmissioner of ^Indian Affairs. .... .•••'■ (emphasis added} \'^,.. . You have advised us that the Payroll Tax Ordinance has not been submitted to the Department of the Interior for approval. In Merrion v. Jicarilla Apache Tribe . 102 S.Ct. 894, 903; 453 O.S. 130, 141 (1982^, the Supreme Court, while upholding a ■tribe's' right to tax nonmembers generally, noted that, "the .Tribe's authority to tax nnninoiiihoTy'^<^ '?"*^1p gt to ponstraints .. x.-''.-^^ not ■ Ijposed o n other .govcrniaental ent ities; the Federal -t,' \* .f> : 272 Page 2 - Wllllaai PicoCCe, Service Unit Direcrtor Govemnest: can take away this power, and the Trihe nost obtain the apprsrval of the Secretary [o£ the Interior] before* any tax on nonmesbers can taJce effect. These additional constraints BLinimize potential concern that Indian tribes will exercise the power to tax in an unfair or unprincipled manner, and ensure that any exercise of the tribal power to tax will be consistent wit naticnal policies." Jiearilla Aoac-e In light of the court's holding in Merrion v. Tribe , gsrira . ^dP Article VI Section 1(1) of the Tribe's Constitution and 3y-Ls.ws, it is our opinion that the tribe's tax ordinance iiiaYnotbg_,gjifo;£ced against nonmeobers of the tribe unless and uSSiT^ 'Seordlnance is approved by the Departaent of the Interior. With respect to Commissioned Officers (except members of tjie Lumi Tribe) , it is our opinion that they cannot be taxed evan if the ordinance is approved. The Soldiers and Sailors Civil Relief Act of 1940, SO U.S.C. App. 5 504, et seq. and S 574 protects nembers of the armed farces from imposition of any form of income tax when imposed by other than their state of domicile while they are on active duty. Those provisions are made applicable to commissioned officers of the Public Health Sar"/i;e by" 42 U.S.C. S 213 (e) . ' •- You may share this opinion with the Tribe. If a representative of the Tribe cares to discuss the contents of this opinion I can be reached at (206) 442-7309. 273 FLOA FLYER MEMBERSHIP FEE tliXOO Concerned* Send conrrihunons to the Fee Land O^Mters Au' 274 o o ■a c CM c CM £ E o T3 C .c C T3 O c S X (J _ c _ ffi ^ S SJ> 8. u X '5 s:3 c "1 •:: O c o Q ™ 5 E o "-■5i| ,(2 ii>o^ Q X u T3 e 3 D '- CM •a c c c o o N S S fe k* u u > SP 5 > O c c s O o _2 _2 o ^1 5 a « 5*^5 •o 2 <> E c o I 8 ^1 E ^ o ii 5 a < «o o u u B I w I § C V X 275 276 \ o- :Zo 277 STATEMENT OF JENNIFER A. COLEMAN. ESQ. September 24. 1996 At English common law, the doctrine of Sovereign Immunity derived from the idea that the "king can do no wrong." Because the acts of the sovereign were the law of the land, it stood to reason that the sovereign could not be made to answer for its acts in court. In our democracy, it has long been believed that the people are sovereign and the government answerable to the people. Thus the individual states and the United States must answer to myriad actions in state and federal courts for violations of law, enforcement of agreements, civil rights violations, infliction of personal injury, etc. Not so Indian Tribes. Somehow, Indian governments have been permitted by Congress to claim a degree of sovereign immunity from suit which grossly exceeds that of the state or federal governments and which defies the rights of non-Indians affected by the acts of Indian governments. Indian Sovereign Immunity — the inability to sue Indian tribes ~ denies due process to non-Indian U.S. citizens. This is dramatically demonstrated in the case of non-Indians residing on the Allegany reservation of the Seneca Nation of Indians in New York State. Several non-Indian, U.S. citizens, presently face eviction by the U.S. goverrxment, from homes they bought and paid for, because Indian Sovereign Immunity has barred them from enforcing land leases and federal statutes securing their property rights. In a rush to assuage guilt over past inequitable dealings with Native peoples, the U.S. has ignored and trampled on the rights of individuals whose interests are unavoidably intertwined with those of tribal 278 governments. Individual states do not enjoy the degree of immunity from suit that Indian Nations possess. The United States does not possess the degree of immunity from suit that Indian Nations claim. Indian Sovereignty and Indian Sovereign Immunity are not the same thing. The right of Indian Nations to self-determination, to self- government, to establish membership criteria, to regulate the use of land and resources, to establish courts, to exercise police powers, etc. would survive even if tribal contracts, or leases, or other legal relationships were judicially enforceable. The United States is no less a sovereign nation because it can be sued. The gross inequity of Indian Sovereign Immunity is clearly demonstrated by the situation in Salamanca, New York. It is a small city, built mostly on the Allegany Reservation of the Seneca Nation. Federal statutes created 99-year, renewable, leases which permitted and induced non- Indians to build and improve homes and businesses in Salamanca while leasing the underlying land from the Seneca Nation. By late 1990, approximately 3,300 individual leases had transferred by purchase and assumption to the then occupants. Most were elderly, retired on fixed incomes, and barely middle class. Most had paid-off mortgages. Most counted their homes as their only significant asset. Many were veterans. Their leases all expired on February 19, 1991. Everyone, including the Nation and the U.S., expected the leases would be renewed pursuant to procedures contained in the leases and enabling statutes. 279 Instead, in late 1990 Congress forced lessees to either take a lease they did not want or approve, or lose their homes if they refused. Most signed this new lease but only after four separate signing periods, and only after the courts of the United States, including the Supreme Court, refused to hear claims that the new leases violated property rights and subverted renewal expectations of all parties. Most wanted to sign the lease "under protest;" the Seneca Nation said it would treat such as a rejection of the lease. Some, however, refused to sign. They are now being evicted - not by the Seneca Nation - but by the United States Department of Justice. They are being evicted with the assistance of the same courts that refused to hear their claims. Two acts of Congress created the landlord-tenant relationship between the Salamanca lessees ("Lessees") and the Seneca Nation: the Act of February 19, 1875, ch. 90, 18 stat. 330 ("Act of 1875") and the Act of September 30, 1890, ch. 1132, 26 stat. 558 ("Act of 1890"). [Attachments 1 and 2] The Act of 1875 provided: Section 3. That all leases of land situate within the limits of said villages when established as hereinbefore provided *** shall be valid and binding upon the parties thereto, and upon said Seneca Nation for a period of five years from and after the passage of this act, except such as by their terms may expire at an earlier date; and at the end of said period, or at the expiration of such leases as terminate within that time, said nation through its counselors shall be entitled to the possession of the said lands, and shall have the power to lease the same: Provided, however, that at the expiration of said period, or the termination of said leases, as hereinbefore provided, said leases shall be renewable for periods not exceeding 12 years, and the persons who may be at such time the owner or owners of improvements erected upon such lands. 280 shall be entitled to such renewed leases, and to continue in possession of such lands, on such conditions as they be agreed upon by him or them and such counselors; and in case they cannot agree upon the conditions of such leases, or the amount of annual rents to be paid, then the said counselors shall appoint one person and the other party or parties shall choose one person, as referees to fix and determine the terms of said lease and the amount of annual rent to be paid; and if the two so appointed and chosen cannot agree, they shall choose a third person to act with them, the award of whom, or the major part of whom, shall be final and binding upon the parties; and the person or persons owning said improvements shall be entitled to a lease of said land and to occupy and improve the same according to the terms of said award, he or they paying rent and otherwise complying with the said lease or said award; and whenever any lease shall expire after its renewal as aforesaid, it may, at the option of the lessee, his heirs or assigns, be renewed in the manner hereinbefore provided. Section 7. That the courts of the State of New York within and for the County of Cattaraugus, having jurisdiction in real actions, and the circuit and district courts of the United States in and for the Northern District [now Western District] of said state, shall have jurisdiction of all actions for the recovery of rents and for the recovery of possession of any real property within the limits cf said villages, whether actions of debt, ejectment, or other forms of action, according to the practice in said court; and actions of forcible entry and detainer, or of unlawful detainer arising in said villages, may be maintained in any of the courts of said county which have jurisdiction of such actions. App. at 119a-122a (emphasis added). Subsequent to the Act of 1875, the Act of 1890 was passed; it extended the term of the leases and renewals authorized by the Act of 1875 from 12 years to 99 years. It expressly did not amend the Act of 1875 in any 281 other respect. Two essential elements are expressly established by these statutes: (1) the right to renew leases in an equitable manner through negotiation or arbitration and (2) that the lessees owned the improvements on the leased land. For more than a century the lessees, the Seneca Nation, the State of New York and the United States relied on the Acts of 1875 and 1890. The leases granted pursuant to those Acts were repeatedly enforced by the Seneca Nation in the Federal Courts. See eg. U.S. v. Fomess, 125 F.2d 928 (CA2), cert, derued, 316 U.S. 694 (1942). Congress itself relied on the renewal provisions in the Acts of 1875 and 1890 and the 99-year leases when it enacted special legislation to permit HUD to insure mortgages in the City and Villages: "A mortgage on a leasehold estate covering a one to four-family residence located on the Allegany Reservation ... is eligible for insurance if the mortgage meets the requirements of this subpart. . . . This section applies only to a mortgage which: Is on a leasehold under a lease with a termination date in February, 1991, which provides for renewal in accordance with the Acts of February 19, 1875 (19 Stat. 330) and the Act of September 30, 1890 (26 Stat. 558)." 24 CFR, ch. 11, §203.43j(a)(2). See also, 12 U.S.C. §1709(q). In fact. Congress stated that a mortgagor's failure to take steps to renew his or her lease was "an event of default under the mortgage." 24 CFR §203.43j(b)(2). In The Seneca People, George H.J. Abrams, an enrolled member of the Seneca Nation and an historian and instructor of courses in American Indian History, wrote: Two separate pieces of congressional legislation were signed into law on September 30,1890. One sold the remaiiung Kansas lands of the New York Indians. The second provided for a 99-year lease, beginning in 1892 when the leases were to expire. 282 and an additional renewal period of another 99- year s. Abrams, The Seneca People, Indian Tribal Series /Phoenix (1976) (Library of Congress Catalogue No. 76-19827) (emphasis added). In 1990, Congress destroyed the renewal rights that all parties had relied upon and instead imposed a new lease on the non-Indian lessees by enactment of the Seneca Nation Settlement Act of 1990, Pub. L. 101-503, 104 Stat. 1292 ("Settlement Act of 1990"). [Attachment 3] That statute was signed by President Bush on November 3, 1990. Pursuant to the Settlement Act, the Seneca Nation has asserted ownership of the improvements on the leased lai\d. [Attachment 7] The Settlement Act of 1990 authorized payment of $60 million to the Seneca Nation to adjust "past inequities" arising from nomirwl rents paid to the Seneca Nation pursuant to the leases authorized by the Acts of 1875 and 1890. The Settlement Act was strongly opposed by the Department of the Interior which questioned U.S. liability for past inequities and which did not believe Congress had authority to fix new lease terms. [See, testimony of Walter Mills. [Attachment 4] The Department of the Interior knew that the 1990 Act upset century old expectations and property interests. [See letter dated July 26, 1985 from the Department of the Interior. [Attachment 5] [See also Attachments 6-8] The 1990 Act also ratified and thereby established the terms of new leases. Fluent v. Salamanca Indian Lease Authority, 928 F.2d 542 (CA2), cert, denied 502 U.S. 818 (1991). [Attachment 11] 283 The 1990 Act was pushed through Congress before the individual lessees had even seen the documents it purported to ratify. This expedient legislation, at least, contained a presumed safety valve. Congress expressly provided at 25 U.S.C. §1774g that the Settlement Act of 1990 could be challenged on constitutional grounds: Notwithstanding any other provision of law, any action to contest the constitutionality or validity under law of this Act shall be barred unless the action is filed on or before the date which is 180 days after the date of enactment of this Act. Exclusive jurisdiction over any such action is hereby vested in the United States District Court for the Western District of New York. App. at 139a. Prior to expiration of the leases, and within a month of the effective date of the 1990 Act., several hundred lessees commenced a lawsuit in the United States District Coxirt for the Western District of New York to compel arbitration for the terms and conditions of new leases (as required by the 1875 statute) ar\d to declare the 1990 Settlement Act unconstitutional. These claims were dismissed because of Indian Sovereign Immunity. Notwithstanding explicit language in the 1875 and 1890 statutes, the federal courts held that the lessees had no remedy for the unilateral imposition of leases by the 1990 Act. Further, even though Congress anticipated a Constitution challenge by including §1774g, the Court held that the language of that section was insufficient to waive Indian sovereign immunity. Indian Sovereign Immunity thus prevented U.S. citizens from litigating claims profoundly affecting the ownership, use and occupancy of their homes and businesses. 284 The courts ruled that the language in the statutes was not clear enough to constitute a waiver of Indian Sovereign Imnr\unity and that the claims could not proceed without the Seneca Nation as a party. The Court of Appeals for the Second Circuit stated: "[Indian] Sovereign immunity may leave a party with no forum for that party's claims. . . . The only branch with authority to provide a forum for resolution of the issues involved here is Congress." Fluent v. Salamanca Indian Lease Authority, supra 928 F.2d 542, 547. Although the courts are closed to suits by lessees against the Nation, they are wide open for the Nation, or the U.S. on behalf of the Nation, to sue lessees. [For eg. see Attachments 9-10] Indian Nations frequently avail themselves of the federal courts to enforce statutory and contractual rights agaiiwt non-Indians. No court is available to lessees. New York State courts are incompetent to adjudicate Indian land claims, see, e.g., New York Indians, 5 Wall. (72 U.S.) 761 (1866). See also, Indians, 25 U.S.C. §233 (1983). The Seneca Nation's Peacekeeper Courts do not have jurisdiction over disputes between Indians and non-Indians. New York Indian Law, §46 (McKinney's 1991 Supp.). The Courts, including the Supreme Court, have held that Indian Sovereign Immunity, unless overtly waived by Congress, may deprive individuals of constitutionally protected property and due process rights. Santa Pueblo v. Martinez, 436 U.S. 49 (1978). Power over Indian affairs is committed exclusively to the U.S. Congress. U.S. Const. Art. 1, §8. Congress has plenary power of Indian matters. Santa Clara Pueblo, supra, 436 U.S. at 56. 8 285 Chief Justice John Marshall, first and most completely announced the doctrine of Indian sovereignty in Worcester v. Georgia, 6 U.S. (Peters) 515 (1832). It was also Justice Marshall who expounded the doctrine of judicial review in Marbury v. Madison, 5 U.S. (Cranch) 137 (1813). Judicial review, deemed essential to our government's system of checks and balances, ensures that Acts of Congress comport with the Constitution. Surely Justice Marshall never contemplated the expansion of Indian Sovereignty to an immunity which prevented judicial review of Acts of Congress. But that is the current state of the matter. Effectively, unless Congress explicitly waives Indian Sovereign Immunity, Indian legislation is immune from judicial scrutiny and enforceable only by Indians, regardless of the impact of such legislation on non-Indians. This result destroys the supremacy of the United States Constitution. U.S. Const. Art. VI, cl. 2. If an Act of Congress is unconstitutional, the race or ancestry of a litigant should not decide whether a court can intervene. It is manifestly unjust and uniquely destructive of the supremacy clause, judicial review, and due process that non-Indians are barred by Indian sovereign immunity from seeking judicial review and construction of Acts of Congress intimately related to their property interests. As the Court of Appeals, in apparent frustration, recently held: "[TJhere is simply no room in our constitutional order for the definition of basic rights on the basis of cultural affiliations, even with respect to those communities whose distinctive 'sovereignty' our country has long recognized and sustained." Poodry v. Tonawanda Board of Seneca Indians, 1996 U.S. App. LEXIS 11407, 11487-88 (CA 2 1996). Yet, until Congress acts affirmatively "it: cAn n-7 An 286 and explicitly to alter the status quo, this intolerable circumstance will persist. Indian Nations will continue to "use their connection with federal authorities as a sword, while employing notions of cultural relativism as a shield from federal court jurisdiction." Id. Jenmfer A. Coleman 287 Attachment i 118a 1330] APPENDIX D(l) United States Statute (Forty-Third Congress, Sess. II, Ch. 90. Act of February 19, 1875) Feb 19, 1876 CHAP. 90. -An act to authorize the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany reservations, and to confirm existing leases. Leases of lands Be it enacted by the Senate and House of by Seneca Nation Representatives of the United States of of New York In '^ . ^ li j Tknf oil dians. for railroad /Imcnca m Congress assembled, inat au purposes. jggg^g Qf i^jj vvithin the Cattaraugus and Allegany reservations in the State of New York, heretofore made by or with the authority of the Seneca Nation of New York Indians, to railroad-corporations, ere hereby ratified and confirmed; and said Seneca Nation may. in accordance with their laws a form of government, lease lands within said reservations for railroad-purposes. Boundaries of SEC. 2. That the President of the United '/SiSany'^'r^rrva" States shall appoint three commissioners. Uon. whose duty it shall be, as soon as may be, to survey, locate, and establish proper boundaries and limits of the villages of Vandalia. Carrolton. Great Valley. Salamanca, West Salamanca, and Red House, within said Allegany reservation, including therein, as far as practicable, all lands now occupied by white settlers and such other lands as. in their opinion, may be reasonably required for the purposes of such villages; and they shall cause a return of their doings in writing, Maps of survey, together with maps of such surveys and 288 119a locations duly certified by them, to be filed in the office of the county clerk of the county of Cattaraugus, in said State, there to be recorded and preserved. The boundaries of said villages so surveyed, located, and established shall be the limits of said villages for all the purposes of this act. SEC. 3. That all leases of land situate J^-^j* -^^J; within the limits of said villages when to be valid for five established as hereinbefore provided, except ^'*"" those provided for in the second section of this act, in which Indians or said Seneca Nation, or persons claiming under them are lessors, shall be valid and binding upon the parties thereto, and upon said Seneca Nation for a period of five years from and after the passage of this act, except such as by their terms may expire at an earlier date; and at the end of said period, or at the expiration of such leases as terminate within that time, said nation through its councillors shall be entitled to the possession of the said lands, and shall have the power to lease the same: Provided, however, Th at at the expiration of said period, o r the Terminat ion^ of said leases , as hereinbefore provid ed, said leases shall be renewable for periods n ot exceeding twelve Renewal of years, and the persons who may be at such time tKie owner or owners oi improvement s erected upon such lands, sh all be entitled t o sucE renewed leases, and to continue in possession of such lands, on such conditions as may be agreed upon by him or them and such councillors; and in case they cannot leases. 289 120a Power of Seneca Nation to lease lands not owned by individuals agree upon the conditions of such leases, or the amount of annual rents to be paid, then the said councillors shall appoint one person, and the other party or parties shall choose one person, as referees to fix and determine the terms of said lease and the amount of annual rent to be paid; and if the two so appointed and chosen cannot agree, they shall choose a third person to act with them, the award of whom, or the major part of whom, shall be final and binding upon the parties; and the person or persons owning said improvements shedl be entitled to a lease of said land and to occupy and improve the same according to the terms of said award, he or they paying rent and otherwise complying with the said lease or said award; and whenever any lease shall expire after its [331] renewal as aforesaid, it may. at the option of the lessee, his heirs or assigns, be renewed in the manner hereinbefore provided. SEC. 4. That said Seneca Nation is hereby authorized, by resolution of its councillors, duly elected according to the laws and system of government of said nation, or in such other manner as s£ud nation in council may determine, to lease lands within said villages to which, by the laws or customs of said nation, no individual Indian or Indians or other person claiming under him or them, has or is entitled to the rightful possession. Survey of village SEC. 5. That it shall be the further duty of lands now leased ^^e Said Commissioners to cause all lands within such villages now leased, as 290 121a hereinbefore mentioned, to be surveyed and defined as near as may be. and to cause the same to be designated upon the maps of such villages hereinbefore mentioned and provided for. All leases of lands within said villages, whether now existing or hereafter to be made under the provisions of this act, shall be recorded in the office of the clerk of said Recording of county of Cattaraugus in the same manner and with like effect as similar instruments relating to lands lying in said county outside of said reservations are recorded by the laws of said State of New York. All leases herein mentioned or provided for shall pass by assignment in writing, will, descent, or otherwise in the manner provided by the laws Assignment, de of said State: Provided, however, That the vise, descent of rights of Indians in such leases shall descend '^^'^^ as provided by the laws of said Seneca Nation. SEC. 6. That all moneys arising from rents Rents due Scneca under the provisions of this act which shaU l'^°^Ji;p[^;'' belong to said Seneca Nation shall be paid to and recoverable by the treasurer of said Seneca Nation, and expended in the same manner and for the same purposes as are other revenues or moneys belonging to said Seneca Nation. SEC. 7. That the courts of the State of jurisdiction of New York within and for the county of ""^^' Cattaraugus, having jurisdiction in real actions, and the circuit and district courts of the United States in and for the northern district of said State, shall have jurisdiction 291 122a UwB of New of all actions for the recovery of rents and for ^'"^'' the recovery of possession of any real property within the limits of said villages, whether actions of debt, ejectment, or other forms of action, according to the practice in said courts; and actions of forcible entry and detainer, or of unlawful detainer arising in said villages, may be maintained in any of the courts of said county which have jurisdiction of such actions. SEC. 8. That all laws of the State of New York now in force concerning the laying out, altering, discontinuing, and repairing highways and bridges shall be in force within said villages, and may, with the consent of said Seneca Nation in council, extend to, and be in force beyond, said villages in said reservations, or in either of them; and all municip^ laws and regulations of said State may extend over and be in force within said villages: Provided, nevertheless, That nothing Taxation of In- in this scction shall be construed to authorize **'""' the taxation of -uiy Indian, or the property of any Indian not a citizen of the United States. Approved, February 19. 1875. 292 123a APPENDIX D(2) United States Statute (Fifty-First Congress, Scss. I, Ch. 1132. Act of September 30, 1890) CHAP. I132.-An act to authorize the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany Reservations, and to connrm existing leases. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That whenever the leases of land situate within the limits of the villages mentioned in the act of Congress entitled 'An act to authorize the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany Reservations, and to confirm existing leases," approved February nineteenth, eighteen hundred and seventy-five, except leases to railroad, shall by the terms of said act be renewable, the same shall; be renewable for a term not exceeding ninety-nine years, instead of the term of twelve years, as therein provided, subject to all other terms and conditions of said act. Approved, September 30, 1890. September 1890. 30, Leases of lands by Seneca Nation of New York Indians, to be renewable. Vol. 18. p. 330. Excepted leases. Term of renewal. Conditions, etc. 293 Attachment 3 25 i 1773J INDIANS (1) the t£rm "1878 Survey Area' meani the area which la wfthiA the area demariud by the high water line u meandered and the upland boondariea, u ahown on the ptat map of the 1873 Survey ot the Puyailup Indian Reaervatloa, conducted by the United Sutea General Land Office, and filed in 1874; (2) the term "Secretary" meana the Secretary of the Interior O) the tern "Settlement Agreement" meana the document entitled "Agreement between the Pnyalhip Tribe of Indiana. Local Goremmenta tn Pierce County, the State of Waahlngton, the United Statea of America, and certain private pnperty ownen', dated Auguat 27, 1988; (4) the term "State" meaaa the State of Waahlngton; (6) the term "Technical Documenu" meana the 7 document* which eomprlee the technical appendix to the Settlement Agreement and are dated Auguat 27, 1968; (•) the t«rm "Tribe" meana the Puyailup Tribe of Indiana, a tribe of Indiana raeognlzad by the United Statea; (7) the term "Vlow the mean high water tine' In reference to the iubmerg«d laodi of the PoyiUup IUveri>ed meana "below the ordinary high water mark" In that porlloD of the river not subject to tidal inftn/tu^ and "below the m>»n high wattt Una" in that portlcn of the river which !■ cubject to tidal Influence; and (8) the term "oo-reservation ftatua' meaaa a (tatua under which FederaJ lawi and ragnlatioca, treaty rigfata. uvd ngfata of toverelgnty, which define the righta and nqwiM i Wlit i ii a on truat or reetricted laada lindudlng right*-of-way and »w wT V< mti ronning through each landa wtthin a Fe« ud the Congimliiiiil VHIagea, New York, have itralned relationa between the Indian and naa-Iadian eommnnitiee and hare reauiud m adverse economic tmpacta affect- ing both eommsmtiea. (2) Soma of the aignHVant hlatoraJ fvetita which have led to the preaest (A) y>»ftrining (n the mld-iBMUcath century, several ndlroada obtainad grants or leaaea ot rigfau of way thnogh the Allegany Reaemtiao wttboot Federal anthoriiation or appewal and on terma wttieh did not adeqaate)y protMt the bstereata of the Seneca Sadoo: (B) aftar eaostroetion of theae r«iira«k. AOegany Reeervation landa were leaaed to ralIro*d employees, ptranna taaooated vtth the rallroada, reeidenta of the dQr and Cumen without Ftdertl authoniadon or approval and on termt which did not adequately protart the intereala of the Seneca Nation; (C) none of theae leaaea had FedenJ itithorixatioo or approval and, after the eourta raled theae leases invalid. Congrcas enacted the Act of February 19, I87S (18 Stat 330). confinmng ejoaong leaaea of AUegany Reeervation lands, authoridng (Mother leasing by the Seneca N'abon. and making the confirmed leases renewable for a twelve year penod: (D> the Act of September 30. inbO i2S Stat 568). amended the 1875 Act by ■u b ati tuti ug a renewal term of Tux exceeding ninety-nine year*" for the original renewal term of twelve yean, and 432 294 INDIANS 25 § 1774a (E) in 1962 the Seneca Nation (Had a claim with the Indian Claima Conunia- iion igainat the United Statea for uae of Improper leaae fees, and In 19T7 a aettlement waa reached regarding luch claim, providing for the payment of $600,000 to the Seneca Nation eovering the period beginning in 1870 to the end of 1946. (3) An analyaia of hlatoric land vahiea Indicitea that the paymenu made under the original leaae agreement and under the aettlement described in paragraph (2XE) were well below the actnal leaae vahie of the property. (4) The approaching expiration of the Ralamanra and congreaaional village leaaee on February 19, 1991, haa created dgniflcant uncertainty and concern on the part of the dty of Salamanca and a«i«m«nf reaidenta, and among the reaidenta of the congreaaional villagea, many of whose famiUea hare resided on leaaed lands for generationa. (5) The titan economic sueeeas ct the Seneca Nation, dty, and congressional villages ia tied to the aecuring of a ftitun leaae agreement (6) The Federal and State govenunenta have agreed that there ia a moral responsibility on the part of both govetrunenta to be4> aeoire a fidr and equitable aettlement for past inequities. (b) Purpose It ia the purpose of this sabehaptsr (1) to effectuate and auppoct the Agreement bif as u the city and the Seneca Nation, and bdUtate the negotiatioB at nam leaaea wtik taasaaa m the congreaaional viUagea; (2) to aaaist in resolving the past inequities isvotviiw ths 1890 leaaea and to aecure fitir and equitable compenaation for the Senses Nadoa bassd on the fanpaet of theae leaaea on the eoooomy and eohan ct the Saases Nadoo; (5) to provide a prodnetive eovinxifflent betwMB ths SsfMca Nation and l e ss e e s for negotiating the leaaea provided for under ths Agrasmcnt; (4) to provide stability and aaeoiltjr to ths dty and (hs eoag r ea sinn i l vfllagaa, their residents, snd businesses; (6) to promote ths eeoaomie growth oT ths dty sad Iks c o affsss ton sl villagea; (6) to promote economic aetf-s uffl dspe y fbr ths SsBsea Naboa aad its memben; (7) to promote coupei ativ e economif and coaunnlly l is'i si npm i nt efforts oa the part of the Seneca Nation and the dty; and (8) to avoid the potential legal UabiBtyao the part oT lbs t'oitsd Statea that could be a direct conaeqnence of not reaching a aeCtlansBS. (Pub.U 101-6(0, « t Nov. >, 1980. 10« BUL VOL) mSTOUCAL AND 8TATUT0KT NOTD SlMtt THk dtad m Ifea -jmrnt NaSos Stttkment Act of S«:tion 1 at Pnbi. lOl-fiO* pnivldad that: INOr.* Thii Act (•nactfnc this wbefaaptar] OMy bs UBBABT UrUBNCn IndiMW •>1«(S). CJ3. Indiaot I 67 « Mq. WE8TLAW IViiae No. 200. t in4a. DcfinitioiM For the purpoaea of thia subchapter— (I) the term "1890 leaas' masns a lease mads by titt Scasca Nation wfaidi ii subject to— (A) the Act entitled "An Act to authorias the Saaaea Natioo of New York Indiana to lease landa within the Cattaraugua aad AUegaoy Reaervationa, and to confirm existing leaaea' approved February 19. 1876 (chap. 90. 18 Stat 330); and (B) the Act entitled to "An Act to authorize the Seneca Nation of New York Indians to leaae landa within the Cattaraugua and Allegany Reaervationa, and 433 295 25 § 1774a INDIANS to confirm ndcting letse*" approved September 80. 1890 (eha(v 1132, 26 Sut 668); (2) the term "Agreement" meanj the doeuneot executed bj the Seneca Nation and the dty entitled "Agreement between the Seneca Nation of Indlani and the City of Salamanca". Including the appendix to the Agreement; (3) the term "dty" meana the dty of Salamanca, New York; (4) the term "leasee" meana the holder of an 1890 lewe which either expiree In 1991 or la one of the leaaea lifted In document 1 of the Technical Documenta, including any leaaee who holda an 1890 leaae by reaaon of aaslgnment. Inheritance, or other manner u provided by the Act referred to h paragraph (IKA); (5) the term "memorandum of undentanding" meana an agreement between the State and the Seneca Nadon pertaining to the payment of the flinda to be provided punuant to thia cubchapter, which memorandum of underttandiiig reflect! an agreement between the Seneca Nation and the State concerning a meehinlsm and fchedule of paymenta for the ftinda deaciibed In section 1774d(e) of thia titie; (6) the tenn "Secretary means the Secretary of the Interior; (7) the term "Seneca Natloa* meana the Seneca Nation of Indiana of the Allegany. Cattaraugua. aad 00 Spring Reservations; (8) the term "Stau" mesas ths State of New Yoriq (9) the term Technxal Dcfumeats" means ths doeoznents which eompdse the appendix to tlie AgreeracDt. tod (10) the term "congreMMoal vflkges' mesns the vUlsges of CarroIltoD, Great Valley, and Vandaha m ths Stsu ct New York. (PubX. lOl-fiOS, I t. No*, t im. IM Sua. ifll) I 1774b. New leases uti nOt^mUtautai of cUIom (a) New leases If the Seneca Nation offcn new leases in aeeordanoe with the Agreement, tha subchapter ahall apply with respect to tite Seneca Nation. The Seneca Nation thaU supply copies of luch leases to ths Sseretary and ahsQ certify in writing that it Kaa supplied the Secretary ^rxh eoftm 'ments for ftinda pursusnt to section 1774d(ci ■d this title. Such sgreement ihail rmin the offen, seeeptanees snd the rehnquishmets effective so long as the psyroMCs sn made as agreed upon by tlte Seneca Nation im the State. (Pab.L. 101-608. I 4, Nov. X 1990. 104 Am. 1294.) LIBRABT KEfEBfiNCES Indiani ^16(3). CJS. Indlaii* I te. WESTLAW Topk No. 209. 434 296 INDIANS 25 § 1774d I ir74€. RMpoMlbilitlct ud rettrictioiu (() 8«iMca Nttioa The Congrew finda that the Seneca Nation ia solely responaible for negotiation of the leaaaa under the Agreement in ita own intereat and approval of any luch leaae by the United Statea ia not required. (b) L ea aa ea The Congreaa finda that— (1) the leaaeea of leaaea with the Seneca Nation are responaible for representing their «wn int«reat in leaae negotiationa with the Seneca Nation: and (2) nothing in thla aobchapter ahall be conatrued to prevent the leaaeea from eoUectivdy negotiating with the Seneca Nation regarding nich leaaes, whether through informal groupa or aa delegationa formally aanetioned by either the State or local govenunenta. (c) United StAtaa (1) The United Statea ahaD not aenre in a capacity to approve leaaea of the Seneca Nation. (2) Federal Am be uaed for the economic and community development of the Seneca Nation, Including the dty of Sala m a n ca, which U an Inte^ part of the Seneca Nation's Allegany Reaervation. Such amount ahaU be depoaitfld by the Secretary, adminiatered, and diaburaed in accordance with aubparagraph (B). (B)(1) The turn of 12,000.000 shall be depodted in a separate Inlereet bearing account of the Seneca Nation. The account ahall be administered, and the principal and intereat thereon diaburaed, by the Seaeea Nation In accordance with a plan approved by the Cooodl of the Sen«ca Nation to promoU the economic and community development of the Seneca Nation. Until the principal is expended pursuant to such plan, the tT"^''y aoouing from such sum shall be disbursed to the treasurer of the Sfv ^ Nation on a quartarly baaia to fUnd tribal government operations and to provide for the general welfare of the Seneca Nation and tta memben. The Seneca Nation may in iU disa?etion add the accrued Income to the prlndpaL (U) The sum of $3,000,000 shall be deposited In an escrow account which ahaU be owned by the Seneca Nation. The escrow agent shaD be selected by agreement of the Seneca Nation and the dty. The escrow account shall remain in existence for a period of ten years from the date on which the principal la deposited or until all payments provided for under aectibii VD. of the Agreement have been made. The escrow account shall be held and diabursed for economic and communttjr itntia^ ment aa aet forth in section V.D. of the Agreement Upon the expiration of the ten- year pehod, the (3,000,000 principal ahall be disbursed in accordance with a pUa approved by the Council oi the Seneca Nation to promote the economic and community development of the Seneca Nation. (c) Funds to be prarided by the StaU The State, in accordance with iU lawa and regulationa shall provide the som of $16,000,000 in caah paymentu and $9,000,000 for economic or community development subject to the provlsiona of the memorandum of understanding. (d) Time of payments The paymenta required by thia section on the part of the United States shall be made within 30 days of the Secretary's determinatioo that the Seneca Nation haa complied with section lT74b of thia title, or upon the availability of the amounts necessary to carry out thk subchapter, if soeh determination haa previouaty been made If the Secretary determinea that the Soieca Nstioo haa not complied with section 1774b of this title, he shall adviae the Seneca Nation in writing of all steps it must take to comply. (e) Limltatioii The only amoonta available to carry out thia subchapter ahaU be those amoonta spedflcaUy appropriated by the Congress or the legislature of the State to carry out thia subchapter. (PubX. lOl-eOB. I «, Nov. >. 19«0. 1(M Stat 1296.) UBRABY REFESKNCIS United Statea »10B. CJ.S. UnitKl Statas H lO. 1S& WESTLAW Tdi*: Na t». i 1774e. CondKioM precedent to payment of United Statea and StAU ftuids Amounts may not be expended fh>ni — (1) the $30,000,000 and the $5,000,000 provided by the United Statea under section 1774d(b) of this title, and (2) the $16,000,000 and $9,000,000 provided by the State under section 1774d(c) of this title, until sfler the authorired ofDciala of the Seneca Nation execute new leases with sU lessees who accept the Seneca Nation's offer of a new lease, ss filed with the Secretary 436 298 INDIANS 25 § 1774k under Mction 1774bm real property tax rolls of State political subdivisions. Unless the Secretary determines within 80 days after the comment period that sneh lands should not be subject to the provisions of section 177 of this title, such Isnds shall be subject to the provisions of thst section and shall be held in restricted fee sUtus by the Seneca Nation. Baaed on the proxbnity of the land acquired to the Seneca Nation's reaervstions, land aequirsd may become a part of and expand the boundaries of the Allegany Resenrstion, the Cattarau- gus Reservstion, or the Oil Spring Reservation in accordance with the procedures established by the Seeretary for thia purpose. (PubX. 101-609, 1 8. Now. a, 1990. 104 Stat 1296.) UBBABT REFERENCES IndUos »« et a*}. J.S. lodiaa* I 6T at i«|. WESTLAW To|)fe No. £09. I 1774r. Limitatioa of action Notwithstanding any other provision of Isw, any action to contest the constitutioaslity or validity under law of this subchapter shall be barred unless the action Is filed on or before the dste which is 180 days after November 3. 1990. Exclusive Jurisdiction over any such action is hereby vested in the United Sutes District Court for the Western District of New York. (Pub.L. 101-601 1 9, Not. i, 1990. 104 StaL U9T.) LIBRABY REFEaE.NCES Unitad State* •>iai CJS. Unitad StatM I 192. WESTLAW Topic No. 898. 437 •ruSCAIttS SuppPimiMwiS 299 25 i 1774h INDIANS ( I774h. Authorlutioii of appropriatioiu There !■ authorized to be ippropriated luch gums u may be neceasary to carry ogt thli lubchapter. (Pub.L. 101-80>. I 10. No*. I, 1980. 104 SUL 1297.) SUBCHAPTER DC— MOHEGAN NATION (CONNECTICUT) LAND CLAIMS SETTLEMENT I 1775. Findinci and purpoaea (a) Findiiia Congreaa flnda the following: (1) The Mohefan Tribe ot ladlaiM of Coooecticat received recognitioD by the United Statea puranant to the idininiatradve proceas onder part 83 of title 26 of tht Code of Federal Regularinna (2) The Mohegaa Tribe al ladiaoa ot Coeneetinit la the aueeeaaor in intereat to the aboriginal entity Imown aa the Mohcfan Indian Tribe. (3) The Mobegan Tribe haa esiaud ta the geographic area that ia comotly tht State dii« befcri the United Statea District Coart for tht Soothera District of Connectkuii rtlatea to the ownerthip of certain landa within the State of CoonectictiL («) SodiaetioBWIDUketyreaBktaacoaoafehardahipaflarreaidentaoftheStatt of Connectieot, indnding tmUmtM of the town at MoatrlDe, Conneetictit bj eneamberiag the tide to landa ta the Slata. iaefaiding landa that are not eurreottf the sohject of the action. (7) TIm StaU of Cooneeticat and the Uohegan TMbe have exeented agreemcBta for the parpoaea of raaolviag aU diapiiia between the State of ConneetieBt and tht for the aedoa ratered to In pangnfik retered to in paragraphs (6) and (6) lattara oT Joriadietion with respect to fDambera of the Uohegan Tribe sad of gaoing-ralatad davriopmaBt, it k Uohegan TMba and providing a (6). (8) In order to implemant the of aeetioB 1776a of thia titla thai eeitaln oflhnaea miinilllad by aa other I'M*!*"* la imliao euuaiiy a aeeeaaaiy for the Congreaa ts (!) na town at MontviDa. CoBaactieat. wiD— (A) be affected by the loaa of a tax baaa from, and jtniadietion over, Isodi that wiU be held in tnHt by the United Statea on behalf of the Uohegan IMbc and (B) aerr«M the boat eoaaauHty for the gaming oparatlaoa of the Uohspa Tribe. (10) IIm town of UootviDe and the Uohegan Tribe have entered into ■ , to reeolve taaoaa anatt tifasa them and to eatabUah the basis fvi (b) the State of Coonadicat by tkt "Hie puipossa of tUa snbehaptar are ta feOowK (1) To focittate the aeCtlcnMnt of dataa i Uohegan Tliba. (2) To bdUtaU the removal of any tncnafaranee to any title to land in the SUM of Connoctknt that would have reauttadfrna the aetloB retered to tanbatrtiMid) ofthtoi (PubX. io»4rr. 1 1 Od. II, itM, loi SIM- laot > 438 300 to negotiate new leases with leaseholders and to relinquish claims against the federal guvei iiuieiit. Coat to Stat* and local government* 8. 2896 would reauire that the State of New York pay |26 mil- lion to the Seneca Nation. |16 million as a cash pevment, and $9 million Tor community ana economic development. Tnese payments would be subject to a memorandum of understanding to do agreed to by the state and the Seneca Nation. The bill also provides that any land subsequently acquired by the tribe may be held in re- stricted fee status or become oart of the Nation's reservation land. If the Nation buys additional land, this could result in loss of prop- erty tax revenue to local governments, since the land would become nontaxable. The Nation currently has no plans to purchase large amounts of taxable land, and we estimate that these costs would not be significant. If vou wish further details on this estimate, we will be pleased to provide them. The CSO ataff contact is Maria Morgan, who can be reached at 226-2860. Sincetwy, ROBEKT D. RkUCHAUKB. Director. KSQULATOKT DtPACT STATKMBIfT Paragraph 11(b) of rale XXVI of the Standing Rules of the Senate requires each report accompanying a bUl to evaluate the regolatorr and peperwonc impact that would be incurred in carry- ing out the bOL The- Committee believes that S. 2896 will have a mniimal regulatory or pa p e i w o i k impact kzBCunva ocnnnnncATiONs The only oommonication l e cel te d from the Executive Branch on a 2895 waa ia the form ofte tlm on y from witnuesw for the Depart- ment of the Interior. The pt ep ai e d ■tatetu e ut of Walter R. toilla, Dspoty to the Aasittant Secretary— Indian AfTairB, Department of the Interior foliowK gTATamafT or WAi;m m. mua, uapuii to tiib AssierANT ■ccaKTAKT — rniMAM hTTAOM, DaPAanoMT or TRB i wiaaioa I Good morning. Mr. Chairman, aitd m e m bers of the Com- ' mittee. I am p l e as ed to be here to present the views of the | Department on S. 2895, the "Seneca Nation SeUlement | Act of 1990". ' S. 2895 seeks to address past inequitiea. to extinguish all prior daima of ttie Seneca Nation by making it whole, and I to allow lease renewals. I want to eommend the Seneca I Nation, the City of Salamanca, and m e iiib e i e of the New ! York Cong ie a al enal delegation for their efTorta to develop a oonsanus solution to the leasing of Seneca lands. While we support efforts to resolve the issues betwe e n the Seneca Nation and the Gty of Salamanca. New York, the Admin- istration strongly opp oa ta & 2895. 301 89 — fh^^^^ V*" ^'^ °l '■^"'"'Z 19. »»76 (18 Stat 330) authonasd the leasing of certain Seneca lands within the A""^G''s^r^t*°"- "".If " J^ amendment tTthi I8?5 wAISTk'^mV"'^ 2^ 99-year leases of Seneca lands iT^thS'tlTe i^;^^';''"*"^ ""t*"- »*15 '875 act (primari- ly withm the Citjr of Salamanca. New York) will expire in ^ n^^S5 **""'* i''*'^""'.**'' '«"• """^ lum,«um payments are now bem? made by the City directly tothe "rtibe oui- suant to the Act of August 14. ij)50 (64 Stat 442) ^ TTie purpose of the proposed Act aopeare to be to settle ^r™^.".!!'^*"^ "^'•^ **^ ^^"^ Nation result- to tSS ml ^^ Ater ?PPT^ '^ Congress pursuant NalJoS -S .h- .^* egalation. the l.-ssor Seneca Sh^ ?„ f the non-Indian leasee* will have to go to art*- - «^t-l «?^ ^"^VL*^^ ri^tfallT demand fair marS g» thPn^lIL H ■"** th« "rbi^tor ooafd not fairly allow any- 8 could afford to pay fair market rental. •♦ l«-]^^!£r!I!^"'*'^ rtrongly opposes a 2895 for the fol- JP iowingreasuiiK S heinl\LTL"r** "*** ?^e"™?7?**"y- *»* UnJ^ States is g Sb;a?A'^cf^'^-™'^«-"'-PP--^»«0^n' ? S onrfL .^^*^ ''•'^ iVS** ^«^"^ government is liable ^ ^fy Itt^T;:: pJ*^ *** .TTBngement. S 2895 incor- S fV^ii l^^ the Federal goremnjent is potenUally liable •* for ita action in thia matter. Z, eoSUIJl^oJf J!L^2!!^!2**^ for how the $60 million in P {fc/?S5. ^ "'•^ ^****' "^ "* Stato of £ tW^ rf^^ "^"'^ adequately address the market sensi- I^ Sd^,2^iSf''T.'*^ »'?X?*"*" •**'■'*«»"* Seneca Nation «« .tir^ """^ Execulire Bnindi was not a party to the neeoti«- S2m^ !^ ^",«t«nentof rtgnlficant federal funds. TT^« eouldwrt an adrerse precedent for addressing other Indian wlSJhi?SllTr«!i-!l^'1 •* understood that it is not clear thTloTril^-V *^ ?*■*? «*"'«* •* »»^<> 'egally liable for 302 40 propurly." We are, of course, aware of the Stlglitt Report which the Nation submitted to Mr. Houghton on October 26, 1989. Professor StigliU provided an abundance of fig- ures with regard to rental values. The Department has always sought to establish some concrete basis for pay- ment such as ronlul or sale value per acru at o given time In order to reach a total figure (or a land claims settle- ment Here, we And none. Tliia should be clarified for the record. In addition, the bill does not establish the basis upon which the proportiunatc (Inancial burdens of rtiaponsibillly have been divided between the United States and New York. We are also confused over the language of section 2(aX2XE) which states that the Seneca Nation Tiled a claim aguinst the United States "for uae of improper lease 9 fees. . . ." We are unclear aa to th« purpoee of this sub- g» •ection. We recommend that this subsection be deleted or B reworded for the sake of clarity. B' Finally, 8. 2895 does not provide for a conclusive settle- B nient of the imuoe butwoon the Bencca Nation end the City of Salatnanca, New York. For example, the bill does not }C address the ownership of improvementa at Salamanca. g This concludes my prepared testimony, and I will be 2 jv happy to respond to any questions the Committee Boi^t " P have. W '^ CHANGES IN EXISHNQ LAW In compliance with subsection 12 of role XXVI of the Standing Rules of the Senate, the Committee states that enactment of B. 2896 will not result In any changes in existing law. r 303 Attachment s United States Department of the Interior OFFICE OF THE SOLICITOR WASHINGTON. DC 20240 BIA.IA.0603 July 26, 1985 Honorable Morris K. udall Cha i rman Committee on Interior and Insular Affairs U.S. House of Representatives Washington, D.C. 20515 ••Jf.'ft^Dear Mr. Chairman: • This is our response to your April 25, 1985 request for an opinion on the nature of the rights, if any, created by legislation authorizing the Seneca Nation to lease land in Salamanca, New York on its Allegany Reservation. There are approximately three thousand leases which come up for renewal in 1991. Our conclusion is that the Secretary of the Interior has no responsibility for approval or renewal of these leases. The pertinent legislation, however, provides a method for resolving disputes which arise over the renegotiation of the renewal terms. The United States acknowledged certain land in New York to be the property of the Seneca Nation by the 1794 Treaty of Canandaigua. 7 Stat. 44. It also guaranteed the Senecas unrestricted "use and enjoyment" of what, through later treaties, became known as the Allegany and Cattaraugus Reservations. In the mid-nineteenth century, railroad companies and settlers leased certain parts of these reservations from the Senecas, and these leases were purportedly ratified by New York State. A New York court 'subsequently found them invalid. On February 19, 1875, in response to the court decision. Congress enacted the first legislation dealing with leasing on the Allegany Reservation. 18 Stat. 330. Section 1 of the act ratified leases to railroads which had been made in accordance with Seneca law. in addition, it authorized, without conditions, further leases for "railroad purposes". Section 2 of the act required three presidential commissioners to survey and establish boundaries for six villages within the Allegany Reservation. Leases within these villages, including Salamanca, were declared valid and binding on the parties for no more than five more years. After that time, in 1880, the leases terminated except for a right of renewal in the owner(s) of any improvements for no more than twelve years. In 1890, Congress ' amended the 1875 act to provide a renewal term of no more than 99 years. 26 Stat. 558. 304 -2- The act provides that the owners of the improvements on the parcels, who in this case are generally the lessees, shall have the right to the renewal option. This implies that they must make it known that they desire to renew their leases. Once this occurs, the lessee and the Seneca Nation must agree on new terms for the renewal period. if the parties cannot agree, each shall appoint a referee to work together to set the terms. If the referees cannot agree, they shall choose a third referee and the three shall, by majority decision, set the terms. The act places no restrictions on the terms except that the leases shall be renewable for a period not to exceed 99 years. 25 Stat. 558 There are no provisions for Secretarial approval or involvement in the process of setting the terms for renewal leases. It is noteworthy that an amendment was offered and rejected by the Senate in 1875 which would have required that "all leases now made or hereafter to be made pursuant to this Act shall be subject for their validity to the approval of the Secretary of the Interior". 3 Cong, Rec. 919. Originally, the monies received for these leases were paid directly to the Seneca treasurer. in 1901, as a result of irregularities in the accounts of the treasurer. Congress authorized payment of the lease income to the U.S. Indian agent for the Seneca Nation. 31 Stat. 819. The agent was required to report annually to the Commissioner of Indian Affairs. In 1950 the responsibility was transferred back to the Seneca Nation treasurer. 64 Stat. 442. Consequently, it is our opinion the United States currently has no responsibility with respect to these leases. The 1950 legislation also provided that the City of Salamanca, if authorized under New York law, could make annual payments on behalf of all lessees within the city to the Seneca Nation. This was to avoid the cancellation of individual leases for non- payment of rent. The city is continuing to make a lump-sum payment for all leases within the city each year. With respect to the 50-year leases issued in recent years and referenced in your letter, we have no specific information about such leases. The 1950 amendment to the original legislation authorized the Seneca Nation to issue leases to all areas within their reservation even if outside the villages "for such purposes and such periods as may be permitted by the laws of the State of New York." As indicated above, however, there is no requirement for approval by the Secretary of the Interior or the Bureau of Indian Affairs. If^you have any further questions, please feel free to contact Sincerely CC ^ f^-C^i/c— Marian Blank Horn Principal Deputy Solicitor 305 AttacljTOcnt 6 W HEPIY Mia. TO; BCCO #2079 United States Department of the Interior BUREAU OF INDIAN AFFAIRS EASTERN AREA OFFICE 19SI Conitltution Avenue ^fW. Wuhlogioo, D.C. 20245 JUL ' Mrs. Candace M. Brown 35 Wlldwood Avenue Salamanca, New York li»779 Dear Mrs. Brown: TMs office has been requested to respond to your June 12 letter to President Reagan dealing with the future of the town of Sfidamanca. fjn attempting to respond to your concern, a brief explanation of our relationship with the Seneca Nation Is needed. The United States does not hold title to the land (in trust) for the Seneca Nation. Since the United States Is not the trustee of the Seneca lands, our role In their administration arises throu^ the power of the Constitution and through general statutes such as the Non-Intercourse Act of IBS'*. •nie Congressional Act of August 1^*, 1950 permitted the Seneca Nation to directly exercise certain functions Including the leasing of lands. This legislation was viewed as furthering the policy of enhancing tribal control of their resources. Further, the Act of September l^l, 196I removed federal control over rl^ts-of-way on the Senecas' lands and removed a fiscal limitation on distribution of rentad Income. The Acts of August 195O and September I96I have sharply reduced federal control and supervision of these leases and has placed their administration upon the Seneca Nation. We are awau:^ of the problem now being experlaiced by the Tribe and the residents of Salamanca and we sympathize with the situation that currently exists. We are confident that the Seieca Nation and the residents of Ssilamanca through their representatives will be able to resolve the Issues before them to the best Interests of all parties and to Insure the continued prosperity of the Area. Sincerely, 1/ B. D. Ott Area Director Eastern Area Office 306 Attachment 7 Tbe BenGca Nation of Indians 1490 Rt 438 IRVING. NF.W YORK HOPl Phono 1716) S32.4<»rKl Phont 1716) 532 4907 lox •I7161S32 913^ P Bc« 231 SALAMANCA. NEW YORK 14779 Phon« (7161 9451790 Ftx "17161945 3917 PRESIDENT • CaMi Kdl/ Jo»m. Ri 4J7. PO flox 213. Sitombwa. KY J47R? CLERK • MoriM P'iniup. PO Hex .S.M. Sotomoncu. .NY 14779 TREASURER • Peonl.- M, iay. P.O. Sox 26. Mile Block Ruoii. Lav-lum,. NY 14091 October 21. 1991 CERTIFIED HAIL - RETURK RECEIPT REOUESTEO Mr. and Mrs. Dayrll V.'etherby Korth Nine Hile Rd. Allegany, NY 14706 RE I VANDALIA LEASE NO. VA-050e2 (Old Lease No.i G 259. G) Dear Mr. & Mrs. Wetherbyi On Monday, April 29, 1991, your present lease was signed and executed by both reepectlve parties. The above document has since been filed and recorded also at the Office of the Secretary of the Interior in Washington, DC. We are now in the process of complying with the provisions as set forth in the Seneca Settlement Act of 1990. In response to your removal of the house recently from the above leased premises, the Nation considers that action to be in violation of federal law, as well as in violation of your lease. Under fundamental principles of property law, improvements attached to land -- like a home — belong to the owner of the land, unless there is an express agreement to the contrary. We are also informed that you removed the house without securing any required permits regarding crossing bridges, electrical safety and the like. This demonstrated your disregard for the law, as well as for the safety of the community at large. In addition, your removal of the house left a hole in Nation lands which has not been adequately filled in by you. This, too, endangers the Reserva- tion population. 307 Mr. & Mrs. Wetherby October 21, 1991 Page 2 Since you are In default of the lease, you are hereby given written notice to coirjnence within 30 days actions to cure that default by restoring the premises to their original condition, usefulness and value. Failure to commence actions to cure your default within 30 days of this notice, and to complete the cure within 90 days of this notice, will result in termination of your lease by the Nation. Until that time, no transfer of property can be made. Sincerely, Calvin John President 308 Attachment 8 DINNIB OlCONCINI. AflllONA outtfnw N tuuMCc. NonrH oakota THOMAC A. OaCCHLI COLITX DAKOTA V MtAlC6 KAMCY LANOOK K>kl||AUU hANCAt tiOU MfCtUI OKLAHOMA vATRiciA u nm ^1AFF Oin[CTO«/Ch'Cf COUNtlL OANItL N IFM^ M'NOmTT JTAft DlHtCOM lanitd 3tatEB Senate SELECT COMMITTEE ON INDIAN AFFAIRS WASHINGTON. DC 20610-6460 February 21, 1992 The Honorable Alfonse M. United States Senate Washington, D.c. ' 20510 Dear Al : D ' Aroato I am vrriting in response to your letter requesting that the Select Committee on Indian Affairs conduct a hearing on the rights and obligations of the parties under the Lrcase Agreement between the Seneca Nation and the City of Salamanca. As you know, at the request of the parties, this Agreement was ratified by the Congress in Public Law 101-503 as a part of a settlement package involving significant payments by both the United States and the State of New York in compensation for losses sustained by the Seneca Nation over the past 100 years. The Agreement that was entered into by the City of Salamanca and the Seneca Nation was fashioned as a result of several years of very intense and at times acrimonious negotiations. There was hard negotiating on both sides of the table, and the Agreement that was reached was regarded by both sides as the best that could be achieved. Unfortunately, not every issue between the parties could be resolved. One issue that was left open was the question of ownership of improvements on the land. That was an intentional decision which is reflected in the Agreement and in the lease terms. In the course of the negotiations, the Seneca Nation asserted ownership of the improvements and sought a rental rate based on such ownership. The negotiators for the City would not agree to the claim of ownership, when it became clear that the rental rate sought by the Seneca Nation was beyond the capacity of the City to pay, the Nation agreed to a lease (or leases) based only on the value of land. In effect, the Nation agreed to defer its claim to ownership of the improvements during the term of the lease. While there may be some unhappiness and unease with the terms of these leases and the Agreement entered into between the City and the Nation, it is my understanding that 96% of the former lessees have signed new leases. Transactions involving real estate are taking place; home equity loans are available;. the leasehold interests have been deemed eligible for insurance 309 under the National Housing Act, and funds are available for the purchase and sale of these properties. I believe that the request for a hearing ia based on the notion that Congress can undo the Agreement between the City and the Nation — that Congress can unilaterally impose its will to declare or alter property relationships or nullify contracts. Congress simply does not have such power. The Agreement between the City of Salamanca and the Seneca Nation and the passage of Public Law 101-503 represent the beginning of a healing process that muet now take place. I believe a hearing would raise false hopes and would be counter- productive to the positive steps that are currently taking place. I encourage all parties in this matter to be patient with each other, and to discuss with each other their matters of mutual concern. The recent funding of the Joint Leasing Commission is a positive step in the right direction. For my own part, I would be pleased to work with you and other merabers of the New York delegation to assist in improving the economic circumstances that presently prevail in this area of your state. I believe the Settlement Act provides a basis for the Seneca Nation and the City of Salamanca to work together in economic development in this region. ely. aEL K. INOUYE Chairman 310 Attachment p 310 Scmca [Nation oj Dndians JUSTICE DIVISION Robert B Porter Justice Commissioner September 3, 1994 VIA CERTIFIED MAIL Dear Former Lessee: On August 20, 1994, the Council of the Seneca Nation of Indians passed a resolution authorizing and directing Nation President Barry E. Snyder, Sr. to execute a new lease with any former lessee of lands within the City of Salamanca and the Congressional Villages who is currently without a valid lease (•"Former Lessee"). The resolution was passed contingent upon the United States filing an action in the United States District Court for the Western District of New York against all Former Lessees for (i) ejectment from Nation territory, (ii) trespass damaaes based upon fair rental value and (iii) punitive damages for wilful and malicious refusal to deliver possession. Enclosed are the following documents: 1. Policies and Procedures Governing the Fourth and Final Opportunity to Execute a New Lease with the Seneca Nation of Indians ("Policies and Procedures"); and 2. List of Former Lessees, parcel addresses and payment due. The Nation offers you a new lease in accordance with the terms and conditions set forth in the Policies and Procedures. In order to avail yourself of this opportunity, you must provide proof of your status as a Former Lessee. Suoh proof may include a deed indenture, a land contract, a mortgage document, a survey, a title opinion or any other document evidencing status as a Former Lessee. If any leasehold is subject to a mortgage, evidence of such must be provided. Corporate Former Lessees must produce a certified resolution of its board of directors authorizing its designated officer to execute a new lease. 311 Lett«r to Former Lessee September 2, 1994 page 2 The Nation and the Qity of Salamanca are taking several steps to asslBt Former Lessees in the process of securing a new lease. Former Lessees within the City are requested to deliver required documentation to City officials no later than September 9, 1994. said officials shall then transmit such documentation to the Nation. Former Lessees residing within the Congressional Villages are requested to deliver required documentation to the Nation Lease Administration Department, Plumser Building, Jimersontown, Allegany Reservation, also by September 9, 1994. Payment must be made at the time of execution of a new lease. Item number 2 above sets forth the payment due by any Former Lessee seeking to obtain a new lease. If you have any questions regarding any aspect of this lease signing opportunity, please first consult the Policies and Procedures, otherwise. Former Lessees within the City of Salamanca should contact the City regarding questions relating to proper documentation. All other questions by any Former Lessee may be directed to the Nation Lease Administration Department (945-1790). Robert B. Porter Justice Commissioner and Acting Director, Lease Administration Department 312 United States Department of the Intel ior ()FFI(> OF rilh M)l Id For SEP \ '^9^^ TO: ALL PERSONS ON ATTACHED DISTRIBUTION LIST RE: Notice of Intent to File Complaint in Federal District Court This office represents the United States Department of the Interior (Department) and its agencies, including the Bureau of Indian Affairs. The Department is charged with protecting the possessory interests of a Indian tribe in its land and ensuring that Indian lands are not conveyed without the consent of Congress. The Seneca Nation of Indians has informed the Department that you are in possession of one or more parcels land located in either the City of Salamanca, New York or the congressional villages of Carrollton, New York and Great Valley, New York, each of which are in turn principally located within the exterior boundaries of the Nation's Allegany Reservation. We are also informed that you are occupying the subject premises without a valid lease or sublease. The City of Salamanca and the congressional villages of Carrollton and Great Valley are located on lands owned in fee by the Seneca Nation of Indians, a federally recognized Indian tribe. The Nation holds the Allegany Reservation under the Treaty of November 11, 1794. 7 Stat. 44. Under the Act of February 19, 1875, Stat. 330, as amended. Act of September 30, 1890, 26 Stat. 558, leases held by non-members of the Nation were renewed, all for a term which expired February 19, 1991. Pursuant to the Agreement between the Seneca Nation of Indians and the City of Salamanca executed on July 12-13, 1990 and federal legislation ratifying the Agreement, the Seneca Nation Settlement Act, P.L. 101-503, the Seneca Nation has offered new leases to all existing lessees of Seneca lands in the City of Salamanca and the congressional villages. The Seneca Nation of Indians has provided all affected lessees three separate opportunities to execute new leases: February 15-19, 1991; April 15-29, 1991; and December 2-6, 1991. Records received from the Seneca Nations of Indians indicate that you have not entered into a valid lease or sublease authorizing your possession of the Seneca lands you are now holding. You have been provided ample opportunity to enter into a new lease as provided for in the Agreement and Act but have failed to do so as of this date. You are hereby advised that continued possession of Seneca lands without a valid lease or sublease is an act of trespass on tribal lands. This is notice that you must take appropriate measures to either enter into a new lease with the Seneca Nation of Indians or vacate the premises and deliver possession to the Nation on or before September 16, 1994. If you fall to execute a new lease or deliver possession of the premises on or before September 16, 1994, we will 313 request that the United States Deportment of Justice file suit against you In federal district court for ejectment from the Seneca Nation of Indians lands you now hold and for trespass damages based on fair rental value of the subject land. We may also seek punitive damages for wilful and malicious refusal to deliver possession. Please notify this office, office of the Solicitor, Division of Indian Affairs (202) 208-4361 if you have executed a new lease with the Seneca Nation of Indians, or if you are no longer in possession of the premises or intend to vacate the premises on or before September 16, 1994. Sincerely, Hichael Jv^^derson Associate Solicitor Division of Indian Affairs Attachment: Distribution List 314 542 928 FEDERAL REPORTER. 2d SERIES CONCLUSION We have reviewed appellant's remaining argumenU and find them to be without merit Baaed on the foregoing, the judg- ment of the district court is affirmed. # KtTittMMimnM^ JoMph FLUENT. IndlrlduaUy and aa a rcpreaentaUTC of the Claaa of Salama». ca Lesseca holding W-year l«a«« fro« Seneca Nation of Indians; Jan»«« V Monfillo, IndiTidiully and a« a refrt- sentatiTC of the claaa of Salamanca \f- teca holding 60-year leases from iW Seneca NaUon of Indians and K«Hh McClain. IndiTidually and aa a n^t*- sentaUTC of the class of con g r e sito— I Tillage leasees holding W-year \f»m from the Seneca NaUon of IndiaM Robert Adamic. IndiTidually and on ka- half of the claaa of leasees who stcMtf the "40/40 Leaae- Tendered by iha Seneca Nation of Indiana on or abo« September 4, 1990; Marilyn Adamic In- diTidually and on behalf of the claaa «f lesaees who signed the "40/40 Laaaa" Tendered by the Seneca Nation of !■«• ana on or about September 4. 199^ S*- Umanca CoaliUon of United Tazpayata. Int, IndiTidually and on behalf of Ha membership. Plaintifra-Appeilanta. T. SALAMANCA INDIAN LEASE At- THORITY; DaTid Frani. Indlrklnally and as Attorney for the City of Sal^ manca Indian Lease Authority: Anc*- nl;; Carbone, IndiTidually and aa May- or of the City of Salamanca and alM aa member of the Salamanca Indian L«aaa Authoritr. City of Salamanca: Patrick Callaghan. IndiriduaMy and as Chair- man of the Salamanca Indian Leaaa Authority: Unda Rychdk. Individually and aa a member of the Salamanca Indian Leaae Authoritr. Henry Stefan- sl(i. Indiridually and aa a member of the Salamanca Indian Lease Authority; Owen K. PhllUps, Individually and as a member of the Salamanca Indian Lease Authority; Dann Colvln. Individually and at a member of the Salamanca Indian Lease Authority: Paul Taylon Penny Buckley; Seneca NaUon of Indi- ans. Defendanta-Appellees. No. 1300. Docket 91-7086. United States Court of Appeals. Second Circuit Argued Feb. 19. 1991. Decided March 16, 1991. Lessees of tribal land brought action »cainst Seneca Nation to compel 99-year >aa« renewal and challenged conatitution- iiity of Seneca Nation Settlement Act of 1990. The United SUtes District Court for the Western District of New York, Richard J Afcara, J., dismissed action on grounds of sovereign immunity. Appeal was taken. The Court of Appeals, Miner, Circuit Judge, held that (1) 1875 Act vaUdating '>ngujal leases to settlors did not waive :seneca Nation's sovereign immunity, and ,2) dismissal of lessee's claims that 1990 .\ct waa unconstitutional was appropriate line* Seneca Nation waa indispensable par- ty and was also immune from suit Affirmed. I. Indians «»27(1) Although Indian tribes have common- 'Aw immunity from suit, tribal sovereignty « subject to Congreaa' plenary control, and Uius Congress is always at Uberty to dis- pense with or limit that immunity. Act Feb. 19. 1875, 9 8, 18 Stot 330. r Indians «=»27(1) Waiver of tribal immunity cannot be implied but must be unequivocaUy ex- pressed. 3. Indiana o-tld) The 1876 Act validating tribal property leases did not unambiguously express Con- gress' intent to subject Seneca Nation to lawsuits concerning disputes over lease ol 315 FLUENT T. SALAMANCA ciuMtia fjd tribal land. Act Feb. 19, 1876. ( 7, 18 Sut 330. 4. Indiana «>I6(2). TUl) Overriding purpose of 1875 Act vali- dating lease of Seneca Nation lands was to validate existing leases voluntarily entered into between Nation and settlors and did not unmistakably and clearly waive Na- tion's sovereign immunity from lawsuits. Act Feb. 19, 1875, § 7, 18 SUL 330. 5. Indians 27(5) Seneca Nation was indispensable party to action by lessees to declare Seneca Na- tion Settlement Act of 1990 approving ^?Kement for renewal of leases unconsti- tational; as party to agreement negotiated ^er two decades. Natim'a interest in valid- ity of lease agreement was significant fed.Rule8 CivJ»rt)C.Ruye 19(a. b), 28 U5. C-A.; Seneca Natioo Settlonent Act of 1990, § 2 et seq, 25 US.CJL ) 1774 et seq. *• Indians «»«(1) District court did not abase its discre- tion in dismissing action by lessees to hold ^«°«ca Nation Settlement Act of 1990 un- ^ostitutional after concluding that Seneca Nation, which was entitled to sovereign unmunity, was also indispensable party; **>«mi88al turned on fact that society con- *^U8ly opted to shield Indian tribes from ^it absent congressional or tribal consent ^neca National Settlement Act of 1990, * 2 et seq., 25 U.S.C.A. $ 1774 et seq.; Jed.Rul«, Civ.Proc.Ruk 19(a. b). 28 U.S. NDIAN LEASE AUTHORITY 543 S«l (ZadClr. IMI) Jennifer A. Coleman (Iris B. Schifeling, Damon &. Morey, Buffalo, NY., of coun- sel), for plaintiffs-appellants. Douglas B.L Endreson, Washington D.C. (Reid Peyton Chambers, Sonosky Chambers, Sachse &, Endreson, Washing ton, D.C, Michael Brady, Hagerty & Bra dy, Buffalo, N.Y., of counsel), for defen dant-appellee Seneca Nation of Indians. R. William Stephens (David M. Franr, Raichle, Banning, Weiss & Stephens, Buf- falo, N.Y., of counsel), for defendants-ap- pellees other than Seneca Nation of Indi- ans. Before FEINBERG, TIMBERS and MINER. Circuit Judges. MINER. Circuit Judge: Plaintiffs- Appellants Salamanca CoaJn tion of United Taxpayers, Inc. ("SCOLTV representing nearly 600 lessees, and fivr individual lessees (collectively "Apr«l lants") commenced this action against ihtir lessors, the Seneca Nation of Indians ( Sa tion"), tnd against the Salamanca Indian Lease Authority ("SILA"), the City of Sala manca ("City") and various City officials to compel the Nation to renew their leases f»r up to 99 years. Other relief was sougM. including a declaration that the agreement negotiated by SILA, the City and the s* tion for renewal of the leases was null and void. The Appellants also challenged 'h» constitntionality of the Seneca Nation Se< tlement Act of 1990, by which Congrwa approved the agreement for renewal of ts« leases and appropriated $35 million towaH the rental payments. The district court dismissed all claims against the Nauo«t finding that the Nation was immune from suit It also dismissed two claims against the remaining defendants on the ground that an abjudication of those claims in ih« absence of the Nation would impede (h« Nation's ability to protect its interest in \M subject of those claims. We hold that Om district court correctly found that the .S'a- tion was immune from suit under the doc^ trine of sovereign immunity and properly dismissed the other two claims against the remaining defendanta under Fed.R.Civ P 19. 316 544 928 FEDERAL REPORTER. 2d SERIES BACKGROUND The dispute giving rise to this action involves the renewal of leases to tribal lands within the City and outlying villages, known as the Congressional Villages. The tribal lands were leased by the Nation m the mid-nineteenth century to various set- tlers and railroads. The leases were vali- dated by Congress in the Act of February 19, 1875. ch. 90. 18 Stat 330 rirrr, An i When they were about to expire, the if as*- s were renewed in accordance with thf lerms of the 1875 Act, first in 1880 for a ; J- year term, then in 1892 for a 99-year term. <«•? Act of September 30, 1890. ch li:{2. IS Stat 558 ("1890 Act") (amending the \erated by the Act over which the court shall have jurisdiction." Section 7 pro- *^e« in material part [tjhat the . . . circuit and district courts °' the United SUtes in and for the north- ern [now western] district of [New '"fit], shall have jurisdiction of all ac- ^na for the recovery of rents and for the recovery of possession of any real property within the limita of said vil- lages, whether actions of debt eject- ment or other forms of action, according to the practice in said courts; and actions of forcible entry and detainer, or of un- lawful detainer arising in said villages, may be maintained in any of the courts of said county which have jurisdiction of such actions. The Appellants interpret this provision as authorizing actions by both lessors and les- sees. Likewise, they point to section 3 of the 1875 Act, which provides that persons who are the "owners of improvements erected upon such lands, shall be entitled to such renewed leases, ana to continue in possession of such lands," to support their contention that since lessees are entitled to possession upon renewal. Congress intend- ed to waive the Nation's immunity and to provide a forum for the resolution of dis- putes pertaining to possession. We dis- agree with Appellants' construction of the statute. [1-3] "Indian tribes have long been rec- ognized as possessing the common-law im- munity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo V. Martinez, 436 U.S. 49, 58, 98 S.Ct 1670, 1677, 56 LEd.2d 106 (1978); see Oklahoma Tax Comm 'n v. Citizen Band Potawatomi Indian Tribe, — U.S. , HI S.Ct 905, 908, 112 LEd.2d 1112 (1991). However, tribal sovereignty is subject to Congress' plenary control, and thus "Congress [is] always ... at liberty to dispense with . . . tribal immunity or to limit it" Id, 111 S.Ct at 910; see, e.g., Martinez, 436 U.S. at 58, 98 S.Ct at 1677; UniUd States v. Unit- ed States Fidelity & Guaranty Co.. 309 US. 506, 512, 60 S.Ct 653, 656, 84 LEd. 894 (1940); Turner v. UniUd States, 248 U.S. 354, 358, 39 S.Ct 109, 110, 63 LEd. 291 (1919); John v. City of Salamanca, 845 F.2d 37, 40 (2d Cir.), eert denied 488 U.S. 850, 109 S.Ct 133, 102 LEd.2d 106 (1988). It has long been the rule that waiv- er of tribal immunity cannot be implied but rather must be "unequivocally expressed." Martinez, 436 U.S. at 68-69, 98 S.Ct at 1677 (citations omitted). We agree with the district court that section 7 fails to \ .A' \ 318 928 FEDERAL^^B«0RTEllK2d SERIES that Ck)n immunity re marks the 187 unarotiipiouBly express Congress' intent to S.Ct. at 2 subject the Nation to lawsuiu concerning iegislaU"- disputes over the lease of tribal lands. See United States v. Charles, 23 F.Supp. 346. 348-49 (W.D.N. Y. 1938) (action to set aside deed held barred by sovereign immunity of the Seneca Nation of Indians). Section 7 enumerates actions typically brought by lessors, including actioiw " the recovery of rents and of possession of real property and actiops-ftrt^ebt, eject- _jj^Sjit^jQISi^M-.erctefBJid detainer and un- lawful detainer. Each enumerated action provides a remedy for the Nation against defaulting lessees. The fact that only a strained reading of the statute might per- mit specific forms of actions to be brought by tenants against their landlords serves to underscore the absence of a clear expres- sion of a waiver of the kind urged by the Appellants. Cf. Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct 2397, 2401. 105 L.Ed.2d 181 (1989). When Ck)ngress has chosen to limit or waive the sovereign immunity of Indian tribes, it has done so in clear lan- guage. See. e.g., Act of July 22. 1958. Pub.L No. 85-547, § 1, 72 SUt 403. 403 (authorizing Navajo and Hopi tribes "to commence or defend ... an action, against each other"); Act of December 22. 1974, Pub.L No. 93-531. § 8(a). 88 Stat 1712. 1715 (Either the Navajo or Hopi "tribe{ ] is hereby authorized to commence or de- fend ... an action against the other tribe."). Because a congressional waiver was not "unequivocally expressed." we may not hold that the sUtute relied upon by the Appellants waives the sovereign im- munity of the Nation. See Martinez, 436 U.S. at 68-59, 98 S.Ct at 1677. [41 Regarding the Appellants' conten- tion that the legislative history supports their position that Congress intended to provide a forum for all lease disputes, the need to resort to legislative history similar- ly highlights the deficiency of the Appel- lants' position. "If Congress' intention is 'unmistakably clear in the Unguage of the statute,' recourse to legislative history will be unnecessary; if Congress' intenuon is not unmistakably clear, recourse to legisla- tive history will be futile." Dellmuth, 109 1. Nevertheless, we think the history clearly demonstrates IS never intended to waive the j'f the Nation. The following . Senator Ingalls. a proponent of indicate the basic purpose of the .ct "[The 1875 Act] simply proposes ^«.v the leases which have been made by these Indians themselves, by their own con- sent shall be ratified and confirmed, and held to be valid and binding upon the par- ties who have voluntarily made these con- tracts." 3 Cong.Rec. 909-10 (1875). The legislation was proposed in light of a deci- sion by the New York Stote Supreme Court, in which the court found the leases to be invaUd because they were executed without the authorization of the United Sutes. See Fomess, 125 F.2d at 930-31 & n. 1. Thus, the overriding purpose of the 1875 Act was to validate the existing leases voluntarily entered into between the Na- tion and the settlers. Even assuming we were to agree with the Appellants' contention that the 1876 Act unmistakably and clearly waives the immunity of the Nation, we would affirm the district court's judgment on the ground that the renewal provisions of 1875 Act applied only to the original renewals and do not extend to the present renewals. Sec- tion 8 of the 1875 Act vaUdated leases existing at that time for a five-year term and authorized a term of renewal "not ex- ceeding twelve years." The 1875 Act also provided that "whenever any lease shall expire after its renewal .... it may, at the option of the lessee, his heirs or assigns, be renewed in the manner hereinbefore pro- vided." The 1890 Act amended the 1875 Act to aUow renewal for "a term not ex- ceeding ninety-nine years, instead of the term of twelve years." Thus, the leases that expired on February 19, 1991 are leas- es that previously were renewed a second time for a term of 99 years. The 1875 Act does not authorize a perpetual renewal, and without clear language to that effect we will not construe the sUtute to confer such a riirht See Winslow v. Baltmore «i?Tuby Appellants. [lY The arz'jment that the court erred in/uismissinK from the complaint claims in /hich '.he Appf Hants sought a judicial dec- laration hat the Agreement was null and void in.) -^M the i'J90 Act was unconstitu- tional • * ■'■•.I iny merit. The Nation mov'i •■• • -miN* these claims (the eighth an«r\ '• 'hf<«e claints. As a party to an Aifr^*"'"! neirotiated for over two dec- ades •*■■* ^ «i.* ik'rrrment is significant See Crou*fH<^u «*') I- InterNorik, Inc., 634 F 2d '>'*•» ■ 'I ■.■<1 Cir 1980) (citing Lomay- akteti-a. ."'i F Jd it 1325 ("[n]o procedural pnncipi* « ""re ileeply imbedded in the common «• •^an that in an action to set aside a ^kf* -r a contract all parties who may ^* tI'•'^Med by the determination of the ic'.K>n it* riiispensable")); MeClendon V. l-^reH -•iirt. -^SS F.2d 627, 633 (9th Cir IJ***' •«m#t Additionally, as the bene- ficiarv ' t - ..ntiantial sum of money from the f«^lrr»i i.f.emment it is manifest that the Niijon nu«a viul interest in the consti- tutionaluv .f the 1990 Act (81 xri*T ieiermining that joinder un- der rule '.'>ai. while desirable, was not feasible because of the tribe's sovereign immunity, the district court considered the rule 19(bi factors. ■•[T]he [r]ule allows courts to determine the emphasis to be placed on each consideration according to 'the facts of [the] given case and in Ught of provide right of perpetual renewal); Mc- Uan V. United States, 316 F.Supp. 827. 829 (E.D.Va.l970) ("[t]he intent to create a perpetual lease must appear in clear and unequivocal language"); McMillan v. Mal- vern Gravel Co.. 136 F.Supp. 567, 574 (W.D.Ark.l955) (same); 50 AmJur.2d Landlord & Tenant § 1171 (1970). The Appellants contend that the 1875 Act "stands ready to resolve this lease dispute in a fair and equitable way. It provides for/ renewal and then negotiation or binding arbitration for the rent and conditions the renewal lease." Undoubtedly, the 181 Act provided for the validation of leases and for arbitration in the event the parties could not agree to the terms of the renewal leases. The Appellants, however, already benefitted from the renewal and arbitration procedures set forth in the 1875 Act, first in 1880 and then in 1892. That is all the statute requires. [S] Nor do the terms of the exbired leases provide that the Nation must accede to the Appellants' proposals for renewal. The expired leases allow for the parmes to agree on terms of renewal. The Natuon did not agree to a 99-year term of renewal. Instead, it agreed, along with the Cicy and SI LA, which represents about two! thou- sand lessees, to a forty-year rental term with a forty-year right to renew The 40/40 leases provide that dispute! "con- cerning any party's compliance with or obli- gations under any of the terms" of the lease can be submitted to arbitratioi. The new leases satisfy the requirement) of the statute and the expired leases in th at they represent an agreement by the pa -ties. [6] The Appellants' contention, that tiibal immunity does not bar feder J juris- diction when no other forum is a ailable for the resolution of claims, must fa 1. The l&ck of a forum does not automatically prevent dismissal of the claims asserted. Makah Indian Tribe v. Verity, 91B F.2d 555, 560 (9th Cir.1990). "Sovereign immu- nity may leave a party with no forim for [that party's] claims." Id. (citing Domay- aktevm v. Hathaway, 520 F.2d 1324] 1326 (9th Cir.1975), cert denied, 425 U.9, 903, 96 S.Ct 1492, 47 LEd.2d 752 (1976)).\ The only branch with the ability to provili 320 548 928 FEDERAL REPORTER, 2d SERIES the governing equity-and-goo OF CONFLICT 0\ ER THEIR RIGHTS AND POWERS, [ndkin uribcs n(j\\ increasingly make and enforce their own iaus. orren answerable co no one in the United States go\ ernmenr. Is this the rebirth ot their ancient independence or a new kind ot legahzed segregation? Indian Country ing. The rribe's police chief, Marvin LeCompte, rold Hutchinson that she was in contempr of tribal court. Of- ficers ordered the morning breakfast crowd away from their fried eggs and coffee. Then they went back into the pine-pane!ed bar and confiscated Hutch- inson's stock of beer and liquor — "con- traband," as LeCompte described it — and drove off with it to the tribal gov- ernment's offices at Eagle Butte. A few days before I met Hutchinson, I had interviewed Gregg J. Bourland, the youthful chairman of the Cheyenne River Siou.x Tribe. Bourland is widely reckoned to be one of the most effec- tive tribal chairmen in the tegion and, with a degree in business from the state college in Spearfish, also one of the best educated. "Let them talk about taxation without representanon,"' Bour- land told me dismissively. "We're not a state. We're a separate nation, and the only way you can be represented in it is to be a member of the tribe. And they can't do that. They're not Indi- ans. These folks are trespassers. They are within reservation boundaries, and they will follow reservation law. They've now had one hundred years with no tribal authority over them out here. Well, that's over." More than Micki Hutchinson or than any of the other angry whites in jULYMUCUST 1996 .VMERIC.A.N HEiUT.\CE 35 328 their declining prairie hamlets, it was Bourland who understood that what was at stake was much more than small-town polincs. The tax, the osten- tatious convoy, and the lawsuit were pan of a much larger political drama that was unfolding across the inland archipelago of reservations that make up modem Indian Country. Thev sym- bolized the reshaping of the American West, indeed of the United States itself. By the 1990s, almost unnoticed by the American public or media, a genera- tion of legislation and court actions had profoundly remade Indian Coun- try, canonizing ideas about tribal au- tonomy that would have shocked the lawmakers who a century before had seen the destruction of the reservations as the salvation of the American Indian. If Bour- land was right, Micki Hutchinson and the white residents of Isabel were living in a sovereign tribal state. They were tolerated guests with an uncertain future. Until the 1870s, reser- vations were established throughout the Dakota Territory and other parts \-^ ^ tribal StatC, gUCStS with of the West with the " promise that they would an uncertaiii future. be reserved in perpetuity for the Indians' e.xclusive use. Those promises were broken al- most everywhere when reservations were opened to homesteading at the end of the cenrury, usually with only perfunaory consultadon with the mbes or none at all. As I listened to Gregg Bourland, it was easy to sympathize with the tribe's striving for some kind of control over forces that were felt to have invaded their land and under- mined their culture. Bourland justitied the tax as a means both to raise rev- enue for the tribe and to control alco- hol consumpdon on a reservadon where more than 60 percent of the adults were unemployed and 53 percent were active alcoholics. But promises that had been made a century ago to the ancestors of setrlers like Micki Hutchjnson were now beini; liCKi Hutchinson and her white neighbors were told they were living broken too. From the 1880s until the 1930s, the cornerstone of federal In- dian polio' had been the popular pro- gram known as allotment, the system- atic breaking up of most of the narion's reservations into private holdings. In its day allotment seemed the perfect panacea to resolve at a single stroke the perennial problems of white setders' in- satiable desire for new land and Indi- ans' growing dependency on the fed- eral government. Sen. Henry L. Dawes, the idealisric architect of the Allotment .\ct of 1881, which set the pattern for a generation of similar legislation, nng- ingly proclaimed that as a result of al- lotment, the Indian "shall be one of us, contributing his share to all that goes to make up the strength and glory of citizenship in the United States." The means of the Indian's salvation was to be the family farm, which most people of the time had been taught to regard as the ultimate reposi- tory of American individual- ism and the democratic spirit. Each Indian allottee would receive 160 acres of land and eventual United States citizen- ship, along with money for seed, tools, and livestock. The "excess," or leftover, land would be offered for sale to white settlers, who would be free to form their own munici- pal governments. The promise of the allotment policy was twofold: that the nanon would integrate Indians into white society and that non-Indian settlers would never be subject to tribal regimes. At the time, the Commissioner of Indian Affairs dismissed notions of separate Indian nationality as mere senrimentality: "It is perfectly clear to my mind that the treaties never con- templated the un-American and ab- surd idea of a separate nationality in our midst, with power as they may choose to organize a government of their own." To maintain such a view, the commissioner added, was to ac- knowledge a foreign sovereignty upon American soil, "a theory utterly repug- nant to the spirit and genius of our laws, and wholly unwarranted by the Constitution of the United States." As I LEFT Isabel, I wondered who really was the victim here and who the victimizer. Behind that nagging question lurked sail more difficult ones that occupied me for many months, from one end of the United States to the other, in the course of researching what was to become Killing the White Man's Indian, an investigation into the political and cultural transformation of modern Indian Countty. Are Na- tive Americans so fundamentally dif- ferent from other Americans that they occupy a special categoty to which conventional American values and laws should not apply? Or are they simply 3« .AMERIC.\.\' HERrT.\CE JLLY'.VUCLST I"-'-. 329 one more .\jTiencan group, whose spe- cial pleading is funher evidence char the Umred States has become a balkan- ized tangle ot ghettos and ethnic en- claves." Do we discriminate against In- dians by railing to blend them more effectively into the nanonal mainstrearr..- Or is the very notion of ''mainstream- ing" Indians so Inherently racisr that it should not even be contemplated as a component of national policy? Are Indian resen-ations and the way of lire they preserve a precious national re- source that must be maintained with- out the taint of contact with white America? Or is tribal self-determina- tion creating a new form of segrega- tion that merely freezes decayed tribal cultures like ghettoized versions of :nc annihilation of Caster's command. Pov erty shaded almost every experi- ence. Staving vvith friends often meant wir.a nngering its way through gaps in :."!e walls, a cheese and bologna sandwich for dinner, sleeping three or tour m a bed with broken springs. It seemed there was always someone taikin;: about an uncle who, drunk, had rrozen to death on a lonely road or about a cousin already pregnant at sixteen. .More generally those years left me with a sense of the tremen- dous diversity of the lives and com- munities that lay submerged within the catchall label of "Indians" and a recognition that Native .Americans were not mere vestiges of a mythic pas: but modern men and women Colonial Williamsburg? Who, ulti- mately, are Indians m the 1990s? VCTiat are they to other .Americans, and the others to them? Kilting the White Man's Indian rep- resented a return to fa.miiiar country. As a youth in the 1950s and early 1960s, I often accompanied my moth- er, who was the e.xecutive director of the .Association on .American Indian Affairs, in her travels around reserva- tions, part of her tireless effon to prod the federal government into improv- ing tribal economies, education, health care, and law and order. Vivid experi- ences were plentiful; panicipating in a nightlong peyote rite in a tepee on the Montana prairie; a journey by pirogue deep into the Louisiana bayous to meet with a forgotten band of Houmas who wanted Washington to take notice ot their existence; walking the Little Big- horn Battlefield with an aged Cheyenne who, as a small boy, had witnessed struggling to solve f\ventieth-century priibiems. In the colrse of folr ye.\rs' research on my book. I visited reser- vations from upstate New York to southern California and from .Missis- sippi CO Washington State, meeting witli tribal leaders, ranchers, farm- ers, educators, and hundreds of ordi- nary men and '.vomen, both Indian and white. In .Michigan I sailed Lake Superior with waterborne Chippewa police, searching for poachers on trib- al hsheries in the lake. In Oregon I hiked the Cascades with professional foresters from the Warm Spnngs Tribe, which with its several hydroelectric JaiTis and thriving timber industry is one 4 if Indian Country's great success st.>rics. I sweated with a group of re- Cincring N'avaio alcoholics in a tradi- tiiMiai ■.weat lodge in the New .Mexico dc^cr:. I also -.pent .many a night in dust-blown reservation towns where, as an old Soutii Dakota song puts it, "There's nothing much to do e.xcept walk up and down." In a few places, as a result of childhood connecnons, I was welcomed as a friend. More fre- quently I met with suspicion rooted in the widespread belief that curiosity like mine was just a form of exploita- tion and that whites are incapable of writing about Indians with objectivity and honesty. iMy original intention had been to use the lives of several men and wom- en whom I had known in the 1950s as a microcosm, and through them to chart the changes that had been wrought in Indian Country durmg the intervening years. But I soon realized that such a focus would be far too narrow, for it had be- come clear to me that a virtu- al revolution was under way that was challenging the wotn- out theology of Indians as losers and victims and was transforming tribes into pow- ers to be reckoned with for years to come. It encompassed virtually every aspect of Indi- an life, from the revival of moribund tribal cultures and traditional religions to the develop- ment of aggressive tribal governments determined to remake the relarionship between tribes and the United States. The ferment was not unalloyed, how- ever. .A.longside inspired idealism, I also found ethnic chauvinism, a crip- pling instinct to mistake isolation for independence, and a habit of inter- preting present-day reality through the warping lens of the past. In the 19~0s, in a reversal of long- standing policies based on the con- viction that Indians must be either per- suaded or compelled to mtegrate them- selves into mainstream America, the United States enshrined the concept of tribal sovereignty at the center of its policy toward the nation's mote than three hundred tribes. In the watershed words of Richard Ni.xon, federal pol- icy would henceforth be guided "by Indian acts and Indian decisions" and would be designed to "assure the In- 38 .VMESIC.^N HERrr.\CE JULY .M.(;',.>r : 330 dian that he can assume control of his own life-without being separated from the tribal group." In 1975 the Indian Self-Determi- nation and Education Assistance Act amplified this principle, calling for a "transition from Federal domination of programs for and services to Indi- ans to effective and meaningful par- ticipation by the Indian people." This has been reflected in a national com- mitment to the strengthening of tribal governments and to more comprehen- sive tribal authority over reservation lands. More ambiguously, it has also led to the increasing development of a new sphere of political power that rivals, or at least claims to rival, that of the states and the national govern- ment and for which there is no foundation in the Constitution. In the mid- 1990s I found tribal offi- cials invoking "sovereign waste facility on their reservation out- side Alamogordo. In Wisconsin and in Washington State, recurrent vio- lence had accompanied the judicial- ly mandated enlargement of Indian fishing rights in accordance with nine- teenth-century treaties. In Nevada farm- ers found themselves on the brink of failure as the Paiutes of Pyramid Lake gained political leverage over the water- shed of the Truckee River. In some states Indian demands for the return of sacred lands posed sig- nificant threats to local economies, including, most prominently, the Black Hills region of South Dakota. Nor was science exempt. Tribal claims on ancestral bones and artifacts were depleting many of the most valuable HIrii RIBES WERE INVOKING right" in debates over everything from highway ^ pj-inclplc of SOVereigntV maintenance and nsning r r o / quotas to law and order unknowii to thc avcragc toxic-waste disposal, and o the transfer of federal set- Americail 111 Ordcr tO SCt UD vices to tribal admmistra- ^ tions, not to mention the ^asino opcrations. rapid prolireration or tnb- a ally run gambling opera- tions. Reflecting the sentiments of many tribal leaders, Tim Giago, the publisher of Indian Country Today, the most widely read Indian news- paper in the United States, likened state legislation that affeas Indians to "letting France make laws that also become law in Italy." To people like Micki Hutchinson, it often seemed that Indians were playing an entirely new game, and that no one but the Indians un- derstood the rules. In Connecticut, and elsewhere, tribes were exploit- ing a principle of sovereignty un- known to the average American in order to build casinos that sucked colossal sums of money from neigh- boring regions. New Mexicans found that they were equally helpless in the face of the Mescalero Apaches' determination to establish a nuclear- anthropological collections in the country. Strangely enough, these con- flicts — widespread, often bitter, and with profound ramifications for Amer- ican institutions — seemed to be hap- pening beyond the ken of most Amer- icans, for whom Indians largely remain a people of myth and fantasy. Like no other inhabitants of the United States, Indians have nourished our imagina- tion, weaving in us a complex skein of guilt, envy, and contempt; yet when we imagine we see "the Indian," we often see little more than the distorted reflection of our own fears, fancies, and unhappy longings. This was viv- idly brought home to me on a visit to the reservation of the rwo-hundred- member Campo Band of Mission In- dians, in the arid hills an hour's drive east of San Diego. This reservation landscape is a profoundly discourag- ing one. It offers nothing to comfort the eye, produces nothing of value, and provides almost nothing to sus- tain life as it is enjoyed by most Amer- icans today. The single resource that the Campos possess is wasteland. In 1987 the band learned that the city of San Diego had named the reservation as one of several potential dump sites for the city's refuse. "We just need this one little thing to get us started," the band's chairman, Ralph Goff, told me as we walked through the redshank and yucca and ocher sand where the first trenches had been cut for the new landfill. "With it we can create our own destiny." Goff, a formidably built man with little formal education, grew up in the 1940s, when the only work available was as a cow- hand or day laborer for whites. When there was no work, peo- ple went hungry. "You just had to wait until there was some more food." In the 1960s most of the unskilled jobs disap- peared, and nearly every Cam- po family went on welfare. "We needed it, but it reallv wrecked 40 AMERICAN HERITAGE • JULY/AUGUST 1996 331 us as people. It created idleness. People didn't have to do anything in order to get money." If the Campos have their way, by the end of the decade daily freight trains will be carrying loads of mu- nicipal waste to a three-hundred-acre site on a hilltop at the southern end of the reservation. For the privilege of leasing the band's land, a waste-man- agement firm will pay the Campos be- tween two and five million dollars a year. Goff argued that the dump would put an end to the band's dependence on federal largess. It would cre- ate jobs for every adult Campo who is willing to work, provide long-term investment capital for the band, supply money for full college scholarships for every school-age member of the band, and finance new homes for the families that now live in sub- standard housing. The dump would, in shon, give the Cam- pos financial independence for the first time in their modern history. 1 HE UiVDITLL WOULD BE ONI of the most technically advanced in the United States; to regulate it, the Campos enacted an envi- ronmental code more stringent than the State of California's. Nevenheless, the dump gener- ated fierce opposition in towns near the reservation, where thou- sands of non-Indians live. Geol- ogists hired by the dump's opponents have suggested, but not proved, that seepage from the dump might con- taminate the water supply of ranches beyond the reservation boundary. Environmentalists accused the band of irresponsibility toward the earth and charged that the Campos had been targeted in an "assault" on reserva- tions by "renegade" waste-dumping companies. A bill was even introduced in the California legislature that would have made it a crime to deliver waste to the Campo landfill. Goff shrugged away the protests. "It's a sovereignty issue. It's our land, and we'll do what we want to with it." "How ,;jn vou jav rhat the •.•connm- ic developmcnc of f.vn liur.Jred peo- ple is more :mportar,t :ha.-. :he heait.-. and welfare of ail rhe pe-.iple ;n the surrounding ar;a.-" an ang.-v and rrus- trated rancher, -.vhoie land lay just nr: the reservation, aslced me. "It- harj making a livm^ 'ler:. The r.)-.urss wii! carry chat stufr righ: through here. We'll have all that stuff in our water and blowing Joun on as oft the hills. If our water is spoiled, then eventhing's spoiled." There were predn;table elements to tnat :■-- fecomina as rair.ilia.- :i> Amer- ;c.'.r. -,.hoolchildren as ^••."^c or the Cetf. srurg .\ddress one; A:r--: "How can •■iv,; buy or sell the >k;.. tr.: '.varmth of trie land? " Here. :n >ij:h- or the Jump, the so-called testament or Chief Seattle -.v js a reproach to :'r,z Campos. .\n .ir;.;ment rooted '.n '.vnat :."e ranch- er prei^mably believed to 3e Indians" proto'jndest values. "Betore ail this I had this ideal about Indian people and all they've been through." she told me. "I used to think thev had this special feeling about the land. " her rage: the instinctive resista.tce or most .Americans to any kind of waste dump anywhere near their homes and the distress of many white .\me.-icans when thev realize the implications or tribal jovereignn for the first time and find themselves subject to the will of a government in which thev ha\e no say. But there was something more, a sort of moral perplexity at Indians' having failed to behave .iccordinu; to i\pec- tation, an imputation that thev were guilty ()( lelfinter^.^t. Rjveal:n'4lv. 1 thought, on the wall ot the rancher'- trailer there was a poster dcciratCil with Indian niotirs. Er.fiied "(..hie: Seattle Spc.ik-. " it 'r'v.t.r'.. 'i; -.vord- .More than any other single docu- ment. Seattle's n.ve!ve-hundred-word "testament" lends support to the ;n- creasi.niiy common belief t.nat to "teal ' Indiar.s any disruption or conimcrc:al- izatior. of the earth's natur.i! order is a kind of sacrilege and that the tr.ost moral, the most truU "Indian" re- lationship with the land i- .i kind of poetic passivity. Havini; been trans- lated nto dozens of lancaaites and «ide'- .-eproduccd in ichoi'l :e\t-. tne "test.i.f.cnt" has attamc.i i prop.':etic stati;-.- anion;; environ:;'e:itaii.-tM In 1'"' • 1 ircviipw.icc '.i-cd :t .1- t:'.c .ntro- di:..f ■•: til a -k.ir'.f'.iiv.; -;.■:'• t: .'i; toxic ,.'.:■■■- ■■:.. calii:!;; it ■fhc n.'-t hc.u.tinal ii. 332 and profound statement on the envi- ronment ever made." Unfortunately, like much literature that purports to reveal the real nature of the Indians, the -testament" is basically a fiction. Seattle was indeed a historical figure, a slave-owning chief of the Duwamish- es who sold land to the United States in the mid-lS50s and welcomed the protection of the federal government against his local enemies. However, the "testament," as it is known to most Americans, was created from notes al- legedly made thirty years after the fact bv a white doaor who claimed to have been present when Seattle spoke, and which then were extravagantly em- broidered by a well-meaning Te.-cas scriptwriter by the name of Ted Perry as narration for a 1972 film on the environment, produced by the South- T HE SINGLE resource that the Campo Indians possess is wasteland. The dump would give them financial independence for the first time. em Baptist Radio and Television Com- mission. How is it, I wondered, that Americans have so readily embraced such a spurious text, not only as a sa- cred screed of the ecology movement but also as a central document of "tra- ditional" Native American culture? Increasingly it became clear to me that to be able to describe the realities of modem Indian life and politics, I would have to strip away the myths that whites have spun around Native Americans ever since Columbus arbi- trarily divided the peoples he encoun- tered into noble Arawaks and savage Caribs, conflating European fantasies with presumed native reality and ini- tiating a tradition that would even- tually include Montesquieu, Locke, Hobbes, and Rousseau, as well as a vivid popular literature stretchmg from .\.MES1C.\.N- HERrr.\CE JULY/.\UCfST 19« 333 The Ljst of the Mohtcjns to Dances Wi:h Wohes. Untamable savage, child of nature, steward of the earth, the white man's ultimace victim: each age has imagined its own mythic version of what the historian Robert F. Berkhofer, Jr., termed the "white man's Indian." Typically the Denver Post could de- clare, not long ago, in an editorial at- tacking the University of Arizona for a plan ro build an obser\"atory atop an allegedly sacred mountain: "At stake is the very survival of American Indi- an cultures. If these sacred places are destroyed, then the rituals unique to those places no longer will be per- formed and many tnbes simply may cease to e.xist as distinct peoples." Such logic implies both that only Native Americans who profess to live like prc- Columbians are true Indians and that Indians are essentially hopeless and helpless and on the brink of extinc- tion. Apparently it never occurred to the paper's edironalist that the religion of the great majority of Indians is not in fact some mystical form of tradi- Donalism but a thriving Christianity. In keepcc with our essentially mythic approach to the history of In- dians and whites, .Americans were gen- erally taught until a generation or so ago to view their national srory as a soaring arc of unbroken successes, in which the defeat of the Indians reflected the mevitable and indeed spir- itual triumph of civilization over bar- barism. More recenrly, but not so dif- ferently, numerous revisionist works like Kirkpamck Sales The Conquest of Pjradiic: CInistopher Columbus and the Columbian Legacy and Richard Drinnon's Facing West: The Meta- physics of Indian-Hating and Empire Building have tended to portray the settlement of North .\merica as a pro- longed story of unredeemed tragedy and failure, in which the destruction of the Indians stands as proof of a fundamental ruthlessness at the heart of American civilization. Such beliefs have steadily percolated into the wider culture — to be embodied in New Age Westerns like Dances With Wolves and popular books like the best-selling Indian Givers: How the Indians of the Americas Transformed the World, which purports to show how practi- cally every aspect of modem life from potatoes to democracy derives from the generosity of .\merican Indians — and into the consciences of journal- ists, clergy, and others who shape pub- lic opinion. On the whole the comple.x and in- tricate relationship between whites and Indians has been presented as one of ir- reconcilable conflict between conquer- or and victim, corruprion and inno- cence, Euro-.American "materialism" and nanve "spirituality." The real sto- ry, of course, is an often contradictory one, disfigured by periods of harsh discrimmation and occasional acts of genocide but also marked by consid- erable Indian pragmatism and adapt- abilit>- as well as by the persistent, if sometimes shortsighted, idealism of whites determined to protect Indians from annihilation and find some place for them in mainstream America. For instance, in contradiction of the notion that Indians were innocent of even the most elementary business sense, it was clear durmg negotiations over the Black Hills in the 1870s that Siou.x leaders had a perfectly good grasp of finance and that indeed they were determined to drive the best bar- gain they could. "The Black Hills are the house of Gold for our Indians," Chief Little Bear said at the time. "If a man owns anything, of course he wants to make something out of it to get rich on." Another chief. Spotted Tail, added: "I want to live on the in- terest of mv money. The amount must JULY/AUGUST 1996 A.MERICA.N HERITACE *3 334 was found that of those who had re- ceived patents to their land at Chey- enne River, 95 percent had sold or mortgaged their properties. When the Allotment Act was passed in 1881, there were 155 million acres of Indian land in the United States. By the time allotment was finally brought to a halt in 1934, Indian Country had shrunk by nearly 70 percent to 48 million acres, and two-thirds of Indians either were completely landless or did not have enough land left to make a living from it. In the mid-1990s Indian Coun- try as a whole is still a daunting and impoverished landscape whose inhab- itants are twice as likely as other Amer- icans to be murdered or commit sui- cide, three rimes as likely to die in an automobile accident, and five times as likely to die from cirrhosis of the liver. On some reservations unemploy- ment surpasses 80 percent, and 50 per- cent of young Indians drop out of high be so large as to support u?." Similar- ly, in contrast with the popular belief that the United States government was committed to a policy of e.xterminat- ing the Indian (no such policy ever ex- isted, in fact]. Senator Dawes public- ly described the history of Indians in the Uruted States as one "of spoliation, of wars, and of humiliation," and he firmly stated that the Indian should be treated "as an individual, and not as an insoluble substance that the civilization of this country has been unable, hitheno, to digest." Indeed, the impulse behind the al- lotment of tribal lands and the na- tional commitment to Indians was dra- matically (and, with the benefit of hindsight, poignantly) acted out in a rite of citizenship that after 1887 was staged at Timber Lake, in the heart of the Cheyenne River Sioux country, and at many other places in the freshly allotted lands of other tribes. In the presence of representatives of the federal government, new allottees stood re- splendent in the feathers and buckskins of a by- gone age. One by one, each man stepped out of a te- pee and shot an arrow to symbolize the life he was leaving behind. He then put his hands on a and accepted a purse that indicated that he was to • i ^ r j ■ save what he earned. Fi- WlthOUt E tOUndatlOn. nally, holding the Amer- ican flag, the Indian re- peated these words: "Forasmuch as the President has said that I am worthy to be a citizen of the United States, I now promise this flag that I will give my hands, my head, and my heart to the doing of all that will make me a true American cirizen." It was the culminating, transformarive moment of which Senator Dawes had dreamed. It is true enough, however, that, as so often in Indian history, reality failed to live up to good intentions. Unscrupulous speculators soon in- fested the allotted reservations, offer- ing worthless securities and credit in return for land. Within a fesv years it \ UR PEOPLE LIVE IN A limbo culture that is not quite Indian and not quite ?aZ white either. ... a house school, despite progressively increased access to education. Is THE TRBAL-SOVEREICNTY .MOVE- ment a panacea for otherwise intract- able social problems.' In the cultural sphere, at least, its importance cannot be underestimated. "Our people live in a limbo culture that is not quite In- dian and not quite white either," said Dermis Hastings, surrounded by books, gazing out toward the Iowa plains through the window of the sky blue trailer where he lives in a cow pasture. Hastings, a burly former Marine and the tribal historian of the Omaha Na- tion, which is in northeastern Nebras- ka, has almost single-handedly led an effort to recover tribal history as a foun- darion for community renewal that is probably unmatched by any other small mbe in the United States. "It's like liv- ing in a house without a foundarion. You can't go back to the old buffalo days, stop speaking English and just use our own language, and ignore whites and everything in white cul- ture. If we did that, we'd become stuck in history, become dinosaurs." Teasing small grants and the help of volunteer scholars from institurions around the country, Hastings has ini- tiated an oral-history project to col- lect memories of fading tribal tradi- nons. "We go into each family, get an anthropologist to record everything nght from how you wake up in the morning," he said. Hundreds of his- toric photographs of early reservation life have been collected and deposited with the State Histori- cal Society, in Lincoln. A friendly scholar from the Universiry of Indiana re- covered a trove of forgot- ten Omaha songs record- ed in the 1920s on wax cylinders. Another at the University of New Me.xico undenook a collective ge- nealogy that would trace the lineage of more than five thousand Omahas back to the eighteenth cen- tury. Hastings explained. A.MERICAN HERfTACE JULY/.\LCUST 1996 335 ■ "Until now everything was oral. Some people knew the names of their an- cestors, and some knew nothing at all. There was a loss of connection with the past. Now people can come back and find out who their ancestors were." In sharp contrast with the com- bative chauvinism of some tribes, the Omahas invited scientists from the University of Nebraska and the Smith- sonian Institution to examine repatri- ated skeletons to see what they could discover about the lives of their an- cestors. In 1989, astonishing perhaps even themselves, tribal leaders brought home Waxthe'xe, the True Omaha, the sacred Cottonwood pole that is the living embodiment of the Omaha peo- ple, which had lain for a hundred years in Harvard's Peabody Museum; at the July powwow that year, weeping hun- dreds bent to touch it as if it were the true cross or the ark of the covenant. "We want the benefits of modern society," Hastings told me in his nasal Midwestern drawl. "But America is still dangerous for us. The question is then. How do we take the science that America used against us and make it work for us? The answer is, we try to build on the past. It's like a puzzle. First you see where the culture broke and fragmented. Then you try to build on it where people have been prac- ticing it all along. Then people start to think in a healthy way about what they were in the past. If you can get each person to be proud of himselt, lit- de by little, you can get the whole tribe to become proud. We're going to dream big and be consistent with that dream." In its broadest sense the tribal sover- eignty movement is demonstrating that the more than three hundred Indian tribes in the lower forty-eight states (more than five hundred if you count Alaskan native groups) are distinct communities, each with its unique his- tory, traditions, and political environ- ment, for whom a single one-size- fits-all federal policy will no longer suffice. Greater autonomy will surely enable well-governed and economical- ly self-sufficient tribes — mostly those located near big cities and those with valuable natural resources — to man- age their own development in imag- inative ways. For many others, how- ever, far from airports and interstate highways, populated by ill-trained workers and governed, in some cases, by politicians who do not abide by the most basic democratic rules, the future is much less assured. 1 HERE IS NOTHING ABSTRACT ABOUT such concerns in Timber Lake, South Dakota, which lies a shon drive east from Isabel across the rolling plains of the Cheyenne River Sioux Reser- vation. Like Isabel, Timber Lake has been battered by the general decline of a region that is hemorrhaging jobs and people. Timber Lake is one of the relatively lucky places, kept alive by the presence of the Dewey County of- fices, the rural electric co-op, the cen- tral school, and a cheese factory. Even so, one hundred of the six hundred people who lived there a decade ago have moved away to places with better prospects and more hope. Isabel's pop- ulation has dropped by half, to three hundred. Trail City has shrunk from three hundred and fifry to thirty, Fire- steel to a single general store, and Lan- deau has disappeared completely. En- tire towns have lost their doctors, banks, and schools. From a certain angle of vision, Sioux demands for the resto- ration of the reservation to its original nineteenth-century limits are simply an anticlimax. The peopie of Timber Lake — the mechanics, the teachers, the co-op clerks, the men who work at the grain elevator, the retired farmers — are the human fruit of allotment, the flesh- and-blood culmination of the cultur- al blending that Senator Dawes en- visioned. "Everyone here has relatives who are Indian," said Steve Aberle, a local attorney whose Russian-German father married into the Ducheneaux, a prominent clan of Cheyenne River Sioux. Aberle, who is thirty-five, is one- eighth Sioux; he is a voting member of the tribe and served for two and a half years as chairman of the tribal police commission. Nevertheless he shares the uneasiness of non-Indians who feel themselves slipping toward a kind of second-class citizenship with- in the reservation's boundaries. "It would be better to be in a situation where everybody works together and deals with people as people, but it's hard to do that when people know they pay taxes but are excluded from benefits and services," Aberle told me. "When my grandparents came from Russia, the United States government told them that they would be full cit- izens if they moved out here. Now I see people being told that they can't even take part in a government that wants to regulate them. Something is inher- ently wrong when you can't be a citi- zen where you live because of your race. It just doesn't fit with the tradi- tional notion of being a U.S. citizen. At some point there has to be a colli- sion between the notion of tribal sover- eignty and the notion of being United States citizens. Anytime you have a group not represented in the political process they will be discriminated against. There's going to be more and more friction. It's going to hurt these communities. People start looking for jobs elsewhere." 1 HE Sioux were the victims of nineteenth-century social engineering that decimated their reservation. But the descendants of the adventurous emigrants who settled the land are also the victims of an unexpected histori- cal prank, the trick of the disappearing and now magically reappearing reser- vation. Reasonably enough, the rhet- oric of tribal sovereignty asks for tribes a degree of self-government that is tak- en for granted by other Americans. However, the achievement of a sover- eignty that drives away taxpayers, con- sumers, and enterprise may be at best but a Pyrrhic victory over withered communities that beg for cooperation and innovation to survive at all. With little debate outside the pa- rochial circles of Indian affairs, a gen- eration of policymaking has jettisoned the long-standing American ideal of racial unity as a positive good and replaced it with a doctrine that, seen from a more critical angle, seems dis- turbingly like an idealized form of seg- JULY/AUGUST 1996 AMERICAN HERITAGE 45 336 regarion, a fact apparently invisible to a nation that has become accustomed to looking at Indians only through the twin lenses of romance and guilt and in an era that has made a secular reli- gion of passionate ethnicir>-. Much of the thinking that underlies tribal sov- ereignty seems to presuppose that cul- tural purity can and ought to be pre- served, as if Indian bloodlines, econ- omies, and histories were not already inextricably enmeshed with those of white, Hispanic, and black .\mericans. Such concerns will be further exac- erbated in the years to come as Indian identity grows increasingly ambigu- ous. Virtually all Indians are moving along a continuum of bio- logical fusion with other American populations. "A point will be reached . . . when it will no longer make sense to define Amer- ican Indians in generic terms [but] only as tribal members or as people of Indian ancestry or ethnic- ity," writes Russell Thorn- ton, a Cherokee anthropol- seCmS tO DreSUDDOSe ogist and demographer at r r r the University of Southern that cultural Duritv Can and California, in American In- ■*■ ■' dian Holocaust and Sur- should bc Drescrved. i/ii/al, a study of fluctua- ^ dons in native populadons. UCH THINKING TI-L\T underlies tribal sovereignty Statistically, according to Thornton, Indians are marrying outside their eth- nic group at a faster rate than any oth- er .\mericans. \Iore than 50 percent of Indians are already married to non- Indians, and Congress has estimated that by the year 2080 less than 8 per- cent of Native Americans will have one-half or more Indian blood. How much ethnic blending can oc- cur before Indians finally cease to be Indians? The question is sure to loom ever larger for coming genera- tions, as the United States increasing- ly finds itself in "government-to-gov- emment" relationships with tribes that are becoming less "Indian" by the dec- ade. Within rwo or three generations the nation will possess hundreds of "tribes" that may consist of the great- great-grandchildren of Indians but whose native heritage consists mainly of autonomous governments and spe- cial privileges that are denied to other Americans. Insofar as there is a political solu- tion to the Indian future, I have come to believe that it lies in the rejection of policies that lead to segregation and in acknowledgment of the fact that the racially and ethnically variegated peoples whom we call "Indian" share not only common blood but also a common history and a common fu- ture with other Americans. The past generation has seen the development of a national consensus on a number of aspects of the nation's history that were long obscured by racism or shame; there is, for instance, little dispute to- day among Americans of any ethnic background over the meaning of slav- 4« A.V1E.=UC.\.V HERrr.\CE JULVALCUST \9-'>, / 336 ery or of the internment of Japanese-Americans during the Second World War. There is as yet no such consensus, however, with respect to the shared history of Indians and whites, who both still tend to see the past as a collision of irreconcilable opposites and competing martyrdoms. 1 HAT HUTORY WAS .VOT only one of wars, remov- als, and death but also one of calculated compromis- es, mutual accommoda- tion, and deliberately cho- sen risks, a story of Indian communities and individ- uals continually remaking themselves in order to survive. To see change as failure, as some .kind of cultural cor- ruption, is to condemn Indians to soli- tary confinement in a prison of myth that whites invented tor them in the first place. Self-determination gives In- dian tribes the ability to manage the speed and style of integration but not the power to stop it, at least for long. Integradon may well mean the eventual diminishing of conventional notions of "tribal identity," but it must also bring many new individual opportu- nities, along with membership in the larger human community. "People and their cultures perish in isolation, but they are bom or reborn in contaCT with other men and women, with man and woman of another culture, another creed, another race," the Me.xican nov- elist Carlos Fuentes has wtitten. Tnbes will survive, if anything, as stronger entities than they have been for many generations. The question is whether they will attempt to survive as isolat- ed islands or as vital communities that recognize a commonality of interest and destiny with other .\mericans. * Fergus M. Bordewich's book Killing the White Man's Indian was published in February by Doubleday. He is also the author of Cathay: A Journey in . Sirfrch of Old China. 337 Before the United States Senate Committee on Indian Affairs Statement of James M. Johnson Hearing Subject: Waiver of Tribal Immunity September 24, 1996 Thank you for the invitation to appear before you to address this very important issue. My name is James Johnson, and I am an attorney now in private practice in Olympia, Washington. I have attached a resume to my original testimony, from which you can see I previously was a Senior Assistant Attorney General for Washington and head of that State's Special Litigation Division. I represented Washington for nearly twenty years from the time I left the Army in Fort Lewis, Washington in 1973, until entering private practice in 1993. Altogether I have participated in nearly a hundred cases in federal and state appellate courts to and including the United States Supreme Court. 1 also did (and do) much of the trial work for all these cases myself. Although only approximately one-third of those involved issues of tribal law, many have involved the issue before you today. I shall briefly explain some of those cases, and the claims involved. Others testifying will give examples of abuses and the result of tribal assertion of "sovereign immunity" — often leaving an injured party with no remedy. When Tribes act more like gangs than governments, there must be a remedy. An unexpected secondary effect is that persons and companies which could do business adding to reservation economic development choose not to do so. 338 A last problem is that federal agencies now use the Tribes' absence because of immunity to block review of these federal bureaucrats' actions. Several examples will be given of federal | agencies' selective use of this defense in the face of explicit act of Congress providing for ] judicial review. ■ Finally, I shall briefly review the history of the issue to show that an act of Congress | providing judicial remedy against Tribes is consistent with much historical precedent, as well as dictated by principles of fairness and constitutional due process. The very short notice for this hearing has made impossible an exhaustive research project j here. I largely rely below on two pre-eminent scholars in the field of Indian law history: Felix I Cohen and Father Francis Paul Prucha. ] TRIBAL IMMUNITY LEAVES MANY WITHOUT REMEDY In one very recent case, I am counsel for private property owners in the state of Washington who own tidelands in that state on which clams and oysters grow (United States v. Washington, et al. . Ninth Circuit Court of Appeals No. 96-35014. In 1989, 16 Washington Tribes, supported by the United States, brought a claim to the tidelands' clams and oysters, based on treaties executed in the middle 19th Century. Note that of the over 64,000 property owners represented by the United Property Owners of Washington, most of the private property is off- reservation, often far remote from the reservations. We are largely talking about peoples' homes here which are located on the beautiful, and formerly peaceful, shores of Puget Sound. In holding that the Tribes had a right to go on these private lands and take up to 50% of these shellfish, the federal court made a relevant observation as to the fact these private owners were totally innocent purchases in good faith: The . . . Private Property Owners are, effectively, innocent purchasers . . . (who) reasonably believed the land to be free of encumbrances and servitudes. Their belief was reinforced by the Tribes' failure to formally assert the Treaty right until over 100 years after the Stevens Treaties were signed. Page 2 339 United States v. Washington . 898 F.Supp. 1453, 1457 (W.D. Wash. 1995). The judge further noted: Fault for creating this controversy lies squarely with the State of Washington and the United States, for selling the tidelands and not objecting to the sale, respectively. Supra , at 1459. In part, in recognition that some protection should be afforded such innocent home owners, the federal court imposed conditions on tribal harvest. Those conditions included day- time only harvest, generally limited to five days per year, and required sanitary facilities and limits on the number of diggers, etc. (All found supra , at 1472-1473). The judge also included a dispute resolution system, which included a enforcement provision that private property owners could invoke in the event of damages to their property through Tribes' commercial clam harvesting: If during any harvest, the Tribe damages the property of a Tideland Owner or in any way fails to harvest as stated in the notice provided to the Owner, the Owner may submit the issue to the Special Master as set forth in this Plan. Supra , at 1473. The most important protection to private owners was the specific inclusion of a damage remedy against the Tribes. The Special Master may, however, order that the Tribe pay damages or may implement some other appropriate remedy. Supra , at 1476. A provision for payment from tribal funds for damages to property of citizens was explicitly included in the treaties relied on to support the tribal claim. Notwithstanding that, the United States and Tribes brought a motion to amend the court's decision, asking the judge to delete this remedy. The United States and Tribes argued that tribal immunity barred such a Page 3 340 remedy, even in an action where the Tribes had brought the suit. It is worthy of note that at an early stage in the litigation not only did the Tribes and United States not name the private owners whose property they will be taking (clams) and entering, but even opfX)sed their intervention. I had to appeal to the Ninth Circuit on behalf of the private landowners just to be allowed in the court to try to protect their interests. The judge did amend the decision to delete the damage remedy against the Tribes. The decision, as amended is at United States v. Washing ton. 909 F.Supp. 787 (W.D. Wash. 1995). Note that the remedy left — actions against individual Indians— is in some regard worse than no remedy at all. The outrage prompted by this case is more understandable if you remember that in the four treaties in question the United States and Indians agreed not only that all Indian "right, title and interest in and to the lands" were "ceded, relinquished and conveyed" but further expressly agreed: The said tribe and bands . . . promise to be friendly with all citizens thereof, and they pledge themselves to commit no depredations on the property of such citizens. Should any one or more of them violate this pledge, and the fact be satisfactorily proven before the agent, the property taken shall be returned, or in default thereof, or if injured or destroyed, compensation may be made by the Government out of their annuities. . . Art. 9, Treaty of Point Elliot. These Northwest treaties were based on model treaties the United States executed with Tribes in the Nineteenth Century. (There were 43 "Manypenny" treaties around the country.) Such a treaty provision is common, and is one precedent for the proposition the Tribes were historically expected to be responsible, and liable for damages to citizens. Indeed, the Tribes agreed to do so. Ironically, the Tribes and United States are much less enthusiastic about enforcing treaty provisions which benefit or protect others than those which benefit Tribes. The court's amended order requires the private owners to force a possible confrontation on their beaches if they wish to identify the Indian commercial clammers— who are damaging their property. Page 4 341 The removal of the remedy agjunst the Tnbes will itself increase the probability of confrontations occurring, since it reinforces the unfortunate perception of both tribal and other citizens that the Tribes are somehow above the law. That, of course, is illustrative of an important policy consideration for you in deciding if it is time the Tribes be like others in this society— fully accountable in court for their actions. Lest this potential for confrontation on private property be argued as speculative, testimony before that same judge is instructive. During trial, testimony was given about losses suffered on private lands on which owners had planted clams. This occurred even while the litigation was pending in the district court . One shellfish farmer heard of plans to conduct a tribal commercial clam harvest on public beaches adjoining his property and contacted the Tribes to be sure tribal enforcement would be present. He wanted to avoid confrontation over boundaries. He then made sure the boundary between the public beach and his private land was well marked. It was marked both by comer survey posts ("metal stake with plastic cap stating the company name") and then with PVC stakes at 20-25 foot intervals placed to assure there was no question of the boundary. Note this was a cultivated shellfish farm; the private tidelands had been graveled and clams seeded. When the tribal harvest occurred, some of the boundary stakes were pulled out, and the tribal commercial diggers went from 70 to 100 feet onto the private property taking clams (which are also private property under Washington law). Over a ton of clams were taken with a wholesale value of $ 1 . 65 per pound — or thousands of dollars. Something over 50 com mercial diggers were involved. Tribal enforcement officers , presumably paid with federal funding, were present when this occurred. Tribal representatives later said they would pay for his losses; but later refused to do so: Q. Did they say they would pay you for the clams? A. Yes. Q. Have you been paid yet? A. No. Q. What concerns has this incident raised for you as a grower operating under the tribes' plan? A. I don't know when I'm going to get paid, and I don't know how -- how to ~ yeah, I have no recourse. United States v. Washington . Transcript of Proceedings, May 10, 1995, p. 619, lines 12-19. Page 5 342 Adding insult to injury, the Tribe's counsel later elicited in cross-examination what was an explanation of the Tribe's nonpayment. The shellfish farmer had declined to execute an agreement that he wouldn't tell the federal court judge (the Tribe required such written agreement) as a condition of getting paid. United States v. Washing ton. Transcript of Proceeding, May 11, 1995, p. 649, line 21 through p. 650, line 6. Smaller losses to home owners are cumulatively equally important, when there is no remedy. One of my witnesses was a waterfront home owner at Suquamish just down the beach from that Tribe's tribal headquarters. In the 1980s, the Tribe and United States had brought an action to claim ownership of the beach in front of her home. They lost; the case is United States and Suquamish v. Aam reported at 887 F.2d 190 (9th Cir. 1989). Adding insult to injury, the Tribe then brought the "shellfish" case to assert the Tribes could take half of any shellfish that grow there. In the interim the homeowner suffered trespass, cutting of holes in their fences to make a shortcut to the beach, firearms shot across their property. Transcript of Proceedings, Vol. 11, p. 2164, lines 10-25. The Tribe continued clamming on the beach. By the time of trial she testified: "[T]here are no longer any clams." Testimony of Cynthia Rasmussen, Transcript of Proceedings, Vol. 11, p. 2163, lines 16-17. As previously testified "there is no recourse." Other witnesses testified as to similar problems, and futile attempts to get tribal or other assistance, e.g. Transcript of Proceedings, Vol 11, pages 2142-2444. As a professional appraiser, the Suquamish owner testified the losses of property value to private owners as a result of loss of control of access and commercial clamming in front of their homes was up to 40 percent. Transcript, Vol. 11, p. 2158, lines 26 - p. 2166, 1. 21. Neither the U.S. nor the Tribes cjm be sued nor will pay for such losses. PRIVATE INVESTMENT AND ECONOMIC DEVELOPMENT IS DETERRED BY TRIBAL IMMUNITY A more general point is raised by the above testimony especially that of the clam farmer who is the largest commercial shellfish grower and marketer in Washington. It is difficult or impossible to do business with someone with whom you "have no recourse" when problems arise or an agreement is not fulfilled. The fact of enforceability in a court is most often an important consideration in assuring it will not be necessary. Page 6 343 This observation with respect to commercial dealing with Tnbes has been recently put before this committee by Professor Joseph Kalt from my alma mater who testified on September 17 of this year about problems surrounding efforts to increase economic opportunity on reservation(s). My Harvard degree was in Economics; his was in international development, but 1 can generally agree with his statement of the problem: The central problem is to create an environment in which investors — whether tribal members or outsiders — feel secure and therefore are willing to put energy, time, and capital into the tribal economy? Testimony at 6. We agree too, as to the need for "independent judiciaries (which) promote economic well- being." Testimony at 9. I strongly urge the Committee to recognize that the "fundamental reform" called for is simpler than Professor Kalt's suggested reform of the judicial systems of each of the hundreds of Tribes in the United States. The lack of inter-tribal uniformity would then be a separate problem. This is "balkanization' at an extreme. "Fundamental reform" of the system is only accomplished by making the decision-makers accountable and assuring confidence in the integrity of the process. As to economic investment decisions, at least those by what Professor Kalt calls "outsiders," the perception that the forum is unfair or biased is as bad as the fact (and other testimony both before this Committee and others have addressed the fact). Congress should act to make normal federal and state judicial forums fully available in disputes with Tribes. The thrust of much other testimony today is that it is fundamentally unfair to deprive citizens of the United States of judicial forums — especially where those same forums are available to their adversaries. For both reasons, the appropriate "fundamental reform" is a waiver of immunity so as to continue to allow Tribes access to al! judicial forums, but also allow those contesting with them to hold the Tribes accountable in such forums. Page 7 344 FEDERAL AGENCIES USE OF TRIBAL CVIMLTSITY AS A SHIELD AGAINST COURT REVIEW A frequently overlooked, but increasing problem is the use of tribal immunity by federal agencies to avoid judicial review of their actions. Ironically, this shield has even been used against tribal efforts to hold federal agencies accountable. One example of the latter is Makah Indian Tribe v. Verity . 910 F.2d 555 (9th Cir. 1990). In that case an act of Congress (the Magnuson Act for management of ocean fisheries, 16 U.S.C. 1801-1882) specifically provides for judicial review of regulations by the Department of Commerce. When sued by one Tribe, the federal agency claimed that other Tribes were, or could be affected, and thus were necessary or indispensable. Since the other Tribes could not be sued or joined because of their immunity, the district court was persuaded by the United States to dismiss the case. The circuit court reversed, but only in part, holding that the relief available, even to an affected Tribe, was limited to prospective procedural remedies. (See also Chehalis Tribe v. Luian . 928 F.2d 1496 (9th Cir. 1991). A more recent example of the United States' selective use of this defense is presented by several challenges to Commerce' 1996 adoption of regulations to govern the harvest of whiting in the Pacific Ocean. (The 1996 harvest is over 450 million pounds off the Washington, Oregon, and California coasts.) I represent the fishermen and processors of this new industry which has only developed in the last 30 years as technology was invented to process a fish which was historically viewed as useless because it deteriorated so quickly. (Now, the fish are caught using sophisticated electronics and deep water gear.) The fish are immediately nearly frozen and anti-enzymes utilized so as to process whiting into products such as surimi, from which seafood products such as artificial crab are made. This is a new industry which was developed under, and as a consequence of, the Magnuson Act provisions which removed foreign fishing from our coasts, and allowed the Pacific Council to adopt a long-term management plan. During the 1996 season Commerce adopted a regulation overruling the Pacific Management Council, which had found there was no treaty entitlement to a special fishery since Indians had never fished whiting historically. Commerce allocated over 33 million pounds of harvest to one Tribe, prospectively promising four Tribes such an allocation. We filed suit Page 8 345 noting violation not only of the Magnuson Act. in refusing to follow the Pacific Council's Management Plan, but also violation of ESA. (The fear was that harvest off the Washington coast would take larger numbers of chinock, some of which are endangered. (Preliminary results have borne out this fear.) The State of Oregon has joined our action, since the new industry is an important main- stay of the Oregon coastal economy given that many other fish stocks, such as salmon, have so declined. The United States has moved to dismiss our lawsuit (and Oregon's), Midwater Trawlers, et al. V. Commerce . No. 96-6170 (D.C. Or.). The U.S. argued that the federal agency cannot be sued where the subject affects absent Tribe(s) (which cannot be joined because of immunity), notwithstanding the Magnuson Act provides for APA, judicial review of Commerce regulations. The United States has not similarly moved to dismiss the separate action filed by one Tribe, which wants a higher allocation, even though three Tribes are absent (and not sued). Indeed, the United States has filed a response generally agreeing with and "joining" the tribal request. Nor has the United States moved to dismiss the separate action filed by the State of Washington (which had supported the United States and Tribes when the issue was argued before the Pacific Council). In that case, no Tribes are present. The argument advanced by the United States in this and many other cases is that a federal agency may not be sued over its actions if "the requested relief in (the) case would directly affect . . . Indian tribes.'" Fed. Defs. Memo in Support of Motion to Dismiss Midwater Trawlers. Note that under this theory Commerce can immunize its regulations from review by including Tribes' interests in discretionary rules. These cases indicate the waiver of immunity is appropriate to allow adjudication not only with Tribes, but to avoid the use of the immunity by federal agencies as a shield to avoid review of their own alleged misconduct. Page 9 346 BACKGROUND: HISTORICAL TRIBAL STATUS A brief discussion of history is important to rebut several myths which are oft repeated as mantras to ward off reform. The two primary sources are studies by two esteemed scholars in this area, Felix S. Cohen, Handbook of Federal Indian Law (1942) and by Francis Paul Prucha, American Indian Treaties . University of California Press (1994). It is often claimed that Tribes are like separate or even foreign nations over which state or federal courts may not exercise jurisdiction. It is even claimed this status is conferred by treaties with the United States. Neither is historically accurate. As an important prefatory note, the number of "Tribes" in the United States, as "recognized" by the List prepared by the present Assistant Secretary of Interior for Indian Affairs has climbed to over five hundred which she characterizes as entitled to: [Tlhe same privileges, immunities , responsibilities and obligations as other Indian tribes under the same or similar circumstances including the right, subject to general principles of Federal Indian law, to exercise the same inherent and delegated authorities available to other tribes. 60 Fed. Reg. 9250 (Feb 16, 1995)(foot note omitted) The omitted footnote addresses the Alaska Native Villages, some 226 of which were added to this list by the Assistant Secretary. Their history and prior Congressional Acts, including ANCSA (43 U.S. C. 1601 « seq.) should dictate different special status. Two important points should be noted. The list of "Tribes" has been growing — in part based on BIA determinations to add to the list of their constituencies. Also, those "Tribes" now include entities not historically recognized as "Tribes" at least through treaties. Indeed, most of the Tribes as currently listed by the BIA are "non-treaty;" the United States government never entered into treaties recognizing such entities. There are a total of 367 ratified treaties entered into between 1778 (Delaware) and 1868 when the last with the Nez Perce was entered. Of that number, numerous were entered into with the same Tribe or Tribes. See Prucha at 448-500. In that number are not counted the treaties entered into by the Confederacy. The oft-quoted provision that Indian lands would be held in common and not be part of States "so long as grass shall grow and water run" were found only in these Confederacy treaties which Page 10 347 also guaranteed slavery — not in any treaty betv xn the United States and Tribes. S^ Prucha at 262. Second, the treaties themselves generally recognized and specified that any tribal sovereignty was reduced (to control over their own members) as the Tribes all became the "dependent nations" of which Chief Justice John Marshall spoke. Prucha notes that the assumption that the Indian Tribes were not independent sovereigns was reflected in the treaties through "some such phrases as the following: [T]he said Indian nations do acknowledge themselves and all their tribes to be under the protection of the United States ... (or later) admitted that they resided within the territorial limits of the United States (and) acknowledged its supremacy." At 5-6. From pre-revolutionary times, the Indians were not treated as equivalent to foreign sovereign nations. Under the Articles of Confederation, Article VI provided for foreign treaties, and Article EX provided for Congress to regulate trade and manage all Indian affairs and other domestic matters. (Prucha at 39.) Even during the Revolutionary War, Indian affairs were treated as a domestic and military matter, not as foreign or diplomatic questions. The Treaty of Pari: (1783) recognized the transfer of sovereignty from Great Britain to the Colonies to western lands reaching to the Mississippi. The Tribes were not mentioned, though they had largely sided with the British in the war. (Prucha at 41.) Later major additions of land to the United States were made by treaties with other nations, e.g., the Louisiana Purchase from France, the Treaty of Guadalupe Hidalgo from Mexico, Alaska though the Treaty of Cession from Russia. In some of these areas treaties were made with Indian Tribes. In Alaska and California, they were not. In 1871, Congress passed an Act providing that: [H]ereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty. Page 11 348 Act of March 3, 1871, ch. 120, 16 Scat 544, 25 U.S.C. § 71 (1988). The Supreme Court jurisprudence from early on distinguished Indian Tribes from such foreign "nations." Chief Justice John Marshall had written Johnson v. Mcintosh in 1823 speaking of the Tribes rights to sovereignty as "necessarily diminished" in concluding the Indians could not even convey lands. Marshall's Cherokee Nation v. Georgia . 30 U.S. 1 (1831), expressly held the Cherokee were not a "foreign state" and so not entitled to sue the State of Georgia for diversity jurisdiction purposes under Article HI, Sec 2. He referred to them as: [D]omestic dependent nations (whose) relation to the United States resembles that of a ward to his guardian (and) so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands or to form a political connection with them, would be considered by all as an invasion of our territory and an act of hostility. Supra , at 17-18. Even these notions of limited sovereignty found in some of these early decisions were later referred to as "platonic notions of Indian sovereignty" by the Supreme Court in decisions this Century (County of Yakima v. Confederated Tribes . 112 S. Ct. 687, quoting McClanahan V. Arizona State Tax Comm'n : "modem cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes . . . ." 411 U.S. 164, 172 (1973). Those treaty provisions, as noted above (citing Prucha) assumed, and often expressly provided that the Tribes were not fully "sovereign." South Dakota v. Bourland . 1 13 S.Ct. 2309 (1993), refers to modem "reality after Montana , tribal sovereignty over non-members cannot survive without expressed Congressional delegation (450 U.S. at 564) and is therefore nQl inherent." (Emphasis in original.) Under the United States Constitution, of course, there are only two sovereigns: the United States and the States, which formed that Union. Authority over Indian affairs is vested in Congress as one of its Article 1, Section 8 powers through the Indian Commerce Clause. Page 12 349 Unlike the XI Amendment providing for the States' immunity from suit in federal courts, there is no such express prohibition with respect to the Tribes. Indeed, historically both in statute and treaty, there has frequently been specific provision for such actions against Tribes. As noted in the original Handbook of Federal Indian Law , by Felix S. Cohen (1942): [T]here are a number of statutes which authorize suits against Indian tribes . . . (some) authorized suits against Indian Tribes and allowed, in effect the execution of judgment upon the tribal funds in the United States treasury. (Cohen, at p. 269.) (He then refers to previous chapter, sections 1 and 3 which include numerous such statutes.) As only one example, a general provision for Court of Claims jurisdiction over "all claims for property of citizens . . . taken or destroyed by Indians belonging to any band. Tribe, or nation" he refers to as "an outgrowth of the collective responsibility imposed by early statutes and treaties for the torts of their members." (n. 14 at 269.) That, and the accompanying text and footnotes recount an extensive list of cases brc .ght against Tribes under such authorizations by Congress. In a later section Cohen further noted Congress' historical practice of passing Acts authorizing suit which were specific to a Tribe or Tribes: "Congress has from time to time authorized various other suits against Indian Tribes by private citizens." (at 283.) Examples follow. The quoted example allowed judgments to be paid either from funds in the United States treasury for the Tribe or from any annuities. Many of the statutes Cohen discussed are no longer in effect. They do give a more realistic idea of the historic practice which included jm evolution from a treaty-period practice of providing for paying claims directly from tribal funds held by the United States to allowing suit in courts. This moderate approach protected tribal assets, allowing recovery up to the amount of funds the United States provides the Tribes. Notwithstanding that the Q-eaties limited such payments, generally to 20 years, today the United States still provides millions to the Tribes. Thus it is an added source of friction that persons harmed by Tribes feel (correctly) their own tax dollars fund the problem source, where Page 13 350 the actions are by tribal agents or employees. Additionally, many Tribes are in the casino gambling business. The millions thus derived add to federal funding, making them relatively wealthy, taking away the major historic argument for shielding Tribes by immunity: the fear that Tribes would be impoverished. CONCLUSION The general authorization in Acts of Congress allowing Tribes to bring suit or the United States to sue on their behalf must be made reciprocal. Tribes of today should be viewed as responsible for their acts and fully subject to suit. This will also allow full consideration and resolution by the same court of counterclaim and cross-claims when Tribes bring suit. Justice Blackmun stated over 15 years ago: I entertain doubts . . . about the continuing vitality in this day of the doctrine of tribal immunity. ... I am of the view that the doctrine may well merit re- examination in an appropriate case. Puvallup Tribe v. Department of Game 433 U.S. 165, 178-79 (1977). An ironic postscript to this comment is that after it was written, on remand, the Puyallup Tribe asserted its immunity and refused to further participate in that case. Having litigated three times to the United States Supreme Court, the Tribe took the benefits of those issues on which it had prevailed, but left the Court rather than accept the burdens and responsibilities (which could be enforced only against individual members). As previously noted, this practice continues to the present. It is time it be ended by Congress' adoption of a waiver of immunity for all Tribes. Page 14 351 James M. Johnson Office: Capitol Court, Suite 225 Home: 3042 Oldpon Lane 1 1 10 S. Capitol Way Olympia, WA 98502 Olympia. Washington 98501 (360) 866-2370 (360)357-3104 1993 - Present: In private practice, I continue to apply the expertise in major litigation I developed as Chief of Special Litigation for the State of Washington. In United Sutes v. Washington . Washington's (in)famous treaty fishing case, the tribes are attempting to extend their claim to shellfish and public and private lands. My clients are private landowners, parties only after I won a Ninth Circuit appeal of an order denying them intervention. In the Washington Supreme Court in Walker v. Munro , 124 Wn.2d 402 (1994), I successfully defended Washington's tax-limitation Initiative 601 (for the taxpayers, sponsors of the Initiative). In Mille Lacs Band of Chippewa v. Minnesota . I represent nine intervenor counties and work with the State of Minnesota to defend that Indian treaty case. In California, I represent sports and commercial fishing interests and coastal communities in Parravano v. Babbitt , challenging federal ocean regulation. I also authored an amicus brief for Wyoming and Montana counties in the United States Supreme Court in Hagen v. Utah . No. 97-6281, and participated in a NAAG moot court (as a "Justice") in preparing the Utah Attorney General for argument. On February 23, 1994, the Court ruled for us 7-2. 1983-1993: Until April of 1993, I was the Chief of the Special Litigation Division, in the Washington State Attorney General's Office, representing over twenty-five client agencies, and litigating "special" cases for the Sute. I enjoyed being the team leader for much of the State's important litigation at the state and federal trial and appeal levels, including the United States Supreme Court. I was also national affairs liaison to the National Association of Attorneys General (NAAG) and the Conference of Western Attorneys General (CWAG). I know personally and have worked with nearly every states' Attorney General, and top staff. I was contributing editor for the CWAG on American Indian Law Deskbook (March 1993, University of Colorado Press). Recent major cases included the "Ninth Congressional District' litigation cases to retain Washington's 9th U.S. House seat (the last awarded after the census). This included four federal district court cases, and two United States Supreme Court cases. I also authored a brief amicus for twenty-two states in the successful effort to uphold states' election protection statutes last term in Burson v. Freeman . United States Supreme Court No. 90-1056. I have handled nearly one hundred appellate cases in the federal courts of appeal, Washington Supreme Court and United States Supreme Court. Some of these cases are listed on the attached Appendix A. Other Experience: 1970-71 Counsel to Washington State Legislative Joint Committee on Banking Insurance and Transportation. 1971-73 United States Anny Lieutenant (Chief of Administrative Services for Ninth Infantry Division). 1973-1983 Chief Attorney for Fisheries/Game Division of Washington State. Interests: I enjoy running (including marathons), sailing, fishing, hunting, and opera. Education and Bar Admissions: Harvard University, B.A. 1967 (Economics); University of Washington, J. D. 1970. Admitted to Washington Bar 1970; also admitted to practice in the Washington State Supreme Court; federal district courts of Washington and California, Eighth Circuit, Ninth Circuit and District of Columbia Circuit Federal Courts of Appeals; United States Supreme Court. I have also practiced on a pro hac vice basis in federal courts in seven other states. 352 Attachment A LITIGATION EXPERIENCE/LEGAL ACCOMPLISHMENTS JAMES M. JOHNSON I. TRIAL AND APPELLATE EXPERIENCE My experience includes hundreds of trials in both the federal and state systems and nearly one hundred appellate cases up to, and including, the United States Supreme Court. Most of the appellate work involved cases I personally tried. In federal court alone, I have tried over two hundred cases. Most cases have been civil trials, but my trial experience has also included criminal trials in Washington State Superior Courts involving environmental and hunting and fishing cases. This extensive litigation and appeal practice has extended to each of the courts of which I am a bar member. I have appeared pro hac vice in another six states' federal courts. Some noteworthy cases-my favorites-illustrating the variety of my experience are the following: A. United States Supreme Court 1 . I personally briefed and argued Munrov. Socialist Workers . 479 U.S. 499 (1986) successfully upholding the constitutionality of Washington eleaion ballot restriaions. 2. Hagen v. Utah . (No. 92-6281, decided February 23, 1994). I wrote the brief for similarly- situated counties in Wyoming and Montana. 1 helped prepare the Utah Attorney General for argument (as a 'justice") in moot court sessions. 3. Montana v. U .S Dgi't of Commerce. 112 S. Ct. 1704, 503 U.S. 997 (1992). The -Equal Proportions" method of allocating U.S. House seats was upheld, saving Washington's ninth seat from one challenge. I briefed at both the three-judge district and United States Supreme Court and was a justice at the moot court preparing Solicitor General Starr who argued. 4. Franklin v. Massachusetts . 112 S. Ct. 3056, 503 U.S. 929 (1992). The Census' inclusion of U.S. military-overseas on the census day was upheld, saving Washington's ninth seat from another challenge. I briefed at both three-judge district and United States Supreme Court. At the Supreme Court level, this was coordinated with the U.S. Solicitor, whom I helped prepare for argument (again as a moot court justice). 5. Burson v. Freeman . United States Supreme court No. 90-1056. I authored a brief amicus for twenty-two states. The Tennessee law, like that of Washington, proscribes activities such as campaigning around the election polls. Our brief was especially important since one justice adopted our arguments in his concurring opinion. The case was won five to three so this vote was critical (four to four would have upheld the unfavorable lower court). 6. Idaho V. Washington. Ore£on . 444 U.S. 380 (1980); 462 U.S. 1017 (1983). An original action between states, challenging regulation and harvest of fish runs in Columbia River and tributaries. I tried the case to the special master appointed by the Court and participated in briefing and argument preparation for the two United States Supreme Court hearings. 7 The treaty Indian "fish cases." Department of Game v. Puvallup . 414 U.S. 44 (1973); Puvallup Tribe v. Washington Deo't of Game. 433 U.S. 165 (1977); Washington v. Washington Comm'l 353 Passenger Fishing Vessel . 443 U.S. 658 (1979) involving fishing regulation and Indian treaty law. I was a participant in briefing and argument preparation. 8. Antoine v. Washington . 440 U.S. 194 (1975). This deaJt with Indian reservation boundaries and hunting. I was a participant in briefing and argument preparation. B. Washineton Supreme Court and Washington Court of Appeals I have personally handled and/or argued approximately 35 cases, more than half in the Washington Supreme Court. Some recent examples include: 1. Walker v. Munro. Washington . 124 Wn.2d 402, 879 P.2d 920 (1994), upheld an initiative limiting tax and budget increases in face of constitutional challenge. 2. Ellensburg v. Washington . 1 18 Wn.2d 709 (1992). held the State is not required to pay full funding for fire protection services for Central Washington University. I participated in writing the briefs and argued the case before the Supreme Court. It was decided in our favor on January 16, 1992. 3. Schrempp v. Munro . 1 16 Wn.2d 929 (1991), involved a challenge to the Secretary of State's acceptance of initiative. I briefed and argued this case. The court held in favor of the Secretary- allowing the voters to decide. 4. Vanpor v. Munro . 1 15 Wn. 2d 536 (1990), involving a challenge to the Secretary of Sute's processing of an initiative. I briefed and argued this case, which upheld the Secretary. 5. Rains v. State . 100 Wn.2d 660 (1983), upheld the Sute's immunity from suit for alleged civil rights violation under 42 U.S.C. § 1983 (briefed and argued). 6. Snyder v. Munro . 106 Wn. 2d 380 (1986). Washington legislative redistricting, including two 'split' districts, upheld as constitutional (briefed and argued). 7. Nuxoll V. Munro . 104 Wn.2d 456 (1985). Election process for superior court judges upheld (briefed and argued). 8. Washington v. Crown Zellerbach . 92 Wn.2d 894 (1979). The stream protections of the hydraulics code and enforcement through criminal prosecution for violations was upheld (briefed, argued, and won criminal jury trial on remand). 9. The Indian Treaty Fishing Cases : Numerous cases and trials at the Superior Court (Washington's trial court) led to Washington Supreme Court cases of Puget Sound Gillnetters v. Moos . 88 Wn.2d 677 (1977); Sute Comm'l Passenger Ass'n v. Tollefson . 89 Wn.2d 276 (1977); Purse Seine Ass'n V. Moos . 88 Wn.2d 799 (1977). All held the sute must treat citizens the same, and could not regulate for special Indian fisheries. After the United States Supreme Court review (see A-6, above). Fishing Vessel Ass'n v. Tollefson . 92 Wn.2d 939, (1980) upheld the sute's authority to regulate fisheries. 354 C. Federal Courts of App eal 1 have personally handled and/or argued approximately SO cases in the federal courts of appeal. Examples, indicating the breadth of experience are: 1 . Federal Energy Regulation Conmiission appeals (FERC appeals). The Federal Power Act (16 U.S.C. 825(L)) allows appeals to either the circuit for the District of Columbia or the circuit in which the owner resides or does business. Among significant appeals, I have participated in both circuits, are: (a) Rock Island (Confederated Tribes v. FERC . 734 F.2d 134 (9th Cir. 1983); (b) Lewis River-Merwin Dam (relicensing). Clark-Cowlitz JOA v. FERC . 826 F.2d 1074 (D.C. Cir. 1987). (Argued) (c) Ross Dam (Seattle Light) 2. Indian Treaty Fishing cases. United Sutes v. Washington . 384 F. Supp. 319 (1974), is the "Boldt" case on Indian treaty fishing rights (which predates my tenure; I inherited the case one year later). Over 200 mini-trials ensued, involving implementation from one day to one week. Thirty-seven decisions (selected by the judge) are published seriatim, beginning 459 F. Supp. 1020 (1978). Dozens are separately reported. Approximately 30 appeals resulted from the first five years' implementation. One anecdotal illustration; four cases are found seriatim in 573 F.2d 1117, 1118, and 1121 (9th Cir. 1978). The latter was, itself, five separate proceedings. I argued this case and most of the others. On November 2, 1993, I won an appeal granting private landowners party status in the Ninth Circuit (No. 93-35324) Phase III (shellfish and private beaches) case in time for the 1994 trial. United States v. Oregon . 302 F. Supp. 899 (1%9). (The Indian treaty fishing rights case on the Columbia River predated "Boldt." Washington only intervened in 1975). Here, too, there were dozens of hearings and trials (under a week). There are six separate reported appeals. Most important are: 657 F.2d 1009 (9th Cir. 1981) (our injunction against Yakima fishing, including on reservation, was upheld in face of tribal immunity argument) and 529 F.2d 570 (9th Cir. 1976) ("Boldt" 50 percent formula need not apply to Columbia). I briefed and argued both. 3. Confederated Tribes of Colville v. Washing ton. 649 F.2d 1274 (9th Cir. 1981). Sute has jurisdiction over non-Indians within boundaries of Indian reservation. (Argued) 4. Sandidpe v. Washington . 813 F.2d 1025 (9th Cir. 1987). National Guard officer inunune from civil rights suit by subordinate. 5. Herald v. Munro. 758 F.2d 350 (9th Cir. 1984) and 838 F.2d 380 (9th Cir. 1988). ABC, CBS, NBC, and the New York Times challenged the Washington Sutute prohibiting "exit-polling" around election area. The statute was upheld— first decision, invalidated by second). (Argued both) My client did not authorize U.S. Supreme Court review, but see Burson v. Freeman, supra , p.l. 6. Williams v. Dolliver . (Our client. Justice Dolliver, was then Chief Justice of Washington's Supreme Court) 894 F.2d 321 (1988). Washington courts* practice of dividing military retirement pay in divorce proceedings upheld. (Argued) -3- 355 7. SociaJist Workers' v. Munro . 765 F.2d 1417 (9th Cir. 1985) challenged Washington's election restrictions on ballot access for minor parties. The unfavorable decision was reversed by the U.S. Supreme Court, supra , which upheld Washington's law. (Argued both) 8. Columbia Gorpe United v. Yeutter . 960 F.2d 1 10 (9th Cir. 1992) upheld the constitutionality of the Gorge Act (briefing was cooperative; Oregon Attorney General Frohnmayer argued this case). 9. Broughton Lumber v. Columbia Gorge Comm'n. State of Washington . Ninth Circuit Court of Appeals No. 91-35183 (Sept. 15, 1992). Sute sovereign immunity was not waived by the Gorge Act; state may not be sued in federal court for actions of the Gorge Commission. (Argued) D. Administrative Proceedings: FERC and EFSEC Specialized practice before such agencies has included: 1. FERC (Federal Energy Regulation Commission) Hydroelectric dam cases. Trials of licensing, relicensing, jurisdiction, and sub-issues, including: (a) Skagit River; "High" Ross Dam (Seattle City Light) (b) Lewis River-Merwin Dam (Pacific Power & Light competing with Clark-Cowlitz JOA) (c) Elwha River, Glines & Elwba projects (Crown-Zellerbach Corporation) (d) Nisqually River - proceedings involving each project • Yelm diversion (City of Centralia) • Alder Dam (City of Tacoma) • La Grande Dam (City of Tacoma) (e) Columbia River - all five mid-Columbia projects • Rock bland Dam • Rocky Reach Dam • Wanapum Dam • Priest Rapids Dam • Wells Dam (f) White River - (Puget Power & Light) 2. EFSEC (Washington State's Energy Facility Site Evaluation Council) provides and enforces licenses for major power facilities. I participated in trial proceedings involving: (a) WPPSS 11 (Hanford Nuclear Plant) (b) WPPSS 4 and 5 (Satsop Nuclear Plant) (c) Northern Tier Pipeline (d) Fish Kill supplemental proceedings in WPPSS II resulted in award of a hatchery facility 356 II. TEACHING CREDENTIALS AND PUBLICATIONS (chronological listing with sponsoring organization) A. CLE's (Continuing Legal Education courses taught to Bar members) 1. Indian Treaty Hunting and Fishing, Washington State Criminal Justice Training Commission, 1977. 2. Indian Fishing Rights. Governmental Lawyers Association, 1978. 3. Anadromous Fish Management and Protection, Environmental Law Review, Northwest School of Law, 1979. (1) Federal Energy Regulatory Commission Practice, Fish and Wildlife Protection; and (2) Indian Fishing Rights (two separate presentations), Lewis and Clark Law School, 1980. 4. Enviromnental Law, Current Trends in Natural Resource Law, Office of the Attorney General, 1981. 5. Attorneys' Fees Awards Under the Civil Rights Act, Office of the Attorney General, 1982. 6. Federal Trial Practice (new Rule 16), Office of the Attorney General, 1984. 7. Constitutional Law; "EXIT-POLLING" Debate. Washington Bar Association, "Today's Constitution and You" (Bicentennial Program). 1986. 8. Appellate Practice (Argument), Office of the Attorney General, 1987. 9. Columbia River Legal Issues; Fish, Water, Power and Competing Users (U.S. and international). Western Association of Attorneys General, 1991. B. Publications James M. Johnson, Indian and Aboriginal Hunting and Fishing Claims (including marine mammals). International Association of Fish and Wildlife Commissioners, Toronto, Canada, 1978 (published proceedings). Kenneth 0. Eikenberry, James M. Johnson, David M. Driesen, Enforcing Washington Judgments in Canadian Courts: Taking the Dams out of the Stream of Commerce: U.Puget Sound L. Rev. 491 (1990); Washington State Bar News 4S (1991); B.C. Sup. Q. R. S4<2). Conference of Western Attorneys General, (James M. Johnson, contributing author/editor) The American Indian Law Deskbook (U. Colorado press 1993). 357 CONFEDERATED SALISH AND KOOTENAI TRIBES TRIBAL SOVEREIGN IMMUNITY AND CIVIL JURISDICTION TESTIMONY BEFORE THE SENATE INDIAN AFFAIRS COMMITTEE SEPTEMBER 24, 1996 Good morning Chairman McCain, Vice-Chairman Inouye, and Members of the Committee. I am honored to represent the Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana in presenting testimony to you today concerning Tribal sovereign immunity, how it affects the rights of non- Indians residing on and off Indian reservations, and the fair and impartial resolutions of the legal conflicts involving those individuals and Indian Tribes. I am accompanied by the Tribes' Managing Attorney, Daniel Decker and we will offer some of the many examples of how an inclusive, creative approach to Tribal protection of the rights of all citizens living on and near Indian reservations and implementation of successful dispute resolution mechanisms, offer alternatives to unnecessary legislation intended to correct a perceived problem. Perception is one of the major limitations of all of us legislators. We focus on a complaint, dispute or problem based on our personal experiences, our knowledge, and our feelings. This Committee is attempting to deal the perception that non-tribal members living on or near reservations have no civil remedies because of tribal sovereign immunity. Nothing can be further from the truth. I will share with you our Tribes' perspective of the rights of all people living on or near an Indian reservation and the resolution of conflicts among those people and a Tribal government. Tribal governments all over the nation, whether traditional or "reorganized" forms of government, are all too familiar with the distrust, anger, and fear associated with lost property or property rights. For example, my forefathers, by agreement made in good faith with the federal government, ceded, relinquished and conveyed to the United States, property outside an area reserved for the exclusive use and benefit of the Flathead Nation's members. As with every treaty made, the United States government broke nearly all promises made in that treaty, including the right to use the reserved area exclusively. By 1934, only 75 years after the treaty ratification, the Tribes of the Flathead Nation had lost approximately 66% of the 1,250,000 acre reserved land base. Today, while we own about 60% of the land, we represent only about 30% of the total Reservation population. Realizing that the traditional ways of protecting our property and property rights had not worked, the Flathead Nation turned to innovative, progressive means of protecting, preserving, and enhancing our homeland. Our approach benefits all the residents of the Flathead Reservation, which provides all types of civil remedies and opportunities for governmental participation by non- tribal members. A primary responsibility of any government is to regulate the conduct and activities permitted within the government's jurisdiction. A tribal government is no different. On the Flathead Reservation we have taken steps to protect the health and safety of persons on the 358 Flathead Nation Testimony September 24, 1996 Page 2 reservation and to encourage productive enterprise while protecting natural resources. Such government action will necessarily impact the activities permitted on the Reservation. In recognition of the fact that many non-tribal members live on the Flathead Reservation, the Tribal government has taken many steps to ensure that non-members have an opportunity to play an active role in the promulgation and implementation of government regulations and ordinances. Let me tell you about some of the things we've done and are doing. 1. Shoreline Protection Ordinance - As environmentally sensitive Tribes we realized that then uncontrolled growth of residential and commercial developments along Flathead Lake threatened the near pristine water quality. Tribal challenge of the development of one large earth-filled commercial breakwater and dock resulted in a 9th Circuit Court decision affirming the Tribes' ownership of the beds and banks of the south half of Flathead Lake, the determination that the Flathead Reservation had not been disestablished, and the determination that the Tribes rightfully exercised regulatory authority over structures extending below the high water mark of the lake. The Tribes' regulatory authority is exercised by a seven member Board consisting of Tribal members and non-Tribal members. Board vacancies are advertised and members selected by the Tribal Council. 2. Aquatic Lands Conservation Ordinance - The Aquatic Lands Conservation Ordinance exercises regulatory authority (in conjunction with the Army Corps of Engineers/Environmental Protection Agency Dredge and Fill Permitting Program) over construction taking place in riparian and wetlands on the Reservation. The Shoreline Protection Board referenced above, containing both non-Tribal members and Tribal members, exercises the regulatory authority of the ordinance. 3. Flathead Lake Fisheries Co-Management Plan - The Tribal Fisheries Program and the Montana State Department of Fish, Wildlife and Parks co-manage Flathead Lake fisheries pursuant to a plan approved by both the State of Montana and the Confederated Salish and Kootenai Tribes. 4. Hunting and Fishing Cooperative Agreement - This litigation settlement agreement regulates non-member hunting and fishing on the Flathead Reservation. All non-member reservation residents must buy a Tribal permit to hunt and fish the Tribal resources allowed for harvest. Tribal, State and Federal officers all enforce the regulations, citing violators into courts of appropriate jurisdiction. Neither the Tribes nor the State relinquished jurisdiction by signing this agreement. 5. MVP Utility Board and Consumer Board - We manage an electric utility serving over 16,000 meters representing most Reservation homes and businesses. When taking over operation and management of the 359 Flathead Nation Testimony September 24, 1996 Page 3 utility from the Bureau of Indian Affairs pursuant to a Self -Determination Contract, the Tribes instituted an independent utility board to manage the utility and a consumer council to represent consumer interests. Both entities contain non-member and Tribal member representatives. The consumer council was a "first" for the utility and has equal power to the utility board in recommending rate changes to the Tribal Council for consideration in a public, federal rate making process. Local operation of the utility by the Tribes has much improved customer service and public relations. 6. Tribal Administrative Procedures Ordinance - This administrative appeals ordinance sets forth a process by which administrative decisions may be challenged by any affected party. The administrative law judge hearing most cases is a non-member attorney. 7. Criminal Misdemeanor Retrocession from Concurrent Jurisdiction and Accompanying Tribal Court Expansion - Several years ago the Confederated Salish and Kootenai Tribes withdrew from concurrent criminal misdemeanor jurisdiction with the State of Montana over tribal members committing offenses on the Reservation. The extremely high percentage of Salish Kootenai Tribal members incarcerated in the State prison prompted this action by the Council. The cooperative agreement between the Tribes and State and local governments implementing the retrocession, provides for cross-citation authority, stop-and-detain provisions and emergency powers. 8. Tribal Court Improvement and Expansion - In anticipation of the increased workload connected with exclusive criminal misdemeanor jurisdiction, the Tribes utilized Tribal funds to greatly expand and improve our court system. The improvements are outlined below: a. Development of an independent Prosecutor's Office. All prosecutors must be licensed to practice law. Currently, all prosecutors are non-members. b. Establishment of separate Defender's Office. This office represents all people facing a criminal charge in Tribal Court. All attorneys working in this office are non-members . c. Expanded Legal Services Program. This program provides representation in civil cases to individuals meeting representation guidelines. Office staff currently consists of four attorneys and one advocate. Three of the attorneys are non-members. d. Adult and Juvenile Probation Services and Community Service Placements. 360 Flathead Nation Testimony September 24, 1996 Page 4 9. Tribal Appellate Court Organization and Expansion - The Tribes established and then expanded an appellate court to which trial court decisions may be appealed. The full panel consists of three attorney justices and two lay justices. The three attorney justices (including the Chief Justice), have been non-members and the two lay judges Tribal members. Two attorney justices and one lay justice sit on each appeal. Reconsideration is heard en banc. Each side in the appeal has the right to recuse one justice in each appeal without stating cause. This provides additional opportunity for fair and impartial decisions. 10. Regulation Development Comment Process - Whenever regulations asserting civil jurisdiction over non-Tribal members must be adopted or updated pursuant to a Tribal Ordinance, a fully inclusive public comment process is conducted. Regulations developed pursuant to this process, which includes notice and hearing, are those such as Tribal Water Quality Standards; Hunting, Fishing and Recreation Regulations; Migratory Waterfowl Regulations; Shoreline Protection Regulations; Aquatic Lands Conservation Ordinance Regulations; Request for Class I Air Quality Redesignation and many others. 11. Environmental Initiatives - The Tribes developed many environmental initiatives over the years including: establishment of a 90,000 acre wilderness; minimum instream flow protection; establishment of water quality standards; closures for grizzly bear, bull trout, nesting waterfowl, elk, big horn sheep, and reintroduced native species protection; and redesignation of air quality to Class I status. All these initiatives protected and improved the quality of life for all Reservation residents, everyone benefited. 12. Governmental Immunity Ordinance - The Confederated Tribes adopted a Tribal Governmental Immunity Ordinance in 1995. Section 2 of the ordinance contains limited waivers of immunity for injunctive, declaratory or mandamus relief for Tribal government infringement of any civil or constitutional right of an individual arising under the Tribal Constitution, Bylaws, or the Indian Civil Rights Act; for specific waiver of sovereign immunity by resolution or ordinance, or for judicial review of governmental implementation of the resolution or ordinance; when the Council authorizes intervention as a party in a lawsuit (except for counter-claims); in the case of agreements with the United States which require the Tribes to purchase liability insurance, and thereby consent to waiver up to the policy limit; when the Council enters into an agreement expressly waiving immunity, setting out procedures for remedies in a default or breach situation; and when an officer, agent, or employee of the Tribes, acting within the scope of authority, allegedly causes serious personal injury or death through negligently breaching a duty of care owed to another. These limited waivers provide opportunity for individuals. 361 Flathead Nation Testimony September 24, 1996 Page 5 governments, and other parties, to obtain fair and impartial decisions. Where we have chartered tribally owned businesses, those businesses operate pursuant to direction given by an independent board of directors (including non-members). All articles of incorporation include "sue and be sued" provisions. While there are many more stories we could share, we believe the examples given indicate that an inclusive rather than exclusive approach to Tribal civil jurisdiction works. Additionally, our experiences show that Tribal civil jurisdiction is not something that needs to be fixed. More to the point, the "solution" proposed by Section 329 could virtually eliminate all these creative and inclusive methods that work. This would occur because there would be no incentive for non-tribal members to work within our administrative and judicial processes. A waiver of any government's sovereign immunity - be that government tribal, state or federal - would result in judicial chaos by authorizing any one person or entity to file frivolous lawsuits that would virtually bring justice to a standstill. Although it is possible to find anecdotal stories that seemingly justify extreme remedial responses, we hope that through the cooperative examples cited in our testimony the Committee can see that tribal and federal laws as they presently exist already provide sufficient authority to protect the interests of all concerned parties. We appreciate the efforts of this Committee to fully examine allegations and to hear from tribal witnesses and we look forward to working with you on this and future matters. Thank you very much for the opportunity to present these comments today. We will be submitting more detailed testimony for the record, Resp^c^^fully Submi^ed, SiTED SALISH & JCOOTENAI TRIBES -tf^f^^^ ;^^J7^-^^r?'2i^i londa R. Swaney, Chairwoman ["ribal Council 362 LUMMI INDIAN BUSINESS COUNCIL 2616KWINARD • 8ELLINGHAM. WASHINGTON 98226-9298 • (360)384-1489 DEPARTMENT EXT TESTIMONY OF THE LUMMI INDIAN NATION at the Senate Committee Hearing on "Tribal Sovereign Immunity" Tuesday, September 24, 1996 Submitted by Henry Cagey, Chairman Good Morning Vice Chairman Inouye and Honorable Members of the Committee. My name is Henry Cagey and I am Chairman of the Lununi Nation I am here to address the concerns expressed by this Committee regarding procedures available to individual Indians and non-Indians to be heard in a tribal form on the Lummi reservation This hearing is more than a simple question on due process It is a much older question of whether Indian People and Nations can be considered "competent" enough to govern themselves, their territory, and all who access their borders We can trace this conflict over Indian capacity and competency to the Pope's legal opinion of 1537 The non-Indian accusation that Indians lack self-governing capacity is 460 years old This whole problem is based on the government's reliance on the doctrines of conquest and discovery, which are legal fictions created for the benefit of the non-Indians Speaking in a more contemporary vein, we would like to submit for the record four key points on the legal and historical foundations for jurisdiction on and off reservation First, our rights began, not with the treaties, but with the historical fact that the Lummi people have never been conquered nor have they even relinquished their inherent sovereignty Second, the treaties are bilateral agreements between Indian Nations and the United States and cannot be unilaterally altered Third, the govemment-to-govemment relationship between the Indian tribes and the United States is embedded in the United States Constitution Permit me to refer to Senate Concurrent Resolution #76, in which it states, "the Congress. .hereby affirms the constitutionally recognized govemmenl-to- govemment relationship with Indian tribes which has historically been the cornerstone of this Nation 's official Indian policy ". Lastly, I would like to quote fi-om the Treaty of Point Elliot that "the reservations were set apart for the exclusive use of the Indians"... "nor shall any white man be permitted to reside upon the same without permission of the said tribes and the Superintendent or his agent. " The Lummi Nation is not insensitive to, nor unaware of the needs of non-tribal members on the reservation The Nation has put in place mechanisms which ensure due process in tnbal forums for non-tribal members on the Lummi reservation A good example of this is 363 the Lummi Water and Sewer Boards The five-member Lummi Sewer Board has two non-Indian members elected by all State registered voters on the reservation The appeal process for the Lummi Water and Sewer Boards includes • forma] hearings before the Boards and the right of legal counsel • formal findings of fact, with any appeal to LIBC limited to issues of fairness • fiirther appeal to tribal court • appeal to an arbitrator • a waiver of sovereign immunity to enforce any final decision There have been only two appeals to the Boards in the last fourteen years on our Water and Sewer Ordinance In both cases, including one brought forward by Marlene Dawson, a non-Indian resident and Member of the Whatcom County Council, the appellant stipulated that the hearings were fair and in accordance with due process. I would also like to cite procedures now in place in the area of natural resources where the process includes • permitting procedures and licensing • a hearing in tribal court for citations • availability of the Tribal Court of Appeals for a de novo trial In the area of zoning on the reservation, we have in place comprehensive procedures that include a permitting process, open public hearings, and a process of review and appeal based on the written record In contrast we can cite examples of the failure by County, State, and Federal authorities to enforce laws and regulations on the reservation A case in point occurred on the reservation in 1995 A non-Indian fee landowner cleared his land, cutting down trees without a permit, destroying known bald eagle roost and nesting trees, devastating a fish- bearing stream, and disrupting a registered archaeological site To date, no criminal prosecution has been pursued and no civil penalties have been levied as provided by law, and, as have been assessed in similar cases in adjacent jurisdictions by Federal or State authorities Of course, no system is perfect The Lummi Nation has, however, made great strides, especially with the advent of self-governance, in updating and improving our codes and ordinances It is, in fact, a major goal of the Lummi Nation to revise our codes and ordinances to be more responsive to the needs of tribal and non-tribal members on the reservation We understand the significance of this hearings on due process for non-Indians in tribal forums We too, have concerns for due process In the past year, we have witnessed Congressional legislation that directly and adversely affects our ability to exercise treaty rights on the reservation. We were never consulted nor were any public hearings held on this matter We view such unilateral actions as a violation of the principle of due process and an abrogation of the multilateral agreements set forth in the Treaty of Point Elliot. 364 We feel it is vitally important that this esteemed Body be provided the fans and legal background that will truthfully explain the roots of sovereignty, the rights of the Indian Nations, and the treaty obligations of the United States We look forward to the day that we can work together in an atmosphere of mutual trust and respect I would like to close my testimony on an historical note with the words—and the promises- . -of Isaac Stevens, the Governor of Washington Territory, as recorded in the minutes of the signing of the Treaty of Point Elliot of 1855: "There will be witnesses. These witnesses will be tides. You Indians know that the tide goes out and comes in, that it never fails to go in or out: you people know that streams that flaw from the mountains rwver cease flowing, flaw forever: you people know the sun rises and sets and never fails to do so. Those are my witnesses and you Indians, your witnesses, and these promises will be carried out aruj your promises to me and the promises the Great Father made to you will be carried out as long as these three witnesses continue... " May the sun never set on this Body and the promises be kept, now and into the fiiture. Hys>qa. Thank you. 365 EVOLUTION OF CLAIMS TO JURISDICTION OVER INDIAN AFFAIRS by J.P.W. James, LTPTF Coordinator, 1996 STATEMENT OF CONCEBM OVER CURREKT CIVIL JURISDICTION BEARINGS We, as Indian Nations, do not accept the doctrine which states that our nations and people lack the capacity to govern ourselves and all who enter our territory. We do not accept the "legal fictions" that have been created to deprive us of jurisdiction over all transactions transpiring inside our exterior boundaries. We see current attempts to remove civil jurisdiction and deprive our nations of sovereign immunity as a direct attack upon our capacity to self-govern. The United States should not vacate its commitments to Indian self-determination and self-government and should not allow piece-meal legislation to erode the "trust responsibility" owed to the tribes. The Indian Nations of the United States have witnessed a constant erosion of their powers of self-government over their territories, natural resources, and people. In place of self-government, it has been claimed that Indians are a part of the United States, as citizens with special rights and status beyond the average citizen. Of course, these "super-citizen" claims always arise amongst those who are after Indian lands and resources or seek to develop properties located inside reservation boundaries. However, behind this stated concern for the "poor non-Indian inside Indian Country" are centuries of erosion of Indian sovereignty primarily through subtle acts of foreign governments (external to the Indian tribes) . And, the average citizen rarely understands the unique government-to-government relationship between the tribes and the United States. In addition, the national government, with state support or initiatives, have been constantly cutting back Indian sovereignty. This iiqslicit divestiture (so named by the Rehnquist Court) has been accon^lished not on a government-to-govemment basis, in which Indian nations sought to unambiguously become a political subdivision of the republican governmental system of the United States; but, rather, it has been implemented by unilateral acts of legislature or court decrees, or because Indian nations entered treaties of peace and friendship with the United States- who sought to avoid war (See: U.S. v. Wheeler , 435 U.S. 313(1978). Today, the anti-Indian elements present Indians, and the tribal governments, as part of the political subdivisions of the state, subjected to overview by local non-Indian counties and municipalities. This "incorporation" into the local political fabric is not legal under canons of construction of written constitutions of the state or nation, and most definitely cannot be justified at the local level. One nation cannot simply pass an act 366 of legislature and disband a foreign (Indian) nation. One nation cannot enter peaceful relationships with another nation, by treaty, and then declare the treaty had destroyed the inherent sovereignty of the other nation and subject them to the complete authority (plenary power) of the first nation. And, nine supreme court justices cannot conquer several hundred Indian nations by judicial decree. These are legal fictions drafted for the convenience of the non-Indian governments. If this is true, then, why is it that Indian Affairs is sub- jected to the "plenary power" of the United States to the extend that congressmen (Senators/Representatives) feel free to introduce legislative acts to deprive the tribes of the sovereign immunity so needed to prevent an onslaught of frivolous lawsuits waged by individuals and citizens groups to the complete financial ruin of Indian country, or to remove the civil authority of the tribes over interior matters and business practices. We know the current demands for this legislative solution are based on the non-Indians inability to capitalize and speculate on land and natural resource development within Indian Country, due to the inherent authority of the tribal governments. They see Indian governance rights as a impediment to progress and development, on and off-reservation. But, this is a historical ploy. There have been more laws passed about the American Indians than any other politically and racially identifiable group in the United States (See: Kapplers, Indian Affairs, Laws, and Treaties, Volumes I-VII, 1904) . There is i saying that goes, "the road to hell is paved with good intentions." There is an American Indian legal hell currently operating as the death knell of Indian governance nationwide; and, most of the laws were secured for the "best interests" of the Indians- who are viewed as lacking the capacity for self- governance. Removal of our civil jurisdiction or sovereign immunity is not for "our" best interests. The proposal is submitted for the enrichment of the non-Indian special interests. Indian governments are constantly sued, for everything possible, in city, county, state, and federal district courts. In these lawsuits the non-Indians always claim the Indian courts are inferior and do not provide due process (again, a "capacity" arg\jment) . Often the lawsuits against Indians are multiparty, complex litigation that could take years to work through the court systems {e.g.. Winters v. United States , 207 U.S. 564, 1908, per Indian water rights) . The costs In" time and finances are tremendous. The cause is always tied to some non-Indian who has entered Indian Country of his own free will, and then decides he does not want Indians to govern over his behaviors while he is in Indian Country. Most often he represents a special interest after natural resources, land speculation and development rights and takes offense with Indian zoning and civil jurisdiction. Our Nation believes that the U.S. Congress owes a duty to the 2 367 Indian Nations to not further erode Indian self-governance by the removal of sovereign immunity or civil jurisdiction. In fact, the United States should begin a deep analysis of the many legal fictions that have been created, by the congress or court, to continue to hold that Indians, and their native governments, do not have the legal and intellectual capacity to govern over actions of non-Indians entering Indian Country, criminally or civilly. Indian nations have ceded 3,787,425 square miles of land and natural resources to the United States, through more then seven hundred treaties, of which 367 were ratified by the Senate ( Indian Affairs, Laws, Treaties , by Kappler, Vol. II, 1904). This land has been the foundation to the success of the most powerful constitutionally defined democratic, representative, republic in the world. From this, the individual states received governmental jurisdiction over portions of the ceded Indian territory, minus the lands reserved to the Indians or federal government, issued to settlers under federal homestead laws, or set-aside to finance public education and local government. The wealth derived from the lands, more often than not, have been used to sue Indians for more natural resources or to remove them from impeding non- Indian expansion. It would be a continuation of this gross injustice to allow this wealth to buy the influence needed to secure a federal enactment for removing tribal sovereign immunity or civil jurisdiction, simply to enrich local political subdivisions of the state (s) and land speculators. It is crucial to review the historical development of the legal fictions that are frequently resorted to for justifying another congressional enactment to weaken Indian self-determination and hinder self-governance. The formation of this legal fiction foundation is reviewed below- from discovery, to creation of the United States, to regulation of Indian Affairs within the Union, conflicts with the states, and their citizenry. GOO BLESS AMERICA- A FICTION OF BISTORT We have witnessed, in the past couple of centuries, and especially in the last couple of decades, a development of great credibility given to the fabricated doctrines of "Conquest and Discovery." In God's Name whole nations have been destroyed, their populations enslaved, and their natural resources converted into personalized wealth of citizens, "colonial" states, and enriched the church treasury. The Church, in its early formation, learned quickly to "bless" the emperor- if it expected a share of the wealth. The "Donation of Constantine" (by Constantine the Great of Rome, 306 to 337 AD) was the first endowment of land and territory made for the enrichment of the church. Constantine bestowed the known Roman Empire to the jurisdiction of the Church, as well as "our bounty in India, 368 Greece, Asia, Thrace, Africa, Italy, and divers islands." This laid the foundations for the Church's claim to jurisdiction over discovered lands, in the name of God. Since then, the Church has always been well-endowed by the conquering Christian sovereigns in exchange for receiving the sanctions of God (through Papal Bulls) . This "Donation of Constantine" was the foundation for the authorization and sanction of the Church given to Henry the II of England- who could, thereafter, invade and conquer Ireland. Under Pope Adrian's Papal Bull {"Laudiabiliter") , Henry II was given hereditary right to Ireland, and could legally overcome all perceived powers secured by his vassal Strongbow- who conquered the Irish in the King's name (See: A History of Ireland , P.Sommerset Fry, 1988, at 69) . This same type of "sanctions of God" were received by Portugal when she successfully sailed around the Southern Cape of Africa. By Papal legal opinion (Papal Bull), Portugal had the right to discover, invade, conquer, and enslave the pagans, heathens, and infidels of Africa, with the blessings of the Christian Church. Then, when Columbus discovered the New World, Pope Alexander VI issued the Papal Bull "Inter Caetera" (May 1493), securing rights to all the lands in the New World to Spain. In resolution of the conflicting claims of Portugal and Spain, the Pope mediated the Treaty of Tordesillas (June, 1494) dividing the sovereigns conflicting claims, effectively giving Brazil to Portugal and the rest of the western hemisphere to Spain. (See: Documents of American History by H.S. Commager, 1963). The utilization of Papal Bulls to support discovery claims by Christian Kings combined to eventually justify the wars against the Indians; who were considered heathens, pagans, not hvimans, not of the family of Adam & Eve. The wars waged by the Conquistadors were savage, brutal, and uncivilized .actions of such unchristian magnitude that it forced the Church, through Pope Paul III, in 1537, to issue the Papal Bull "Sublimis Deus" in defense of the Indians. Thus began the debates over the power of God (through the Church) and King (through discovery) to develop and implement laws to the defense or destruction of the subjected Indians. Needless to say, the development of modern American Indian law, within the United States, is tied to the very debates asso- ciated with the "justness of war against the Indians" versus peaceful resolution through negotiated treaties, as governed by the laws of nations, guided by international standards. The U.S. Supreme Court, today, continues to base its legal reasoning, in questions of Indian law, founded upon the doctrines of Conquest and Discovery by Christian Nations. In Johnson v. Mcintosh, 21 U.S. (8 Wheat) 543 (1823), the Court found Indians to be savage occupants dependent upon the forest and warfare, and gave legal credence to the "discovery 369 doctrine" in U.S. law. This legal fiction was a subject of convenience, a matter that U.S. Supreme Court Chief Justice Marshall makes a remarkable confession to at 591-92, as follows: Every rule which can be suggested will be found to be attended with great difficulty. However extravagant the pratanslon of conyarting the discovery of an Inhabited country Into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So too, with respect to the concomitant principle, that the Indi an inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice. Marshall continued to address the substance of "discovery" by the European powers, and their relationships to the natives, in Johnson as follows: In the establishment of [the relations of discovery] , the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rigfats to cooplete sovereignty, as Independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made It. While the different nations of Europe respected the rights of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. The fiction of discovery, and rights secured under the sanctions of the Christian God, has worked to justify the early 370 development of legal fictions in the deliverance of "justice" to the Indians. With the successful Revolution (1776), the new United States would continue, in place of the King, to enter relationships with the Indian tribes, by treaties. But, it was the regulation of the "citizens" of the states and nation that would lay foundations for the evolution of the "trust responsibility" owed to the Indians. In the beginning, it was the subject matter of regulating trade and commerce between the nations, as F.P. Prucha, in The Great White Father , at 92 (1984) stated: The trade and intercourse laws were necessary to provide a framework for the trade and to establish a licensing system that would permit some control and regulation, but this was merely a restatement of old procedures. The vital sections of the laws were in answer to the crisis of the day on the frontier, and the provision is pertained to the trilies of Indians with vhcm th« nation dealt as independent bodies. Neither president Washington nor Congress was concerned with the remnants of tribes that had been absorbed by the states and had come under their direction and control. The laws sought to provide an answer to the charge that the treaties made with the tribes on the frontiers, which guaranteed their rights to the territory behind the boundary lines, were not respected by the United States. The lavs vere not primarily "Indian" laws, for they touched the Indians only indirectly. The legislation, rather, rras directed against lawless whites and sought to restrain them from violating the sacred treaties. In the beginning, the discovering foreign sovereigns respected each others claims to first Christian discovery, as required in the laws of nations, and supported by the Papal Bulls. A violation of such first claim could, after all, lead to "excommunication" by the Pope. These were the days when kingly men feared God and the loss of heaven. However, within the United States, it was soon realized that the laws of God were not enough to restrain unscrupulous whites from doing wrong to the Indians, and in consequence laws were enacted to place limits upon the actions of the whites themselves, as noted by Prucha. But, over time, we will find that the enactment of laws are only tools of greedy speculators and private enterprises, just as the enslavement of the Indians by the Conquistadors for the encomienda system was essential to its success. Just as the discovery and conquest doctrines led to legal impediments to Indian tribal self-government, we witness "trade and intercourse" laws creating legal impediments to the individual Indian's natural rights of reason and self-determination. In their place was the "trust responsibility" (guardianship) doctrine, as devised by Marshall in the Cherokee Nation v. Georgia , 30 U.S. (5 Pet) 1 at 17 (1831) . 371 It has been presented that the Indians were subject to the laws of the United States as a result of "conquest" which went hand-in-hand with discovery. But, conquest of the Indians was a recent legal fiction created by the Court in Tee-Hit-Ton Indians v. United States , 348 U.S. 272 (1954). Marshall, in Cherokee Nation (1835) and Worcester (1832), confirmed the independence of the Indian Nations, he did not find they were conquered by or incorporated into the United States. The Indian nations were self-governing over their lands and people, without permission or supervision of the United States or other foreign nations. The Marshall Court, in Worcester , at 553-554, addressed the Treaty of Hopewell with the Chero)cee Nation, in which a treaty provision (Article 9) was alleged to have surrendered tribal control over its internal affairs. The court rejected this pretention as follows: "To construe the expression "managing all their affairs," into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them. The great subject of the article is the Indian trade; the influence it gave, made it desirable that congress should possess it.... Is it credible, that they should have considered themselves as surrendering to the United States the right to dictate their future cessions, and the terms on which they should be made or to compel their submission to the violence of disorderly and licentious intruders? It is oqu^lly Inconcaivablo , that tbay could har« supposed tbamselvas , by a phrasm thus slipped Into an mrtlcla, on another and most IntQrastlng^ subject, to baTa di^rastad themsalvas of tha right of salf-govammant on subjects not connected with trade. Such a measure could not be "for their benefit and comfort," or for "the prevention of injuries and oppression. " Such a construction would be inconsistent with the spirit of this and all subsequent treaties; especially those which recognize the rights of the Cherokees to declare hostilities, and to make war. It rould con-rert a treaty of peace, covertly, into an act a nnih ilating the political existence of one of the parties. Had such a result been intended, it would have been openly avowed. " We witness the transition from "conquest and discovery" in the name of god, to the development of judicial lies for the convenience of the nation, to the evolution of arguments that the Indians had given up their "self-governance" by treaty provision. The Marshall Court developed the foundations for the "trust doctrine" but did note that the Indians never gave up "self- government" and to use deception through a treaty, claiming this to have happened, was not justifiable in law. 372 HISTORICAL FOUNDATIONS TO THE QUESTION OF INDIAN SELF-GOVERNMENT The question of Indian capacity, otherwise referenced as self-governance, is not a new construct invented by American Indian jurisprudence. The question extends as far back as first contact in 14 92 and the subsequent Papal Bulls, and has gradually found precedence built up to justify its (the challenge or our capacity) acceptance. However, it is a question that has not been answered fully. But, recent Congresses have attempted to enact government-to-government relationships with the Indian tribes that reinstates their self-governance (See: P. L. 93-638, Title I, of 1975; P.L. 100-472, Titles II i III, of 1988; P.L. 102-184 of 1991; P.L. 103-413 of 1994), as founded upon the U.S. Constitution itself. Still, during this transition in federal legal relations with the Indian tribes, there are congressmen who would rather exterminate the Indian from American history, law, and politics. They, of course, are self-serving with vested interests beyond simple loyalty to a constituency or duty under the constitutional republican government. Today, we hear debates, still, on the capacity of the American Indians to be self-governing, to self-determine their own destines. Within the U.S. Congress we see the reflections of the noble Bartolome* de Las Casas ( In Defense of the Indians )- who defended the rights of the Indians and the ignoble Juan Gines de Sepulveda ( On the Just Causes of War )- who slanderously attac)ced the human qualities of the Indians and denied their capacity to exercise self-governance and to competently assume jurisdiction over their own destinies, both as individuals and in society. Today, we hear congressmen argue that there still exists an incapacity of Indian tribes to be self-governing, let alone having the capacity to rule over non-Indians who enter Indian Country. Bartolome' de Las Casas wrote his historical treatise in reaction to the slanderous attacks perpetrated against the Indians by Juan Gines de Sepulveda before Charles the V of Spain (1550) . Las Casas came to the New World as a "Conquistador" (conqueror) , on the third voyage of Columbus (1502) . He converted to become the first bom-again Christian in the New World (1514), and became the ultimate protector of the Indians rights for the next several decades, vintil his death, 1474-1566. ( See: The Discoverers , by Boorstin, pp. 631-35, 647 and Las Casas by G. Gutierrez, 1993) . Sepulveda, who never came to the New World, argued that the Indians were pagans, savage, apelike, only worthy of death and hell. Las Casas, in return, held the Indians to be citizens, capable of nobility, admired and never to be killed or enslaved. Sepulveda sought to justify the enslavement of the Indians for the Conquistadors' enrichment (through the Encomienda slave system), based on Aristotelian grounds (theory of natural born slaves), and held that a war against the Indians was "just" in the eyes of God. Las Casas completely defended the Indians based on natural law and 8 373 biblical foundations (See: also, All Mankind is One , by L. HanKe, 1974) . He argued that the Indians were totally capable of "self-government" and that they had the natural capacity of reason as citizens of their ovm societies (See: In Defense of the Indians , by Las Casas, 1552) . Chief Justice Marshall had to address this transition in the status of the Indian "Nations" in one of the first cases with Indians as party to the action, Cherokee Nation v. Georgia , 30 U.S. (5 Pet.) 1, at 17 (1835). Therein, he proclaimed that: India/) nations may more correctly, perhaps, be denominated doaastlc dapandant nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their ralation to tba Unitmd States resembles that of a v^rd to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. Herein, we find the complete shift of the paradigm, in that Indians are finally, in U.S. jurisprudence, legally transformed into the "incapacitated" Indians. Thus, defeating Las Casas' defense that Indians have complete capacity of reason to self-govern themselves within the laws of Christian nations. We find, instead, the arguments of Juan Gines de Sepulveda carrying the day, nearly three centuries after his death; federal laws that allege Indians to be legally incapacitated to govern their own affairs, and denied self-government without federal permission. We, the Indian Tribes, as noted in the modern day constitution of the United States, as addressed in various legal opinions of the U.S. Supreme Court, as treatied with by the joint powers of the President (s) and Senate (s), and who have maintained commercial relationships with the various states and national governments in compliance with trade laws enacted by the Congress, recognize that the question of our inherent sovereignty has been clouded by those who believe they have a natural, God-given right to enslave us, to deprive us of our inherent rights to self-government, and who justified the taking of our lands and natural resources under the Doctrines of Discovery and Conquest (See: Johnson v. Mcintosh , 21 U.S. 573), disguised today as the "Plenary Power" (See: UTs". v. Kagama , 118 U.S. 375) of the United States over Indian Affairs. We find this totally unacceptable, since it is founded on legal fictions rather than truth and justice. It is our legal belief and political position that the American Indians, in tribal societies, have as much right to exercise inherent sovereignty, and the maintenance of immunity from 374 frivolous lawsuits by foreign citizens as do any other qualified, representative government. We have the same endowed, inherent rights to establish our governments based on popular sovereignty just as the citizens of the various individual states and the Union have. This is not a new concept. Indian tribal leadership has always been associated with qualified leadership based on the laws, customs, and traditions of the tribal societies, with the right of the tribal people to not follow leadership if it was not in the peoples' best interests. Tribal governance is derived from the willingness of the tribal community to follow, it is the people that power is derived from. The Iroquois Confederacy, as was the Choctaw Confederacy, were great examples of democratic, representative, and reptiblican governance subjected to checks and balances for cause ( See: The Iroquois , by D.R. Snow, 1994 at Ch.4 and The League of the Iroquois , by lTh. Morgan, 1851, at 71) . FOUNDATIONS TO THE MODERN NATIONAL PONERS OVER INDIAN AFFAIRS In the Albany Plan of Union (1754), drafted by Benjamin Franklin, as pertained to the intended powers of the proposed Grand Council chosen by the People of the several colonies, control over Indian Affairs was addressed in Articles 11 and 12, as follows: 11. That they make such laws as they judge necessary for regulating all Indian trade. 12. That they make all purchases from Indians, for the crown, of lands not now within the bounds of particular Colonies, or that shall not be within their bounds when some of them are reduced to more convenient dimensions. Of course, this was in line with the Proclamation of King George- which declared it a matter of the king's sovereignty to regulate Indian Affairs, to the exclusion of the individual colonies. Franklin, in his plan of union, was attempting to address how the united colonies could avoid having one colony endanger all others by acting inappropriately toward the Indians, who were, then, capable of warring upon the colonies. In 1776 the Colonies secured their liberty from the oppressive tyranny of the British Monarchy. By November, 1777, as ratified in March, 1781, the Articles of Confederation were entered into by the individual colonies; which transformed into the thirteen sovereign states of the United States of America. Under Article II 'Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." Each of these "sovereign" states saw the necessity of union and enumerated powers to the federation, with a retention of those not delegated. It is noteworthy that a majority of the new states believed they inherited sovereignty directly from the king's charters, now that the king was forced out of America. In their 10 375 minds popular sovereignty was not the foundation of their (state) powers. However, these sovereignties were plagued with interstate problems of currency, trade, land speculation, a multitude of citizen lawsuits, revolutionary debts and many other conflicts leading toward a disruption of the Union, and very likely war. Under Article IX, it was provided, "The united states in congress assembled shall also have the sole and exclusive right and power of. . . . regulating the trade and managing all affairs with the Indians, not members of any of the states, provided that the legislative right of any state within its owns limits be not infringed or violated-. . . .", reserving Indian Affairs as a national concern was a crucial belief of the Confederation. By the 1787, the concept that "Indian Affairs" shall be a power of the national government was completely realized by the Framers of the Constitution. The Founding Fathers were very much aware of the Indian question, during the Convention. The pacification of the Indians, through peaceful means, was the key to stability of the new Nation. The United States was still threatened by powerful foreign sovereigns seeking to maintain their foothold in America, in competition with the Union; and, alliances with the Indian tribes were beneficial to all concerned, even though the revolutionary crisis was over. In reflection upon the era, two hundred years after the Constitutional Convention, the 100th Congresses enacted Senate Con. Res. #76 (1987), and its counter-part House Con. Res. #331 (1988), which were congressional declarations in celebration of the Constitution. The resolutions proclaimed the intent "To acknowledge the contribution of the Iroquois Confederacy of Nations to the development of the United States Constitution and to reaffirm the continuing government-to-government relationship between the Indian tribes and the United States established in the Constitution." In history, we know that the King of Great Britain believed Indian Affairs was a power of the Sovereign. We know the emerging colonies recognized the threat the powerful Indian Nations posed to the individual colonies and the need, in the Plan of Union, to assure the Grand Council (as a national governmental structure acting with delegated powers) exercised jurisdiction over Indian Affairs. We know that this was incorporated in the Articles of Confederation as a national power of the new United States in federation. Finally, we know the control of Indian Affairs was most definitely incorporated as a national power under the 1787 Constitution, contrary to the special interests of a few individual state designs at the Convention. With the developing Constitution, it was inyportant for all the "states" to devise a plan to govern the territory of the United States northwest of the Ohio River, during westward expansion. This plan came in the form of the Northwest Ordinance (July, 1787) . 11 376 It designed the "territorial" government that would model for the new territories that formed prior to statehood, from thereafter. The policy guaranteed freedom of religion. It guaranteed the admission of new states, provided they were structured as "republican" (i.e., power derived from the people) in form. In addition, as pertains to the Indians, it provided: "The utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for prasarvlng poaca and friandsh ip vltb them. " This policy was carried forward with the new 1787 U.S. Constitution (See: The Great Father- the U.S. Government and the American Indians , by F.P. Prucha, Volumes I and II, 1984, p. 47). It was enacted during the transitional period between the Articles of Confederation and the Constitutional Convention. What is ironic, is that there were those "Founding Fathers" at the Convention that hoped to secure "treaty powers for the states" with the consent of the Congress (See: The Foundation of the Constitution , by D. Hutchison, 1975, p. 153) . But, this proposal was aBsolutely rejected, because Indian Affairs, and the treaty power, were national powers, not belonging to the individual states. It is not surprising, then, for us to find that the Northwest Ordinance was not only important to the original states, and their land speculations, but to the emerging states- who would all equally find themselves limited in their ability to exercise jurisdiction over Indian Territory. Treaties with the tribes would be negotiated before enough settlers ever entered the lands ceded and reached a number in population to qualify as a territorial government, which was the step prior to statehood. After the ratification of the national constitution, the various individual territories that formed and moved to statehood, were limited by congressional and judicial interpretations of the relationship with the Indian tribes. The Congress ratified and the President proclaimed the transition from territorial government to statehood, indicating the qualifying new state had successfully complied with the constitutional requirements for a republican form of government. It was during the drafting of these state constitutions that each new state had to proclaim it, like its older peers, did not have jurisdiction over Indian Affairs (in their organic documents or constitution) . THE COMSTITUTZONAL SCHEMATIC OF THE DMZTEO STATES 12 377 It is extremely difficult to explain the government to government relationship that exists between the Indian Tribes and the United States, if the reader does not have a general knowledge of the U.S. constitutional government. So, before reviewing this relationship, we will address the general constitutional construct. The Constitution is intended to prevent "tyranny" like that of the monarchy from ever re-surfacing in the United States. In pursuit of democracy and representative government, the republic was created by breaking up the King's sovereign powers (which originally derived from the people, until it became a hereditary position) . The power to make laws were enumerated to the Congress (Senate & House of Representatives, Article I) . The power to enforce the laws were enumerated to the Chief Executive (Presidency, Article II) . The power to interpret the laws were enumerated to the judiciary (Judiciary, Article III) . Included in the constitution were the noted Separation of Powers and the Checks & Balances. Each branch of government became the peoples' insurance that neither of the other two, individually or jointly, could conspire to dominate the people and their government in tyranny. During the earlier federation of sovereign, individual states, under the Articles of Confederation, we witnessed sovereignty based upon the state sovereignty that emerged in lieu of the king, whose powers were originally delegated through charters of colonial incorporation. This type of sovereignty was primarily discarded and replaced by the popular sovereignty found in the Preamble of the Constitution, "We the People of the United States." As a part of their inherent powers and interests in maintaining their union, the "People" assured that new states would be admitted into the Union. This was secured under Article IV of the Constitution. However, it is important to note that the source of sovereignty and powers of governance derived from the people and not some foreign king; thus, those persons that argue state sovereignty as superior to popular sovereign do not understand the transitional history between the 1776 Revolution and the Constitution Convention of 1787. This is especially important in light of the constitutional amendments that made the republican form of governance ever more popular; in that the amendment guaranteed greater equality or modified the system to assure it was the people who chose their leadership (Amendments IX, X, XII, XIV, XV, XVII, XIX, XXIV, XXVI) in state and national government. Of course. Senators still represent "state sovereignty" but the state sovereignty is popular based by constitutional mandate (the conservatives of 1787 checkmated the radicals tha*: favored state sovereignty over popular will of the people) . "We the People of the United States" recognized that there are times that the government may not reflect the best interests of the governed. Thus, in order to secure popular sovereignty indefinitely, it was provided that the constitution can be amended, 13 378 to assure that tyranny does not resurface in the new United States. The Amendment provision is a primary distinguishing feature between the Articles of Confederation (which could not be amended) and the Constitution (which could be amended) . Article V (Amendment power) of the Constitution was, and is today, the peoples guarantee against such tyranny. This power has been exercised successfully twenty-six times since 1787. The first ten amendments were immediately added in 1791 in order to secure the Bill of Rights to the People. The first eight amendments set out or enumerate the substantive and procedural individual rights, and the 9th and 10th are general rules of interpretation of the relationships between the people, the State governments, and the Federal Government. Article VI is important as a matter of "popular sovereignty" in that it makes the U.S. Constitution the supreme law of the land. State constitutions, as a source of state sovereignty based on the original concept of it deriving from the King's delegation, has talcen a back seat in importance, since it applies to only those states that had charters before 1787. The State Constitutions, since 1789, have been primarily in light of the U.S. Constitutional scheme, with the separation of powers (Governors, Legislatures, and Judiciaries) and Checks & Balances systems. Common to all are the guarantees secured to the people (the power of amendment) to check tyranny. But, essential to all is the power of government originating from the "People" (Popular Sovereignty- the Republican form of governance) . It is the people who delegate powers of government to both the state and national governments. All people of all newly admitted states have acknowledged the U.S. Constitution as the supreme law of the land, withstanding anything in state constitutions to the contrary. In siommary, "the Framers of the Constitution agreed to some basic constitutional principles: 1) That all States would be equal. The National Government cannot give special privileges to one State; 2) That there would be three branches of Government- one to make the laws, another to execute them, and a third to interpret them; 3) That the Government is a government of laws, not of men. No one is above the law. No officer of the Government can use authority unless and except as the Constitution or public law permits; 4) That all men are created equal before the law and that anyone, rich or poor, can demand the protection of the laws; 5) That the people can change the authority of the Government by changing (amending) the Constitution; and, 6) That the Constitu- tion, Acts of Congress, and the treaties of the United States are the highest law in the land ( Our American Government , H.Doc. 102-192, 1993). COMSTITUTZOHAL REIATZOHSHIPS WITH THE INDIAN TRIBES 14 379 Before we can understand the application of the U.S. Consti- tution to the relationship with the Indian tribes, we need to understand the significance of Marshall's opinion in Johnson v. Mcintosh , 21 U.S. at 573, in that the "Discovery" doctrine was reviewed and upheld, as relates to the rights of the United States in place of Great Britain, after the Revolution. The doctrine governed the competing relationships between the foreign sovereigns, with superior rights belonging to the first in time to discover the "non-christian" lands. While the doctrine limited the competition rights of foreign sovereigns between each other, it had a spill-over effect in that the Indians could only sell their lands lawfully to the foreign nation first discovering them. Thus, the United States assumed this right to first purchase, as a part of their claim to absolute title {Id. at 590, 591, 592) . Marshall recognized that the Indians were formidable enemies, too powerful and brave to not be dreaded, and this meant the necessity of preservation of the peace, a security of friendship that rested the Indians concerns for their lands. So, restraining claims by the whites, or their governments, as through national treaty-making or development of laws applicable thereto, was an absolute necessity of the day {Id. at 594) . Marshall believed the Indians could not be incorporated into the U.S. political fabric, but that non-Indians could be incorporated into the Indian Nations {Id. at 593) . Marshall ruled that the lands and territory of the Cherokee ( Worcester v. Georgia , 31 U.S. (6 Pet.) 515 {1832) at 542-561, were extraterritorial to the state of Georgia. It was true, in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 {1835), Marshall would rule that the Indian nations were not constitutionally covered the same as foreign nations but were more appropriately termed "domestic de- pendent nations" {at 17) . This gave room for Marshall to ration- alize in jurisprudence the "discovery" doctrine, and still recog- nize Indian nations were not incorporated into the U.S. political fabric, and maintain the separation of states and Indian nations within the constitutional framework, as shall be noted below. The U.S. Constitution is famous for its Separation of Powers and Checks & Balances system. "We the People" delegate our "self-governing" inherent rights to a system of government that will not be oppressive. We hold the government to be one of laws and not of men. In this light, the government acts in our place, on our behalf. However, very rare indeed is the individual citizen that understands the application of the constitution to the govern- ment-to-government relationship between the Indian tribes, the individual states, and the national government. Our goal, here, is simply to explain that relationship as concisely as possible. Article I of the Constitution establishes the Congress, divided into the Senate and House of Representatives. The House of Representatives reflects "popular sovereignty." Excluded from those who the "House" represents are "excluding Indians not taxed" 15 380 (Article I, Section 2, Clause 3) . The Senate reflects "state sovereignty" and represents the state through two senators (Article I, Section 3, Clause 1), and such representation was never intended to extent to the Indian tribes. Through the joint passage of legislation, the Congress can regulate trade & commerce between the Indian tribes and the citizens of the United States (Article I, Section 8, Clause 3- "Indian commerce clause") . The states do not have this legal capacity to regulate trade and commerce with the Indians, except through Congress Assembled. And, the individual states could not directly treaty with the tribes, for that was a power enumerated to the national government (Art. II, Sec. 2, Cl.2 treaty-making powers, forbidden to the states by Art. I, Sec. 10). Neither the Senate or House are representative of the Indian tribes and people. Indians were considered separate from the United States, "although born within the boundaries of the United States, it is as if they were born outside the boundaries, the same as ambassadors or ambassadors children." (See: Reconstruction Debates , 39th & 40th Congresses, 1866-1868) . This is why Section 1 (by the words "subject to the jurisdiction thereof") and Section 2 (by the words "excluding Indians not taxed") of the 14th Amendment were written in that manner- to assure that Indians were not citizens of the United States or the individual states, respectively. Thus, the original constitutional language was kept intact after the civil war, and did not include Indians as many lawyers have alleged. The President (as Chief Executive, Commander in Chief, etc.) shares the "treaty-making powers" with the Senate (Art. II, Sec. 2, CI. 2) . The Presidents have exercised this power, from 1787 to 1871, several hundred times, with at least three hundred and sixty-seven (367) treaties being ratified with the "advise and consent" of the Senate. The treaties reflect a sovereign to sovereign exchange of governments. Almost every one of the treaties were treaties of peace and friendship, rather than treaties of surrender after conquest (See: American Indian Treaties , by F.P. Prucha, 1994; and, Indian Affairi, Laws, and Treaties , by Kappler, Vol. II, 1904) . Like the Congress and President, the Judiciary has a function in the question of Indian Affairs. Under Article III, Section 2, Clause 1, the Judiciary can address laws of the United States, and treaties-made, or which shall be made, under their Authority;...". The Supreme Court, theoretically, has the power to check the other branches of government through its interpretation of legal federal (treaty) questions. However, as Milner Ball has elaborated in his 1986 article Constitution, Court, Indian Tribes (ABF Research Journal, Vol. 1987, Winter, No . 1 ) , the Supreme Court has created "legal fictions" to justify the taking of Indian rights, lands, and resources, in violation of the treatied word of the United States and the constitution. At times, the Court does what is right and occasionally returns a fair decision in resolution of Indian claims of wrong done to them. More often, though, the Indians are further 16 381 victimized in the Courts by being depicted as the "bad Indian" who demands to have his stolen property returned from the unscrupulous whites who held it under color of state law for two or more generations ( U.S. v. Dan, 470 U.S. 39 (1985), Oneida Indian Nation V. Count y of Oneida , 414 U.S. 661 (1974), Joint Tribal Council of Passa maouoddv Tribe v. Morton, 528 F.2d 370 (1975) ), or his treaty rights reinstated (e.g., fishing rights in the U.S. v. Washington , 95 S.Ct. 513 (1974), Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n , '3^ a.Ct. 3055 (1979)). Article III, Section 2, clause 1 must be understood in the light of Article VI, Clause 2, which holds that "the judges in every state shall be bound thereby, any Thing in the Constitution or laws of any State to the Contrary notwithstanding." This means the state courts are bound by the decisions on "treaties" and other federal questions once decided by the Supreme Court. This is especially true under the power of Article VI, Clause 2, which holds "treaties" are one of three sources of supreme law of the land, the other two being the constitution and national statutes. Popular sovereignty prevailed over state sovereignty at the Constitutional Convention of 1787 (See: The Federalist Papers No. 9, No. 31, No. 62, No. 63). The most important change in the new constitution was the additional precaution reserved to the people through the power of "Amendment" under Article V ( The Federalist Papers , No. 43, No. 49, No. 85). More than two dozen amendments have been added to the Constitution since 1787. The Fourteenth Amendment covered all races, but excluded the Indians in its assumption of jurisdiction, through the guaranteed equal citizenship, created by the amendment (See above) , The 1924 Indian Citizenship Act (8 U.S.C.A. Sec. 1401(a)(2)) did not properly amend the U.S. Constitution (Art. I, Sec. 2, CI. 3 and 14th Amendment, Sec. 1 & Sec. 2) . It was nothing more than political psychology to pacify the demands for Indian religious freedom under the First Amendment (to overrule Department of Interior Circular #1665- Religious Crimes Code) . This generic Indian citizenship, in light of constitutional language to the contrary, is another legal fiction. Article IV, Sections 3 and 4 are important in the understanding of the constitutional relationships between the Indian tribes, the states (starting with Manifest Destiny, and during the Colonialization of the American Indian Era implemented by the Department of Interior, 1848-1871), and the United States. One of the great compromises of 1787 was for the large states, with Charter Grants from the King that extended their western boundaries to the South Seas (as discovered and named by Balboa in 1513, now the Pacific Ocean) to surrender their claims to the undefined western lands. Virginia was one of the large states that surrendered her claims, provided the lands would be used for the creation of new states. This plan resolved many of the large state versus small state conflicts existing in the debates over (re) structuring the Confederated government. 17 382 Article IV, Section 3, Clause 1 provided for the admission of new states, as was previously guaranteed under the 1787 N.W. Ordinance. Section 3, Clause 2 gave the congress power to rule over and regulate the (ceded) lands, as secured by treaty with the Indian tribes. However, before the new state could be admitted into the Union it had to have an acceptable "republican" form of government. Thus, the President and Congress reviewed and finalized the admission of new states based on their successful development of republican state constitutions, with the separation of powers, checks & balances, and reservations for amendments by the people when needed. For examples of Admission Proclamations of the states of North Dakota (at 20-21), South Dakota (at 22-24) see Messages and Papers of the Presidents , Vol. IX, 1889-1897, By jTdT Richardson, 1897. Included in many of the states constitutions west of the Mississippi and Missouri Rivers were "Compacts with the United States" disclaiming jurisdiction over the Indian tribes, rights, and resources. This assured the Union that the new states would not try to claim jurisdiction over Indian Affairs, for that would contravene the enumerated powers delegated and reserved to the national government. Elntering the Union with a claim of jurisdiction over Indians Affairs, a type of jurisdiction eniamerated to the nation and not reserved to the individual states, would have resulted in some of the new states being more than equal to their older peers, and that was constitutionally unacceptable. We must note that Indian Affairs has always been a subject of national power; but, much of the powers enumerated to the President, the Congress, and the Courts have been (ab)used to the detriment of the Indians rather than used toward the protection and enrichment of the Indian tribes. The United States is composed of nearly 3,787,425 square miles, secured by treaties with the Indian Tribes. Even with all the modified treaties, the Indians still held 138 million acres in protected status by 1887. However, under the Dawes Act (1887-1934) ninety Billion of these remaining acres were legislatively alienated from Indian oimership for the enrichment of, once again, the new settlers moving into Indian territory. These lands have never been returned, even though there are legitimate treaties protecting and reserving the landa for the Indians exclusive use. The United States is su^^Msed to be a government of laws and not of men, under the tnritten Constitution. However, the laws have been changed by statute or court decision to the deprivation of the Indian tribes, regardless of canons of construction of written constitutions and treaties, ffe can only say that the best review article written on the legal fictions created by the Supreme Court, to justify this illegal taking, is that tnritten by Constitutional lawyer Milner Ball (ABF Research Journal, Constitution, Court, Indian Tribes . Ninter 1986). 18 383 If there was a simple method to depict the constitutional provisions balancing the relationships between the Indian Tribes and the individual States, with the United States in pivotal control of Indian Affairs, then the following diagram would be appropriate: United States of America I TRIBES STATES Art. 1 I, Sec. 2, CI. 3 Art. I, Sec. 8, CI. 3 Art. II, Sec. 2, CI. 2 Art. III, Sec. 2, Cl.l Art. V, 14th Amd, Sec.l Art. VI, Cl.l and CI. 2 Art. I, Sec. 3, Cl.l Art. I, Sec. 10, Cl.l Art. Ill, Sec. 2, Cl.l with Art. VI, CI. 2 Art. V, 14th Amd, Sec. 2 Art. IV, Sec. 3, CI. 1 Sec. 3, CI. 2 Sec. 4 What we must understand is that the tribes and the states were separate sovereign jurisdictions under the U.S. constitutional plan, each deriving their governmental powers from the inherent rights of their citizens /members. The tribes were not incorporated into the political fabric of the individual states. This is why the original state constitutions kept "Indians not taxed" separate from the qualified citizens. The U.S. Constitution, still, mandates keeping the Indian tribes, and excluding Indians not taxed (tribal Indians), separate from citizens, contrary to legislative acts. In the diagram, the United States is the balancing sovereign that is bound, by canons of construction of treaties and constitutions, to assure that this separation of states from tribes is not violated. However, in the review of court cases we find that violations were believed to be justifiable in the states' legal defense in the first Indian cases to reach the Marshall Court in the 1830s. This reasoning has continued ever since. But, the erosion of tribal governance has been supplemented by the erosion of tribal membership by granting Indian citizenship. Contrary to legislative intent, this status has simply became another means to deprive Indians of more rights or resources, to the enrichment of local governments and special interests. Citizenship has led to the incorporation of the individual Indian into the national political fabric, and has resulted in the application of the Internal Revenue Code to almost all income entering Indian Country today. But citizenship has not been the only vehicle used to take powers from Indians and their native governments. In United States v. Kagama , 118 U.S. 375, 155 (1886), the Court found that there was no constitutional basis for Congress to 19 384 enact a code of criminal law for Indian country. The Court reasoned that neither the language of Article I, Section 2, Clause 3, "excluding Indians not taxed" (as addressed in the drafting of the Fourteenth Amendment), or the Indian Commerce Clause (Art. I, Sec. 8, Clause 3) were foundations for the exercise of "plenary power" over Indian Affairs. Neither clause could uphold the application of a criminal code of jurisdiction over Indian Country; although the commerce clause could be the foundation for a code related to trade and commerce (Id. at 378-79) . This legal fiction on criminal jurisdiction was given evev greater credibility by the ruling of Oliphant (1978) that held that Indian governments do not have the (legal) capacity to criminally prosecute non-Indians, as well. While attempting to understand this maze that has been written into the national laws governing Indian Affairs, we should remember the words of Felix Cohen: "Like the Miner's Canary, the American Indian marks the shift from fresh air to poison gas in our political atmosphere; our treatment of the Indian, even more than our treatment of other minorities, marks the rise and fall in our democratic faith." There must be a lesson inherent here for the United States as pertains to its constitution. In this light we can reflect on Milner Balls words (Id. at 61) : "Because we say we have a government of laws and not men, we hold our government to be limited and to have no unlimited power. If the federal government nevertheless exercises unrestrained power over Indian nations, then what we say is not true, and we have a different kind of government than we think we have. And if our government is different in fact in relation to Native Americans, perhaps it is not what we believe it is in relation to other Americans, including ourselves. The Court is regarded as the institution of restraint and a protector of rights. If the Court restrains neither Congress nor itself in taking away tribal rights, then we are confronted by a fundamental contradiction between our political rhetoric and our political realities. " RASHIMGTOM STATZ GOVERMMEMT- EXAMPLE OF h COMSTITDTIOMAL EMIGMX Washington State has been allowed to violate its constitution just as the United States has in regards to Indians. This should not be surprising for in doing so both governments secure great contributions to their treasuries through the application of tax codes to income or lands and natural resources. Both governments have supreme courts that were willing to classify the matter as a "political question" and ignore its implications to the canons of construction of constitutions nationwide. This section will address those errors. To understand the relationships of states to the national government we need to reach a concise understanding of " Our 20 385 American Government " (93d Cong., 2d Session, House Document No. 93-341, p.l), as follows: ...we have at the local, state, and national levels a democratic, representative, republican form of government. It is "democratic" because the people govern themselves; "representative" because they do so through elected representatives chosen by ballot; and "republican" because the government derives its powers from the people. All new states, admitted to the Union after 1787, were secured this guarantee by the N.W. Ordinance of 1787 and Article IV of the Constitution, provided their choice of government was "republican" in form. Thus, a new state derived its governmental power from the people- founded on popular sovereignty first and foremost. Yes, there were constitutional radicals of 1787 that held that "state sovereignty" was in place of the king, who previously delegated his authority through the colonial charters. This was acceptable under the Articles of Confederation but did not survive the constitutional rewrite. Now state sovereignty was popular in its originating source (U.S. Constitutional Preamble & Article IV). We will review the relationship between the United States and the Indian tribes, as relates to the qualifications for statehood and membership of emerging territorial governments. Our example, herein, is primarily the State of Washington. But, its history is fairly generic to many of the new states (at least 12) west of the Mississippi and Missouri Rivers. What is conclusive is that Indian Country {reservations within the borders of the State) is still extraterritorial to the state; based on canons of construction of written constitutions, although ignored due to the use of legal fictions to justify state jurisdictional expansions in the Rehnquist Court (See: U.S. v. Wheeler , 435 U.S. 313 (1978); Oliphant v. Suquamish Indian Tribe , 435 U.S. 191 (1978)). The State of Washington joined the United States in 1889, more than one hundred years after the formation of the Union. The State Constitution begins with the Preamble: "We, the People of the State of Washington, Grateful to the Supreme Ruler of the Universe for Our Liberties, Do Ordain this Constitution." This is an important source directly confirming "popular sovereignty" as the foundation to state governance. State governance did not derive from replacement of the "King's sovereignty" as was the case with some of the first of the thirteen original states (those with Charters of Incorporation) . Under the "Articles of Confederation" individual state sovereignty was believed to be in lieu of the King versus the "social contact" theory of popular sovereignty. Instead, we find a direct modeling on the "We, the People of the United States" popular sovereignty. This is confirmed in the Washington State Constitution, Article I- Declaration of Rights, in Section 1, which provides: "All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are 21 386 established to protect and maintain individual rights." Here, it is evident, the same popular sovereignty that was held supreme to individual state sovereignty in the 1787 U.S. Constitutional Convention, as incorporated in the ratified constitution, is found instituted at the state governance level. The U.S. constitutional model famously separated the sovereignty exercised by the King into its logical segments: 1) the legislative powers were vested in the Congress (Article I), to make the laws; 2) the Executive powers were vested in the President (Article II), to enforce the laws; 3) the Judicial powers were vested in the Supreme Court (Article III), to interpret the laws; 4) the new states could be admitted into the Union (Article IV), with a guarantee of a republican form of government; 5) the People, as the source of governmental powers, had powers to secure Amendments (Article V) , to prevent tyranny from over-coming government and people; and, 6) the constitution, treaties-made, and acts of Congress are supreme law of the land. We find direct parallels in the Washington State constitution, which had followed the recommended structure of republican governance. Article I - Declaration of Rights assured inherent rights of the people would not be trampled by over-zealous government. Article II vested the "legislative powers" in the state Senate and House of Representatives, to make the laws. Article III vested the "executive powers" in the Governor, and his various subparts, to enforce the laws. Article IV vested the Judicial powers into a State Supreme Court and various lesser judicial forums, to interpret the laws. The power to amend the constitution, in order to assure that tyranny does not prevail over the democratic populace, was secured as well in Article XXIII- Amendments. Like other new states, Washington had to recognize the U.S. Constitution was supreme; thus, under Article I- Declaration of Rights, in Section 2, it was provided: "The Constitution of the United States is the supreme law of the land." This important statement was only second to the declaration on popular sovereignty found in Section 1 (noted above) . It, also, was in line with the U.S. constitutional requirements found under Article VI. Like the United States, Washington simultaneously had, and continues to have, a separate population of inhabitants that are different politically and legally from "state citizens" and are called "tribal Indians." In respect to the original, unamended language of the Washington State Constitution, under Article VI- Elections and Elective Rights, Section 1 provides: [All male persons of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all elections. They shall be cltizans of the United States; they shall have lived in the state one year; and in 22 387 the county ninety days, and in the city, town, ward, or precinct thirty days immediately preceding the election at which they offer to vote: Provided, That Indimns not taxed shall never be allowed the elective franchise; ... " The State of Washington did amend this section (Amendment 2) of its constitution in November of 1896; but, still, the language dealing with the "Provided, That Indians not taxed shall never be allowed the elective franchise.." was retained. Nor was it changed by the svibsequent enactment of the female franchise qualification (Amendment 5), or age quantification. It must be noted that the definition of "excluding Indians not taxed" in the U.S. Congress Reconstruction Debates specifically addressed the fact that "taxing" an Indian does not change his constitutional status. An Indian qualifying to exercise the franchise, state or national, was not a simple matter of taxation or wealth. The reference to the phrase in the state constitution is a confirmation of the national constitutional standard. In conclusion, the Indians were not state or U.S. "citizens" based on the 14th Amendment. We must remember, that the State of Washington (1889) came into the Union after the Civil War. The Fourteenth Amendment was already a part of the U.S. Constitution. Section 1 of the U.S. Constitution provided that Indians not taxed were not "subject to the jurisdiction" of the United States, that is why the U.S. entered treaties with the tribes or regulated commerce with them; nor, in Section 2 were Indians subject to individual state jurisdiction, as exemplified by reiteration of the words "Excluding Indians not taxed" in the section (See; Minutes of the Reconstruction Debates , 39th t 40th U.S. Congresses, 1866-1868) . Thus, the Washington State Constitution, in Article II- Legislative Department, restricted the ability to count the "tribal Indians" living within the exterior boundaries of the states as amongst those represented by State government. It provided, therein, as follows: Section 3. The legislature shall provide by laws for an enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five, and every ten years thereafter; and at the first session after such enumeration, and also after each enumeration made by the authority of the United States, the legislature shall apportion and district the anew the members of the senate and house of representatives according to the number of inhabitants, Mceludlng Tndiana not taxmd, ....". The United States, during the "Colonialization of the American Indians," from 1848 to 1871 (See: Federal Indian Policy , by F.P. Prucha) , was sifflultaneously expanding ever westward, west of the 23 388 Mississippi and Missouri Rivers, formerly the exclusive Indian Territory. The U.S. federal Indian treaty policy shifted under the Administration of George Manypenny, Commissioner of Indian Affairs, then located inside the Department of Interior {as transferred from the War Department, 1848) . Indians, by treaty, were to be relocated to the new "Indian Reservations." In return for treaty commitments from the United States, to guarantee retention of inherent and "reserved rights" of the tribal people and their governments (See: U.S. V. Winans , 198 U.S. 371, at 381 1905), the U.S. secured millions o? square miles of ceded lands from the tribes by treaties. The tribes never gave up their rights to self-determination and self-government or jurisdiction over their interior affairs under those treaties. The newly emerging states (after 1848, more or less) were obliged to develop state constitutions under the requirements in^osed by the U.S. Constitution (Article IV, Section 4); that is a "republican form of government." At the same time, the United States, based on the treaty cessions of land, and under the powers to rule t regulate such lands, issued territorial entitlements to the new states under authority of Article IV, Section 3. The United States continued to exercise the national powers over the control and regulation of "Indian Affairs" above and beyond the powers of the individual states. The State of Washing- ton, lilce many of its peers, was required to acknowledge this restriction in its constitution. Thus, Article XXVI- Compact With The United States provides, still, today: The following ordinance shall be irrevocable without the consent of the United States and the people of this state: First Second, That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Tndimn or Indian tribma; and that, until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the CAiited States, and that the lands belonging to citizens of the United States residing without the limits of this state shall never be taxed at a higher rate than the lands belonging to residents thereof, and that no taxes shall be iaposed by the state on lands or property therein belonging to or which may be hereafter purchased by the United States or reserved for use: Provided, That nothing in this ordinance shall preclude the state from taxing, as other lands are taxed, any lands owned or held by any Indian who baa amrmrmd his tribal rmlatlon, and has obtained from the United States or from 24 389 any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long as and to such an extent as such act of congress may prescribe. " It is important to take historical note of the two important sources of information available to define "excluding Indians not taxed" and "tribal Indians" at the time this constitutional compact was drafted. The first source was found in the U.S. Constitutional Debates on Reconstruction, during the 39th and 40th Reconstruction Congresses (1866-1868) . It was made very clear the Indians who have maintained their "tribal relations" were otherwise known constitutionally as "excluding Indians not taxed." And, they were not "subject to the jurisdiction" of the United States (Section 1, 14th Amendment), nor were they subject to the jurisdiction of the State (s) (Section 2, 14th Amendment). This whole constitutional construct of the language was reviewed in the case of Elk v. Wilkins (112 U.S. 94, 1884), which confirmed this constitutional separation of tribal Indians from the general citizenship and the jurisdiction of both state and national governments. This case was five years old when the State of Washington was admitted into the Union. Tribal Indians were separate and had their own governance over tribal internal affairs, and external government-to-government relationships (as in treaty relations) . Another case. Won Kim Ark preceded this definition, in dicta, but indicated its correctness of interpretation at the time. For a more indepth review of the status of the Indians (as "excluding Indians not taxed") the reader should see the Department of Interior Solicitors Opinions (November 7, 1940 and November 22, 1940. pp. 990-1000) ; however, beware, while the opinions are historically correct, the author was obviously forced to conclude the Indian Citizenship Act overrode the 14th Amendment. It is important to take notice that, over time, there were individual Indians that had separated themselves from the tribes to become non-tribal (just as John Elk, the Omaha Indian did, per the ElK case), as anticipated in Article XXVI, Section 2 of the Washington Constitution. Such Indians were no longer considered as covered by the language of "Excluding Indians not taxed." Such individuals, when new states emerged from territorial status, could become classified as non-tribal Indians by their separation from their tribal people. They could, as delineated in Elk , become citizen Indians. Many individual Indians refused to move to the treaty-established reservations. Instead, they separated from the tribes and became owners of "Indian homesteads" under various acts of Congress (e.g., Dawes Act of 1887 and Indian Homesteads with trust periods) . In the State of Washington many Indians became non- tribal and lived on such homesteads. They form the modern day 25 390 Nooksack, Stillaguamish, Upper Skagit, and other "tribes" (e.g., the Samish) most recently recognized by the Department of Interior. Today their "reservations" are actually remnants of old Indian homesteads that were secured under an Act of Congress and placed into "trust" for twenty-five years, unless extended in time. The difficulty for state governments has been the inability to distinguish, over time, between those Indians that have always maintained their tribal relationships and identity (for example, the Lummi, Swinomish, Tulalip, Suquamish, Nisqually, and other treaty tribes of Washington State located on treaty established reservations) and non-tribal Indians that refused to relocate upon a reservation but lived on family homesteads, separate from tribal communities. This is why the State of Washington Constitution addresses "tribal Indians" and "excluding Indians not taxed" as a means to qualify those who it does not have jurisdiction over. Individual Indians with homesteads, of course, eventually qualified as U.S. Citizens and thereby became a state citizen, capable of exercising the elective franchise, once their period of trust protection expired over their homesteads (originally 25 years) . Now, today, Washington State has exercised the power to amend its constitution seventy-five times successfully, with an additional eight amendments still pending proper ratification. And, it is noteworthy, that the State never once addressed the limitations imposed by Article XXVI, as pertains to the Indians and the lack of state jurisdiction over the same. Washington State was not the only newly emerging State to join the Union with a restriction on jurisdiction over Indian Country. Of the dozen, or more, states with constitutional disclaimers there have been different approaches to reacting to the "constitutional amendment" requirements imposed upon those states when the issue of P.L. 280 surfaced sixty-four years later. There were several new, earlier mid-western states admitted into the Union without "constitutional" disclaimers; but, their enabling legislation did disclose their legislative disclaimers of jurisdiction over Indian Affairs. However, as pressures for westward expansion increased, the restrictions upon jurisdiction became more pronounced and constitutional disclaiaers were a mandated part of the legal price for Union admission. The States of Washington, Montana, Arizona, North Dakota, Utah, Wyoming, Alaska, Idaho, South Dakota, Colorado, New Mexico, Oklahoma, and Hawaii, for exaaple, are "constitutional disclaimer states." But, states that were admitted into the union closer in time to the federal Indian policy shift that transpired in the late 1840*8, at the beginning of the colonialization of the American Indian, ended up with enabling act (legislative) limitations and not constitutional prohibitions. Washington, Montana, Arizona, Idaho, North Dakota, Utah, and 26 391 South Dakota all represent the conflict over whether or not state constitutional amendments were mandatory for these states to assume jurisdiction over the Indian reserves under authority of Public Law 280. These states had/have constitutional disclaimers. The people of Wyoming voted down the proposed constitutional amendment to remove the disclaimer. The State of North Dakota was sued and forced to submit the question as a matter of amendment to the people. South Dakota, like the State of Washington, simply sought to ignore canons of construction of written constitutions and superimposed their claims to jurisdiction by legislation. The South Dakota Supreme Court inviolated the state's legislative assumption of partial jurisdiction. The Supreme Courts of Arizona, Washington, and Montana upheld the legislative assumption, even though it was contrary to the state constitutions. These states manifest a dangerous cancer growing in the U.S. constitutional republic. For those without the background on Public Law 280, a review may be appropriate. From 1948 to 1974, the United States shifted its federal Indian policy and began to "terminate tribal Indians." There was popular support, in the Terminationist Congress of 1953, to enact the proposals for state assumption of criminal (25 U.S.C.A. Section 1321, and 18 U.S.C.A. 1162) and civil jurisdiction (25 U.S.C.A. Section 1322, and 28 U.S.C.A. Section 1360) over any and all... offenses or causes of action respectively within the borders of the Indian reservations, and the mentioned states. In 1968 (See: Indian Civil Rights Act, and 25 U.S.C.A. Section 1321, 25 U.S.C.A. Section 1326), the tribes, and their allies, were able to convince the U.S. Congress to take a step backwards and to assure the tribes' "consent" would first be obtained before the non-mandatory states attempted to apply Public Law 280. However, the consent issue aside, section six of Public Law 280 provided: "Notwithstanding the provisions of the enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assiunption of civil or criminal jurisdiction in accordance with the provisions of this subchapter. The provisions of this subchapter shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes, as the case may be (25 U.S.C.A. Section 1324, originally enacted as Act of Aug. 15, 1953, Ch. 505, Section 6, 67 Stat. 590). This section did not authorize the violations of canons of construction of written constitutions. Those states with constitutional prohibitions should have had to remove the offending language by amendment, to determine if it was the will of the people (the source of governmental power) . The choice of the people of Wyoming as "No" to the amendment. South Dakota had to be sued and forced to retreat from the legislative route. But, the other 27 392 mentioned state supreme courts ignored the constitutional requirements. The U.S. Supreme looked that other way, under the claim that this was a matter of "state law" and not a federal question. But, it is a federal question under Article IV, Section 4, in that it erodes the value of the "guarantee to every State of this Union a Republican Form of Government." In retrospect, some states began to realize, after assumption of criminal and civil jurisdiction, that there always is a cost to the tax payers whenever governmental jurisdiction is expanded. Therefore, states, like tribes that were dissatisfied with state unilaterally assuming jurisdiction over Indians, sought the establishment of federal retrocession processes to reverse the assumption. Thus, 25 U.S.C.A. Section 1323 was enacted to authorize an orderly retrocession, although not all states have been willing to retrocede some have (e.g., Arizona). Even with retrocession as a possibility, this does not excuse the violations of the republican form of government so cherished in America today (although current militias indicate a backlash) . It has not been a simple question of which state lawfully assumed jurisdiction, when addressing the differences between states that had constitutional disclaimers, like Washington for example, versus states that had organic document (legislative) dis- claimers, like Minnesota. The Supreme Court had the opportunity to address and apply a uniform canon of construction of written constitutions to all states, in light of the "Amendment" powers written into the republican forms of state government mandated in the U.S. Constitution and N.W. Ordinance. One such opportune case to address this as a federal question was Washington v. Yakima Tribe (439 U.S. at 484, in 1979). The effect of the Court decree equates acts of legislature equal to constitutional amendments; which is a legal fiction that undermines the soundness of constitutional republican governance (at both the state and national levels) . It makes a mockery of the retained powers of amendment belonging to the populace, a power that is the checloaate against tyranny in popular based governments. Such a frivolous review by the Supreme Court reminds us of the Radio Address of President Roosevelt in which he stated, "I want what all Americans want, a United States Supreme Court that shall adhere to the canons of construction of written constitutions, and not amendment by judicial sayso." Legal fictions that make legislative enactments the equivalent to constitutional amendments are directly manifest of the fear that confronted the President. It must be recognized that Washington State, as an example, makes a revenue windfall by exercising illegal taxation jurisdic- tion inside the boundaries of the Indian Reservations. The federal court ruled that P.L. 280 gave the state this jurisdiction when in fact it definitely was silent on taxation powers. This assumption of taxation jurisdiction made a mockery of the constitutional 28 393 amendment process, nationwide. It has been implemented as a cheap means to secure state jurisdiction over Indian Affairs for the enrichment of the state treasury, contrary to national law. In addition, the state has had the support of the Supreme Court in cases that effectively were a " looking- the-other-way" review; in order to allow the states to collect (otherwise illegal) taxes on the sales of cigarettes, alcohol, or any other commercially valued goods of commerce and trade sold in Indian Country by Indians to non-Indians. These judicial interpretations have been founded upon legal fictions- there are no federal tax enactments that extended this taxation power to the states over Indian Country. Neither of the respective provisions of delegated authority found under the criminal or civil portions of Public Law 280 authorized any type of taxation authority to the state (s) over Indian commerce; but, the Supreme Court "legalized" this exercise of jurisdiction by alleging the enactment did extend this type of jurisdiction to the state(s). The U.S. Congress did not purposely exercise the powers of the Indian Commerce Clause (Art. I, Sec. 8, CI. 3) and give the states this taxing jurisdiction under P.L. 280 (this assumes the clause reaches into Indian internal affairs) . It is an established doctrine that such actions must be expressly done in clear and unambiguous terms to be legal; but, the Rehnquist Court has ignored this doctrine to the convenience of state governments. This type of legislative power (i.e., legislation by judicial decree) is not delegated to the Supreme Court under the enumerated powers or the implied powers of the constitution. The whole construct violates the separation of powers and checks & balances doctrines of the U.S. Constitution. The Supreme Court has simply followed the popular state politics of the day and terminated an exclusive area of jurisdiction reserved by the tribes- as a natural extension of their inherent power. The Court held that such powers are secured to the United States by its exercise of the "Commerce Clause" power (Article I, Section 8, Clause 3, as its source of "plenary powers" over Indian Affairs), when the nation chose to exercise this power. Originally this clause was intended to govern the actions of non-Indian citizens and not the internal affairs of the Indian tribes; thus, another legal fiction of convenience (See: U.S. V Kagama , 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) has gained ground. There are no constitutional justifications for the U.S. Supreme Court to violate the "separation of powers" doctrine. But, whenever the court reads into the law that which is not there and never intended by the congress, then it legislates by judicial decree. The Court should leave it to the congress to exercise the "commerce clause" in its own time. We, the tribes, of course, prefer the congress to use the enumerated power to regulate their citizenry and not the internal affairs of the tribes. 29 394 Neither the language of the U.S. Constitution, or the various state constitutions, empowers or authorizes the Congress to "waiver the tribes sovereign immunity" or remove "civil jurisdiction" from the control of the tribes. Such power cannot be found in the treaty-making power, the commerce power, nor the exclusion of Indians from representation in the republican government. We have seen that the doctrine of "discovery" had given the foreign sovereigns, in international law, the rights of first purchase to the exclusion of all others, if the Indians chose to sell. The doctrine of "conquest" is a legal fiction given great weight in the Tee-Hit-Ton Court (1954), as more then seven hundred treaties of peace and friendship attests to the contrary. The tribes were never incorporated by either the state or U.S. governments, according to Chief Justice Marshall. Justice Rehnquist had created a fictional incorporation to justify the destruction of tribal governance since 1978, and in contravention to Marshall's precedential rulings. This conflict continues to influence the underlining debates over Indian self-governance, as secured by national legislation since 1988. As noted, this self -governance issue reflects the old "capacity" debates of five hundred years ago. It is a shame after the passing of centuries, there are still ignorant politicians and special interests that perceive themselves as superior to Indian people and governments as much as the "Conquistadors" did under the "encomienda" system. The attempts to take away tribal civil jurisdiction can only be branded as racial politics in its greatest manifestation... the abuse of the power of "We the People," in a form of governmental tyranny (plenary power) over Indian Affairs, is used like the sword of Juan Gines de Sepulveda to the detriment of all tribes. In the beginning, the United States had used the "Indian commerce clause" to limit the actions of unscrupulous whites when they entered Indian Country. However, the protective use of this power has been used very infrequently. The most recent controversial use of the p>ower has been the Indian Gaming Regulatory Act. The power could have been exercised to provide a strong "Indian Tribal Government Tax Status Act" that would have effectively let Indians participate in the national economy; but that dream was killed because of a few dissatisfied congressmen. The list of protective use of the power is not to great. There are so many non-Indians that claim the reservations are not conducive to business development. Much of the confusion is the result of weak, antiquated federal laws in trade and intercourse. The Congress can easily exercise this power to mandate the development of a "Uniform Commercial Code" that would alleviate the business communities' fears of doing business in Indian Country. Remember, it took half a century, or more, for the draft UCC to be completed in a form acceptable for all the members of the Union. 30 395 The "Guardian" has not chosen to help the "Ward" develop to a level it can compete and survive on its own. If "plenary power" is based on the "Indian commerce clause" then that power should be used to the enrichment of the ward, not the guardian. Indian gaming and other commercial enterprises have always had a great "multiplier" impact upon the surrounding non-Indian communities, in increased jobs and dollar marketability, as can other ventures. The Indian reservations have the highest infant mortality, shortest life-expectancy, poorest housing, highest poverty, lowest educational/vocational attainment, and highest unemployment and underemployment. In addition, the federal policies, over time, have destroyed the Indian family, extended family, sense of community and the correlating trational and ceremonial values & religions, as well as purposely undermined tribal self-governance. All Indian lands and natural resources had been in the complete control of the Bureau of Indian Affairs, and has resulted in a significant portion of the reserved lands being sold to non-Indians for pennies on the dollar. When the states made it illegal for Indians to hunt, fisn, or gather then starvation set in and public assistance was only available if the Indians immediately sold all interests in tribal land. Any business or industrial developments planned for Indian reservations are immediately challenged by local government and the resultant lawsuits drive away the investors. Any income entering the reservation is then taxed by the federal government based on the current application of the Internal Revenue Code to tribal Indians based on tax court decisions, not legislative enactments. This is why the current hearing is offensive to the tribes! The United States should exercise power with honor not disgrace. 31 396 Testimony of Bin Anoatubby, Governor of the Chickasaw Natkm Senate Committee on Indian Afiairs September 24, 1996 Mr. Chairman, on behalf of the people of the Chickasaw Nation, I extend otir appreciation for being given the opportunity to provide comments before the distin- guished members of this Committee. My name is Bill Anoatubby, and I am the governor of the Chickasaw Nation. One of the Five Civilized Tribes, the Chickasaw Nation encompasses more than 7,648 sqtiare miles of south central Oklahoma. According to the 1990 Census, the Chickasaw Nation is the 13th largest Indian tribe in the United States. We are pleased that the Senate Committee on Indian Afiairs is allowing us this opportunity to provide input regarding the overall issue of tribal sovereign immunity. We are also pleased to acknowledge, with gratitude. Vice Chairman Daniel Inouye's commitment to hold this hearing regarding the concerns included at Section 329 of the Senate's Fiscal Year 1997 Interior Appropriations bill. The Chickasaw Nation has been blessed in many ways. Among those blessings, we count the excellent working relationship that our tribal government has with many members of the Congress. It has been our honor and privilege to have also worked closely and well with ntmierous federal departments and agencies. That working relationship has been fostered by— and founded upon— the govemment-to-goverhment dealings which have been mandated throughout the history of the United States of America. 397 That mandate has been contained in every single treaty between our two nations. Between 1787, the year of the first treaties between the United States and tribal governments, and 1 871 , the year in which treaties were no longer entered into between the federal and tribal govrmments, hundreds of treaties were condudcd. In virtually every one of those treaties, each tribe gave up its lands in exchange for promises by the federal government. Those promises have amounted to and are considered to be the trust obligations which the United States has for the tribes and their citizens. When considering the entire history of American-tribal rebtions, it is easy to see that those obligations have not always been totally and faithfully upheld by the federal government. Scrutiny of those obligations is required every day by the challenges and demands placed upon both our governments. That scrutiny often leads to the removal of more and more of the powers and authorities of the tribes, and those are powers and authorities which ought to be exercised by and reserved to iiny government. As the trustee for the tribal nations, it should be the responsibility of the federal government to make sure that the sovereign powers and authorities of the tribes are not only protected, but expanded to at least equal those of other governments insofar as regulatory powers within the tribe itself are concerned. In the beginning of the history of the United States, treaties between America and the tribes were agreements between equals, one sovereign to another. Tribal governments were accorded the same significance and respect as any foreign nation. Because of the -tenuous condition of the new United States of America, every effort was made to seek and obtain the tribes as valuable and important allies. 398 Aa one of the first tribes on this continent to befriend the fledgling Americans in their efforts to found the United States, the Chickasaw Nation has been a staunch friend and reliable ally. When the call to arms was issued by the Continental Congress, the Chickasaw Nation responded with a force under the leadership of one of our great war chieB, Piomingp. Piomingp and his party of Chickasaw warriors walked more than one thousand miles to respond to General George Washington's call for help. Fifty years later, our tribal leaders were presented with the demand from the nation's capital that we surrender the lands our ancestors had called home for thousands of years. And that was just the beginning of the long and convoluted evolutionary process of the United States governments' dealings with the tribes, constituting what amounted to federal Indian policy. The Chickasaw Nation was one of the subjects of a move in Congress to terminate the tribal governments of the Hve Civilized Tribes and end the status of each of those as tribal nations and governments. Operating under that belief from the time of Oklahoma statehood in 1907, it was not until 1969 that we, ourselves, found out that, despite the intentions of Congress, the Chickasaw Nation and the others of the Rve Civilized tribes were not terminated in law. In 1 971 , we reinstituted our tribal government and are now making progress like our tribe has not seen since before the American Civil War. We have so for stirvived all sorts of attempts to restrict our sovereignty, attempts which amount to direct threats against the very eidstence of our tribal nation. Those threats have been mounted fitim— it seems— all directions. In the earliest days of the United States, the tribes were courted because they were powerful and becatisc they 399 coQtTolled the lands. Those lands were later desired and needed hr the expansion of the United States, so they were taken. Then, when the tribes had learned to survive— if not benefit and prosper— on their 'new* lands, the demands came that even those lands were needed in the national interest of expansion. Having been herded onto lesser and lesser desirable lands, the tribes made do with what they had, at least ontil it became time to, once again, take those remaining lands away from them. Year by year, treaty after treaty was negated, ignored or abrogated. In the history of the United States, the Congress formulated federal Indian policy which evolved hand-in-hand with the perceived needs of the cotmtry. At first, the policy was to treat with the tnLv~ as governmental equals. Then the policy shifted to one of removing the tribes from their lands and resettling them in areas which would not be under immediate threat or demand. The policy then changed to one of termination or, failing that , assimilation. Finding that neither one of those worked very well, the emphasis shifted to a more grandfatherly manner of dealing with the tribes, through which everything was done for the tribes by the federal government, in what was at that time determined to be the "best* method of providing for the tribes and their citizens. That period was followed by the period in which we now find ourselves, that of self- determination and self-governance. Through the urging and strong support of the Congress, the White House and other federal agencies, the tribes have more or less accepted the challenge of devismg and developing their own tribal economies, of aggressively seeking through business development, unique methods to generate their own revenues to lessen their dependence 400 on federal funds and to provide through their own mechanisms the services and programs needed by the Native American population. The tribes were suddenly expected, and asked, to perform and function like 'normal' governments. 'hJormal* governments have the ability to generate the revenue they need to operate through methods such as taxation. One of the primary considerations not often given to the development of tribal economics is that, although tribes do indeed have their own governments, their land base upon which to rely for the generation of taxation revenue for their governments (like virtually every other government in America) is practically, for taxation purposes, nonexistent. Without that source of revenue to rely on like states, counties, municipalities and even the federal government, the taxing base for most tribes is so limited as to be extremely impractical as a consideration as a primary source of governmental revenue generation. In the last two decades, the tribes have managed to work with what they have determined to be their assets. For many tribes, that has meant taking advantage of every single opportunity to provide for their citizens. They have developed tribal enterprises to augment and supplement the dwindling federal dollars— dollars which the United States was obligated through its trust responsibility— to be used to meet the ever-growing and changing demands and basic needs of our people. They have taken advantage of the congressional mandate to practice self-governance, to determine and define their destinies as tribal nations. In accepting that challenge, the tribes have relied not only upon the 'traditional' methods of generating governmental revenue (taxation, regulation, etc.), but they have responded to the challenges to provide for themselves in tmique and clever ways. 401 The Chickasaw Nation, which only 25 yean ago was totally dependeat upon fedcial fiinds to provide services and programs for its people, today pays for the cost of its core government entirely from the revenues it generates through its btisinesses. Now, only about 40% of the annual budget of the Chickasaw Nation comes frtrni the federal government. We have risen to Congress' challenge to be self-governing, and those eflForts, now restating in true progress for many tribes, mtst be protected. Some of the tribes, through their efforts at self-governance through business development, have prospered tremendously and, in that prosperity, they have managed to somewhat unnerve the observers of Indian Country. Utilizing their remaining powers and authorities, the tribes have developed at phenomenal rates in creative ways. Use of state-of-the-art technology in developing reservation and non-reservation tribal economies, coupled with the tribes' abilities to practice self-governance and somewhat limited self-regulation, have stirred jealousy and contempt. It is a brand of jealousy and contempt not unlike that which the early settlers had for the Indians; they merely wanted what the tribes had— their lands. Today, the tribes have been able to take what little they have at their disposal and work with it to bring some measure of success. That success has resulted in several attempts by members of Congress to attack, limit or even remove tribal sovereign autonomy. The language of the proposed— and now withdrawn— Section 3 29 of the Interior Appropriations bill is not as comprehensive in its effort to limit or restrict the sovereign powers of tribal governments as some attempts have been. Nevertheless, it represents 402 what is perceived to be a threat to remove an attribute of sovereignty which has long been reserved to non-tribal sovereign governments in this country, and that is the right to be immune from suit. It abo contains a provision which would subject a tribe to the jurisdiction, orders and decrees of the a pprop r ia te state court of general jurisdiction.* Subjecting the tribes to the jurisdiction of any state court for any reason-is not only an abrogation of tribal governmental power and authority, it creates a poor precedent by forcing tribes and states into a relationship which has never before eidsted. No treaties have been entered into between tribes and state governments (states are forbidden from doing so by the United States Constitution), so there is no basis for any state to give any credence to tribal authority or self-governing powers. Given the treatment of tribes in state courts in other matters, and knowing that there are no trust obligations or even govemment-to-govemment relations between tribes and states, it should be clear that such a move would be disastrous. It would challenge the very progress that tribes have been making in the last 20 years by subjecting them to the controlling authority of a state government— a government which has absolutely no obligations to a tribal government and has no history for such dealings. Such a measure will surely re*'ilt in placing yet another different range of obstacles before tribal development and the practice of tribal autonomy. It would also create other problems which we believe have not been given adequate review or consideration, and for which no input from tribal governments has before now been sought. 403 Several federal agencies deal with tribes and treat them as states (the U^. Environmental Protection Agency and the U.S. Department of Agrioilttire treat tribes and work with them on the same level as they do with the various state governments). The language of Section 329 would not only have made tribes subject to state government (at least in the instances included in Section 329), it could also have placed into jeopardy the relationships which tribal governments have and cultivate with federal agencies. Because tribes are, for many instances, treated the same as states, would Gmgress propose subjecting the control or regulatory authority of one state to another? Another consideration is the fact that governments, ranging from municipal to county to state and federal, have the rights, powers and authorities to make decisions affecting lands over which they ezerdse jttrisdiction. That, too, is a basic tenet and principle of sovereignty. As dependent nations, tribal governments should have the same power and authority as any other gofvemment to exercise full jurisdiction over lands within their respective purview. One of the basic reasons that tribes have enjoyed such remarkable success in the development of their own re sp e ctiv e tribal economies is because the states do not now have any jurisdictional authority in Indian G>untry, except for those distinct instances where Congress has so allowed the states to exert their jurisdiction for specific purposes. With little or no fear of state interruption or intervention in business dealings with tribes, many companies and corporations are oomfertable working directly with the tribes, on their own leveb, to arrive at burincss and industry which, in the end, helps not only the state in which a tribe is kxated, but all America. 404 Sotwd and growing tribal economin are braefidal to the United States in numerous ways. Lessening the tribes' dependence upon federal funding saves the U.S. government budget. Putting people to work removes them from the welfare rolls and lessens the demand on already strained tribal, state and federal programs. Those same people, as they become employed, are added to the tax rolls of their states, increasing revenue for their home state. The impact of flourishing and even developing tribal economies is felt throu^Kmt the area in whidi each tribe is located. It is a ripple effect which reverberates not only throughout Indian G)untTy, but beyond the borders and jurisdiction of each tribal government. In the Chickasaw Nation, had not our tribal government had at least its current ability to exercise its sovereign powers and authorities over the lands which are clearly within its jurisdiction, we would not be able to tell you right now that our core tribal government is 100% self-stistaining. We would be unable to provide the level of services which we provide to all of the Indian residents of the Chickasaw Nation. Our reliance and dependence upon the federal government would be total and, as a result of the diminishing amounts of federal funds upon which we can count, the services provided to Indians would be less in number, and fewer of the thousands who need those services and programs would simply be ignored and their families would remain unserved and in increasing need of assistance. On September 17 of this year, just one week ago. Professor Joseph P. Kalt, of the John F. Kennedy School of Government at Harvard University, provided testimony before this Committee. What Professor Kalt said about ngress and the dozens of federal agencies which work with tribes, tmless the tribes themselves were practicing and using the attributes of sovereignty, true economic development was not possible. Without that economic development which derives from the practice of sovereign powers and authorities, the tribes will not lessen their dependence upon the federal government. Subjecting tribes to state authorities erodes those tribat sovereign powen and authorities and goes against the sclf^ovemance and self-determination initiatives created by Congress for the tribes. We were very pleased to learn that the author of Section 529 of the Interior Appropriations bill had agreed to striking its provisions when it came before the full Senate Appropriations Committee. However, we take this opporttmity to encourage the members of this Committee to practice caution and prudence in other matters addressing tribal sovereignty which are sure to arise in the months ahead. President Lyndon Johnson, in 1968. said: "We must affirm the rights of the first Americans to remain Indians while exercising their rights as Americans. We must affirm their rights to freedom of choice and self-determination.* Congress has stood firm in its resoluteness to allow tribes to releam the principles which allow them to govern themselves. Now that we are making significant progress to that end, we find that impediments are being placed in our way. Those impediments in the form of attempts to restrict and even remove attributes of sovereignty will prevent us from accomplishing the greatness to which we aspire as American Indian nations, tribes and as individuals. 406 In 1970, President Richard Niaon set the goal of national Indian policy: '...to strengthen the Indian sense of autonomy without threatening his sense of community.' Working with Congress since that time, we believe that a great deal of success in strengthening tribal autonomy has been achieved. While it has been achieved only through hard work and close cooperation with the federal government, we believe that the tribes themselves should be and are capable of establishing fM'oper and just relations with the various state governments. Given that there are no treaty obligations between tribes and states, diplomacy, tact and sincere interest in meeting the needs of the two governments' constituencies must govern the careful and cautious building of such relationships. With the continued help and support of Congress to that end, we know that continued successes will be inevitable. We ask for and we seek the continued support of Congress to make it possible for the tribes to continue their efforts to become and remain potent economic allies to the United States. All we ask is that, in the words of the late Supreme Court Justice Hugo Black, 'Great nations, like great men, should keep their word.' Mr. Chairman, again I express my appreciation for being allowed this time to provide comments. We look forward to continuing our work together and to building a stronger and more compassionate America. 11 407 Amendment to the Testimony of Bill Anoatubby, Governor of the Chickasaw Nation Senate Committee on InHian Affairs September 24, 1996 Mr. Chairman, on behalf of the people of the Chickasaw Nation, I extend our appreciation for being given the opporttmity to provide comments before the distin- guished members of this Committee. This is an amendment and attachment to our prior submission, and we hope that this Committee will accept this amendment in light of recent developments. There is an old saying which states that one cannot sue the government without the government's consent. That is the simplest way of putting what is a complex issue, sovereign immunity. Tribes have sovereign immtmity finm suit as a logical progression of their development, recognition and existence as governmental entities. Because almost every level of government in the United States enjoys sovereign immunity from suit, it is an attribute of sovereignty which has been consistently applied by the courts. With notable exceptions in the instances where states have modified their own immunity from suit and that of their political subdivisions for what has defined to be reasonable claims, sovereign immunity has long been practiced by the tribal governments as well as by the state and federal governments. Federal, state and most local governments arc free from liability for torts committed 408 unless they have consented to suit for specific instances. Such freedom to press suit is granted in legislation enacted by Gangress in the Federal Tort Claims Act. That federal statute established the conditions and parameters for suits and claims against the United States government 'in the same manner and to the same extent as a private individual tmder like circtimstances.' The provisions of the Federal Tort Claims Act are, as we understand, routinely also applied to tribal governments. However, local units of government— excepting tribal governments— can be sued directly under the provisions of federal statutes , * according to a ruling by the U.S. Supreme Court. The hi^ court found that such suits may be pressed for relief where 'the action which is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decisions officially adopted and promulgated by that body's officers.' Tribes are little different from the federal government in the application of sovereign immimity by the courts, based both upon federal statutes and the judicial system's application of and interpretation of those statutes. In keeping with the powers and authorities of the various state governments, however, it shouldhe allowable for the individual tribal governments to adopt their own legislation, just as have states, to waive their governmental immunity to established or set degrees. Waiver of that immunity might be accomplished for specified purposes through a tribal claims court or it may be by a simple action filed in the existing tribal judicial system. The actual accomplishment should be a matter of determination for each tribal government through its internal governmental and legislative processes. •42 USCA §1983 409 Through the adoption of such /n'A«/ statutes, the guarantee of due process would be virtually identical to the federal government's. In that instance, the tribes could take the initiative in providing for the ability of iOf^one to have their claims addressed in the forum provided for that purpose by the individual tribal governments. As sovereigns, the tribes should be entitled to the same or similar practices as states in such matters. Again, thank you for allowing us to provide this amendment to our earlier testimony. 410 THE NAVAJO NATION P.O. BOX 9000 • WINDOW ROCK. ARIZONA 865 15 • (520)87 1-6000 ALBERT A. HALE THOMAS 6. ATCITTY PRESIDENT VICE PRESIDENT TESTIMONY OF HERB YAZZIE, ATTORNEY GENERAL OF THE NAVAJO NATION BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS CONCERNING CIVIL JURISDICTION WITHIN INDIAN COUNTRY SEPTEMBER 24, 1996 Mr. Chairman, members of the Committee, I would like to thank you for giving the Navajo Nation this opportunity to present testimony today on Civil Jurisdiction in Indian Country. My name is Herb Yazzie and I am the Attorney General of the Navajo Nation. I speak today on behalf of the 250,000 members of the Navajo Nation and on behalf of the several thousand non-member citizens of the Navajo Nation. As I am sure you are aware, the Navajo Nation is the largest federally recognized Indian nation in the United States,! The Navajo Nation provides essential governmental services within a territory of more than 25,000 square miles located within the states of Arizona, New Mexico and Utah. The territory of the Navajo Nation is larger than the states of Connecticut, Massachusetts, Delaware, Maryland and Rhode Island combined. Mr. Chairman, these hearings have been called in part as a result of the proposed introduction of an amendment designated as section 329 of H.R. 3662. This amendment would have subjected Indian nations and Indian government officials to state and federal court jurisdiction for claims relating to actions or proposed actions of such governments or "Indian Entities Recognized and Eligible to Receive Services From The United States Bureau of Indian Affairs, "60 Fed. Reg 9250, 9252 (February 16, 1995). The relationship between the Navajo Nation and the United States is established and governed by two treaties, the Treaty of June 1, 1868, United States-Navajo Nation, 15 Stat. 667, and the Treaty of September 9, 1849, United States-Navajo Nation, 9 Stat. 974. 411 government officials impacting, or threatening to impact, the ownership or use of private property. The Navajo Nation frankly is appalled by the language of section 329. That language would grossly impinge on the sovereign status of the Navajo Nation and would violate the inherent rights of self-government of the Navajo people, rights which are guaranteed to the Navajo people in the Ninth and Tenth Amendments to the United States Constitution and in the 1849 and 1868 treaties between the Navajo Nation and the United States. Section 329 would make a mockery of the Navajo Nation's sophisticated, professional court system, by subjecting the Navajo Nation to suits in traditionally hostile state forums, by Indian nation members and non-members. Proven remedies currently exist in Navajo law and Navajo legal institutions to protect all persons, whether Navajo or not, from the risk of harm intended to be addressed by section 329. The legitimacy of the Navajo Nation government is "beyond question."2 Nevertheless, the obvious underlying premise of section 329 is that all Indian natiorw are incapable of providing justice to non-members within the framework of their goverrunents. As I will demonstrate, this view is misinformed and is without any factual foundation. The Navajo Nation has an established civil and criminal court system which operates effectively at the trial and appellate levels as a separate branch of the Navajo Nation government. 3 The courts of the Navajo Nation have been in continuous operation since the early years of the Twentieth Centiuy, and a system of just dispute resolution has existed under The Navajo Government has been calle^'probably the most elalMrate' among tribes. HJl. Rep. No. 78, 91st Cong., 1st Sess. 8 (1969). The legitimacy of the Navajo Trit>al Council, the freely elected govenung body of the Navajos, is t)eyond question. Kerr McGee Coip. v. Navajo Trih> nt IndJAn^ 471 VS. 195. 201 (1985). See also WiHi«m« v t#. 358 US. 217 (1959). 7 Navajo Nation Code (N.N.C.) § 201 sLsat- The Navajo Nation courts exercise jurisdiction within the Navajo Nation pursuant to 7 N.N.C. § 254 (territorial jurisdiction) and 7 N.N.C. § 253 (adjudicatory jurisdiction). 412 the Navajo common law for far longer.'' The Navajo Nation currently has seven general jurisdiction District Courts throughout the Navajo Nation,5 plus a system of specialized limited jurisdiction courts such as the Family Courts and the world-renowned Peacemaker Court. The Navajo Nation Supreme Court, located in Window Rock, Navajo Nation (Arizona), exercises appellate jurisdiction over all matters arising within the Navajo Nation courts and administrative forums. 6 The concept of justice runs deep within the culture of the Navajo people and informs all government activity. In the Navajo way, individual rights and responsibilities, as well as the rights and responsibilities of the larger community, are considered in every dispute resolution.^ It is deeply offensive to the Navajo people to suggest that its government engages in conduct that deliberately and consistently violates the rights of persons within its jurisdiction. Nearly thirty years ago, in 1967, the Navajo Nation Council enacted the Navajo Nation Bill of RightsS in order to insure that the individual liberties of all persons are secured within the Navajo Nation. The Navajo Nation guaranteed fundamental individual liberties against violation by the Navajo Nation government even before the United States Congress enacted See, e.g .. Yazzie, "Life Comes from It: Navajo Justice Concepts," 24 New Mexico Law Review 175 (1994); Zion, "Aboriginal Rights: Western United States of America," 2 Law & Anthropology 195 (1987) (World survey by the International Academy of Comparative Law). 7 N.N.C. § 253. The District courts are located at Window Rock, Kayenta, Chinle and Tuba City, Navajo Nation (Arizona) and at Crownpoint, Shiprock and Ramah, Navajo Nation (New Mexico). 7 N.N.C. §§ 301 and 302. Tso, "The Process of Decision Making in Tribal Courts," 31 Arizona Law Review 225 (1989); Lowery, "Developing a Tribal Common Law Jurisprudence: The Navajo Experience 1969-1992," 18 American Indian Law Review 379 (1994) (survey of Navajo Nation decisions); "Tribal Justice Systems," in D. Getches, C. Wilkinson & R. Williams, Federal Indian Law 493-550 (3d Ed. 1993) (survey of Indian nation courts with particular emphasis on the Navajo Nation judicial system). Navajo Tribal Council Resolution No. CO-63-67, October 9, 1967, 3.5 amended. 1 N.N.C. §§ 1-9. 413 the Indian Civil Rights Act of 1968 (ICRA) the following year.9 Nor was this the first time that the Navajo Nation Council had enacted such legislation. Due process and just compensation for interference with private property rights have been a part of Navajo statutory law since 1960 and a part of the Navajo common law for much longer.io The Navajo Nation Bill of Rights is more expansive and protective of individual rights than either the ICRA or the Bill of Rights within the United States Constitution. The Navajo Nation Bill of Rights extends to freedom of speech, freedom of religious expression, freedom of the press," the right to assemble peaceably and petition the govenunent for redress, 12 the right to be free from unreasonable searches and seizures,i3 the right to keep and bear arms,!'* the right to counsel and the right to trial by jury,i5 the right to be free from double jeopardy and the right to be free from self incrimination,'* the right to be protected from cruel and unusual punishment and excessive bail and fines,i7 and the right to due process of law and to equal rights and protection under the laws to all persor«, irrespective of gender, is Most importantly. 9 Act of Apnl 11, 1968, PL. 90-284, as amended. 25 U.S.C. § 1301 gt Seq- 10 Navajo Tribal Council Resolution No. CJA-18-60, January 22, 1960, as amended. 16 N.N.C. §§ 1401-1403. See also Dennison v. Tucson Gas and Klectric Co.. 1 Navajo Reporter 95 (Nav. Ct. App. 1974). 11 1 N.N.C. §4. 12 1 N.N.C. §4. 13 1 N.N.C. §5. 14 1 N.N.C. §6. 15 1 N.N.C § 7. 16 1 N.N.C. §8. 17 1N.N.C. §9. 18 1 N.N.C §3. •^e^.Rili) Q7-14 414 in the context of section 329, the Navajo Nation Bill of Rights protects private property . The Navajo Nation Bill of Rights expressly mandates that "private property [shall not] be taken nor its lawful private use be impaired for public or governmental purposes or use, without just compensation. "'9 These enumerated rights, as well as other unenumerated rights retained by the people, apply to all persons, irrespective of race, Indian nation affiliation, gender or religion. As an example, non-member citizens of the Navajo Nation sit on civil juries in Navajo Nation courts along with Navajo Nation members. 20 Thus, in the Navajo Nation, all persons have every one of the rights enumerated in the United States Constitution, and more. Section 329 apparently presumes that Indian governmental institutions, particularly Indian courts, cannot effectively protect individual private property rights. Thus, section 329 waives the sovereign immunity of all Indian nations accepting federal funds and authorizes suit in state and federal forums agaii\st Indian nations and their officials.21 19 1 N.N.C. § 8. 20 George v. Navajo Tribe. 2 Navajo Reporter 1 (1979). 21 The issues of Indian nation sovereign immunity and the legitimacy of Indian nation courts have been debated for more than sixty years. The Indian Reorganization Act of June 18, 1934, ch. 576, 48 Stat. 984, aj amended. 25 U.S.C. § 461 et seq. (IRA), which followed the 1928 Merriam Report, Institute for Government Research, Studies m Administration, The Problem of Indian Administration (1928), specifically addressed sovereign immunity and Indian nation courts. Section 16 of the IRA, 25 U.S.C. § 466, recognizes the inherent power of Indian nations to establish justice systems. However, under the IRA, only Indian nation business corporations may be sued, and liability is limited to assets pledged. The ICRA, adopted in 1968, is a congressional decision that Indian nation governments are competent to assure civil rights for all citizens, Indian and non-Indian alike. In the 1970's the American Indian Policy Review Commission, a congressional body which did the most extensive survey of Indian policy in this century, studied sovereign immuiuty and Indian judicial systems. Its Final Report concluded that sovereign immunity has a 415 However, the Navajo experience illustrates that this mistaken presumption is born of ignorance. For example, in a seminal case the Navajo Nation Supreme Court enforced the Navajo Takings Clause over 22 years ago. 22 The Court held that, pursuant to the Navajo Nation Bill of Rights, the right of the government to exercise the power of eminent domain may be authorized only by the legislature, that there can be no taking of private property for public use against the will of the owner without direct authority from the legislature and that a condemnation may occur only in the manner prescribed by law. The Court further held that just compensation is an essential element of a lawful condemnation and that sovereig n immunity is no bar to a claim for just compensation . Thus, in the Navajo Nation, there is no need for section 329.23 On the contrary, section 329 would only destroy an effective Navajo Nation judicial system already attuned to the individual rights of all persons, Navajo and non- 21 (Continued....) useful function and Indian nation courts are competent justice bodies - if only Congress would appropriate significant additional funds to operate them. 1 American tndicm Policy Review Commission, Final Report 161-168, 212-214 (May 17, 1977). Yet again, in 1990 the United States Civil Rights Commission revisited these issues. The Commission rejected federal review to guarantee civil rights and instead recommended that Congress address the issue of the ability of Indian nation courts to do their job by providing adequate funding to operate them. Congress responded by enacting the Indian Tribal Justice Act of December 3, 1993, P.L. 103-176, 107 Stat. 2004, 25 U.S.C § 3601 et seq. . 22 Denni.son v. Tucson Gas and Electric Co.. 1 Navajo Reporter 95 (Nav. Ct. App. 1974). 23 Of course, the Navajo Nation, like all other governments, occasionally acts in violation of the legal rights of its member and non-member citizens. The point is that the Navajo Nation has developed an effective judicial system to help prevent such violatioru from occurring and to remedy such violations when they do occur. Cf.. Hodel v. Irving . 481 U.S. 704 (1987) (section 207 of the Indian Land Consolidation Act of 1983, P.L. 97-459, 96 Stat. 2519, 25 U.S.C. § 2206, is an unconstitutional taking of individual Indian private property interests.) 416 Navajo alike. 2* We are making significant strides in making the Navajo Nation more hospitable to economic development, particularly to investment by outside business interests. For example, the Navajo Nation recently entered into a landmark Memorandum of Understanding with the Federal National Mortgage Association (Fannie Mae) clearing the way for conventional home mortgage financing by private lending institutions of new home construction within the Navajo Nation.25 Farmie Mae is the largest purchaser of private home mortgages on the secondary market in the United States. Under this agreement, Fannie Mae-approved lenders will provide private financing within the Navajo Nation, utilizing forms of Note and Mortgage specifically developed for use within the Navajo Nation.26 The Memorandum of Understanding and the forms of Note and Mortgage expressly provide for the application of 24 The Navajo Nation does not suggest, nor does it believe, that section 329 should be imposed upon any Indian nation government that does not have a similar system in place. Part of the value of a federal system as exists in the United States is that the state governments are able to serve as "laboratories for democracy," where each state is able to experiment in a continuing attempt to provide better government. Indian nation goverrunents share the same conceptual basis and serve the same purpose m the Uruted States federal system. For over 200 years the United States generally has upheld the principle that each Indian nation is a domestic dependant nation, free to manage its own internal affairs without state intervention. The right of self-government, which Indian people share in common with all other people within the United States, and which is a cot«titutionally protected right of all federal citizens, dictates that it is the prerogative of each Indian nation to determme what laws will govern its people, and what rights its members and non-members shall have while within the jurisdiction of that particular Indian nation. United States v. Wheeler . 435 U.S. 313 (1978); Worcester v. Georgia. 31 U.S. (6 PeL) 515 (1832). See also, R. Barsh and J. Henderson, The Road: Indian Tribes and Polihcal Liberty (1980). 25 "Memorandum of Understandmg Between the Federal National Mortgage Assodabon and The Navajo Nation," executed June 19, 19%. 26 Fannie Mae/Navajo Nation-Single Family-Fixed Rate Note, Form 3270 4/96; Fannie Mae/Navajo Nation-Single Family-Mortgage, Form 3070 4/96. These forms also have t>een approved by the United States Bureau of Indian Affairs. 417 Navajo Nation law and for the exclusive jurisdiction of the courts of the Navajo Nation to enforce the rights created. The Memorandum of Understanding not only demonstrates the Navajo Nation's commitment of support for private capital investment within the Navajo Nation, it also demonstrates unmistakably the commercial reasonableness of Navajo Nation law and Navajo Nation courts and the resulting confidence that the financial community has in relying upon Navajo Nation laws and governmental institutions.27 Indian nation courts have been thoroughly studied and have been found to provide effective protection of individual civil rights. 28 One of the most important commentators who has concluded that Indian nation courts are effective guardians of justice is the Honorable Sandra Day O'Connor of the United States Supreme Court. In 1996, in a speech before the annual Sovereignty Symposium, sponsored by the Oklahoma Supreme Court and the Indian courts of Oklahoma, Justice O'Connor praised the third judicial sovereign for effectively guaranteeing the rights of all and gave special mention of Indian lessons for restorative 27 See also. Frve, "Lender Recourse in Indian Country: A Navajo Nation Case Study", 21 New Mexico Law Review 275, 325-326 (1991) ("Favoritism based either on tribal politics or on the race of the litigants has not been experienced. ... The institutional climate for lending in Navajo Indian Country is more than acceptable....") 28 A five-year survey of Indian nation court civil rights cases, which reviewed reported Indian nation court decisions in the Indian Law Reporter, including several Navajo Nation decisions, concluded that The cases discussed in this memorandum make clear that tribal courts are protecting the rights of tnbal members and upholding important principles of judicial review. The courts are attempting to meld tribal custom and norms with applicable legal doctrines. The decisions show impartiality and careful thought. Although the courts are fledgling and require greater resources to develop in their sophistication, it is clear that people in Indian country can safely turn to the courts when they feel their rights are threatened. Marx, "Civil Rights in Indian Country: Tribal Court Decisions 1988-92" 13 (April 30, 1993). 418 justice. 29 Justice O'Connor singled out Navajo peacemaking as an effective alternative to litigation.30 Proposed legislation like section 329 is completely unnecessary for another reason: there already are adequate remedies in federal court for alleged interference with private property rights by Indian nation governments. Under controlling United States Supreme Court precedent,^! actions of an Indian nation government which are alleged to be in excess of its authority as defined by applicable federal statutory and common law, are redressable in federal courts. Allegations of such actions are "federal questions" over which the federal district courts have jurisdiction pursuant to 28 U.S.C. § 1331, and Indian nation sovereign immunity is not a defense. Thus, where an Indian nation government acts in excess of its authority, particularly where alleged interference with the private property rights or other individual rights of a non- member are concerned, there already is a remedy in federal court.32 The Navajo Nation believes that section 329 attempts to accomplish with an axe what already has been accomplished with a scalpel. There is simply no need to inflict such gross injury upon Indian governments and the rights of self-government of Indian citizens, when federal law, and in many cases Indian nation laws, already afford non-members adequate 29 Lessons from the Thir d Sovereign: Indian Tribal Courts, delivered June 4, 1996. See also. National Indian Justice Center, "Tribal Court Report" (September 1996) and "O'Connor Says Tribal Courts Offer Lessons," 12 American Indian Report 10 July 1996). 30 The President of the American Bar Association also recently praised traditional Navajo justice ways and recommended that American lawyers behave like Navajos. Ramo, "Lawyers as Peacemakers: Our Navajo Peers Could Teach Us a Thing or Two about Conflict Resolution," ABA loumal 6 (December 199S). 31 National Farmers Union Ins. Co. v. Crow Tribe . 471 U.S. 845 (1985); Inwa Mutijal Ins. Co. v. LaPlante. 480 U.S. 9 (1987). 32 See also . Arizona Public Service Co. v. Aspaas . 77 F. 3d 1128 (9th Cir. 1995). In this case, a private utility company successfully brought suit against the Navajo Nation alleging that the Navajo Nation's employment laws violated contractual rights of the company. The Arizona District Court and the Ninth Circuit Court of Appeals upheld the company's claim. 419 protection and effective remedies from any perceived excess of Indian nation governmental authority. For example, apparently laboring under the falsehood that Indian nation sovereign immunity will always preclude non-members from receiving effective remedies in either federal or Indian nation forums, section 329 would waive the sovereign immunity of all Indian nations accepting federal funds, and would authorize suit in state and federal courts against Indian nations and their governmental officials. Yet Navajo Nation law33 already specifically authorizes suit against the Navajo Nation in the Navajo Nation's courts when any person alleges a violation of the Navajo Nation Bill of Rights or of the express provisions of the laws of the United States. This authority extends to suits for damages resulting from alleged unlawful takings of property, and for necessary costs and fees associated with bringing such a claim-^* The Navajo Nation urges this Committee to consider the other ramifications of section 329. The language of the section would expose virtually all Indian nation property interests to suit in foreign jurisdictions, including issues of title, issues related to usufructuary rights, and disputes bet\\-een Indian nation members and their own Indian nation governments over private property rights. The section does not limit itself to non-members of Indian nations, but reaches out to encompass any person with a private property interest which might be impacted by the actions of an Indian nation government. Certainly this would have a chilling effect on the ability of all Indian nation governments to provide effective government within Indian nation territories, particularly the ability of Indian nation governments to effectively regulate for the health and safety of both Indian nation member and non-member citizens alike. To analogize, if Congress were to "protect" the private property rights of state citizens in the same manner. Congress would have to authorize the citizens of one state to sue their own state -cveniment in the courts of a neighboring state whenever the state of residence took any action which might affect the property rights of its own citizens. Certainly no state would tolerate 33 Navajo Sovereign Immunity Act, 1 N.N.C. § 551 et seq. 34 1 N.N.C. § 554. 10 420 such legislation: the United States Constitution would never permit it and Congress would never even consider it. That Congress might even consider imposing such legislation upon Indian nations reflects a lack of appreciation of the conceptual basis of Indian peoples' right to self-government: all political power within the United States inherently resides with the people . Governments only have such powers as the people delegate to them. The Tenth Amendment to the United States Constitution teaches us that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people . 35 Indian people did not participate directly in the adoption of the United States Constitution. 36 Instead, the relationship of Indian people to the United States commonly is established by treaties or similar bilateral agreements between their respective Indian nation governments and the United States. Indian people generally have never delegated any of their inherent political rights to the states. Rather, Indian people have expressed their constitutionally protected retained rights through delegatior\s to their respective Indian nation governments. Section 329 reveals the real intent of the drafters, which is to destroy the judicial and 35 Emphasis supplied. See also . U.S. Const., Art. IX ("The enumeration m the Constitution, of certain rights, shall not be construed to deny or disparage others retain ed by the people.") (Emphasis supplied.) 36 Indian people became citizens of the United States after the adoption of the United States Constitution by various means, including treaties with particular Indian nations, statutes relating to particular Indian nations or Indian individuals and other general statutes naturalizing particular classes of Indian individuals, such as allottees. The balance of non-federal citizen Indiai\s became citizens of the United States by the Indian Citizenship Act of June 2, 1924, ch. 223, 43 Stat. 253. Current provisions are found at 8 U.S.C. § 1401 (b), which provides that: The foUowing shall be nationals and citizens of the United States at birth: .... a person bom in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the grantin g of citizenship under this subsecHon shall not in anv manner impair or otherwise affect the right of such person to tribal or other property! . 1 Emphasis supplied. 11 421 political integrity of all Indian nations, in frank disregard of the covenant of trust and good faith which binds the United States and those dependent Indian nations. Section 329 simply is a bad idea and an unnecessary and unwarranted intrusion into the sovereign affairs of the Indian nations. While the Navajo Nation does not claim to know the particulars of every one of the hundreds of Indian nation governments within the United States, the Navajo Nation can sav with certainty that it is not the only Indian nation to afford to all persons within its jurisdiction such basic protections as 1 have described. Many of our sister nations provide equal assurances, whether in the courts of the Confederated Salish and Kootenai Tribes, the courts of the Colorado River Indian Tribes or the courts of the Tohono O'odham Nation. Much of the conflict between Indian nations and non-Indian property owners is a direct result of the checkerboard land ownership patterns which exist within many Indian nations. These land ownership patterns are a direct result of actions by the United States during the Allotment Era, where the United States carved up and distributed in severalty Indian nation lands to Indian families and sold the "surplus" lands to non-Indian settlers and speculators. 37 The United States imposed this policy in a deliberate attempt to destroy traditional Indian governments and institutions and to force Indian people to abandon their culture and to assimilate into mainstream America. After two generations the United States Congress found this policy to be a complete failure and abandoned it in 1934 in favor of "reorganizing" and promoting Indian self-government. 38 However, the damage already had been done: non- Indian people came to own land within the boundaries of many Indian nations and cultural and legal conflicts have arisen as Indian nation governments increasingly seek to fulfill their responsibilities as governments. Nevertheless, it would be both unfair and unwise to penalize Indian nations and Indian people further for the consequences of this failed federal policy. In 37 The Allotment Era began in 1887, when Congress enacted the General Allotment Act of February 7, 1887, ch. 119, 24 Slat. 388, as amended . 25 U.S.C. § 331 et seq. . and lasted until 1934. See generally. Felix S. Cohen, Handbook of Federal Indian Law 130-143 (1982 Ed.). 38 Institute for Government Research, The Problem of Indian Administration (1928); Indian Reorganizahon Act of June 18, 1934, ch. 576, 48 Stat. 984, as amended. 25 U.S.C. § 461 et seq. . See generally. Felix S. Cohen, Handbook of Federal Indian Uw 144-151 (1982 Ed.). 12 422 addition, the Navajo Nation would consider it to be an unlawful infringement upon Indian peoples' constitutionally protected right of self-government to impose race-based restrictions upon the ability of Indian people to govern within Indian nation boundaries. American Indian people taught the European immigrants to North America about democracy over 200 years ago, and those teachings have found their way into the United States Constitution and the constitutions of the states.39 To suggest now that Indian nations know or practice less justice, less protection of individual liberty, or less democracy than do the states is based on ignorance, probably is rooted in racism, and therefore is immoral and contrary to the American ideals of government. Accordingly, the Navajo Nation urges this Committee to reject the concept of section 329. Mr. Chairman, I thank you for this opportimity to present these comments regarding Civil Jurisdiction in Indian Country. 3' See, e.g .. J. Weatherford, Indian Givers: How the Indians of the Americas Transformed the World 133-150 (1988). 13 423 T.7 prec. § 201 COURTS and procedure Ch. 3 Chapter 3. Judicial Branch Subchapteri. Generally SECTION 201. Establishment; composition 202. Seals of Courts 203. Copies of laws 204. Law applicable 205. Record of proceedings 206. Cooperation of federal employees 207. Action against provider of an alcoholic beverage Subchapters. District Courts 251. Appointment 252. Family Courts 253. jurisdiction — Generally 254. Territorial jurisdiction 255. Writs or orders 256. Temporary or preliminary injunctive relief 257. Sovereign immunity <>f the Navajo Nation Subchapter 4. Special Division of Window Rock District Court 291. Establishment 292. Composition Subchapter 5. Supreme Court 301. Composition 302. jurisdiction — GeneraUy 303. Writs or orders Subchapter 7. Judges Article 1. Generally 351. Salaries 352. Removal from office 353. Retirement 354. Qualifications for judicial appointment 70 424 Ch. 3 COURTS AND PROCEDURE T.7 § 203 355. Appointment; term of office A rticle 2. Ch ief Justice 371. Administrative duties 372. Acting Chief Justice Subchapter 9. Clerks and Bailiffs 401. Clerks and bailiffs — Appointment 402. Duties and authority 403. Salary and grade 404. Application of Judicial Branch personnel policies and procedures Subchapter 1. Generally § 201. Establishment; composition A. There is established the Judicial Branch within the Navajo Nation government. B. The Judicial Branch of the Navajo Nation government shall consist of the District Courts, the Supreme Court of ihe Navajo Nation, and such other Courts as maybe created by the Navajo Nation Council. HISTORY CD -94 -85, December 4. 1-985. CJA-5-59, January 9, 1959. CO-69-58, Oaober 16, 1958. § 202. Seals of Courts The Courts of the Navajo Nation shall each adopt a seal which shall be used to authenticate their respective judgments and other papers. The form of the seals and regulations for their use shall be specified by rules of court adopted and placed in effect as provided in 7 NNC §601. HISTORY CD-94-85, December 4, 1985. CJA-5-59, January 9. 1959. CO-69-58. October 16, 1958. § 203. Copies of laws Each Court of the Navajo Nation shall be provided with copies of applicable federal, Navajo Nation and state laws and regulations. HISTORY CD-94-85, December 4, 1985. CJA- 1-59, January 6, 1959. 425 T.7 § 204 . COURTS AND PROCEDURE Ch. 3 § 204. Law applicable A. In all cases the Courts of the Navajo Nation shall apply any laws of the United States that may be applicable and any laws or customs ot the Navajo Nation not prohibited by applicable federal laws. B. Where any doubt arises as to the customs and usages of the Navajo Nation the court may request the advice of counselors familiar with these customs and usages. C. Any matters not covered by the traditional customs and usages or laws or regulations of the Navajo Nation or by applicable federal laws and regulations, may be decided by the Courts of the Navajo Nation according to the laws of the state in which the matter in dispute may lie. HISTORY CD-94-85, December 4, 1985. CJA-1 -59, January 6, 1959. ANNOTATIONS 1. Navajo law and custom. This section clearly expresses the intent that Navajo law apply wherever possible. Johnson v. Dixon, 4 Nav. R. 108, (Nav. Ct. App 1983). The application of custom depends on a good many circumstances and all the facts of the case. Lente v. Notah, 3 Nav. R, 72. (Nav. Ct. App. 1982). When applying custom, the courts should see whether a particular custom or tradition is generally accepted and applicable to the parties before the court. Id. 2. Common law. Navajo Common Law is a body of law which is fully binding on the Navajo Court of Appeals and consists of the customs, traditions and usages of the Navajo People. Tome v. Savajo Nation, 4 Nav. R. 159, (Nav. Ct. App. 1983). 3. State law. Courts should carefully make certain that the matter is "not cov- ered" by Navajo law, under subsection (C) of this section, before considering or proceeding to the use of state law. Johnson v. [)ixon, 4 Nav. R. 108, (Nav. Ct. App. 1983). Under this section, the traditions and customs of the Navajo People are to be applied where the Navajo Tribal Code is silent and federal law does not prohibit the application of tradition and custom; it is only, in a situation where there is no tradition or custom that the Tribal Courts are authorized to apply stale law. Johnson V. Johnson, 3 Nav. R. 5, (Nav. Ct. App. 1980). 4. Divorce — Division of property. Since nothing is specifically stated in the Navajo Tribal Code as to how either separate or community property is to be divided upon divorce, this section is controlling in the matter. Johnson v. Johnson, 3 Nav. R. 5, (Nav. Ct. App. 1980). Since, under Navajo tradition, a land use permit given from a father to a son cannot be characterized as his separate property, nor as community property, the land use permits belonging to the entire family and to be used for the benefit of the entire family district court properly applied Navajo tradition and custom in awarding land use permits, grazing permit and all other property connected with a farm to wife in divorce proceedings and the award and distribution of the property rights between the parties was a fair and just settlement pursuant to 9 NNC §404 lii. n 426 Ch. 3 COURTS AND PROCEDURE T.7 § 207 5. Alimony. The courts of the Navajo Nation are empowered to award alimony in dissolution of marriage cases. Johnson v. Johnson, 3 Nav. R. 5, (Nav. Ct. App. 1980). Nothing in Navajo tradition or custom would prohibit the court from applying New Mexico law pursuant to this section and therefore, an award of alimony in a marriage dissolution action in the tribal courts is both proper and authorized. IcL 6. Child custody. Since Navajo custom and tradition is but one of many factors to be considered in child custody cases , a trial judge may be justified in disregarding old ways, and the court of appeal will not overturn such a decision unless it was clearly an abuse of discretion. Lente v. Notah, 3 Nav. R. 72, (Nav. Ct. App. 1982). § 205. Record of proceedings Each Court of the Navajo Nation shall keep a record of all proceed- ings of the Court, which record shall reflect the title of the case, the names of the parties, the substance of the complaint, the names and addresses of all witnesses, the date of the heating or trial, by whom conducted, the findings of the Court or jury, and the judgment, together with any other facts or circumstances deemed of importance to the case. A record of all proceedings shall be kept at the appropriate court and shall be available for public inspection unless prohibited by order of the Court or by applicable laws. HISTORY CD-94-85. December 4, 1985. CJA-1-59, Januarys, 1959. § 206. Cooperation of federal employees A. No employee of the federal government shall obstruct, interfere with or control the functions of any Court of the Navajo Nation or influence such functions in any manner except as permitted by federal laws or regulations or in response to a request for advice or information from the Court. B. Employees of the federal government, particularly those who are engaged in social service, health and educational work, shall assist the Court, upon its request, in the preparation and presentation of the facts in the case and in the proper disposition of the case. HISTORY CD-94-85. December 4, 1985. CJA- 1-59, January 6. 1959. § 207. Action against provider of an alcoholic beverage A. Any person who has been injured or damaged by an intoxicated person, or as a consequence of the intoxication of any person, may maintain an action in the Courts of the Navajo Nation against any person, individual, partnership, association or corporation selling or 73 427 T.7 § 207 COURTS AND PROCEDURE Ch. 3 furnishing liquor or intoxicating beverages for consumption within the Navajo Indian Country if such liquor or intoxicating beverage was a cause of the intoxication. B. Damages under this section shall include all damages to person orpropcrty, including, but not limited to, damages for wrongful death, personal injury and loss of income, and shall include loss of support, companionship, service and affection resulting from the death of a spouse, a minor child or the parent or guardian of a minor child. C. In addition to any remedy available through subsection (A) above, the prosecutor of the Navajo Nation is authorized to maintain an action for the benefit of an injured party under this section at the request of or after notice to such injured party. D. Nothing in this section shall be construed to impose civil liability on any person as a consequence of: 1. The bona fide sale or furnishing of liquor or into.xicating beverages for scientific, sacramental, medicinal or mechanical pur- poses; or 2. The transportation of liquor or intoxicating beverages in un- opened containers and, where applicable, containers with unbroken federal tax stamps, through Navajo Indian Country on any highway, roadway or railway right-of-way in conformance with 18 U.S.C. §1154. HISTORY CD-94-85, December 4, 1985 CIA-10-78, January 24, 1978. Subchapter 3. District Courts § 251. Appointment The District Courts of the Navajo Nation shall consist of such judges as shall be appointed by the President of the Navajo Nation, with confirmation by the Navajo Nation Council. HISTORY CD-94-85, December 4, 1985. CD-88-78, §§2, 3, December 20, 1978. CJA-5-59, January 9, 1959. CO-69-58, October 16.1958. § 252. Family Courts The Family Courts of the Navajo Nation shall have original exclusive jurisdiction of all cases involving domestic relations, probate, adoption, paternity, custody, child support, guardianship, mental health commit- 74 428 Ch. 3 COURTS AND PROCEDURE T.7 § 253 merits, mental and/or physical incompetence, name changes, and all matters arising under the Navajo Nation Children's Code. HISTORY CAU-46-89, August 16, 1989. Note. Provisions of former §252, adopted by CIA-5-59, January- 9, 1959 and CO-69-58, October 16, 1958 relating to term of office of judges were recodified at 7 NfNC §355(B), byCD-94-85, December 4, 1985. CROSS REFERENCES 9NNC§1001 etseq. § 253. Jurisdiction — Generally The District Courts of the Navajo Nation shall have original juris- diction over: A. Crimes. All violations of laws of the Navajo Nation committed within its territorial jurisdiction. B. Civil Causes of Action. All civil actions in which the defendant is a resident of Navajo Indian Country, or has caused an action to occur within the territorial jurisdiction of the Navajo Nation, C. Miscellaneous. All other matters over which jurisdiction has been heretofore vested in the "Navajo Tribal Court of Indian Offenses", or which may hereafter be placed within the jurisdiction of the District Courts by the Navajo Nation Council. HISTORY CD-94-85, December 4, 1985. CF- 19-80, February 13. 1980. CJA-5-59, January 9, 1959. CO-69-58, October 16. 1958. Note. Pursuant to §252 ofthis title, as adopted by CAU-46-89. August 16, 1989, previous subsection pertaining to "Decedents' Estates" has been deleted. ANNOTATfONS 1. The Courts of the Navajo Nation are empowered to award alimony in dissolution of marriage cases. Johnson v. Johnson, 3 Nav. R. 5, (Nav. Ct. App. 1980). Nothing in Navajo tradition or custom would prohibit the court from applying New Mexico law pursuant to 7 NTJC §204 and therefore, an award of alimony in a marriage dissolution action in the tribal courts is both proper and authorized. Id. This section does not exclude review of Nava)o Tribal Council actions from its broad grant of power to the courts. Halotui v. MacDonald, 1 Nav. R 189, (Nav. Ct. App. 1978). 2. Paragraph (A) ofthis section enables the Court.s of the Navajo Nat ion to issue summons or warrants applicable to a criminal prosecution. Navajo Nation v. Atatty. 4 Nav. R. 130 (Nav. Ct. App. 1983). 3. Navajo Nation has the power to grant its courts personal jurisdiction over foreign corporations as a consequence of such corporations' acts in Navajo terri- tory, such as wrongful repossession alleged in instant case, according to modern 75 429 T.7 § 253 COURTS AND PROCEDURE Ch. 3 expansions of the "minimum contacts" due process standard. Thompson v. Lave- lady's Frontier ford, 1 N'av. R. 282, (Nav. Ct. App. 1978). This section's provision for lurisdiction over ail other matters over which jurisdiction has been or maybe vested impHcitly asserts Navaio Nation jurisdiction over non-Indian, non-resident businesses and individuals, and court has jurisdic- tion over a non-Indian, non-resident business which allegedly wrongfuilv repos- sesses personal property upon Navajo land. Id. 4. District Court has civil jurisdiction, under this section's provision for juris- diction over "all other matters which may hereafter be placed within the jurisdic- tion of the Trial Court," to enjoin a threatened criminal trespass prohibited by the code. Salt River Project Agricultural Improvement and Power District v. International Brotherhood of EUarical Workers Local Union No. 266, 1 Nav. R. 277, (Nav. Ct. App. 1978). 5. A non-Indian may be sued in the Navajo courts if he is found within the tribe's territorial jurisdiction; so that defendant corporations could be sued for forcible entry and detainer. Navajo Tribe v. Orlando Helicopter Airways, Inc., (Nav. Ct. App., January 12, 1972. 6. Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdic- tion which covers suits by outsiders against Indian defendants, and no Federal Act has given state courts jurisdiction over such controversies. Williams v. Lee, 358 U.S. 217, 79S.Ct. 269, 3 LEd. 2d 251 (1959). Arizona courts are not free to exercise jurisdiction over a civil suit by a non-Indian against a Navajo Indian where court of action was derived from transaction which took place on the Navajo Reservation. Id. § 254. Territorial jurisdiction The territorial jurisdiction of the Navajo Nation shall extend to Navajo Indian Country, defined as all land within the exterior bounda- ries of the Navajo Indian Reservation or of the Eastern Navajo Agency, all land v^ithin the limits of dependent Navajo Indian communities, all Navajo Indian allotments, and all other land held in trust for, owned in fee by, or leased by the United States to the Navajo Nation or any Band of Navajo Indians. HISTORY CD-94-85, December 4. 1985. CJY-57-85, July 25, 1985. CMY-28-70, iMay7, 1970. Preamble. CJY-57-85 contained the foilovkdng in the preamble: "7. It is the intent of these amendments that the reference to 'all land' is comprehensive and includes rights-of-way, fee land, and any other lands, norwith- standing the nature of title thereto, within the exterior boundaries of the Navajo Reservation, Eastern Navajo Agency, dependent Navajo communities, Navajo Indian allotments and all lands held in trust for, owned in fee by, or leased by the United States to the Navajo Nation or any Band of Navajo Indians. Nothing herein shall be construed as constituting authorization for the purchase or lease of lands by any Band of Navajo Indians; and "8. 'Dependent Navajo Indian communities' is intended to encompass all lands currently within the Eastern Navajo Agency and such other lands as may be 76 430 Ch. 3 COURTS AND PROCEDURE T.7 § 257 determined consistent with federal law to constitute dependent Navajo Indian communities." § 255 . Writs or orders The District Courts shall have the power to issue any writs or orders necessary and proper to the complete exercise of their jurisdiction. HISTORY CD-94-85, December 4. 1985. CjA-5-59, January 9, 1959. CO-69-58, October 16, 1958. ANNOTATIONS Garnishment. Enabling language of this section and former version of 9 NNC §1303 enable the District Courts of the Navajo Nation to order wage garnishment to any employer, trustee, financial agency or other person within the territorial Jurisdiction ofthe Nation for child support, f/crctiujv. Heredia,^Na\. R. 124, (Nav. Ct.App. 1983). Pursuant to 7 N'NC §705 and this section, coupled with Rule 23, Rules of Navajo Civil Procedure, garnishment is permitted. Traceyv. Heredui, 4 Nav. R. 149, (Nav. Ct. App. 1983). § 256. Temporary or preliminary injunctive relief No District Court of the Navajo Nation shall enter an order for temporary or preliminary injunctive relief in any proceeding in which there is no appearance by the defendant, unless: A. The District Court judge certifies in Nvriting as to the specific irreparable harm which would occur were the temporary relief not to be ordered; and B. The legal counsel for the plaintiff certifies by affidavit as to the efforts which have been made to locate the defendant or defendant's legal counsel to notify him or her of the hearing on preliminary or temporary injunctive relief. HISTORY CD-94-85, December 4, 1985. CF-19-80, §4, February 13, 1980. § 257. Sovereign immunity of the Navajo Nation Jurisdiction of the District Courts of the Navajo Nation shall not extend to any action against the Navajo Nation without its express consent. HISTORY CD-94-85, December 4, 1985. CF-19-80, February 13. 1980. CROSS REFERENCES 1 NNC §551 ct seq., Navajo Sovereign Immunity Act 77 431 T.7 § 257 COURTS AND PROCEDURE Ch. 3 Subchapter 4. Special Division of Window Rock District Court §291. Establishment There is established the Special Division of the Window Rock District Court. HISTORY CMA-1 1 -89, March 10. 1989. CrvlA-8-89. March 1, 1989. § 292. Composition A. The Special Division of the Window Rock District Court shall consist of three judges or retired judges or justices, who shall be assigned in such manner and for such terms as is provided in this section, for the purpose of appointing special prosecutors pursuant to 2 NNC §§202 1- 2024. B. Judges of the Special Division shall be appointed for terms of two years each, which terms shall commence on the date of the enactment of this section, and thereafter on the date of every other anniversary of the enactment of this section. C. The Chief Justice of the Navajo Nation shall designate and assign three judges or retired judges or justices to the Special Division for each successive two-year term. At least two of the judges shall be active permanent judges of District Courts of the Navajo Nation. The third judge may be either an active permanent judge of the Navajo Nation or a retired judge or justice of the Navajo Nation. Unless there are an insufficient number of active permanent judges from at least two District Courts, not more than one judge or retired judge may be assigned to the Special Division from a particular District (or preceding trial) Court. The Chief Justice shall designate one of the judges to be the presiding judge of the Special Division. D. Judges of the Special Division may only be removed during their terms upon their resignation, or by a two- thirds (V3) vote of the Navajo Nation Council. Any vacancy in such division shall be filled only for the remainder of the two-year period for which such vacancy occurs and in the same manner as initial appointments to such division were made. E. Except as provided under subsection (F) of this section, assign- ment to the Special Division shall not bar any other judicial assignment during the term of assignment to such division. F. No judge of the Special Division shall be eligible to participate in any judicial proceeding concerning a matter which involves a special prosecutor appointed by the Division while such special prosecutor is 78 432 Ch. 3 COURTS AND PROCEDURE T.7 § 303 serving in that office, or which involves the exercise of such special prosecutor's official duties, regardless of whether such special prosecu- tor is still serving in that office. G. Within five calendar days of the enactment of this section, the Special Division shall be created pursuant to subsection (C) of this section. HISTORY CMA-1 1-89, March 1.1989. CMA-8-89, March 1, 1989. CROSS REFERENCES 2NNC§2021 i-/5C and the date of adoption of this resolution, and the Executive Secreuary and the Tribal Comptroller are hereby directed to esti- mate the same and present an appropriate budget amend- ment to the Navajo Tribal Council at its next session, 5. Repeal . All resolutions and parts of resolutions in conflict with this resolution are hereby repealed. CERTIFICATION I hereby certify that the foregoing resolution was duly considered by the Navajo Tribal Council at a duly called meeting at Window Rock, Arizona, at which a quorum was present and that same was passed by a vote of 63 in favor and opposed, this £2iid day of January, I96O. y Vlcte- Chairman Navajo Tribal Council 450 Ch. 13' LAND T.16 § 1401 Chapter 13. Compensation for Improvements and Customary Use Rights Upon Adverse Disposition of Land SECTION 1401. Damages lo improvements of individual Navajo Indians 1402. Economic damage to intangible interests of Navajo Indians 1403. Adverse disposition of Navajo Nation land not lo be made until individual damages are estimated ANNOTATIONS 1. The Navajo Tribe has the power to take or authorize the taking of property without the consent of the owners of the property or of any interest therein, provided that the owners are given due process of law and just compensation. Dennison v. Tucson Gas and Electric Co., Navajo Nation Court of Appeals, (decided December 23, 1974). 2. Under the customary division of governmental power into three separate branches, a division which exists in the Navajo Nation, the right to exercise the power of eminent domain may be authorized only by the legislature and there can be no taking of private property for public use against the will of the owner without direct authority from the legislature and then the taking must be only in the manner prescribed by the legislature. Dennison v. Tucson Gas and Electric Co., Navajo Nation Court of Appeals (Decided December 23, 1974). 3. Where the Chairman of the Navajo Tribe, on behalf of the Tribe, granted gas and electric company a right-of-way across land of plaintiffs, who had a grazing permit and had a home and other improvements on the land, to build and maintain a power line, and just compensation was not given plaintiffs, the taking ot the land was illegal and not m accord with this chapter, and the defense of sovereign immunity from suit was not available to the Tribe in plaintiffs' suit for damages. An injunction was obtained against further trespass and cancellation of the alleg- edly fraudulently obtained consent to the taking. Dennison v. Tucson Ciis and Electric Co., Navajo Nation Court of Appeals, (decided December 23, 1974). § 1401. Damages toimprovemcnts of individual Navajo Indians A. Whenever the Navajo Nation disposes of land containing any improvement belonging to a Navajo Indian who will not donate the same, whether the disposition is made by surface lease, permit, consent to grant of right-of-way or consent to commencement of construction on a proposed right of way, or in any other manner that gives the grantee or proposed grantee exclusive use of the surface of the land containing such improvement, or authorizes the grantee or proposed grantee to use the surface of the land in such manner that said improvement or improvements must be removed, damaged, or destroyed, the Navajo Nation will pay damages to the rightful claimant of such improvement or improvements. 487 451 T.16 § 1401 LAND Ch. 13 B. As used in this chapter "improvement" means house, hogans, sunshades, stables, storage sheds and dugouts, and sweathouses; sheep and horse corrals, lamb pens, and fences lawfully maintained; irrigation ditches, dams, charcos, development work on springs, and other water supply developments; any and all structures used for lawful purposes and other things having economic value. Where any improvement of a Navajo Indian is readily removable and such person has an opportunity to remove the same, damages payable on account of said improvement shaU be limited to the reasonable cost of removal, if any, even though the claimant thereof may have failed to remove such improvement and it may have been destroyed or damaged in the authorized course of use of the land on which it is located. C. No damages shall be paid to any person for any improvement, when such person at the time of building or acquiring said improve- ment knew or with reasonable diligence ought to have known that the area in which it was located was proposed to be disposed of by the Navajo Nation adversely to such person's interest. D. Damages to be paid to individual Navajo Indians under this section shall be fixed by negotiation and consent belAveen the President of the Navajo Nation or his or her authorized representative and the individual involved. If no agreement satisfactory to the President or his or her representative can be reached within a reasonable time, the President of Navajo Nation shall appoint one appraiser, the individual shall appoint one appraiser, and the two appraisers so appointed shall appoint a third appraiser; but if they cannot agree upon the third appraiser within 10 days, the President may appoint him or her. The three appraisers shall examine the improvement alleged to be damaged and shall appraise and determine the damages. Their determination shall be submitted to the Resources Committee and when, if, and as approved by said Committee the amount thereof shall be final. The Navajo Nation shall pay the fees of said appraisers, except where they are regular Navajo Nation employees, in which case they shall not be entitled to any fees. In addition the Navajo Nation shall pay the reason- able and necessary expenses of said appraisers, whether or not such appraisers are Navajo Nation employees. HISTORY CN- 10 1-72, November 30, 1972. CIA-18-60, January 22, 1960. CROSS REFERENCES Damages for improvements to specific highways, 14 NTNC §§1023. 488 452 Ch. 13 LAND T.16 § 1402 § 1402. Economic damage to intangible interests of Navajo Indians A. Whenever as a result of the granting of any lease or permit embracing Navajo Nation land, or of granting permission by the Navajo Nation for the use of Navajo Nation land, or as a result of the use of Navajo Nation land under such lease, permit or permission, the value of any part of such land for its customary use by any Navajo Indian formerly lawfully using the same is destroyed or diminished, the Navajo Nation will compensate the former Navajo Indian user in the manner hereinafter specified. B. When the livelihood of the former Navajo Indian user is gravely affected by the new use, such user shaU have first priority in resettling on other lands acquired by the Navajo Nation, except the area acquired pursuant to the Act of September 2, 1958 (72 Stat. 1686); and the Navajo Nation shall pay the expense of removijig said person, his or her family, and property to any new land made available for his or her use, and such shall constitute full compensation to such Navajo. C. In all other cases involving damages under this paragraph, the amount thereof shall be fixed and determined in the manner specified in 16NNC§1401(D). D. Where by reseeding, irrigation, or otherwise, the remaining land in the customary use area of any individual damaged by adverse dispo- sition of Navajo Nation land is within a reasonable time made able to provide the same economic return as his or her former entire customary use area, no damages shall be payable to such person, except for the period, if any, between adverse disposition of the land in the customary use area and the time when the productivity of the remaining land achieves equality with the entire former customary use area. E. Only lawful and authorized use shall be compensated under this section. Thus, no person shall be compensated for loss of use of land for grazing animals in excess of his or her permitted number, or without a permit. F. Every person otherwise entitled to damages under subsection (C) of this section shall not be entitled to receive any payment thereof until that person has surrendered for cancellation that person's grazing permit as to all animal units in excess of the carrying capacity of the land remaining in that person's customary use area. Persons so surren- dering their grazing permits shall be entitled to an immediate lump sum payment of $ 1 for each sheep unit cancelled. HISTORY CJA- 18-60, January 22. 1960. 489 453 T.16 § 1403 LAND Ch. 13 § 1403. Adverse disposition ofNavajo Nation land not to be made until individual damages are estimated Neither lessee, permittee, or the grantee of a right-of-way or other interest in or right to use Navajo Nation lands shall commence any construction thereon, nor make any change in the grade or contour thereof or remove any surface vegetation thereon until the damages to the improvements thereon or the customary use rights of all the indi- viduals affected thereby have been estimated by the Office of Navajo Land Administration of ihe Navajo Nation. Unless the Navajo Nation Council has previously authorized the payment of such damages from nonreimbursable funds of the Navajo Nation, the President shall re- quire the applicant for such lease, permit or grant of a right of way or other interest in or right to use Navajo Nation lands to deposit with the Controller of the Navajo Nation an amount equal to at least double the estimate of damage made by the Office ofNavajo Land Administration. After the lease, permit, or grant of right of way or user has become final and the damages have been determined, either by appraisal, estimate or by consent as hereinbefore provided, the President shall cause the Controller to pay, from and out of this deposit, to the person or persons damaged thereby such sum as he, she or they maybe entitled to under the terms of this resolution, and to return to the applicant the excess thereof, except that where the individual damaged has not consented to the determination of the amount thereof, it shaU be withheld in order to satisfy the excess amount, if any, determined under 16 NNC § 1402(C). Such disbursements shall be made without further appro- priation of the Navajo Nation Council. All sums held by the Controller of the Navajo Nation, pursuant to the terms of this chapter, for a period of more than 30 days shall be deposited in a Federal Savings and Loan Association or invested in bonds of the United States until needed for disbursement. HISTORY CJA-18-60, January 22, 1960. 490 454 Cite as 1 Nav. R. 95 HALDERMAN DENNISON, MARIE DENNISON and MARY DENNISON Plaintiffs- Appellees vs. TUCSON GAS AND ELECTRIC COMPANY JELCO, INCORPORATED PETER MACDONALD, Chairman of the Navajo Tribal Council THE NAVAJO TRIBE OF INDIANS GRAHAM HOLMES, BEN LYNCH NED PLUMMER and CHARLES PITTMAN Defendants- Appel lants Decided on December 23, 1974 Fred Johnson, D.N. A., Window Rock, Arizona, for Plainitiffs-Appellees Perry Allen, Chief Prosecutor, Office of the Prosecutor, Window Rock, Arizona, for Defendants-Appellants Before KIRK, Chief Justice, BENNALLEY and YELLOWHAIR, Associate Justices KIRK, Chief Justice On April 8, 1974, this Court granted the request of Peter MacDonald and the Navajo Tribe of Indians, for a review of the -95- 455 Cite as 1 Nav. R. 95 Trial Court's decision adverse to their interest in the above entitled matter dated March 1, 1974, the same being docket number WR-RO-11-74, in and for the Judicial District of Window Rock, Navajo Nation (Arizona). The parties will be referred to as plaintiffs and defendants as they appeared in the Trial Court. Oral arguments were presented on behalf of the parties in this Court on May 9, 1974. The Court has determined the facts as follows: 1. The plaintiffs, Dennison family, are Navajo Indians resid- ing on the Navajo Reservation near Tohatchi, Navajo Nation (New Mexico), within the exterior boundaries of Navajo Grazing District 14. 2. The plaintiffs have a permit to graze an undisclosed number of sheep in an undefined area of District 14, known as their "traditional use area ." 3. The plaintiffs have a home and other improvements, including sheep corrals, as well as what is called an "intangible interest" (liveihood) in the above said area. 4. Sometime in 1973, the defendant, Peter MacDonald, on behalf of defendant, the Navajo Tribe of Indians, granted a right-of- way to defendant, Tucson Gas and Electric Company, for the purpose of constructing and maintaining a power line for the transmission of electrical energy above, over and across Navajo Tribal Land, including some portion of the plaintiffs' "traditional use area ." 5. The defendant, Jelco, Incorporated, is a Utah corpora- tion engaged in the construction business and employed by defendant Tucson Gas and Electric Company to construct the above said power line. 6. Defendants Pittman, Lynch, and Plummer appear to be Navajo Indians employed by the Navajo Tribe Of Indian Affairs in some capacity, and are alleged to be agents of the defendant Tucson Gas and Electric Company, and in fact, had some part in securing and obtaining plaintiffs' written consent to the passage of the power line over and -96- 456 Cite as 1 Nav. R. 95 across their "traditional use area. 7. The defendant Graham Holmes, is a non-Indian employed by the Navajo Tribe in the Office of the Navajo Land Administration in a supervisory or consulting capacity at Window Rock, and is alleged to have had an active part, and did have some part in securing obtaining the plaintiffs' written consent to the construction of the power line over and across their "traditional use area. " 8. The plaintiffs in fact signed some type of consent for the construction of and the passage of the power line over and across their "traditional use area " and they accepted a check in the amount Five Thousand Dollars ($5,000.00) from defendant Tucson Gas and Electric Company for reasons that appear unclear even to the parties. 9. When the defendant Tucson Gas and Electric Company made application to the Navajo Tribe for the right-of-way across Tribal lands, the defendant Peter MacDonald, acting on behalf of the defendant Navajo Tribe of Indians, did not require the applicant of the right-of-way to deposit with the Treasurer of the Navajo Tribe an amount of money equal to at least double the estimated damages made by the Department of Land Investigation \n accordance with Navajo Law , as set forth by the Navajo Tribal Council in 16 N.T.C. ^ 553, for the protection of individual Navajo Indians , who may be dispossessed or partially dispossessed by the granting of just such a right-of-way . 10. When defendant Jelco, Incorporated started construction of the power line over and across plaintiffs' "traditional use area ", changing the contour of the surface and removing surface vegetation , etc. , the plaintiffs brought a proceeding in the Trial Court to cancel their consents for the construction and the passage of the power line over and across their "traditional use area " alleging that their consent was obtained by fraud, deceit and duress; and for an injunction against all of the defendants from further trespass to their property; and for damages for the actual trespass to their use land ; and for punative damages for the insolent manner in which the trespass was accomplished. Plaintiffs offered to return the uncashed check for Five Thousand Dollars ($5,000.00) to the defendant Tucson Gas and Electric Company. 11. The Trial Court dismissed the action for damages against the following defendants for lack of jui'isdiction: (1). Tucson Gas and Electric Company (2). Jelco, Incorporated (3). Holmes, Lynch, Plummer and Pittman The Trial Court denied the plaintiffs' request for an injunction against Peter MacDonald, the Navajo Tribe of Indians, and the other defendants. The Trial Court further directed that a date be set for the remaining issues, i.e. damages, and whether the plaintiffs were denied the opportunity to exhaust their administrative remedies. 12. The defendants Peter MacDonald and the Navajo Tribe of -97- 457 Cite as 1 Nav. R. 95 Indians, maintain through their counsel, the Navajo Prosecutor, Mr. Perry Allen, that the Navajo Tribal Government is immune from suit by one of its members, in any event, under the legal concept of sovereign immunity, and that Peter MacDonald, Chairman of the Tribal Council in negotiating the right-of-way grant to the Tucson Gas and Electric Company was acting within the scope of the authority vested in him by the Navajo Tribal Council and that therefore he too is immune from suit. The Court has further determined that this case involves the nature, source , and the lawful exercise of the governmental power of Eminent Domain , a subject with which the parties hereto and their lawyers of record seem to be totally unfamiliar and for that reason we feel impelled to make the following comments and observations: Eminent Domain is the power of any sovereign to take or to authorize the taking of any property within its jurisdiction for public use without the consent of the owner. It is an inherent power and authority which is essential to the existence of all governments. Therefore, as in this case, the sovereign (the Navajo Tribal Government), has the power and the authority to take or to authorize the taking of the Dennison property, all or part of it, without their consent. Plaintiffs' consent to the granting of the right-of-way is totally unnecessary. But , before the government can exercise this power of taking private property without the owners consent, it must provide just compensation for the property taken and provide the owner thereof with due process of law . -98- 458 Cite as 1 Nav. R. 95 These two prohibitions or restrictions on the exercise of the inherent governmental power of Eminent Domain are derived from: A. The Constitution of the United States - 5th Amendment. (1) Private property shall not be taken for public use without just compensation . (2) No person shall be deprived of life, liberty , or property without due process of law . B. Constitutional Rights of Indians, N.T.C. App., P. 31 7, Section 1302, (5) (8), known as the Indian Civil Rights Act of 1968 . (1) No Indian Tribe in exercising the powers of self- government shall: (a) ...(5) take any private property for public use without just compensation . (b) ...(8) deny to any person within its juris- diction the equal protection of its laws or deprive any person of life, liberty or pro- perty without due process of law. C. Navajo Bill of Rights, 9 N.T.C. §§1,5 and 8. (1) Note, that the Navajo Tribal Council, prior to the passage by Congress of the Indian Civil Rights Act of 1968, guaranteed to the Navajo peopl e that it would make no law for the taking of private pro- perly for public use without just compensation . (2) Also, the Navajo Tribal Council has guaranteed that it will make no law which denys to any person within its jurisdiction the equal protection of its laws or deprive any person within its jurisdiction of life, liberty, or property without due process of law. -99- 459 Cite as 1 Nav. R. 95 Furthermore, under the customary division of governmental powers into three (3) branches, executive, legislative, and judicial, the right to authorize the exercise of the power of Eminent Domain i_s wholly legislative (Navajo Tribal Council) and there can be no taking of private property for public use against the will of the owner with out direct authority from the legislative body (Navajo Tribal Council) and then the taking must be only [n the manne r as prescribed by the legislative body (Navajo Tribal Council). In 1960, the Navajo Tribal Council vested the exercise of the Eminent Domain power of the Navajo Nation m the Executive Branch of the Navajo Governmen t, and provided by law the exac t manner and the procedure to be followed '\n jts execution or use . Tribal Council Resolution CJA-18-60. Upon reading the above said tribal resolution, as codified in 16 N.T.C. , we find that: Whenever an application is filed with the Navajo Tribe for a right-of-way across tribal lands which may effect the possessary rights of individual Navajos, the Chairman shall: A. Require the Department of Land Investigation of the Navajo Nation to: (1) Estimate probable damage s to the improvements of individual Navajo's property upon the land. (2) Estimate the value of probable economic loss to in- dividual Navajos whose customary use right for grazing and other purposes may be effected by the granting of the right-of-way. ■100- 460 Cite as 1 Nav. R. 95 B. Next, when the estimated probable damages to in- dividual Navajos property upon the land and the probable economic loss to individual Navajos because of the lessening of their use right, if any, is figured and totaled by the experts from the Navajo Department of Land Investigation, the Chairman of the Navajo Tribal Council shall : (1) Require the applicant of the right-of-way , in this case , Tucson Gas and Electric Company , to deposit with the Navajo Tribal Treasurer , a sum of money equal to at least double the estimated damages as made by the Department of Land Investigation . This is the Tribal Council's guarantee to the Navajo people that their property will not be taken for public use by their government without just com - pensation and that the taking will be in accor- dance with the law as prescribed by the Navajo Tribal Council (due process of law) and not m accordance with the whimsical capricious how - ever well intended , policies of governmental servants . (2) After the first step has been taken, that is the estimate made and recorded and the de- posit of at least twice the amount of the esti- mate has been made to the Navajo Tribal Trea- surer for the protection of the rights of the individual Navajos effected, then and only then may the right-of-way agreement be finalized and COMMENCED ON BEHALF OF THE GRAN - TEE (Tucson Gas and Electric Company). This is Navajo due process of law, for the next step is: C. To make the individual Navajos affected by the right-of-way, an offer of the amount of damages as previously determined. It cannot be just any amount but the previously determined amount made by the Department of Land Investigation by using the formula as set forth by the Navajo Tribal Council. (1) Where the individual Navajo accepts the offer of the damages as determined by and in accor- dance with the law, the Chairman shall cause the Treasurer to pay the Navajo that amount out of the deposit to which he is entitled and return the excess of the deposit to the gran - tee of the right-of-way . (2) Where the individual Navajo refuses to accept the amount of money damages as determined -101- 461 Cite as 1 Nav. R. 95 by the Department of Land Investigation within a reasonable time, the Chairman shall set in^ motion a "condemnation proceeding" where in where the Resources Committee of the Navajo Tribal Council makes the final judgment , for , (3) The Chairman shall: (a) Appoint one (1) appraiser. (b) Individual Navajo shall appoint one (1) appraiser. (c) The two (2) appraisers shall appoint a third appraiser. (d) If the two (2) appraisers cannot agree upon the third appraiser within ten (10) days, the Chairman may appoint the third appraiser. (4) The three (3) appraisers shall: (a) Examine the improvements alleged to be damaged. (b) Appraise and determine the damages. (5) The determination of the appraisers shall be submitted to the Resources Committee and when, if, and as approved by said committee , the amount thereof shall be final . Anything less cannot be considered due process of law . Such disbursement shall be made from the deposit without further appropriation of the Navajo Tribal Council. Furthermore, all sums of money deposited with the Treasurer by the applicant of the right-of-way for the above said purpose, if not disbursed in thirty (30) days, shall be deposited in a Federal Savings and Loan Assocation or invested in bonds of the United States until needed for disbursement in accordance with the above procedure. Further, no payment to an individual which include s a determination for loss of economic livelihood shall be made, until he has surrendered for cancellation his grazing permit, but only to the : i ■102- 462 Cite as 1 Nav. R. 95 animal units in excess of the carrying capacity of the land remaining m his customary use area . Payment of Ten Dollars ($10.00) for each cancelled unit shall be made. n should be noted that Chapter 11 of Title 16, Navajo Tribal Code entitled, "Compensation for Improvements and Customary Use Rights upon Adverse Disposition of Land", by the Navajo Tribe, does not impose a duty upon the individual Navajo effected, to initiate an administrative proceeding when dissatisfied with the amount of damages offered. No, the duty imposed by the Navajo Tribal Council in enacting the above resolution, js^ imposed upon the Executive Branch of the government to initiate or start condemnation proceedings, not before the Courts , but before the Resources Committee of the Navajo Tribal Council, whenever a Navajo citizen adversely affected by the granting of the right-of-way across tribal lands, refuses to negotiate or accept the amount of money offered to him by the tribe, as just compensation. In other words, the Navajo Tribal Council has vested the judicial authority of determining what js or what js not just compensation under the above law , in the Resources Committee of the Navajo Tribal Council, rather than in the Courts of the Navajo Nation. Now we come to the remedies of the individual Navajo who may be adversely effected by the granting of a right-of-way across tribal lands. It is settled law that when land is taken or damaged by -103- 463 Cite as 1 Nav. R. 95 authority of law and in compliance with the provision of the law, and the law provides a means of recovering damages which may be instituted by the person in possession of the land, the statutory remedy provided is exclusive and no other remedy will be permitted. But, when the statutory remedy provided in the law cannot be initiated by the owner of the land, and the condemnor (Tribe) alone can put the remedy |n to operation and fails to do so, then the statutory remedy that is provided by the law js not exclusive and the owner who is alleged to have been damaged may resort to hjs other . remedies . These remedies include injuction relief as well as relief for damages. When we test the facts of this case with the above law we find that if the plaintiffs were damaged it resulted from the exercise of eminent domain power of the Navajo Nation and that the eminent domain power of the Navajo Nation as exercised by the Executive Branch of the Navajo Government in this particular case was illegal and not in compli- ance which is designated the "Governing Body" of the Navajo Nation. It is one of the glories of our society that no man or no division of government is above the law. The Navajo Tribal Council has declared that the Navajo people have a right to be secure in their possessions and that they shall not be taken from them by their government except by due process of law and the payment of just compensation. This philosophy of the law is in keeping with the Declaration of Independence, the great charter of all free men. That -104- 464 Cite as 1 Nav. R. 95 the only reason governments are established among men is to make secure the basic rights of the people. We intend to up hold this concept and to permit the law to become the great teacher rather than the elected or appointed governmental officials. it goes without saying that if the officials and employees of the Executive Branch of the Navajo Government, had exercised the power and authority vested in their branch, in the manner prescribed by law, the plaintiffs in this case would have no standing in this Court because of the remedy of the statute would have provided due process , I of law and just compensation. But, since they did not do so, we must hold for the plaintiff. The Court has always upheld and presently does uphold the sovereign immunity doctrine of the Navajo Nation, but for anyone to seriously impose that defense under the facts of this case causes concern among the Court, regarding the competency of the legal advisors to the prosecutor and the competency of the legal advisors to the office of the Navajo Land Administration. AH that the plaintiffs would be entitled to from the Navajo Nation under the statute , in^ any event , would be , just compensation . How could they be deprived of this simply because some officials and employees in the Executive Branch, to put it mildly, neglected to follow the law? We consider the Navajo Nation the only real defendant and consider the written consent of the plaintiffs to be of no force or effect and we pass no judgment on the conduct of the other defendants at this time. •105- 465 Cite as 1 Nav. R. 95 Unless the Prosecutor files a confession of judgment on behalf of the Navajo Nation in this court within ten (10) days from the date of this order, in an amount concurred in by the plaintffs, the Trial Court is directed to set the case for immediate trial on the sole issue of damages, if any, suffered by the plaintiffs. The Trial Court shall use care and determine the damages if any, in accordance with the formula as set forth by the Navajo Tribal Council in 16 N.T.C., Chapter 11. The judgment, if any, shall be directed and entered against Peter MacDonald, Chairman, and the Navajo Nation. BENNALLEY, Associate Justice, and YELLOWHAIR, Associate Justice, concur. •106- I 466 Cite as 2 Nav.R. 1 GLENN GEORGE, Administrator of the Estate of RANDY GENE GEORGE, Deceased, For the Estate; GLENN GEORGE and MARY GEORGE Plaintiffs -Appellants vs. THE NAVAJO INDIAN TRIBE; THE NAVAJO POLICE DEPARTMENT; ALFRED YAZZlE; HERBERT BEGAY; CALVIN YAZZlE; and THE NAVAJO TRIBAL MAINTENANCE OFFICE Defendants -Appellees Decided on January 04, 1979 Martha Blue, Ward, Hufford & Blue, Flagstaff, Arizona, for Plaintiffs- Appellants Byron Caton, Tansey, Rosebrough, Roberts & Gerding, Farmington, New Mexico, for Defendants-Appellees Before NESWOOD, Acting Chief Justice, JOHN and WALTERS, Associate Justices JOHN, Associate Justice This case is on appeal from a judgment of the Window Rock District Court, finding for the defendants in the above entitled wrong- ful death action. On or about July 5, 1974, the deceased was arrested in Window Rock, Arizona on a charge of public drunkeness and in- carcerated in the jail facilities located at Window Rock, Navajo Nation (Arizona). On the morning of July 6, 1974 the deceased was discovered 467 Cite as 2 Nav.R. 1 hanging from the wires of the light fixture and was pronounced dead. A complaint was filed on November 12, 1975 asking for $2,000,000 in damages. The defendants filed a Motion to Quash the jury panel in early 1977 on the grounds that all non-Indians were ex- cluded and that it was a violation of the 1968 Indian Civil Rights Act (25 U.S.C. 1302) to do so. While District Court Judge Merwin Lynch originally ruled against them, he later, on his own motion, did include non-Indians on the jury. During the course of the trial, the judge excluded two expert witnesses offered by the plaintiffs. Stanley Maskell was to have testified to the conditions and standard of care applicable to Arizona rural jail facilities, but was excluded on the grounds that he was not an expert on Navajo jail facilities. Albert Goldtooth was to have tes- tified to the standard of care for handling juveniles and for inspecting and maintaining jail conditions, but was not allowed to testify as an expert because he only had an Nth grade education. The District Court also denied admission into evidence of a memorandum prepared by Kimeric Hayner, then legal Advisor to the Navajo Police Department, on procedures for handling juveniles of- fenders. During his closing argument, defendants' counsel briefly referred to the testimony of Stanley Maskell. This was quickly objected to by the opposing side as impropei" argument, as it referred to a 468 Cite as 2 Nav.R. 1 matter not in evidence. Defendants' counsel thereafter refrained from any such references. The jury instructions given included one on agency law. While there is some confusion on the questions of whether the plaintiffs either properly submitted their own instruction or objected to the instruction given, it seems that the instruction they claimed they sub- mitted differed from the one actually read to the jury. The jury returned a verdict for the defendants and judg- ment was entered accordingly. Plaintiffs appealed. II. The issues before the Court are: 1. Whether the composition of the jury panel was contrary to the Navajo Tribal Code. 2. Whether the failure to allow the plaintiffs' two expert witnesses offered in the standard of care for juveniles and the standard of care for maintenance and other matters is reversible error. 3. Whether the ruling denying admission into evidence of the memorandum by Mr. Hayner regarding the established juvenile practices is reversible error. 4. Whether the closing argument of defendants' counsel was improper and prejudicial to the plaintiffs and is re\/er- 469 Cite as 2 Nav.R. 1 sible error. 5. Whether the District Court's refusal to give the re- quested instruction was reversible error. Ill Title 7, Section 654 of the Navajo Tribal Code (1977 Compilation) states the eligibility of jurors as follows: "Any Navajo Indian over the age of 21 years of at least ordinary intelligence and not under judicial restraint shall be eligible to be a juror." (emphasis added) 7 NTC 654 was enacted in 1959 by Trial Council Resolution CJA-5-59. In 1968 the United States Congress passed the Indian Civil Rights Act codified as 25 U.S.C. 1302, which states in part: "No Indian Tribe in exercising powers of self-govern- ment shall . . . (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law." The case of Dodge v. Nakai , 298 F.Supp. 17 (DC, Ariz., 1969) made it clear that the law extends to any person, Indian or non-Indian. -4- 470 Cite as 2 Nav.R. 1 In the cases of Alexander v. Louisana , 405 U.S. 625, 31 L.Ed. 2d 536, 92 S.Ct. 1221 and Carter v. Greene County , 396 U.S. 320, 24 L.Ed. 2d 549, 90 S.Ct. 518, among others, the United States Supreme I Court recognized that to deny representation on a jury on the basis of ' race violated the provision of the 14th Amendment to the United States ] Constitution. i "The exclusion of Negroes from jury service because I of their race is 'practically a brand upon them...' That kind of discrimination contravenes the very idea of a j jury "a body truly representative of the community'..." 24 L.Ed. 2d at 558 "The commissioners, in any event, had a duty 'not to pursue a course of conduct in the administration of | i their office which would operate to discriminate in the selection of jurors on racial grounds.' " (citations omitted) 31 L.Ed;2d at 543 I While the Court recognizes the fact that the 14th Amendment does not apply to Indian Tribes, the restrictions of the 1968 Indian Civil Rights Act are esentiaily derived from the United States Con- i stitution. See Hennessy v. Dimmler , 394 NYS2d 786 (1977, Co. Ct.); { State V. Railey, 87 N.M. 275, 532 P.2d 204 (1975, N.M. App.) ; This Court feels that the systematic exclusion of non- Indians from jury panels would violate 25 U.S.C. 1302 (8) in the -5- 471 Cite as 2 Nav.R. 1 same manner as the case above. Because it is recognized that the language of this section is derived from similar provisions of the United States Constitution, we believe the intent of Congress was to prohibit denials of equal protection in this manner. Therefore, we cannot sanction the provision of 7 N.T.C. 654 limiting jurors to Navajo Indians. 7 N.T.C. 654 is declared null and void insofar as it restricts jury service to only Navajos. IV. The qualifying of expert witnesses is one area of trial procedure which is left to the sound discretion of the trial judge. See Rules 23 and 24 of the Navajo Rules of Evidence. There is no substitute for first hand observation and ex- amination of the qualifications of such experts. The Court of Appeals must exercise considerable restraint in this area and must resist the temptation to jump in and substitute its own opinion for the opinion of the trial judge and reverse his judgment on this basis. Given the justificable reluctance on our part to outguess the District Court on matters of this nature, we must, however, exercise our power of review and determine whether there is some reasonable basis behind the judge's exclusion of the two witnesses offered as experts in this case. We find no such reasonable basis. 472 Cite as 2 Nav.R. 1 Mr. Maskell was excluded because he was not an expert on Navajo jail facilities. This Court believes that there are really few experts, if any, in this narrow field and none were readily available to the plaintiffs. The fact is that Mr. Maskell was an expert in Arizona rural jail facilities, and area that overlaps and parallels to a great extent the area of our own jail system. His testimony would have certainly been of some value and assistance to the jury in its deter- mination of the standard of care that should be applicable to the Window Rock facility. We therefore believe it was an error to exclude his testimony. Mr. Goldtooth was excluded as an expert witness apparently because he had only an llth grade education. What type of formal education a person possesses certainly is relevant in any determination of his knowledge and skills. However, it is not the sole determinative factor. Self-education and experience can be just as important. Again, Mr. Goldtooth's testimony as an expert might have been of assistance to the jury, and it was error to exclude it. Having found error in the exclusion of the above two ex- pert witnesses, we must now decide whether this was reversible error. We find that it was not. Extensive evidence was introduced as to the jail conditions and procedures at Window Rock, both in general and for the night when the deceased was incarcerated. All this was evidence the jury could use in determining the standard of care. While the testimony of -7- ( 473 Cite as 2 Nav.R. 1 the two experts might have added to this fund of knowledge, we cannot, upon review of the subject matter of the testimony, conclude that a new trial would clearly result in a different verdict from that already reached. See Wedness v. Central States Fire Insurance Co. , 259, 47 NW2d 879. We find that the exclusion of the memo by Mr. Hayner was not reversible error. Mr. Hayner was at one time the legal advisor to the Navajo Police Department. He had no authority to dictate to the police what procedures to follow in handling juveniles. All he could do was to advise them of the law in the area. As police officers, they are already charged, under our system of justice, with such a knowledge. Besides, on review of the evidence, it is not clear if this memo was posted at the time of the deceased's arrest or if it was otherwise known, or should have been known, by the defendant police officers. VI, Counsel, when making their closing arguments to the jury. -8- 474 Cite as 2 Nav.R. 1 are expected to marshall the facts presented and use their utmost powers of persuasion to convince the jurors as to the soundness of their client's case. Anything less would be a violation of their ethical duty imposed by Cannon 7 of the Code of Professional Responsiblity ("A Lawyer should represent a Client Zealously within the Bounds of the Law"). What a lawyer is not permitted to do is make an inflamatory or prejudicial argument and thus improperly influence the jury. Upon review of defendants' counsel's closing remarks in this case, however, we cannot find any statements that even remotely approach this level of misconduct. One single reference to the testimony of an excluded witness, which was immediately objected to, is not enough to cause us to overturn the jury's verdict. We therefore conclude that the closing argument of defendant's counsel was not reversible error. VII The two jury instructions on agency to be examined here the one given and the one the plaintiffs claim should have been given ; are almost identical in wording but they contain a substantial and | critical difference. j I The instruction requested by the plaintiffs reads as follows: "A person has notice of a fact if he or his agent -9- 475 Cite as 2 Nav.R. 1 knovys the fact, has reason to know it, should know it, or has been given a notification of it. Knowledge acquired by an agent during the agency and within its scope is imputed to the principal even though the knowledge so acquired by the agent is not actually conveyed to the principal." The legal result can easily be reached, from reading the above instruction, that any information conveyed to the agent during the course of his activities, no matter under what circumstances and no matter what its content, is imputed to the principal. This is a far reaching and staggering theory. Police officers usually have numerous contacts with the public during their working day. Do the plaintiffs seriously suggest that the substance of all conversations and com- munications conveyed to an individual officer, no matter how seemingly irrelevant or of a non-serious nature at that moment, be chargeable to the knowledge of the Police Department as an entity? This Court does not believe that is a correct statement of the law. The instruction that actually was given reads as follows: "Generally, knowledge of the agent which he is under a duty to disclose to the principal or to another agent of the principal is imputed to the principal." The key difference in the given instruction from the one plaintiffs requested is that it makes it clear that the only knowledge ■10- 476 Cite as 2 Nav.R. 1 imputed to the principal is that what the agent is under the duty to disclose. We believe the instruction given correctly states the law on agency. We therefore conclude there was no error in the refusal to give the plaintiffs' requested instruction. viir For the reasons stated above, the judgment of the District Court, finding for the defendants, is AFFIRMED. BLUEHOUSE, Associate Justice, concurs. NESWOOD, Acting Chief Justice, Dissenting I respectfully dissent. While I agree with Parts l-lll, and Parts V-VII of the majority opinion, I disagree as to Part IV and to the ultimate judgment of this Court. Expert witnesses are a vital part of most negligence actions because of the peculiar legal concept involved, "standard of care". When one fails to observe a standard of care in a particular situation, one is negligent. Put another way, negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the -11- 477 Cite as 2 Nav.R. 1 existing circumstances would not have done. Baltimore &. P. R. Co. V. Jones , 95 U.S. 439, 24 L.Ed. 506 (1877), Owl Drug Co. v. Crandall , 52 Ariz. 322, 80 P. 2d 952 (1938), Stewart v. Smith , 68 Ariz. 91, 200 P. 2d 353 (1948). The key words in the above definition are, "under the circumstances." One cannot determine what a reasonable person would do under certain circumstances, unless one has a basis of comparison. The testimony of the expert witnesses in this case was for the purpose of forming such a comparison. It was a vital part of the plaintiffs' case. Without a basis of comparison with other jails and procedures, I don't see how the jurors could have formed an opinion as to the standard of care for the jail facility in question. I would therefore REVERSE the judgment of the District Court. -12- .'^.S-.«;49 97-16 478 MEMORANDUM OF UNDERSTANDING BETWEEN THE FEDERAL NATIONAL MORTGAGE ASSOCIATION AND THE NAVAJO NATION WHEREAS, the Federal National Mortgage Association ("Fannie Mae") has established a Native American Housing Initiative (the "Fannie Mae Initiative"), whereby Fannie Mae offers to purchase from Fannie Mae-approved lenders certain first-iien mortgages made by such lenders to individual members of the Navajo Nation for the financing of single-family and extended- family, owner-occupied principal residences located within the Navajo Nation; and WHEREAS, the Navajo Nation, recognizing the needs of its members to obtain conventional mortgage financing for the financing of such residences, desires to participate in the Fannie Mae Initiative; and WHEREAS, the Department of the Interior, Bureau of Indian Affairs (the "BIA") Navajo Area Office Director, must approve this agreement as it pertains to trust or restricted lands within the Navajo Nation. NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein, the parties hereby agree as follows: 1. Pursuant to the Fannie Mae Initiative, Fannie Mae-approved lenders will make mortgage loans available to qualified members of the Navajo Nation for the financing of residences located within the Navajo Nation, pursuant to the terms of this Memorandum of Understanding and in conformance with the ^plicable laws and regulations relating to Indian trust, restricted and unrestricted lands, including 25 U.S.C. §§ 415 and 635 and 25 C.F.R. Part 162. 2. The Navajo Nation and Fannie Mae acknowledge and agree that Faimie Mae shall be entitled to rely on Opinions of die Solicitor of the Judicial Branch of the Navajo Nation in carrying out the terms of the Fannie Mae Initiative pursuant to this Memorandum of Understanding. The Opinions of the Solicitor provide, among other things, that contracts, agreements and security instruments to which the Navajo Nation is a party are enforceable in the courts of the Navajo Nation. Opinions of the Solicitor No. 95-17 and 95-17A, are attached hereto as Exhibits 1 and 2, and are incorporated herein by this reference. 3. The Navajo Nation has established legally-enforceable regulations, policies and procedures which apply to the conveyance of security interests in real property, including both freehold and leasehold estates in real property, as collateral for loans to members of the Navajo Nation from Fannie Mae-^proved lenders in accordance with the Fannie Mae Initiative and procedures for resale of such security interests in real property. Such regulations, policies and 479 procedures are described in the Opinions of the Solicitor and, for use in connection with homesite leasehold interests, the Navajo Nation Homesite Lease forms, copies of which are attached as Exhibits 3 and 4. 4. The Navajo Nation has established legally-enforceable regulations, policies and procedures relating to mortgage foreclosures and evictions in the event of borrower defaults on the above-described mortgage loans. Such regulations, policies and procedures are described in the Opinions of the Solicitor, the Mortgage instrument which is attached hereto as Exhibit 5 and, for use in connection with homesite leasehold interests, the Navajo Nation Homesite Lease forms. 5. Each member of the Navajo Nation to whom a loan is made by a Fannie Mae- approved lender pursuant to the Fannie Mae Initiative shall hold, possess or obtain a leasehold interest or other real property interest acceptable to such lender and to Fannie Mae in land within the Navajo Nation. The form of the Navajo Nation Homesite Lease applicable to trust or restricted land, attached hereto as Exhibit 3, is hereby declared acceptable to Fannie Mae and to the BIA. The form of the Navajo Nation Homesite Lease applicable to unrestricted land, attached hereto as Exhibit 4, is hereby declared acceptable to Fannie Mae. 6. Each member of the Navajo Nation borrowing from a Fannie Mae-approved lender in accordance with the Fannie Mae Initiative, will convey a security interest in real property as collateral for the mortgage loan made to such member in accordance with the terms of the Homesite Lease or other instrument creating or reflecting the property interest and the mortgage instrument. 7. The respective forms of Mortgage and Note attached hereto as Exhibits 5 and 6, are hereby declared to be acceptable to the Navajo Nation, Fannie Mae and the BIA, and shall be utilized by Fannie Mae-approved lenders pursuant to the Fannie Mae Initiative. 8. The Navajo Nation shall permit Fannie Mae-approved lenders making mortgage loans pursuant to the Fannie Mae Initiative and Fannie Mae, and their respective successors, assigns, agents and employees, to enter the Navajo Nation for the purposes of carrying out such actions as are reasonably necessary to allow the lender and/or Fannie Mae to evaluate the advisability of providing the mortgage loan and otherwise enforce the terms of such loan. 9. The Navajo Nation will assist Fannie Mae-approved lenders and Fannie Mae, and their respective successors and assigns, to the maximum extent reasonably possible in their efforts to manage and operate the Fannie Mae Initiative in a prudent, cost-effective, and culturally- sensitive manner. This shall include assisting such lenders and/or Fannie Mae in finding qualified substitute purchasers where borrowers under the Fannie Mae Initiative are unable to fulfill their mortgage loan obligations; carrying out foreclosures and evictions in a timely manner in accordance with the applicable regulations, policies and procedures referred to in paragraph 4 and the terms of the mortgage loan documents; assuring that mortgages and other relevant legal instruments, including Homesite Leases, can be recorded properiy; and otherwise assisting in assuring that the Fannie Mae Initiative is managed and operated in a prudent, cost-effective and culturally-sensitive manner. 10. Fannie Mae hereby consents to the exclusive jurisdiction of the Courts of the 480 Navajo Nation with respect to all matters in connection with or arising out of this Memorandum of Understanding and hereby agrees that no action or proceeding in connection with or ansing out of this Memorandum of Understanding or the terms and provisions of the notes and mortgages evidencmg the mortgage loans to Navajo Nation members will be brought by any Fannie Mae-approved lender and/or Fannie Mae in any state court. IN WITNESS WHEREOF, the parties hereto have signed this Memorandum of Understanding as follows: The Federal National Mortgage Association By: The Navajo Nation By llioJf^ /i^e Pre Ju< 1>, 1»M Robert Zoelli- Executive Vi^e Pres»dent and General Courkel / Date Thomas Atcitty Vice President Jut 19. I9M Date Approved: '^^^c/c CCyOt^ 1 1«, mt ^•[\t>lGArea Director -^ Bureau of Indian Affairs l^j.^'£U\- Date 481 OPiNiON OF THE SOLICITOR JUDICIAL BRANCH OF THE NAVAJO NATION No. 95-17 NAVAJO NATION-FANNIE MAE HOUSING FINANCE INITIATIVE August 24, 1995 PROBLEM STATEMENT On May 25, 1995, representatives of Fannie Mae, the Navajo Nation Department of Justice and the Office of the Solicitor, Judicial Branch of the Navajo Nation, met to discuss a joint initiative for Fannie Mae-approved lenders to make loans to qualified residents of the Navajo Nation to finance homes on leasehold estates located on trust or restricted lands of the Navajo Nation in accordance with the terms and conditions established by Fannie Mae under the initiative, fft conformance with applicable laws and regulations pertaining to Indian tnjst lands, including 25 U.S.C. §§ 415 and 635, and the regulations at 25 CFR Part 162. "Fannie Mae" is a secondary mortgage lender, which means that it purchases mortgages from banks so they will have more monies avaJlabfe for individual home loans. A June 12, 1995 letter from John M. Ingram; Esq., the Assistant General Counsel of Fannie Mae, asks for a solicitor's opinion which outliries foreclosure and eviction remedies available under Navajo Nation law. A June 12, 1995 letter from President Hale's Executive Staff Assistant confirms an agreement that the solicitor to the Courts of the Navajo Nation will prepare such an opinion to clarify Navajo Nation law for purposes of a memorandum of understanding. This opinion is based upon a review of a proposed Memorandum of Understanding between Fannie Mae and the Navajo Nation, organic statutes outlining the legal organization of the Government of the Navajo Nation, including relevant Navajo Nation Council resolutions; all applicable federal and Navajo Nation statutes. 482 regulations, policies and procedures relating to trust lands of the Navajo Nation, Including Homesite Lease Policy and Procedures; the model note and mortgage instmments approved by the Navajo Nation in connection with the memorandum of understanding; and a standard Navajo Nation Homesite Lease. POWER AND AUTHORITY TO EXECUTE A MEMORANDUM OF UNDERSTANDING The Fannie Mae counsel letter asks whether the Navajo Nation has the power and authority to execute the memorandum of understanding and if such would violate any applicable organizational document, federal or Navajo Nation law, regulation, policy or procedure, or result In the breach of any material agreement, indenture or other instalment to which the Navajo Nation is a party. I am of the opinion that the Navajo Nation has the power and authority to execute the MOU £md such will not violate any provision of any organizational documents or any laws, regulations, policies or procedures (federal or tribal) applicable to the Navajo Nation or result in a breach of any material agreement, indenture or other instrument to which the Navajo Nation is a party. That conclusion is based upon a review of the Treaty of Alliance of 1868, applicable federal statutes and regulations. Navajo Nation organic statutes, pertinent regulations, and policies or procedures (federal or Navajo Nation). There are no remaining material agreements, indentures or other instmments to which the Navajo Nation is a party which may affect or limit this opinion. The Treaty of 1868 The Navajo Nation concluded its final treaty of alliance with the United States of America at Fort Sumner, New Mexico Territory, on June 1, 1868. The United States Senate advised ratification on July 25, 1868, and the Treaty was proclaimed by President Andrew Johnson on August 12, 1868. 15 Stat 667; 1 Navajo Tribal Code 9 (1978). Article II of the Treaty sets out a legal description of lands to be reserved by ^SCtOPNBS-ITF) 483 the Navajo Nation.i and Article II states that such lands are "set apart for the use and occupation of the Navajo tribe of Indians, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit among them...." The prevailing federal policy in 1868 was that Indians should be tumed into famiers, so Articles V, VI and VII have provisions for the allocation of farming land to individuals. Article V establishes the procedure to set aside 1 60 acres of farming land to a "head of a family," issue a certificate, record it, survey the land and reserve to the United States the power to pass laws to address the character of land title, alienation and descent of property to descendants. As will be discussed below, the Navajo Nation reserved the treaty right to enact laws regarding other interests in non-agricultural land. The Navajo Nation Organic Governmentai Coda Following tha enactment of the Indian Reorganization Act of 1934 (the IRA), which provided for tha organization of Indian nation govemments on a corporate model. Navajos rejected a govammental fonn under tha Act by 384 votes out of 15,600 votes cast.2 Graham D. Taylor, Tha New Deal and American Indian Tribalism 33 (1 980). The Navajo rejection of the IRA was a major defeat for Commissioner of Indian Affairs John Collier, who put a great deal of attention Into Navajo ratification, because supporters of the IRA In Congress said that if it 'did not work among the Navajos it would not wori< anyplaca.* Id. Navajos instead chosa to form their government by statute, much as British Commonwealth nations adopt organizational organic statutes in place of a constitution. On August 6. 1959. tha Navajo Nation Council adopted a governmental code for the Navajo Nation, which waa codified as Title 2 of the Navaio Tribal Code (1978). 1 Th« T«rm^«k«pt Of •re8«ri/«ytf»lnd^ entering into a treaty. 2 The voter turnout waa 96%l 3. (SCtOF»aS>17^ 484 Navajo Nation Council Res. No. CAU-50-59. The code was adopted during the Termination Period of Indian Affairs law, when Indian nations were threatened with extinction by Congress. It provided for a chainman-council legislative government, which is common to most Indian nations, and as the governmental fomi evolved, it became a "strong chaimnan' and council form, along the lines of "strong mayor" municipal govemments. On December 15, 1989, the Navajo Nation Council chose to reorganize, creating a three-branch government with executive (headed by the president), legislative (the Navajo Nation Council and a speaker) and judicial (headed by the chief justice) branches. Navajo Nation Council Res. No. CD-68-89 (codified at 2 N.T.C.§§ 1-1013). The president of the Navajo Nation is its chief executive officer, and he has the power to "Negotiate and execute contracts subject to applicable laws,' and 'Exercise such powers as may be lawfully delegated to the Office of the President of the Navajo Nation." 2 N.T.C. § 1005(c)(2), (9). The power to execute contracts includes the power to execute a memorandum of understanding, which is a form of intergovernmental agreement. While Fannie Mae is not a federal agency as such, but an independent organization formed by Congress, ratification of the memorandum of understanding would fall under the jurisdiction of the Intergovernmental Relations Committee of the Navajo Nation Council. The statute which gives the committee its powers provides that it has the power To authorize, review, approve and accept agreements, including contracts and grants, between the Navajo Nation and any federal, state or regional authority upon the recommendation of the standing committee which has oversight of the division, department or program which has applied for the agreement' 2 N.T.C. § 823(b)(6). Fannie Mae is federal' to the extent it was created by federal legislation, and it is an 'authority* In the sense that it has the authority to engage in a broad range of financial activities. The governmental code does not specifically vest a standing 4. (SOLOPN98-17F) 485 committee with the power to recommend such an intergovernmental agreement, but in Navajo Nation practice, the Community Development and Resources committees would have interests in the memorandum of understanding. See . 2 N.T.C. §§ 423, 695. Authority to approve land use rights and interests is vested in the Resources Committee of the Navajo Nation Council, including the power To give final approval of any land exchanges, or, non-mineral leases, subleases or assignments of Navajo land;...' To approve homesite leases, or certificate, land withdrawals for homesites or residential subdivisions, and promulgate rules and regulations thereto;' and To oversee and regulate all activities within Navajo Nation lands....* 2 N.T.C. § 695(2), (4). (5). Federal Law Navajo Nation lands are held in trust by the United States for the benefit of the Navajo Nation as a whole and for individual Navajos who hold allotment interests. Leases of such trust or restricted lands are governed by 25 U.S.C. § 415 (1992). Indian lands, whether they are tribally or individually owned [sic], may be leased for public, religious, educational, recreational, residential or business purposes with the approval of the Secretary of the Interior, id. (Emphasis supplied.) This section is implemented by regulations which are codified as 25 CFR Part 162. 26 F.R. 10966 (November 23, 1961); redesignated at 47 F.R. 13327 (May 30, 1982). Indian nations may grant leases of IribaJ land" following negotiation by a representative, subject to written approval of the Secretary of the Interior. 25 CFR §§ 162.3, 162.6(a), and 162.5(a). 'Tribal land' means land or any Interest therein held by the United States in trust for a tribe... subject to Federal restrictions against alienation or encumbrance....' 25 CFR § 162.1(c). Thus, the Navajo Nation has the power to negotiate and lease, subject to written 5. (SOLOWB6-17F) 486 secretarial approval, including the power to negotiate financing arrangements, such as those represented in the proposed Fannie Mae memorandum of understanding. In practice, the Bureau of Indian Affairs (which has delegated authority from the Secretary of the Interior) acknowledges Indian nation self-government, self- determination and autonomy in negotiating arrangements which affect tribal land. ENFORCEMENT OF FANNIE MAE NOTE AND MORTGAGE AGREEMENTS The June 12. 1995 Fannie Mae counsel letter asks whether its standard rorm note and mortgage instruments are enforceable by a lender, Fannie Mae or any successors or assigns. I am of the opinion that the Note and Mortgage, when executed by a Navajo borrower, shall constitute obligations of the borrower enforceable by the lender, Fannie Mae, or any of their respective successors or assigns, in accordance with the terms provided therein in the appropriate Courts of the Navajo Nation. The issue invokes the jurisdiction, powers, statutory subject matter jurisdiction, applicable law and usages of the Courts of the Navajo Nation. Jurisdiction The civil trial court level of the Courts of the Navajo Nation is the District Court. 7 N.T.C. § 201 (1986 Supp.).3 The District Courts have civil jurisdk:tion over 'All civil actions in whk:h the defendant is a resident of Navajo Indian Country, or has caused an action to occur within the tenltorial jurisdiction of the Navajo Nation.' 7 N.T.C. § 253(2). That territorial jurisdiction and Navajo Indian Country are defined in 7 N.T.C. § 254: The territorial jurisdiction of the Navajo Nation shall extend to Navajo Indian Country, defined as all land within the exterior boundaries of the Navajo Indian 3 The Navajo Nation courts and th« Jixfldal Branch of the Navajo Nation were reorganized under ttw Judicial Reform Act of 1985. Navaio Nation Council Res. No. CD-94-85 (DecembM- 4, 1965) (codified at Title 7. Navajo TritMl Code). 6. (80L0PN9S-17F) 487 Reservation* or of the Eastern Navajo Agency, all land within the limits of dependent Navajo Indian communities, all Navajo Indian allotments, and all other land held in trust for, owned in fee by, or leased by the United States to the Navajo tribes or any Band of Navajo Indians.* Thus, the District Court has exclusive jurisdiction over any civil action involving the lease or mortgage of trust lands within Navajo Indian Country. The applicable law in actions before the Navajo Nation courts includes pertinent laws of the United States, laws or customs (called "Navajo common law") of the Navajo Nation, or , where there is no applicable federal or Navajo Nation law, "the laws of the state in which the matter in dispute may lie." 7 N.T.C. § 204. Parties may rely upon applicable Navajo Nation statutes, as indicated below, or have the choice of law of state remedies. The Forcible Entry and Detainer Statute The Navajo Nation has the statute of 5 Ric. II, st. I and 8 Hen. VI, c. 9. relating to forcible entry and detainer actions. Blackstone's Commentaries *179. Navajo Nation Council Res. No. CN-1 00-69 (November 21, 1969) (codified at 16 N.T.C. §§ 1801- 1810). The statute addresses the right of actual possession of land, and it is the sole remedy for possessory actions. 16 N.T.C. § 1805. A 'possessory action" is one which involves the right of possession of an interest less than a fee in land. The most recent Interpretation of the statute is the Navajo Nation Supreme Court decision in Bumside v. Thriftwav Mar Veting Corporation. Nos. SC-CV-38-94 and 3C-CV-45-94 (August 17. 1995) (consolidated appeals). In that case, which involved two separate forcible entry and detainer actions against the Thriftway Mari^p«ctso/F«niiyUwinS«^ XV7 (:^nfti^, in THE INH.Ue4C£ OF SPANISH LAW IN T>HE NEW WORLD (Stat* Bar 0( N«w Maxioo. March 26, 1992) (confaranoa maMala). 10. (SOtOWJOHTF) 491 American Nation." 18(1) American Indian Law Review 1 (1984). The Navajo Nation courts have a reputation for competence and fairness of treatment of lenders. Paul E. Frye. "Lender Recourse in Indian Country: A Navajo Case Study," 21 New Mexico Law Review 275 (1991). Our law permits both judicial foreclosure remedies, as outlined above, or non-judicial remedies as agreed by the parties in their private agreement. Aside from the legal authorities cited in the previous section, which prompt a positive answer to Fannie Mae's counsel's question here, the Honorable Robert Yazzie has made public policy statements to the effect that the Navajo Nation courts have a leadership role in economic development by offering a positive business climate in judicial proceedings. 9 One of the problems of economic development in Navajo Indian Country is that given a relative absence of honest and ethical non> Navajo business interests, Navajos fall prey to lenders who engage in sharp business practices. They include shoddy goods, inferior services, high interest rates, fraud and overreaching. The courts are aware of unconscionable business dealings. io Chief Justice Yazzie's policy is relevant to this memorandum of understanding, which seeks to attract a reputable lending institution to this region to promote home loans to Navajos. IMPAIRMENT OF CONTRACTS AND ILLEGAL TAKINGS The fourth, and final, question posed by Fannie Mae's general counsel has to do with the law of impairment of contract Do the Navajo Nation courts recognize impainnent for contract actions and actions for taking property without due process of law, if, for example, a lender, Fannie Mae or a successor acquires leasehold interests pursuant to a judicial or nonjudicial foreclosure or there is a taking in breach of the HomeSite Lease? The Courts of the Navajo Nation recognize impainnent of contract 9 The Hon. Robert YazM. "Economic Oevvtopmant, Business Climate, and LaW (May 18, 1993). 10 In January 1 984, Uwrence Rosen of Princeton Univeisityreiatad that *unconsdonabtttty Is a Pueblo common law principle, picked up by Kait Uewelyn. author of the Untfonn Commercial Code, when he did research in Santa Fe. Indian oonsumsra ara acutely tamfllar with K. 11. (SCL0fNB6-17F) 492 actions and actions for the unconstitutional (or 'quasi-unconstitutional" in our system) taking of property (i.e. without compensation) within the meaning of the Navajo Nation Bill of Rights and, therefore, if any lender, Fannie Mae, or any of their respective successors or assigns, acquires any of the leased premises or improvements thereon described in any Navajo Nation Homesite Lease pursuant to a foreclosure (judicial or nonjudicial) or assignment in lieu of foreclosure, the lender or Fannie Mae, or any of their respective successors or assigns, shall be entitled to maintain a breach or termination of the Homesite Lease by the Navajo Nation, as ground lessor, during the term of such lease. For greater precision, Navajo Nation law provides that any lender, Fannie Mae, or any of their respective successors or assigns, shall have the ability to maintain a cause of action against the Navajo Nation for a breach/impairment of contract and/or seek a mandamus or other injunctive remedy under 1 N.T.C. § 354(a) to prevent an illegal taJdng in vioiation of due process. Further, in the event that the Navajo Nation enters into a Note and Mortgage as contemplated in the encumbrance provisions of a model Home Site' Lease. Fannie Mae would have protecting and enforceable legal remedies to implement such provisions. The Home Site Lease would vest important property rights* according to its terms, which could not b« denied without violation of the property and takings provisions of the due process clause of th« Navajo Nation BiM-of Rights.i The Navajo Nation does not have a constitution, but it doee have the Navajo Nation Bill of Rights (as amended, 1965) which gives due-process protection against illegal takings witfiout compensatkxi. The clause recognizes property Interests whk::h are vested by governmental action in the fonn of approved land use teases. There are at least three aspects to tha question posed: an illegal taking under the proposed memorandum of understanding; an illegal taking under the terms of a homesite lease; and Navajo Nation due process precedent 12. (SOtOPNOMTF) 493 The proposed memorandum of understanding is an agreement between Fannie Mae and the Navajo Nation, and so long as it is in place, it can be enforced by Fannie Mae. Possessory interests given to land users under a Home Site Lease are property interests which are protected by law, £md if a lessee pledges interests in the lease to a mortgagee which are assignaible to Fannie Mae, subject to the approvals required m the lease, then any interests vested by virtue of such agreements are entitled to protection and enforcement An individual homesite lease has a temn during which the lessee or successors in interest have the exclusive right to occupation and use of the described premises, which may be pledged as a security interest The Navajo Nation courts have always been concerned with the sanctity of property rights. In the 1977 case of Estate of Nelson, the fomner Court of Appeals dealt with grazing pemiit interests. 1 Navajo Rep. 162 (Court of Appeals, 1977). A grazing permit is a usufructuary or land use right, and the Court chose to treat it as real property, and apply transfer of title law. because: 'Land is of primary importance to the Navajo people, and to hold othenArise would cheapen the importance of land transfers.' 1^ at 165. Land use rights are primary rights. The Court of Appeals decision in Dennison v. Tucson Gas and Electric Company is a leading Navajo Nation due process taidngs' dedsion.ii 1 Navajo Rep. 95 (1974). The issue was whether the Navajo Nation violated any du« process rights of the holders of a traditlonal use area' (a unique Navajo Nation fonn of land tenure) by constructing a power fine though the area without the occupants' true consent, just compensation or compliance with a statute which required a bond for double the damages caused by the distuftance of the land. id., at 96-97. The Court was unequivocal in its declaration of the takings doctrine, stating that 'before the government can exercise this power of taking private property without the owners 11 And a landmark in Navato Nadon oonsttudonai taw. It heipad triggar a constttutlonal crteia Invotvlng Chief Justica Virgfl tCik and Chainnan Patar MacOonakL 13. (SOjOPNBS-ITFI^ 494 consent, it must provide just compensation for the property taken and provide the nwnAr thereof with due process of law .' Id, at 98. (Emphasis in the original.)i2 The Navajo Nation courts have been consistent in the application of due process of law to protect liberty and property rights. In Nez v. Bradley, the former Court of Appeals adopted the doctrine of interpretation that "Where federally protected rights have been invaded, it has been the rule from the beginning that the courts will be alert to adjust their remedies so as to grant the necessary relief.' 3 Navajo Rep. 1 26, 1 30 (Court of Appeals, 1982): citing Bell v. Hood. 327 U.S. 678 (1946). The court of Appeals also adopted the principle that a violation of the Navajo Nation Bill of Rights will be deemed a "constitutional question.' and that the Navajo Nation must follow its own laws and procedure. Id-, at 131. That would include any land use right granted by the Navajo Nation pursuant to its leasing laws. The Navajo Nation Supreme Court applies Navajo common law to interpret the Navajo nation Bill of Rights. One author noted: The right to due process has been explored more often by the Navajo Nation Supreme Court than any other right.' Daniel L. Lowery, 'Developing a Tribal Common Law Jurisprudence: The Navajo Experience, 1969-1 992', 18(2) American Indian Law Review 379, 422 (1993). In the case of In re Estate of Begay #2. the Court ruled that 'Due process is found by synthesizing the principles of Navajo custom and government, and it is applied 'as fairness and respect" 19 Am. land. L Rep. 6130, 6131 (1990). Among the due process rights the Court said it will enforce is due process, which "must be provided when the government takes private property without the owner's consent.* Id. The issue of sovereign immunity was discussed at length In meetings with Fannie Mae representatives. Any lender, or its successor, would have a prospective mandamus or other injurKtive remedy under 1 N.T.C. Sec. 354(a) to prevent an illegal 12 Chwf Justfc»Ki(karKtAs«ociaMJiMtk»*B«rmUlcyandYeflowtialrputagrBatdealor«nipha8islri^ opinion. It repressntad a new trwid in Navajo Nation law to exetctM judicial ravitw ovtr axMuti^ 14. (S0U0PMS-17F) 495 taking in violation of due process. CONCLUSION This opinion is the product of many fruitful and cooperative discussions among representatives of the Navajo Nation Department of Justice, Fannie Mae (known formally as the Federal National Mortgage Association) and the Judicial Branch. The initiative to improve the economic climate of the Navajo Nation is welcome, and in keeping with Justice Raymond D. Austin's urging to open up private home ownership opportunities in the Navajo Nation. In Brown v. Todacheeney. Justice Austin noted: Housing shortage is a severe problem on the Navajo Nation. A majority of the reservation homes are inadequate and most likely would not meet the minimum building standards set by any state's law. While the federal government funds some housing construction projects on the reservation, the entity actually needed to attack the problem, the private real estate market, is virtually nonexistent. The void perhaps underiies the Navajo Nation's lack of interest in enacting a building code, mortgage laws, and other laws that regulate the housing constnjction industry. Thus, the principles set forth below by this court [recognizing a warranty of habitability in construction] may be the first spark in the darkness. 19 Indian L Rep. 6133, No. A-CV-35-91 (September 2, 1992). Brown was a "^irst spark,' and it was foik>wed by other Judicial Branch Initiatives to show that there are adequate remedies under exisdng law, without the need to enact mortgage laws. The Navajo Nation courts are an easential part of the procese, and we appreciate an opportunity to be a part of It OFFICE OF THE SOUCITOR AjJames W. Zion, ^pH6itor 15. (SOLOPNBO-ITF) 496 EXH;3iT 2 OPINION OF THE SOLICITOR (SUPPLEMENTAL) JUDICIAL BRANCH OF THE NAVAJO NATION N0.95-17A SPECIFIC PERFORMANCE REMEDIES IN HOUSING FORECLOSURE April 1, 1996 QUESTION: What is the policy of Navajo Nation law regarding specific performance of mortgage or loan agreements for the sale, construction, rehabilitation or repair of homes? PROBLEM STATEMENT The Navajo Nation is engaged in discussions with Fannie Mae, a secondary lender in the housing market, and the Office of Native American Programs, U.S. Department of Housing and Urban Development, to complete understandings and agreements to make home loans readily available to Navajo borrowers. The availability of prompt and appropriate remedies for lenders is an issue in such discussions. That issue raises the question of the enforceability of loan agreements where a homesite or other lease is used as security for a loan, along with the house. More specifically, this opinion will address the policies of Navajo Nation law regarding due process and specific performance as they apply to lending. JUDICIAL POLICY IN DECISIONS OF THE NAVAJO NATION SUPREME COURT Prior to discussion of the issue of specific performance, it is useful to review prior Navajo Nation Supreme Court statements of public policy on housing development and lending. In the case of Brown v. Todacheeney . No. A-CV-35-91 (1992), Associate Justice Raymond D. Austin observed, in a unanimous opinion of the Navajo Nation Supreme Court: Housing shortage is a severe problem on the Navajo Nadon. A majority of the 1 497 reservation homes are inadequate and most likely would not meet the minimum building standards set by any state's law. While the federal government funds some housing construction projects on the reservation, the entity actually needed to attack the problem, the private real estate market, is virtually nonexistent. The void perhaps underlies the Navajo Nation's lack of interest in enacting a building code, mortgage laws, and other laws that regulate the housing construction industry. Thus, the principles set forth below by this court may be the first spark in the darkness.... Thus, the Navajo Nation Supreme Court used its decision in the Brown case to set a course of action to actively encourage private lenders to enter the housing lending market, and to make the Judicial Branch an essential part of that initiative. In 1994, the Judicial Branch took part in the legislative review of a proposed memorandum of understanding with the United States Department of Veterans Affairs' to facilitate direct loans to Native American veterans living on trust lands in Indian Country. There was discussion of whether Navajo Nation law was adequate to provide legal remedies to implement the agreement. Solicitor Opinion No. 94-11, "Housing Foreclosure Remedies" (April 20, 1994), laid out the remedies available under Navajo Nation law and showed that our laws are quite sufficient to carry out the purposes of the Veterans Department program under 38 U.S.C. Sec. 3761, etseq. In August 1994, a member of the staff of the Office of the Chief Justice participated in a housing law seminar sponsored by the National Indian Justice Center where lending issues and enforcement were discussed with loan enforcement officers and attorneys of the Federal Deposit Insurance Corporation (FDIC). The conference also coincided with publication of an interim rule ' In Navajo Nation legislative practice, resolutions for committee or Navajo Nation Council action (including legislation and proposed agreements) are referred to affected governmental entities for comments and recommendations where the proposed action will affect that organization. 2 N.N.C. Sec. 164 (1995). The V.A. agreement was submitted to the Judicial Branch because court enforcement of agreements was an issue. k 498 by the U.S. Department of Housing and Urban Development to implement the Indian Loan Guarantee Program authorized by section 184 of the Housing and Community Development Act of 1992. 59(159) Federal Register 42732 (Thursday, August 18, 1994). The conference was an opportunity for the Navajo Nation Judicial Branch to assure FDIC enforcers and HUD officials that there are no impediments to lending in the Navajo Nation and that home loans are secure because they are backed up with remedies provided under existing Navajo Nation law. The Judicial Branch offered its comments on the HUD interim rule for loan guarantees for Indian housing on October 15, 1994. The comments took the position that the Navajo Nation is in fiill compliance with the requirements of the interim rule, and urged HUD to immediately implement the program in the Navajo Nation. "Comments Regarding Loan Guarantees for Indian Housing," 24 CFR Part 955, Docket No. R-94-1730. In April 1995, the Judicial Branch participated in a national conference of Federal Deposit Insurance Corporation attorneys and enforcement officers to discuss the lending climate in Indian Country, discrimination issues and the role of federal bank regulators in the larger scheme of American Indian policy. Again, the Judicial Branch policy in support of private lending initiatives offered assurances that a lack of judicial remedies is not an impediment to lending in the Navajo Nation. In May 1995, the Navajo Nation Department of Justice invited the Judicial Branch to participate in discussions of a proposed Fannie Mae initiative for a loan program in the Navajo Nation. Following the meeting. Solicitor's Opinion No. 95- 1 7, "Navajo Nation Fannie-Mae Housing Finance Initiative (Augiist 24, 1995), memorialized the issues and discussed applicable Navajo Nation law. This opinion is a supplement to that 1995 opinion. 3 499 In the meantime, Navajo Nation initiatives under the HUD Section 184 Loan Guarantee Program continued, and the Judicial Branch solicitor was asked to comment on subleases pursuant to foreclosure to the Associate Field Counsel of the Office of Native American Programs, HUD. to address that situation. The solicitor gave his letter opinion on the issue on January 24, 1996. to show the ability of lenders to sublease on foreclosure. Finally, Faxmie Mae officials ask for a formal opinion, based upon a November 29. 1995 solicitor's opinion lener, which discusses specific performance and process to enforce loan and mortgage agreements. The concern raised by Fannie Mae and other potential lenders is whether Navajo Nation officials or legislative bodies (i.e. a committee or the Navajo Nation Council) may block or impair specific performance of loan or mortgage agreements. SPECIFIC REMEDIES The Navajo Nation Supreme Court, as it is with most American courts, establishes patterns of legal theory as it renders decisions. The most recent problem confronting the Court is the reconciliation of remedies under the Navajo Nation Sovereign Immunity Act with the civil rights provisions of the Navajo Nation Bill of Rights. The Court struggles with the legislative history of the Sovereign Immunity Act and Navajo Nation Bill of Rights (which were enacted on the same day) to answer the question of how full civil rights pix)tection may be offered in light of the bar against recovery where the Navajo Nation does not have insurance or resources to pay a monetary judgment. The Court is developing an approach that since civil rights protection is an overriding value, the courts should provide prospective relief where retrospective relief in the form of damages is not available. In Raymond v. Nav^o Agricultural Products Industry , No. SC-CV-26-94 (July 20, 1995), the Court pointed out the difference between prospective mandamus or injunctive relief versus 4 500 retrospective monetary relief in construing the Sovereign Immunity Act. Slip Op. at 6. The civiF right under discussion with Fannie Mae and others is the right of lenders to have assurances that mortgages and other loan anangements will be honored if the Navajo Nation is involved as a party. The more specific problem is what would happen in the event a public official illegally seeks to modiiy an existing agreement or impede its performance. Navajo Nation law is clear that if an individual has a statutory or contractxial right to be enforced against the Navajo Nation, the courts will honor the right and implement it with a wide range of specific remedies. In most mortgage situations, only private parties will be involved, and sovereign immunity is not a consideration. In the unlikely event a public official of Navajo Nation Government seeks to impede or deny a foreclosure remedy, the courts are able to issue writs of mandamus, prohibition, assistance or other forms of injunctive relief to stop official misconduct Counsel for the Navajo Nation argued, in the Raymond case above, that where damage actions are not available due to a lack of insxirance or assets pledged to pay a monetary judgment that parties should seek prospective relief to cure civil rights violations. The legislative history of the Sovereign Immunity Act and the Navajo Nation Bill of Rights, reflected in preamble language ot the two measures, shows that civil rights are a higher value in Navajo Nation law and many kinds of civil rights violations may be cured through early intervention for equitable relief. The Raymond opinion and others show that the Navajo Nation Supreme Court is moving in the direction of making a clear demarcation between prospective and retroactive relief (immediate equitable and curative remedies rather than money damages where such may not be available) to address the enforcement of rights where sovereign immunity may otherwise be a bar. The question is whether businesses and lenders have assurances that the Navajo Nation court 5 501 system will maintain a favorable business climate in terms of due process and making cenain agreements will be honored. Those points were addressed in the March 14, 1996 Navajo Nation Supreme Court opinion in Rough Roc k Community School v. Navajo Nation , No. SC-CV-06-94. The appellants in that case, quasi-public schools which receive funding through the Navajo Nation, specifically rjiised the business climate issue. While the Court held that legislative modification of the schools' organization structure under state law was not a "taking" of property and thus a violation of due process, it reiterated its policy that the maintenance of a favorable climate for "outside" business has a solid foundation in the Navajo Nation. Slip Op. at 6-7; citing TBI Contractors v. The Nav^o Tribe of Indians, No. A-CV-28-85 (August 12. 1988); Largo v. Gregory & Cook. Inc . No. A-CV-1 1-93 (February 17. 1995); and Reservation Rasiness Ser vices v. Albert . No. SC-CV-05-94 (March 16, 1995). The Court also cited, with approval, a law journal article on the history of the Navajo Nation courts protecting legitimate business interests. Id. at 7, citing Frye, Lender Recourse in Indian Country: A Navajo Case Study, 21 New Mexico I.. Rev . 275 (1991). The opinion clearly states a judicial policy of honoring contractual rights. Faimie Mae and lenders can be assured that in the event that mortgage foreclosure or other forms of prospective relief are needed to enforce contractual terms, and the Navajo Nation or its officials are involved, the Sovereign Immunity Act is not a bar to relief. Navajo Nation law recognizes the difference between specific relief to enforce agreements and retrospective monetary relief Where money damages are not available, but there are substantive rights to be enforced, the courts will not hesitate to provide any remedy that will rectify the situation. Given that the Navajo Nation courts have civil jurisdiction over any act which arises within our territorial jurisdiction, they can offer any remedy known at law or equity to enforce mortgage agreements. 6 502 A major Indian law text. David H. Getches, Charles F. Wilkinson & Robert A. Williams. Jr.. Federal Indian Law: Cas es and Materials, at 527 (3rd ed. 1993), gives special mention of the Navajo coun policy of "blending the old with the new" and says that the Navajo courts "have carried out these tasks with a widely respected degree of professionalism, independence, and institutional competence, while at the same time maintaining an abiding an rigorous respect for the integrity of the Navajo way." Most recently, the Royal Commission on Aboriginal Peoples - Canada reviewed the work of the Navajo Nation courts with approval, saying that "visits to the Navajo courts by Aboriginal groups and commissions of inquiry from Canada have become akin to the search for the Holy Grail." Bridging the Culniral Divide: A Report on Abori ginal Peopl e and Criminal Justice in Canada 190 (February 1996). CONCLUSION If the issue is lender confidence and assurances that the rules of the game will not be changed, there is ample evidence in Navajo Nation law that lenders can be confident and have definite assurances that the rules of the game will not be changed. Fannie Mae has further assurances in discussions of a future relationship with the Navajo Nation courts. Fannie Mae has offered to provide technical assistance and training in modem mortgage law, and when there are meetings with Navajo Nation judges, more precise enforcement issues can be discussed. The Navajo Nation Judicial Conference has adopted standard policies to deal with emergent issues such as the appointment of counsel for indigents, sentencing, child support enforcement and other issues. The Judicial Conference has discussed lender remedies and consumer rights and concludes that responsible lenders who deal with consumers fairly have no cause to fear that legitimate expectations will not be honored. Returning to Jtistice Austin's statements on behalf of a unanimous Court in 7 503 the 1992 BrQvyn decision, supra, the spark he kindled became a flame in the recent 1996 Rsiii^li Rock Community School decision, also for a unanimous Court. We invite the lawyers for lenders and commercial interests to review the due process decisions of the Navajo Nation courts. They show a heightened awareness of the need for fundamental fairness to all. and the actual application of a degree of fairness which is not matched by most American courts. Lenders should have no fear of the legal climate of the Navajo Nation. James W. Zion, Solicitor to the Courts of the Navajo Nation 504 FORM 200C UNITED STATES LEASE NO. April, 1996 DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs and THE NAVAJO NATION HOMESITE LEASE (Tribal Member Only) (Trust or Restricted Land Only) THIS LEASE is made and entered into by and between THE NAVAJO NATION, P. O. Box 9000, Window Rock, Navajo Nation (Arizona) 86515, ("Lessor") , and , 0/ and C# whose address is , ("Lessee") in accordance with 2 N.T.C. S695(b) (4) (i) and Resolution No. RCD-289- 93 of the Resources Committee of the Navajo Nation Council, the provisions of 25 U.S.C. §415, as implemented by the regulations contained in 25 C.F.R. Part 162, and ail amendments or successors thereto, which by this reference are made a part hereof. In the event this Lease is held by two or more persons, it shall be held in the following tenure: WITNESSETH: 1. DB?IMITI0H8. (A) "Secretary" means the Secretary of the Interior or his duly authorized representative or successor. (B) "Approved Encumbrance" means an encumbrance approved in writing by the Secretary and Lessor. "Encumbrancer" means the owner and holder of an Approved Encumbrance, or either of them. 2. LEASED PREMISES. For and in consideration of the rents, covenants, agreements, terms and conditions contained herein. Lessor hereby leases to Lessee all that tract or parcel of land situated within the Chapter of the Navajo Nation, (County of , state of ^ ,) which is more particularly described in Exhibit "A, " attached hereto and by this reference made a part hereof, containing approximately ^___^ acre(8), more or less, subject to any prior, valid existing rights-of-way. There is hereby reserved and excepted from the leased premises rights-of-way for utilities constructed by or on authority of Lessor. i 505 3. OSB or LBASBO PREXZSES. (A) Lessee shall develop, use and occupy the leased premises for residential purposes only and said premises shall not be used for any other purpose. Lessee may construct, improve and maintain a dwelling and related structures on the leased premises and may otherwise develop, use or occupy said premises for residential purposes only. (B) Lessee agrees not to use or cause to be used any part of the leased premises for any unlawful conduct or purpose. 4. TERN. Lessee shall have and hold the leased premises for a term of sixty-five (65) years, beginning on the date of approval of this Lease by the Secretary. This Lease may be renewed for an additional term of up to twenty-five (25) years, provided that this Lease is in good standing. Lessee shall give written notice of intent to renew this Lease to the Director of the Navajo Land Department, or its successor, at least six (6) months, but no more than twelve (12) months, prior to the expiration date of this Lease. Renewal of this Lease is subject to the approval of Lessor and the Secretary and to the provisions of Navajo Nation law and the regulations contained at 25 C.F.R. Part 162, including all amendments and successors thereto. 5. RSMT. (A) In consideration of the foregoing and the terms and conditions of this Lease, Lessee hereby covenants and agrees to pay Lessor, in lawful money of the United States, an annual rental of One Dollar ($1.00). In accordance with 25 C.F.R. §162 . 5(b) (2) , only nominal rental is provided for herein because this Lease is for homesite purposes to a Tribal member and the leased premises are not commercial or industrial in character. Lessee agrees that there shall be no adjustment of the rental required herein in the event that this Lease is terminated before its term otherwise would expire or in the event that any part of the leased premises is teOcen under the laws of eminent domain. (B) Rental payments are due and payable on or before the effective date of this Lease and thereafter on or before each anniversary date of this Lease. Lessee may pay the total amount due at any time prior to the expiration of this Lease. Rental payments shall b« made by check or money order made out to the Navajo Nation, and shall be paid at the local Navajo Land Department Homesite Section Office, or at such other location as Lessor hereafter may designate in writing. Failure to meJce rental payments when due shall constitute a default under this Lease. (C) While the leased premises are in trust or restricted status, the Secretary in his discretion may suspend the direct rental payment provisions of this Lease, in which event the rental payments provided for herein shall be paid directly to the Secretary. Lessor, Lessee and an Encumbrancer, if any, shall be notified of any such change in the direct rental provisions of this Lease. 506 6. DBVBLOPHSirr OF LEASED PREMISES; IMPROVEMENTS. (A) Lessee shall develop the leased premises within two (2) years of the effective date of this Lease. Prior to the expiration of said period. Lessee may request in writing from Lessor an extension of the development period for a period not to exceed two (2) additional years. Lessor shall not unreasonably withhold approval of such request. Failure to develop the leased premises in accordance with this provision shall constitute a default under this Lease. (B) All buildings and other improvements now existing, or hereafter constructed on the premises, shall be the leasehold property of Lessee during the term of this Lease, including any renewal thereof. (C) Lessee is hereby specifically authorized to enter into appropriate service line agreements with utility companies for the provision of utility services to the leased premises, including gas, water, sewer, electricity, telephone, television and other utilities, without further consent by Lessor, on the condition that: (1) such agreements are for the sole purpose of supplying utility services to the leased premises; (2) such agreements authorize utility service lines only within the leased premises; (3) such agreements do not extend beyond the term of this Lease, including any extensions thereof; (4) executed copies of such agreements, together with plats or diagrams showing with particularity the location, size and extent of such service lines, are filed by the utility companies with the Lessor and with the Secreteury within thirty (3 0) days of their execution; and (5) such agreements are otherwise in accordance with the provisions of 25 C.F.R. S169.22, including any 2uaendments or successors thereto. Nothing contained herein shall be construed to limit the right of Lessor to enter into service line agreements with utility companies for service lines across the leased premises, nor otherwise to affect the rights-of-way reserved to Lessor in Section 2 of this Lease. 7. DBLIVERT Or PREMISSS; CVBTOXMLY USB RIOHTS. (A) Subject to the provisions of subsection (B) below, upon expiration or termination of this Lease, Lessee shall peaceably and without legal process deliver up possession of the leased premises to Lessor, 507 including all improvements thereon, in good condition, usual wear and tear excepted. (B) In the event that Lessee holds customary use rights to the leased premises under the laws and customs of the Navajo Nation at the beginning date of this Lease, and has not otherwise transferred, surrendered, or abandoned such customary use rights during the term of this Lease, then upon the expiration or termination of this Lease, Lessee shall be entitled to possession of the leased premises, including all improvements thereon, in accordance with the laws and customs of the Navajo Nation. 8. IHHERITAHCB. This Lease may be transferred by will or by intestate succession in accordance with the laws and customs of the Navajo Nation, including all amendments and successors thereto. 9. AS8ZGNM21IT. This Lease may be assigned with the prior written approval of Lessor and the Secretary, subject to the laws of the United States and the Navajo Nation, including all amendments and successors thereto. No assignment of this Lease or any interest therein shall be valid and binding without such prior written approval. In the event this Lease or any interest therein is mortgaged or pledged as security for a loan, approval of any subsequent assignment shall be required by the lender, sureties, and loan guarantors, if any. 10. EMCUKBRAMCS. (A) This Lease or any interest therein may not be encumbered without the prior written approval of Lessor and the Secretary, and no such encumbrance shall be valid without said prior approval. An Approved Encumbrance must be confined to the leasehold interest of Lessee, and shall not jeopardize in any way Lessor's interest in the land. Lessee agrees to furnish any requested financial statements or analyses pertinent to the proposed encumbrance that Lessor and the Secretary may deem necessary to justify the amount, purpose and terms of said proposed encumbrance. (B) In the event of default by Lessee of the terms of an Approved Encumbrance, Encumbrancer may exercise any rights provided in such Approved Encumibrance, provided that prior to any sale of the leasehold, Enc\imbrancer shall give to Lessor and the Secretary written notice of the same duration as is required to be given to Lessee by the terms of such Approved Encumbrance and by applicable law. In the event of such default. Lessor shall have the following rights which may be exercised at any time prior to the completion of sale: (1) To pay to Encumbrancer any and all amounts secured by the Approved Encumbrance, plus unpaid interest accrued to the date of such payment, plus expenses of sale incurred to the date of such payment. 508 (2) To execute in favor of Encumbrancer a promissory note and a new encumbrance, which new encumbrance must be approved by the Secretary, for any and all amounts secured by the Approved Encumbrance, plus unpaid interest accrued to the date of such execution, plus expenses of sale incurred to the date of such execution, upon the same terms and conditions as originally provided by the Approved Encumbrance, or upon such other terms and conditions as Lessor and the lender may agree, and delivering to Encumbrancer a policy of title insurance in the face amount of such promissory note, issued by a reputable title insurance company acceptable to Encumbrancer, and insuring that the new encumbrance is a first lien upon the property described in this Lease, subject only to current taxes and to conditions, restrictions and reservations of record which are acceptable to Encumbrancer at the time of recording the new encumbrance. (C) If Lessor exercises either of the above rights, all right, title and interest of Lessee in this Lease shall terminate and Lessor shall acquire this Lease; provided, however, that such termination shall not relieve Lessee of any obligation or liability which shall have accrued prior to the date of termination. Acquisition of this Lease by Lessor under these circumstances shall not serve to extinguish this Lease by merger or otherwise. (D) If Lessor declines to exercise either of the above rights and sale of the leasehold under the Approved Encumbrance shall occur, the purchaser at such sale shall succeed to all of the right, title and interest of Lessee in this Lease. It is further agreed that if the purchaser at such sale is Encumbrancer, Encumbrancer may sell and assign this Lease without any further approval by Lessor and the Secretary, provided that the assignee shall agree in writing to be bound by all the tenns and conditions of this Lease. During such period of time Encumbrancer retains title thereto, it may sublease the property for periods not to exceed one year in accordance with terms of the mortgage, notwithstanding any contrary provision contained within the Lease. If Encumbrancer is the purchaser, it shall be required to perform the obligations of this Lease only so long as it retains title thereto. If the purchaser is other than Encimbrancer, written approval by Lessor and the Secretary of any assignment shall be required and said purchaser shall agree in writing to be bound by all the terms and conditions of this Lease. 11. DEFAtTLT. (A) Time is declared to be of the essence in this Lease. Should Lessee default in any payment of monies when due under this Lease or be in violation of any other provision of this Lease, said violation may be acted upon by the Secretary in accordance with 25 C.F.R. Part 162, or any amendments or successors thereto. 509 (B) In addition to the rights and remedies provided by the aforementioned regulations, Lessor and the Secretary, either jointly or severally, may exercise the following options upon Lessee's default, subject to the provisions of subsection (D) below: (1) Enforce, by suit or otherwise. Lessee's compliance with all terms of this Lease; or (2) Re-enter the leased premises and remove all persons and property therefrom, and re-let the premises without terminating this Lease as the agent and for the account of Lessee, but without prejudice to the right to terminate the Lease thereafter, and without invalidating any right of Lessor or the Secretary, or Encumbrancer, if any, or any obligations of Lessee hereunder. The terms and conditions of such re-letting shall be in the sole discretion of Lessor, who shall have the right to alter and repair the premises as it deems advisa' le and to re- let with or without any equipment or fixtures situated thereon. Rents from any such re-letting shall be applied first to the expense of re-letting, collection, altering and repairing, including reasonable attorney's fees and any reasonable real estate commission actually paid, insurance, taxes and assessments and thereafter toward payment to liquidate the total liability of Lessee. Lessee shall pay to Lessor monthly when due, any deficiency and Lessor or the Secretary may sue thereafter as each monthly deficiency shall arise; or (3) Take any other action authorized or allowed vinder applicable law. (C) No waiver of a breach of any of the terms and conditions of this Lease shall be construed to be a waiver of any succeeding breach of the same or any other term or condition of this Lease. Exercise of any of the remedies herein shall not exclude recourse to any other remedies, by suit or otherwise, which may be exercised by Lessor or the Secretary, or any other rights or remedies now held or which may be held by Lessor in the future. (D) Lessor and the Secretary, as the case may be, shall give to an Encumbrancer a copy of each notice of default by Lessee at the same time as such notice of default shall be given to Lessee. Lessor and the Secretary shall accept performance by an Encumbrancer of any of Lessee's obligations under this Lease, with the same force and effect as though performed by Lessee. An Encumbrancer shall have standing to pursue any appeals permitted by applicable federal or Navajo Nation law that Lessee would be entitled to pursue. Neither Lessor nor the Secretary shall terminate this Lease if an Encumbrancer has cured or is taking action diligently to cure Lessee's default or has commenced and is 35-542 97-17 510 pursuing diligently either a foreclosure action or an assignment in lieu of foreclosure. 12. SAMITATIOll . Lessee hereby agrees to comply with all applicable sanitation laws, regulations or other requirements of the United States and the Navajo Nation. Lessee agrees to dispose of all solid waste in compliance with applicable federal and Navajo Nation law either in an approved sanitary landfill or transfer station, or with a commercial sanitary collection service. Lessee further agrees at all times to maintain the entire leased premises in a safe and sanitary condition, presenting a good appearance both inside and outside the leased premises. 13. HAZAROOns SUBSTANCES. Lessee shall not cause or permit any hazardous substance to be used, stored, generated or disposed of on or in the leased premises without the prior written approval of Lessor, which approval may be given, given upon conditions, or denied in the sole discretion of Lessor and Encumisrancer, if any, respectively. 14. TERNIMATIOM 07 FEDERAL SUPERVISION. Nothing contained in this Lease shall operate to delay or prevent a termination of federal responsibilities with respect to the leased premises by the issuance of a fee patent, or otherwise, during the term of this Lease, however, such termination shall not serve to abrogate this Lease. Lessor and Lessee and an Approved Encumbrancer, if any, shall be notified of any such change in the status of the leased premises. 15. INTEREST OF MEMBER OF C0M0RES8. No member of or delegate to Congress or any Resident Commissioner shall be admitted to any share or part of this Lease or to any benefit that may arise herefrom. 16. OBLIOATIONS TO THS UNITED STATES. It is understood and agreed that while the leased premises are in trust or restricted status, all of Lessee's obligations under this Lease are to the United States as well as to Lessor. 17. EMINENT DOMAIN. If the leased premises or any part thereof is taken under the laws of eminent domain at any time during the term of this Lease, Lessee's interest in the leased premises or the part of the leased premises taken shall thereupon cease. Compensation awarded for the taking of the leased premises or any part thereof, including any improvements located thereon, shall be awarded to Lessor and Lessee as their respective interests may appear at the time of such taking, provided that Lessee's right to such awards shall be subject to the rights of an Encumbrancer under an Approved Encumbrance. 18. MINERALS. All minerals, including sand and gravel, contained in or on the leased premises are reserved for the use of 511 Lessor. Lessor also reserves the right to enter upon the leased premises and search for and remove minerals located on the property, paying just compensation for any damage or injury caused to Lessee's personal property or improvements constructed by Lessee. 19. GOVERMIMO LAW AND CHOXCB 07 FORUM. Except as may be prohibited by applicable federal law, the law of the Navajo Nation shall govern the construction, performance and enforcement of this Lease. Any action or proceeding brought by Lessee against the Navajo Nation in connection with or arising out of the terms and conditions of this Lease shall be brought only in the Courts of the Navajo Nation, and no such action or proceeding shall be brought by Lessee against the Navajo Nation in any court of any state. 20. COMSEKT TO JtTRISDZCTION. Lessee hereby consents to the jurisdiction of the Navajo Nation, including its legislative, judicial and regulatory jurisdiction, including but not limited to jurisdiction to levy fines and to enter judgments for compensatory and punitive damages and injunctive relief, in connection with all activities conducted by Lessee in the Navajo Nation or which have a proximate legal effect on persons or property within the Navajo Nation. 21. NO WAIVXR 07 SOVZRSIOH IMMUNITY. Nothing in this Lease shall be interpreted as constituting a waiver, express or implied, of the sovereign immunity of the Navajo Nation. 22. SUCCESSORS AND ASSIGNS. The terms and conditions contained herein shall extend to and be binding upon the successors, heirs, assigns, executors, administrators and agents, including all contractors and subcontractors, of Lessee. Except as the context otherwise requires, the term "Lessee," as used in this Lease, shall be deemed to include all such successors, heirs, assigns, executors, administrators and agents. 23. N0TICB8. All notices, payments and demands shall be in writing, and shall be sent to the parties hereto at the respective addresses herein recited or to such other addresses as the parties may hereafter designate in writing. Copies of all notices and demands shall be sent to the Secretary. 24. E77BCTIVB DATB. This Lease shall take effect on the date of approval of this Lease by the Secretary. WITNESSES! 512 THE NAVAJO NATION, LESSOR Date By: Director, Navajo Land Department LESSEE LESSEE APPROVED: (Date) 8upTint»nd«nt/ Bureau of Indian Affmlra Agency 513 EX FORM 200UL LEASE NO. April, 1996 THE NAVAJO NATION HOMESZTB LEASE (Unrestricted Land Only) THIS LEASE is made and entered into by and between THE NAVAJO NATION, P.O. Box 9000, Window Rock, Navajo Nation (Arizona) 86515, ("Lessor"), and , C/ and , C# , whose address is ^ , ("Lessee") in accordance with 25 U.S.C. §635 and 2 N.T.C. §695 (b) (4) (i) and Resolution No. RCD-289-93 of the Resources Committee of the Navajo Nation Council, and all amendments or successors thereto, which by this reference are made a part hereof. In the event this Lease is held by two or more persons, it shall be held in the following tenure: WITMESSBTHt 1. DE7INITI0H8. As used in this Lease, the term "Approved Encumbrance" means an encumbrance approved in writing by Lessor. "Encumbrancer" means the owner and holder of an Approved Enciimbrance, " or either of them. 2. LEASED PRBUSBB. For and in consideration of the rents, covenants, agreements, terms and conditions contained herein. Lessor hereby leases to Lessee all that tract or parcel of land situated within Chapter of the Navajo Nation, (County of , State of ____^ ) , which is more particularly described in Exhibit "A, " attached hereto and by this reference made a part hereof, containing approximately ^___^__ acre(s), more or less, subject to any prior, valid existing rights-of-way . There is hereby reserved and excepted from the leased premises rights-of-way for utilities constructed by or on authority of Lessor. 3. 08B 07 LBX8BO PREMISES. (A) Lessee shall develop, use and occupy the leased premises for residential purposes only and said premises shall not be used for any other purpose. Lessee nay construct, improve and maintain a dwelling and related structures on the leased premises and may otherwise develop, use or occupy said premises for residential purposes only. (B) Lessee agrees not to use or cause to be used any part of the leased premises for any unlawful conduct or purpose. 514 4. TERN. Lessee shall have and hold the leased premises for a term of sixty-five (65) years, beginning on the date of approval of this Lease. This lease may be renewed for an additional term of up to twenty-five (25) years, provided that the Lease is in good standing. Lessee shall give written notice of intent to renew this Lease to the Director of the Navajo Land Department, or its successor, at least six (6) months, but no more than twelve (12) months, prior to the expiration date of this Lease. Renewal of this Lease is subject to the approval of the Lessor and to the provisions of Navajo Nation law. 5. REHT. (A) In -onsideration of the foregoing and the terms and conditions of is Lease, Lessee hereby covenants and agrees to pay Lessor, in lawful money of the United States, an annual rental of One Dollar fSl.OOK Lessee agrees that there shall be no adjustment of the rental required herein in the event that this Lease is terminated before its term otherwise would expire or in the event that any part of the leased premises is taken under the laws of eminent domain. (B) Rental payments are due and payable on or before the effective date of this Lease and thereafter on or before each anniversary date of this Lease. Lessee may pay the total aunount due at any time prior to the expiration of this Lease. Rental payments shall be made by check or money order made out to the Navajo Nation and shall be paid at the local Navajo Land Department Homesite Section Office, or at such other location as Lessor hereafter may designate in \in:iting. Failure to make rental payments when due shall constitute a default under this Lease. 6. DEVELOPMZMT 07 LEASED PREMISES; IMPROVEMENTS. (A) Lessee shall develop the leased premises within two (2) years of the effective date of this Lease. Prior to the expiration of said period, Lessee nay request in writing from Lessor an extension of the development period for a period not to exceed two (2) additional years. Lessor shall not unreasonably withhold approval of such request. Failure to develop the leased premises in accordance with this provision shall constitute a default under this Lease. (B) All buildings and other improvements now existing, or hereafter constructed on the leased premises, shall be the leasehold property of Lessee during the term of this Lease, including any renewal thereof. (C) Lessee is hereby authorized to enter into appropriate service line agreements with utility companies for the provision of utility services to the leased premises, including gas, water, sewer, electricity, telephone, television and other utilities, without further consent by Lessor, on the condition that: y 515 (1) such agreements are for the sole purpose of supplying utility services to the leased premises; (2) such agreements authorize utility service lines only within the leased premises; (3) such agreements do not extend beyond the term of this Lease, including any extensions thereof; and (4) executed copies of such agreements, together with plats or diagrams showing with particularity the location, size and extent of such service lines, are filed by the utility companies with the Lessor within thirty (30) days of their execution. Nothing contained herein shall be construed to limit the right of Lessor to enter into service line agreements with utility companies for service lines across the leased premises, nor otherwise to affect the rights-of-way reserved to Lessor in Section 2 of this Lease. 7. DBLZVERT OF PIIOII8B8; CUSTOMARY USB RI0HT8. (A) Subject to the provisions of subsection (B) below, upon expiration or termination of this Lease, Lessee shall peaceably and without legal process deliver up possession of the leased premises to Lessor, including all improvements chereon, in good condition, usual wear and tear excepted. (B) In the event that Lessee holds customary use rights to the leased premises under the laws and customs of the Navajo Nation at the beginning date of this Lease, and has not otherwise transferred, surrendered, or abandoned such customary use rights during the term of this Lease, then upon the expiration or termination of this Lease, Lessee shall be entitled to possession of the leased premises, including all improvements thereon, in accordance with the laws and customs of the Navajo Nation. 8. IHHZRITAMCB. This Lease may be transferred by will or by intestate succession in accordance with the laws and customs of the Navajo Nation, including all amendments and successors thereto. 9. ABBIOlOfBllT. This Lease may be assigned with the prior written approval of Lessor, subject to the laws of the Navajo Nation, including all amendments or successors thereto. No assignment of this Lease or any interest therein shall be valid and binding without such prior written approval. In the event this Leasei or any interest therein is mortgaged or pledged as security for a loan, approval of any subsequent assignment shall be required by the lender, sureties, and loan guarantors, if any. 10. BNCUMBRAVCB. (A) This Lease or any interest therein may not be encumbered without the %n:itten approval of the Lessor, and 516 no such encumbrance shall be valid without said prior approval. An Approved Encumbrance must be confined to the leasehold interest of Lessee, and shall not jeopardize in any way Lessor's interest in the land. Lessee agrees to furnish any requested financial statements or analyses pertinent to the proposed encumbrance that Lessor may deem necessary to justify the amount, purpose and terms of said proposed encumbrance. (B) In the event of default by Lessee of the terms of an Approved Encunibrance , Encumbrancer may exercise any rights provided in such Approved Encumbrance, provided that prior to any sale of the leasehold, Encumbrancer shall give to Lessor notice of the same character and duration as is required to be given Lessee by the terms of such Approved Encumbrance and by applicable law. In the event of such default. Lessor shall have the following rights which may be exercised at any time prior to the completion of sale: (1) To pay to Encumbrancer any and all amounts secured by the Approved Encumbrance, plus unpaid interest accrued to the date of such payment, plus expenses of sale incurred to the date of such payment. (2) To execute in favor of Encumbrancer a promissory note and a new encumbrance for any and all amounts secured by the Approved Encumbrance, plus unpaid interest accrued to the date of such execution, plus expenses of sale incurred to the date of such execution, upon the same terms and conditions as originally provided by the Approved Encumbrance, or upon such other terms and conditions as Lessor and the lender may agree, and delivering to Encumbrancer a policy of title insurance in the face amount of such promissory note, issued by a reputable title insurance company acceptable to Encumbrancer, and insuring that the new encumbrance is a first lien upon the property described in this Lease, subject only to current taxes and to conditions, restrictions and reservations of record which are acceptable to Encumbrancer at the time of recording the new encxunbrance . (C) If Lessor exercises either of the above rights, all right, title and interest of Lessee in the Lease shall terminate and Lessor shall acquire the Lease; provided, however, that such termination shall not relieve Lessee of any obligation or liability which shall have accrued prior to the date of termination. Acquisition of this Lease by Lessor under these circumstances shall not serve to extinguish the Lease by merger or otherwise. (D) If Lessor declines to exercise either of the above rights and sale of the leasehold under the Approved Encumbrance shall occur, the purchaser at such sale shall succeed to all of the rights, title, and interest of Lessee in this Lease. It is further 517 agreed that If the purchaser at such sale is Encumbrancer, Encximbrancer may sell and assign this Lease without any further approval by Lessor, provided that the assignee shall agree in writing to be bound by all the terms and conditions of this Lease. If Encumbrancer is the purchaser, it shall be required to perform the obligations of this Lease only so long as it retains title thereto. During such period of time Encumbrancer retains title thereto, it may sublease the property for periods not to exceed one year in accordance with terms of the mortgage, notwithstanding any contrary provisions contained within the Lease. If Encumbrancer is the purchaser, it shall be retjuired to perform the obligations of this Lease only so long as it retains title thereto. If the purchaser is other than Encumbrancer, written approval by Lessor of any assignment shall be required and said purchaser shall agree to be bound by all the terms and conditions of this Lease. 11. DB7ADLT. (A) Time is declared to be of the essence in this Lease. Should Lessee default in any payment of monies when due under this Lease, or be in violation of any other provision of this Lease, said violation may be acted upon by Lessor in accordance with Navajo Nation lav. (B) In addition to the rights and remedies provided by the aforementioned law. Lessor may exercise the following options upon Lessee's default, subject to the provisions of subsection (D) below: (1) Enforce by suit or otherwise, Lessee's compliance with all terms of this Lease; or (2) Re-enter the leased premises and remove all persons and property therefrom, and re-let the premises without terminating this Lease as the agent and for the account of Lessee, but without prejudice to the right to terminate the Lease thereafter, and without Invalidating any right of Lessor, or Encumbremcer, if any, or any obligations of Lessee hereunder. The terms and conditions of such re-letting shall b« in the sole discretion of Lessor who shall have the right to alter and repair the premises as it deems advisable and to re- let with or without any equipment or fixtures situated thereon. Rents from any such re-letting shall be applied first to the expense of re-letting, collection, altering, and repairing, including reasonable attorney's fees and any real estate commission actually paid, insurance, taxes and assessments and thereafter toward payment to liquidate the total liability of Lessee. Lessee shall pay to Lessor monthly when due, any deficiency and Lessor may sue thereafter as each monthly deficiency shall arise; or (3) Tedce any other action authorized or allowed vinder applicable lav. 518 (C) No waiver of a breach of any of the terms and conditions of this Lease shall be construed to be a waiver of any succeeding breach of the same or any other term or condition of this Lease. Exercise of any of the remedies herein shall not exclude recourse to any other remedies, by suit or otherwise, which may be exercised by Lessor, or any other rights or remedies now held or which may be held by Lessor in the future. (D) Lessor shall give to an Approved Encumbrancer a copy of each notice of default by Lessee at the same time as such notice of default shall be given to Lessee. Lessor shall accept performance by an Approved Encumbrancer of any of Lessee's obligations under this Lease, with the same force and effect as though performed by Lessee. An Approved Encumbrancer shall have standing to pursue any appeals, permitted by applicable Navajo Nation law that Lessee would be entitled to pursue. Lessor shall not terminate the Lease if an Approved Encumbrancer has cured or is taking action diligently to cure Lessee's default and has commenced and is pursuing diligently either a foreclosure action or an assignment in lieu of foreclosure. 12 . SAHITATIOM. Lessee hereby agrees to comply with all applicable sanitation laws, regulations or other requirements of the United States and the Navajo Nation. Lessee agrees to dispose of all solid waste in compliance with applicable federal and Navajo Nation law, either in an approved sanitary landfill or transfer station, or with a comfflercial sanitary collection service. Lessee further agrees at all times to maintain the entire premises in a safe, sanitary condition, presenting a good appearance both inside and outside the leased premises. 13. HAZARDOUS MATERIALS. Lessee shall not cause or permit any hazardous substance to be used, stored, generated, or disposed of on or in the premises without the prior written approval of Lessor, which approval may be given, given upon conditions, or denied in the sola discretion of Lessor and Encumbrancer, if any, respectively. 14. ZHTERB8T 07 MXMBSR OF C0MQRSS8. No memJser of or delegate to Congress or any Resident Commissioner shall be admitted to any share or par^ of this Lease or to any benefit that may arise herefrom. 15. OBLIOATIOMS TO THS UHITEO STATES. It is understood and agreed that should the leased premises be placed in trust or restricted status, all of Lessee's obligations under this Lease and the obligation of any sureties shall be to the United States as well as to Lessor and the provisions of 25 U.S.C. S415, as implemented by the regulations contained in 25 C.F.R. Part 162, and all amendments or successors thereto, shall apply. 519 8 may hereafter designate in writing. 23. E77ECTZVB OATB. This Lease shall take effect on the date of approval of this Lease by Lessor. THE NAVAJO NATION, LESSOR By: Date Director, Navajo Land Department WITNESSES; LESSEE LESSEE 520 COVENANTS. Borrower ander may take action under this paragraph 7, Lender does not have to do so. Any amounts disbursed by Lender under this paragraph 7, shall become sdditiortal debt of Bon-ower secured by this Security Instrument Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to Borrower requesting paymerrt 8. Mortgage Insurance. If Lender required mortgage iruurance as a condition of making the loan secured by this Security Instrument, Borrower shall pay the premiums required to maintain the mortgage irwurance in Form 3070 4/90 (peg* 3 of 8 pagn) 522 effect. If, for any reason, the mortoage insurance coverage required by Lender lapses or ceases to be in effect. Borrower shall pay the premiums required to obtain coverage substantially equivalent to the mortgage insurance previously in effect, at a cost substantially equivalent to the cost to Borrower of the mortgage insurance previously in effect, from an alternate mortgage insurer approved by Lender. If substantially equivalent mortgage insurance coverage is not available. Borrower shall pay to Lender each month a sum equal to one-fwelfth of the yearly mongage insurance premium being paid by Borrower when the insurance coverage lapsed or ceased to be in effect. Lender will accept, use and retain these payments as a loss reserve in lieu of mortgage insurance. Loss reserve payments may no longer be required, at the option of Lender, if mortgage insurance coverage (in the amount and for the period that Lender requires) provided by an insurer approved by Lender again becomes available and is obtained. Borrower shall pay the premiums required to maintain mortgage insurance in effect, or to provide a loss reserve, until the requirement for mortgage insurance ends in accordance with any written agreement between Borrower and Lender or applicable law. 9. Inspection. Lender or its agent may make reasonable entries upon and inspections of the Property. Lender shall give Borrower notice at the time of or prior to an inspection specifying reasonable cause for the inspection. 10. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or for conveyance in lieu of condemnation, shall be assigned and paid to Lender, and shall be applied In the manner described below. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. In the event of a partial Uking of the Property in which the fair market value of the Property immediately before the taking Is equal to or greater than the amount of the sums secured by this Security li«trument Immediately before the taking, unless Borrower and Lender otherwise agree In writing, the sums secured by this Security Instrument shall be reduced by the amount of the proceeds multiplied by the following fraction: (a) the total amount of the sums secured immediately before the taking, divided by (bl the fair market value of the Property Immediately before the taking. Any balance shall be paid to Borrower. In the event of a partial taking of the Property in which the fair market value of tfie Property immediately before the taking is less tt«n the amount of the sums secured immediately before the taking, unless Borrower and Lender ottwrwise agree in writing or unless applicable law otherwise provides, the proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums are then due. If the Property is abandoned by Borrower, of rf, after notice by Ler>der to Borrower that the condemnor offers to make an award or settle a claim for damages. Borrower falls to respond to Lender within sixty 1601 days after the date the notice is deemed to have been received in accordance with paragraph 1 4, Lender is autftorized to collect and apply the proceeds, at its option, either to restoration or repair of the Property or to the sums secured by this Security Instrument, whetfter or not then due. Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shall not extend or postpone ttie due date of tfw montt^ payments referred to In paragraphs 1 and 2 or change the amount of such payments. 1 1 . Borrower Not Ralaasad; Foibearance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by tfiis Security Instrument granted by Lender to any successor in interest of Borrower shaW not operate to release the liability of the original Borrower and Borrower's successors in Interest. Lender shall not be required to commerx^ proceedings agairut arry successor in interest or refuse to extend time for payment or otherwise modify amortization of ttw sums secured by this Security Irwtrumcnt by reason of any demand made by the original Elorrower or Borrower's successors in interest Any forbearance by Lender In exercising any right w remedy shall not be a waiver of or preclude the exercise of any right or remedy. 12. Successors and Assign Bound; Joint and Severai UabtDty: Co-signers. The covenants and agreements of this Security Irwtrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 17. Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Irutrumertt. but does not execute the Note: (a) is co-signing this Security Instrument only to moagage, grant ar¥j convey that Borrower's interest in the Property under tl^ terms of this Security Instrument" (b) is not personally obligated to pay the sums secured by this Security Instrument and (c) agrees tt«t Lender and any other Borrower may agree to extend, modify, forbear, or make any accommodations with regard to the temw of tfiis Security Instrument or the Note wittwut that Borrower's consent 13. Loan Charge*. If tfve loan secured by this Security Instrument is subject to a law which sets maximum loan charges, and that law is finally interpreted so that the Interest or ottier loan charges collected or to be collected in connection with tt)e toan exceed the permined limits, then: (a) arry such loan charge shall be reduced by tfie amount necessary to reduce the charge to the permitted limit" and (b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may choose to make this Form 3070 4/96 (pder may, at its option, require inunedlate payment in full of all sums secured by this Security Instrument. Lender shall not exercise this option if such exercise by Lender is prohibited by federal law as of ttie date of this Security Instrument. Nor shall Lender exercise tNs option if (a) Borrower causes to be submitted to Lender information required by Lender to evaluate the intended transferee as if a new loan were being made to the transferee; (b) Lender reasonably determines that Lander's security wUI not be impaired by the loan assumption and that Xhe risk of a breach of any covenant or agreemem in this Security Irmrument Is acceptable to Lender and (c) such person otherwise qualifies urvler Navajo law ar>d Lessor consents to an assignment of the Homesita Lease described above. If the foregoing conditions (a) ttvough (cl are met. arxJ if Borrower's successor in interest has executed a wrinen assumption agreement accepted in writing by Ler^er. than Lender shall release Borrower in writing from all obligations under this Mortgage and the Note. To the extent permitted by applicable taw. Lander may charge a reasonable fee as a condition to Lerwfer's consem to the loan assumption. Lender also may require the traiuf eree to sign an assumption agreement that Fetm M70 4A« (page 8 of • pegM) 524 is acceptable to Lender and that obligates the transferee to keep all the promises and agreements made in the Note and in this Security Instrument. Borrower will continue to be obligated under the Note and this Security Instrument unless Lender releases Borrower in writing. If Lender exercises such option to require immediate payment in full, Lender shall give Borrower notice of acceleration in accordance with paragraph 14. Such notice shall provide a period of not less than sixty (60) days from the date the notice is deemed to have been received in accordance with paragraph 14 within which Borrower must pay ail sums secured by this Security Instrument and shall explain the remedies available to Lender if Borrower fails to pay such sums prior to the expiration of such period. If Borrower fails to pay these sums prior to the expiration of this period. Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower; provided, however. Lender's right to invoke any remedies under this Security Instrument after the expiration of this period shall be subject to the Navajo Nation's right of first refusal under paragraph 26 to acquire Borrower's interest in the Property. 18. Borrower'i Right to Reinstate. If Borrower meets certain corKJitions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earlier of: (al five (51 days (or such other period as applicable law may specify for reinstatement) before sale of the Property pursuant to any power of sale contained in this Security Instrument; or (b) entry of judgment enforcing this Security Instrument. Those conditions are that Borrower, (a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any default of any other covenants or agreements; (c) pays all expenses reasonably incurred in enforcing this Security Instrument, including, but not limited to, reasonable anorneys' fees; and (d) takes such action as Lender may reasonably require to assure that the lien of this Security Instrument Lender's rights in the Property and Borrower's obligation to pay the sums secured by this Security Instrument shall continue unchanged. Upon reinstatement by Borrower, this Security Instrument and the obligations secured hereby shall remain fully effective as if no acceleration had occurred. However, this right to reinstate shall not apply in the case of acceleration under paragraph 17. 19. Sale of Note; Chang* of Loan Sarvlcar. The Note or a partial interest in ti^ Note (together with this Security Instrument) may bo sold one or more times without prior notice to Borrower. A sale may result in a change in the entity (known as the 'Loan Servicer") that collects monthly payments due under the Note and this Security Instrument. There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note. If there is a change of the Loan Servicer, Borrower will be given written notice of the change in accordarx^e with paragraph 1 4 above and applicable law. The notice will state the name and address of the new Loan Servicer and the address to w(uch payments should be made. The notice will also contain any other information required by applicable law. 20. Hazardous Subttancw. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substar>ce« on or In the Property. Borrower shall not do, nor allow anyone else to do, anything affecting ttw Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storago on the Property of small quantities of Hazardous Substances Xtax are generally recognized to be appropriate to rwrmal residential uses and to maintenance of the Property. Borrower shall promptly give LerxJer written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower leartu, or is notified by any goverrvnental or regulatory authority, that any removal or other remetfiation of any Hazardous Substance affecting the Property is necessary. Borrower shall promptiy take all necessary remedial actions in accordartce with Environmental Law. As used in this paragraph 20, 'Hazardous Substances* are those substances defined as toxic or hazardous substances by Environmental Law and the following substarwes: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides arxl herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph 20, "Environmental Law" means federal laws and laws of the Navajo Nation that relate to health, safety or errvironmental protectiocv 21. Acceleration; Ramediee. Lander shai give notice to Borrower, the Navafo Nation and the Bureau of Indian Aff^rt, prior to acceleration fdowino Borrower's breach of any covenant or agreement In this Security Instrument (but not prior to acceleration imder paragraph 1 7 unless appScable law provides otherwise). The notice shaU ipedfy: (a) the default: (b) the actlan required to cure the default: (ci a date, not less than sixty (601 days from the data the notice Is received by Borrower, by which the default must be cured: and (d) that faOuro to cure the default on or before the date specified In the notice may result In eccaleratlon of the sums secured by this Security Instrument foreclosure by Judicial proceeding and sale of the Property. The notice shafl further inform Borrower of the right to reinstate after a cceler ati on and the right to assert In the foredosuro proceeding the non- existence of a default or any other def erue of Borrower to ecceleratlon and foredosuro. H the default Is not cured Form 3070 4/96 ^agt 6 of • pagtt) 525 on or bef ora th« data spadfled In tha notica, Landar at Its option may requira Immediate payment In full of all sums secured by this Security Instrument without further demarul and may foreclose this Security Instrument by judicial proceeding; provided, however, prior to any sale of tha Property subsequent to such foreclosure proceeding. Lender shall notify tha Navajo Nadon of tha availability of the Property for sale and the Navajo Nation shall ba entitled to exercise its right of first refusal to purchase tha Property in accordance with paragraph 26 below and the terms of that certain Homeslta Lease described above. Lender shall be entitled to seek all reasonable expenses incurred in pursuing the remedies provided In this paragraph 21 , Including, but not limited to, reasonable attorneys' fees, and costs of title evidence. 22. Ground Lease Default. A default by Borrower under the ground lease shall constitute a default under this Securiry Instrument. 23. Release. Upon payment of all sums secured by this Security Instrument, Lender shall release this Security Instrument without charge to Borrower. Borrower shall pay any recordation costs. 24. Redemption Period. If tfiis Securiry Instrument is foreclosed, the redemption period after judicial sale shall be two months. 25. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this Security Instrument, the covenants and agreements of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s) were a part of this Security Instrument. (Specify rider(s) below.l 26. Navajo Nation Right of First Raftisal. Subsequent to Borrower's breach of any covenant or agreement in this Security Instrument, and upon the expiration of any applicable cure period provided Borrower under paragraph 21 above, pursuant to the terms of the HomeSite Lease described above, the Navajo Nation, as Lessor thereunder, shall have the right of first refusal to acquire Borrower's Property (subject to all valid liens and encumbrances) upon either payment in full of aH sums secxired by this Security Instnjment, assumption of the loan secured by tfiis Security Instrument and execution of an assumption agreement acceptable in all respects to Lender or, prior to Lender's sale of the Property, upon execution of a new Note and Security Instrument for all amounts secured by this Security Instrument. irK:luding any and all unpaid interest due fiereunder, and the payment to the Lender of any and all reasoruble costs and expertses incurred by LerxJer in connection with its enforcement of this Security Instrument. This right of first refusal shaB be exercised by notice in writing from the Navajo Nation to Borrower and Lender witfiin sixty (60) days from the defivery of written rfotice from Lender of the availability of the Property. The right of first refusal shall be exercised solely for the purpose of providing a principal residerwe on the Property. BY SIGNING BELOW, Borrower arvl Lender accept and agree to ttw terms and coverunts contained in this Security Instrument, and in any rider(s) executed by Borrower and recorded with it. Lender -Borrower Attest -Borrower Form 3070 4/96 (pag« 7 of 8 pigot) 526 : ) ) ss. > The foregoing instrument was acknowledged before me this [Date) by IBorrower(s) acknowledging! My Commission expires: Notary Public USE ONLY FOft ENCUMBRANCES OF TRUST OR RESTRICTED LAND: CERTIFICATE OF APPROVAL Pursuant to 25 CFR 162.12(c) and authority delegated to the Commissioner of Indian Affairs by the Secretary of the Interior (1 BIAM 2. 1 . Section 1 3|n) of Order 2508) and to Area Directors 1209 DM 8, Secretary's Order Nos. 3 150 and 3177, wi 10 BIAM, Bulletin 13, as amended), the foregoing mortgage of leasehold interest is hereby approved on behalf of the Secretary of the Interior upon the condition that the mortgage is subject to the terms and provisioru of the lease described therein and the regulations of the Secretary of the Interior relating to the leasing of tribal and IrvlivlduaUy-owned trust or restricted lands and upon the condition that the mortgage relates only to the leasehold estates arvl is not to be construed as an er>cumbrar)ce or lien against tribe's or individual owner's titie to the land involved. Date Area Director, Navajo Area Office -(Space Below This Line Reserved For Acknowledgment) — Form 3070 AIM (peg* S of « p«a«t) 527 19. NOTE EXH! SPIT '. NavajoNation ( ) Property Address City Chapter State Zip Code 1. BORROWER'S PRONOSE TO PAY la return for a loan by Lender to Borrower, Borrower promises to pay U.S. $ (this amount will be called "principal,") plus Interest, to the order of Leader. Leader is Borrower understands that Leader cnay transfer this Note. Leader and anyoae who takes this Note by transfer and who is entitled to receive payments uader this Note is called •Note Holder." 2. INTEREST Interest will be charged on unpaid principal until the full amount of principal has been paid. Borrower will pay interest at a yearly rate of %, Borrower will pay the interest rate required by this Section 2 both before and after any default described in Sectioa 4 of this Note. 3. PAYMENTS Borrower will pay principal and interest by making payments each month of U.S. $ Borrower will make such payments on the day of each month begLoning on , 19 Borrower will make these payments every month until all of the principal and interest and any other charges, described below, that Borrower may owe under this Note are paid. Borrower's monthly payments will be applied to interest before principal. If, on Borrower still owes amounts under this Note, Borrower will pay all those amounts, in fiill, on that date, which is called the "maturity date.* Borrower will make such monthly payments at or at a different place if required by Note Holder. 4. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charge for Orerdiie Riymaits If Note Holder has not received the fiill amotint of any monthly payment by the end of calendar days af^r the date it is due. Borrower will pay a late charge to Note Holder. The amount of the charge will be % of the overdue payment of principal and interest, but not less than U.S. $ and not more than U.S. $ Borrower will pay this late charge promptly, but only once on any late payment. (6) Default If Borrower does not pay the fiiU amount of each monthly payment on the date it is due. Borrower will be in default. (C) Notice of Default If Borrower is in default. Note Holder may send Borrower notice as provided in Section 8 below telling Borrower that if Borrower does not pay the overdue amount by t certain date. Note Holder may require Borrower to pay immediately the full antount of principal which has not been paid and all the interest that Borrower owes on that amounL That date must be at least 60 days after the date on v^ch the notice is delivered to Borrower. (D) No Waiver By Note Holder Even if, at a time when Borrower is in default. Note Holder does not require Borrower to pay immediately in fiill as described above. Note Holder will ctill have the right to do so if Borrower is in default at a later time. (E) Payment of Note Holder's Costs and Expenses If Note Holder has required Borrower to pay inuaediately in fiill as described above. Note Holder will have the right to be paid back by Borrower for all of its reasonable costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees. 5. THIS NOTE SECURED BY A MORTGAGE In addition to the protections given to Note Holder under this Note, a Mortgage of even date herewith protects Note Holder from possible losses which might result if Borrower does not keep the promises made in this Note. That Mortgage describes bow and under what conditions Borrower may be required to make imm>H;«f« payment in full of all amounts that Borrower owes under this Note. 6. BORROWER'S RIGHT TO PREPAY Borrower has the right to make payments of principal at any time before they are due. A payment of principal only is known as a "prepayment ' When Borrower makes a prepayment. Borrower will tell Note Holder in writing that Borrower is doing so. A prepayment of all of the unpaid prioci[}al is known as a "full prepayment." A prepayment of only part of the unpaid principal is known as a "partial prepayment." 528 Borrower may make a full prepayment or a partial prepayment without any peaalty. Note Holder will use all of Borrower's prepaymeats to reduce the amouat of principal that Borrower owes under this Note. If Borrower makes a partial prepayment, there will be no changes in the due dates or changes in the amounts of Boaower's monthly payment unless Note Holder agrees in writing to those changes. Borrower may make a full prepayment at any lime. If Borrower chooses to make a partial prepayment. Note Holder may require Borrower to make the prepayment on the same day that one of the monthly payments is due. 7. WAIVERS Boaower waives his or her rights to require Note Holder to do certain things. Those things are: (A) to demand payment of amounts due (known as 'presentment*); (B) to give notice that amounts due have not been paid (known as 'notice of dishonor'). Anyone else who agrees to keep the promises made in this Note, or who agrees to make payments to Note Holder if Borrower fails to keep his or her promises under this Note, or who signs this Note to transfer it to someone else also waives these rights. These persons may include 'guarantors, sureties and endorsers. " 8. GIVING OF NOTICES Any notice to Borrower provided for in this Note shall be in writing and shall be delivered personally to Borrower, unless Borrower elects to receive notice only by certified mail, return receipt requested, to the mailing address designated herein, by checking box (a) below. If Borrower does not elect to receive notice only by certified mail. Borrower may require that personal delivery of written notice be axxxsmpanied by an oral Navajo language translation, by checking box (b) below. In addition, regardless of whether written notice upon Borrower is to be made by personal delivery or by certified mail. Borrower may require that written notice also be given to a debt counseling entity and/or to another person and/or entity, by certified mail, return receipt requested, to the mailing address(es) designated herein, by checking box(es) (c) and/or (d) below, [deck applicable box(es).] a. .... Only by certified mail, return receipt requested b Written personal delivery accompanied by oral Navajo language translation c Notice to the debt counseling entity selected by Borrower: Name of entity:... Address: Contact person: ,. Telephone: d Notice to other individual or entity: Name: Address: Contact Pexsoo (if toy) • Telephone: Notice by personal delive^r ahaU be deemed to have bceo recdTed on die date delivered with proof of delivery thereof. Notice by certified mail dudl be deemed to hare been receiTed on the date shown on the return receipt received by Note Holder, or, if no leoeipt is returned to Note Holder, twenty-one (21) days tftet mailing. Notice to Borrower shall be deemed to hsTe been receiTed on the latest date that notice is nude in accordance with each of the methods selected by Borrower in this Note. Any notice to Note Holder shall be Arrmrd to have been given to Note Holder by mailing it by fiat class mail to Note Holder's address dCTgnatrd herein. Any party, debt counseling entiQr tailta other person may change the address to which notice shall be delivered or mailed by notice to the other paxQr(ies), entity and/or person. 9. OBLIGATIONS OF PEKSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amoimt owed. Any person who is a guarantor, surety, or endorser of this Note is also obligated to do these things. Any person who takes over Borrower's rights or obligations under this Note will have all of Borrower's rights and must keep all of Borrower's promises made in this Note. Note Holder may enforce its rights under this Note against each person individually or against all of such persons together. This means that any one of such persons may be required to pay all of the amounts owed under this Note. 529 10. GOVERNING LAW; SEVERABILITY This Note shall be goveraod by the Uw of the Navajo Nation and applicable federal law. The courts of the Navajo Nation shall have sole tad exclusive Jurisdictioo with respect to all controversies or claims relating to or arising out of this Note. In the event that any provision or clause of this Note conflicts with applicable law, such conflict shall not affect other provisions of this Note which can be given effect without the conflicting provision. To this end the provisions of this Note are declared to be severable. 11. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the mterest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then: (i) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Note Holder may choose to make this refund by reducing the principal Borrower owes under this Note or by making a direct payment to Borrower. If a refund reduces principal, the reduction will be treated as a partial prepayment. Borrower Borrower Borrower (Sign Original Only) ACCEPTANCE: Lender Anest 530 DRAFT - DRAFT - DRAFT - DRAFT - DRAFT - DRAFT - DRAFT - DRAFT Civil Rights in Indian Country- -Tribal Court Decisions 1988-92 by Jane Max^, Esq April 30, 1993 IMTRODDCTION This memorandum analyzes civil rights cases decided by tribal courts over the last five years as reported in the Indian Law Reporter. Research is current up to April 23, 1993. No reported civil rights decisions for 1993 were located. This memorandum covers cases brought expressly under the Indian Civil Rights Act, 25 O.S.C. Section 1301--1326 (■ICRA'), as well as other cases that impact the civil rights of tribal members based on tribal constitutions or other law, whether or not the ICRA is cited. The vast majority of cases address claims brought for violation of the guarantees of due process and equal protection. A number of cases deal with specific rights such as the right of a criminal defendant to a fair trial. Still other cases focus on tribal sovereign immunity from stiit. This memorandum groups the cases discussed by topic. Where a case involves more than one topic. It is discussed once and cited again as appropriate. I. REVIEW OP TRIBAL COURT DECISIONS A. DUE PROCESS . 1. Removal from Office and Other Bnq)loyment Issues. In Kinslow v. Business Coomittee of the Citizen Band Potawatomi Tribe, 15 Indian L. Rep. 6007 (C.B.Pot.Sup.Ct . Feb. 17, 1988), the Citizen B2uid Potawatomi Tribe's Business Committee removed a committee member. He sued, claiming that his due process rights had been violated. He alleged that the business commi ttee, composed of members who voted for his removal, was not an impartial tribunal because the committee members were the alleged victims of his claimed misconduct that precipitated the removal action. The Citizen Beind Potawatomi Supreme Court held that the plaintiff's rights were not violated. The court noted that due process requires fair treatment, including notice and the right to be heard. However, the court noted that the ICRA allows tribes to structure their governments as they deem appropriate. The Potawatomi constitution authorized removal of a business committee member by other commi ttee members. In contrast to criminal proceedings, the removal proceedings need not be conducted in front of an impartial tribunal. Similarly, in HcClean v. Bailey, 15 Indian L. Rep. 6013 (N.Chy.Tr .Ct. April 22, 1988), the court found no due process violation where a teiqioreiry board member of the Northern Cheyenne Housing Authority was removed from her position on the board and another person appointed. The court found that the plaintiff did not have a permanent appointment to the board, did not have a contract and, thus, laclced a property right in the board position. The court's decision, in part, was based on the procedural posture of the case: a petition for an extraordinary writ. The court found that plaintiff had not demonstrated a clear and indisputable right to a board position necessary for the granting of an extraordinary writ. In re Certified Question II: Navajo Nation v. MacDonald, 16 Indian L. Rep. 6086 (Nav.Sup.Ct. April 13, 1989), presented a different approach. In this case, the Navajo Supreme Court addressed the due process requirements that must be met in placing the tribal Chairmnn or Vice-Cbalnian on administrative leave. The court reached the issue prior to b«lng presented with an actual claim for violation of rights, based on tba Window Rock District Page 1 531 Court's certification of a number of questions to the supreme court. The supreme court held that the folloving procedures must be provided: (1) the Tribal Council must act in a properly convened session with a quorum present; (2) an agenda for voting must be adopted; (3) the resolution placing the officials on administrative leave must be approved by a majority of the Council present; and (4) the resolution must not be a bill of attainder. The court expressly adopted the Anglo-American definition and test for whether a resolution is a bill of attainder. In Southern Dte Public Housing Authority v. Pinnecoose, 18 Indiaui L. Rep. 6115 (S.nte Tr.Ct. May 13, 1991), the court addressed certain constitutional claims arising from defendant Pinnecoose 's counterclaims against the public housing authority. Although the factual and procedural posture of the housing authority and defendant Pinnecoose is not entirely clear from the opinioning a proceeding challenging her wrongful termination and violation of her due process rights. Pinnecoose claioed that the housing authority came to know that she was not responsible for missing funds but took no steps to dismiss the action against her. The housing authority moved to dismiss the counterclaim contending defendant failed to state a claim for abuse of process. The court denied the motion, finding that plaintiff's allegations, if true, stated a claim. The housing authority argued in the alternative that Pinnecoose should be required to prove that the housing authority's claims were a sheun and had no realistic basis. The housing authority argued that the fundamental right to petition for redress of grievances can only be denied if the process is used for improper purpose. As such, the housing authority claimed that defendant should be required to prove that the claims weria a sham, a recognized exception to the right to petition for redress. The court agreed that defendant should be required to show that the housing authority's claims were not permitted under the right to petition for redress because not supportedile in law or fact. In Davis v. Keplin, 18 Indian L. Rep. 6148 (Turt.Mt. Tr.Ct. Sept. 6, 1991), em employee of the Turtle Mountain Tribe alleged he had been deprived of due process when he was terminated trlthout a hearing. The es^loyee claimed that be was a permanent employee entitled to a hearing under the personnel manual. The court held that it had subject matter over the case and the claims were not barred by the doctrine of sovereign immunity. However, the court ruled that the defendants in their individual capacity were entitled to qualified immunity. The court reasoned that the employee's claims amounted to am allegation that the tribal officials were mistalcen when they determined that the employee was a temporary employee. In that regard, the court believed it would be unfair to rule that the ICRA abrogated their qualified immunity. In Stone v. Swan, 19 Indian L. Rep. 6093 (Colv. Tr.Ct. Apr. 15, 1992), a business council member irtio was removed from office based on a claim of gross misconduct in office that his removal violated his right to due process because he was not provided adequate notice of the proceedings against him. The Tribal Court of the Colville Confederated Tribes began by noting that it bad inherent jurisdiction to review governmental actions to ajsure compliance with the tribal constitution. After determining that sovereign immunity did not bar review of the claim, the court found that the notice given to the member of the charge against him was adequate. The court found that, after being given notice, the member proceeded to answer the charges. The member did not object to the adequacy of time given to respond or in any way claim that he was being prejudiced by the notice or hearing process. The court found that the notice and process provided was adeqiate and satisfied traditional notions of due process, and further found that the member waived his right to any further procesa. 2. Elections. Page 2 532 A number of courts have addressed election requirements imposed by tribal law or the Indian Civil Rights Act. In Kavena v. Hamilton, 16 Indian L. Rep. 5061 (Hopi Tr.Ct. Aug. 15, 1988), the tribal court enjoined a controversial tribal election involving the restructuring of traditional tribal government until guidelines and standards had been adopted that would make the elections conform to the requirements of the ICKA. On appeal, the Hopi Tribal Appellate Court affirmed the tribal court's decision. Kavena v. Hopi Tribal Court, 16 Indian L. Rep. 6063 (Hopi Tr.App.Ct. Mar. 21, 1989). The court reasoned that cheuiges to the referendum could lead to confusion, and the constitutional guarantees of notice and sufficient opportunity to become Informed about the elections had not been provided. In Ponca Tribal Election Board v. Sna)ce, 17 Indian L. Rep. 6085 (Ct.Ind.App. Ponca Kov. 10, 1988), the appellate court faced a claim that the tribal election board's conduct deprived certain potential candidates for public office of due process. The court held that the potential candidates had failed to exhaust their tribal remedies and remanded the case to the Ponca Tribal Election Board for a determination consistent with certain guidelines set forth in the court's opinion. The Shoshone Bannock Tribal Court reached a similar conclusion in George v. Shoshone Bazmock Tribes, 16 Indian L. Rep. 6084 (Sho. -Ban. Tr.Ct. Hay 10, 1989). In that case, the plaintiff alleged that the results of the primary election were invalid because one of the chosen candidates was not in compliance with the residency requirements. The court dismissed the action on the basis that the plaintiff failed to exhaust her tribal remedies. The court recognized, however, that formal procedures for such tribal remedies did not exist, and the court established proper procedures to follow. The court noted that its subsequent review, if any, would address whether due process and equal protection had been accorded to plaintiff. In Committee for Better Tribal Government v. Southern Dte Election Board, 17 Indian I.. Rep. 6095 (S.Ute Tr. Ct. Aug. 13, 1990) , petitioners alleged that the tribal election board failed to take steps to remedy certain Irregularities In a recall election, which resulted in a violation of their due process rights. The court rejected the election board's contention that the board, not the court, waasoned that absent legislation prohibiting assertion of tribal court jurisdiction. It would undermine the judicial process to fail to take jurisdiction over the claimed violations. Having asserted tribal court jurisdiction over the recall election issue, the court retained for trial the claim that petitioners had been denied due process of law. The Southwest Intertribal Court of Appeals affirmed the findings of the trial court that allowance of a proxy vote In a recall election was a violation of due process. Southern Ute Election Board v. Comm. for Better Tribal Govt., 18 Indian L. Rep. 6144 (S.N. Inter tr.Ct.App. Aug. 19, 1991). A candidate whose name had been removed from the ballot challenged as Illegal her removal from the ballot in Apache Election Board v. Nlldes, 18 Tnd-inn I,. Rep. 6033 (Ct.Ind.App. Apache, Dec. 7, 1990). The couxt of appeals affirmed the trial court ' s determination that the election board had unlawfully Imposed eligibility req^ulrements in excess of those set forth in the tribal constitution, 2Uid held the election results invalid. In Bennett v. Navajo Board of Election Supervisors, 16 Indian L. Rep. 6009 (Nav.Sup.Ct. Dec. 12, 1990), the Navajo Board of Election Super-visors had disqualified the appellant as a presidential candidate In a primary election based on a tribal statute requiring all candidates for the office of president or vice-president to have previously served as an elected official or as an employee of the Tribe. The disqualified candidate filed an action claiming the statute violated her rights to due process and Page 3 533 equal protection. On appeal, the Navajo Supreme Court agreed. Citing specific federal and tribal law, as well as tribal custom, the court first established the appropriateness of judicial review of the statute and the decision of the boacted the fundamental right to participate in the political, governmental process and that the statutory restriction was unreasonable because a number of candidates might have as much or more experience and Icnowledge of government processes than elected officials or government employees. 2. Gender Discrimination. In Muckleshoot Indian Tribe v. Moses, 16 Indian L. Rep. 6073 (Muckleshoot Tr.Ct.App. J^r. 19, 1988), a woman convicted under tribal law of fishing with an unauthorized person aboard her boat claimed that the tribal ordinance discriminates against women. The woman argued that the prohibition against nonmember fishing discriminated against women because fewer tribal women f-y^r, tribal men can exercise their treaty fishing rights without assistance of a nomnember spouse. The court declined to reach the constitutional issue directly because the claim was unsupported by any credible evidence. 3. Marital Status Discrimination. In SLTi unusual case, Arizona Public Service Co. v. Office of Navajo Labor Relations, 17 Indian L. Rep. 6105 (Nav.Sup.Ct. Oct. 8, 1990) , the court affirmed the finding of the tribal labor relations board that a company policy against nepotism resulted in marital status discrimination in violation of Navajo law. The company policy had resulted in loss of a number of jobs for tribal members . The court determined that the Navajo Preference in Employment Act ("NPKA") prohibited discrimination, including discrimination on the basis of marital status, and that the company policy against nepotism resulted in such discrimination. The court discussed at length the Tribe's authority to enact the NPKA. Having established the appropriateness of the NPKA, the court reviewed the fundamental right of marriage and its particular importance in tribal life. The court held that the antl -nepotism policy as it related to marital status resulted in unlawful discrimination. In Menominee Tribal Housing Authority v. Tucker, 18 Indian L. Rep. 6131 (Men.Tr.Ct. June 17, 1991), supra at 8, the court held that a tribal housing authority regulati on requiring a public housing tenant to file proof of a legal separation in order to be considered for a rent adjustment violates the tenant's rights to equal protection. The court found the classification unreasonable and further found that a regulation requiring a legal separation in order to be eligible for a rent reduction infringed upon the inherent right to marriage and family. 4. Child Custody In a child custody action, Griffith v. NlDcie, 18 Indian L. Rep. 6058 (N. Pins . Intertr .Ct. App. Jan. 10, 1991), the court of appeals held that a tribal code provision precluding the father of an illegitimate child from custody and care of the child violated the equal protection clause of the ICRA and the federal Page 6 536 constitution. The statute expressly stated that the mother of an illegitimate child was entitled to custody. The court noted that the father had acknowledged paternity and had participated in the support and care of the child since birth. On that basis, it was unreasonable and unconstitutional to deny custody to the father without an examination into the best interests of the child. The court remanded the case to the trial court for a determination of the best interests of the child. 5. Taxation In Public Service Co. of New Mexico v. Chairman, Tax Protest Panel, 18 Indian L. Rep. 6097 (Jic.Ap.Tr .Ct. May 14, 1991), the Public Service Company challenged imposition of a possessory interest tax on interests held in fee under a lease or through an easement or right-of-way. The company claimed that the tax violated the equal protection clause because it unreasonably discriminated against non-residents. The company argued that the tax unfairly shifted the revenue burdens of the tribe onto nonresident customers of the utility company. The court rejected this argument and ruled that the teoc did not violate the right to equal protection. The court reemphasized the t£ucation authority of tribes. The court then discussed the specific taxation scheme, stating that the possessory tax classified property based on usage, not upon the status of the owner or taxpayer. The court noted that nonresident owners may receive the same exemptions as resident owners receive, and resident owner of certain classes of property are subject to the same tax as nonresident owner of the seune class of property. C. CRIMINAL TRIAL PROCEDURES. 1. Right to Counsel emd Effective Assistance of Counsel. In Liumni Indian Tribe v. Edwards, 16 Indian L. Rep. 6005 (Lummi Tr.Ct.App. June 10, 1988), the court rejected appellant's claim that she was denied her right to counsel and effective assistance of counsel. The court disagreed that she was given court was not sympathetic to her failure to secure assistance until a few days before trial. In Navajo Nation v. MacDonald, Sr., 17 Indian L. Rep. 6124 (Nav. Sup. Ct. Sept. 21, 1990), fo\ir attorneys appointed to represent MacDonald in criminal proceedings and wishing to withdraw as counsel filed a petition for writ of prohibition to force the district court to allow them to withdraw. The Navajo Supreme Court recognized important constitutional issues were at sta]ce, including the attorneys' claims of denial of equal protection as well as MacDonald 's right to counsel. The court remanded the case to the trial court for consideration of the facts as well as the law relevant to the claims. In Navajo Nation v. MacDonald, Sr., 17 Indicin L. Rep. 6126 (Nav. Sup. Ct. Sept. 26, 1990), the supreme court determined it laclced jurisdiction to act upon the petition for writ of prohibition pending determination by the district court . In a later proceeding in the criminal case against MacDonald, Sr., the supreme court affirmed the convictions. Navajo Nation v. MacDonald, Sr., 19 Indian L. Rep. 6053 (Nav. Sup. Ct. Dec. 30, 1991) . The court rejected claims that MacDonald had been denied his right to counsel and that he had ineffective assistance of counsel. In Navajo Nation v. MacDonald, Jr., 19 Indian L. Rep. 6079 (Nav. Sup. Ct. February 13, 1992), the court rejected similar claims made by MacDonald, Jr. The court found that counsel were con^etent and provide an excellent defense. In a separate but related case. Boos v. Yazzie, 17 Indian L. Rep. 6115 (Nav. Sup. Ct. Sept. 24, 1990), the court upheld the district court's refusal to allow attorneys appointed to represent MacDonald, Jr. in criminal proceedings to withdraw as counsel. The court rejected the attorneys' argument that their appointment constituted a ta)(ing of private property for public use without Pase 7 537 just compensation. In violation of the Navajo Bill of Rights. Citing federal case law, the court held that appointment of an attorney member of the Navajo Bar to represent an indigent defendant is not talcing of private property. 1. Speedy Trial. In Lummi Indian Tribe v. Bdwards, supra, appellant moved for dismissal of her case based on a lapse of approximately 18 months between the time of her arrest and arraignment and the trial. The court held that even under the most liberal interpretation of the ICRA, dismissal of charges against the appellant was not required. The court found that appellant had not shown she would be prejudiced by proceeding with the trial and, in addition, the court found that the appellant herself caused the delay. In Navajo Nation v. MacOonald, Jr., 19 Indian L. Rep. 6079 (Nav.Sup.Ct. February 13, 1992), supra, the court summarily rejected the contention that MacDonald, Jr. was denied his right to a speedy trial. The court stated that nine months passed between the complaint being filed and trial, and only six and one-half months passed between arraignment ar of suits against tribal governments. Those decisions generally have also been well- reasoned. Tribal courts consistently have recognised that waivers should be narrowly interpreted. Just as is found among the feribes are supported by statutory cites, ease precedent and policy considerations. COMCI,nSI(» The cases discussed in this asaorandum make clear that tribal courts are protecting the righta of tribal ataabers and upholding important principles of judicial review. The courts are attempting to meld tribal cuatoa and noraa with ^plicable legal doctrines. The decisions show iapartiality and careful thought. Although the courts are fledgling and raquira greater reaourcas to develop in their sophistication, it is clear that people in Indian country can safely turn to the courfcs irtiaa they feal their rights 543 IKDIAN SOVEREIGNTY SYMPOSIUM IX Tulsa, Oklahoma June 4, 1996 By Sandra Day O'Connor Associate Justice, Suprexse "Court of the TTnited States "Lessons from the Third Sovereigm: ' Indian Tribal Courts' Today, in the.Onited States, we have three types of sovereign entities -- the Federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country. The part played by the tribal courts is expanding. As of 1992, there were about 170 tribal courts, with jurisdiction encompassing a total of perhaps one million Americans. Most of the tribal courts that exist today date from the Indian Reorganization Act of 1934. Before the Act, tribal judicial systems were based around the Courts of Indian Offenses, which were set up in the 1880 's by the federal Office of Indian Affairs. Passage of the Indian Reorganization Act allowed the tribes to orgcinize their governments, by drafting their own constitutions, adopting their own laws through tribal councils, and setting up t^eir own court systems." ~By that time, however, enormous disruptions in customary Native American life had been wrought by factors such as forced migration, settlement on the reservations, the allotment system, and the imposition of unfamiliar Anglo-American institutions. Consequently, in 1934, most tribes had only a dim memory of traditional dispute resolution systems and were not in" a position to recreate historical forms of justice. Swift replacement of the current systems by traditional dispute-settling institutions was not possible. Therefore, while a few tribes, 'such as the New Mexico Pueblos, have "traditional courts" based on Indiem custom, most modem reservation judicial systems do not trace their roots to traditional Indian fora for dispute resolution. Rather, because the tribes were familiar with the regulations cuid procedures of the Bureau of Indian Affairs, that model provided the framework for most of the tribal courts. Nevertheless, mcmy tribes today attempt to incorporate traditional tribal values, symbols", and customs into their courtrooms and decisions . Some tribal courts , in proceedings that othein^ise differ little from what would be seen in State or Federal court, have incorporated traditional features of Indian dispute-resolution to try to infuse the proceedings with values of consensus and community. For example, the placement of litigants and court personnel in a circle aspires to minimize the appearance of hierarchy and highlight the participation and needs 544 of the entire group in place of any one individual . The tribal coxirts, while relatively yoxing, are developing in leaps and bounds. For exatr^le, meuiy tribes are working to revise their tribal constitutions smd to codify their civil, regulatory, and criminal laws to provide greater guidance and predictability in tribal justice. At the same time, tribeshave expanded the use of traditional law. Many tribal codes now combine unique tribal law with adapted State -and Federal law principles. The number of law- trained .-Native Americans has increased. Both State and Federal courts continue to recognize the tribal courts as important fora for resolution of reservation-based claims involving both Indians and non- Indians. Tribal courts today face signif iccmt challenges . They must work to satisfy the sometimes-coii^jeting demands of those inside and outside the tribal communities. But while the challenges are great, the effective operation of tribal courts are essential to promote the sovereignty and self -governance of the Indian tribes. As the Court on which I serve has recognized, "Tribal courts play a vital role in tribal self-government, smd the Federal Government has consistently encoxiraged their development." Iowa Mut ■ Ins. Co. V. LaPlante . 480 U. S. 9 (1987) . To fulfill their role as an essential brauach of tribal government , the tribal courts mxist provide a forum that commands the respect of both the tribal comrauhity and of non-tribal courts, governments, and litigants. To do so, these courts need to be perceived as both fair and principled. And at the same time the courts seek to satisfy these conditions, they strive to embody tribal values - values- that, at times, suggest the use of different methods than those used in the Anglo-Americcin, adversarial, common-law traditioni While tribal courts now include within their jurisdiction a broad range of issues, they naturally take a particular interest in the issues which are most pressing to the population which they serve. Issues related to the family, and to the control of natural resources such as Ismd, water, oil, fish, and timber, are of particular interest to the tribal courts, both because important tribal traditions are inplicated and because these issues have a vital and recxirring impact on the welfare of the community. In addressing the matters that come before them, the decision-making process by tribal co\irts need not, and does not always, replicate the process vmdertaJcen in State and Federal courts. Tribal courts often act more quickly, and more informally, than do their co\interpart8 . The factors considered to reach a decision, the procedures used, and the punishment or resolution arrived at/ may differ in reflection of tribal values. Tribal court judges frequently are tribal members who seek to. 545 infuse cultural values into the process. While tribal customs and beliefs vary, of course, from tribe to tribe, some general patterns emerge. In place of the Anglo- American system's emphasis on punishment and deterrence, with a "win-lose" approach that often drives parties to adopt extreme adversarial positions, some tribal judicial systems seek to achieve a restorative justice, with emphasis on restitution rather than retribution and on keeping harmonious relations among the members of the community. To further these traditional Native American values, tribal courts may employ inclusive discussion and creative problem- solving. The focus en traditional values in contemporary circumstances has permitted tribal courts to conceive of alternatives to conventional adversarial processes. The development of different methods of solving disputes in tribal legal systems provides the tribal courts with a way both to incorporate traditional values and to hold up an example to the nation about the possibilities of alternative dispute resolution. New methods have much to offer to the tribal communities, and much to teach the other court systems operating in the United States. For about the last fifteen years, in recognition of the plain fact that the adversarial process is often not the best means to a fair outcome, both the State emd Federal systems have tiimed with increasing interest to the possibilities offered by mediation, arbitration, and other forms of alternative dispute resolution. In many situations, alternative methods offer a quicker, more personal, and more efficient way of arriving at an answer for the parties' difficulties. The special strengths of the tribal courts - their proximity to the people served, the closeness of the relations among the parties and the court, their often greater flexibility and informality - give tribal coiirts special opportunities to develop alternative methods of dispute resolution. Many of the issues which come mopt frequently to tribal courts lend themselves to alternative methods of resolution. For example, vital issues touching on domestic relations, child custody, probate, tort, and criminal prosecutions, may be solved more satisfactorily using a non- adversarial method. A cooperative process is particularly useful where family issues, particularly related to children, are involved, because the process helps the parties to work together to arrive at a fair and workable solution. An adversarial process, in contrast, may worsen the strains between members of the family, and create new conflicts to fuel the old. Too, family problems lend themselves to methods of resolution shaped by the pairticular character of individual tribal courts, because family issues - involving child custody, juvenile crimes, marriage, and inheritauice - are ones where tradition provides a critical guidance for social behavior. 546 Many tribal courts have already developed methods that meet the needs of their communities and use the underlying traditions and values to the extent possible. A good example is the Navajo Peacemaker Court, which vas formed in 1982 by the Judicial Conference of the Navajo Nation to provide a forum for traditional mediation. The Navajo Peacemaker Court is now an active, modem legal institution which incorporates traditional Navajo concepts into a judicial process for dispute resolution. The process is directed by a mediator, who acts to guide and encourage parties to resolve their dispute. The process relies " on parties' participation and commitment to reaching a solution, rather than on the imposition of a judgment by an impersonal decisionmaker. The" Navajo Peacemaker Court successfully blends beneficial aspects of both Anglo-American and Indian traditions. The Northwest Intertribal Court System, a consortium of 15 tribes in the Pacific Northwest, was set up in 1979 to provide court services and personnel to the individual tribal courts of member tribes . Several of the member tribes have supplemented their formal tribal court system with Peacemaker programs - programs that are based on traditional values of consensus and respectful attention to individuals. The Indian communities' interest in the development of alternatives for dispute resolution has led to the development of the Indian Dispute Resolution Services, a group formed about six years ago to provide training in conflict resolution. That organization is helping Indian communities to settle xinresolved disputes around the county and to provide fair and timely outcomes for parties. Mediation can be effective not only within a tribal community, but also between the tribe and other groups. The Native American Heritage Commission and the Community Relations Service of the United States Department of Justice have collaborated on several mediation cases involving the repatriation of Indian remains. Some mediations took place between tribes and developers who had discovered remains at construction sites; others took place between tribes and universities that wanted the remains for academic research. Mediation worked to settle successfully the many conflicts that arose over the proper treatment and assignment of such euicestral remains and funerairy objects. The development of methods of alternative dispute resolution may help tribal courts to expand the exercise of their authority over more civil cases. Historically, the great majority of cases heard in tribal coiirte involves criminal matters, with relatively few civil disputes decided. This might reflect the time emd expense required for civil cases, the coiirts' reluctance to handle civil cases because of a lack of familiarity or advanced legal training, or perhaps because tribal courts serve a less . 547 litigious community. Development of alternative methods of dispute resolution allows the tribal courts to take advantage of their strengths in order to provide efficient amd fair resolution of such conflicts. It is to be hoped that the tribal courts will continue to explore additional possibilities for alternative methods of dispute resolution. These methods need not be limited in scope to disputes within a tribe, but could be used also to resolve conflicts between one 'tribe and another , and between a tribe and the State and Federal government, political vinit-s, private investors, or contractors. At its best, such a method would provide a cooperative, relaxed forum for the conclusion of disputes, with use of a process that would include all interested parties to ensure their involvement and their consent; and, at the same time, offer important practical advemtages by accomplishing its tasks more agreeably, more quickly, and less expensively than the adversarial mode. By expanding such techniques, the tribal courts may set " out the paradigm for other courts to follow. While tribal courts seek to incorporate the best elements of their own customs into the courts' procedures ouid decisions, the tribal courts have also sought to include useful aspects of the Anglo-American tradition. For example, more and more tribal judicial systems have established mechanisms to ensure the effective appealability of decisions to higher courts. Too, some tribes have sought to provide tribal judiciaries with the authority to conduct review of regulations amd ordinances promulgated by the tribal council. And one of the most important initiatives is the move to ensure judicial independence for tribal judges. Tribal courts are often subject to the complete control of the tribal councils, whose powers often include the ability to select and remove judges. Therefore, the courts may be perceived as a subordinate arm of the councils rather than as a separate auid equal brauich of government. The existence of such control is not conducive to neutral adjudication on the merits and can threaten the integrity of the tribal judiciary. Some tribes, like the Cheyenne River Sioux Tribe in South Dakota, have amended their constitutions to provide for formal separation of powers. . ..;.-,• -. - ■■,■-■■' ■ ':-: A vital improvement made by tribal judicial systems is the growing number. of law-trained, well -prepared, people participating in the system, both as lawyers and judges. Many tribal judges , have taken steps to craft ethical guidelines and to institute tribal bar requirements for the lawyers who practice before them, and have participated themselves in further training forthe task of judging. Bpth;lawyers and judges must knowleidgeeJole -anid principled if .the^ tribal, j'^dlpiai" systems are to" engender ; confidence In" the" f aimess_ and intearity of their courts. -■ Whether in tribal court, state court, "Dr- federal coxirt, the ^ 548 exercise of a court's jurisdiction is a serious matter, and all persons - Indian cind non-Indicin - who come before a court are entitled to just and reasoned proceedings. The judicial systems of the three sovereigns - the Indicm tribes, the federal government, and the States - have much to teach one another. While each system will develop along different lines, each can take the best from the others. Just as "a single courageous State may, if its citizens choose, serve as a laboratory," New State Ice Co. v. Liebmann . 285 U. S. 310, 311 (1931) (Brandeis, J. , .dissenting) , for the development of laws, ... the experiments amd examples provided by the various Indian tribes and their courts may offer models for the entire nation to follow. To give but one example, the Navajo Peacemalcer Court has been studied not only by officials within this country, but also from Australia, New Zealand, Canada, and South Africa, for possible use. The Indian tribal courts' development of further methods of dispute resolution will provide a model from which the Federal and State courts can benefit as they seek to encompass alternatives to the Anglo-American adversarial model. And, while tribal courts currently seek to expand the role of traditional law in their judicial systems, they may well choose to incorporate some of the features of the Anglo-Americcin system, such as access to cm effective appeal axid the independence of the judiciary. The role of tribal courts continues to expand', and these courts have an increasingly importemt role to play in the administration of the laws of our nation. The three sovereigns can learn from each other, and the strengths and weaknesses of the different systems provide models for courts to consider. Whether tribal court, state court, or federal court, we must all strive to make the dispensation of justice in this coiontry as fair, efficient, and principTed "as we can. 549 T.l § 501 GENERAL PROVISIONS Ch. 5 HISTORY CJY-55-85, July 25. 1985. ACyVP- 101 -69, April 15. 1969. Revision note. Reworded for grammatical content, statutory form, and clarity. § 502. Spellmg of "Navajo" All use of the name "Navajo" shall use the spelling "j". not "h". HISTORY C;Y-55-85, July 25, 1985. ACAP- 10 1-69, April 15, 1969. Revision note. Reworded for grammatical content, statutory form, and clarity. Subchapter 2. Navajo Sovereign Immunity Act HISTORY Redesignation. Sections 351-355 were redesignated §§551-555 for numerical consistency. § 551. Establishment There is established the Navajo Sovereign Immunity Act. HISTORY CMY-42-80, May6. 1980. Revision note. Slightly reworded for purposes of statutory form. § 552. Definitions For the purposes of this subchapter, "Navajo Nation" means: A. The Navajo Nation Council; B. The President, Navajo Nation; C. The Vice-President, Navajo Nation; D. The Delegates to the Navajo Nation Council; E. The Certified Chapters of the Navajo Nation; F. The Grazing Committees of the Navajo Nation; G. The Land Boards of the Navajo Nation; H. The Executive Branch of the Navajo Nation government; I. The Judicial Branch of the Navajo Nation government; J. The Commissions of the Navajo Nation government; K. The Committees of the Navajo Nation Council; L. The Legislative Secretary of the Navajo Nation Council; M. The Enterprises of the Navajo Nation; N. Navajo Community College. HISTORY CMY-28-88.May6, 1988. CMY-42-80, May 6, 1980. 10 550 Ch. 5 GENERAL PROVISIONS T.l § 554 § 553. General principles of sovereign immunity A. The Navajo Nation is a sovereign nation which is immune from suit. B. Sovereign immunity is an inherent attribute of the Navajo Nation as a sovereign nation and is neither judicially created by any court, including the Courts of the Navajo Nation, nor derived from nor bestowed upon the Navajo Nation by any other nation or government. C. The Courts of the Navajo Nation are created by the Navajo Nation Council within the government of the Navajo Nation and the jurisdiction and powers of the courts of the Navajo Nation, particularly with regard to suits against the Navajo Nation, are derived from and limited by the Navajo Nation Council as the governing body of the Navajo Nation. D. The special authority of the Congress of the United States relating to Indian affairs derives from and is consistent with the recognition and fulfillment of its unique tnist obligations to protect and preserve the inherent attributes of Indian tribal self-government. E The Navajo Nation Council has enacted the Navajo Nation Bill of Rights in recognition of the interests and ri^ts of the People of the Navajo Nation, from whom the sovereignty of the Navajo Nation derives, as express self-limitations upon the exercise of its sovereign powers and has provided herein for specific remedies and redress for individuals from the government of the Navajo Nation as only the governing body of the Navajo Nation is empowered and responsible to determine on behalf of the People of the Navajo Nation. F. Neither the President, Navajo Nation, the Vice-President, Navajo Nation, nor the delegates to the Navajo Nation Council may be sub- poenaed or otherwise compelled to appear or testify in the Courts of the Navajo Nation or any proceeding which is under the jurisdiction of the Courts of the Navajo Nation concerning any matter involving such officiars actions pursuant to his/her official duties. HISTORY CMY-28-88.May6. 1988. CMY-42-80.May6. 1980. $ 554. Exceptions to the general principles of sovereign immunity; purpose and intent A. The purpose and intent of the Navajo Sovereign Immunity Act is to balance the interest of the individual parties in obtaining the benefits and just redress to which they are entitled under the law in accordance with orderly process of the Navajo government, while at the same time protecting the legitimate public interest in securing the purpose and benefits of their public funds and assets, and the ability of 11 551 T.l § 554 GENERAL PROVISIONS Ch. 5 their government to function without undue interference in further- ance of the general welfare and the greatest good of all people. All of the provisions of this Act shall be applied as hereinafter set forth in order to carry out this stated purpose and intent of the Navajo Nation Council, as the governing body of the Navajo Nation. B. The Navajo Nation may be sued in the Courts of the Navajo Nation when explicitly authorized by applicable federal law. C. The Navajo Nation may be sued only in the Courts of the Navajo Nation when explicitly authorized by Resolution of the Navajo Nation Council. D. Any exception to the immunity of the Navajo Nation and as- sumption of liability pursuant to this Act does not apply in circum- stances in which such liability has been or is hereafter assumed by third parties, including any other governmental body or agency, nor for which the Navajo Nation has been or is hereafter indemnified or held harmless by such parties, to the extent of such assumption or indemni- fication of liability. Nor does any liability assumed by the Navajo Nation pursuant to this Act extend to any party or parties as third party beneficiary or otherwise, other than the party or parties to whom such liability is expressly assumed, and then only to the extent, circumstances and conditions specified thereby. E. Any liability of a public entity or public officer, employee or agent assumed pursuant to this Act is subject to any other immunity of that public entity or person and is subject to any defense which would be available to the public entity or person if they were private entities and/or persons. 1 . A public entity is not liable for any injury or damage resulting from an act or omission of any public officer, employee or agent if that party is not liable; nor for the actions or omissions of public officers, employees or agents which are determined to be contrary to or without authorization or otherv^se outside or beyond the course and scope of such officer's, employee's or agent's authority. 2. This section does not immunize a public officer, employee or agent ft-om individual liability, not within Navajo Nation insurance coverage, for the full measure of the recovery applicable to a person in the private sector, if it is established that such conduct was outside the scope of his or her employment and/or authority. 3. Volunteers duly authorized by the Navajo Nation or any political sub-division thereof, in performing any of their authorized functions or duties or training for such functions or duties, shall have the same degree of responsibility for their actions and enjoy the same immunities as officers and employees of the Navajo Nation and its governmental entities performing similar work. 12 552 Ch. 5 • GENERAL PROVISIONS T.l § 554 F. The Navajo Nation may be sued only in the Courts of the Navajo Nation with respect to any claim which is within the express coverage and not excluded by either commercial liability insurance carried by the Navajo Nation or an established Navajo Nation self-insured and/or other claims program of the Navajo Nation government, approved and adopted pursuant to the laws of the Navajo Nation and further, subject to the following provisions and limitation: 1 . No judgment, order or award pertaining to any claims permit- ted hereunder shall be for more than the limits of valid and collect- able liability insurance policies carried by the Navajo Nation covering each such claim and in force at the time of such judgment, including deductible amounts to the extent appropriated by the Navajo Nation Council; nor for more than the amount of coverage provided for each such claim under established claim reserves as appropriated by the Navajo Nation Council, or otherwise established pursuant to any self-insured liability and/or other Navajo Nation government claims program, approved and adopted pursuant to the laws of the Navajo Nation; 2. Any such judgment, order or award may only be satisfied pursuant to the express provisions of the policy(ies) of liability insurance and/or established self-insured or government claims pro- gram of the Navajo Nation which are in effect at the time of each such judgment, order or award. Regardless of the existence of appli- cable and collectible commercial insurance coverage at the time any cause of action arises or suit is filed against the Navajo Nation, in no event shall any funds or other property of the Navajo Nation be liable for satisfaction of any judgment against the Navajo Nation and/or other insureds thereunder, beyond the limits of any amounts specifi- cally appropriated and/or reserved therefor at the time of judgment, which shall be modified by law in accordance with such limitation of funds. This limitation shall apply to any deductible or retained liability or otherwise resulting from any inability or insolvency oc- curring any time prior to entry of such judgment; 3. No cause of action shall lie and no judgment maybe entered or awarded on any claim for punitive or exemplary damages against the Navajo Nation; nor against any officer, employee or agent of the Navajo Nation acting within the course and scope of the authority of such office, employment or agency; 4. Notwithstanding any provisions of this subsection (F), there shall be no exception to the sovereign immunity of public entities, officials, employees or agents of the Navajo Nation from claims for injury or damage alleged to have been sustained by: 13 553 T.l § 554 GENERAL PROVISIONS Ch. 5 a. Poliq' decisions or the exercise of discretion made by a public official, employee or agent in the exercise or judgment or discretion vested in the entity or individual; b. A decision made in good faith and without gross negligence in carrying out the law, except that this provision does not immunize a public entity, officer, employee or agent from liabil- ity for false arrest, false imprisonment or malicious prosecution; c. Legislative or Judicial action or inaction or administrative action or inaction of a legislative or judicial nature, such as adopting or failure to adopt a law or by failing to enforce a law; d. Issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order or similar authorization, nor by the termination or reduction of benefits under a public assistance program; if the public entity, officer, employee or agent of the Navajo Nation is authorized by law to determine whether or not such authorization or benefits should be issued, denied, sus- pended or revoked; e. Probation, parole, furlough or release from confinement of a prisoner or other detainee or from the terms and conditions or the revocation thereof, except upon a showing of gross negli- gence; f. Any injury or damage caused by an escaping or escaped person or prisoner, a person resisting arrest or by a prisoner to himself or herself, or to any other prisoner, except upon showing of gross negligence; g. The enumeration of the above immunities shall not be construed to waive any other immunities, nor to assume any liability except as explicitly provided in this Act. 5. Subject to all other provisions of this Act, the express coverage of any commercial liability policy insuring the Navajo Nation or of any self- insurance program established by the Navajo Nation, for sums which the Navajo Nation as insured shall become legally obligated to pay as damage because of personal injury and/or prop- erty damages shall include liability for such actual monetary loss and damage which is established by clear and convincing evidence, to be the direct and proximate result of the wrongful deprivation or impairment of civil rights as set forth in Chapter 1 of Title 1 of the Navajo Nation Code, the Bill of Rights of the Navajo Nation. In the sound exercise of judicial discretion, the Courts of the Navajo Nation may, to the extent deemed proper and appropriate in any action for damages for wrongful deprivation or impairment of civil rights as provided herein, award necessary costs of suit and/or reasonable fees; 14 554 Ch. 5 GENERAL PROVISIONS T.l § 554 based upon time and value, incurred for legal representation; or require each or any party thereto, to bear their own respective costs and/or legal fees incurred therein. G. Any officer, employee or agent of the Navajo Nation may be sued in the Courts of the Navajo Nation to compel him/her to perform his/her responsibility under the expressly applicable laws of the United States and of the Navajo Nation, which shall include the Bill of Rights of the Navajo Nation, as set forth in Chapter I, Title 1, Navajo Nation Code. 1. Relief awarded by the Courts of the Navajo Nation under this subsection (G) shall be limited to declaratory or prospective manda- mus or injunctive relief and in accordance with the express provi- sions of the laws of the United States and the Navajo Nation establishing the responsibility for such performance. The Courts may further, in the exercise of judicial discretion, award necessary costs of suit and/or reasonable fees for legal representation, in the same manner and to the same extent provided in paragraph (5) subsection (F) hereof. 2. No relief as provided under this subsection (G) may be awarded by the Courts of the Navajo Nation without actual notice to the defendant(s), nor before the time provided in this Act for answering complaints, motions or orders to show cause, nor without opportunity for full hearing of all defenses and objection thereto, in accordance with all provisions of this Act all other applicable law(s). 3. This subsection (G) shall not apply to the President of the Navajo Nation, the Vice-President of the Navajo Nation, or the delegates to the Navajo Nation Council. H. Contracted or otherwise retained counsel and other attorneys employed by the Navajo Nation may be sued for malpractice when authorized by the Government Services Committee of the Navajo Nation Council. I. The Navajo Nation may be sued by Navajo contractors and/or their sureties on construction development or reclamation contracts, provided: 1. The contractor's contract is properly approved by the appro- priate Committee of the Navajo Nation Council. 2. The contract is to be performed by a Navajo contractor as defined herein and is performed within the territorial jurisdiction of the Navajo Nation. 3. Damages against the Navajo Nation under the consent to suit granted by the Navajo Nation to Navajo contractors and/or their sureties shall be limited to damages claimed under applicable prin- ciples of contract damage law, including damages necessary to com- 15 555 T.l § 554 GENERAL PROVISIONS Ch. 5 pensate for fulfilling the obligations under the bond, which shall include properly authorized change orders and properly authorized performance under owner directives to proceed done under protest, but shall not include: a. Punitive damages; b. Damages from claims arising in tort; c. Damages caused by delays in performance due to govern- mental rexaew and approval procedures of the Navajo Nation or other governmental entity having the right to review and/or approve the contract or project; or d. Damages caused by delay, contract modification, or con- tract termination of, due to delay in or failure to receive matching funds for the contract or project. 4. Damages against the Navajo Nation claimed above shall be limited to the dollar amount of the contract including properly approved change orders. 5. The Navajo Nation shall be subject to suit under this subsec- tion (I) only in the Courts of the Navajo Nation. In determining the Navajo Nation's obligations under this subsection (I), the Courts of the Navajo Nation shall not give any preclusive effect against the Navajo Nation of any determination by any judicial or quasi-judicial body except the Courts of the Navajo Nation. 6. Navajo contractor shall mean any contractor entitled to a priority number one, number two or number three pursuant to the Navajo Nation Business Preference Law. HISTORY CIY-40-92, July 24, 1992. CMY-28-88,May6. 1988. CD-60-86, December 11, 1986. CJY-55-85, July 25, 1985. CMY-42-80,May6, 1980. § 555. Procedure with respect to actions authorized by this subchapter A. Any person or party desiring to institute suit against the Navajo Nation or any officer, employee or agent of the Navajo Nation as authorized by this subchapter shall, as a jurisdictional condition prece- dent provide notice to the President of the Navajo Nation and the Attorney General of the Navajo Nation, as provided herein. 1. Such notices shall be sent by registered mail, addressed to the main administrative offices of the President of the Navajo Nation and of the Attorney General of the Navajo Nation, return receipts requested. The time of such notice shall commence to run only from 16 556 Ch. 5 GENERAL PROVISIONS T.l § 555 the date following actual delivery of both notices as evidenced upon such receipts, and filed together with such notices with the Court in which such action is subsequently to be commenced. The President of the Navajo Nation and the Attorney General of the Navajo Nation shall ensure the availability, during all regular office hours, of office staff personnel duly authorized to accept and receipt for delivery of such notices provided herein and their receipt thereof shall not waive the assertion of any appropriate defense pertaining to the validity of such notice or service. 2. Such notices shall state the name of each prospective plaintiff, the identity of each prospective defendant; the nature of all claims and relief which will be sought, and the correct address, name and telephone number of each prospective plaintiffs attorney or coun- selor (if any). 3. No action shall be accepted for filing against the Navajo Nation or any officer, employee or agent of the Navajo Nation unless the plaintifFhas filed proof of compliance with this subsection by service of the notices as required by this subsection at least thirty (30) days prior to the date of which the compliant or any other action is proposed to be filed with such Court. B. In any action against the Navajo Nation or any officer, employee or agent of the Navajo Nation, the time for responding to valid service of any summons and complaint shall be sixty (60) days; to valid service of any order to show cause not less than thirty (30) days; and to valid service of any motion, not lis^ than twenty (20) days. Any claim against the Navajo Nation or any public entity, officer, employee or agent thereof, which is filed pursuant to this Act, is deemed generally denied sixty (60) days after valid service of the complaint, unless the claimant or claimant's attorney or counsel filing the complaint is advised of acceptance or of a specific or otherwise limited denial in writing or by responsive pleading filed before the expiration of sixty (60) days; and any such claim shall otherwise proceed in the same manner as upon the filing of such general denial thereof These time periods may not be shortened by Rule of Court or Judicial Order, but shall be extended by any longer period provided by other applicable law, rule or order of Court. C. Any person or party filing a complaint against the Navajo Nation or any officer, employee or agent of the Navajo Nation shall serve by registered mail, return receipt requested, a copy of this complaint together with summons duly issued, upon the President of the Navajo Nation and the Attorney General of the Navajo Nation. Service of summons and complaint against any officer, employee or agent of the Navajo Nation shall be made by any means authorized under the Rules 17 557 T.l § 555 • GENERAL PROVISIONS Ch. 5 of the Courts of the Navajo Nation, provided that the time for response thereto shall be as provided herein and service upon such parties shall not be affected by such required service upon the President of the Navajo Nation and the Attorney General of the Navajo Nation. D. In any action in which any claim is asserted against the Navajo Nation or any public entity thereof, upon written demand of the Navajo Nation Department of Justice, made at or before the time of answering, served upon the opposing party and filed with the Court where the action is pending, the place of trial of such action shall be changed to Window Rock, Navajo Nation (Arizona). HISTORY CIY-55-85, July 25. 1985. CMY-42-80,May6, 1980. i8 558 THE TULALIP Y TRIBES Board flf Director*: — ; — Stanley Q. iemt S'.. Seta l . lilani Tiibt/ Chacmar Ooiald C Hatch Jr , Spaf-ub-tojd VKM-CKairmtn Da«wi E. Simpsorr. SuaaOrf Htnntn A. Alfcvns Jr, Traasvra CaMn Taywf . Boam Membet L*9 Parks. 60«w Mun t f ai«n G. GoWn, Sesnl Um!>»r 6700TCTEM BCACH fK>AO MARYSVILLE. WAft8Z71.«71S (3eO)K1-4000 FAX (3M)eS1 -4032 Tht Tuiallp TribM *r* tti* uicccnon in mttrcst ID Ihs Snohonush. Snoqutmi* mnd SKykorun tnb«t ind 01h«r tnbos and bands signatory to me Tiealy o( Point End TESTIMONY OF THE TULALIP TRIBES OF WASHINGTON PRESENTED BY DONALD C. HATCH. JR. "Spat-ub-kud' VICE-CHAIRMAN BEFORE THE UNITED STATES SENATE COMMITTEE ON INDIAN AFFAIRS OVERSIGHT HEARING ON TRIBAL SOVEREIGN IMMUNITY SEPTEMBER 24. 1996 106 DIRKSEN S.OB. WASHINGTON. D.C. 20515 559 Good morning, Mr. Chairman and members of the Committee. I am Donald Hatch, "Spat-ub-kud", Vice-chairman of- the Tulalip Tribes of Washington. I am here to testify in opposition to the language which was included as section 329 in H. R. 3662, as reported by the Senate Subcommittee on Interior Appropriations. This language would penalize Indian tribes which may have disputes with non- Indian reservation residents and neighbors. The Tulalip Tribes enjoys an excellent relationship with our neighboring jurisdictions, Snohomish County and the Cities of Marysville and Everett, and believes that such language would only serve to detract from the great strides in Federal Indian policy and law which have been made over the course of the last 30 years. The Tulalip Tribes and Snohomish County share a long history of coordinated land use and resources planing and permitting. This encompasses the development of Comprehensive Plans, permitting, watershed planning, forestry, transportation and solid waste management issues. Considering that roughly 50% of the land area on the Tulalip Reservation is in non-Indian ownership and 80% of the population is non-Indian, it is only natural that a relationship has existed for some time to govern reservation affairs. The Tribes and County currently have a shared permit review process regarding development proposals on non-Indian lands. Following submittal of an application, the County forwards a copy of the application to the Tribe for comment. The application is then reviewed by appropriate Tribal Departments and comments are forwarded to the County. For a period of 15 years, the County has largely been able to address Tribal concerns, because decisions were based on a Comprehensive Plan jointly adopted in 1972. At that time, there was a clear division of permitting responsibility with the County regulating non-Indian property and the Tribe regulating Indian property on the Reservation. In the mid-eighties, the Tribe recognized the inadequacy of the 1972 Plan and adopted a Planning Enabling resolution to develop a new Comprehensive Plan that would meet the unique needs of the Tribe and Reservation community. The Resolution created a Planning Commission and charged it with the development of the Comprehensive Plan. The Tulalip Planning Commission is unique in that it represents both the Indian and non-Indian population residing on the Reservation. Their decisions on land use issues have been largely unanimous. Snohomish County has not yet adopted the Tulalip Comprehensive Plan for the Reservation, but the Tribe and County are currently developing an inter-local agreement which would allow the Tribal Plan to govern land development applications through a joint permit review process. While the agreement is being finalized, the Tribe has begun review of subdivision and rezone proposals on non-Indian lands parallel to County review of those proposals. Despite the current differences in the Plans utilized by the County and the Tribe, both parties are optimistic that an agreement will be 560 reached. The Tribe and the County have an exceptional relationship with respect to transportation planning on the Reservation. Numerous projects, ranging from a freeway interchange and various road projects to a pedestrian over-crossing, were constructed through coordinated efforts. The County also allows the Tribe to use road mitigation funds collected under a County Road Mitigation Ordinance. The Tribes participate in the County's Growth Management planning efforts with representation on numerous committees. The Tribe is, or has been, a member of the following committees: Snohomish County Tomorrow, a policy-making forum of County and City representatives; the Planning Advisory Committee, a group of County, City, and Tribal planners providing technical assistance regarding Growth Management Act issues; Rural Forum, a group making policy recommendations to the County Council regarding rural lands policy; Snohomish County Forestry Advisory Committee, charged with designating resource lands and developing policies and regulations; the Solid Waste Advisory Committee, developing policy on solid waste disposal; and the Quilceda-Allen Watershed Committee. Tribal membership on this bodies represent or represented ongoing Tribal involvement in the County's effort to plan under the Growth Management Act and, in part, directly affected the non-Indian and, to a lesser extend, Indian lands. Over the last three years, the Tribe has worked with local, county and state governments to identify gaps in the public health system and to increase capacity. We have developed a community dialogue based on mutual respect and understanding. Tulalip has a contract with the Washington State Department of health to provide health and wellness education; . and another contract with the Department of Social and Health Services to provide Mental health Service. The Tulalip Tribes works in conjunction with the Snohomish County Public Health Office to expand the capacity of the Public Health System and to identify gaps in service to both Indian and non-Indian people in Snohomish County. These efforts include sewage treatment, water delivery, immunization programs, health assessment, data collection, preventive health, and education and mental health services. Personal health care is provided on the reservation to Tulalip tribal members, members of other tribes, and individuals residing in Snohomish County. Specialty services and primary care are purchased from medical practitioners in Snohomish and King County, providing over $4 million to local business each year. One of Tulalip' s highest priorities is to increase the health status of all citizens residing in Snohomish County. This has been 561 acconunplished by negotiation and a spirit of mutual cooperation between the Tulalip Tribes, Snohomish County and the State of Washington, not through legislated punitive action. The Tribes cooperate with the cities of Marysville and Everett on water and sewer delivery systems that benefit all concerned in the area. We have just completed an agreement with the City of Marysville on a water delivery system to the reservation for the business park the Tribe is developing. The Tribes and the State of Washington are working together on the possible state retrocession of PL 83-280 jurisdiction over the Tulalip Indian Reservation. The Snohomish County Sheriff's Office currently sub-contracts a PL 93-638 contract for law enforcement services on the Tulalip Indian Reservation. This contract is supplemented with revenue generated by the Tulalip Casino. The Tribes and the County Sheriff's Office have been discussing the possibility of cross-deputizing their respective law enforcement officers, and are going to begin coordinating ordinances to helping a number of law enforcement issues that need to be resolved. The Marysville Police Department and Marysville Fire District also receive funds from the Tulalip Casino to offset increased services created by the Casino. The Tribes have been working with the citizens of Hat Island in the development of shellfish beds for cultivation and harvest. The Tribes have been conducting shellfish population studies on their lands. The Tribe have been working with the land owners who are interested in working with the Tribes and want to learn more about shellfish resources on their tide lands. Some of the land owners have agreed to allow tribal members to harvest shellfish from their property. The Tribes have agreed to postpone any shellfish harvest until we have reached a cooperative agreement with the Hat Island Property 0%mers Association. We are working with the city of Everett to restore a 'story pole' that is almost 75 years old. This 'story pole' was carved by Tulalip Chief William Shelton and then he donated it to the City of Everett in 1923. The 'story pole' has begun to deteriorate at its base. City engineers and private citizens have noticed this, but did not know how to repair it. Over the past few months, an Everett couple have taken a special interest in having the 'story pole' preserved for future generations. They went to the Everett City Council for help in raising funds to restore the 'story pole'. The Everett City Council appropriated $12,000 for the restoration, and then the Council approached the Tulalip Tribes for spiritual and technical assistance in restoring the pole. It was then that a Tulalip Master Carver donated his time to the restoration of the 'story pole' . The Tulalip Tribes, the City of Everett, and private citizens throughout Snohomish County have all come together to save and 562 preserve a landmark and a piece of history for our future generations. We are building a community Boys and Girls Club for all youth in the Marysville/Tulalip area to enjoy. The Tulalip facility of the Boys and Girls Club will be the first of its kind on an Indian reservation in the State of Washington, and one of eight such facilities on Indian reservations across the country. The Tulalip facility is being touted as a showcase for other reservation Boys and Girls Clubs. This facility is fast becoming a reality through the cooperative efforts and funding from Department of Housing and Urban Development competitive grant awards totaling $525,000; the Boys and Girls Club of America National Headquarters contribution of $75,000; and from revenue generated by the Tulalip Casino Charity Tables in the amount of $600,000. We are also soliciting private donations from tribal members, tribal employees and community members. The Tulalip Boys and Girls Club is a prime example of the Tulalip Tribes, the Marysville School District, the Boys and Girls Club of America, the Department of Housing and Urban Development, and Indian and non-Indian individuals coming together to fulfill a dream which has positive influences on everyone in the community. Several Tulalip Tribal Members and Board Members serve on the boards of several organizations throughout Snohomish County and the State of Washington. It is the intent of the Tulalip Tribes to establish and maintain congenial and productive relationships with as many of our neighbors as possible. Examples of our commitment are: Chairman Stan Jones is on the Board of Directors of the First Heritage Bank; I am a member of the School Board for the Marysville School District, which also serves the reservation; I am also a member of the Washington Inter-Scholastic Athletic Association; we have two members on the Marysville Tulalip Chamber of Commerce Board of Directors; and' a tribal member has jointed the local rotary. The Tulalip Tribes in going out of its way to be a responsible corporate member of the community by providing jobs, treating all fairly, working on a vast array of issues in the community to make it a better place to live and work. Therefore, Mr. Chairman, the Tulalip Tribes finds it extremely difficult to understand why legislation such as section 329 would be considered by this or any other legislative body. We have found that sitting down and talking with all concerned resolves the issues in a satisfactory manner. 563 National Congress of American Indians Executive CommiHcc President W Ron Allen lartK^ttm'H S'KIalbm Tnbe First Vice Presidenl fcmie Stevens. Jr. Onttda Nation of Wisa>n ) t. Hope Kctdttkati Indian Corpomlion An* Vice Presidents Aberdeen Area Rufsdl (Bud) Mason Thrtr Affiliated Tnbes AQniquerque Are« Joe Garcia Sjh fuan Pueblo Anadarko Area Merle Bo>'d Sac (* foi Trite BWe . Second ntownSlGaDamTf^ located in Wariaqgioa State, and Praident of the National Coi^resa of American iMfiauCNCAQ. OnbeWfofoarmeaibertribea, I am pleated to apfMirbefim you today 1 aowenign imnunity and coQgregMnal propoaib to rbyi rights in oflocri poitical oonmuoitiea fctaining our ^ Tbitwtbori^etfaids to tribal ' andtotheactivitiea widi the tribe or with tribal -—>«-» ' IhthalMi when thb rapubic waa fcffed, ORMni MM iralsa Iifan triboc w NW R MMMa. 4M U^ 49 (1971). "k K Cmm Wamdtotammami THbt ofOUm^ 49t U3. SOS (1991). 101 S.a 124S(19«1). 564 recognizing tribal sovereign authority over internal affiiirs. The policy of recognizing the soverdgn status of Indian nations is expressed in several provisions of the U.S. Constitution, including the grant of authority to the congress of the exclusive power to legislate in the realm of Indian a£&irs; and the article making treaties (including Indian treaties) the "supreme law of the land". Early dedsions of the U.S. Supreme Court reinforced the recognition of tribal sovereignty. In his &mous "Cherokee trilogy" of cases. Chief Justice John Marshall established that though tribes may not be properiy tenned "fijreign states" they are nonetheless "states" meaning distinct, independent political communities. * The Court has also held that though no longer possessing the "full attributes" of soverdgnty, Indian tribes remain "a aepaiSte people with the power of regulating their internal and sodal relation. * Tribes have the power to make their own laws in internal matters ' and to enforce those laws in their own foiums. ^ General prind{rfes have evolved in the realm of Indian afibirs are that Indian tribes have inherent, rather than derived or derivative, power over its a£Eairs and are free to act unless restricted by federal action. In addition, states are precluded from interfering in issues of tribal self-government. Tribal sovereignty necessarily brings with it a general immunity from lawsuits that can be waived for specific purposes as I discuss below. Because Indian tribes retain inherent powers of sovereignty, tribes ayoy a common-law immunity from suit. ' This immunity from suit is eqoyed by the three msyor sovereign entities in the United States. Tribal sovereign immuni ty is similar to that of the United States, and can only be diminished with federal consent through a deliberate act of Congress. The Eleventh Amendment protects states fix>m suit, and the United States is also protected by suit. IV. The Federal-Tribal Rdationship Since the earliest d4^ of the Rqjublic, Indian tribes have had their sovereign status * Cherokee v. Georgia, 30 U.S. (5 Pet) 1 (193 1); see also Worcester v. Georgia, 3 1 U.S. (6 Pet) 515(1832). * United States v. Kagama, 118 U.S. 375, 381-82 (1886). ^Roffv. Bumey, 168 U.S. 218 (1897). ^ Williams V. Lee. 358 U.S. 217 (1959). * United States v. WheeUr, 435 U.S. 313 (1978). 565 recognized judicially, l^isladvdy and by the executive branch in various decisions, statutes and executive actions. This recognitioo brings with it not only the well-established right to assert jurisdiction and r^ulate penons and activities within the tenitorial boundaries of the sovereign, but also the well-settled prindpte that sovereigns do not have the right to assert jurisdiction and regulate other sovereigns. Indian tribes, in shoft, enfoy all the characteristics and attributes of sovereignty not explicitly withdrawn by treaty of statute. V. Sovereign Immunity Crvdal to Tribal Survival A. Immunity in general No government (federal, state or tribal) can operate effectively &ced with the prospect of potential plaintiff filing crippling and resource-draining actions each time it takes official action. * It has long been recognized that Indian tribes have the same immunity fiom suit at common law enjoyed by other sovereigns. " Of these three sovereigns, Xrbil govemmenis are indisputably least likely to survive the avalanche of lawsuits that would surely foUow an abrogation of its immunity. Unlike the United States, the states and cities, Indian tribes could not survive a flurry of lawsuits that the abrogation of immunity would bring. Unlike other governments in the U.S. that can absorb large judgments and pass along their cost to the taxpayers, Indian trfl>es do not have that hixury. Combined with endemic and abject poverty and the lack of a tax base, Indian country does not have the "deep pockets" that plaintiffit attorneys depend on to satisfy judgments. The notion that tribal immunity ought to be waived contradicts and works against the well-setUed federal principle of encouraging htisinr«»giiyfe Am lirfianSctf-Delemiinationsnd Education Assistanrr Act of 1975; the Indisa Financing Act of 1974; the Indian Gaming Regulataiy Act of 1988; and the Sdf-Govonanoe Act of 1994, among odiers). 566 As the number of Indian and non-Indian btmiesses and entities have increased in their contacts, the potential for disastrous lawsuits has also increased. These are suits the tribes can ill- afford. Any efforts to boost investment, jobs, and businesses in Indian country would be ofiEset and overwhelmed by an abrogation of tribal sovereign immunity. B. Culture and T>ibal Self-determination The ability of any Indian tribe to r^uild its economy, its governing structure, and to recapture its cultural traditions is heavily dependent on the availability of tribal revenues. Salvaging nearly-lost languages, practicing our own religions and preserving our cultures all dq>end on our successes in generating and protecting tribally-generated revenues. These accomplishments would not be possible without our immunity from suit C. The \fyth of Unqualified Immunity To those that oppose the defense of sovereign immunity, let me remind the committee that tribal immunity is not automatic and it is not unqualified. Rather, tribal immunity may be waived by the tribes themsdves for discreet purposes or by the United States as part of its "superior and plenary" authority to limit, modify, or eliminate completely the powers of local self-government tribes possess. *^ Any waiver must be unequivocally expressed." Indian tribes may and often do, of course, choose to waive their immunity — often as part of a commerdal, consensual relationship with a non-Indian business inttfest. Inherent in the nature of any contract is a consensual rdationship that seeks to serve the interests of both contracting parties, v^iile adjusting business risk between them. Common terms in business contracts include price, quantity, and obligations as well as provisions regarding choice of law, choice of for\im, and, if a sovereign entity is involved, whether and to what extent the sovereign's immunity will be waived for purposes of remedies. These same notions are at play in any consensual relationship involving Indian tribal governments ranging from customers of tribal gaming establishments, to financiifi^lenders wishing to do business with the tribe, to private property owners and residents of Indian reservations. Tribal immunity may also be waived pursuant to federal statute. The 1934 Indian Reorganization Act ("IRA") ^* permitted tribes to create both governmental (under section 16) and corporate (under section 17) entities to cany on ofiBcial and commercial functions. '^ Santa Clara Pueblo v. Martinez, supra, at 56. " United States v. Testan, 424 U.S. 392 (1976). " 25 U.S.C. Section 477, et seq. 567 Acknowledging the distinction between o£Bcial and commercial activities, the bifurcated IRA frameworlc includes an optional waiver of immunity provision available to section 1 7 tribal corporations. This option, known as a "sue or be sued" clause, may be exerdsed by tribes in their discretion. It is crucial to note that the provision is only available for a section 17 corporate charter, not a section 16 governmental charter. Increasingly, the courts are holding that waivers of sovereign immunity under section 17 apply only to the corix>rate functions of a tribe — not its section 16 governmental fimctions. These decisions make eminent practical sense: by limiting liability to the property of the corporate entity, tribal governments can attract and maintain outside investment and non-Indian businesses without exposing all tribal assets to potential l^al actions. " The immunity may also be limited by the United States, pursuant to Congress' "plenary authority" to limit, modify, or eliminate completdy the powers of local self-government tribes possess. " The Congress did enact such a limitation in the 1968 Indian Civil Rights Aa ("ICRA") which provides for federal court review and federal habeas corpus relief for tribal decisions resulting in custodial detention of Indians and non-Indians. Here too, the Supreme Court held that the Congress did not intend a general waiver of the tribal sovereign immunity. Any such Congressional limitation must be specific, unequivocal, and strictly construed. " Absent possible tribal waivers or luequivocal limitations by the U.S. Congress, the courts have consistently held that tribal sovereign immunity is absolute. " VL Section 329 - Recipe for Paralysit and Destruction Mr. Chairman, earlier in the appropriations process, an amendment was proposed to the FY^1997 Interior and Related Agencies Appropriations bill (H.R. 3662) that would have struck at the heart of the sovereignty of Indian governments around the nation. This amendment, known as "Section 329", puqKtrted to waive tribal sovereign immunity for any instance where "the action or /TcyxxseJ actions... impact or threaten to impact" the ownership or use of private property interests on or ofif the reservation, and subject Indian tribes and tribal ofiBcials to the jurisdiction of state and federal courts for appropriate remedies including " Atkinson v Haldane, 569 P.2d 151 (Alaska, 1977); Boe v. Fort Belknap Indian Community, 445 F. Supp. 462 (D. Moot 1978). " Santa Clara v. Martinez, supra, it 56. " Oklahoma Tax Commission v. Qtiien Band Potawatomi Indian Tribe, 498 U.S. 505 (1991). " See United States v. U.S Fidelity and Guaranty, Co., "(w)ithout Coagressional authorizatioa.. Indian natioos are exempt from suit", at 5 12. 568 injunctive rdief and damages. By its vety tenns, section 329 would stifle the ability of any tribal government to even propose offidal actions lest they be sued for injunctive or other relief in state or federal courts. The operation of section 329 would cripple tribal governments and bring government operations to a grinding halt Section 329 is practically unnecessary, and constitutionally su^)ect, and I trust that this committee and this Congress will not allow the special relationship between the United States and Indian nations be violated by subjecting Indian tribes to lawsuits in state and federal courts. Mr. Chairman, I thank you for thu opportunity and would be very happy to answer any questions you may have at this point 569 A.CS M/LLE LACS BAVP i)f ( IUPPI'\V\ 1^ ')/ Executive Branch of Tribal Government jie Before the UNITED STATES SENATE COMMITTEE ON INDIAN AFFAIRS Statement of MARGE ANDERSON Chief Executive, Mille Lacs Band of Ojibwe on Tribal Sovereign Immunity October 8, 1996 570 INTRODUCTION I thank the Chairman, Mr. McCain, the Vice Chairman who initiated the hearing, Mr. Inouye, and the members of the Committee on Indian Affairs of the United States Senate for the opportunity to submit this testimony for the record regarding Indian tribal sovereign immunity. Never before in modern Congressional history have Indian peoples been subjected to the numbers and viciousness of attacks as witnessed in the 104th Congress. Never before have such attacks been made without even the attempt to provide those people most intimately affected — we, the First Americans — with even minimal notice and opportunity to be heard . Never before have so many attempts been made to circumvent the normal and due legislative process and provide this Committee, the Senate Committee on Indian Affairs, the respect deserved by it as the empowered Senate committee of jurisdiction. Never before in modern legislative history have Indian peoples needed this Committee and its noble leadership to stand between us and the ugly perfidy of an embittered few. 1 571 Thank you for standing up for principle, for due process, and for the rights of Indian peoples. That is exactly what this issue entails: principle, due process and human rights. All guaranteed by law and legal documents, the Constitution and constitutional process, by rule and by reality. SOVEREIGNTY Sovereign immunity flows from the core concept of "sovereignty," a touchstone term to Indian peoples and a word seemingly foreign to non-Indian Americans. Various dictionaries define "sovereignty" as the "supremacy of authority or rule, as exercised by a sovereign or a sovereign state," "the self-sufficient source of political power, from which all specific political powers are derived," "the necessary •xistenc* of the state and that right and power which necessarily follow," "the right of a state to self -government." Yet for Native Aaerican peoples the concept is not so much defined as defining: of our self governance, self sufficiency and ■•If deterBination. Sovereignty not only lies at the heart of federal Indian policy. It is the heart. It establishes dignity and boundaries to 572 Indian country. It both flows from and into government-to- goverranent respect and relationships. It bespeaks of the 1990 's "empowerment" and the centuries old quest for life-giving economic development on lands largely stripped and cast aside as useless by non-Indians. Sovereignty is found early in the Constitution (Article I, Section 8) . It is interpreted in the earliest days of the United States by our earliest Chief Justice. It is embraced even earlier in the hundreds of treaties with American Indians. And it has been embroiled in every controversy since. Thus, to tear and strain and slash at it now — by those who piously say they are "conservatives" — bespeaks of the great lengths they are willing to go, even betraying their ideology to "conserve," to enrich their landed friends, all non-Indians. Unfortunately for Indian peoples, what is so basic to Indian definition and design, ways and traditions, beliefs and identity, is simply unknown to the majority Americans. Almost all non-Indian Americans and their elected leaders (even in Washington) are wholly ignorant of "sovereignty." They hear the word and think "Kings and Queens," royalty and crown jewels, tea taxes and George III. At best to most it fosters a faint harkening to something old, outdated and uninteresting. 573 Notwithstanding its lack of note within majority America, it is enshrined in the founding documents of America, the treaties with my people and the words and rulings of both the congressional and judicial branches of U.S. federal government. SOVEREIGN IMMUNITY I will not re-trace for you the origin and scope of the limited protection from suit afforded sovereigns, or note the precedents and judicial give-and-take accorded tribal sovereign immunity. Others, both expert tribal lawyers such as Susan Williams and Doug Endreson and esteemed tribal leaders such as Rhonda Swaney, Henry Cagey, Bill Anoatubby, Jesse Taken Alive, Herb Yazzie, Don Hatch and Ron Allen have honorably done that, and more. The record is full and favorable to tribal sovereign immunity. ^ However, I would like to add my voice to those many as they underscore the absolute, real-life importance of tribal sovereign immunity in America as it approaches the 21st century. For Indian people and non-Indian people alike. As stated by the Supreme Court in Oklahoma Tax Comm'n v. Potawatomi Tribe . 498 U.S. 505, at 510 (1991): A doctrine of Indian tribal sovereign immunity was originally enunciated by this Court and has been reaffirmed in a number of cases. . . . Congress has consistently reiterated its approval of the immunity doctrine [in Acts which] reflect Congress' desire to promote the "goal of Indian self- government, including its 'overriding goal' of encouraging tribal self-sufficiency and economic development." 35-542 97-19 574 Make no mistake. "Indian self-government," "tribal self- sufficiency and economic development" are exactly what are at stake here. Associate Solicitor Robert T. Anderson states in his testimony to the Committee: Thus, tribes are sovereign nations and possess all powers of government, except those which have been expressly extinguished by Congress or which the Supreme Court has ruled are inconsistent with overriding national interests. Tribes can adopt and operate under their chosen form of government; levy taxes; license and regulate activities; define conditions of tribal membership; exclude persons from tribal territories; zone; make and enforce laws, both civil and criminal; and establish tribal courts of law. . . .Since tribal civil jurisdiction concerns those matters which are linked most intimately with tribal identity, the exercise of broad tribal civil jurisdiction is essential to the maintenance of a vigorous tribal government. Tribal sovereign immunity therefore is crucial to "vigorous tribal government." To diminish it would allow or perhaps invite a flood of resource-draining lawsuits, swamping state and federal courts, breaking the already stretched budgets of Indian governments, crippling economic development, opening Indian governments to attacks by non-Indians in historically hostile non- Indian state courts, allowing for direct, hostile involvement in sovereign tribal affairs by states and non-Indians who have economic and jurisdictional interests at conflict with Indian peoples. These perils are not hypothetical. We have centuries of proof. The painful cases are written in Indian blood. They are witnessed by tens of millions of acres of stolen Indian land. 575 They are punctuated by billions of dollars of burglarized Indian mineral, water and timber rights. OPPOSITION TESTIMONY Just as the perils are not hypothetical, so too they are not merely historical. And just as the perils are real and current, they center around land. Our opponents call it "property." We all know what they are talking about: Money. Money and wealth, land and resources, all to be taken from Indian peoples. And usually in the name of "fairness" or "a level playing field." The testimony of those who proudly proclaim the need to subvert or eliminate tribal sovereign immunity (and some have devoted much of their professional lives to anti-Indian causes) is largely highlighted by three approaches: First, they ignore critical facts and even centuries of history and rafts of legal documents. When talking of property, or property based rights, they almost always begin tracing "ownership" after ownership was transferred out of Indian hands by hook or crook. According to their phraseology, the non-Indian owners are "innocent" victims, who should not have to adhere to "antiquated" treaties. 576 Second, like so many before them, they generously offer up Indian rights and the future of Indian children to non-Indian encroachers, as if Indian rights and Indian people were mere chaff from parched rice — just fluff to the wind. They gloss over our sovereignty with mindless disinterest, dismissing it and all it represents with the ease of a forgotten afterthought • Third, they piously and paternalistically promote their subversion of tribal sovereign immunity as a necessary means of achieving "true" Indian economic development, expecting us and the Committee to ignore two obvious points: Subversion of sovereign immunity necessarily leads to loss of Indian property and resources (the antithesis of economic development) , and the benefactors of such "true" economic development are usually not Indians but the non-Indian promoters themselves. CONCLUSION Therefore, I ask this Committee as it reviews the testimony of those who would subvert our sovereignty to 1) remember the missing facts and history, 2) oppose the fast and easy offering up of Indian rights — especially by those non-Indians who would benefit, and 3) on matters of Indian economic development, listen to Indian leaders who must struggle daily, as you do, to provide wisely for our people. 577 Again, I thank you for all you do on behalf of Indian peoples. iGt me conclude with the words of the Associate Solicitor: Tribes are one of three sovereigns recognized as such under the United States Constitution and possess inherent powers of self -governance. This governmental status has been recognized in an unbroken line of Supreme Court cases dating to the earliest days of the Republic. Any erosion of tribal sovereign immunity would undermine one of the most fundamental principles of government. 578 There are six points I would like to underscore: First, tribes are sovereigns whose existence predates by centuries the formation of the United States of America, and even the arrival of Europeans in this land. We have the inherent right to govern ourselves, and have held this right for thousands of years before Europeans first came to this land. Indian tribes are "distinct, independent political communities, retaining their original natural rights .... The very term 'nation,' so generally applied to them, means a 'people distinct from others.' The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties." Chief Justice Marshall in Worcester v. Georgia . 6 Pet. 538, 559 (1832). Before the coming of the Europeans, the tribes were self- governing sovereign political communities. McClanahan v. Arizona State Tax Comm'n . 411 U.S. 164, 172 (1973). "As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by" its provisions. Santa Clara Pueblo v. Martinez . 436 U.S. 49, 56 (1978) . The powers of Indian tribes are, in general, "inherent powers of a limited sovereignty which has never been extinguished." F. Cohen, Handbook of Federal Indian Law 122 (1945) . "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory .... [They] are a good deal more than 'private, voluntary organizations.' United States v. Mazurie . 419 U.S. 544, 557. "Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." U.S. v. Wheeler . 435 U.S. 313, 323 (1978). "That Congress has in certain ways regulated the manner and extent of the tribal power of self-government does not mean that Congress is the source of that power." Wheeler, at 328. Second, the recognition of the pre-existing sovereign status of tribes is also found in the U.S. Constitution in the Indian Commerce and Supremacy clauses. Through these clauses, the Constitution proclaims the preeminence of the federal government in dealing with tribes and projects Indian treaties as the supreme law of the land. 579 Third, the treaty making process itself is recognition of tribal sovereignty. Treaties are, at their essence, a special type of contract. They are special in part in that they are contracts between sovereign nations. Fourth, the special, separate and sovereign nature of Indian nations is further evidenced by the fact that U.S. citizenship was not extended to Indian people in general until 1924. 8 U.S.C. S 1401 (a) (2). Fifth, because tribal sovereignty predates the Constitution, the courts have held that the Bill of Rights and Fourteenth Amendment do not apply to tribal governments and, in response. Congress passed the Indian Civil Rights Act of 1968, 25 U.S.C. S 1302, which imposed similar, but not identical restrictions to those contained in the Bill of Rights and the Fourteenth Amendment. However, acknowledging separate and sovereign status. Congress modified them significantly in recognition of the unique political, cultural, and economic needs of tribal governments. For example, the act does not prohibit the establishment of religion, nor does it require jury trials in civil cases, nor does it require the appointment of counsel for indigents in criminal cases. Further, the Double Jeopardy Clause of the Constitution, U.S.C. A. Const. Amend. 5, bars the government from trying the same defendant twice for the same crime. The U.S. Supreme Court has previously held that the clause does not bar separate prosecutions for the same offense by separate sovereigns - the federal government and states. Moore v. Illinois . 14 How. 13, 19-20. In Wheeler , the Supreme Court also held that the Double Jeopardy Clause does not bar separate prosecutions for the same offense by the federal government and tribes, because they are separate sovereigns. Wheeler , at 329-330. Finally, sovereign immunity is not a new concept, and the acknowledgment of tribal sovereignty is not a partisan position. President Nixon, who had been Vice-President during the tribal termination era (1953-1968) , initiated the present federal policy towards Indian peoples — Self-Determination — in 1970 when he proclaimed, "This, then, must be the goal of any new national policy toward the Indian people: to strengthen the Indian sense of autonomy without threatening his sense of community." Message from the President of the United States, 1970, "Recommendations for Indian Policy" (Government Printing Office, Washington, DC). Moreover, in a 1983 policy statement. President Reagan reaffirmed this policy of promoting tribal self-determination, stating, "This administration intends to restore tribal governments to their rightful place among governments of this nation and to enable tribal governments, along with state and local governments, to resume control over their own affairs." President's Statement on Indian Policy, Pub. Papers 96, 99 (1984) . 580 MILLE LACS BAND OF CHIPPEWA INDIANS Executive Branch of Tribal Government September 12, 1996 The Honorable John McCain, Chairman Committee on Indian Affairs United States Senate 838 Hart Senate Office Building Washington DC 20510 The Honorable Daniel K. Inouye, Vice Chairman Committee on Indian Af&irs United States Senate 838 Hart Senate Office Building Washington DC 20510 Dear Senators McCain and Inouye: It is my understanding that the Senate Committee on Indian Affairs intends to hold a hearing on September 24 on the issue of "tribal sovereign immunity". On behalf of the Mille Lacs Band of Ojibwe Indians, I respectfully request the opportunity to present testimony at that hearing. If this is not possible, then I will be submitting a longer written statement on behalf of the Mille Lacs Band. It is my view that sovereign immunity is one of the most fundamental aspects of the sovereign status of any governmental entity. Sovereign immunity precludes tribal governments, like state governments and the federal government, from being subjeaed to frivolous, timel divested tribal governments of their sovereignty and that Georgia had no jurisdiction in Cherokee territory. Worcester v. Georgia. 31 U.S. (6 Pet.) 515 (1832). Accordingly, the United States has recognized — since Lewis and Clark first traveled up ihe Missouri - - that the coii.<^ituent Tribes of the Great Sioux Nation are sovereign nations, possessing all the powers of government, except those which have been expressly extinguished by Congress or which the Supreme Court has ruled are inconsistent with overriding national interests. Great Sioux Nation Tribes have operated under their 583 chosen form of government for centuries. The authority of Native American governments includes: the power to levy taxes, the power to license and regulate activities; the power to define conditions of tribal membership; the power to exclude persons from tribal territories; zone; the power to make and enforce laws, both civil and criminal; and the power to establish tribal courts of law. SiiKe 1978, Native American Nations have been divested of tribal criminal jurisdiction of aiminal jurisdiction over non-Indians. Felony jurisdiction on the reservation is the domain of the United States since the enacmient of the Major Crimes Act in the 1880's. 18 U.S.C. § 1153 £t ssg. With the exclusion of enumerated "major crimes," a tribe can prosecute Indians, both tribal members and nonmembers. However, tribes lack criminal jurisdiction over the misdemeanor offenses of non-Indians. States lack criminal jurisdiction over tribal members in Indian country; with the solitary exception of Public Law 280 states whose criminal laws apply on the reservation. Tribal civil jurisdiction is considerably more complex, as it is defined by Indian Nations and their courts, not by federal statutes. SiiKe tribal civil jurisdiction concerns situations which are intimately bound together with tribal identity. Hence, the exercise of broad tribal civil jurisdiction is essential to the maintenance of a vigorous tribal government. The Supreme Court has indicated that tribes generally cannot regulate the activities of non-Indians, with the caveat that tribes retain authority over non-Indians who enter consensual relationships with the tribe or tribal members or whose activities otherwise directly affect the political integrity, economic security, or health or welfare of the tribe. Montana v. United States. 450 U.S. 544, 565-66 (1980). At the Senate Committee on Indian Affairs' hearing Tuesday September 24, 1996, Larry Long, an attorney in the South Dakota Attorney General's Office testified that South Dakota was unable to sue tribal officials for ultra vires acts in either their individual or official capacities. The Cheyenne River Sioux Tribe found this incredibly puzzling since the State of South Dakota itself sued the Chairman of the Cheyenne River Sioux Tribe and the Director of the Tribal Game, Fish and Parks Department. Sge South Dakota, in its own behalf, and as parens patriae. Appellee, v. Gregg Bourland. personally and as Chairman of the Cheyenne River Sioux Tribe: and Dennis Rousseau, personally and as Director of Chevenne River Sioux Tribe Game Fish and Parks. Appellants . in November 1993, after remand from the Supreme Court, the Eighth Circuit issued an unpublished pei curiam opinion summarily affirming the District Court, South Dakota v. Bourland. 13 F.3d 264 (1993); but we then granted Bourland and Rousseau's petition for rehearing by the panel, see 1994 WL 605890 (8th Cir. 1994) on remand from the United States Supreme Court, South Dakota v. Bourland. 113 S. Q. 2309 (1993), reversing 949 F.2d 984 (8th Cir. 1991X opvac. and mandate recalled, 997 F.2d 512 (8th Cir. 1993). Hence, contrary to South Dakota's testimony, the patent availability of suits against tribal officials in their personal and official capacities clearly illustrates that there is no need for Congress to enact a broad waiver of tribal sovereign immunity. At the hearing, a rancher doing business on the Cheyenne River Indian Reservation gave testimony in which he binerly complained about the Tribe's business license fee and tribal laws and regulations. He noted that his grandparents homesteaded the ranch in 1908 and thus, he argued, he should be free from tribal laws and regulations. However, in Buster v. Wright 135 F. 947, 958 (8th Cir. 1905), the United States' Eighth Circuit Court of Appeals held: The ultimate conclusion of the whole matter is that purchasers of lots in town sites in towns or cities within the original limits of the Creek Nation, who are in lawful possession of their lots, are still subject to the laws of that nation prescribing permit taxes for the exercise by noncitizens of the privilege of conducting business in those towns, and that the Secretary of the Interior and his subordinates may lawfully enforce those laws by closing the business of those who violate them, and thereby preventing the continuance of that violation. Id. Similarly, individuals who reside upon lands opened to homesteading by Congress in 1908, are subject to the laws governing their consensual relations with tribal members and are also subject to tribal civil jurisdiction where their conduct directly affects the political integrity, economic security, or health or welfare of the tribe and its members. Buster v. Wright, supra : Montana, supra. 450 U.S. 544, 565-66; see also City of Timber Lake, et 584 al. V. Cheyenne River Sioux Tribe: Gregg J. Bourland in his official capacity as Tribal Chairman: and Marvin LeCompte in his official capacity as Chief of Police of the Cheyenne River Sioux Tribe. 10 F 3d 554 (8th Cir. 1993): £Sil. den 114 S.Q. 2741 (1994). The retention of significant tribal powers of legislative authority is matched by expansive tribal court jurisdiction over civil matters, as evidenced in subsequent Supreme Court rulings. Iowa Mutual Ins. Co. v. LaPlante. 480 U.S. 9, 16, 18 (1987) tribal courts best qualified to interpret and apply tribal law; tribal authority over activities of non-Indians on reservation land an imiwrtant part of tribal sovereignty); National Farmers Union Ins. Co. v. Crow Tribe. 471 U.S. 845 (1985) (requiring plaintiffs to exhaust tribal court remedies; exercise of jurisdiction over non-Indians presents federal question, reviewable by federal court). The reservation of jurisdiction to tribal courts over civil matters arising within Indian country springs from the pre-existing government authority of Indian tribes and is maintained by the United States' respect for the solemn govemment-to-govemment relationship between Indian tribes and the United States. The United States has repeatedly affirmed its recognition that states should not have judicial authority over Indian tribes. Consequently, tribal justice systems remain the most appropriate forum for the adjudication of disputes affecting tribes, as well as those affecting individual and property rights. Congress acknowledged the importance of tribal courts in passing the 1992 Indian Tribal Justice Support Act, 25 U.S.C. section 3601(6), although to date, no funds have been directly appropriated for its implementation. Despite limited funding. Great Sioux Nation Tribes have developed systems to meet the growing demands of tribal conmiunities and changing tribal economies. However, the truth is that most Indian Nations do not have the resources or revenues to develop the justice systems they envision. Accordingly, through the Dakota Territory Chairmen's Association, the Great Sioux Nation Tribes have requested funding from the Department of Justice for a Sioux Nation Supreme Court. Final Sioux Nation Supreme Court Proposal submitted to D.O.J, in September, 1996. Sovereign immunity is a corollary to the tribal sovereign powers of legislative and judicial authority. Since a sovereign can mandate laws aixl create courts to interpret and apply these laws, it follows that a sovereign cannot be sued absent its consent. See, e.g., Clement v. LeCompte. Chy. Riv. Sx. Q. Appls. Appeal No. 93-009-A (1994Xdiscussion of tribal law begins at p.4) a true and accurate copy is attached hereto and incorporated herein as if fiilly set forth below. Where Indian tribes contract to perform federal fuiKtions under the Indian Self-Determination Act, the Federal Tort Qaims Act system is available in certain circumstances to redress alleged grievances by individuals affected by those operations. It is important to note, however, that Congress established this system without waiving tribal sovereign immunity. It is well established that the doctrine of sovereign immunity applies to Indian tribes Santa Qara Pueblo v. Martinez. 436 U.S. 49, 58 (1978) (citations omitted), as it does to state and federal governments. See also Puyallup Tribe v. Washington Game Dept. 433 U.S. 165, 172-73 (1977). Most recently, the Supreme Court in Oklahoma Tax Comm'n v. Pouwatomi Tribe. 498 U.S. 505 (1991), stoted: A doctrine of Indian tribal sovereign inununity was originally enunciated by this Court and has been reaffirmed in a number of cases. . . . Congress has consistently reiterated its approval of the inmiunity doctrine [in Acts which reflect Congress' desire to promote the goal of Indian self-government, including its 'overriding goal of encouraging tribal self-sufficiency and economic development. 498 U.S. at 510 (citations omitted). In that case, the Supreme Court concluded that, "Under these circumstances, we are not disposed to modify the long-established principle of tribal sovereign iirrniunity." M- Thus, Indian tribal sovereign immunity retains its vitality. It is iwteworthy that the Cheyenne River Sioux Tribe amended its Constitution in June, 1992, creating a separation of powers between the Tribal Council and Tribal Courts. In addition, the Cheyenne River Sioux Court of Appeals has long held that claims of violations of the Indian Civil Rights Act, 25 U.S.C. § 1301 s! S^-, will be heard on the merits by the Tribal Courts. Moreover, in the Tribal Law and Order Code, Tribal judges may only be removed for cause, after having notice, the opportunity to be heard and the right to be represented by counsel during any such proceeding. 585 Tribes can grant |»rtial waiveis of their sovereign immunity when it is necessary for practical reasons for them to do so, £.g., water rights agreements, mineral leases, and other commercial enterprises. There are limitations on the types of activities for which tribes can waive sovereign immunity, as is true with state and federal waivers. Tribes, like states and the federal government, are cautious about waiving their sovereign immunity. This is because such waivers frustrate the ideals of tribal self-government, tribal self-sufficiency and tribal economic development. Envelopment of tribal sovereign immunity in a blanket waiver would allow anyone, bidian or non-Indian, who believes that a proposed tribal action might affect his or her property interests to sue the tribe and tribal officials in state or federal court to halt the tribe's action and to recover damages for any harm the court finds that the tribal action produced This would open the floodgates to state and federal courts with litigation concerning maners historically reserved to tribal courts, or that have been resolved through the political process or through actions for injunctive relief in the federal courts. Non-Indians who have chosen to live in Indian country would scorn tribal courts and tribal governments and seek to have Congress empower the courts, in favor of those who have historically been hostile to tribal interests. Indeed, it would offer non-todian neighbors of tribes new opportunities to take control of tribal affairs. Such a sweeping abbreviation of tribal sovereignty would threaten the very future of tribal sovereignty. In fact, this possibility echoes the Termination Era. Currently, tribal and federal law ctHiceniing tribal sovereign inmiunity prevents disgruntled tribal members from forcing the tribe to litigate disputes in other courts prior to the exhaustion of their tribal remedies. Were tribal members and non-Indians permitted to sue tribes in state courts, state courts would have the authority to interfere in the conduct of internal tribal government. It would also abort the development of tribal court jurisprudence, increasing the (fiances of generating inconsistent decisions. Defending lawsuits against tribal govermnents and tribal officials would place a tremendous financial burden on tribes. Of course, the costs of defending litigation in non-tribal forums would be substantially higher than defending them in tribal courts. In addition, the constant threat of impending lawsuits would "chill" tribal governmental activities in general and could paralyze tribal economic development. There must be no tie between the acceptance/receipt of federal funds and waivers of tribal sovereign immunity. Tribes which accept federally appropriated funds have already agreed to numerous conditions prior to the receipt of federal grant funds. Thus, the broad waiver of tribal sovereign irrraiunity sought by non-Indians against tribes is unnecessary. When the United States lives i^) to its trust responsibility to Indian Nations by funding tribal governments, the United States should not and must not attach burdensome and conditions impairing sovereignty to such federal funding. The Great Sioux Nation Tribes and all other Indian Nations, which possess inherent powers of self- government, are one of three types of sovereigns recognized as sucii under the United States Constitution, i.e., the several states, the several Indian Nations, and the United States. As noted above, the governmental status of the Great Sioux Nation Tribes, and all other Indian Nations, has been recognized in Treaties, executive Proclamations as well as in an unbroken line of Supreme Court cases dating to the earliest days of the Republic. Any erosion of tribal sovereign immunity would imdamine one of the most fundamental principles of government and debilitate the sacred trust relationship between the United States, the Great Sioux Nation Tribes, and all other Indian Nations. /J.eotlrland Tribal Chairman Cheyenne Rivei Sioux Tribe 586 IN THE COURT OF APPEALS OF THE CHEYENNE RIVER SIOUX TRIBE TINA CLEMENT. Plaintiff. V. VERNA LECOMPTE. et ol.. Defendants. No. 93-009-A MEMORANDUM OPINION AND ORDER PER CURIAM (Before Chief Justice Pommersheim and Associate Justices Dupris and Clinton) This appeal raises the validity of a preliminary injunction issued by the Cheyenne River Sioux Superior Court enjoining the Defendants from taking any further action regarding the allocation of groang rights to Tribal Range Unit 126 pursuant to the Tribal Grazing Ordinance, Ordinance 15, as amended August 26, 1993. Contesting the allocation of this range unit to Defendants Vema LeCompte and Monte LeCompte. the Plaintiff filed a protest with the United States Deportment of the Interior, as authorized in Ordinance 15 and Article IV, Section 1 of the Cheyenne River Sioux Constitution, and also filed on October 27, 1993 a request with the Cheyenne River Sioux Superior Court for a temporary restraining order. Named as Defendants in the Complaint ultimately filed with the Superior Court on November 9, 1993 were Vema and Monte LeCompte, who are mother and son and the putative recipients of the grazing permit to Tribal Range 126 under the action of the Tribal Council; the Cheyenne River Sioux Tribe (Tribe), presumably as owner of much of the land comprising Tribal Range Unit 1 26 and as the sovereign government primarily responsible for allocating the range unit; Russell McClure. Superintendent. Bureau of Indian Affairs. Cheyenne River Sioux Agency; and Jerry Jaeger. Area Director. United States Department of the Interior, Bureau of Indian Affairs. The Superior Court granted the temporary restraining order on October 28, 1993. In Brehmer v. White Wolf. No. 93-008 (1993), this Court dismissed the Defendants' attempted interlocutory appeal of the temporary restraining order for lack of jurisdiction, but nevertheless vacated the temporary restraining order utilizing its supervisory powers over the lower courts on the ground that no action 587 had been properly filed in the Superior Court since no comploint directed to the Superior Court hod been filed with the request for the temporary restraining order. Rather the Plaintiff had filed in the Superior Court a copy of the Complaint and Protest it had filed with Defendant McClure together with her request for temporary restraining order. This Court ruled that due to the techrical noncompliance of the Plaintiff with the Cheyenne River Sioux Rules of Civil Procedure, no action formally had been filed in the Superior Court and the lower court therefore lacked authority to issue a temporary restraining order even though its action may have been in conformity with informal practices sometimes employed by that court. This Court nevertheless granted the parties leave to amend their filings before the hearing on the motion for preliminory injunction to correct this rather technical, curable error by the Plaintiff. On October 29, 1993, Defendant Russell McClure denied the Plaintiff's Complaint and Protest, finding no material violation of the Cheyenne River Sioux Tribe's Graang Code in the allocation of Range Unit 126. to Defendants Verna and Monte LeCompte. This Court is informed that an appeal of that decision to the Area Director is presently pending. Curing the technical defect noted by this Court in its decision in Brehmer v. White Wolf, the Plaintiff filed a complaint with the Superior Court on or about November 9, 1993. The Complaint incorporated by reference the Complaint and Protest filed with Defendant McClure. This protest asserted a number of claimed legal violations of the Tribal Groang Ordinance in the allocation of Tribal Range Unit 126 to Defendants Vema and Monte LeCompte. These claims included alleged violations of preference requirements. Defendant Monte LeCompte's alleged violalion of the residency requirement necessary for preference, lock of present livestock ownership by Vema and Monte LeCompte, alleged disqualifying outstanding delinquency in fee payments by Defendant Verna LeCompte, alleged fraudulent misrepresentations in the LeComptes' application, and political unfairness resulting from the fact that Defendants Vema and Monte LeCompte ore the mother and brother of Tribal Coundl member Rocky LeCompte. While asserting numerous alleged substantive violations of the Tribal Grazing Ordinance, Plaintiff Tina Clement's basic complaint is that her present grazing permit to use Tribal Grazing Unit 126 was not renewed by the Tribal Council despite the fact that the Plaintiff made improvements to the unit, arguably without the express written outhorizotion required by federal low, and v^ile the Plaintiff hod extensive investments in and livestock grazing on the grazing unit in question. On November 9, 1993, a hearing on the application for preliminary injunction was conducted by the Superior Court, the Honorable B.J. Jones presiding as specially designated tribal judge. The Superior Court issued a written preliminor)' 588 injunction dated November 19. 1993 enjoining the Defendants from-taking any further action regarding the allocation of grazing privileges on Tribal Range Unit 1 26 and requiring the Plaintiff to post bond in the form of a personal check covering the cost of the temporary use of the range unit for a period of one year. While the Order Granting PreBminar/ Injunction specifically found that the Superior Court had subject matter jurisdiction over the case txised on provisions of the Grazing Code that provided that "all land disputes" are to be resolved by the tribal courts, the court did not purport to resolve the Defendants claims of sovereign immunity and inability to join a necessary and indispensable party. Rather, the Order provided: 7. Decision on the Tribe's motion to dismiss on the grounds of sovereign immunity end indispensability is deferred until Nov. 30, 1993; the Tribe's brief on its motion to stay before the Court of Appeals will be considered the Tribe's opening brief on these issues. Plaintiffs may file a responsive brief on Nov. 23, 1993, and the Tribe may file a reply brief on Nov. 30. 1993. Without waiting for the disposition of these defenses in the trial court. Defendant Cheyenne Kver Sioux Tribe fTribe") filed on November 19, 1993 a Notice of Appeal, Designation of Record, and a Motion to Stay Preliminar/ Injunction Pending Appeal. On November 22, 1993. the Tribe filed an Amended Motion to Stay Preliminary Injunction Pending Appeal. The basis of the Tribe's interlocutory appeal was that the Superior Court cannot property hear this case due to lack of jurisdiction, the sovereign immunity of the Tribe and its officers, inabifity to join the Cheyenne River Sioux Tribe as a necessary and indispensable party, the nonjusticobility of the issue due to the exclusive commitment of the questions raised first to the Tribal Coundl and then to the Secretary of the Interior under the Tribal Grazing Ordinance, and the failure of the Plaintiff to exhaust her administrative remedies with the Secretary of the Interior before filing suit in tribal courts. In its Amended Motion to Stay Preliminary Injunction Pending Appeal, the Tribe asserted that the Plaintiffs "cannot possibly succeed on the merits as the Tribe has sovereign immunity and is an indispensable party to the action" and further cicims that the Tribe will suffer irreparable injury to 'Its authority to administer tribal lends" trom the preliminary injunction while the Plaintiff will suffer no legally cognizable harm since her grazing permit expired on November 1 , 1993. The Plaintiff pointed out that she liad sigr^ficant investments and improvements to the grazing unit and will be required to remove cattle currently located on Grazing Unit 1 26, if the preliminary injunction is vacated. On November. 24. 1993. this Court entertained argument from the parties on the Amended Motion to Stoy Preliminary Injunction Pending Appeal by telephonic 589 conference call and declined to enter o stay of th? order. In additiorj this Court stayed the appeal of the preliminary injunction until December 6, 1993 in order to permit the Superior Court the first opportunity to rule on the asserted defenses of sovereign immunity and indispensability. On November 29, 1993, Special Tribal Court Judge B.J. Jones sifting in the Superior Court issued a lengthy supplemental Memorandum Decision denying the Tribe's Motion to Dismiss based on the defenses outlined above. In particular. Judge Jones ruled that v^iie the federal government had not waived the Tribe's sovereign immunity, the Tribe "has effected a limited waiver of its immunity from suit by enacting Sec. 15-7-1 (U)" of the Tribal Grazing Code, the provision that indicates that "[a]l( land disputes" ore to be resolved by the tribal courts. Since Judge Jones found thai the Tribe could be sued in tribal court, he found he did not need to resolve the Tribe indispenscbiiity defense. This Court disagrees and for that reason reverses the grant of preliminary injunction and remands to the Superior Court with directions to dismiss the action under Rule 19 of the Cheyenne River Sioux Rules of Civil Procedure. Since the sovereign immunity and indispensability defenses asserted by the Tribe constitute a complete defense to this action requiring its dismissal, the Court need not resolve the other deferises of lack of jurisdiction, nonjusticabiiity, and the failure to exhaust administrative remedies and will not comment thereon except insofar as they are implicated in the sovereign immunity and indispensability defenses. SOVEREIGN IMMUNITY It is an axiomatic proposition of federal Indian law that Indian tribes, like all other sovereigns, possess sovereign immunity which prevents their being sued without their consent. E.g. Oldahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Oldalioma. 498 U^. 505 (1 991 );Sanfa Clara Pueblo v. Martinez. 436 U.S. 49. 58-60 (1978). Indian tribes possess sovereign immunity because they ore sovereigns predoting the Constitution. United States v. United States Fidelity & Guaranty Co.. 309 U.S. 506. 512-13 (1940); Turner v. United States. 248 U.S. 354 (1919), end because such immunity is necessary to promote the federal policies of tribal self-determination, economic development, and cultural autonomy. See generally. F. Cohen, Handbook of Federal Indian Law 324-28 (1982); Note, In Defense of Tribal Sovereign Immunity, 95 Harv. L Rev. 1058. 1073 (1982). Tribal sovereign immunity derives from two independent sources. First, Indian tribes, like all other sovereigns, are possessed of an inherent sovereignty which prevents their being sued without their consent. As the court noted in Bottomly v. 590 Passamaquoddy Tribe. 599 F^d 1061 {1st Cir. 1^979), "one aspect of a tribe's sovereignty is its immunity from suit." Second, the cases also indicate that since the United States often holds Indian land and certain other assets in trust for the tribe, the tribe is a derivative beneficiary as the sovereign immunity of the federal government and therefore cannot be sued without Congressional consent. E.g. United States v. United States FideBty & Guaranty Co. , 309 U.S. at 512-13; Blue Legs V. EPA, 867 F.2d 1094 (8th Cir. 1989). The sovereign immunity of the Cheyenne River Sioux Tribe deriving both from its aboriginal sovereignty end from its protection by the United States continues unless Congress has expressly authorized suit against the tribe or the tribe has otherwise voluntarily waived its sovereign immunity or othepA'ise consented to suit. The parties do not clscgree that the Cheyenne RiverSioux Tribe is possessed of sovereignty, one aspect of which is its immunity from suit. They disagree, rather, as to whether that immunity has been waived or otherwise abrogated. As indicated by the dual sources of tribal sovereign immunity, the sovereign immunity of an Indian Tribe may be waived either by an express authorization by Congress acting pursuant to its broad powers under the Indian commerce clause of article I, section 8, clause 3 of the United States Constitution a by en express tribal waiver of sovereign immunity or express consent to suit. American Indian Agr. Credit v. Standing Rock Sioux Tribe, 780 FJ2d 1374. 1378 {8th Cir. 1985). The genera! standard utilized by other courts to detemnine whether such an express waiver has been adopted is that such a waiver "cannot be implied but must be unequivocally expressed." Sonto Clara Pueblo v. Martinez 436 U.S. at 58; see generally, American Indian Agr. Credit v. Standing Rock Sioux Tribe. 780 F.2d 1 374, 1 378 (8th Cir. 1 985) (collecting cases). In this case, the Superior Court found that Congress had not in any way waived the Tribe's immunity from suit. Plaintiff does not disagree wifh that finding. Rother, Plaintiff rests her right to sue the Tribe on her claims that (1) the tribe has waived of sovereign immunity by enacting section 15-7-1(14) of the Cheyenne River Sioux Tribe Grazing Code and (2) that this Court' s decision in LeCompte v. Jewett. No. 85-012-,A, 12 Ind. L. Rep. 6025 (Chey. Riv. Sx. Tr. Ct. of App. 1985) held that where a claimi is made that tribal authorities had exceeded their authority, the aggrieved party would have an implied remedy for injunctive and declaratory relief in tribal courts in the absence of a statutory remedy. While the Superior Court- accepted the first of Plaintiffs argument but not the second, this Court rejects each as a matter of law and therefore finds that the Tribe is immune from suit by the Plointiff in this action. Section 15-7-1(14) of the Cheyenne River Sioux Tribal Grazing Ordinance provides in full, "{a]ll land disputes will be settled in Tribai Court." The Superior Court 591 relied on this language, stating: The only question is whether the Council has unequivocally expressed its intent to allow this court to review its issuance of grazing permits. This court finds that the Tribe has effected a limited waiver of its immunity from suit by enacting Sec. 15-7-1(14). That waiver of immunity permits this court to review council action in approving grazing permits only when the dispute in question is not a matter left to the sole discretion of the council in the grazing ordinance or the tribal constitution. Thus, in arriving at its finding of a waiver of sovereign immunity the Superior Court applied the conventional standard generally employed where waiver of sovereign immunity is claimed and demanded that the waiver must be "unequivocally expressed." If this Court were to adopt that standard, it believes there would be much force to the Superior Court's finding. The provisions of section 15-7-1 (14) ore found in a tribal grazing code which basically allocates the use of tribal lands. The Tribe argues that the grant of jurisdiction contained in section 15-7-1(14) is limited to the resolution of private disputes, such as fencing or trespass actions, or to suits brought by the tribe, such as grazing fee delinquency actions. The tribe cites portiorTs of the legislative history of the 1988 version of the Tribal Grazing Code to support that distinction. This Court does not firxl those orguments persuasive. Rrst. by its express terms,'''section' 15-7-1 (14) refers io a//, Qpt some, land disputes under the Tribal ►^Grazing Code and certainly a sizoble proportion of those disputes will involve the Tribje^either'as d pn^ party in a case involving' the use or allocation of tribal lands. Thus, while not specifically referring to either the Tribe or to tribal sovereign immunity, the context of the language employed in section 15-7-1(14) indicates that the Council attempted to "unequivocally" express on intent to permit the Tribe to be sued for injunctive or declaratory relief in tribal land disputes arising under the Tribal Grazing Ordinance. Second, legislative history offered by the Tribe does not seem to prove the distinction that the Tribe offers. Specifically, the Tribe colled this Court's attention to a discussion between then Chairman Wayne Ducheneoux and Representative Clown over the meaning of this language, in this discussion then Chairman Ducheneoux clearly drew a distinction between the initial awarding of the range unit and "a dispute as to trespass or something like that ofterthe unit is issued, then that will go to Tribal Court." Tribal Council Minutes, Oct. 17, 1988 of 5. Then Representative Clown asked whether the language in question "doesn't mean the awarding of tlie range unit?" Then Chairman Ducheneoux advised him that it did not, at least under his understanding of the language. 592 . - The Plaintiff attempt^ to counteract the effect of this discussion by offering an affidavit of Wayne Ducheneaux, signed November 23, 1993, to the effect thai "the legislative intent of the Cheyenne River Sioux Tribe Grcmng Ordinance, Title XV, (Section 15-7-1(14)] dealing with the resolving of all disputes in Tribal Court was to utilize the Tribal Court systenn as a forum for the resolution of any and ail disputes regarding Range Units." The Tribe properly points out that offering later interpretation or reinterpretation of earlier legislative events by participonts therein constitutes an inappropriate approach to establishing the legislative history of a stotute or ordinance and this Court therefore rejects the information contained in the proffered affidavit for this reason. Nevertheless, looking only at the portions of the Tribal Council Minutes offered by the Tribe, it does not appear that they demonstrate the conclusion for which they were offered. The distinction drawn in those Minutes by then Chairman Ducheneaux was between the initial allocation of range units and subsequent disputes about the land. This distinction is not the same as a distinction between cases in which the tribe is named as a poriy defendant and those in which it Is not. In ruling on the motion to dismiss. Special Judge B.J. Jones drew a similar but not identical distinction to the one offered by then Chairman Ducheneaux during the debate on the 1988 version of the Tribal Grazing Permit. The Superior Court indicated that section 15-7-1(14) constituted a limited waiver of sovereign immunity which only "permits this Court to review council action in approving groang permits only wtien the dispute in question is not a matter left to the sole discretion of the council in the grazing ordinance or the tribal constitution." SI. Op. at 8 (referencing section 15-2-3, Cheyenne River Sioux Grazing Code). Thus, the Superior Court found that it did "not have the authority to order the Council to award the unit tojthe Plaintiff but it claimed the power "to find that the Council abused its discretion in awarding RU 126 and to remand this matter to the Council for a review and clarification of its reasoning in the letting of RU 126." Id. at 8-9. Furthermore, the Tribe conceded at oral argument that some trespass actions, such as those involving boundary disputes, might necessarily implicate the Tribe as an indispensable party, but it argued that most of the tribal land disputes, including trespass actions, arising under the Tribal Grazing Code would likely be cases involving private disputes between the permittee and another private trespasser or other private disputes such as fencing disputes. The difficulty v/ith this argument is that the plain language of section 1 5-7-1 ( 1 4) does not refer to some, or even the predominant, type of land disputes, but rather includes "[c]ll land disputes." Were this Court to apply the conventional "unequivocally expressed" test for waiver of sovereign immunity, it would be tempted to agree v-nth the Superior Court's finding that section 15-7-1(14) constitutes on unequivocal expression, notwithstanding its lack of express reference to either the Tribe or tribal sovereign immunity. This cose is not, oi argued by the Tribe, "strikingly similar" to the failed 593 argument in Blatchford v. Nofrve Wtoge of -Noatak. 1 1 1 S.Ct. 2578, 2583 (1991) (federal law did not waive state sovereign immunity under the eleventh amendment in suits by federally recognized Indian tribes or communities). In Noatak. the statute involved was 28 U.S.C. § 1362, a general grant of civil jurisdiction over federal question cases brought by certain Indian tribes. By contrast, section 15-7-1 (14y is a specific grant of jurisdiction over all land disputes found in a tribal ordinance specifically allocating the use of tribal land. The necessary involvement of tribe as on indispensable parfy in some, pertiaps many, of these actions is clear from the context of this cose in a fashion that the Court InNoatak found lacking tor state defendants under section 1362. The problem vA\h the Superior Court's finding that section 15-7-1(14) constituted a waiver of tribal sovereign immunity, however, is that it totally ignored another vital provision of the laws of the Cheyenne River Sioux Tribe, specificcily section 1 -8-4 of the Cheyenne River Sioux Tribe Law and Order Code. Section 1 -8-4 provides: Sec. 1-8-4 Sovereign immunity Except as required by federal low, or the Constitution and By- Laws of the Cheyenne River Sioux Tribe, or specirlcally waived by a resolution or ordinance of the Tribal Council specifically referring to such, the Cheyenne River Sioux Tribe shall be immune from suit in any civil action, and its officers and employees immune from suit for any liability arising from the performance of their official duties. It is not surprising that the Superior Court failed to note this important provision of Cheyenne River Sioux tribal law since it was not cited to this Court by either party in their briefs in this appeaL although it was briefly noted in the Tribe's brief in Bretimer v. White Wolf and the Tribe did mention it at the very close of its oral arguments. This provision, however, is central to the resolution of this cose. Section 1-8-4 is contained in the "General Provisions" section of the Lew and Order Code which provides several general provisions including several different sections involving rules or principles of construction. This Court understands section 1-8-4 to operate cs a rule of constnjction. providing a h/gher standard than the convention "unequivocally expressed" standard for the finding of a waiver of sovereign immunity. Section 1 -8-4 requires that any waiver of sovereign immunity specifically refer to that concept. As Noatak indicates, a waiver of sovereign immunity under the "unequivocally expressed" standard might be found if either the language, context, or legislative history of the statute pidnly and unequivocally indicates o legislative 8 594 intent to waive sovereign immunity. As olreody indieoted, on that standard, section 15-7-1(14) might qualify as an unequivocal waiver of tribal sovereign irrimunity given its all embracing language and the context in which that language is found. By contrast, the provisions of section 1-8-4, specifically require more than m.erely on unequivocal expression. This statutory rule of construction, which must be read into any and all ordinances passed by the Tribal Council of the Cheyenne River Sioux Tribe, plainly requires that any purported waiver of sovereign immunity must specifically refer to sovereign immunity on the face of statute. However else section 15-7-1(14) might be construed, it s plain the section contains no language whatsoever reflecting on express reference to or waiver of sovereign immunity. The language therefore cannot be found to constitute a waiver of sovereign immunity consistently with section 1-8-4. The Superior Court therefore erred in construing section 15-7-1 (14) as a limited waiver of sovereign immunity. The Plaintiff, however, notes that the tribal courts previously have entertained a dispute over allocation of a tribal grazing unit. Specifically, she directs the Court's attention to the decision of the Cheyenne River Sioux Tribal Superior Court in Gunv/7/e v. Frazier. No. C-01 1-89 (Chey, Riv. Sx. Sup. Ct., Sept. 18, 1989). TheGunv///e case is clearly distingukhable on a number of grounds. First, the Tribe was not named as a party defendant in that action. Second, the Tribal Council specifically referred that particular dispute involving the allocation of a tribal grazing unit to the tribal courts. Third, based on the Superior Court's Findings of Fact and Conclusions of Law, no one seems to have raised the question of the failure to join the tribe as an indispensable party to action. Thus, while Gunv/7/e may indicate that section 1 5- 7-1 (14) grants tribal courts yuriscfcffon overclaimed legal violations in the allocation of tribal range units. It cannot hold that the Tribe has no available sovereign immunity or Indispensable party defenses in such litigation since those questions were never presented in the Gunville case. The Plaintiff's second argument based on'LeCornpfev.Jeweff, N0.8S012-A. 12 Ind. L Rep. 6025 (Chey. Riv. Sx. Tr. Ct. of App.l985)- is equally unavailing. In LeCompfe, this Court held that "(ajs a matter of tribal law, . . . the Indian people of the Cheyenne River Indian Reservation intended that the people should have a right to a tribal judicial forum to judicially review the actions of the tribal council." LeComp/e V. Jevyew, SI. Op. oi 7. Thus, the Court specifically held that the Plaintiffs in an election displute had an Implied remedy In inbq I court for injunctive and Bectarator/ reHej agqinst^certdn ^ actions'pfthecreferi%)ntsviolat^ "1302. brthe . Constitution or Jav^"'„pfjh Tribe. The Vult iii LeCompYe,,:h>qweyer,:-was. filed.Vagaii^titnt3ai;pfj[ciqls "seeking injunctive and declarotor/ reJIef.rather tharifdshe'fe."^dgalnstthe'Tribe7 Furthermore, sirice tribal land was not involved In the election dispute afissue'in LeCompfe, there v/as no 595 argument, as here, that the Tribe constituted a necessory and indispensable party to the action. Plaintiff, nevertheless, directs the Court's attention to language in the LeCompte opinion indicating that "both the 1968 Indian Civil Rights Act and the Constitution of the Cheyenne River Sioux Tribe waived such sovereign immunity in Tribal Court." Id. While one certainly could read some of the broader language in LeCompte as indicating that the Indian Civil Rights Act of 1968 and the Constitution and By-Laws of the Cheyenne River Sioux Tribe had impliedly abrogated tribal sovereign immunity in tribal forums where the only remedies sought were declaratory or injunctive relief, any such broad statements constituted dicta and were unnecessary to the decision. Rather, this Court understands LeCompte v. Jeweft to mifror as a matter of tribal law, the classic distinction drawn by federal courts between suits against the federal government or states and suits against federal or state officials seeking to conform their official conduct to the dictotes of constitutional or statutory law. While suits ogoinst the federal government or the states ore barred by federal sovereign immunity and the eleventh amendment, see e.g. Testan v. United States. 424 U.S. 392 (1976) (federal sovereign immunity); Blatchford v. Native Village of Noatak. Ill S.Ct. 2578 { 1 99 1 ) (state eleventt^ amendment immunity) , injunctive or declaratory suits against federal or state officers fof violation of federal law are classically permitted and are not deemed barred by sovereign immunity. E.g. Ex parte Young. 209 U.S. 123 (1908). In LeCompte, the plaintiff had sued tribal officials seeking only injunctive and declarator/ relief. This Court's hKolding that such a suit was not barred by tribal sovereign immunity either C3S a matter of federal or tribal law, can only property be read as authorizing ttitxil officials to be sueb to enforce conformity to federal and tribal law. LeCompte could not and did not hold that the Tribe itself had waived sovereign immunity and could be sued in a lend dispute of the type presented in the present case. Indeed, in LeCompte. this Court also relied on section 1-8-4, which draws precisely the same distinction drawn here. Section 1-8-4 expressly indicates that the 'Tribe shall be immune from suit in any civil action," while indicating that 'Its officers and employees (shall be) immune from suit for any liability arising from the performance of their official duties." The difference in language cleariy indicates that, "(ejxcept as required by federal low, or the Constitution and By-Laws of the Cheyenne River Sioux Tribe, presumably most notably in claims of takings of property without just compensation, the Tribe has the traditional absolute immunity from suits of all types, vvhrle tribal employees are only immune from damage liability, rather than injunctive and declaratory relief, for actions token in their official capacity. While perhaps containing some excessively broad dicta, LeCompte should not be read as providing onything more than on implied injunctive or declaratory relief oction against trilx]! officials tor actions token in violotion of the federal or tribal law. it did not hold that any such action could be 10 596 filed:dlrectly,bgainst.the Tribe as a named party defendant. This Court's decision finding the Tribe immune from suit in this action should not be read as g ruling that no judicial forum should be available to the' Plaintiff. The result in this case only reflects the fact that the Tribal Council, while perhaps intending to create such a forum, has not taken appropriate steps in conformity with section 1-8-4 of the Cheyenne River Sioux Tribal Law and Order Code to effectively waive tribal sovereign immunity and permit such a suit. NECESSARY AND INDISPENSABLE PARTY The Tribe's successful assertion of the defense of sovereign immunity does not automatically mean that the case must be dismissed in a case such as the present one, where the plaintiff has filed suit against multiple defendants, only one of which, the Tribe, is entitled to assert a sovereign immunity defense. In such cases, the litigation generally can proceed against the other parties not entitled to on immunity defense unless the court determines that the immune party constitutes an indispensable party. If the immune party constitutes on indispensable pcrty, the court must dismiss the action in its entirety. E.g Kev/eenah Boy Indian Community V. Michigan, No. 93-1 1 18, 1993 WL 51333 (6th Cir. 1993). Shermoen v. United States, 982F.2d 1312(9thCir. 1992), cert, den/ed U.S. , 113 S.Cf. 2993 (1993). Given the Superior Court's decision rejecting the Tribe's sovereign immunity defense, it did not address the indispensability of the Tribe in a detailed fashion. In light of this Court's determination that Plaintiff cannot sue the Tribe due to tribal sovereign immunity, this Court must determine whether the Tribe constitutes on indispensabe party, as argued by the Tribe. Rule 19 of the Cheyenne River Sioux Rules of Civil Procedure governs necessary and indispensable parties and is identical to the language of Rule 19 of the Federal Rules of Civil Procedure. The basic test to be applied under Rule 19 was fully described in the Sixth Circuit's recent decision in Keweenoh Bay Indian Community in the course of interpreting the federal version of Rule 19: This court hos previously stated that the resolution of the question of joinder under Rule 19, and thus of dismissal for failure to join en indispensable parry under Rule 12(b)(7), involves o three-step process. Local 670 V. Iniemationol Union, United Rubber, Cork. Linoleum and Plastic Workers of America, 822 F.2d 613, 618 (6fh Cir. 1987), cert, denied, 43A U.S. 1019 (1988). The court must first determine whether a person is necessary to the action and should be joined if possible. Rule 19(a) describes this initial analysis as follows: 11 597 (a) Persons to be Joined if Feosible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if ( 1 ) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject matter of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave the parties subject to a substantial risk of incurring double, multiple, or other/zise inconsistent obligations by reason of the claimed interest. If the court finds that the absent person or entity falls within either one of these provisions, the party is thus one to be joined if feasible. The court must then consider steps two and three: the issues of personal jurisdiction and indispensabilify. As this court recognizes: If personal jurisdiction is present, the party shall be joined; however, in the absence of personal jurisdiction (or if venue as to the joined party is improper), the party cannot property be brought before the court. If such is the case, the court proceeds to the third step, which involves on analysis of the factors set forth in Rule 19(b) to determine whether the court may proceed without the absent party or, to the contrary, must dismiss the case due to the indispensabilify of that party. The four factors set forth in Rule 19(b) include: first, to what extent a judgment rendered in the person's absence might be prejudicial to [the person] or to those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have on adequate remedy if the action is dismissed for nonjoinder. The rule Is not to be opplied in a rigid manner but should instead be governed by the practicalities of the individual case. This court has noted thiat 'Ideally all [the] 12 598 ■"^7:n^"'Lv^^paHies\vSDIdbe before Rule 19 calls for crS^t'/'"*" ■-; pragmatic approach; simply because some forms of - . relief might not be available due to the absence of certain parties, the entire suit should not be dismissed if meaningful relief can still be accorded." Id. at 618 {quoting Smith v. United Bt)d. of Carpenters and Joiners of America. 685 F.2d 164. 166 (6th Cir. 1982) (other citations omitted). Applying this three step analysis leads directly to the conclusion that the Tribe constitutes an indispensable party within the meaning of Rule 19(b) of the Cheyenne River Sioux Rules of Civil Procedure and that the action cannot proceed without the Tribe and therefore must be dismissed pursuant to Rule 12(b)(7) of the Cheyenne River Sioux Rules of Civil Procedure. In this case, the basic dispute centers on the allocation of Tribal Range Unit 126 comprised substantially of tribaily owned land by the Cheyenne River Sioux Tribal Council. The only official tribal defendant named in the Complaint is the Cheyenne River Sioux Tribe. The Tribe therefore constitutes a necessary party within the meaning of Rule 19(a) both because complete relief cannot be afforded to the Plaintiff in a cose contesting the allocation of use of tribal land in the absence of the actual owner of the land, the Tribe, being joined as a party and because the Tribe owns the lend constituting Tribal Range Unit 126 and its absense both would impair its ability to protect its interest in its lands and would pose a substantial risk of subjecting the other federal defendants to multiple or inconsistent legal obligations should the tribal courts take a different approach to the allocation of that range unit than token by either the Tribal Council or the Secretar/ of the Interior. There is therefore ittle doubt that the Tribe constitutes a necessary parly. In order to qualify for dismissal under Rule 12(b)(7), the party who cannot be joined must not only constitute a necessor/ party, but also must qualify as on indispensable party within the meaning of Rule 19(b) of the Cheyenne River Sioux Rules of Civil Procedure. As Keweenoh Boy Indian Community indicates, a necessary party must be joined if feasible. Here the bar to joinder of the Tribe is not lack of personal jurisdiction but sovereign immunity of the Tribe and the consequent lack of subject matter jurisdiction over any claim brought directly cgainst the Trbe. Since the tribe cannot be joined, the only remaining question is that third prong -- indispensobility. Rule 19(b) provides that the court in making a determination of indispensability must "determine whether in equity ond good conscience the action should proceed among the parties before it, or should be dismissed, the absent party being thus regarded as indispensable." Rule 19(b) further directs the court in making a determination of indispensability to consider four separate factors: 13 599 The factors to be considered by the court include: fir^t, to what extent a judgment rendered in the person's absence might be prejudicfat to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by shaping of relief; or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff vvill have an adequate remedy if the action is dismissed for nonjoinder. Considering these four factors, it is quite clear in the instant case that the Tribe constitutes an indispensable party and that the action must be dismissed based on the inability of the Plaintiff to join the Tribe as a party defendant. As noted above, the Tribe owns much of the land comprising Tribal Grazing Unit 126. As an owner of the land, it is entitled to the revenue from the tribal grazing program, indeed, the Court was informed at oral argument that almost one- quarter of the tribal budget derives from revenues generated by the tribal grazing program. As the owner of the land in question, the Tribe's interest in the land and the revenues derived therefrom would be seriously prejudiced if the tribal courts were to determine, as requested by the Plaintiff, the legality of the allocation of its lands without joining it as a party. Thus, the first fact points heavily in favor of finding indispensobility. Second, since the basic dispute in this cose involves tribal decisions about the allocation of its grazing lands made by the Tribal Council, it is difficult to see how the tribal courts could fashion or l^mit available relief in a manner which would mitigate or eliminate the prejudice caused by the Tribe's nonparticipation in the action. For Plaintiff to prevail and secure any relief at all for her claimed violations of the Tribal Grazing Code the fribal courts would be required to issue an order that would somehow affect the Tribe and the allocation of its land use in a ver/ direct manner, either by actually ordering a reallocation of Tribal Grazing Unit 126 (which the Superior Court disclaimed any power to do) or by declaring the Tribal Council's award of the unit to Defendants Verna and Monte LeCompte illegal and sending the matter back to the Tribe for reconsideration by the Tribal Council. Either way, the Tribe's interest in the litigation are directly implicated and the triboi courts could not fashion relief in a fashion which could disentangle those interests from those of the remaining defendants. Thus, the second factor also weighs heovily in favor of a finding of indispensobility. Third, since the Tribe as on absent party would not be bound by any judgment against the remaining defendants finding legal difficulties with the allocation of Tribal Grazing Unit 126 to the LeComptes, the tribal courts could not provide any form of relief which would adequately redress the claimed violations of tribal low asserted by the Plaintiff. Thus, like the first two factors, the third weighs heavily in favor of o finding of indispensobility. Finally, as more fully developed below, while the Plaintiff argues that she should be entitled to a remedy in tribal courts, a finding of indispensobility 14 600 will not leave Plaintiff Tina Cienaenf wholly without an adequate remedy elsewhere than tribal courts. Thus, all four factors weigh heavily in favor of finding that the Tribe constitutes an indispensable party without the joinder of which this litigation cannot proceed. This conclusion is perfectly consistent with most of the cases which hove considered problems of indispensable parties in cases involving adjudications of the title to or allocation of tribal land. Since Indian tribes are sovereign governments still possessed of their original sovereign immunity, it is a frequent occurence that third parties contesting an Indian tribe's claim of ownership to or allocation of the use of tribal land or other resources cannot sue the tribe to adjudicate their alleged competing claim. In such cases, the courts invariably find not only that the Tribe is imm.une from suit under tribal sovereign immunity, but also that the inability to join the \noa as a party to an action involving ciaim.ed tribal lands or resources, bars the action from proceeding on the grounds of the indispensability of the Tribe. E.g. Shemnoen v. United States. 982 F.2d 1312 (9th Cir. 1992), cert, denied. U.S. , 1 13 S.Ct. 2993 (1993);McC/endon v. United States. 885 F.2d 627 {9th Cir. 1 989); Jicarilla Apact)e Tribe v. Hodei 82 1 F.2d 532, 540 (9tt) Cir. 1987): Wichita and Affiliated Tribes ofOkJalioma, v. Model. 788 F.2d 765 (D.C. Cir. 1986); Lomayaktewa v. Hathaway. 520 F.2d 1324, 1325 (9th Cir. 1975), cert. denied, 425 U.S. 903(1976); Tewa Teseque v. Morion. 498 F.2d 240 (10th Cir. 1974); see generally. Shields v. Barrow. 58 U.S. (17 How.) 1 29 (1 854). Similariy, many other courts in cases not involving tribal lands or resources have concluded that actions must be dismissed because Indian tribes who successfully asserted sovereign immunity defenses also constituted indispensable parties to the litigation. E.g. The United Keetoowah Band of Cherokee Indians v. Mankiller, SI. Op. No. 93-5064 (10th Cir.. Aug. 12, 1993); Confederated Tribes of Cheholis Indian Reservation v. Lujan. 928 F.2d 1496, 1498 (9th Cir. 1991);£nferpf75e Mgt. Consultants v. United States ex rel. Model. 883 F.2d 890 (10th Cir. 1989); Lucero v. Lujan. 788 F. Supp. 1 180, 1 183 (D. N.M. 1982); Ek Nation v. Lujan, 51. Op. No. Civ. 92-3039 (D. S.D. , June 4, 1993). I. ivjv^>.,vj, ii^dniri iivji \_iic:vj I IV <^vji<=i uiiu iiitj iriK v-uuri IS upowore or any precedents that suggest that Indian tribes who cannot be joined as party defendonts due to sovereign immunity do not constitute indispensable parties where tribal interests, such cs the ownership or use of tribal lands or resources, ore at issue in the litigation. For good reason, the Plaintiff therefore conceded in her brief that the Tribe constituted on indispensable porty, but argued that she hod properly joined the Tribe as a party defendant and claimed that the suit was not barred by tribal sovereignty. Since this Court has rejected the Plaintiff's argument that the Tribe has waived its sovereign immunity, the conclusion is inescapable that the action must be dismissed for inability to join on indispensable party. PLAINTIFF'S AVAILABLE REMEDIES 15 mi: A. Need for Available Remedies - - In the classic case of Morbury V. Mad/son, 5 U.S. (1 Cranch) 137, 163 (1803), Chief Justice Marshall offered the following insight: The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the 3d vol. of his commentaries, p. 23, Blacksfone states two cases in v*^ich a remedy is afforded by mere operation of law. "In all other cases," he says, 'It is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at low, whenever that right is invaded." And afterwards, p. 109, of the same vol. he says, "I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark, that ail possible injuries whatsoever, that did not fall -within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress." The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the lows furnish no remedy for the violation of a vested legal right. Of course, Chief Justice Marshall's comments in Marbury stated an cspirational goal, rather than a legal reality. At the time, the federal government had not waived sovereign immunity over any claims and would not do so for many claims until it enacted the initial statute creating the Court of Claims in 1855. Act of Feb. 24, 1855, 10 Stat. 612; Act of Mar. 3. 1863. 12 Stat. 765; see generally Gordon v. United States. 2 Wall. 561 {1865); Glidden Co. v. Zdanok. 370 U.S. 530 (1962); Richardson, History, Jurisdiction, and Proclice of the Court of Claims, 1 7 Cf . CI. 3, 3-4 16 602 ( 1882) / -^ FuftHeiTOorerforTndj*^^^^^^ generqily ^available remedies v/ere eve n longerincomirigi'THegeneral "damage claim statute now found in 28 uiiC. § 1505 was not enacted until 1946 and Congress has never enacted any general waiver of sovereign immunity whicti would permit Indian tribes to seek possession of lands of whichi ttiey claim ttie United States illegally deprived them. Preciset/ the same goal that Chief Justice Marshall set for the then relatively young federal government is also a worthy objective for triibal governments. This objective is important not only in the context of the western system of jurisprudence, but perhaps even more so in the context of cultural fidelity to Lakota principles of equity and fairness. 6/oomberg v. Dreamer, Oglala Sioux Civ. Ap. 90-348 at 5-6 (Oglala Sup. Ct. 1991) (holding that both due process and Lakota tradition require a hearing before attempting to remove anyone from the Pine Ridge Reservation). This is especially so where, as here, the alleged violations owe their origin to actions of the Tribe itself through the actions of its Tribal Council. As the Plaintiff properly notes, this Court's decision in LeCompfe v. Jewett reiterated as a matter of tribal law this emphasis on providing the people of the Cheyenne River Sioux Tribe a remedy in tribal courts for violations of their legal rights even by tribal officials. . The court suggested that by adopting the Constitution and By-Laws of the Cheyenne River Sioux Tribe, the people of the Cheyenne River Sioux Reservation intended to afford a judicial remedy in the tribal courts for violation of their legal rights. Presumably the court's reference was to Article IV, Section 1 (k) of the Constitution of the Cheyenne River Sioux Tribe which authorizes the Tribal Council "to establish courts for the adjudication of claims and disputes arising among members of the tribe . . . ." The trit^ol officers sued in LeCompte were tribal members, but the case did not involve a suit directly against the Tribe as a named defendant. For this reason, the Court held in LeCompte that an implied cause of action for injunctive or declaratory relief existed in the tribal courts against tribal officials who violated the any of the peoples' legal rights. That provision has since been supplemented to reenforce the point made by this Court in LeCompte by the recent amendment to the By-Laws of the Cheyenne River Sioux Tribe which provides that "(t]he tribal courts shall have jurisdiction over claims and disputes arising on the reservation." Art. V, sec. 1 (c), By-Laws of the Cheyenne River Sioux Tribe. Unfortunately for the Plaintiff in this action, however, litigation will not lie againt the Tribe as a named party under tribal law unless and until the Tribal Council affirmatively enacts an ordinance or other legislation expressly waiving tribal sovereign immunity in injunctive or declaratory relief cases such as the instant one. To carry out the intent of the Constitution and By-Laws of the Cheyenne River Sioux Tribe as announced in LeCompte, perhaps the Tribal Council should enact 17 603 such a blanket waiver which would provide a judicial forum in the tribal courts to aggrieved parties such as the Plaintiff. However, unless and until the Tribal- Council acts in conformity with section 1-8-4 to provide such a forum for suits against the Tribe, at least for injunctive and declarator/ relief, this Court cannot create such a remedy consistent with notions of separation of powers, tribal sovereignty, and tribal sovereign immunity. The Court notes that many sovereigns hove waived sovereign immunity in a variety of contexts like the present one vWthout in any way diminishing their sovereignty. For example, the federal government, which like all sovereigns is immune from suit without its consent, has enacted a variety of statutes under which it consents to suit of various kinds. For example, under 28 U.S.C. § 2410, the United States has consented to suits to quiet title to lands in which it claims on interest aid for certoin other purposes. Under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671-80, the United States has waived sovereign immunity and consented to certain damage suits for injury or loss of property, or personal injury or death caused by the negligent act or omission of any employee of the federal government. Similarly, under the Tucker Act, 28 U.S.C. §§ 1491, 1346(a), and the Indian Tucker Act, 28 U.S.C. § 1505, the federd government has consented various types of suits over liabilities not sounding In tort. Similarly, most states have tort claims statutes under which they waive their sovereign immunity for damages claims arising from personal injury, loss of property, or death caused by acts or omissions of state employees. For example, Article III, section 27 of the South Dakota Constitution provides that "the Legislature shofl direct b/law in what manner and in what courts suits may be brought against the state." The South Dakota legislature has authorized certain suits to be brought ogoinst the stbte. S. Dak. Compiled Laws, Ch. 3-21 . Waiving sovereign imnounrty therefore Is not seen by most other western sovereigns as synonmous with a woiver of sovereignty. Rather, reflecting the notion advanced by Chief Justice Marshall in Marbury that there can be no legal right without an effective judicial remedy, the trend in the United States is for most sovereigns to waive their sovereign immunity to provide such an effective remedy. Indeed, even in Marbury. Chief Justice Marshall noted that English practice permitted the sovereign to be "sued in the respectful form of a petition, and [the crown] never fails to comply with the judgment of his court." The ver/ essence of the sovereignty which the people of this reservation vested in the Tribal Council under the tribal constitution means that the Tribal Council, not this Court, must decide whether, when, and how the Tribe con be sued in its own forums. Until it does so, the Plaintiff is without any effective remedy in tribal courts. B. Existing Remedies To suggest that the Plaintiff lacks a remedy in tribal courts is not to suggest IS 604 r-ihat-^hePlaintiffwas leftjenfirel/^^ any remedies for. what sh€;daimecl:to be the illegal and cjititrarypclionsbMhe Tribal Council in allocating TribarRdnge Unit 126. She did have at least two separate remedial opportunities, both of .which she fully invoked. First, while not expressly required by the Tribal Grazing Code, the Tribal Council in allocating the tribal grazing permits, afforded any aggrieved party a special opportuntity to protest its proposed decisions before finally oHocafing tribal range units. The Court is informed that Tina Clement unsuccessfully filed such a protest and raised many of the claims asserted in the tribal courts. Certoinly, the availability of remedies before the Tribal Council constitutes an effective provision of some sort of forum, even if not an independent judicial forum. In Sonfo Clara Pueblo V. Martinez. 436 U.S. 49, 66 (1978), the Supreme Court noted that "[n]onjudicial tribal institutions have also been recognized as competent law-applying bodies." Citing United States v. Mazurie, 419 U.S. 544 (1975). Second, under the express terms of Article Vlil, Section 3 of the Constitution of the Cheyenne River Sioux Tribe, the people of the reservation have made allocation of tribal grazing permits subject to approval of the Secretary of the Interior. In Martinez, the Supreme Court also recognized the important of federal administrative review in providing a forum for the redress of claims against Indian tribes: By the terms of its Constitution, adopted in 1 935and approved by the . Secretary of the Interior in accordance with the Indian Reorganization Act of 1934, 25 U. S. C. § 476, jutiicial authority in the Santa Clara • Pueblo is vested In its tribal council. Many tribal constitutions adopted pursuont to 25 U. S. C. § 476, though not that of the Santa Clara Pueblo, include provisions requiring that tribal ordinances not be given effect until the Department of Interior gives its approval. See 1 American Indian Policy Review Commission, supra n. 19, at 187-188; 1961 Hearings 95. In these instances, persons aggrieved by tribal laws may, in addition to pursuing tribal remedies, be able to seek relief from the Department of the Interior. Id. of n. 22. The Plaintiff has unsuccessfully filed a Complaint and Protest raising precisely the same claims asserted in the tribal courts with Defendant Russell McClure, Superintendent, Bureau of Indian Affairs, Cheyenne River Sioux Agency. After Defendant McClure rejected Plaintiff's protests in an opinion letter dated October 29, 1993, the Plaintiff further pursued her administrative appeal remdies with Defendant Jerry Jaeger, Area Director, United States Department of the Interior, Bureau of Indian Affairs. This administrative appeal is still pending. Thus, this 19 605 TitCdurt's'decisionjirxdingthcrt-Plain^^^ iCieft ihe Plqintiff^efeft of any folirm t^^ serious l^gal claims t'-^raised in heT'GomplQ^ low of the Cheyenne River Sioux Tribe, her initial forum was with the Tribal Council and she thereafter could and has roised ;;. her legal cioinnsv^thiri. the Departrnent of thejnterior, which might ultimately lead ■?t6;federdLcdui1reyi^.^^J^9!!^ , v-- The essential dicta of LeCompfe thot the people of the Cheyenne River Sioux ".Tribe expect their tribal Constitution to protect their rights is nof abridged in the slightest by the Court's decision in this case.- In fact, in contrast to the dispute in LeCompfe in which the tribal constitution did not specify any administrative or judicial review, the tribal constitution in the instant case does. Article Vill, Section 3 of the Constitution of the Cheyenne River Sioux Tribe specifically authorizes Bureau of Indian Affair administrative (and therefore potentially federal judicial) review of the Tribal Council's decision to grant a grazing permit to another applicant. Such review ultimately accords '/vith both the thrust of the LeCompfe decision and the federal government's trust responsbility to the Cheyenne River Sioux Tribe and its members. In the absence of such review, ihe broad and compelling dicta of LeCompfe would indeed be effectively muted. Fortunately, that is neither the'result nor the intended legacy of this case. " ■ :4,:'.. In light 'of thls_Court's decisions on thequestions of sovereign immunity and "^indispensabllityrtheCourt finds it urinecessdiy to' address the Tribe's claims of lock .of jurisdiction, nonjusticiability, and failure to exhaust administrative remedies. J--^---"".'- By- reason Ijf-'the^ Court's grant of a preliminary injunction must be' reversed and the cose remanded to the Superior Court with directions to dismiss the action pursuant to Rule 12(b)(7) of the Cheyenne River Sioux Rules of Civil Procedure due to the inability to join the Cheyenne River Sioux Tribe as on indispensable party on account of the Tribe's sovereign immunity. The case is reversed and remanded with directions to dismiss. Entered this 1 2th day of January, 1 994 ISu^ Frank Pommersheim Everett Dupris Robert N. Clinton Chief Justice Associate Justice Associate Justice 20 35-542 97-20 606 BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS STATEMENT OF ROBERT N. CLINTON ON PROPOSED LEGISLATION RELATED TO WAIVERS OF TRIBAL SOVEREIGN IMMUNITY TO FACILITATE ADJUDICATION OF TRIBAL DISPUTES IN FEDERAL & STATE COURTS My name is Robert N. Clinton. I serve as the Wiley B. Rutledge Professor of Law of the University of Iowa College of Law, as an Affiliated Faculty Member with the University of Iowa American Indian and Native Studies Program, as Chief Justice of the Winnebago Supreme Court of the Winnebago Tribe of Nebraska, and as an Associate Justice of the Cheyenne River Sioux Tribal Court of Appeals of the Cheyenne River Sioux Tribe in South Dakota. I have taught, studied and written in the field of federal Indian law for over twenty years, including participation in the authorship of Felix Cohen 's Handbook of Federal Indian Law (1982 ed.), Robert N. Clinton, Nell Jessup Newton, and Monroe E. Price, American Indian Law: Cases and Materials (1991), and numerous law review articles. Additionally, I regularly teach and have written in the fields of constitutional law and federal court jurisdiction. I also had had the privilege and honor of serving various tribal communities as part of tribal appellate courts for the last five years. Since these hearings will touch on issues of fairness to non- Indians and nonmembers of Indian tribes, I should note for the record that I am non-Indian. I present this written testimony at the request of the Senate Committee on Indian Affairs and I appreciate the kind invitation to speak to the important subject matter addressed in these hearings, a matter central to the survival of tribes as sovereign entities and to their courts as effective instruments of legal justice. Before presenting my views on the subject of this hearing, I must emphasize that the positions and ideas contained in this Statement are solely my own views and 607 do not reflect the position of any of the governmental institutions, courts, or tribes which I serve. This statement is offered to express in the strongest possible terms opposition to any legislation of the type that was contained in proposed section 329 of the Senate's Fiscal Year 1997 Interior Appropriations Bill. The proposed legislation constitutes one of the greatest recent threats to and assaults on the sovereignty of Indian tribes and to the tradition of local tribal control of tribal matters. Both the sovereignty of Indian tribes and their long tradition of local tribal control of matters affecting the reservation have long been guaranteed to tribes by treaties and other understandings solemnly entered into by the United States government. The essence of that sovereignty and tradition of local governance is the tribal right to govern all persons and property located within the Indian reservation, including those of nonmembers (with the exception of criminal jurisdiction), under laws adopted by tribal governing authorities and enforced through tribal courts. The central purpose of the proposed legislation that forms the subject of this hearing appears to be to by-pass these legitimate tribal forums in favor of civil litigation in state or federal courts. Yet, traditionally federal and state courts have been barred from entertaining most such cases as a result of deliberate jurisdictional limitations found in federal Indian law designed to protect both the tribal sovereignty and the jurisdiction of the tribal courts and by doctrines of tribal sovereign immunity which are a direct result of the recognized sovereignty of the Indian tribes. The proposed legislation seeks to diminish tribal sovereignty by eliminating these long-standing jurisdictional protections of federal Indian law which properly direct reservation based cases to tribal courts and by involuntarily waiving for the tribes their sovereign immunity. For reasons explained below, this proposed legislation is totally at odds with the long history of federal recognition of and treaty obligations to protect tribal sovereignty and may also be constitutionally infirm. The proposed legislation therefore constitutes both bad law and bad policy. Tribal Sovereignty Over Nonmembers The sovereignty of Indian tribes has long been recognized. Article I, section 8, clause 3 of the United States Constitution recognizes that sovereignty by listing Indian tribes in the company of two other major sovereigns, foreign nations and states of the Union. The federal courts have long recognized Indian tribes as "state[s]," that is as sovereign political units which, while not states of the union, 608 nevertheless constitute "domestic dependent nations." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). The United States has held that such Indian tribal sovereignty constitutes a backdrop against which all Indian treaties and other federal actions creating Indian country must be examined. E.g. McClanahan v. Arizona State Tax Comm 'n, 411 U.S. 164 (1973). Sometimes Indian tribal sovereignty and its scope are expressly stated in treaties and other times the sovereignty of the tribe is merely implied as an essential attribute of tribal status in Indian country. For example, article 5 of the Treaty of New Echota with the Cherokee Nation, Dec. 29, 1835, 7 Stat. 478, guarantees that the federal government would "secure to the Cherokee nation the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people or such persons as have connected themselves with them." Similarly, article III of the Treaty of Dancing Rabbit Creek with the Choctaw Nation, Sept. 27, 1 830, 7 Stat. 333, expressly provides that "[t]he Government and people of the United States are hereby obliged to secure to the said Choctaw Nation of Red People the jurisdiction and government of all persons and property that may be within their limits . . ., so that no Territory or State shall ever have a right to pass laws for the government of the Choctaw Nation of Red People or their descendants . . . ." In short, an essential attribute of the tribal sovereignty guaranteed to all Indian tribes by the govemment-to-govemment relations long maintained, by treaty or otherwise, between the federal government and the tribes is the right to govern all persons and property of their reservation, including such nonmembers who may reside on or otherwise frequent reservation lands, with the single exception of criminal jurisdiction over non-Indians according to the federal cases. Accordingly, the United States Supreme Court, while limiting the tribes' criminal jurisdiction over non-Indians, has long recognized the right of Indian tribes to exercise substantial regulatory authority and adjudicatory subject matter jurisdiction over both members and nonmembers for cases arising in Indian country, including civil cases affecting contract rights or the ownership or use of private property. E.g. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (non- Indian missionaries not subject to state regulatory jurisdiction for activities within Cherokee Nation since the governance of the Cherokee territory legally rested primarily with the Cherokee Nation); Williams v. Lee, 358 U.S. 217 (1959) (non- Indian merchant doing business on the Navajo reservation could not legally 609 enforce legal claims against Navajo tribal members in state court and must resort to tribal courts); United States v. Mazurie, 419 U.S. 544 (1975) (tribes possess "a certain degree of independent authority over matters that affect the internal and social relations of tribal life," including the licensing of the sale of alcohol by a non-Indian owned tavern on the reservation); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) (tribal authorities, rather than the state, had exclusive authority to regulate hunting and fishing by both members and nonmembers within the reservation); National Farmers Union Ins. Cos. v. Crow Tribe, Al\ U.S. 845 (1985) (recognizing tribal court jurisdiction over nonmembers for reservation activities and suggesting that "the existence and extent of a tribal court's jurisdiction [requires] a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes. Executive Branch policy as embodies in treaties and elsewhere, and administrative or judicial decisions); Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987) (same). As the United States Supreme Court emphasized in National Farmer 's Union, resort in such cases should always be first and foremost to the tribal courts, which, by reason of their local understanding of the reservation context and culture, their expertise in interpreting and enforcing tribal law and custom, and their general proximity to the primary governing authority of the reservation, the tribal government, can offer the greatest expertise in the adjudicatory process. As suggested in Williams v. Lee, 358 U.S. 217 (1959), the essence of tribal sovereignty has always been "the right of reservation Indians to make their own laws and be ruled by them." Tribal courts constitute the front lines of and the most important daily manifestation of that sovereignty. As Williams v. Lee demonstrates, this point is true for both tribal members and nonmembers alike regarding reservation related matters. It is through the tribal courts that tribal laws are enforced and interpreted in individual cases. Consequently, the tribal courts generally represent the single most important institution for effectuating tribal governmental authority and sovereignty. Tribal courts constitute the one tribal governmental institution with which both tribal members and nonmembers will most likely have any contact. Tribal courts therefore represent the central, essential mechanism through which tribal laws are applied to the persons and property of the reservation governed by the tribe. By seeking to by-pass the traditional resolution in tribal courts applying tribal law of properly and related questions arising on Indian reservations, the 610 proposed legislation seeks to undermine "the right of reservation Indians to make their own laws and be ruled by them." Since tribal courts are the final authorities on tribal law and federal and state courts generally do not interpret and enforce tribal law, permitting resort to federal or state courts for the resolution of on- reservation disputes involving both members and nonmembers encourages the total by-pass of the tribal substantive and regulatory laws, thereby completely undermining the purposes and sovereignty of tribal governments. Such a step not only violates express treaty provisions, such as those cited above, and the entire tenor and purposes of the govemment-to-govemment relationship with the tribes, it represents a significant, and I might add totally inaccurate, federal statement suggesting a fiandamental distrust of the fairness and efficiency of tribal governance and of the tribal justice system. While these hearings may hear anecdotal evidence of exceptional problems with tribal justice systems, of the type that might also be offered with reference to exceptional cases in the federal and state justice systems, I would submit that the fundamental reversal in the federal government's traditional discharge of its treaty and other legal obligations to protect tribal sovereignty contemplated by the proposed legislation could be justified, if at all, only on the most compelling record. Such a record would require a thoroughly systematic, exhaustive, and comparative study of the record of the fairness of and efficiency of tribal courts in handling cases involving nonmembers with that of federal and state courts in cases involving Indians. From my experience, the tribal courts would fare far better in any historical study of evenhanded fairness than would federal and state justice systems. Tribal Courts Constitute Fair, Efficient, and Even-Handed Forums Having studied federal Indian law for almost a quarter-century and having served on tribal appellate courts for five years, my experience indicates that tribal courts are more scrupulously fair to the interests of non-Indians and nonmembers and more even-handed in their decisionmaking processes than federal and state courts historically have been when Indians have come before such tribunals for adjudication of their interests. As a non-Indian attorney, I would be far happier placing adjudicatory responsibility for my property related interests in most tribal courts, than I would taking the property interests of an Indian in a dispute with a non-Indian before a state court. In my experience, both the juries and the judges in tribal court are far less susceptible to racial bias than are similar decisionmakers in state or federal courts. 611 While I certainly cannot offer the type of systematic study that should be required for the dramatic reversal in and default of federal legal obligations proposed in the legislation under consideration, my review of the reported tribal court decisions in the Indian Law Reporter, which like Federal Supplement does not publish every decided case, indicates that non-Indians and nonmembers of tribes are treated quite fairly by tribal courts, sometimes more fairly and efficiently than they might have been treated in state court. Several illustrations will make the point. In Schwab v. CTEC Construction, 21 Indian Law Rep. 6027 (Colv. Admin. Ct. 1994), the most notable and obvious case disproving the allegation of bias in the tribal courts, a non-Indian heavy equipment mechanic filed an administrative action for wrongful termination against his construction company employer which worked on various tribal contracts. The employer laid off the worker, who had a satisfactory work record, in order to comply with its understanding of its obligations under a tribal employment rights ordinance which required tribal employment preferences. The tribal court found that the employee never received any notice of a new company employment policy that made him terminable at will and had just purchased a home with a mortgage in reliance on his employment. Notwithstanding the strong tribal employment preference contained in the tribe's ordinances, the Colville Administrative Court, the Honorable Mary T. Wynne presiding, ruled that the employment relationship was not at will and required a showing of cause for termination. The tribal court further found that tribal law only granted preferences in the hiring of new employees and did not require the dismissal of any existing employees. Consequently, the tribal court found that the employer's termination of the employee "because of his [Anglo-Saxon] race directly violates the stated policies of his employment." A clearer example of the fairness and evenhandedness of tribal courts in dealing with competing tribal and non-Indian interests would be hard to find. In Clown V. Coast to Coast, 23 Ind. Law Rep. 6055 (Chy. R. Sx. Ct. App. 1993), a case on which I sat. Coast to Coast, a non-Indian owned creditor, partially prevailed in a collection case against a tribal member. My understanding is that non-Indian creditors routinely and successfully employ tribal courts in such collection matters against tribal members, as have state social service departments for child support collections. In the Clown case, the tribal trial judge had been so While noi directly relevant to assessing the opinion, it should be noted that the Honorable Mary T. Wynne is the Chief Judge of the Colville Tribal Court, a former Assistant United Sutes Attorney, an anomey admitted in three states and numerous tribal jurisdictions, a member of the faculty of the National Judicial College, and an enrolled member of the Rosebud Sioux Tribe. 612 aggressive in her defense of the interests of the non-Indian creditor that she failed to afford procedural fairness to the defendant, a tribal member. The Cheyenne River Sioux Tribal Court of Appeals therefore reversed in part the judgment awarded the non-Indian creditor. Recognizing, however, the delays occasioned by the appeal and the lack of dispute as to one-third of the amount of the judgment, the appellate court took what it recognized was the unusual step of permitting the non-Indian creditor to begin collecting that amount at once, by severing the judgment and affirming as to the undisputed amount. Such flexible and efficient procedures to facilitate rapid collection of the judgment rarely would be found in state or federal court, suggesting that, at least in the Clown litigation, the non- Indian creditor was legally permitted to collect at least part of its judgment far more rapidly after the tribal appeal than would have been permitted in most state courts. Neither the behavior of the tribal trial judge nor the appellate court in the Clown litigation suggests any bias against nonmembers. Similarly, in Tri-County Water Ass 'n, Inc. v. Miner, 22 Indian Law. Rep. 6141 (1995), the same court affirmed the award of contract damages against a tribal member to a non-Indian water service utility in a dispute arising out of the undisputed vandalism of the tribal member's water spigot on the defendant's range unit. While the water service utility did not collect all the damages requested in their complaint, it nevertheless was afforded an efficient mechanism to collect those damages to which they were legally entitled from a tribal member. Tribal appellate courts have also vacated damage awards made to tribal members against non-Indian interests. In General Motors Acceptance Corp. v. Bitah, 16 Indian L. Rep. 6002 (Nav. Sup. Ct. 1989), for example, the Navajo Supreme Court vacated a $85,000 damage award against General Motors Acceptance Corporation for fraudulent repossession, taking the highly unusual step of determining that a Navajo jury's award lacked a proper evidentiary basis and finding that the trial court erred in failing to direct a verdict for the non-Indian defendant. As is true of most of these cases, the opinion, written by Justice Raymond Austm," takes almost no account of the tribal membership, race, or ethnicity of the parties. See also, Bighorse v. Confederated Salish and Kootenai Tribes of the Flathead Reservation, 15 Indian L. Rep. 6048 (1988) (fairly apportioning negligence, and consequently, damages between Indian and non- Again, while not relevant to assessing the opinion, it should be noted for the record that the Honorable Raymond Austin is an Associate Justice of the Navajo Supreme Court, has served as a visiting professor at the Stanford Law School and Arizona State University College of Law., and is an enrolled member of the Navajo Nation. 613 Indian drivers in an automobile/truck accident case to which the tribe was a party defendant under the legal doctrine of respondeat superior). In short, a review of the reported cases in the Indian Law Reporter, while admittedly nonsystematic, clearly refutes any notion that non-Indians or nonmembers are treated unfairly or not evenhandedly in tribal courts. Rather, tribal courts approach cases involving competing Indian and non-Indian interests in at least as fair, unbiased, evenhanded and efficient a fashion as many state couns could or would do in like circumstances. The notion that tribal courts provide a lesser or biased system of justice constitutes a demonstrably false myth conjured up out of the racial preconceptions of those who adhere to it. In short, the available published data and the anecdotal evidence with which I am familiar simply will not support, and in fact tends to disprove, the need for any major change in federal Indian policy to facilitate state and federal jurisdiction over claims affecting tribal interests of the type proposed in the legislation under consideration in this hearing. Involuntarily Waiving Tribal Sovereign Immunity Constitutes an Unnecessary and. Perhaps, Illegal Intrusion on Tribal Sovereignty The legislation that forms the subject of these hearings proposes to waive tribal sovereign immunity in a broad, ill-defined, and legally indefensible manner. Like all sovereigns, Indian tribes possess an inherent immunity from suit without their consent. In The Federalist No. 81, Alexander Hamilton, one of the most important figures in the history of the adoption of the United States Constitution, wrote, "It is inherent in the nature of sovereignty, not to be amenable to suit of an individual without its consent.'' As reflected by the history of the adoption of the Eleventh Amendment to the United States Constitution, all sovereigns prize and jealously guard their sovereign immunity from suit. The federal courts in a long and unbrokem line of cases have recognized that Indian tribes possess sovereign immunity as part of their inherent sovereignty. E.g. Oklahoma Tax Comm 'n v. Citizens Band of Potawatomi Indian Tribe of Oklahoma, 490 U.S. 505 (1991;, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); United States v. United States Fidelity & Guaranty Co. , 309 U.S. 506, 511-512(1 940). Like all governments, Indian tribes seek to determine for themselves when and in which courts they will be subject to suit. The proposed legislation, by denying Indian tribes that right and by arrogating to this Congress the paternalistic authority to ' '■jr»-m — z- 614 make that decision for them, attacks that basic attribute of sovereignty, in this case the sovereignty of the Indian tribes, of which Alexander Hamilton spoke. There are at least four major problems with the proposed legislation. First, as noted above, there is no need for the statutory change as tribal courts are adequate to handle the litigation in question (without any federal waiver of tribal sovereign immunity) and, yet, surprisingly, they constitute the only court not mentioned in the proposed waiver of sovereign immunity. Second, despite the strong legal tradition that waivers of sovereign immunity are carefully and narrowly drafted and narrowly construed, the proposed waiver constitutes a broad, ill-defined waiver of sovereign immunity that would create broad ambiguity and conftision. Third, despite the fact that most waivers of sovereign immunity wai.ve such immunity for suit only in the courts of the waiving sovereign, this proposed waiver of sovereign immunity waives tribal sovereignty for all courts within the states except tribal courts. Fourth, despite the fact that most waivers of sovereign immunity are made by the sovereign possessing the immunity, this waiver constitutes an intergovernmental waiver of sovereign immunity by which the federal government attempts to waive the sovereignty of a different government, the Indian tribes. The courts recently have looked with great disfavor on such intergovernmental waivers of sovereign immunity. Finally, serious legal doubts exist about the authority and power of Congress to enact the proposed statute waiving sovereign immunity. When one combines the third and fourth flaw noted above, it is apparent that the proposal calls for Congress to waive the sovereign immunity of another government, the Indian tribes, for suits in courts of different sovereigns, the federal and state courts. With good reason, the federal courts have been very skeptical of such wide-ranging waivers of sovereign immunity. This statement will consider each of these flaws in the proposed legislation in order. As already noted, the tribal courts already can and do handle cases of the type which the proposed legislation seeks to redirect to federal and state courts. While a myth has grown up that tribal sovereign immunity bars any and all actions against tribal officials who might affect property or other rights, nothing could be further from the truth. First, like the federal government and the states, some tribes have enacted limited waivers of tribal sovereign immunity as part of tribal tort claims statutes, employment rights statutes, or the like. See e.g., Bauer v. Mashantucket Pequot Gaming Enterprise, 22 Indian Law Rep. 6145 (Mash. Peq. Ct. App. 1994) (Mashentucket Pequot Tribe has enacted tort claims statute governing torts arising fi-om the negligence of its gaming enterprise or its agents or employees). Even where not affirmative tribal ordinance waives sovereign 615 immunity, the scope of that immunity under tribal law is not always as broad as some assume. While some tribes, and therefore some tribal court decisions, do extend tribal sovereign immunity to cover suits, or at least damage actions, against tribal officials, e.g. Lovermi v. Miccosukee Tribe of Indians of Florida, 23 Indian Law Rep. 6090 (Mice. Tr. Ct. 1996), the general trend in recent tribal court decisions has been to permit suits against tribal officials, particularly for injunctive and declaratory relief, and to hold either that the sovereign immunity of the tribe does not extend to tribal officials or that any illegal actions are outside of the scope of their authority and therefore not barred by the defense of sovereign immunity. For example, earlier this year, the Winnebago Supreme Court ruled in Rave V. Reynolds, No. 96-01 (Winn. Sup. Ct. 1996), in a case on which I sat as a member of the Court, that the provisions of the Tribal Code of the Winnebago Tribe of Nebraska authorizing suits against tribal officials for acts contrary to tribal law or to the Indian Civil Rights Act of 1968 clearly indicated that under tribal law, as under federal common law, tribal sovereign immunity did not extend to tribal officials. Similarly, in Thompson v. Cheyenne River Sioux Tribe Board of Police Commissioners, 23 Indian Law Reporter 6045 (Chy. R. Sx. Ct. App. 1996), the Cheyenne River Sioux Tribal Court of Appeals, in another case in which I sat as a member of the Court, ruled, in accordance with its earlier precedents, that Lakota tradition and tribal law required a forum in which illegal actions by tribal officials could be heard. The decision in Thompson, however, went even further than most federal and state courts have generally ruled by holding that under tribal law tribal sovereign immunity did not extend to or bar suits against tribal agencies for injunctive and declaratory relief Similarly, in Moran v. Council of the Confederated Salish & Kootenai Tribes, 22 Indian Law Rep. 6149 (C. S. & K. T. Ct. App. 1995), the Court of Appeals for the Confederated Salish & Kootenai Tribes held that tribal sovereign immunity did not bar suit against the members of the tribal council even though, as in federal or state court, it would have barred suit against the Tribe or the Tribal Council as an institutional defendant. In short, the clear trend in recent tribal court decisions is to permit tribal officials to be sued for violations of applicable federal or tribal law and to refijse to extend tribal sovereign immunity to bar such litigation. Consequently, there is absolutely no need to supply any additional or alternative forum in federal or state courts for such cases, particularly where doing so would violate fundamental understandings and promises that the United States has long made to Indian tribes. 10 616 While most waivers of sovereign immunity are quite limited and specific, the proposed legislation is broad, open ended and ill-defined. When federal or state governments waive sovereign immunity, they do not generally do so in the blanket fashion contemplated by the proposed legislation, but, rather, adopt very specific, narrow, carefiilly tailored statutes that not only clearly specify, delineate, and limit the classes of cases to which the waiver applies, but also carefully limit the courts in which such suits must be filed (including the special creation of governmental claims courts to hear such proceedings), and provide special procedures, including short statutory periods of the filing of such claims denials of jury trials for the adjudication. The proposed legislation contains none of these elements generally associated with the limited waivers of federal or state sovereign immunity and, instead, merely treats the Indian tribe and another private party, thereby further denying and marginalizing the sovereignty of the tribes. The waivers of sovereign immunity enacted by the federal government illustrate the point. Under the 28 U.S.C. §§ 1491-1509, the United States has enacted a limited waiver of sovereign immunity for contractual and other claims for damages not arising from torts that directs such cases to a special non-Article III legislative court known as the United States Court of Federal Claims. In that court there is no jury trial. Similarly, like most states and some tribes. Congress has enacted Federal Tort Claims Act (FTCA), codified in relevant part at 28 U.S.C. §§ 1346(b), 2671-2680. Like most state and tribal waivers of sovereign immunity, FTCA contains precise and limited definitions of the causes of action to which the waiver of sovereign immunity applies, including numerous exceptions found in 28 U.S.C. § 2680. Additionally, like many state tort claims statutes, the Federal Tort Claims Act requires prior presentment of the claim and its denial by an agency of the government as a precondition to suit. 28 U.S.C. § 2675(a). Finally, as with virtually all waivers of federal, state, and tribal immunity, these statutes only waive sovereign immunity for suit in the courts of the sovereign whose immunity is waived, not in the courts on another sovereign, as proposed by this legislation. Not only are the federal, state, and tribal statutes waiving sovereign immunity generally narrowly drafted and heavily laden with special procedural safeguards including special tribunals, the courts interpreting waivers of sovereign immunity generally attempt to enforce the tradition of respect for sovereignty by construing any statutory waiver of sovereign immunity quite narrowly. E.g. United States v. Testan, 424 U.S. 392 (1976;; United States v. Mitchell, 445 U.S. 535 (1980) Obviously, the waiver of tribal sovereign immunity contained in the proposed legislation is recklessly far broader, less defined and limited in scope than most federal, state, and tribal waivers of sovereign immunity. Furthermore, it contains 11 617 none of the procedural safeguards which sovereign governments commonly include in their waivers of sovereign immunity. More importantly, the waiver of sovereign immunity found in the proposed legislation attempts to waive tribal sovereign immunity not for suits in the tribes' own forums, the tribal courts, but, rather, only for suits in federal and state courts. The most common feature of the federal and state waivers of sovereign immunity noted above, is that they generally waive sovereign immunity only for suits in the sovereign's own courts. Thus, with very few exceptions, the federal government has waived sovereign immunity only for suits in federal, rather than state court. The few exceptions that exist to that principle generally involve very limited situations where the presence of the United States in important litigation central to state interests is necessary to fully adjudicate the controversy, as in the area of water rights. E.g. 43 U.S.C. § 666 (the McCarran Amendment consenting suit against the United States in state courts to adjudicate federal water rights as part of a general stream adjudication). The waiver of tribal sovereign immunity attempted in the proposed legislation for federal and state adjudication not only violates federal treaty guarantees and the general principles and traditions of federal Indian law, it cannot be justified based on the type of imperative need that is used to justify extraordinary waivers of sovereign immunity to courts of another sovereign, such as the McCarran Amendment. Not only does the proposed legislation purport to waive tribal sovereign immunity to the courts of another sovereign, but it purports to have the federal government undertake to mandate such waiver, rather than permitting the tribes to make such decisions. Intergovernmental waivers of sovereign immunity constitute extraordinary governmental actions that must be justified on a compelling showing of governmental power. Just last term, the Supreme Court of the United States declared unconstitutional another such intergovernmental waiver of sovereign immunity, holding that this body lacked constitutional authority to waive the immunity of the states for suit in federal courts. Seminole Tribe of Florida v. Florida, 1 16 S. Ct. 1 1 14 (1996). Just as the State of Florida was legally offended and felt its sovereignty significantly impaired by the federal waiver of state sovereignty involved in the Seminole Tribe case, so tribes might justifiably believe the waiver of sovereign immunity contained in the proposed legislation undermines their sovereignty and impairs their legal existence as autonomous self- governing states which can enforce their own laws involving reservation matters through their tribal courts or other forums. 618 Finally, as in Seminole Tribe, the waiver of sovereign immunity contained in the proposed legislation combines both an intergovernmental waiver of sovereign immunity with a waiver to the courts of another sovereign, in this case two other sovereigns, the federal government and states. As Seminole Tribe demonstrates, it is precisely these types of waivers that have the most far reaching effects and of which the courts properly are the most skeptical. While dicta in some cases suggests a power of Congress to waive tribal sovereign immunity, no case of which I am aware has ever found and sustained the legality o^ a federal waiver of tribal sovereign immunity. Indeed, the courts have worked quite hard to avoid finding that Congress had waived tribal sovereign immunity, perhaps to avoid the necessity of deciding the difficult issue of whether Congress has any power to waive the sovereign immunity of another government, such as the Indian tribes, in the absence of a clear constitutional amendment granting such power expressly or by necessary implication. E.g. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). In addition to the fact that the proposed legislation is unnecessary and constitutes a gratuitous affront to the tribal sovereignty solemnly guaranteed to the Indian tribes by the United States, there are reasons to doubt the legality of the waiver of sovereign immunity contained in the proposed legislation. Conclusion In Worcester v. Georgia, 3\ U.S. (6 Pet.) 515, (1832), Chief Justice John Marshall, one of the greatest Chief Justices of the Supreme Court of the United States, surveyed federal Indian policy fi-om colonial times and wrote: Certain it is, that our history fijmishes no example, from the first settlement of our country, of any attempt on the part of the [government], to interfere with the internal affairs of the Indians. . . . While perhaps comparatively less true in the twentieth century particularly with reference to tribal criminal jurisdiction over non-Indians, Chief Justice Marshall's statement captured the long tradition of recognizing tribal sovereignty and protecting the right of tribes to govern their reservations and to apply their laws through their own tribal courts. The proposed legislation constitutes the ' Additionally, the section of the proposed legislation purporting to confer jurisdiction on the stale courts over matters governed by either tribal or state law, might raise serious tenth amendment questions about the power of Congress to affect the jurisdiction of the state courts over matters not within the judicial power of the United States or otherwise the subject of affirmative substantive legislation by Congress. 13 619 greatest threat to that legal tradition proposed in many years. It threatens the very existence of tribal courts, which this Congress recently sought to protect and strengthen through the Indian Tribal Justice Act of 1993, Public Law 103-176, 107 Stat. 2004. It undermines the ability of tribal governments to have their courts apply tribal, rather than state, law to disputes that arise on their reservation and thereby totally undermines tribal sovereignty. Finally, it affronts and assaults tribal sovereignty by diminishing the force of tribal governance and arrogating to the federal government the decisions as to when, how, and where tribal sovereign immunity, a venerable legal doctrine that Alexander Hamilton described as inherent in the nature of sovereignty, will be waived. As explained in this statement, the proposed legislation therefore is dangerous, offensive to tribes, unnecessary, unjustifiable, and perhaps illegal. It is bad policy and it is poorly drafted. In short, I would suggest it should be overwhelmingly disapproved and that the racial preconceptions that underlie this proposed legislation should be relegated to the dustbin of American history that also mercifully swallowed the institution of slavery. 14 620 TESTIMONY OF ROBERT CONGDON, CHARLES ELIAS AND WESLEY JOHNSON on behalf of the Towns of Ledyard, North Stonington, and Preston, Connecticut before the Senate Committee on Indian Affairs Introduction Mr. Chairman, Mr. Vice Chairman, and members of the Committee, thank you for the opportunity to submit this written testimony on the need for legislative action to address problems associated with tribal sovereign immunity. We serve as the top elected officials of three small towns in southeastern Connecticut - Ledyard, North Stonington, and Preston ~ that have witnessed the astonishing growth and success of the Mashantucket Pequot Tribe over this last decade as a result of gaming activities conducted on its lands. With the growth and expansion of the Tribe, problems are now arising as a result of sovereign immunity. The purpose of this testimony is to bring these problems to your attention and request further consideration of this important issue. Fifteen years ago the Mashantucket Pequot Tribe was not even recognized under federal law. Today, as a result of its hugely successful casino resort, it is the dominant economic force and landowner in the region. For the Towns, standing witness to this growth and success has been both exciting and troubling. We admire the great success of our Indian neighbors, and we are grateful for the economic vitality [l9360-0001/DA962810.0ni 10/10/96 621 their casino has brought to the region. We are greatly concerned, however, over the many problems that are now arising incidental to the Tribe's success and unique status under federal law. These concerns include: 1) the lack of comprehensive environmental review of the Tribe's development activities as required by NEPA and other laws; 2) the Tribe's intention to take extensive landholdings outside of its reservation into trust in violation of federal law and with accompanying damage to the local tax base; 3) the lack of compensation to the Towns for the serious impacts on our communities that result from the Tribe's activities; 4) and the absence of any meaningful mechanism for the Towns to interact with the Tribe to address issues of mutual concern. Another major area of concern is the subject of this hearing, that is the sovereign immunity of the Tribe which insulates it from most forms of legal challenge to its actions. This latter issue is the focus of this testimony. Background on the Towns and the Tribe At the outset, we want to provide some background on the Towns and the Tribe. This information is necessary to obtain a perspective on why the sovereign immimity issue is of such concern to us and our constituents. Ledyard, North Stonington, and Preston are small communities with a combined population of about 25,000. The Towns' combined aimual tax revenue is about $25 million. Our Towns are located in what has been, until recently, a predominandy rural, residential setting. (19360-0001/DA962g|0.011] -2- 10/10/96 622 In recent years, the social, economic, and environmental character of our conmiunities has experienced rapid transformation as a result of the opening of the Foxwoods Casino and Resort on the reservation lands of the Mashantucket Pequot Tribe. This facility is claimed by many to be the largest, most successful casino in the world. It operates round the clock, 365 days a year, and on a typical summer weekend day the number of visitors to the Casino (about 60,000) is more than twice the total population of all three towns. In the month of July 1996, the revenues from the Tribe's slot machines alone exceeded $60 million, approximately foiu" times the annual tax revenue of Ledyard, the town in which Foxwoods in located. The Tribe's own officials claim that nowhere in the gambling industry has this level of revenue ever been approached. Annual revenue for the Tribe is estimated to be over $1.3 billion, with profits well in excess of $300 milUon. The Tribe currently consists of around 350 members. The Tribe is by far the largest landowner in the region. It owns over 4,500 acres of fee land outside of the boundaries of its 2,210 acre reservation. This property is scattered throughout southeastern Connecticut, and the Tribe has indicated it intends to purchase much more land. The Tribe also is engaged in nimierous economic ventures beyond gaming, including resort facilities, a pharmaceutical network, a shipbuilding business, and other ventures. (193«ear. Most tribes are, at this time, still trying to meet the basic needs of their people and provide essential governmental services. Diverting resources to defend various suits 636 would only mean diverting the very scarce resources away from those critical needs, imperiling cultural and political survival. Thus, to the extent that Congress chooses to address the issue of tribal sovereign immunity, it is Important that it do so bearing this in mind as well as federal trust obligations, notions of the emerging concepts of international indigenous rights, and other critical factors. NOTIONS OF SOVEREIGN IMMUNITY IN INDIAN COUNTRY Sovereign immunity .serves numerous purposes in Indian country as it does outside of Indian country. It serves to protect the public (tribal) fisc and to preserve and protect the dignity and functioning of the sovereign. Blanket waivers of sovereign immunity serve to constrain or to chill the free exercise of sovereign governmental functions if its every action is potentially subject to suit. This would especially be the case where tribal governments are concerned because of the budgetary constraints under which Indian tribes attempt to carry out their responsibilities Where appropriate, many federal, state, and tribal governments have enacted tort claims acts or provided for other forms of limited waivers of sovereign immunity. At least one tribal court found that, in accordance with its custom, sovereign immunity was not even an appropriate concept under tribal common (customary) law. Further, the courts have found that the federal government has provided for certain waivers of state and tribal sovereign immunity by statute (to the extent limited by the 11th amendment to the Constitution) or by federal constitutional amendments. Although the federal constitution is generally not applicable to tribes for certain purposes as it is to states, "Congress, at 25 U.S.C. § 1302(8) (Indian Civil Rights Act), has provided that tribes may not "deprive any person of . . . property without due process of law" as is provided for protection against state and federal actions. In other words, Congress has already provided Indians and non-Indians the statutory protections necessary to accomplish the result of protecting non- Indian properties from tribal governmental actions within Indian country to the same extent 637 I that it has provided such protections from federal and state actions. It is not necessary to take further actions to make non-Indians 'super-citizens" within Indian country. Resolution of such issues may be resolved in tribal courts. Additional federal action to unilaterally waive tribal sovereign immunity and to further infringe upon tribal sovereign powers, authorities and functions should not be necessary where tribal courts are functioning entities. If Congress believes that tribal courts are inappropriate venues for resolution of such issues, it shoukJ consider enhancing the functioning of tribal courts by providing for additional training and furids for their establishment and management in accordance with the federal policy of tribal self determination . . . strengthening and promoting tribal self sufficiency and control. Tribal court systems should further be allowed to utilize tribal common law in a manner appropriate to tribal custom or in the manner and to the extent that the tribes have adopted their systems to the American models of jurisprudence. JUDICIAL FORA FOR ISSUE RESOLUTION The notion of subjecting tribes to state judicial fora for issue resolution is a throwback to the termination era which was repudiated in the 1970s. It further advocates a notion of racial distrust of tribal systems of governance and belittles the tribal sovereign. Tribal governments sliould carry the same respect as do the state and federal governments, ft is doubtful that Congress would consider delegating federal authority to, or creating judicial authority in, tribal courts where states have infringed upon individual Indian rights (on individual Indian ovmed properties) in on or off-reservation settings. To Indian nations, the proposal that state courts be granted authority to resolve disputes tjetween Indian nations and reservatkin resident non-Indian citizens raises the same ■flags" of concern. Unless Congress is beyond the precipice of reversing federal Indian policy back toward the debacles of altotment and assimilation or termination policies of the past it is dear that such a proposal is inconsistent with tritjal self determination, 35-542 97-21 638 indigenous rights, and notions of sovereign dignity. Please consider the following analogy: Should a citizen of state B, owning property in state A and t^eiieving that state A has infringed upon his or her property values or rights, be able to bring an action against state A in state B's courts in accordance with state B's rules and laws pursuant to federal legislation? States would dearly consider such an arrangement to be an unconsdonable intrusion upon state sovereignty. Further, it is doubtful that such legislation would be acceptable to Congress and even if acceptable perhaps beyond congressional powers pursuant to the 1 1th amendment of the U.S. Constitution, especially in consideration of the U.S. Supreme Court's recent decision in Seminole Indian Tribe of Rorida v. State pf Florida . However, since trlties have neither direct representation in Congress as sovereign bodies (as do states) nor are imbued with the states' 11th amendment sovereign protections from congressional waivers of sovereign immunity, such legislation is more lit^eiy to be approved and more iilocuments 98 (January 24, 1983) (Reagan statement); Remarks at 46th Annual Convention of NCAI (September 28, 1989) (Bush Statement). Section 329 would undermine these basic principles of Indian law by depriving tribal courts of much of their jurisdiction and by granting a broad waiver of tribal sovereign immunity, thus attacking two of the primary manifestations of tribal sovereignty and the right to tribal self-determination. It is a basic principle of Indian law and an important aspect of tribal sovereignty that tribes retain exclusive jurisdiction over reservation affairs. E.g.. United States v. Wheeler . 435 U.S. 313 (1978). Actions involving tribal regulation or other assertions of tribal civil jurisdiction over property within Lndian country should be heard at least in the first instance in tribal court. Even in cases where non-Indian owned fee land is involved (to which Section 329 appears to be addressed), tribal jurisdiction still exists where a non-Indian has entered into a contractual relationship with the tribe, or where the conduct which the tribe seeks to regulate "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Montana v. United States . 450 U.S. 544, 565 - 66 (1981) (citations omitted). And even those statutes which expressly delegate jurisdiction to states in certain instances, such as Public Law 280, do not deprive the tribes of concurrent jurisdiction in those instances, 566, 6.*.., Bryan v. Itasca County . 426 U.S. 373 (1976). Moreover, the federal courts have already laid out well-established principles 641 Honorable John McCain Honorable Daniel K. Inouye October 7, 1996 Page 3 governing the exercise of tribal jurisdiction.' As noted above, the courts have ruled as to when tribal courU have exclusive jurisdiction, when that jurisdiction is concurrent with state or federal jurisdiction, and when tribes have jurisdiction over non-Indians or non-Indian land within Indian country. In addition, the exercise of tribal jurisdiction over non-Indians is subject to review in federal court. National Fanners Union Ins. Co. v. Crow Tribe. 471 U.S. 845 (1985). For Congress to enact a provision such as Section 329 would overturn this entire body of law, and instead of providing an alternative framework would simply deprive the tribal courts of jurisdiction. The possible ramifications of Section 329 are doubly severe because the provision is so broadly worded; in fact, it threatens to deprive the tribal courts of jurisdiction altogether. The term "private property" could include lease rights or rights-of-way, for example, and almost any action could be said to have an "impact" or "threaten to impact" the ownership or use of private property. Thus, Section 329 could easily be interpreted to subject a tribe to an injunction by a state court against taxation of oil and gas produced from an Indian reservation pursuant to mineral leases with the tribe, in effect overruling the Supreme Court's decision in Merrion v. Jicarilla Apache Tribe . 455 U.S. 130 (1981). Similarly, it could be interpreted ' These principles apply to the Seneca Nation courts, as they do to any other tribal court, notwithstanding Ms. Coleman's implications to the contrary in her prepared testimony (at page 8). S^ alSQ Constitution of Seneca Nation of Indians of 1848, as amended, Section rv (establishing jurisdiction of Seneca Nation Courts over "all cases arising under this Constitution, the customs or laws of the Nation, and to any case in which the Nation, a member of the Nation or any person or corporate entity residing on, organized on, or doing business on any of the Reservations shall be a party"). 'r.*. v..m < 642 Honorable John McCain Honorable Daniel K. Inouye October 7, 1996 Page 4 to allow a state court to enjoin a tribe from enforcing environmental laws against the owner of a source of air pollution on leased land within a reservation, in contravention of explicit provisions in the Clean Air Act delegating such authority to tribes. SfiS. £.£..> 42 U.S.C. § 7601(d)(2)(B). The Seneca Nation also opposes Section 329 because it would deprive tribes of their right to immunity from suit, a right which has been recognized by the Supreme Court. E.g.. Santa Clara Pueblo v. Martinez . 436 U.S. 49 (1978). The doctrine of tribal sovereign immunity is another important manifestation of the principles of tribal sovereignty and tribal self-determination. As pointed out by the Eighth Circuit in American Indian Agricultural Credit Consortium v. Stand ing Rock Sioux Tribe . 780 F.2d 1374, 1378 (1985), "Indian tribes enjoy immunity because they are sovereigns predating the Constitution" (citations omitted). Accord Guardipee v. Con federated Tribes of the Grand Ronde Community of Oregon . 19 Indian L. Rep. 6111 (Gr. Ronde Tr. Ct., June 11, 1992). Indeed, tribal sovereign immunity serves an important purpose in protecting and promoting Indian tribal self-government. The Supreme Court has recognized that "the common-law sovereign immunity possessed by the Tribe is a necessary corollary to Indian sovereignty and self- government" (citations omitted). Three Affiliated Tribes v. Wold Engineering . 476 U.S. 877, 890 (1986). Similarly, in Oklahoma Ta x Comm'n v. Citizen Band Potowatomi of Oklahoma . 498 U.S. 505, 510 (1991), the Supreme Court explained that Congress "has consistently reiterated its ^>proval of the immunity doctrine," reflecting its desire to promote 643 Honorable John McCain Honorable Daniel K. Inouye October 7, 1996 Page 5 its "goal of Indian self-government, including its 'over-riding goal' of encouraging tribal self- sufficiency and economic development" (citation omitted). Moreover, as the court noted in Martinez . 436 U.S. at 64-65, a finding that Congress waived tribal immunity in federal courts "would also impose serious financial burdens on already 'financially' disadvantaged tribes" (citation omitted). Sfifi slSQ Rowland v. Hoopa Valley Tribe . 21 Indian L. Rep. 6087, 6088 (Hoopa Valley Ct. App., Sept. 29, 1992) ("[t]he purpose of sovereign immunity is to preserve the autonomous political eiustence of the tribes and tribal assets"); Guardipee . 19 Indian L. Rep. at 6111 ("tribal sovereign immunity is necessary to preserve and protect tribal assets from claims and judgments that would soon deplete tribal resources'). In keeping with these principles, it should be up to an individual tribe to determine the circumstances when it should waive its sovereign immunity and when the immunity should be retained. To subject tribes to a blanket waiver of sovereign immunity would expose tribes to limitless lawsuits and by itself would make tribal government untenable. To subject tribes to such lawsuits in state and federal courts would be a reversion to the anti- Indian policies of the allotment and termination periods. The Seneca Nation also objects to several aspects of the testimony of Ms. Jennifer Coleman, who is a lawyer representing a handful of former lessees of the Seneca Nation in an ongoing dispute with the Nation. Ms. Coleman testified in favor of the curtailment of tribal sovereign immunity, such as would be accomplished by proposed Section 329. Ms. Coleman's statements in support of such a curtailment of tribal sovereign immunity could 644 Honorable John McCain Honorable Daniel K. Inouye October 7, 1996 Page 6 not, however, be farther from the truth. Specifically, Ms. Coleman stated in her testimony that Indian Nations enjoy a degree of sovereign immunity from suit greater than that of the state or federal governments. On the contrary, unlike the sovereign immunity of the federal government, which can be waived only by the federal government itself, and unlike the immunity of the states, which it is becoming more and more difficult for the federal government to waive, s^, e^, Seminole Tribe of Florida v. Florida . 116 S.Ct. 1114, 134 L.Ed. 2d 252 (1996), tribal sovereign immunity can be waived by Congress at will. See . e^, Martinez . 436 U.S. at 58; John v. City of Salamanca , 845 F.2d 37, 40 (2d Cir.), cert - denied . 488 U.S. 850 (1988). Congress should therefore exercise special care before causing such a large encroachment on tribal sovereignty. Ms. Coleman spears to base her statements regarding tribal sovereign immunity at least in part on the holding of the Second Circuit in Fluent v. Salamanca Indian Lease Authority . 928 F.2d 542, esfl. denied . 502 U.S. 818 (1991), a case which Ms. Coleman's clients brought against the Seneca Nation. In that case, Ms. Coleman's clients challenged not only the validity of the leases under the 1990 Settlement Act but also the constitutionality of the Act itself. What Ms. Coleman neglects to mention is that constitutional challenges of federal statutes must be brought against the federal government, and plaintiffs' failure to sue the United States had nothing whatever to do with the sovereign immunity of the Seneca Nation. Moreover, the Second Circuit dismissed the suit in Fluent not simply because the tribe was an indispensable party and was immune from suit, but also because the Acts on 645 Honorable John McCain Honorable Daniel K. Inouye October 7, 1996 Page? which plaintiffs relied to support their claim of right to another 99-year lease (the 1875 and 1890 Acts) did not apply to plaintiffs' lease renewals, but only to renewals made previously under those Acts (the leases had already been renewed for periods of 5, 12 and 99 years). It is thus far from clear whether plaintiffs would have won their case, even without the doctrine of tribal sovereign immunity.* Moreover, the now-expired leases that Ms. Coleman's clients and many others held with the Seneca Nation were for unconscionably low rents, as was recognized in the testimony and reports supporting the passage of the Seneca Nation Settlement Act of 1990.' Indeed, these unconscionably low rents were the reason for enactment of the settlement legislation. Further, the previous legislation authorizing these leases (the Acts of 1875 and 1890) had been passed by Congress over the objections of the Seneca Nation. Thus, Senator Moynihan testified, in supporting the passage of the 1990 Settlement Act: the leases were authorized over the objections of the Senecas, by an act of the 51st Congress, on September 30, 1890. ... As these leases contained no rent escalation * The United States has since brought an action in federal district court for ejectment and payment of past rent and mesne profits against Ms. Coleman's clients, who have continued to occupy Seneca Nation prc«perty without valid leases, despite four separate opportunities to enter into such leases. United States v. Fluent . No. 95-CV-356-A(H) (W.D.N. Y., complaint filed May 5, 1995); s^ alSQ Attachment 10 to Coleman Statement. The United States moved for partial summary judgment on the issue of ejectment, and a magistrate granted the motion and issued an order of ejectment on July 9, 1996. The defendants filed objections to the Magistrate's Report on July 19, 1996, and the District Court's decision is still pending. ' SfiS, e.g.. Testimony of Prof. Laurence M. Hauptman, included as an attachment to this letter. 646 Honorable John McCain Honorable Daniel K. Inouye October 7, 1996 Page 8 provision, over their 99-year duration, some lessees have paid as little as $1 per year for the use of the land. Cong. Rec. S15427 (daily ed. October 16, 1990). Similarly, both the House and Senate Reports accompanying the 1990 settlement legislation stated. The . . . leases were . . . executed without Federal supervision, assistance, or support at extremely low rental rates, many as low as $1 per year, with no provision for escalation of rents. . . . There does not seem to be any disagreement that the rental terms of the current leases are grossly unfair. H.R. Rep. No. 101-511, 101st Cong., 2d Sess. 5 (1990); H.R. Rq>. No. 101-832, 101st Cong., 2d Sess. 4 (1990). SfiS aisa Protest of the Seneca Nation of Indians Against the Passage of H.R. No. 3080 (June 8, 1874); United States v. Fomess . 125 F.2d 928, 941 (2d Cir.), ^fl. denied , 316 U.S. 694 (1942) (99-year lease at issue had rent of four dollars a year, an amount which "may shock even a calloused conscience*); Attachment 4 to Coleman Statement, at 39 ('Each of the leases [expiring in 1991] provides for an annual payment of three dollars or less"). The Seneca Nation Settlement Act of 1990 and the new leases it authorized should not be used to justify a waiver of tribal sovereign immunity and the further erosion of tribal sovereignty. It should not be forgotten that it was Congress' Mure to properiy exercise its trust responsibility to the Seneca Nation when it perpetuated "grossly unfair* leases in the 1875 and 1890 Acts, discussed above, that allowed the Nation to be exploited for virtually a century. Congress recognized this fact when it appn^riated $35 million for the extinguishment of the Nation's claims against die United States as part of the 1990 Settlement 647 Honorable John McCain Honorable Daniel K. Inouye October 7, 1996 Page 9 Act. S^ 25 U.S.C. §§ 177(a)(6), 1774b(b) and 1774d(b). To use Congress' attempt to remedy past unfairness as a justification for waiving tribal sovereign immunity would be to punish the Seneca Nation - and all other tribes - for fighting to end a long injustice and for acting on its own behalf to protect and promote its own interests. If anything, this situation involving the Seneca Nation is an example of why Congress should continue to defend and preserve tribal sovereign immunity. Without it, the Nation would be forced to expend a large portion of the Settlement Act funds to defend its right to negotiate leases that are fair and equitable, thereby negating Congress' attempt to compensate the Nation for past injustice and to promote the future economic self-sufficiency of the Nation and its members. 25 U.S.C. §§ 1774(b)(2) and (6). Finally, the Seneca Nation believes that since the Committee invited a representative from one side of the Seneca Nation lease dispute to testify at the hearing, the Committee should also have invited a representative of the Nation, on the other side of the dispute, to testify as a witness at the hearing. If the Committee had done so, perhaps Ms. Coleman would have been more careful to check the accuracy of her statements. In any event, the Seneca Nation hopes to be invited as a witness in the future, should there be any further hearings on the subject or on other related matters. Sincerely yours, Derril B. Jordan *'^ '^ Attorney General of the Seneca Nation of Indians 648 Testimony on HR 5367, "The Seneca Nadon Settlement Act of 1990" Prepared by Laurence M. Haupbnan Professor of History State University of New York College at New Paltz New Paltz, New York For the United States House of Representatives Subcommittee on Interior and Insular Affairs September 13, 1990 The approaching expiration of the Salamanca leases on February 19, 1991 brings us together this morning. I should like to thank this subconunittee for inviting me to speak at this hearing to present some of the results of my twenty years of research on this particular subject I am here to provide background testimony about the history of the leases and to show that the federal government has not carried out its trust responsibilities to the Seneca Nation of Indians with regard to these leases. My testimony will show that, although the nature of the federal- Indian relationship in the case of the Seneca Nation is unique because of the longstanding pre- emptive right to Seneca lands held by the heirs of the Ogden Land Company, this spwdal situation, nevertheless, did not prevent the federal government from carrying out its trust responsibilities towards the Seneca Nation. The unbroken presence of largely do-nothing federal Indian agents, some with vested interests of their own, from the time of the original leases until the 1930s further demonstrates that federal officials rarely carried out their required trust responsibilities. Moreover, the Seneca Nation of Indians "did not sleep on its rights," but frequently protested inequities, including the origjnal congressional confirmation of the leases in 1875 and subsequent delinquencies of lease payments.' To support my testimony, I have undertaken extensive research on Seneca history, including the history of the Seneca leases. I have written or co-edited six books and nearly fifty articles on Native American history and federal and state Indian policies. In 1985-1986, I served as Senior Fellow of the Nelson A. Rockefeller Institute of Government in Albany, New York, where I dealt with a wide variety of New York State-Iroquois Indian issues. One of my public policy studies (Working Papjer No. 20) published by the Institute in the Fall, 1985, was entitled "The Historical Background to the Present Day Seneca Nation-Salamanca Lease Controversy.^ In the mid-nineteenth century, the Senecas began leasing rights-of-way through portions of their reservations to several railroads, irKluding the Erie Railroad and its component spur 'The Soiea Nation probattd the CongresHonal conOnnalion of aecause they were infinitesimal and partly because they assumed that the Indians were powerless to force them to pay. By 1939, over 25 percent of the leases within the Allegany Reservation were m default. Moreover, more than two hundred had been delinquent for more than se;ven years." After years of seeking redress on nonpayment or on the undervalued feature of the leases, the Seneca Nation finally found a favorable ear at the Public Lands Division of the Uruted States Department of Justice in the 1930s. Charles Cleaves Daniels, a Special Assistant to United States Attorney Ceiteral Nicholas Biddle and a spiecialist in Indian law, visited Salamanca in 1934 and soon after prep>ared a memorandum that suggested it would be proper procedure for the Seneca Nation to cancel delinquent leases. By 1939, the Seneca Nation, with the aid of the Justice Department, cancelled 800 of these delinquent leases. "^ At the centerpiece of Justice Dep>artinent and Seneca concern was the "Fomess case." The Fomesses. Fred and Jessie, operated a large garage in the commercial center of the city. Under the Seneca Nation formula, the Fomess' $4 per year rental of choice conunerdal property would have been raised to $230 per year. Their lease had been cancelled because they had not paid rent for eleven years. The Justice Department brought the test case on behalf of the Senecas to determine if the Indians had the right to cancel the Fomess' lease and other federally authorized leases because of nonpayment. The Justice Department soon won firm support from a powerful ally. Secretary of the Interior Harold L. Ickes, who saw the issue as righting a terrible past wrong done to the Indians. Nomiixal rentals of one dollar a year and insignificant rentals in the heart of the business district led Ickes to conclude that the "question should be settled in favor of the protection of the Indiaiu' interests and rights in this matter," not simply the acceptance of past rents due with interest. He recommended that the test cases be prosecuted to a Rnal legal conclusion since it would lead other delinquent lessees to negotiate with the Indians for new, more equitable leases." While preparing the Justice Department's case, Daniels discovered that the Senecas had repeatedly sought to deal with the delinquent leases. In 1911. a full-scale investigation of this situation had been undertaken by the Interior Department. Each year, the Superintendent of the New York Agency prepared a list of delinquent leaseholders. Yet, Washington had not acted to rectify the situation and cany out federal trust respoitsibilities. In 1931 and 1932, an audit of the books of the Seneca Nation had revealed the seriousness of the problem. Moreover, on several separate occasions prior to the cancellation of the leases, the Salamanca Republican-Press had quoted the mayor of tfie dty as urging the prompt payment of rentals." The Fomess case finally readied the United States District Court in 1941. The decision of the lower court rendered by Judge Knight found against the Senecas, but focused largely on the role of BlA Superintendent Chaiies Berry, rather than on whether the Senecas had the right to cancel deltTKiuent leases-* Fiitally, on January 20, 1942, the Federal Circuit Court of Appeals for ^^Arch Memll. "SaUounca LoM SdtlaiMsit' Americm Indian (New Yoilc City) 1 (Spring 1944): 3. ^^John Cooler to W. K. H«iaav Vfarxli 4. 1935. Raxcds oi ttta New York Agency. t93a-1949. Box 7. «3a0. RC 7S, NA. 'Indian Landlords Insist Palefaces Pay,' Xedu>ter Ttmea-Union. Mar«ii 10. 1939; Wilford Crouse, Chalroian, 'Raolutiofi of the L^se Cammiciee of the SeatxM Naticn of Indians,' Mar 23. 1739. Hraords of the New York Agotcy. 1939-1949, Box 7. #380, RC 7S. NA Saieca NaOon Rewlulian of May. 1940 attached to letter of C C Daniels to CKailes £. Berry, May 27, 1940, Reoords a( die New York Agency. 193a-1949, Box 7. #380, RC 75, NA. '*CC Dmieb to Charts E. Beny. Maicfa 12. March 22. July 3, 1940, Bacords of the New York Agmey, 1938-1949. Box 7. «380. RC 75, NA. Harald (decs to the Attorney CoieraL May 21, 1940. Recordi of th« New York Agotcy, I93&- 19*9, Box 7, •380, RC 75. NA. ''CC Daoiels to ChwVes E Bny. Maidi 19, March 28, 1940. Datuels to Fnnk A. Aithambaiill. June 20, 28. 1940, Records of the New York Agoicy. 1S38-1949, Box 7. #380. RC 7S, NA. ^7 F. Supp. 337. 653 the Second Circuit reversed and remanded fudge Knight's earlier decision.^' Finding against the Fomesses< the higher court restricted the application of state laws, insisting that the lessees were "customarily lax about paying their rent'; that all too frequently in the past they had been in default: and that the Seiiecas had attempted to cancel leases in the past. In one earlier instance, the Department of the Interior had blocked the Indians because of restrictions regarding the use of tribal funds in hiring an attorney. To the court, the "present action by the Nation, then, represents the culmination of a long struggle by the Indians to enforce their economic rights."^ The attorneys for Fbmess and the lessees in Salamanca had argued that the Senecas had no right to cancel the leases since they were procedurally barred by the New York Civil Practice Act. Justice Frank maintained, in overturning an earlier federal district court decision, that the congressional intent in confLrming the Salamanca leases in 1890 had to be determined first. Frank had stated: "We cannot believe that Congress intended that, in our times, the rights of American Indians as landlords should be determined by the early 17th century views of Coke — an antique dealer in obsolescent medieval ideal — commenting enthusiastically on the 15th centtuy writings of Littleton, a medieval lawyer."^ In 1890 when the Salamanca leases had been confirmed, the Congress still had a trust responsibility to Indians as guardians to protect them from exploitation. Thus, since Congress had not permitted application of the New York Civil Practice Act, it did not apply to the circumstances of the case. "State law cannot be invoked to limit the rigt>ts in lands granted by the United States to the Indians, because . . . State law does not apply to the Indians except so far as the United States has given its consent."^* Even after the United States Supreme Court refused to grant a certiorari hearing to Fomess' attorney, the Salamancans persisted in their efforts to resist the implications of the Federal Circiiit Court of Appeals' decision, namdy to negotiate new leases at higher rates with the Seneca Nation.^ In retaliation. Daniels advised the Justice and Interior Departments and the Seneca Nation to "give 'em both barrels" since only then would the lawyers and lessees in Salamanca believe that the "government is dead in earliest to secure the protection of its wards without further delay." He added that the "persons whose leases have been cancelled will fall over each other to secure new leases when they realize the danger of delay — paying heavy costs, attorneys' fees and possible lass of their lots."^' The Senecas then began eviction pjtoceedings vrith the support of the Justice and Interior Departments against the hold-out delinquent leaseholders who had refused to negotiate and sign new leases.^ The Oty of Salamanca, at the recommendation of their new attorney Heniy Manley, the former Assistant Attorney General of New York State, then sought injunctioiis to stop these evictions. These efforts were denied by judges in both federal and state courts. 21(i.5. V. Fanusa tt «L fS«Uw«if Tnat Co. tt *L. itiunaiani. 37 F- Supp. 337 (Febniuy U, 1941). 125 Fed. Rep.. 2cl Ser., 928 Uanuarx 20. 1942). "Our Indiaii Lndlords FmaUy Ce( a Brule' New Xark Tbna. January 21. 1942. ^125 F«l Rep, 2d S«., 931. 23lbid., 938. Z*lbi«t, 932. ^Ocy of SaUmaiu» a ml u. Lbutal Simta, 316 US. 694 Oune 1. 1M2). -Defendants File Answers in Indian I Cases.' StUmmnct Reyuhlicmn-Pmt, Mowembcr 25, 1942; ICnight [}ismlss^ City Suit Against Seneca Nation,' SalamttuM. ^eyvbliatn-Fmt, November 18, 1942: '^lanune i 10, 1937; to Joaeplnis Daniels, Ortotwr 12. 1937. DvsBnber 16. 1937. FefaruMy 5, 1938, July IS. 1938, September 8, 1939, Josephus Daol^ MS5, Vfiaafllm Reel 4, Library of Conpvaa. Manuscript Olviston, WaalilngCafv D.C ^'Local Indian Oifiee (snies Statement Regarding Lewes,' SaZamaxca fUyuhlican-Prat, November 5, 1942. WiUiam Zimmertnan to Oiartes H. Bory. June 26, 1942. Reoords o( the New York Agoicy. 1938-1949. Box 8. <38a, RC 75. NA- 654 Through these delay tactics, Manley sought to put economic pressure on the Indians because they needed the $13,000 in rent moneys tied up by the legal dispute.^* This Salamanca-Seneca lease war ended in 1944. Eventually, 627 leases were renegotiated upward; however, by that time, an anti-Indian backlash of immense proportions had developed. As early as August 1942. Daniels had seen the potential of a political backlash to the Indian victory in the Fomess decision. Looking into his crystal ball, the North Carolinian had predicted that the lessees and their supporters hoped "within three years" to elect a Congress "not in sympathy with the policy of protecting the Indians as the present administration has shown." To Daniels, "they may after numerous failures to do so, have Congress pass an act turning over to the 'tender merdes' of the State, the Indians." He concluded. "The sort of treatment that they would get can be understood when it is remembered that the State became a party against the Government in practically every case brought to protect the 'wards of the nation" from graft and exploitation.^ Daniels' prediction was almost entirely accurate. Instead of Daniels' estimate of a three-year process. Congress passed the so- called jurisdiction bills (seen by the Senecas as "spite bills" six to eight years later in 1948 and 1950. inspired by the political influence of the New York congressional delegation and its major Senate ally, Hugh Butler of Nebraska. Instead of investigating the remaining undervalued leases of the Senecas and doing something about them. Congress began a policy of termination, washing its hands of all Indian matters in the postwar years. In the vacuum came the emergence of the New York State Joint Legislative Committee and Nctv York State criminal and civil jurisdiction over Indian affairs. Adding insult to the indignities already faced by the Seneca Nation, Congress, in 19S1, passed the Seneca Rental Act. Because the New York Indian Agency was now closed, leaseholders under the provisions of the Act paid their rental money directly to the City of Salamanca; the city would then forward the money to the Seneca Nation. Although this facilitated payment and replaced the role of collection undertaken in the past by the Indian agent, the legislation created the false impression that the city had paramount authority over "its residents" and that the Indians were simply ordinary landowners, not federally recognized Indian nations. Later, in 1969. going against the wishes of the Seneca Nation, New York State created the Seneca Lease Authority. Until the House hearing of 1985, the federal government abdicated its tnjst responsibility to the Seneca Nation in regard to the Salamanca leases. Now is the time to rectify the situation by approaching this explosive issue with an even hand and by providing compensatory justice to the Seneca Nation of Indians. ^'Daniels to Attorney General, August 3, 12, 1?42. Records of the New York Agency, 1938-1949. Box 8. #380, RC 75, NA. ^'5- Year Dispute Over Indian Land Lcuea Is Ended.' Buffiila Eaoibig A/ems, ApmJ 5, 1944. Paul L Rdunger to C H- Berry, September 7, 1944, Records ol U>« New York Agency, 1938-1949, Bo» 8, *380, RC 75, NA. Daniels to Attorney Ceneral. August i, 1942. Daniels' rale in the ptoceading ended on January 31, 1943. 655 Stoc^ridge-Munsee Conununity BAND OF THE MOHICAN INDIANS TRIBAL COUNCIL OFFICES TESTIMONY OF VIRGIL J. MURPHY, PRESIDENT STOCKBRIDGE-MUNSEE COMMUNITY BAND OF MOHICAN INDIANS SUBMirTED TO THE SENATE COMMITTEE ON INDIAN AFFAIRS FOR THE HEARING ON TRIBAL SOVEREIGN IMMUNITY SEPTEMBER 24, 1996 Mr. Chairman and Members of the Committee: My name is Virgil Murphy and I am President of the Stockbridge- Munsee Community Band of Mohican Indians. The Stockbridge-Munsee Tribe is pleased to have this opportunity to present information on tribal sovereign immunity and the right of Indicins and non-Indians to be heard irv our tribal forums. Although the Stockbridge-Munsee Tribe was once located in the eastern United States, we were removed from our ancestral lands and today we have a 46,000 acre reservation in central Wisconsin. We have over 1500 tribal members with over 800 members living on the reservation. The Tribe's major economic opportunity has been its small but successful gaming enterprise. As a result of gaming, we are now the largest employer in Shawano County, Wisconsin, employing approximately 500 persons in our gaming facility alone. On behalf of the Stockbridge-Munsee Tribe, I would like to extend our appreciation to Chairmiin McCain, Vice-Chairman Inouye and other Committee members who were successful in striking objectionable language from the 1997 Interior Appropriations bill, H.R. 3662. The objectionable provision would have N8476 MOH HE CON NUCK ROAD • BOWLER. Wl 54416 • (715)793-4111 • FAX: (715) 793-1307 656 subjected any Indian tribe or tribal official acting on behalf of the tribe to state or federal court jurisdiction for suits seeking injunctive relief, damages or other remedies. The provision would have expressly waived tribal sovereign immunity as a defense to such suits. It is our understanding that this hearing was held in connection with this proposal. It is well established that Tribes possess the common law immunity from suit enjoyed by other sovereign governments.!/ The Congress has consistently reaffirmed the concept of tribal sovereign immunity in its desire to promote the goals of Indian self-govermnent, tribal self-sufficiency and economic development.2/ Most recently, the Congress enacted the Indian Tribal Justice Act, 25 U.S.C. § 3601 et seq .. which is intended to provide Indian tribes with funding necessary to strengthen tribal justice systems. The Act recognizes that tribal forums are appropriate for "the adjudication of disputes affecting personal and property rights.2/" Sovereign immunity is essential to our self-governance and self- determination. We have limited resources but many challenges facing our tribal leaders. If each action contemplated or actually taken by the Tribal Council were subject to suit, we would desperately and quickly deplete those scarce resources. The threat of lawsuits and personal liability for each action taken by the Tribal Council would have a chilling effect on the ability of our elected tribal officials to fulfill their governmental responsibilities. Tribal economic development would come to a halt if each governmental decision aimed at economic self-sufficiency could be challenged. The sovereign immunity of the Tribe does not prevent tribal members and non-tribal members from receiving due process in our tribal forums . The Stockbridge-Munsee Tribe has created mechanisms by which members and non- members alike are afforded an opportunity for fair resolution of conflicts or disputes involving the Tribe. These mechanisms include the establishment of a tribal court, constitutional "Bill of Rights" provisions, the adoption of an expanded employee rights ordinance and the purchase of public liability insurance. 1/ Oklahoma Tax Commission v. Potawatomi Tribe . 498 U.S. 505 j (1991); Santa Clara Pueblo v. Martinez . 436 U.S. 49 (1978). I ^l See e.g. . Indian Financing Act of 1974, 25 U.S.C. §1451 et | seq. and the Indian Self-Determination and Education Assistance | Act, 25 U.S.C. §450, et seq . \ \ 2/ 25 U.S.C. § 3601(5) . \ 2 % J N8476 MOH HE CON NUCK ROAD • BOWLER, Wl 54416 • (715)793-4111 • FAX: (715) 793-1307 , 657 Our tribal court was established in 1994 and is open to all persons. The Court consists of a Chief Justice and two Associate Judges who serve for two year terms.i/ While the sovereign immuruty of the Tribe and officials acting within their official capacity is preserved within oiu" system, the defense of sovereign immunity is not available in tribal court to officials operating outside the scope of their authority. The Stockbridge-Munsee Tribe is currently in the process of revising our Constitution. Our revised Constitution contains an extensive "Bill of Rights" section which prohibits the Tribe from taking certain actions in exercising its powers of self-government, including the following: ^ • making or enforcing any law prohibiting the free exercise of religion, or abridging tte freedom of speech, or of the press, or the right to assemble and to petition for a redress of grievances; • violating the ngnr-tlfbSsecure against unreasonable search and seizures; .^ \J • taking any pri^te property for a public use without just compei\sation; • denying any person within its jurisdiction the equal protection of its laws; • depriving any person of liberty or property without due process of law; These protected rights parallel the requirements of the federal Indian Civil Rights Acts/ and are available to all persons, Indian and non-Indian alike. Additionally, our revised Constitution acknowledges that tribal officials violating these provisions and acting outside the scope of their authority are not protected by the Tribe's sovereign immunity. One of the Tribe's most valued resource is its employees. The Tribe employs a total of over 800 individuals, many of them non-Indians who live off the reservation. We recognize that our uiuque sovereign status differentiates us from private employers and we are careful to explain these differences to our employees 4/ Upon the adoption of our revised Constitution, these terms will be extended to ten years. V 25 U.S.C. § 1302 et seq . 3 N8476 MOH HE CON NUCK ROAD • BOWLER, Wl 54416 • (715)793-4111 • FAX; (715) 793-1307 658 in our employee handbook. We are also proud to explain the rights enjoyed by our employees, many of which far outweigh those provided by private employers. The Tribe has also adopted an Employee Rights Ordinance which guarantees "every employee . . . the right to file a grievance and seek assistance" against the Tribe. The Ordinance also prohibits all employers, including the Tribe, from discriminating in employment on the basis of "age, sex, handicap, race, creed, religion, political affiliation, national origin, color, sexual orientation, marital status and ancestry." It also requires equal pay for men and women. Any employee filing a grievance has the right to present his or her case to an Employment Mediation Panel. If the employee is urihappy with the decision of the Mediation Panel, the employee may appeal the decision to the Tribal Court. The Tribe maintains public liability insurance for personal injury and property damage resulting from occurrences at the Tribe's gaming facility. The Tribe's insurance policy includes a provision prohibiting the insurer from invoking tribal sovereign immunity. This is a limited waiver of the Tribe's sovereign immunity, similar to the Federal Tort Claims Act,6/ which, in a limited manner, waives the immunity of the United States for certain tort claims. Mr. Chairman, on behalf of the Stockbridge-Munsee Tribe, I thank you for this opportunity to present our views on this important issue. £/ 28 U.S.C. §§ 2671-2680. 4 N8476 MOH HE CON NUCK ROAD • BOWLER, Wl 54416 • (715)793-4111 • FAX: (715) 793-1307 659 VIEJAS INDIAN RESERVATION ANTHONY R PICO, OUKMAN V^SS^^ P.O. BOX 908 KIM M. BACT.AD, VICE CHAIRMAN ^S3S^ ALPINE CA 91903 P.ALLETTE A LEWIS, SECRET.\RY ""^^'^^ 619 445 3810 ANITA R UQU ALLA, TRLASURER ° ji^^^? c a y THOMAS) HYDE, COUNCILMAN 619-445-5337, FAX AUDREY R WALLACE, C0UNC1LW0M.AN SANDRA A. BARRETT, COL'NCILWOMAN Written Testimony by Anthony Pico Tribal Chairman, Viejas Band of Kumeyaay Indians Submitted to the Senate Committee on Indian Affairs on Tribai Sovereign Immunity 24 September 1996 Greetings to Chainnan McCain, Vice-Chainnan Inouye, and distinguished Members of the Committee. I am Anthony Pico, Tribal Chairman of the Viejas Band of Kumeyaay Indians On behalf of the Viejas Band, and other California tribes. I appreciate the opportunity to present information concemmg the mechanisms that the Viejas Band has established assuring both Indians and non-Indians the right to be heard in a Tribal forum. The Viqas Band occupies a reservation located approximately thirty miles east of San Diego. Cahfomia The tribe numbers 28 1 etiroUed members. The only non-Indians who reside on the reservation are the spouses of some tribal members There are no non- Indians who own property within the boundaries of the reservation. Additionally, the tribe operates a gaming enterprise, which employs over 1600 people, the majority of whom are non-Indian. I. Opposition to Congressional Efiforts to Eliminate Tribal Sovereign Immunity I commend the Senators who convinced Senator Cjorton to strike objectional language from the 1 997 Interior Appropriations bill. In my view, the language evinced a total disregard for the sovereignty of Indian nations, and demonstrated a level of disrespect for the efforts of my Indian ancestors who have fought, and struggled, and died, simply to preserve the right to be Indian, and to live as sovereign Indian tribes 660 I view such efiForts to limit, restrict or eliminate tribal sovereignty, as the products of misguided reasoning. In the FY 1996 Interior Appropriations Bill, the Lummi Indian Nation was subjected to uncontionable actions by Members of the Congress who voted to pass the FY 1996 Appropriations Bill It is clear that the Indian tribe in question occupied the geographic location of this dispute long before the arrival of the non-Indian parties. It also appears that the non- Indian panies had notice of the existence of the tribe at the time they chose to move into the area In seeking to restrict the authority of the tribe, and to impair or eliminate the sovereignty of the tribe for the convenience of the late-comers, these types of legislative nders on appropriation bills ignore centuries of established legal precedents which question the merits of the claim when the plajntifF moves to the nuisance The set of facts out of which such legislative languagegrew, is an inadequate basis for proposing additional legislation which would impair the sovereign nghts of every tribe in this nation I view such legislative language as overreaching I am convinced that the great majority of Amencan tribes exist in harmony with adjoining land owners, and I believe that when disputes do arise, the mechanisms already established by tribal governments are adequate to provide a fair resolution of the dispute Similar legislative amendments proposed m the FY'97 Interior Appropriations Bill are an overbroad attempt to resolve a problem that is best addressed at the local level. There has been some concern expressed about the right of non-Indians who reside or own property with the boundaries of reservations Those concerns generally do not apply to the Viejas Band, since the only non-Indians residing on our reservation are the spouses of some tribal members However, because I believe that the example of the Viejas Band's experience is typical of the experience of many tribes, 1 would like to elaborate on the status of those non-tnbal members who own property adjoining or near the Viejas reservation. Prior to the advent of gaming on the Viejas Reservation, there was little or no benefit to the surrounding community provided by the tribe Since the tribe had no resources of its own, it was impossible to reach out to the neighboring community in a meaningful way The tribe did draw on local law enforcement and fire protection resources, although not to any significant extent Since the establishment of a successfiil gaming enterprise, the relationship between the tribe and its neighbors has improved far beyond the expectations of event the most optimistic predictions Property values in the locality of the casino have increased tremendously New housing developments and other community improvements have multiplied The amount of business traffic for area merchants has increased The contributions made by the tribe to local charities and civic groups has gone fi-om zero to thousands of dollars annually Unemployment on the reser\ation has been eliminated, and the local community has also experienced a decrease in unemployment, and the local economy has been invigorated by the millions spent by the tribe each year whether in 661 casino payroll, or in payments made to local vendors for the food, equipment and supplies necessary to maintain the business Havmg Viejas as a neighbor has been a tremendous "net win" for the local community. For the benefit of the Committee. I would like to present in some detail the forums which are available for the resolution of disputes which occur on or involve the Viejas reservation. I believe these mechanisms are typical of those which exist to provide justice and fairness for members of Indian tribes and their non-tribal neighbors n. The Right of Indians to be Heard in a Tribal Forum The Viejas Band is governed by a seven-member Tribal Council, which is the elected governing body of the tribe. The Tribal Council meets weekly, and the meetings take place at the Tribal Hall, located on the reservation. Tribal members who have proposals they wish the Tribal Council to consider are welcome to submit the proposals to staff members at the Tribal Hall for inclusion on the agenda of the next Tnbal Council meeting. Tribal members who have disputes with the Tribal Council or with other tribal members are also fi'ee to bring these issues to the attention of the Tribal Council in the same manner The Tribal Council is responsive to the concerns of tribal members All decisions affecting the distribution of income generated by tribal enterprises, or the use or allocation of reservation land and resources are decided by a vote of the General Council, which is comprised of every adult enrolled member of the tribe Additionally, the election process act to ensure the accountability of Tribal Council members to their constituents The tribe holds Tribal Council elections every two years, and tribal members do not hesitate to replace a Council member who has not been responsive or accessible This form of representative democracy has served this tribe well for 6,000 years in The Right of Non- Indians to be heard in a tribal forum The gaming enterprise, in addition to being one of the largest sources of employment m the local area, is host to several thousand guests per week The Viejas Tribe recognizes that guests who come into the gaming facility may not have a fiiU understanding of tribal sovereignty, and that not all employees recognize how working in Indian country is different fi'om working in the State of California The employee hand book and orientation programs are designed to educate the employee about the differences, and to make employees awrare of the importance to the tribe of maintaining tribal sovereignty The Viejas tribe also recognized that it has an obligation to conduct the gaming business in a manner consistent with the standards expected in the cornmunity Just as we are conscious of the need to maintain good relations with our neighbors, so also we are not interested in abusing sovereignty by using it as an excuse to operate the business in an irresponsible manner 662 Although not required, the Viejas Band maintains full premises liability on all its operations, to provide coverage for any accident sustained by any guest or employee The tribe also has a full-time risk management department, and comprehensive workers compensation coverage The tribe employs a third-party administrator to assess, investigate and provide recommendations on claims concerning property damage, liability and workers compensation These protections, along with our commitment to rigorously observe all health, occupational, fire and building codes, make the gaming operation a safer place to visit or work than the local shopping mall Despite these measures, we occasionally have claims filed by guests or employees. The only requirement made by the tribe is that the claim must be submitted in writing for consideration by the appropriate department within the gaming operation. (Interestingly, we find that the requirement that a claim be made in writing has operated to resolve nearly 50% of the potential claims. Apparently, putting the claim in writing causes claimants to think more carefully about the situation ) Each written claim is initially addressed by the appropriate department within the gaming operation. For example, clamis concerning the integrity or outcome of gaming are addressed by the Gaming Commission Claims concerning damage to property or injury to persons are handled by the in-house claims department, with the assistance of the third party claims administrator and the insurance earner Claims by employees who feel they have been treated unfairly by a management are heard by the Grievance Committee, a panel consisting of three members of the casino management, two of whom are tribal members Claims or disputes which do not involve the gaming operation are submitted directly to the Tribal Council, and become part of the agenda for the next meeting. Because of our commitment to operating in manner consistent with local standards. 98% of the claims submitted are resolved by the appropriate casino department. We resolve claims promptly, and generally the claimant does not incur the expense or inconvenience of hiring an attorney to pursue the claim. If a claimant has exhausted his or her "administrative remedy" at the casino level and is not satisfied with the outcome, he or she is welcome to submit the matter, in writing, for the consideration of the Tribal Council. In summary, I believe that the appropriate mechanism for dispute resolution by an Indian tribe is the mechanism established by the sovereign authority of the tribe In the Viejas example, the tribe has established efiBcient and effective means of ensuring that claimants do receive a fair hearing, and that disputes are resolved in a fair manner I do not believe that a broad attempt to eliminate tribal sovereignty is justified 663 Senate Committee on Indian Affairs Written Testimony on Sec 329 of the Senate's Fiscal Year 1997 Interior Appropriations Bill: - A Proposal to Limit Tribal Sovereign Immunity The proposals contained in Sec. 329 to abrogate tribal sovereign immunity in the context of tribal actions that impact "the ownership or use of private property" and to make the tribes in such situations amenable to suit in state or federal court are doctrinally flawed, unduly invasive of tribal self-government, and serve no meaningful public policy objectives. The proposal contained in Sec. 329 is within the scope of Congress' wide ranging plenary power, but it is nevertheless ill considered and conceptually problematic. The prevailing doctrine recognizes the ability of Congress to waive tribal sovereign immunity, but Congress has not done so for at least the past twenty-five years and there is good reason for this. SiiKe the current federal policy period is properly recognized as that of meaningful self- determination, waiving tribal sovereign immunity and declaring tribes amenable to suit in federal and state courts would be a complete rejection of this inqmrtant policy. As the Supreme Court recently noted: Congress has always been at liberty to dispense with such tribal immunity or to limit it. Although Congress has occasionally authorized limited classes of suits against Indian tribes . . . Congress has consistently reiterated its approval of the inmiunity doctrine. See e.g. Indian Financing Act of 1974, 88 Stat. 77, 25 USC § 1451 et. seq. and the Indian Self-Determination and 664 Education Assistance Act, 88 Stat. 2203, 25 USC § 450 et. seq. These acts reflect Congress' desire to promote the "goal of Indian self-government, including its 'overriding goal' of encouraging tribal self-sufficiency and economic development. " California v. Cabazon Band of Mission Indians . 480 U.S. 202, 216 (1987). Under these circumstances, we are not disposed to modify the long-established principle of sovereign immunity.' The advances in the competence and sophistication of tribal governments and tribal courts during this period have been greatly enhanced by federal government support and endorsement. Why start reversing this most fruitful synergy of tribal government competence and maturation and supportive federal government efforts? Despite this broad partnership for advance, one might ask - in a most particularistic say - what about the right of owners of private property within Indian country? Are they adequately protected? The answer is a definite yes and this is so because the existing federal/tribal statutory and practice context fiilly guarantees an adequate remedial scheme. The Indian Civil Rights act of 1968^ fully guarantees all "persons" due process and equal protection rights against actions taken by a tribal government or any of its entities. The Supreme Court in Santa Clara Pueblo v. Martinez recognized the intent of Congress in the ' Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma . 495 U.S. 505 (1991). ^ 25 USC § 1301-1303 (1991). 665 Indian Civil Rights Act to provide only for limited federal redress in situations amenable to habeas relief, but otherwise to look to tribal courts as the appropriate forum. ^ Specifically, the Court stated: Tribal forums are available to vindicate rights created by the ICRA, and § 1302 has the substantial and intended effect of changing the law which these forums are obligated to apply. Tribal courts have repeatedly been recognized as appropriate foriuns for the exclusive adjudication of disputes affecting important personal and property interests of both Iixlians and non-Indians.* In the seventeen plus year aftermath of Santa Clara Pueblo , scholars and other investigators have consistently remarked on the strong performance of tribal courts in this area. For example, a leading Indian law practitioner has recently noted: "The decisions reported in the Indian Law Reporter show that tribal courts are conunitted to protecting individual rights and ensuring that individuals receive due process in their dealings with tribal government. These cases address claims across a broad spectitmi that include threshold issues, such as the tribal court's power of judicial review and application of the doctrine of sovereign immunity, and the merits of a variety of individual rights claims."' ' 436 U.S. 48 (1978). ♦ Id. at 65. ' Douglas B. L. Endreson, "The Challenge Facing Tribal Courts Today", 79 Judicature 142 (1995). 666 In addition and most significantly, a 1991 study of the U.S. Civil Rights Commission specifically rejected any proposed amendment of the Indian Civil Rights Act of 1968 to allow for increased review of tribal court decision making. The Commission specifically stated that such legislation would be "a further encroachment of tribal government sovereignty," which is "unwarranted and inappropriate at this time."* There appears to be little, if any, evidence that would support the necessity of the proposed changes enumerated in Sec. 329. Tribal courts are doing the job and this is not the time for Congress to precipitously act as if they were not. The conceptual framework envisioned in Sec. 329 would stand Indian law on its head and grossly invade the right of tribal self-government. The Federal Government has never in its history stripped tribes of their sovereign immunity to expose them to litigation in state court by private individuals for causes of action arising on the reservation. State governments including state courts have never had authority or jurisdiction over Indian tribes involving matters arising on the reservation. This basic precept of Indian law has its roots in the seminal opinions of Chief Justice Marshall in Cherokee Nation v. Georgia^ and Worcester v. Georgia .* These cases hold that matters in Indian country that involve the tribe are strictly matters of federal and tribal * THE INDIAN CIVIL RIGHTS ACT: A REPORT OF THE UNITED STATES COMMISSION ON CIVIL RIGHTS, ii-iii (June 1991). ' 30 U.S. (5 Pet.) 1 (1831). « 31 U.S. (6 Pet.) 515 (1832). 667 concern. To depart from this basic teaching serves not only to reverse the current policy of meaningful self-determination, but to uproot one of the most basic tenets of Indian law that tribal sovereignty is not a matter to be challenged in state forums. To start down this road at this time is to upset the fragile balance of tribal-federal cooperation in the area of tribal self- government, to disturb a foundational principle of Indian law that has historically protected the tribal sovereign from an encroaching state sovereign, and to ignore a competent and responsive remedial scheme that already exists in tribal courts. This proposal appears to be grounded - as other unfortunate Indian policies across American history have been - in the stereotypical vision that tribes are incapable of meaningful self-government. As other recent, positive actions of the federal government have indicated, the time for these common mistakes of the past has ended. The federal government must be careful qq{ to rqieat errors of the past and to steadfastly hew to its humane and thoughtful policy to support meaningful tribal self-government and self- determination. Respectfiilly submitted. Frank Pommersheim Professor of Law October 2, 1996 668 TESTIMONY OF DALE RISLING SR., CHAIRMAN HOOPA VALLEY TRIBAL COUNCIL HOOPA, CALIFORNIA BEFORE THE SENATE INDLMM AFFAIRS COMMITTEE HEARING ON CIVIL JURISDICTION IN INDIAN COUNTRY SEPTEMBER 24, 1996 My name is Dale Risling. I am Chairman of the Hoopa Valley Tribal Council, governing body of the Hoopa Valley Indian Tribe and Reservation in northwest California, the largest Indian reservation in California. Because of the complex affairs and the natural resources of the Hoopa Valley Reservation, our Tribe has had a lot of experience with the issue of sovereign immunity. I submit this testimony to urge the Committee against quick action that addresses sovereign immunity. At a minimum, the Senate should undertake extensive legal and factual research concerning the actual applications of the doctrine of sovereign immunity before crafting legislation of any kind. A. Introduction. Indian tribes are distinct, independent political communities that retain their original natural rights in matters of self government, as the U.S. Supreme Court has often made clear. E.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978). Despite conquest by the American republic, tribes remain quasi-sovereign nations which by governmental structure, culture and source of sovereignty, are distinct from federal and state governments. Tribes have their own laws, their own courts. These institutions must be respected. Except where Congress or the federal courts have limited it, tribes may be immune from suit. However, there are many limitations on that sovereign immunity. 669 Indian tribal sovereign immunity is often blamed for the result of cases when the true fault lies with attorneys ignorant of the law or unwilling to pursue a proper legal claim. Sovereign immunity is not a barrier to most meritorious cases. It is essential that the Committee understand what is and is not encompassed within the doctrine of tribal sovereign immunity. In our view, tribal sovereign immunity is a limited legal protection which is not broken and should not be "fixed." What is and what isn't sovereign immunity? To understand this, one must consider at least eight types of claims: (1) injunctions to stop action that violates federal law; (2) contract performance claims; (3) tort or personal injury claims; (4) suits by the federal government; (5) compliance with laws such as the Solid Waste Disposal Act; (6) claims that the federal government has hurt someone through exercise of its statutory responsibilities concerning Indian property; (7) habeas corpus actions; and finally, (8) suits to capture protected Indian tribal funds or property. B. Types of Oaims. 1. Iiyunctions. Sovereign immunity is not a shield behind which Indian tribes or tribal officials can violate their own laws or the supreme law of the land. Sovereign immunity simply does not apply to the acts of individuals who wish to violate federal or other applicable law. This is true for Indian tribal officials for the same reason it is true of state officials: the tribal and state sovereigns cannot clothe their officers with immunity that protects them from the supreme law of the land. Ex Pane Young, 209 U.S. 123 (1908). The rule allowing "officer's suits" was applied to Indian tribal officials in Santa Clara Pueblo v. Martinez, supra, and many other cases. 35-542 97-22 670 E.g., Rowland v. Hoopa Valley Tribal Council, Hoopa Valley Tribal Court No. C-92-016. Furthermore, the doors of federal courts are always open to claims that a tribe is exceeding its sovereign authority in doing something that aggrieves the plaintiff. Challenges to tribal jurisdiction raise federal questions that are within the jurisdiction of a district court under 28 U.S.C. § 1331. E.g., National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985). While a plaintiff who has remedies available in tribal court may be required to first seek relief there, federal jurisdiction to determine whether a tribe has exceeded its legal powers remains available if the plaintiff is dissatisfied by his tribal court remedies. E.g., Yellowstone County v. Pease, 9th Cir. No. 95-36026 (September 11, 1996). 2. Contract enforcement In contracts, an express written partial waiver of a tribe's or tribal entity's sovereign immunity in contracting is nearly ubiquitous. Some tribes, like the United States, have expressly waived their sovereign immunity to suit in tribal court on written contracts. Any attorney representing a contractor doing business with a sovereign who does not determine that remedies for breach are available in tribal court, through an arbitration provision, or in some other form, is simply guilty of malpractice. See generally Tamiami Partners, Ltd. v. Miccosukkee Tribe of Indians of Florida, 63 F.3d 1030 (11th Cir. 1995) (waiver by arbitration clause). When Congress authorized incorporation of tribal entities in the Indian Reorganization Act of 1934, it authorized appropriate partial waivers of the immunity of the tribal corporations, as set forth in corporate charters. See 25 U.S.C. § 477 and caselaw construing that section. 3. Torts. Sovereign immunity does not generally prevent compensation for torts or personal injuries for two different reasons: insurance and the Federal Tort Qaims Act. Our Tribe, like most others, purchases liability and casualty insurance. We pay premiums and injured 671 persons are compensated by our insurance carrier. The Indian Self-Determination Act forbids insurance carriers from invoking tribal sovereign immunity, at least to the coverage limits of the policy. See -25 U.S.C. § 450f(c)(3). In addition, almost every tribe in the country has, to some extent, taken over services and functions that would otherwise be provided to tribes by the United States Departments of the Interior or Health and Human Services. These self-governance compacts and Self-Determination Act contracts cany with them the protection and procedures of the Federal Tort Claims Act. An authorized tribal employee acting under such an agreement with the United States is deemed to be part of a federal agency for Tort Claims Act purposes. 25 U.S.C. § 450f(d) and Note. So, for example, when a motorist collided with one of our forestry technicians recently, that person made a claim under the FTCA just as he would have if the collision had been with a U.S. Postal Service truck. In those situations, the sovereign immunity of the tribe is precisely the same as that of the United States. There are procedural requirements for FTCA claimants; for example, they must file an administrative claim, act within statutory time limits, and punitive damages are not permissible. But this is equally fair to persons injured by federal employees as it is to persons injured by authorized tribal employees. 4. Suits by the Federal Government. A tribe cannot assert its immunity against the United States. "It is an inherent implication of superior power exercised by the United States over Indian tribes that a tribe may not interpose its sovereign immunity against the United States." Vniied Stales v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 382 (8th Cir. 1987), cert, denied, 485 U.S. 935 (1988). 672 5. Compliance with the Solid Waste Disposal Act In environmental statutes, such as the Resource Conservation and Recovery Act of 1976, (part of the Solid Waste Disposal Act) 42 U.S.C. § 6901 et seq., Congress has expressly waived tribal sovereign immunity. Blue Legs v. Bureau of Indian Affairs, 867 F.2d 1094 (8th Cir. 1989), found a waiver of tribal sovereign immunity against civil actions because tribes are specifically included within the definition of municipalities. Other statutes protecting the environment may have similar provisions. In addition, an "officer's suit" is available to obtain compliance with all such statutes. 6. Agency violations, such as "breach of trust" The sixth type of case does not really involve tribal sovereign immunity. Many actions on Indian reservations, such as leasing tribal lands or timber or mineral extraction, require federal approval. Federal officials who ignore environmental laws or statutes directing the use of funds can be successfully sued and curbed by injunctions or by the damages remedies of the United States Court of Federal Claims. E.g., Davis V. Morton, 469 F.2d 593 (10th Cir. 1972); Short v. United States, 50 F.3d 994 (Fed. Cir. 1995). 7. Habeas Corpus Actions. As part of the Indian Civil Rights Act in 1968, Congress authorized jurisdiction in habeas corpus cases: "The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe." 25 U.S.C. § 1303. Strictly speaking, a habeas corpus action is not a suit against the sovereign because the restraint for which review is sought, if indeed illegal, would be outside the power of an official acting in the sovereign's name. In Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2d Cir. 1996), the court ruled that the ICRA's habeas corpus provision is not limited to criminal proceedings and that banishment from tribal lands is among 673 the forms of detention over which the federal courts have jurisdiction. 8. Suits against tribal property. Do the many exceptions really mean that sovereign immunity is a myth? No indeed, instead sovereign immunity is a carefully circumscribed legal doctrine that protects Indian tribes (but not Indian individuals) in many of the same ways that the Eleventh Amendment protects States of the Union. See Seminole Tribe of Florida v. Florida, U.S. (1996). If there is no statute or agreement authorizing a particular suit, one critical question to be answered in determining if sovereign immunity has come into play is to ask whether the suit is actually against "the sovereign". A suit is against the sovereign if "the judgment sought would expend itself on the public treasury or domain." Land v. Dollar, 330 U.S. 731, 738 (1947); Shermoen v. United Stales, 982 F.2d 1312, 1319-21 (9th Cir. 1992). Thus when an individual tries to capture monies and property held by an Indian tribe under a federal statute, sovereign immunity may protect the tribe unless there is an exception, such as those listed above. With respect to land or other real property, this principle is codified in part at 28 U.S.C. § 2409a(a). That section allows suits against the United States to adjudicate a disputed title to real property in which the United States claims an Interest. However, the statute goes on to say that it "does not apply to trust or restricted Indian lands." The scope of tribal sovereign immunity is very similar to that of the United States Government itself. Apart from the many exceptions provided in law, immunity still exists. Recognizing this principle, when Congress amended the Right of Review section of the Administrative Procedure Act in 1976 to permit the United States to be named as a defendant, it '.TIWL^^ ▼ ^ '^- •■#'»-»v^^ 674 also prohibited suits where another statute "grants consent to suit expressly or impliedly forbids the relief which is sought." 5 U.S.C. § 702. C. Conclusion. I urge the Committee to study this matter very carefully and very thoroughly before taking any action whatever. Congress and the courts have addressed sovereign immunity in careful, intricate ways. A meat axe approach that curtails sovereign immunity is likely to produce consequences as devastating as the well-meaning General Allotment Act of 1887. Do not forget that the Act led to a loss of 90 million acres of Indian lands before allotment ceased in 1934. F. Cohen, Handbook of Federal Indian Law at 138 (R. Strickland ed. 1982). Who did it help? Thank you for your consideration. M:\TPSU400PA\5191\TSTMNY 675 FORT PECK TRIBES Assiniboine & Sioux Testimony of Caleb Shields, Chairman Fort Peck Tribal Executive Board on Tribal Sovereign Immunity and H.R. 3662 before the Senate Committee on Indian AfTairs Mr. Chairman and members of the Committee, my name is Caleb Shields and I am the Chairman of the Assiniboine and Sioux Tribes of the Fort Peck Reservation. The Fort Peck Tribes wish to express our opposition to any congressional action which unilaterally abrogates Tribes' sovereign immunity without tribal consent. The Fort Peck Reservation is located in northeastern Montana. It is about 1 10 miles long (east to west) and 40 miles wide (north to south), containing slightly over two million acres Over 5,600 tribal members live on the Reservation, as well as several hundred Indians belonging to other tribes. Reservation lands were allotted to tribal members beginning in 1908, and then opened to settlement by non-Indian homesteaders Today, about half the lands on the Reservation are owned by non-Indians, and over 4,000 non-Indians also reside on the Reservation. About 550,000 acres on the Reservation are held in trust by the United States for Indian allottees, and another 400,000 are held in trust for the Tribes. Trust and fee lands are commonly interspersed in a "checkerboard" ownership pattern The Assiniboine and Sioux Tribes of the Fort Peck Reservation strongly oppose language providing for a waiver of tribal sovereign immunity contained in section 329 of H R 3662 and any comparable language in any Act of Congress A mandatory waiver of tribal immunity is a serious Poplar, Montana 59255 P.O. Box 1027 (406)768-5155 »-"# 676 encroachment on the sovereignty of our Tribes and that of other tribes It is also entirely unnecessary. The Fort Peck Tribes, like a great many other tribes, have long enjoyed a history of cooperative relations with non-Indians living or doing business on the Reservation and with the State, including local and county governments 1 describe this history and the functioning of our court system in detail below. 1. Fort Peck tribal judiciary A. Structure The Assiniboine and Sioux Tribal Code of Justice establishes a judicial system consisting of two levels, a trial court and a court of appeals The Tribal Executive Board, our legislature, appoints the tribal court judges, who sit for a two year term, and justices of the Court of Appeals, who sit for a one year term The Code of Justice provides that a judge or justice may be removed only upon written charges of specific misconduct by a member of the Tribal Executive Board The Code fUrther defines misconduct as 1 ) conviction of a felony or misdemeanor involving dishonesty or acts offensive to the morals of the community; 2) abusive or clearly incompetent performance of duties in the office; or 3) failure to perform the duties of office, 4) any other substantial violations of the Code of Ethics forjudges and justices The Tribal Executive Board must hold a hearing on the charges, and a judge or justice can only be removed by a two- thirds majority of the Tribal Executive Board The Tribal Executive Board has not addressed any action for removal of a tribal judge or justice since the new Tribal Code of Justice was adopted over ten years ago. TestiiluNiy or Caleb Shields. Cluimiail Fort Peck Tribal Executive Board -2- 677 Tribal court judges must successfully complete a judge's qualifying examination which is administered through the Tribal Executive Board The Chief Justice for the Court of Appeals must have a degree in law from an accredited law school and be a member in good standing of the bar of a state or federal court, as well as a member in good standing of the Fort Peck Bar In fact, all three justices of the current Fort Peck Court of Appeals are licensed attorneys and members in good standing of either the Montana or North Dakota bar The Court of Appeals hears appeals from the trial court, providing a second level of independent decision making The Court of Appeals reviews all questions of law de novo , although the Code of Justice requires the reviewing court to give some deference to the factual determinations of the trial court This requirement ensures that the litigants will be afforded two opportunities to present their legal arguments to a neutral arbiter B. Jurisdiction The Fort Peck tribal courts regulariy adjudicate civil cases involving non-Indian parties The Code of Justice provides that the Fort Peck Courts "shall have jurisdiction over any action where one party to the action shall be an Indian [or Indian business] and where the cause of action arises under the Constitution or laws of the Tribes, or an Indian party to the action resides on the Fort Peck Reservation " With respect to persons outside the reservation, the Code provides that in cases where it otherwise has jurisdiction the Court will exercise personal jurisdiction if such person "transacts any business on the Reservation, or contracts or agrees anywhere to supply Tcslmiuny ofCakb Shields. Chainnan Fort Peck Tribal Kxccuhvc Board 678 goods or services to persons or corporations on the Reservation; or commits an act on the Reservation that causes injury " Access to tribal courts by non-Indian parties is made easier by the fact that 26 non-Indian attorneys and six Indian attorneys are currently licensed to practice in the Fort Peck courts The Tribes require attorneys licensed to appear before the Court to have a law degree from an accredited law school and pass the Fort Peck Bar Exam which is administered through the coordinated efforts of the University of Montana School of Law and the Tribes This process not only ensures that non-Indian litigants have a choice of representation, but also that the attorney understands the procedural and substantive law that is used in the tribal courts. In 1995, the Fort Peck Tribal Courts heard 84 cases in which the plaintiff was a non- Indian In 58 of those cases, the Court issued judgment in favor of the non-Indian plaintiff The Court also heard 16 cases in which the defendant was non-Indian and the Court dismissed the action or entered judgment in favor of the non-Indian in eight of those cases. (In some instances, of course, the case is dismissed for lack of jurisdiction, failure of the parties to appear or other procedural reasons.) C. Availability of remedies against tribal ofTicials Consistent with established federal law, the Tribal Code of Justice provides that the Fort Peck Tribes shall be immune from suit. But the Code also provides that the Fort Peck Courts Testimony of Caleb Shields, Chairman Fort Peck Tribal Executive Board 679 "shall have jurisdiction over all suits in which Tribal officials or employees are defendants," except habeas corpus proceedings which are heard in federal court under the Indian Civil Rights Act. The Code provides absolute immunity from suit for elected officials or judges for actions "taken in the course of official duties . " or in the reasonable belief that the action was within the scope of his or her official duty This is similar of course to the immunity of the President, Congress and federal judges However, the tribal courts have jurisdiction over actions seeking declaratory and equitable relief against other tribal employees for actions the court determines unlawful, and can grant money damages for unlawful action cleariy established to have been taken with malicious intent and in bad faith 2. Commercial agreements The Fort Peck Assiniboine and Sioux Tribes often enter into agreements with non-Indian contractors or other off-reservation parties to do business on the Reservation In order to encourage commerce on the Reservation, the Tribes have adopted the Uniform Commercial Code, with some very minor modifications By adopting the U C C , the Tribes provide outside businesses with the assurance that commercial transactions will be treated by the tribal courts in the same general manner as business disputes elsewhere in the United States In addition, understanding the possibility of substantial breaches due to unforseen circumstances or other disputes arising from these agreements, the Tribes and non-Indian party most often agree on an administrative remedy such as binding arbitration to resolve the dispute Tcslinioiiy or Caleb Shields, Chaimian Fort Peck Tribal Executive Board y s ? A* ' ■ ' ' /a ' a - a^ > - . ^ ■ A A->-^'»-.>% - - - 680 The Tribes and non-Indian parties have successfully arbitrated one such dispute A few years ago, the Tribes entered into a contract containing an arbitration clause with a construction company to do work on the Reservation. A dispute arose over the rental payments of equipment among other issues. The parties successfully arbitrated the resolution of those issues without legislative or judicial intervention. The arbitration ended in an award against the Tribes and the Tribes accordingly complied. Consequently, for non-Indians living or doing business on the Fort Peck reservation, it is unnecessary as well as demeaning for Congress simply to unilaterally waive the Tribes' immunity from suit. 3. Relations with non-Indian neighbors and State The Tribes have always maintained avenues by which non-Indians can communicate and get redress for any disputes they may have with the tribal government Meetings of the Fort Peck Executive Board are open to the public, and Indian and non-Indian individuals doing business with the Tribes often participate in the process to either voice their grievances with the Tribes or provide information to the Board. Minutes of the Tribal Board meetings are published in the local newspaper so the community is informed of current activities affecting the Tribes both on the Reservation and off. The Tribes work closely with local governments and the State of Montana on issues of mutual concern to both Indian and non-Indians, on and off-Reservation For instance, the Tribes and State of Montana recently entered into an agreement allowing Indian and non-Indian Testimony of Caleb Shields. Chaimun Foil Peck Tribal Executive Board 681 proprietors to operate underground storage tanks on the Reservation provided they meet the stringent environmental standards set forth in the agreement In order to do this, the Tribes, the State and operators of the underground storage tanks must work closely together in the administration of permits, installation, inspection, and removal of underground storage tanks. In addition to the underground storage tank agreement, the Tribes and State have a number of tax-sharing agreements — a tribal-state agreement to provide for the collection, use and distribution of gasoline taxes, and an agreement to provide for the sharing of taxes on beer, wine and liquor sales on the Reservation Under these agreements, both the Tribes and State impose a single tax (equal to the State tax). The tax is collected by the State and shared between the State and tribal governments The Tribes have also agreed with Montana that Indian smokeshops will not sell tax free cigarettes to non-Indians; an annual quota of tax free cigarettes is delivered for sales to Indians. Finally, the Tribes have also entered into an agreement with Montana concerning the operation and regulation of gaming activities on the Reservation All of these agreements necessarily entail a large amount of cross-administration and regulation between the Tribes and State. The Tribes and State executed the Fort Peck-Montana Water Compact in 1985 The Compact determined the reserved water rights of both the Tribes and State, and settled existing water rights cases involving the Tribes and State The Compact establishes a joint State-Tribal Board to resolve any disputes between tribal and State water users The Board has three Testimony of Caleb Shields. Chaimian Fori Petk Tnbal K.\ecuiive Board L rx'i^ci ■^ " ■" — '#^Av*-».»v ■• '^ 682 members - one appointed by the State, one by the Tribes and one to be agreed upon by the other two members In the eleven years it has operated, the Board has considered one dispute between an Indian and non-Indian concerning groundwater pumping This dispute was resolved by agreement between the parties before a final Board decision 4. Conclusion The Assiniboine and Sioux Tribes of the Fort Peck Reservation have worked to build and maintain cooperative relations with our non-Indian neighbors on and oflF-reservation These cooperative relations, like all business, political and social relations, invariably result in some disputes The Fort Peck Tribes provide neutral forums, administrative remedies and public council meetings to make every effort to sustain these sometimes delicate relations This sort of relationship needs to be developed over time by each tribe and each state and surrounding non- Indian community There is no "one size fits all" relationship that fits every circumstance. Section 329 of H R 3662 would be a blunt instrument, disruptive of creative governmental processes on the tribal, state and local level. Most basically, it would be an unwarranted attack on each tribe's governmental authority to devise successful arrangements with each state and with neighboring non-Indians No statute like this should ever be enacted by Congress The Tribes appreciate the opportunity to present this testimony. Testimony of Caleb Shields. Chaimiiui Fon Peck Tribal Executive Board DSOl (89.1.1-1 ■*- 683 The Chippewa Cree Tribe of the Rocky BoiTs Reservation Phone: (406) 395-4476 or 421 Finance Omca R R t * 544 (406) 395-4282 or 4321 - Business Comrinae Box Elder, MT S9S21 September 19, 1996 The Honorable John McCain (R-AZ) Chairman of the Senate Committee on Indii^ ^t^s 838 Hart Senate Office Building V> '^ '"^^^^^^ ,| / Washington, DC 20510 ^^^^^--iE^- ATTN: Phil Baker-Shenk -^-y^^ ^:^J^^'^^ : . Dear Senator McCain: The Chippewa Cree Tribe"#iheJR,ocky Bjgyls Indian Reservation in Montana is honored to submit this testimony regarding civiljgnlfdlcnoii.ijjjlodian Country Specifically, we are addressing a fundamental componentwour goverrunCTit-t<'"80vemment relationship with the United Sute«, that is sovereign iiMsil^ The Chippe^Cree Tribe vigorously opposes any legislation which would subject t^^jgeVel^ental decisis to the civil jurisdiction of Stale courts while unilaterally waiving^ioVennffi imnwnity^l^is would be an aflront to tribal sovereignty and a violation of o\^i^/(gtnm«lf-to-goven^M relationship Not to mention the complete reversal of decades of F^mjJ^'Ii^til policy inCli^g Federal, State and tribal caselaw upholding tribal sovereign imnn^tf^^|ffc«^iw rather t^ attacking our civil jurisdiction and immunity to suit that Congress p^^ idp^nal fina^W^ «|pport for our tribal court systems to better handle increasing caselo«%5S ;^^ js*fcr-,i:= . S i^ I understand that you w^trtHlr^ Senatora^r«1^essrul in striking the recent attempt by Senator Gorton to "ini^delSff amendm^fflwaiv&Piibal sovfercign immunity in the FV 1997 Interior Appropriations BiD Indten Coumiyit)t)1aud8Sbur contimied support in protecting tribal sovereignty from any fliitUer eroslpn thrJDIAN COUNTRY immunity to suit and subjecting tribes to state court jurisdiction would seriously undermine tribal sovereignty while re-writing Federal-Indian policy and ovettumtng Supreme Court precedent to satisfy those few individuals who feel they are not adequately served by our court systems The currem jurisdictional scheme in Indian Country provides everyone an opportunity to address their concerns before either the federal, tribal or state court system A waiver of sovereign immunity is unnecessary since it would violate the current jurisdictional scheme while intruding on the sovereign rights of Indian tribes See Santa Clara Pueblo v. Marlinez, 436 US 49 ( 1 978) (Tribal sovereign immunity is a bar to state or federal jurisdiction A tribe retains sovereign immunity unless it expressly waives it by affinnative action. Waiver cannot be implied). The notion of waiving tribal sovereign immunity surfaced as an assauh on tribal sovereignty and originated in retaliation to the Lummi Nation's efforts to exercise their inherent rights over their lands and people. Subjecting tribes to sanctions or penalties for exercising their inherent civil authority over our people and territory would seriously undermine the integrity of all governmental dedsioimialdng. Tribal govg n mental decisionmaking should not be singled out and subjected to review in State courts but instead should remain subject to tribal and Federal court jurisdiction. The Chippewa Cree Tribe poses any changes or sanctions for exercising our inherent rights to dvil jurisdiction in Indian Country, in particular waiving tribal sovereign immunity. gpita R. Sunduld, Chatnnan Chippewa Cree Tribe R R 1 Box S44 Box Elder. Montana S9S21 (406) 395-4478 cc: HofwraNe Senator McCain Honorable Senator Nbukowski Honorable Senator Gorton Honorable Senator Domenici Honorable Senator Kaaaebaun Honorable Senator NicUes Honorable Senator Campbell Honorable Senator Thomas Honorable Senator Httch Honorable Senator Conrad Honorable Senator Reid Honorable Senator Simon Honorable Senator Akaka Honorable Senator Weflstonc Honorable Senator Dorgan 686 MENOMINEE INDIAN TRIBE OF WISCONSIN P.O. Box 910 Keshena.WI 54135-0910 MENOMINEE INDIAN TRIBE OF WISCONSIN JOHN TELLER CHAIRMAN TESTIMONY ON TRIBAL SOVEREIGN IMMUNITY for the HEARING before the SENATE COMMITTEE ON INDIAN AFFAIRS held on September 24, 1996 submitted for the record on October 8, 1996 The Menominee Indian Tribe of Wisconsin appreciates the opportiinity to submit written testimony for the record of the hearing on this important issue. The sovereign immunity that Indian tribes possess under federal law is essential to the ability of tribes to exercise their powers, and fialfill their responsibihties, as sovereign governments. On this basic point we want to express our general agreement with many of the witnesses who spoke at the hearing and who submitted written testimony - a broad waiver of tribal sovereign immunity like that in the proposed section 329 of the Fiscal Year 1997 Interior Appropriations bill would strike a crippling blow to tribal governments all across the country. 687 Testimony of the Menominee Tribe October 8, 1996 Page No. 2 The proposed section 329 was deleted fi-om the Interior Appropriations bill and, since Congress has now adjourned, that language will not be attached to any other legislation by the 104th Congress. We expect that this issue will be raised again in the 105th Congress, however, and so we have focused on the language of section 329 in preparing this testimony. That language would have provided, in p«rt: (a) In cases in which the actions or profKJsed actions of an Indian tribe impact, or threaten to impact, the ownership or use of the private prop)erty of another person or entity, including access to such property or the receipt of water, electricity or other utiUty to such property, the Indian tribe receiving funds imder this Act or tribal officials of such tribe, acting in an official capacity, shall ~ (1) be subject to the jurisdiction, orders, and decrees of the appropriate state court or federal court of general jurisdiction for requests of injunctive rehef, damages, or other appropriate remedies; and (2) shall be deemed to have waived any sovereign immunity as a defense to such court's jurisdiction. Fiindamental Change in the Law. It is important to emphasize that the language in section 329 would bring about a fundamental change in federal law and in the relationships among Indian tribes, the federal government and the states. Congress and the Supreme Court have recognized that tribal governments possess the governmental authority to regulate the use of private property within reservation boundaries. Much of the relevant law has been discussed in the testimony of other witnesses, including such matters as tribal authority to regulate the sale of liquor within reservation boundaries pursuant to a delegation of authority fi-om Congress, United States v. Mazurie, 419 U.S. 544 (1975), and the "exceptions" to the rule announced in Montana v. United States, 450 U.S. 544, 565-66 (1981). In addition, a number of statutes enacted by Congress in recent years expressly or imphcitly recognize tribal government authority over all persons and private lands within reservation boundaries. For example, several of the major federal environmental statutes include provisions authorizing the Environmental Protection Agency (EPA) to treat Indian tribes like states for certain purposes, including the Safe Drinking Water Act, 42 U.S.C. § 300j- 11(a)(1), Clean Water Act, 33 U.S.C. § 1377, and Clean Air Act, 42 U.S.C. § 7601(d). These statutory provisions and EPA's implementing regulations are briefly discussed in 'Testimony of Susan M. WilUams," which was presented at the September 24 hearing. As implemented by EPA, tribes that choose to assume responsibilities like those of states will generally do so for all regulated persons and entities within reservation boundaries. In addition to these statutes, Congress has expressly recognized tribal authority over privately lands within reservation boundaries in two other 688 Testimony of the Menominee Tribe October 8, 1996 Page No. 3 statutes ~ the Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001 - 3013, and the National Historic Preservation Act, 16 U.S.C. §§ 470 - 470w-6. Both of these statutes define the term "tribal lands" to include all lands within the exterior boimdaries of any Indian reservation. 25 U.S.C. § 3001(15), 16 U.S.C. § 470w(14), respectively. Under NAGPRA, a tribe has the right to control the excavation and may have the right to control the disposition of Native American himian remains, funerary objects, sacred objects and objects of cultiu-al patrimony if such materials are imbedded in the ground within reservation boundaries. 25 U.S.C. § 3002(c). Under NHPA, a tribe may assume the functions that would otherwise be performed by the State Historic Preservation Officer (SHPO) for all "tribal lands," including all lands within reservation boundaries. 16 U.S.C. § 470a(d)(2). If a tribe assumes the role of the SHPO for purposes of consultation with federal agencies pursuant to section 106 of the NHPA, the statutory language provides that, with respect to private land within reservation boundaries, at the request of the landowner the SHPO may participate in section 106 consultation in addition to (and not in place of) the tribal preservation official. This language makes it absolutely clear that Congress intended for tribes to perform this regulatory function with respect to private lands within reservation boundaries. If language such as that in section 329 were to be enacted, how could tribal governments afford to help carry out these federal laws? Any tribe attempting to exercise governmental authority affecting private property would face a constant threat of having to defend its proposed actions in court. And the litigation would not even be carried out in the tribe's own courts, but rather in the courts of other sovereigns, i.e., the states or the federal government. One likely result of the enactment of language such as that contained in section 329 would be that federal laws would simply go unenforced on private lands within reservation boundaries. Many tribed governments have made great strides in assuming responsibiUties in our federal system like those performed by the states piu-suant to statutes such as those Usted above. The notion of subjecting tribal regulatory actions to challenge in state courts is, quite simply, diametrically at odds with the intent of Congress expressed in the numerous legislative enactments that encourage tribal governments to assume regulatory functions to help cany out federal laws in partnership with federal agencies. When Congress enacted the tribal amendments to the major federal environmental statutes, some issues regarding the scope and proper forums for judicial review may not have been considered. For example, in programs conducted by states pursuant to a delegation of authority from EPA, an administrative appeal to the EPA Environmental Appeals Board (EAB) is available and is a prerequisite to judicial review in federal court. 40 C.F.R. §§ 1.25(e), 124.19(f). See generally Nancy B. Firestone, The Environmental 689 Testimony of the Menominee Tribe October 8, 1996 Page No. 4 Protection Agency's Environmental Appeals Board, 1 ENVT'L LAWYER 1 (1994). The EAB, however, does not have jurisdiction over permits issued by states under an EPA-authorized state program (as distinct from an EPA-delegated program). In re Great Lakes Chemical Corp., RCRA Appeals Nos. 92-34, 36, 37, at 4 (EAB July 7, 1994). In such situations, judicial review is in state court rather than in federal court. In certain circumstances, the U.S. Supreme Court may review the decision of the highest court of a state involving a dispute arising under a state program carried out pursuant to a federal environmental statute, other than an EPA-delegated program. For example, in PUD No. 1 of Jefferson County v. Washington Dep't of Ecology, U.S. , 114 S.Ct. 1900 (1994), the Supreme Court decided a case involving certification by a state agency under section 401 of the Clean Water Act, 33 U.S.C. § 1341. This case came to the U.S. Supreme Court on petition for certiorari, which the Court granted in order to resolve a difference of opinion among the highest courts of several states. Had such a case arisen in the context of section 401 certification by a tribe that had been determined by EPA to qualify for "treatment as a state," it is not clear whether there would have been federal court jurisdiction. This ambiguity could be clarified by amending the statute authorizing certiorari, 28 U.S.C. § 1257, so that it would include federal questions arising in decisions rendered by the highest courts of Indian tribal governments. See Robert N. Chnton, Tribal Courts and the Federal Union, 26 WILLAMETTE L. REV. 841, 893, n.l26 (1990). The American legal tradition requires that the proper forum for federal court review of the decisions of the highest courts of the states be the U.S. Supreme Court. When tribal governments perform functions like those of the states in our federal system, the highest courts of the tribes should be treated with the same measure of respect. Fundamental Change in the Trust Relationship. In addition to changing the statutory law, section 329 would bring about a fundamental change in the relations between the United States and the tribes, relations which contributed to the formation of this country and our federal system of government. A basic aspect of the federal-tribal relationship is that the federal government has long assujned the role of protecting the right of tribes to a measured separatism. The federal government has done this, in part, by defending the institutions of tribal government from intrusions by the institutions of state governments. This role is based in part on treaty obligations of the United States to protect Indian nations. E.g. Treaty with the Menominee, March 30, 1817, 7 Stat. 153, reprinted in II Kappler, INDIAN AFFAIRS: LAWS AND TREATIES 138 (Chiefs of the Menominee Tribe acknowledged themselves "to be under the protection of the United States, and of no other nation, power, or sovereign"). The federal government's role in protecting tribal governments from intrusions by state governments is part of the doctrine of the federal trust responsibility. In 1994 Congress expressly recognized that the trust 690 Testimony of the Menominee Tribe October 8, 1996 Page No. 5 responsibility "includes the protection of the sovereignty of each tribal government." Indian Tribal Justice Act of 1994, Pub. L. No. 103-176, 25 U.S.C. § 3601. This statutes also expressly states that "tribal justice systems are an essential part of tribal government." Language such as that in section 329 would be a wholesale abdication of the federal trust responsibility. The continuation of the long-standing special relationship that the United States has with Indian tribes requires that matters that are rightfully subject to adjudication in tribal forums not be given to the states over the objections of the tribes. Efforts to enact legislation such as section 329 strike at the heart of federal-tribal relations. Fundamental Change in Policy. Legislation such as section 329 would be fundamentally inconsistent with the bi-partisan federal Indian poUcy of the last quarter century, the policy generally known as "Self-Determination." The policy of Self-Determination is codified in numerous statutes and has been embraced in policy statements issued by Presidents of both parties. Two of the most influential Presidential policy statements were those issued by President Nixon on July 8, 1970, and by President Reagan on January 24, 1983. Throughout the Self-Determination era, the federal policy toward Indian tribes has emphasized strengthening the institutions of tribal governments. Section 329 would allow any person who objects to the exercise of tribal governmental authority to bypass tribal court and go directly to federal or state court. Such a federal law would strike a crippling blow to the efforts of tribal officials to build effective governmental institutions and would be a complete change of direction from recent federal legislation which supports the development of tribal courts, including the Indian Tribal Justice Act of 1994, in which Congress recognized that tribal justice systems are "the appropriate forums for the adjudication of disputes affecting personal and property rights." 25 U.S.C. § 3601(6). As a matter of federal policy, disputes involving tribal governments should be heard first in tribal courts. Some of the witnesses at the September 24 hearing, including in particular Susan Williams and Douglas Endreson, discussed the issue of waivers of tribal sovereign immunity for actions in tribal courts. A growing niunber of tribes have waived sovereign immunity for lawsuits in tribal courts, and some tribal courts have rendered common law rulings finding waivers of tribal sovereign immunity for certain kinds of cases. Many of the witnesses that expressed opposition to statutory language like that in section 329 at the September 24 hearing expressed the view that, where such waivers of tribal sovereign immunity so permit, tribal forums are the proper fonmas for adjudicating disputes against tribes and tribal agencies and officials. 691 Testimony of the Menominee Tribe October 8, 1996 Page No. 6 The experience of the Menominee Tribe, which included termination in 1961 and restoration to federally-recognized status in 1973, is unique among the tribes and should be noted by the Committee. Federal legislation which restored the Tribe to federally-recognized status included a requirement that a constitution be adopted by the Tribe and approved by the Secretary of the Interior. 25 U.S.C. § 903c. The Menominee Constitution and ByLaws (approved by the Secretary in 1979) includes a provision for the estabUshment of a tribal court as a co-equal branch of government. Powers of the tribal judiciary include the power to resolve disputes between and among persons arising under the Constitution and laws of the Tribe as well as those arising under the Constitution and laws of the United States. The Tribe's Constitution waives tribal sovereign immunity for actions in tribal court and requires persons seeking redress against the Tribe to exhaust all tribal remedies before seeking redress in federal court. We urge the Committee to note that the solution of adjudicating disputes involving tribal agencies and officials has been part of Menominee tribal law for seventeen years. The current federal pohcy of supporting the development tribal courts as the appropriate fonmis for adjudication of disputes arising within reservations, including disputes against tribal agencies and oflBcials, has been tested in the courts of the Menominee Tribe and has proven successful. In our experience, exhaustion of tribal court remedies places no inordinate hardships on potential Utigants. Indian Self-Determination as a Human Rights Issue. The federal commitment to Indian self-determination should be seen as a human rights issue. Indian tribes are significant participants in the worldwide struggle for the recognition of the human rights of indigenous peoples. The United Nations is currently considering the adoption of a Declaration on the Rights of Indigenous Peoples. A draft of this Declaration was approved by the Subcommission on Prevention of Discrimination and Protection of Minorities in 1994, resolution 1994/45, Aug. 26, 1994, and is currently under consideration in the Commission on Human Rights. Reprinted in S. James Anaya, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 207 (1996). Article 3 of the draft Declaration provides: "Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their poUtical status and freely pursue their economic, social and cultural development." Many generations ago Indian tribes and federal government officials entered into treaties, and Congress enacted statutes, that recognized the rights of tribes to continue to continue to exist as distinct peoples, including exercising self-government within their recognized territories. When Indian tribes entered into treaties, they generally acknowledged the superior sovereignty of the United States, which agreed to protect the tribes in their 692 Testimony of the Menominee Tribe October 8, 1996 Page No. 7 rights to continue to exist as a distinct self-governing communities. E.g., Treaty with the Menominee, 1817, cited earher. Entering into such a treaty can be seen as an act of self-determination, since it is entering into a relationship with a more powerful sovereign. The United States has since unilaterally changed the terms of this arrangement, during the "allotment" era of federal policy and again for many tribes, including the Menominee Tribe, during the "termination" era of federal policy. But Indian tribes and nations still seek self-determination. Grovemment is a social compact, and the government that the American people created has made commitments to preserve the right of Indian tribes to carry on as sovereign governments. When tribes exercise governmental authority, some people, tribal members and nonmembers alike, may be faced with certain restrictions on what they might otherwise like to do with their property. The rights and interests of individuals need to be respected, but it must be possible to accommodate such rights and interests while still honoring the national commitment to the right of Indian tribes to self-determination. Congressional support for the development of tribal judicial systems must be part of the answer to this challenge. 693 TESTIMONY BY BOBBY WHTTEFEATHER CHAIRMAN, RED LAKE BAND OF CHD'PEWA INDIANS I want to thank Chairman McCain, Vice Chairman Inouye, and the Members of the Committee for this opportunity to provide written testimony on this subject which goes to the very heart of Indian existence, and especially the existence of the Red Lake Nation. Because of our unchallenged, unique legal and historical status, it is important that the record reflect precisely and coherentiy the distinctive nature of our nation, the Red Lake Nation, and the unique hardships this callous thrust at sovereign immunity, if successful, would impose on the people of Red Lake. First, let me begin by stating that the Red Lake Nation has a special stake in this debate. It is absolutely essential that this Committee and the Congress understand and appreciate the unique nature of the Red Lake Nation. In McClanahan v. Arizona State Tax Commission (411 U.S. 164, 172 (1973)), the Supreme Court stated in regards to all Indian tribes, "their claim to sovereignty long predates that of our own Govcmmcnt" This long history is for us, the Red Lake Nation, unbroken. The land of the Red Lake Nation has itever been divided, diminished, disbursed, or Allotted. The inherent right of our self-government precedes the U.S. Constitution, and neither die Traditional Chiefs 694 nor die Tribal Council of the Red Lake Nation has ever relinquished any part of this sovereign right. The Red Lake Band of Chippewa Indians live on our aboriginal homeland in northern Minnesota of 835,842 acres of land and water. Prior to tiie Old Crossing Treaty of 1863, the seven bands who comprise the Red Lake Chippewas owned and controlled more than 13 million acres of land in northwest Minnesota, extending into North Dakota to the west and Canada to the north. All our land is and always has been held in common by all members of the Red Lake Nation. Sovereign authority is vested in us as a people - and is exercised as a Tribal right, not an individual right. There is further proof of the pristine and untarnished sovereign authority of the Red Lake Nation: we rejected the conditions of the Dawes Act of 1887, and we rejected state jurisdiction through P.L. 83-280, Civil and Criminal Jurisdiction on Reservations. Thus, as dw Red Lake Tribal Council exercises its power of self-government today, it does so by reason of our aboriginal Tribal sovereignty, not by the delegation of those powers from the federal government. Some tribes have not acted on this more basic principle of federal Indian law and have actively sought legislation that would further infringe on Tribal sovereignty, such as gaming legislation. We have rejected that 2 695 course. Sovereignty for us is a very serious matter. It is more than the power to issue our own license plates, or build and maintain our roads and schools, or preserve and use our forests, or even maintain a constant vigil against potential threats coming from Washington, such as diis. Sovereignty is at the essence of our tribe, our common existence, and our history with non-Indian governments. Forced restrictions on tribal sovereign immunity, or its complete elimination (as some of those who covet Indian land propose) would wreak incalculable damage on our unique tribal way of life and coexistence. Second, we of Red Lake stand squarely with our brethren, the Flathead nation, the Lununis, Chickasaws, the Sioux, Navajo, Tulalip, and many other tribes represented at the September 24 hearing, in their strong and moving expressions for the legal, substantive, theoretical, and practical rationale for tribal sovereignty and its integral component, sovereign immunity. I commend to the consideration of the Committee the concluding remarks of Mr. Herb Yazzie, Attorney General of the Navajo Nation. Although it is rarely mentioned now, Mr. Yazzie was right to point out that Indian peoples over 200 years ago taught the European immigrants to North America much about democracy. It is unfortunate that, in die Capitol of the U.S. government in Washington, D.C. today, we find tribes needing to 3 696 defend our long practice of justice and respect for individual rights and democracy. To suggest that Indian nations somehow provide less justice than do the states, I consider sad and offensive, and patently inaccurate. And again, though it is mentioned in these modem times rarely or not at all, I commend to the consideration of every American, Native or otherwise, the early history of the Chickasaw Nation as a reliable ally of die besieged Continental Congress. Many do not know die story, as recounted by Chickasaw Governor Bill Anoatubby, that just fifty years later the ungrateful young American Republic demanded that die Chickasaw surrender their lands. That story is important as background and historical context, against which sovereign immunity stands as one of our cornerstones of Indian independence and self- determination. For in the American system, laws and legal tools have not always served Indian peoples well, but sovereign immunity has consistendy served as a pillar of our self-governance. After innumesable sworn promises and broken treaties, any discussion of a forcible waiver of sovereign immunity is a ghasdy and solemn matter. Third, much of the testimony of Uiose who would seek to undermine sovereign immunity, Indian sovereignty, and Indian peoples generally, is based on misunderstanding, myths, and misrepresentation of the law or the facts cited. Some of what diey state is simply offensive. Whether by effect or design, much of what they propose would serve only to 4 697 continue the steady erosion of Indian rights and lands that has occurred over the last four centuries. Although attacking sovereign immunity is a relatively new tactic, the ultimate goal remains the same: the misappropriation of Indian lands and the debasement of our property rights in order to &vor non-Indian friends of some federal and state elected ofGcials. Mr. Darrel Smith of South Dakota, and a few other witnesses at the hearing on September 24, took much time describing stories of alleged injustices at the hands of tribes and tribal justice systems. Even were these stories to be proven true, they do not argue for the wholesale abolition of tribal justice and self-government any more than the stories of injustices wrought by state and federal courts which fill the newspapers and provide new material to TV drama after TV drama would cause the same to occur to those courts. If our opponents present as their most significant argument a loose collection of grievances and stories, a thrown-together potpourri of anecdotal evidence, then this misguided attempt to target sovereign immunity should go no further. Mr. Smith told a story of several Indian youths committing vandalism on the Standing Rock Sioux Indian reservation. Jesse Taken Alive, Chairman of the Standing Rock Sioux tribe, stated that the situation is being dealt with. Yet, Mr. Smith stands in harsh judgment of the Sioux and their tribal courts. Should this Committee similarly criticize the entire American criminal justice system for one of the many well-publicized miscarriages of justice over the last several years that have occurred in the non-Indian 5 698 courts of South Dakota? Just to the west of Mr. Smith's South Dakota, Chairwoman Swaney and the people of the Flathead Nation have undertaken a comprehensive tribal justice program, with the cooperation of Montana state and local governments, to reduce the number of crimes and incarcerated tribes people. The Flathead Nation's concerted, successful efforts to strengthen its justice system and address the resolution of disputes points out, once again, that Indian self-government, sovereignty, and sovereign immunity are working. They should not be "reformed" by diose who stand to benefit. Further, it should be noted that Mr. Smith of South Dakota cited the Dawes Act and the surplus land Acts as the origin of his and his family's residence on Sioux land. This is not unsoiled justification. The Dawes Act and the Allotment Era were instituted by the United States in a deliberate attempt to destroy traditional Indian governments and social institutions and to tear Indian people firom their culture. It was forced assimilation into an anti-Indian America, which conveniently displaced Indian peoples firom their land and caused the wholesale transfer of land and valuable property rights to non-Indians. Tribes in Minnesota and across America refused to accept the conditions of the Dawes Act of 1887, and today that Act stands as one of the most destructive pieces of federal legislation ever directed toward a class of people by the U.S. government. If this is legal justification, it is also bankrupt morality and no guide for this Committee in 1996 America. 6 699 Further, the Allotment Era is directly responsible for much of the conflict between Indian nations and non-Indian property owners, for it resulted in the checkerboard land ownership patterns which now exist within most Indian nations. The ugly after-effects of die misguided Allotment Era are directly responsible for this hearing today; and yet, some would compound the problem in order to solve it, by proposing even uglier legislation — the forced debilitation of tribal sovereign immunity. And for seemingly the same purposes of the Allotment Act: dispossession of Indian lands and the destruction of Indian economic self-sufficiency. Fourth, it is clear tfiat Indian economic self-sufficiency and tribal economic development is truly at stake at this hearing, and under attack by those who are attacking tribal sovereign immunity. Sovereign immunity is one of the principal tools used by tribal governments in our economic dealings — and whether to waive it or exercise it is a judgment tribes need to be able to make. Just as all governments contract, regulate, tax, license, and decide legal and economic relationships with those who deal within their jurisdiction and certainly those who deal directly with them as a goveniment, so too do tribal governments. The Washington state opponent of tribal sovereign immunity, Jim Johnson, cited Professor Joseph Kalt's statement at the recent hearing before this Committee regarding economic development on reservations: The central problem is to create an environment in which investors ~ 7 700 whether tribal members or outsiders -- feel secure and therefore are willing to put energy, time, and capital into the tribal economy. Mr. Johnson apparently believes, although he offers no proof, that there is uncertainty and intolerance for risk on the part of non-Indian investors; and that it is caused by tribal sovereign immunity; and that this condition will be cured by a "one size fits all" federally mandated forcible waiver of tribal sovereign immunity. Yet Professor Kalt's actual testimony was quite firm in support of sovereignty, and he issued a very different prescription: We cannot find a single case of sustained economic development where the tribe is not in the driver's seat. Besides anecdotal evidence, and a suggestive and unsupported reference to alleged investor uncertainty, our opponents did offer varied legal arguments. Mr. Long, Chief Deputy Attorney General of the State of South Dakota, offered a brief arguing that 1) tribal sovereign immunity is relatively undiminished in its potency after 200 years; 2) the sovereign immunity of U.S. states, the U.S. federal government, local governments and municipalities has been critically curtailed; and 3) the commercial activities of foreign nations under U.S. courts differ markedly ft'om the status of Indian tribes. While many legal scholars will argue with Mr. Long, especially on points 1) and 2), tribal sovereign immunity is not comparable to that of U.S. states or local governments. As Indian and non-Indian leaders have stated, and restated, again and again at hearings 8 701 before tfiis and otfier bodies, the United States is in a govemment-to-govemment relationship with tribes. It is, in fact, unconstitutional for a state to superimpose another legal relationship upon a tribe, or, for that matter, the federal government to back away from its own Constitution, legal precedents, treaties, and history. While die U.S. government has abrogated a portion of its sovereign immunity, primarily in the areas of torts and contracts, this is an instance of Congress re-defining the boundaries of its own federal immunity, often in concert with the establishment of some additional resolution mechanism such as the Federal Tort Claims Act. Both Executive statement and Congressional legislation on the issue of Indian governance have been entirely, clear, in the past and most recently. They have not wavered from strong tribal governance, economic development and self-sufficiency. For this reason, a forced restriction or elimination by Congress of tribal sovereign immunity would not only be a death blow to tribal governance but wholly incompatible with on-going federal policies to encourage tribal sovereignty and economic development. An assault on tribal sovereign immunity would of necessity be a cheap legislative whitding-away of our rights, radier than a truly integral and relevant component in the evolving, strengthening relationship between tribes and the U.S. government. Fifth, it is important to note the position of the U.S. government, as stated by Associate Solicitor Anderson, on "the integral function which sovereign immunity serves" in Indian self-government and self-determination. 9 35-542 97-23 702 Solicitor Anderson pointed out that as recently as 1994 the Congress affirmed that "the United States... recognizes die sovereignty of those tribes" (Federally Recognized Indian Tribe List Act). The office of the Secretary of Interior indicated that tribes possess immunities deriving from dieir govemment-to-govemment relationship with the United States. This vital govenunent-to-govemment relationship follows fi-om an older, somewhat paternalistic attitude that saw tribes as "domestic, dependent nations" (Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)). Solicitor Anderson affirmed tfiat "the genesis of the govemment-to-govemment relationship between Indian tribes and the United States is the Constitution." Moving closer to the topic of the Committee's consideration. Solicitor Anderson stated: [T]ribes... possess all powers of government, except those which have been expressly extinguished by Congress or which the Supreme Court has mled are inconsistent with overriding national interests. I consider this to be a very important statement. If the Supreme Court has only forcibly restricted tribal sovereign immunity under conditions of "overriding national interests," that poses the looming question to tfiis Congress of why it should now depart from such an elegant standard. Solicitor Anderson did address civil jurisdiction, the source of the complaints of many of 10 703 this hearing's non-Indian witnesses. He stated that: Since tribal civil jurisdiction concerns those matters which are linked most intimately with tribal identity, the exercise of broad tribal civil jurisdiction is essential to the maintenance of a vigorous tribal government. Civil jurisdiction is vital to sovereignty. It is an issue of respect for our institutions and respect for our govemment-to-govemment relationship with the United States. At a more concrete level, in 1992 the Congress recognized the importance of tribal courts by passing the Indian Tribal Justice Support Act. Tribal justice and civil jurisdiction is thus a growing, strengthening institution. Solicitor Anderson referenced the specific issue of waiver of sovereign immunity for both tribes and the U.S. federal government. It is significant that Congress did waive the federal government's own sovereign immunity under the Federal Tort Claims Act system - where even Indian tribes, acting as contractors for federal functions, can be petitioned for grievances — yet even then, tiiis system was specifically established without affecting tribal sovereign immunity. There are very, concrete dangers, to tribes and to the core concept of justice, inherent in forced restriction of tribal sovereign immunity. A blanket forcible waiver would allow anyone to pick and choose between justice systems, "court shopping" for the favored verdict. A snarl of inconsistent decisions would be just one of the many unpleasant outcomes. Lost resources spent in frivolous, hostile litigation in courts historically 11 '/■*»■. »»^ ■» — ■ 704 antagonistic to Indians, is another. Finally, Solicitor Anderson confronted the naked thuggery of the recent behind-the-scenes battles over appropriations to tribes, where receipt of federal funds by tribes was to be linked to an automatic elimination of tribal sovereign immunity: Judgment funds are the tribes' money. When the United States pays what it owes a tribe for a wrong committed against the tribe, it should not attach burdensome and sovereignty-impairing conditions to the payment of what is rightfully the tribe's money, free and clear. ...Any erosion of tribal sovereign immunity would undermine one of the most fundamental principles of government. I would add that any Congressional erosion of tribal sovereign immunity, would undermine one of the most fundamental principles of government under the U.S. Constitution. Any Congressional action to eliminate or forcibly restrict tribal sovereign immunity would be not untrammeled, but highly circumscribed by the responsibility to tribes established by legal precedent and by stated Congressional Act and intent. Lx>oking at the larger picture, the overall strengthening course of tribal relations with the U.S. and tribal economic development would demand diat the federal government let stand, unabridged and uninjured, die vital legal foundation diat is tribal sovereign immunity, upon which rests so much of die elements and die very soul of our self-government. The very £act of the growing strength of tribal self-government and economic development, at Red Lake and across America, argues strongly against any debasement 12 705 by die Congress of our sovereignty or sovereign immunity. The Red Lake Nation's solid, centuries-old link to tiie land is an even stronger argument. Our special achievement, of retaining true independence and the land in the face of so many challenges, must not be compromised by this intemperate assault on sovereign immunity. The Red T ^^lf^ land base is aboriginal, unallotted land, and our inherent right of self- government predates the U.S. Constitution. As one of just two "closed reservations" in the United States, our unique status and history must be specifically and particularly taken into account in any discussion of tribal sovereign immunity. Mr. Chairman, I thank you and the Members of the Committee for your earnest consideration of my statement. As we work together to put behind us diis callous threat, I look forward to again working with you towards building a more healthy relationship between our peoples. 13 706 Sac and Fox Nation RMik Z, Bai 24« Sa«aed the lease as unreasonable under BIA management, lease rates on Hermosa Point have continued to rise arbitrarily, inconsistent with surroimding comparables for raw land. In effect, this practice by the BIA facilitates a" taking" of the value of improvements made by lease holders to a point where home has no asset value left. Many of the older, retired, long term lease holders are being left in desperate straits, unable to sell their retirement home or pay the lease. In a newer development of lease lots for homes on the Swinhomish Res- ervtion, the acceleration of lease rates has been even more flagrant in a shorter period of time. Here the homeowners have banded together in in an effort to fight off what is an imconscionable taking of the value of their personal property (houses & land improvements) In the West Shore Tenants Assn. This effort to date has cost upwards of S200,000 in legal fees, with the alternative of having to lose everything and walk away. One of the long standing practices of the BIA to implement this "taking" is to use their own appraisal standards for evaluatmg raw land. On being challenged, their answer is there are no satisfacton' comparables so they fabricate their own which are then used to contradict qualified appraisers. In sum, going through arbitration with the BIA over a conflict in rates rarely leads to a reasonable resolution for the home owner. The following is a case in point. 712 The Shelter Bay Community on the Swinhomish Reservation is the latest target of the BIA for the "taking" of personal property. In this case the BIA has become so embolden with their success in undermining the viabiliry of leasing land, that they have now taken on the Developer of Shelter Bay tract with over 800 lots. Unlike the foregoing projects where leases are made directly with lot tessees, here the Developer, Osberg (Shelter Bay Company) negotiated a Master Lease sanctioned by both the Department of Interior and the BIA to develop an idealized, planned community in an area dominated by a large acreage of tide flats. A costly undertaking with a long term struggle to sublet sufficient lots to make the project break-even as an investment. Now that Shelter Bay Community is a thriving community making a significant economic impact on the nearby City of La Conner and Skagit County, the BIA has already taken action to break the Master lease with demands for rate increases that Osberg can't meet. This was done with the BL^'s proven tactic of setting their own criteria for appraisal inconsistent with the basis for increases in the Master Lease. In arbitration, the findings as agreed to by Osberg would have allowed a significant increase beyond that provided for in the Master Lease which he could live with. However, as this did not satisfy the BL\'s objective to break the Master lease to get at the subleases individually, the findings were summarily turned down. Osberg has app>ealed this action months ago. In the mean time, the uncertainty now existing beclouds title to property, depreciates values, and discourages sales. A fair and equitable lease has value in the market place as long it is priced competitively with other approaches to securing adequate housing. In the West Shore area cited above, over half the lots for lease have never been occupied and those that are were developed before the acceleration of lease rates began. As with all problem areas dted. the least critical observation one could make at this point is that the BIA is guilty of gross mismanagement and is long overdue for being held accountable for its actions. Respectfully submitted, John S Perrin PS In all my years in the Marines and in multiple careers since 1943. 1 have yet to encounter an organization as counter productive in the exercise of its power as the BIA. Its demise would be a blessing to all Americans. 713 ^^»>»S«'e*, P.O. Box 27098 Bob Manzke ^ ^51^"%. Milwaukee. Wl 5322 7-0098 -Exec. Secretary-Treasurer § iSS^^ ^ Phoru or Fax (414)-543-418I PARR- Dedicated to the goal of preserving our natural resources, protecting rights of all Americans equally. September 13, 1996 Senate Committee on Indian Affairs 838 Hart Senate Office Bldg. Washington D.C. 2«51»-645« Ladies h Gentlemen: Protect Anterican's Rights 6 Resources (PARR) strongly urges you to factor the rights of non-Indians into the equation during the committe's upcoming hectrings on Indian af- fairs. Since the early 1980's the rights of non-Indians has become non-existent when it interferes with tribal agenda. In Wisconsin the non-Indiaui has become a second class citi- zen. Through litigation one tribe (the Chippewa) has gained control of the fish and game in the northern one-third of the state. The Indians take what they want and the non-Indian gets what's left, if anything. The reduced bag limits for non-Indian ctnglers hots generated tremendous havoc with the portion of Wisconsin's tourist industry that depends on the fisheries. Another tribe, the Menominee has htigzrtdon pending in federeil court which will give them similar control of another one-third of the state. Wisconsin and Minnesota along with many other states are burdened with increasing litigation regarding ii\anagement of the resources and property rights. The myth of Indian sovereignty is a powerful tool being used in an attempt to install costly regulations of air stnd water, threatening communities and industries. The concept of sovereign immunity places Anterican Indians apart from the rest of socie- ty. It puts limitations on the freedonts of other citizens; raises the prospect of further confrontations regeurding interpretation of past treaties; finally, it creates a chntate of antagonism toward Indians, isolating them even further. Many of the treaties of the 1800s contained the phrase, "they are to be integrated into the mainstream of society as soon as possible." Finally on the myth of tribal sovereignty: l...The U.S. Constitution recognizes only the federal and state governments as sovereign entities. 2. ..That the U.S. Supreme Court (Marshall, Duro, OUphant) reaffirm the Constitution on this matter. 3.. .That your own act of Congress (1871 Appropriations Act) refutes tribal sovereignty. 4. ..That your own act cf Congress (Indian Claims Commission Act) specifically stated that Indian tribes could no longer lay claim to the naturcil resources of this country, i.e. treaty rights lawsuits against states. 5. ..That your own act of Congress (The 1934 Indian Reorganization Act) defined Indian tribal governments as nothing more than business corporations. Can hiring one to only one conclusion, tribal sovereignty is nothing ntore than a myth. Tours Truly, Bob Manzke ^xec Secretary. 714 Citizens for Responsible Zoning and Landowner Rights, Inc. CRZLR, Inc. P.O. Box 16 Maiden Rock Wl 54750 Tel/FAX 715-448-3213 September 7, 1996 Senate Committee on Indian Affairs 838 Hart Senate Office BIdg. Washington D.C. 20510-6450 Ladies and Gentlemen: Americans pledge we are, "...one nation under God, indivisible, with liberty and justice for all." The concept of 'sovereign immunity' denies this ideal and should be eliminated. It gives members of the American Indian community a special status not provided for any other ethnic group Non-Indians involved in Indian-related disputes should have access to state or federal courts. The authority of Indian-controlled courts over non-Indians has resulted in a loss of freedom and due process for these people. Polish, Chinese, Italian. Jewish. Mexican and other groups are also proud of their native cultures; they may even choose to live together in communities or enclaves, yet they do not have, nor do they expect 'sovereign immunity." nor do they administer their own justice systems. The States of Wisconsin and Minnesota, along with others, are facing increasing litigation regarding resource management and property rights. Communities and industries are threatened with costly regulations of air and water prompted bv Indian claims of sovereignty. The country has embraced a policy of integration which should include Indians. Laws have been written to insure people of different races, or even those with physical or mental limitations, are to be given equal treatment. The concept of sovereign immunity places American Indians apart from the rest of society; it restricts their integration; puts limitations on the freedoms of other citizens; raises the prospect of further confrontations regarding interpretation of past treaties; finally, it creates a climate of smtagonism toward Indians, isolating them even further. Very truly Marilyn F. Hayman. President ( Board of Directors: Jack E Brovwi Wiiam Hoist III Dr Ernest Larson Vernon Maitn Frands H. Ogden Frederick Richtar Joe Wieser 715 §im HamitioM HC 59 Bm IS dteket lltJ 59025 Senate Committee on Indian Affairs 838 Hart Senate Office Building Washington. D.C. 20510-8450 Dear Committee Members: I hope that what I write here may be presented at the congressional hearing September 24, 19%. Watty Taylor and I have written to members of the Committee in the past regarding the Crow Boundary Settlement Act of 1994. Under this act (Public Law 103-444) the privately owned ranch lands of nine Non-Indians were placed within the boundaries of the Crow Reservation. This was accwnplished by moving the 104 year old eastern boundary of the Crow Reservation. This totally unnecessary boundary move constituted a serious breach of property rights. For two years now. we have attempted to inform members of Congress and this Committee of the seriousness of this boundary move and why we object to being placed within the boundaries of the Crow Reservation. At the present time we are seeing the very things we have feared actually happening. The Crow Indians, under the guise of Tribal Sovereignty are attempting to impose taxes on Non-Indian landowners and businessmen on the Reservation. At least three lawsuits are presently under way regarding this. The Crows have actually filed tax liens against businesses, thereby clouding land titles and interfering with peoples credit and borrowing ability. Non-Indians have no representation in the Crow Government or standing in their so- called court system. Does this not make taxation without representation and did the United States not fight a war with England over this very issue? How can there possibly be a "Sovereign nation" within the boundaries of these United States? Montana taxpayers and United States Citizens are being forced to defend themselves at considerable expense, in these Tribal Courts. This is absolutely totally 100% wrong. What has happened to the rights of the Non-Indian citizen? Law enforcement on the Crow Reservation is practically non-existent. Our county sheriffs' department has no authority over an Indian on the reservation and will not come on the reservation to investigate a crime. We find it difficult to get the Tribal Police to pursue investigations or to prosecute an Indian committing a crime against a Non-Indian on the Reservation. The result is a total lack of law enforcement which results in arguments and frustration and will ultimately result in violence and bloodshed. The Crow Reservation is approximately 50% owned by non-Indians. These lands were 716 obtained legally thru private or BIA sponsored sales. No covenants or restrictions exist to grant die Crows jurisdicdon on these lands. In our particular case, we suddenly, by passage of the Crow Boundary Act of 1994 found our lands and our rights then placed within the supposed jurisdiction of the Crow Tribe. There is no need for situations such as this to exist in the United States of America. All the races in this country must co-exist peacefully, but they can not while things like this are allowed to continue. These and similar problems are occurring on all the Indian Reservations where Non-Indians own land or businesses. Thank you. z- Jim Hamilton 717 ^^If^^*^ 1936 SEP - 9 "• 12: 25 ^^^ «-«;*-/ -x^X^ '^*^ '•^Tif^'A* * • • •#*»*' Tsn' '/"av.t^-v '»^ » - ^1 718 ?^ ^^*<^ /k*.^ c . c Ji. i-*«-Zi 719 PO Box 1343 LaConner, WA 98257 August 27, 1996 ft Senate Committe On Indian Afairs SH-838 HSOB Washington, DC 20510-6450 Dear Senator: Never have I read in any history book that rights and protections given to a US citizens in my county (Skagit) are not available to non-tribal Indians on a reservation. Never have I been told that protections given to US citizens in my state (Washington) are not available to non-tribal Indians on a reservation. No one told me that on an Indian reservation the only Federal protection a non- tribal US citizen could access is the Federal court system and then only if they had enough money to get through the Tribal court system. The Congress of the United States has allowed Indian Tribes to basically declare themselves sovereign nations WITHIN THE BOUNDARIES OF THE UNITED STATES. If the Congress is going to continue to allow this, then I demand that citizens be warned that they are entering a section of land that has different rules, different rights, and different protections for US citizens entering its borders. When driving over the border to Canada or Mexico, the border patrol signifies to a citizen that they are leaving the protection of the laws of the United States. I want signs on roads leading into reservations notifying people that they no longer carry with them the protections of the county government, the state government, and seldom the Federal government. The United States government insists that warning signs be placed on cigarettes, beer, and medications to protect its citizens. Surely, the basic fundamental rights of its citizens are just as important? The early colonists hated and rebelled against "Taxation without Representation" and yet Tribal governments are allowed to pass legislation that affect non-tribal members WITHOUT REPRESENTATION!!!!! The Courts have allowed Tribes to declare they have «ov«r«ign iaManity. The Tribes now have the potential to have governments similar to those our forefathers fought against . If Tribes are to be sovereign and have sovereign immunity, then it is time the Tribes stand in line with Mexico, Bosnia, and Haiti for foreign aid funds. It is time to quit paying "quilt" money to the tribes. It is time to oversite the Federal money that is given. I know that almost every governmental agency I have contacted is "scared to death" to get involved in protecting a non-tribal citizen who lives on a reservation because of the "sovaraignty" issue. It is this fear that gives the Tribal governments their unbridled power. It is the lack of oversite of Federal dollars that gives the Tribes their arrogance about spending the money any 720 way they want. It is this arrogance that causes them to spend Federal dollars in a discriminating manner based on race. The Swinomish Tribe has just charged non-tribal members for a sewer and water system that benefits Tribal landowners. No Tribal landowners have been billed. I have no vote or representative on the Tribal Senate who passed the discriminating ordinance. I have no legal standing. The BIA increased the rents on leased Trust land by 400-500%. The market could not sustain the new rents. The value of my home along with 100 other homes has been "taken" from me. An attempted to solve this unfair action by accessing the administrative appeals process of the BIA has been ongoing for four years! I have written you before. NOTHING HAS CHANGED. People from agencies in Washington DC come to see and hear about the problem. They then disappear back into the "black hole" somewhere in Washington D.C. Why is everyone so afraid of the Tribes? I HAVE ONLY YOU, THE CONGRESS, TO PROTECT ME. Please do something. We should have one nation with one set of laws. Stop the "quilt trip" and embrace the "fairness" issue. Why would Congress allow the Tribes to have sovereign immunity and deny it to other governmental agencies? It makes no sense! I thought I lived in the United States of America where ALL people (tribal and non-tribal) were treated with equality and justice for all. Yes, I can walk away from many, many years of mortgage payments and investment and be thankful I don't live in Bosnia where my life as well as my home w^uld be at risk. But I live in America. I do i^'OT expect my government to abandon me because I am a non-tribal member living on a reservation. We are a diverse family in the United States and everyone is valued and that includes me. Sincerely, ' , -■ ... Kathleen Whalley 721 Page 1 of 2 Box 363 Hardin, MT 59034 September 19, 19% Senate Committee on Indian Affairs 838 Hart Senate Office Building Washington, DC 20510 We live on a ranch which is located in Southeastern Montana on the Crow Indian Reservation. I am writing this letter because of my heartfelt concern regarding the fumre of our lives and our livelihood. As non-indians who own land purchased years ago from Indians who wanted to sell the land, we seem to have lost our constitutional rights. We are in danger of being taxed by the Crow tribe. We have NO representation in their "sovereign" government. We are United States citizens who abide by the laws of our country and the state of Montana. The Crow tribe makes up its own laws and has its own court system where we are unable to vote, unable to be jurors, unable to seek appeal, unable to take part in any way. In our current situation, if we exercise our right to free speech and speak out against anything the tribe is doing, we nm the risk of retribution. We lease some land from the tribe and if we say or do something that they disagree with or don't like, they seem to have the authority to say, "Your leases are cancelled." End of discussion. We have NO way of protecting ourselves against this retaliation, other than remaining silent and living in oppression, which isn't right. We have no law-enforcement as non-indians on the reservation. The Sheriffs department 722 doesn't want to deal with us because we are on the reservation the Crow police don't want to deal with us because we are non-indian. What are we supposed to do, besides try to protect ourselves? Private property rights enter into this also. We own property on the reservation but the indians are allowed to hunt and travel year around on OUR land because it's located on the reservation. We've had numerous cattle shot for sport, fences cut, and trash and litter left all over our place. It's just incredible to me how tribal members seem to be exempt from all the rules and laws that we abide by as United States citizens. With our children (a 7 year old and twins 4 years old), we represent the 4th and 5th generations on this ranch. We are DEEPLY concerned about our future and our children's future on this ranch if things are allowed to continue as they are. We are not asking for preferential treatment, we just want FAIR treatment, as guaranteed us by our constitution. I hope you will be able to address these issues and if not resolve them, determine a way to gradually phase out the Reservations. Thank you for your consideration and taking time to read this letter. Sincerely, George J. Hammond, Jr. and Delora Hammond and Children 723 To Senate Committee on Indian Affairs; I am writing in regard to your bearings September 24tb. I am a descendant of the Crow Indian Tribe. I am writing to express my concerns over law and order on the Indian Reservations. We currently have none. We recently had several vehicles stolen from our ranch. The local Sheriff and B.I. A. policeman came to investigate. Three suspects were caught red-handed in the stolen vehicles. The B.I. A. officer said he would take them to tribal police headquarters, but it probably wouldn't do any good. I asked why not and he replied that the tribal judge would probably turn them loose. That is exactly what happened. How can this happen, you ask? One reason is that the tribal judges have no law backgroimds, and are appointed to their offices because they agreed with the current administrations policies. I strongly believe that we are all citizens of the United States of America and should be under the same jurisdiction. There is no such thing as a sovereign nation within a nation. We need to have one law and order system that is recognized and upheld by the Constitution of the United states of America. Sincerely, John Ala Stevens (?) r*-^' r. w^x ^ww rnwrw^^ -w^r^ — 'rAWJw^x ^^~ '—rsri^jc* '^'^ — ' rx'iiTS^ '^ -- — '^rx^^^v ^ 724 ./Z/1^ Co-^dtP-Z^g:,^^/^ /Wv-e>T. Jl^^Lr/^^c.^',^ j;^^-«,^^~e-2_ ^^^.-t^ 725 w-«-a. * 726 ■5EP-20-'96 FRI 09:19 IDtUHOTCOtl CO B6C Fax Note 7672 TEL NO: C2 0fe)73e-2525 BS98 P01 ■^^ttop^aiNar- JpgwMiw: QOBWiy Qb«iot Qcm«»iU>^) WHATCOM COUNTY PLANNING AND DEVELOPMENT SERVICES 5280 Northwest Driv* Bellingham, WA 98226 MICHAEL T. KNAPP. A.I.C.P. Director «"■ ■ ^-> ■-•■ Director Senate Committee on Indian Affairs . ' . 838 Hart Office Building " " ' Washington, DC. 20510^24 Attention: Nina Subject: Congressional Hearing/Senate Committee on Indian Affairs Dear Committee Members: In so far as Whatcom County issues building permits on fee lands owned by Lummi Indians inside the boundaries of the Lummi Indian Nation and the Tribe does not recognize Whatcom County Jurisdiction regarding County Zoning and enforcement of County Codes, management of Indian owned fee lands in contrast to Trust Lands is difficult if not impossible. By failing to recognize our jurisdiction, the situation creates potential liability for Whatcom County in that we may be left to correct health and safety problems on properties received by tribal or non-tribal members through tax foreclosures and/or later sales to non-Indians. The Lummi Reservation is an open reservation. The roads and easements are maintained by Whatcom County. In so far as the uibe manages the reservation sewer system, they must provide sewer availability slips before construaion. During this process, the Tribe redirects fee land owners to their own tribal planning department for site and planning approval. This situation creates confusion and often a burden on our tax assessor who uses Whatcom County Planning approvals to notify all landowners of their new tax assessments. While -the solution to these issues is not easily resolved, it is important to consider methods and solutions that will enable Indian Nations and Counties to jointly agree on ways to insure life-safety compliance. Sincerely, Michael Knano. Director 727 September 7, 1996. 4098 Sucia Drive Ferndale, Wa . 98248 (360) 384-3289 To the Members of the Senajtei^^ommittee on Indian Affairs. 838 Hart Senate C^l^i^ MildTng, Washington, D.C. 20510-6450 Dear Senators: 1. Sovereign Immunity shoul/d be removed from Indian Tribes. A. No one else has it. B. Used as "legal Blackmail" to get what they want. C. This is not sovereign power, Indians have: 1. The right to completely control their people. 2. U.S. Government is still the superior Sovereign power. D. Sovereign Immunity, Blacks Law Dictionary; 1. "a judicial doctrine which precludes bringing suit against the government without it's consent. 2. Founded on ancient principle "the King can do no wrong" . 2. Constitution - war for Independence fought to insure rights: A. Redress of grievances - or harm done. B. Citizens or government that do illegal things can be sued. C. No Citizen is more superior to another. 3. Tribal governments need to held responsible for their actions: A. Drilled illegal well within 100' from our community well, which put the health and safety of over 550 homes in jeopardy with only 7 days water left. B. With such aggressive pumping may have damaged the aquifer. C. Threaten to close county roads to our homes, on T.V. and in paper. D. Threaten to sue if we get water brought in. E. Federal Court Consent Decree prohibits discrimination by race, yet non-Indians have been denied water provided to the Lummi Public Utility District by the City of Bellingham, some even unable to hook up to sewer. F. Utility tax on essential services, without being consensual. I have brought to your attention some of the ways that sovereign immunity has affected me. The special rights and privileges afforded one race and not all citizens can not be allowed to continue, nor is it necessary to continue for the tribes in order to maintain self- government over their own tribal members through the election process. They also have voting rights for all County , State , and Federal government offices that I have. Sincerely yours, Wesley Bergman Shirley Bergman 728 Septeaber 11, 1996 S«utf9Co#|iiti£ on Indian Affairs* ^30 Hart Senate Office Bldg., Washington, D.C. 20510-6't50 I^Oi'^Vv'-' Dear Senators: It is my understanding that there is to be a hearing beore your comoiittee on September 2'ith regarding Indian Tribal Sovereignty. I am a Fee simple land owner living on the Lummi Indian Beservatioa, Whatcom County Washington. In the past year my rights have besn violated by the Lummi Indians with a serious threat of taking our water supply ( by drilling an illegal well without permit near ours and then overpumping) and then threatening to block county roads to cut-off the accessibility to my property* I think this sovereignty should end for the following reasons: 1. Accountibility for all individuals for their actions throu(^ the legal process. 2. Eliminate discrimination - one nation one equal citizenship for all* 3. End the contempt for our laws and Judges rulings. k. Stopping illegal acts - then hiding behind this sovereignty. I urge you to vote to end this sovereignty - enough is enough. s_«,-/t<^' ry/isher, 4079 Satit Spring Dr., Femdale, Washington 98248 729 to^^l Auoust II. lyyb To nemDers of the 5enate Indian Aftalrs Committee I have written many times regarding the unfair treatment of those of us who live on fee land within the tXHjndarles of the Lumml Indian Reservation. I again ask you to consider the 'sovereign Immunity" status of the tribe. They do what they please, mostly illegal acts,— sue us at a drop of the hat and we have no recourse to make them oDey the law. we purchased our land and made our homes here, now they have illegally drilled into our well stealing our water, taxing us for utilities with no authority , refuse to let us bring water from elsewhere by threatening to sue, and continually harassing the non-Indian residents of Sandy Point. They were ordered by the County Sheriff department to cease drilling when they started to dig the well on land that no longer belongs to the tribe. No permit was gotten from the County, and no regulation was followed. They purchased the lot in Sandy Point specifically to drill Into oor well. The County can't do a thing about it even when they break the rules. They have threatened to close our roads, and as they told us at a meeting, want to take back their land because it was a mistake to have sold it in the first place, they said, You need to know that the Lumml tribe now consists of mostly Indians who have come from Canada and joined the tribe. I have been told that there probably is only a handful of original Lummi's, who really are very nice people, and who are no doubt ashamed of what their leaders are doing to the community. Our golf course is badly m need or water, and the greens are being kept alive solely by the graciousness of a member who gets water outside the reservation ana puts a mtie on each day during the hot weather. These greens are very costly to replace and the Lummi's know that their destructive actions are hurting us. I am enclosing copies of letters I got from Senator Patty Murray in response to ones 1 had written to her As you can see I got a big zero there. I ask that you take all this into consideration as you vote. We desperately need helo. ^^c.^L.c- ^" /-^-'^■'H.u nw,^^. ▼ -^ — »^#v».»v% """"^ ' ^Ti^Myt:% '^^^ "■frsr^r'tk* ^ - 730 ria ihi^. August lb), IvVto To riemoers o+ the Senate Indian A+-fairs Committee: The Indians tribes are tree from any torm o+ accountability -for their actions and are immune -from lawsuits or legal redress oi- grievances or harm by the "right o+ Sovereign immunity". A right no one else has, not even the Federal government or the President. So no matter what they do or say, tail to do when promising or contracting with the County and non-Indian citizens, no one can legally take action^ The "right" needs to be removed and let all citizens and governments be equal under the law. Not one "race" with power to hold themselves exempt trom being accountable tor what they do, but must be subject to all laws the same as every other citizen and the rest o-f our State and Local Governments are. One "super race" o-f people enjoys all the power and -freedom -from being held accountable tor anything they do or say. With this "power" they hold local, county and state governments at bay to do their bidding with the continued threat o-f "if you don't, we will sue". This has caused these governmental bodies -from en-forcing laws and regulations that all other citizens must obey and comply with, because there is no budget that can handle the great cost o-f -fighting a lawsuit. So this "super race" continues to call the shots and demand more and more rights, at the expense o-f other citizens. This is strictly prohibited by any other race. When our Country was founded, it resulted in given us our Constitution and Bill o-f Rights, the ability and rights to have a redress of grievances or when harm is done. Where we have both State Courts and Federal Courts to address these issues, to insure the right and privilege of "all" it's citizens, this is true due process. Sovereign Immunity has nothing to do with interfering with Tribe 's self -governmen t , it only makes the Tribe's and their tribal-members responsible for their actions against non-Indians citizens and holds them to the same standards as the rest of the citizens and governments of our "one Nation". Tribal governments need to be held responsible tor their actions: A. Drilled illegal well within 100 -from our well, which put the health and satety of over 550 homes in jeopardy with only 7 days water left. B. With such aggressive pumping may have damaged the aquifer. C. Threaten to close county roads to our homes, on T.V. and in paper. D. Threaten to sue if we get water brought in. E. Federal Court Consent Decree prohibits discrimination by race, yet non-Indians have been denied water provided to the Lummi Pub lie Utility District by the City of Bellingham. F. Utility tax on essential services, without being consentual. In closing it is Congress 's responsibi 1 i tv to protect egual ] rights and due process of all it's Citizens. /^ Sincerely yours, Note: We aire property owners within the exterior boundaries of the Lummi Reservation. Lyle and Shirley Smith/ 4265 Salt Spring, Ferndale Wa. 98248 731 JpnVJTfpiAN BUSINESS COUNCIL T^A RD • BELLINGHAM. WASHINGTON 98226-9298 • (206) 734-8180 eWtMiNt 1990 £^, OEI nar^ Johtisen, Garrett & Stuen RESOLDTION HO. 90-89 OF THE LOMMI UTOIAH BOSINESS COUNCIL WHEREAS, the Lummi Indian Business Council is the duly constituted governing body of. the Lumni Indian Reservation by the authority of the Constitution aind By-Laws of the Lumni Tribe of the Luanni Reservation, Washington, as approved on April 10, 1970, by the Assistant Commissioner of Indian Affairs, and, WHEREAS, the Lumai Indiaui Business Council is responsible for maintaining a strong and stable government for the purposes of protecting and enhancing the general well-being of Lumni tribal members as well as other Reservation residents, businesses, work- ers, and visitors; and, WHEREAS, the Lummi Indian Business Council finds that it has insufficient funds to furnish the needed and desired services to the Lummi tribal members auid the Reservation community, in areas including, but not limited to youth, elders, cemetery, recreation and social services, repair and maintenance of tribal facilities and equipment, jurisdictional disputes, law and order, community economic development, and many other areas; and, WHEREAS, the Lummi Indieui Business Council has previously pro- posed a tax on the business of providing utility services within the Reservation and has held public hearings on this issue, and, after fully and freely discussing the issue, has found that the tax revenues are necessary to maintain a strong tribal govern- ment, and has also found that the benefits to the Reservation community from these tax revenues are greater than the burdens imposed on the individuals required to pay this tax. NOW THEREFORE BE IT RESOLVED, that the following Utility Business Activity Tdx Ordinance is adopted by the Lummi Indian Business Council amd shall be implemented as quickly and fairly as possi- ble: "UTILITY BUSINESS ACTIVITY TAX ORDINANCE "010 Legislative Intent and Findings "This ordinance . is enacted pursuant to the inherent sover- eign powers of the Lummi Indian Tribe and such other powers as Resolution Mo. 90-89 tXtility Business Activity Tax Page 1 WVXiAME xy«5 v«Ca.LWUJM< R04AMDP jCFVCRSON menRVU cagey iAMCSRMU>iM ^c* Cfivwwi iaammr Tii»i ■ CaxoMM Counoiman GERALDIJUCS EIWCST^ je^^RSOM ICA^ I JEFTERSOM VERN JOHNSON J* OARv G KML£Y 732 have been delegated to, vested in or confirmed in the Tribe through the actions of the federal government. Among other sources, it is based upon the federal policy of self-determina- tion for Indian tribes and the govemment-to-government relation- ship between the tribes and the federal government. "The T. imrm -i Indian Business Council finds that it is neces- sary to raise revenues for the provision of essential governmen- tal services in order to fulfill its obligations to the people of the Lunmi Tribe and the Lummi Reservation. Those obligations and services include, but 2u:e not limited to the provision, in whole or in part, of public health and safety services such as police, fisheries enforcement, fire protection, environmental health concerns, sewage collection, treatment and disposal, provision of safe drinking water, litter ind garbage control and disposal, environmental protection, maintenance of a court system for the resolution of civil disputes and criminal actions, and traffic safety and road improvement and maintenance services . "In addition, the Tribe provides social welfare services such as child welfare services, a broad range of educational programs from pre-school through college level, economic aid to the impoverished or disadvantaged, mental health and emotional counseling, employment training and job placement services, housing prograuns, cemetery benefits and other social services. The Tribe also provides recreational amenities and facilities such as athletic fields, a gymnasium, meeting rooms, and parks as well as supporting cultural and religious events and activities. Resolution Ko. 90-89 Utility Business Activity Tax Page 2 733 have been delegated to, vested in or confirmed in the Tribe through the actions of the federal government. Among other sources, it is based upon the federal policy of self-determina- tion for Indian tribes and the govemment-to-government relation- ship between the tribes and the federal government, "The Lummi Indian Business Council finds that it is neces- sary to raise revenues for the provision of essential governmen- tal services in order to fulfill its obligations to the people of the Luoni Tribe and the Lummi Reservation. Those obligations and services include, but are not limited to the provision, in whole or in part, of piiblic health and safety services such as police, fisheries enforcement, fire protection, environmental health concerns, sewage collection, treatment juid disposal, provision of safe drinking water, litter aind garbage control and disposal, environmental protection, maintenance of a court system for the resolution of civil disputes and criminal actions, amd traffic safety and road improvement and maintenance services. "In addition, the Tribe provides social welfare services such as child welfare services, a broad range of educational programs from pre-school through college level , economic aid to the impoverished or disadvantaged, mental health and emotional counseling, employment training and job placement services, housing progrsuns, cemetery benefits and other social services. The Tribe also provides recreational amenities and facilities such as athletic fields, a gymnasium, meeting rooms, and par)cs as well as supporting cultural and religious events amd activities. Resolution Mo. 90-89 Utility Business Activity Tax Page 2 35-542 97-24 734 bear a substantial portion of the costs of tribal government, given the economic benefits of the treaty fishery, but also desires to distribute the teuc burden more equitably among those H benefiting. The Lummi Indian Business Council therefore enacts the following tax_on the business activity of utility providers. "020 Definitions "Wherever in this ordinance, unless a different meaning is clearly intended by the context: A. "Buyer" means, without limiting the scope hereof, every person who receives goods or services from a seller in exchange for a promise to deliver to the seller, or for the actual deliv- ery to the seller, of money or other goods or services of value to the seller; B. "Cash Discount" means a deduction from the invoice price of goods or charge for services which is allowed if the bill is paid on or before a specified date; C. "Gross Receipts" means the full amount billed by a utility for the retail sale of goods or services. D. "Person" means any individual, receiver, assignee. Trustee in bamkruptcy, trust, estate, firm, co-partnership, joint venture, club company, joint stock company, business trust, tribal, state, or other local government or any agency thereof, private or municipal corporation, association, society or any group of individuals acting as a unit, whether mutual, coopera- tive, fraternal, non-profit or otherwise; Resolution No. 90-89 Utility Business Activity Tax Page 4 735 bear a substantial portion of the costs of tribal govemment, given the economic benefits of the treaty fishery, but also desires to distribute the tax burden more equitably among those H benefiting. The Lummi Indian Business Council therefore enacts the following taxon the business activity of utility providers. "020 Definitions "Wherever in this ordinance, unless a different meaning is clearly intended by the context: A. "Buyer" means, without limiting the scope hereof, every person who receives goods or services from a seller in exchange for a promise to deliver to the seller, or for the actual deliv- ery to the seller, of money or other goods or services of value to the seller; B. "Cash Discount" means a deduction from the invoice price of goods or charge for services which is allowed if the bill is paid on or before a specified date; C. "Gross Receipts" means the full amount billed by a utility for the retail sale of goods or services. D. "Person" means any individual, receiver, assignee. Trustee in bankruptcy, trust, estate, firm, co-partnership, joint venture, club company, joint stock company, business trust, tribal, state, or other local government or any agency thereof, private or municipal corporation, association, society or any group of individuals acting as a unit, whether mutual, coopera- tive, fraternal, non-profit or otherwise; Resolution No. 90-89 Utility Business Activity Tax Page 4 736 E. "Retail Sale" means every sale of services or tangible personal property to all persons irrespective of the nature of their business and including, among others, without limiting the scope hereof: (1) the provision of telephone, telegraph, or other commu- nication services ; (2) the provision of electricity, natural gas, or other energy sources; (3) the provision of water or water distribution or sewer collection and/or disposal services ; (4j the provision of refuse collection and/or disposal services ; (5) the provision of czLbls or community antennae television signal distribution services; (6) the provision of tramsportation services; (7) the sale, lease, or rental of any personal property by a utility to a buyer; F. "Sale" means euiy provision of services or the transfer of ownership of, title to, or possession of property for a valu- able consideration and includes any activity classified as a "retail sale". It includes renting or leasing, conditional sales contracts, leases with option to purchase, and any contract under which possession of the property is given to the purchaser but title is retained by the vendor as security for the payment of the purchase price; G. "Seller" means every person maXing retail sales to a Resolution No. 90-89 Otili'ty Business Activity Taic Page 5 737 cles or boats; (7) the conveyance of persons or property on a regularly scheduled basis; including those transportation systems operating primarily outside the Reservation but regu- larly loading or unloading passengers or cargo at a fixed terminal or station within or appxirtenant to the Reservation; but excluding regular mail or parcel delivery services. J. "Waste" means garbage, trash, rubbish, or" other materi- al discarded as worthless or not economically visUsle for further use. The term does not include material collected primarily for recycling or salvage. "030 Tm position of Gross Receipts Tax A. There is imposed on and there shall be collected from each utili ty_doing bus iness wi thin the Lummi R eserv ation a busi- ness priv^ileqe tax equal to 5% (five per cent) o f the utility 's gross receipts generated from retail sales within the reserva- tion. B. The tax imposed under this ordinance shall apply to successive retail sales of the same property or services. "040 T-i-mi.nq of Sales "For the purposes of this ordinance, a sale is deemed to have occurred at the time buyers are billed for the seller's actual or promised delivery of goods or services to the buyer. Resolution No. 90-89 Utility Business Activity Tax Page 7 738 "050 Pavaent of Taxes auid Reporting "All persons required to pay the tax imposed herein shall file within thirty days following the end of each calendar quar- ter a statement of tha't person's retail sales made within the Reservation during that quarter. Such forms shall be filed following the end of each calendar quarter even if no taxes imposed under this ordinauice eure due. This statement shall be made on the proper form as made availeible by the tribe and signed by the person responsible to conduct the utility's official business attesting to the accuracy of the statement. Full pay- ment of any taxes due under this ordinance must accompany the statement and be received by the close of business of the last working day of the month following the end of the quarter for which the teuces were imposed. "060 Cost: of Collection Actions "In einy action brought to enforce the provisions of this ordinance or to collect any sums due, the tribe shall be entitled to its actual costs and reasonable attorney fees incurred in bringing the action. Any judgment entered shall bear interest at the rate of 12% (twelve per cent) per year until paid. "070 Interest on Late Payments "If any sum payable londer this ordinamce is not paid to the tribe by the date specified, there shall be added to the unpaid sum interest at the rate of 12* (twelve per cent) per year. Resolution No. 90-89 Utility Business Activity Tax Page 8 739 "050 Pavnent: of Taxes and Reporting "All persons required to pay the tax imposed herein shall file within thirty days following the end of each calendar quar- ter a statement of that person's retail sales made within the Reservation during that quarter. Such forms shall be filed following the end of each calendar quarter even if no taxes imposed under this ordinance are due. This statement shall be made on the proper form as made available by the tribe and signed by the person responsible to conduct the utility's official business attesting to the accuracy of the statement. Full pay- ment of any taxes due under this ordinemce must accompany the statement and be received by the close of business of the last working day of the month following the end of the quarter for which the taxes were imposed. "060 Cost of Collection Actions "In any action brought to enforce the provisions of this ordinsmce or to collect any sums due, the tribe shall be entitled to its actual costs and reasonable attorney fees incurred in bringing the action. Any judgment entered shall bear interest at the rate of 12% (twelve per cent) per year until paid. "070 Interest on Late Payments "If any sua payeible under this ordinance is not paid to the tribe by the date specified, there shall be added to the unpaid s\im interest at the rate of 12% (twelve per cent) per year. Resolution No. 90-89 Utility Business Activity TekX Page 8 740 "080 Effective Dates "This ordinamce shall become effective on August 1, 1990, and shall expire at midnight July 31, 1991, unless, after review by the council prior to that date, the ordinance is extended for a period to be specified by subsequent action of the council. "090 Severability "If any paragraph, section, or provision of this ordinance shall be declared invalid for any reason, that paragraph, section, or provision shall be severed from the remainder of this ordinance amd the validity of the remainder of this ordinance shall not be affected by such decision. "100 Codification "The provisions of this ordinzmce are deemed to be a part of the Tribal Revenue Code and shall be renumbered so as to be consistent with that Code.", emd; BE IT yUKTHKR RESOLVED, that the need to continue this tax shall be reviewed again before July 31, .1991, at which time it shall expire if not re-affirmed by the Council; and, BE IT wiu'i'HKU RESOLVED, that this ordinance shall be immediately submitted to the Bureau of Indian Affairs for approval as re- quired by the tribal constitution, but that the ordinance shall take effect and be enforceable by the tribe on the effective date specified herein regaunUess of the actual date of federal approv- al of the ordineuice; and Resolution No. 90-89 Otility Business Activity Tax Page 9 741 BE IT FURTHER RESOLVED, that the Chairman (or Vice-Chair man in his absence) is hereby authorized and directed to execute this resolution and any docunents connected herewith, and the Secre- tary (or recording secretary in his absence) is authorized and directed to sign the following certification. LUMMI INDIAN NATION Samuel M. Cagey , Lummi Indian Business/ uncil CERTIFICATION As Secretary of the Lunai Indian Business Council, I certify that the above resolution no. 90-89 was adopted Regular meeting of the Council held on the ^th day of July at which tine a quorum of 6 was present, and was adopted vote of 5 FOR, AGAINST, and ABSTENTION(S) . hereby at a , 1990, by a 'ir»^l L." Williams , Secretary Lummi Indian Business Council Resolution No. 90-89 Otllity Business Activity Tax 742 /^C^r^l^' Members of the Senate Indian Affairs Coamittee AU9. 12, 1996 Dear Senator's: Re. Sovereign loununity As long as the prerequisite of race or national heritage is allowed to have special rights and privileges you will create dissension among all citizens. Mho have a right to equal justice and due process for all. I am writing you today because we are unable to be at the hearings regarding the effects that the so called sovereign immunity self- government has had on our life's as a non— tribal members who for the last five years have lived on land we purchased within the exterior boundaries of the Luami Reservation. 1 . A 5X uti litv tax on telephone, power and sewer bi 1 Is that the utility Go's, passed on because they did not want to try to take the tribe to court due to the cost of possible litigation. 2. Threats of closing our County roads, because they did not want non-Indians here except to gamble. 3. Drilling a well on a residential lot within 100' and 40' deeper than our water association well, ignoring a county stop work order, thereby depleting our water in an effort to stop non-Indian development on plotted parcels by draining our well. 4. The Tribe's threats and actions that have caused devaluation of property values, which the county now has to pass these taxes on to other residents, which tribal trust land is exeotpt. Which is against the law. 5. The threats of litigation to P.U.D, if we attempt to bring in water, over county easements. 6. The currant cost paid by CMjr self's and other non-Indian property owners for the cost of the current water negotiations that was requested by the Tribe. Federal funds are paying for their legal cost. 7. Legal fees are given to the tribe for litigation, these are taxpayer funds, yet we have been turned down when we have requested funds to stop their illegal actions and defend our rights. This is not a level playing field, or equal Justice for all citizens. 8. Actions taken by the BIA which approved taxing on non-Indian utilities even though current U. S. Supreme Court cases Montana and Brendale have ruled taxing of non— Indians must be consentual. Also a violation of the Constitution and Bill of Rights. 9. The tribes are exempt from the Freedom of Information act, no government body unless if affects the security of our nation should have this privilege when taxpayers fund their government and services. It should be public record how much their tribal leaders are paid. The tribes must be accountable for all funds received from our tax dollars. I am also of Native American heritage Capproximately 20% Cherokee Indian] as many A m e ricans are. As an American citizen I do not expect Page 1 743 any special rights but aust be protected from any special rights that are or could be afforded to any other citizen or ethnic group. To qualify for these special rights on this Reservation you only have to be 25X Lummi or equivalent. Native Anerican. The t ribes se lf-government over and above the S tate and Federal government that is already in place Must only apply to Tribal Members and non-Indian citizens who consent to civil jurisdiction . Cnoted iji the Supreme Court cases. Montana and Brendale ] It is imperative that our constitutional and civil rights be protected. My due process must not be set aside to benefit another citizen, due to race or national heritage. Me are one Nation not aany, as the tribes would have us bel ieve. If tribal me«bers wish to use the tribal court system where all parties are tribal ■ e mbers is one issue, non-Indians mus_t not be subjected to a court where there is no separation of powers where Judg es are appointed by the Tribal Counci 1 and must reflect their V i ew ' s or be replaced. Where there is not the same resolve that we could find in the state or federal court systems is a violation of our constitutional rights and due process. We must be able to use our State and Federal Court systems where all our rights are protected, Indian and Non-Indian alike. Otherwise it is a violation of our constitutional rights, that all citizens are entitled to egual justice under the state and federal laws of our land, as noted on the Supreme Court Building of The United States. THIS SCftLE MUST NOT BE TIPPED FOR ONE RACE, BUT EQUAL JUSTICE AND DUE PROCESS FOR ALL. THE TRIBES MUST BE ACCOUNTABLE FOR THEIR ACTIONS AS ARE J}^ REST OF THE CITIZENS . STATES, LOCAL AND FEDERAL 60VERNMENTS OF THIS "ONE NATION". Their is no accountability for their actions if allowed sovereign immunity, and why should they not be accountable for their actions at the cost of our rights. Native Americans are citizens, as such they are already covered by the laws of this land, by allowing sovereign immunity you are taken the civil rights away from non-Indians and Indians who are not Tribal members. In closing self— govemaent is explanatory, if tribal members who choose to be governed by Tribal Bovernaent is one thing, to expect non- Indians to be governed or taxed by a government they can not access is another and a violation of our constitutional rights. I_t is Congress 's responsibi 1 i ty to protect equal ly the rights of al 1 it's citizens, r egardless of race or national heritage. Again, as long as the prerequisite of race or national heritage is allowed to have special rights and privileges you will create dissension among all citizens, who have a right to equal justice and due process for all. I am attaching a copy of the definition of Sovereign Immunity as defined by Black's Law Dictionary. Notei the Lummi Reservation Can open Reservation] has only about SOX still in trust for individual tribal members and less than lOX held in trust for the tribe. Sincerely yours, Mr.& Ms. Richard D. Brannan 4097 Puffin Rd. Femdale, Wa. 98248 Page 2 744 4209 Salt Spring Drive Ferndale, WA 98248 August 20, 1996 Members of Senate Indian Affairs Committee . ^ Dear Senator: ' ■-^^' ^ imittee i Sovereign immunity should be taken from native American tribes! No one else, no other citizen, is free to threaten, harass, discriminate or harm another person knowing he is immune from being taken to a state court to face a judge. Yet this is a way of life here. This reservation is run by the Lummi Indian Business Council. Members of this Council have led an active campaign against the non-Indian residents on the reservation in the newspapers, on television and on the reservation itself. One instance of all this, a well was illegally drilled only 100' from our well, even after the county issued a stop work order, and the state failed to enforce permits that are required before anyone can put in a new well. This well was on fee-simple land which is under County zoning laws. The pumps ran so intensely that our water was down to a seven day supply, putting health and safety at risk for over 550 homes. When we wanted to bring water in from off the reservation, this tribal council said "NO!" When the threat was made to sue us if we tried, even the Public Utility District refused to consider helping us. No one has the money to fight an Indian lawsuit, especially since our tax money helps the tribes to fight us. When we live under a Constitution and Bill of Rights which provides for equal protection under the law, and with the awareness today that racial discrimination is not to be tolerated, where is our ability to find redress for such actions by an Indian tribe against non-Indians, strictly on racial grounds and a desire for power .^ We are going into another century, and this rewrite of history must be stopped. Waiving the right of sovereign immunity has no impact on tribal self government. The Lummi Business Council has the power to govern its members in any way they choose, but this does not include the right to harass, intimidate, threaten and scheme to get new powers to govern the non- Indians. Their tribal sovereignty is not at issue. But, the tribe, or its individual members, should be held accountable equally with every other citizen for what they say, or actions taken when dealing with non-Indians. There is no place where laws of this country are written with built-in exemptions for one race only. Please, please, waive sovereign immunity! 745 4206 Salt Spring Drive Ferndale, WA 98248 HLigust 12, lv9c riemoers ot the Senate Indian rtf + airs Committee Dear Senators: We live in 19v6, almost a new century at a time o+ great awareness o+ indiviauax rights unaer the law as given in our Constitution and freedom from any torm o+ harassment or discrimination by reason o+ race religion or color. We cannot continue to rewrite history. Yet, one " t-ACB" the Indians tribes are tree trom any +orm o + accountability tor their actions and are immune trom lawsuits or legal redress ot grievances or harm by the "right ot Sovereign immunity". H right no none else has, not even the Federal government or the President. So no matter what they do or say or tail to do when promising or contracting with the County and non-Indian citizens, no one can legally take any action to right a bad situation. Every e++ort local and state governments hear when trying to work with the tribe is if you don't do as we want, "we 11 sue" and there is no budget with money to spend on lawsuits, so this torm □+ "legal" Dlackmail continues and other citizens are held hostage to the Indian tribes. -• The "right" needs to be removed and let al 1 citizens be egual under the law. Not one "race" with power to hold themselves exempt trom being accountable tor what they do, but must be subject to all laws the same as every other citizen. The tribes sovereign status to govern their own people is not touched, but remains intact. Sovereign immunity need to be waived and equal access to the laws regardless o-f race. Sincerely yours. -^^ Ca.'Cc^/i^^,.^ 746 fXf'^i A, August 11, 1996 To: Members of the Senate Indian Affairs Committee Indian tribes clearly have a special class of citizenship because of Sovereign Immunity, wherein tribes cannot be sued without their permission. As citizens of " One Nation under God, with Liberty and Justice for All" . ALL citizens should be subject to the same laws to assure our freedoms and access to a just legal system to protect our rights under the Constitution and the Bill of Rights. Yet the Indian 'tribes are allowed Sovereign Immunity, while city, county, state and federal governments have waived their Sovereign Immunity. Even the IRS and the President of the United States of American can be sued, so why should a special class of citizenship be allowed in our country? It should not. "Tribal Sovereignty" as "Independent Nations", is sovereignty intended to set the laws to govern and control their own people and the tribe's own future, however some tribes are also trying to control non-tribal members living within the geographical boundaries of their Reservations. By Treaty the tribes are dependent upon the Federal Government- of the United States of American. At best the tribes are "Dependent Sovereign Nations" able to rule their own tribal members, but they have no authority to govern the lives of non-tribal members even if they live within the geographic boundaries of a reservation. Yet, the constant threat of litigation by the Lummi leadership still persists and non-tribal members have no recourse, other than a seriously flawed tribal controlled tribal court system, because of Sovereign Immunity. It is a paradox that these "Tribal Nations" insist on Nation-to- Nation and Government-to-Government status when in negotiation for issues of importance to all citizens, such as gambling. However, Washington State Indian Tribes, through State compacts on gambling, are required to go before the States' voters for approval or denial of the levels of gambling allowed on their Reservations. An unusual sort of "Independent Sovereign Nation", to say the least. Dependency on the approval of the majority of all voters within the state does not give an impression of pure Sovereignty. While at the same time the Lummi tribe is trying to control the lives of non-Indian residents living within the geographic boundaries of reservation through long standing strategies to control our utilities .. .water , sewer, etc. Yet non-tribal members have no say or vote in tribal government which is contrary to our federal constitution. We cannot protect our inalienable rights because of tribal Sovereign Immunity. It is clearly time for the removal of Sovereign Immunity by Indian tribes so all citizens have equal protection within our otherwise fair judicial system. Sincerely, ^iL-^-c.^ f ^-^ — \<^-^^ -X^v,^^i-»J^ CCA ^^-Z-yS" 747 SELDEN S. FRISBEE ATTORNEY AT LAW P.O. BOX 1998, 13 E. MAIN STREET CUT BANK, MONTANA 59427-1998 (F«)Na<40«)»73-OO OmCE«0<)«7J-I2O RES^40«)873-«374 September 17, 1996 Senate Committee on Indian Affairs 838 Hart Senate Office Building Washington, D.C. 20510-6450 Gentlemen: I, and numerous other Montana residents, can see no justification for the existence of seven Indian sovereign nations inside the boundaries of the State of Montana (the seven Indian tribes) . The late Russell E. Smith, U.S. District Court Judge in several of his decisions stated that the Indian tribes are sovereign nations only so long as, and to the extent that, the U.S. Congress allows them to be. When a tribe is entitled to discriminate against non-Indians based on race; when a tribe believes it is entitled to stop State highway road construction and repairs unless and until members of the tribe are employed replacing regular State employees; when a tribe can obtain a judgment in Tribal Court against a non- Indian for millions of dollars without any lawful basis for that judgment; and when a tribe can sue in State Court but be immune from a counter-suit in that same action, it is time for congress to put an end to this travesty. The individual Indian is entitled to the same rights and privileges as any non-Indian, and the Congress should guarantee the rights awarded the individual Indian under the various treaties. But, the so called Tribal Government rights created by the Wheeler- Howard Act and other Federal legislation must be terminated because of their abuse by the Tribes. Sincerely yours. BY: Selden S. Frisbee SSF/dak 748 WESTERN FARM BUREAU IN ID :505-525-0858 JUL 16'96 16:11 No. 022 P. 01 i i NEW MEXICO FARM AND LIVESTOCK BUREAU 421 Nonh W«er Smn • Lm Qncei, New M«zloo 88001 • (SOS) S26-SS21 • FAX (SOS) S2S-08S8 Senator Pete Ekmenici l-'ax ASAP Wasliington D.C. E>ear Senator Domenici, On behalf of the 14,000 membos of dicNM Farm and Livestock Bureau, and at the request of the leadenhq) of the Sandoval County Farm Bureau, we respectfully ask for your support of the language in tt» Deptof Interior Ap[»x>priations Act m section 329 regarding private propeity ri^ilB. Hiis language provides idief ibr private property owners within the boundaries of Indian reservations who at times hawe to sedcl^alactiai to i»x>tectdieir property. In many of these cases the tribes will invdce questionable immunity to such actions leav- ing die property owners (finnilies) widi no reoootse. Senator, tins is not only a vital private property ri^its issue, it is a matter of &iiness and a chanco to do the tight dung for fiuniliss vibo are finding dieir very existence direat- med by lack of judicial idief in diese cases. Thank you for your coosidflrBtion. Senator. Warm Regards, UrikUNess Assistant Administntor 749 399 Washington Street Salamanca, N\' 14779 SepL 24, 1996 Honorable Slade Gorton 730 Hart Building Washington DC 20510 Dear Senator Gorton: I purchased my home about 20 years ago in the City of Salamanca, County of Cattaraugus, State of New York. The banks and the attorneys led me to believe that I had about 16 years on the old 99 year lease, and then it would roll over into a master lease in 1991 with slightly higher Indian lease payments. But the terms of the lease would remain about the same. I knew there were negotiation meetings for a new lease; but no one (not even the press) was allowed any information. When the time came the lease (not fully completed) was unveiled and passed by our city council with over 200 citizens locked outside of our city hall, screaming— STOP! The city accepted it, without authority to do so, and I believe it was never scrutinized by any federal authorities. So we are left with a lease that is illegal, immoral and unconstitutional. When I first viewed the new lease, it was nothing like the old lease. Then I was informed that there was an agreement that was an integral part of the lease. These two documents make up an unacceptable package, as there are too many gray areas, such as the Seneca Nation claiming ownership of our homes. Seneca Nation then President, Calvin John made the statement to the press that "unequivocally we own the homes." By signing this lease all my rights would be gone. I am appalled by the letter I received date^ SepL 1, 1994 from the U. S. DepL of the Interior, signed by Michael J. Anderson. It said and I quote "This is notice that you must take appropriate measures to either enter into a new lease with the Seneca Nation of Indians or vacate the premises and deliver possession to the Nation on or before SepL 16, 1S^4. If you fail to execute a new lease or deliver possession of the premises on or before SepL 16, 1994, we will request that the United States DepL of Justice file suit against you in Federal 750 District Court for ejection from the Seneca Nation of Indians lands you now hold and Tor trespass damages based on fair rental value of the subject land. We may also seek punitive damages for willful and malicious refusal to deliver possession." It is hard for me to believe that I am malicious when my only requests are for my Constitutional rights. I had many friends and relatives killed in action, fighting for the same rights that are being taken away from me. I feel the only fair solution for anyone not willing to be intimidated and give up their high moral values by signing this lease, is for the government to authorize compensation for our homes and businesses. My wife and I would like to move off of sovereign Seneca Nation lands and back to the United States where our Constitutional rights would be honored. We anxiously await your reply. hi ^ fu o (. M t; - r /\ 1. I-' o .V 4 £ ft ■ A '>o A r c* M J f^ o ^ ft fii <; Sincerely, Ronald and Marjorie Schubert 751 26 Swan Sf. Salamanca, NY 14779 September 14, 1996 Senator Slade Gorton Rm 730, Senate Hart Bldg. Washington, DC 20510 Dear Senator Gorton: It is very difficult to express in a few words how Native American sover- eignty and immunity affect us and our community. In 1990 a new 40-40 lease between the Seneca Nation of Indians and individual leaseholders in Salamanca was forced upon us as a "take it or leave it" lease. After much stress and with threat of losing our home, we signed the lease, under duress, at the third opportunity, as did niost other leaseholders. We are still very concerned about many of the lease terms, in particular, the Nation claims ownership of all improvements on reservation lands. We fear that at any time the Nation can claim our home and we have no recourse through the courts due to their sovereignty. We bought our home in 1957, have greatly improved it and paid taxes on it. Due to Native American sovereignty, the Federal Government, our Congressional Representatives and the courts have not listened to our requests to be heard. Our constitutional rights, for which I fought in World War II, are being violated. So far, we have found no place to be heard and no one to listen. More and more property within our city is being purchased by Native Americans thereby rennoving it from the taxrolls and other property, owners must make up the tax deficit. Their exennption from property and sales taxes, as well as state income taxes on reservation income, puts additional burden on others. Many businesses are owned and operated by Native Annericans which, because of their tax immunity and exemptions from some laws and regulations, has created unfair competition for other businesses. Our beautiful little city has steadily gone downhill because of our unique situation and the apathy created by it. Several incidents of threats and violence have already occurred in our community and state. We urge Congress to imnnediately study all aspects of sovereignty and immunity as it affects other citizens of the United States and right the wrongs. Sincerely, Willard H. Opferbeck Doris A. Opferbeck cc: Senator Alfonse D'Amato Senator Daniel P. Moynihan 752 51 Henry Street Salamanca, NY 14779 Sept. 24, 1996 Honorable Slade Gorton 730 Hart Building Washington DC 20510 Dear Senator Gorton: My husband and I are one couple of many who at retirement age are being forced to leave our home. We are being threatened with eviction by our own government We live in Salamanca, New York, a small city situated on the Seneca Nation of Indians* reservation. At every turn our ri^ts as American citizens are being denied us. It is beyond comprehension that our government could, or would, evict us from a home that we have worked hard for all of our lives. There is no way in this world that either of us wiD sign away our right to due process or the ri^t to own our own home by signing the lease offered us now. I submit to you, it is your duty as an elected government official to protect us in this situation. Sincerely, Alice M. Fluent 753 Senator Slade Gorton Attn: Nina 730 Hart Senate Office Building Washington, D.C. 20516-471)1 September 14. 1996 Dear Senator Gorton: I write, urging Congress to eliainate Indian Tribe Sovereignty Imniun- ity. I especially urge facing up to the question of Indian Land Claims as a NATIONAL problem. Until a majority of the Members of the Senate and House understand the frustration and sense of injustice felt by tax-paying property owners as the result of Indians coming to the public trough with law suits, while enjoying special exemptions and all the benefits of American life without assuming commensurate responsib- ilities, the current gross injustice will persist. As each case is adj- udicated individually, in a piecemeal fashion, each succeeding law suit becomes more difficult to resolve with justice to all. Here in Seneca County, At9 Cayuga Indians have for more than 15 years - been holding hostage 10,000 - 12,080 property owners who hold legal titles to their properties. The Cayuga suit of 1980 for $350 million (nearly #3/4 mi 1 1 i on .' Indi an ) plus land, is based on a technicality in a 1793 Treaty which was settled at the time, in good faith. The Cayugas were paid for 64,000 acres of land over some of which, they had roamed, slashing and burning when land became fallow, never having title to land as we know it, until the agreement reached In the bargaining. All thru the years, from 1795 until 1931. the Cayugas were paid an annual stipend and in 1931 a lump sum of $247,000. During this same period they enjoyed many emoluments not available to American citizens. Because the Indians were here before us, the conscience of the American people has been aroused by those who would exploit them, and the public has become convinced that they should have all these special privileges Still they come back for more, and will continue to do so. if this piecemeal process of settlement is not squarely faced by Congress ! By and large the Indians are fine people, but in recent years have become pawns in the hands of modern-day exploiters. This is to urge Congress to bring the Indians into first-class citizenship, end Indian Sovereignty Immunity, and once and for all. call a halt to these unjust, piecemeal handouts. -Sincerely .your e: tc^ca.C( 3^. CiUtiC^ Donald S. Allen 2976 Rte 80 Seneca Falls, N.Y. 13148 CC: Senator Alphonse If. D'Amato; Senator Daniel P.Moynihan; Congressman Bill Paxon; Governor George Pataki. 754 99 Merden Street Salamanca, NY 14779| August 26, 1996 > U. S. Senator Slade Gorton Room 730, Hart Building Washington, D. C. 20510 ATTN: Nina Nugent ' Dear Senator Gorton: Enclosed please find a copy of a letter sent to all con- gressmen and women in 1994. Since that time our situation has continued to deteriorate. At the present time, only 16 families have continued to refuse to sign the lease and are being threatened with immediate eviction by the Justice Department. The Seneca Nation Settlement Act of 1990 specifically stated that its constitutionality could be challenged but when we attempted to do so, the courts ruled that we could not. Surely an Act of Congress which cannot be challenged must be unconstitutional. Please support the Istook amendment and hopefully similar problems to ours will not recur. Sincerely , U/JL^n^^ fyl^iu;^ Virginia Banner End . 755 SALAMANCA COALITION OF UNITED TAXPAYERS BOX 552 SALAMANCA, NEW YORK 14779 POPinATlON -6500 AMERICAN CITIZENS Phone-716-945-4553 FAX-7 16-945-6044 May 10, 1994 Senator Ernest F Hollings 125 Russell Building Washington, DC 20510 Dear Senator Hollings: RIGHTS PROTECTION We have been writing to the members of Congress for the past four years with absolutely no response to the very serious issue of ri ghts protection on the Seneca Nation of Indian land on which we reside. On Augiist 8, 1992 our City officials met with Senator Daniel K. Inouye and our Congressman Amory Houghton who promised that they would immediately seek dialogue with the Nation over the involved issues, which we as an organization had raised. Since that date the City has received no correspondence whatsoever from those individuals. Unless you, the CongrefM, take some immediate action, this City will no longer exist. The courts of this land have told us that the only body that has jurisdiction over our claims is the Congress. What do we have to do to get a response from you? The most pressing issues involve the tax erosion of the city's tax base. Every time a Seneca purchases a home or business in the city, it is removed from the tax rolls, yet the city is obligated to provide essential city services. Over $3,672,910 dollars of city property is immune from taxation leaving the city taxpayers an additional burden of $ 1 69,504. 80 to be paid by the remaining taxpayers. This dollar amount changes weekly! Imagine what Congress has done to our property value; or more importantly our rights as Americans. This additional increase has already placed a tax increase of 1 7% for 94-95. The Nation has claimed ownership of our homes and businesses and we are unable to pursue this issue in Federal court because of the sovereign immunity of the Nation; and therefore the lease, that you approved via the Act of 1990, is not enforceable by the ones most affected (the lessees.) There are over 200 lessees who have refused to sign this lease on the fact and principle that it is unconstitutional and therefore have become squatters on the land, with the constant threat of being evicted fro|n the homes and businesses that they most surely own! 756 We are pleading with you to offer your assistance by arranging a . Congressional hearing on these most pressing facts. Our only pediatrician left town two years ago stating that he was moving back to the United States of America We are sitting here without the protection of the Constitution and you, our Congressmen, have done nothing to help. Wasn't President Clinton elected because he was the "domestic issue President" ? As of today our only department store has left town, to be followed this week by a National Pizza business, and the National Fuel Gas offices. Three churches have closed their doors and every day there is a new threat that other businesses will follow their lead Unless the Congress amends the Act of 1990, to assure as of the ownership of onr homes and the Constitutio nal Right of due process, and also finds a way to help us with tax erosion, an American city will be dissolved. We await your response and hope you will give careftil consideration to these most urgent issues! Please forward this letter, with your comments, to Congressman Houghtoa It is time for him to decide whether he wants to be part of the solution or continue to be part of the problem.. We are depending on each of you. Respectfiilly. Salamanca Coalition of United Taxpayers Carol Keiley, President cc/Honorable Amory Houghton \ 757 S«ptM««r 10, 1996 CoMinitt** of Indian Affairs 838 H«rt Of flea Bulldlns W«*hln9ton, O.C. 20S10-64S0 Dm»r 8«nator«i W» live In 1996, alnost • n»w century at a time of sreat awaranaas of Individual rl9hta undar th* law as givan In our Constitution and fraadoMi froa any fora of harassmant or diacrialnatlon by raason of race rallglon or color. Tribal rnambars hava the right to vote and run for any office in our state, they mrm state residents. They are not a Nation. I mm a property owner within the exterior boundaries of Luarni Reservation, I have had ay lot since 1962. The Lumal 's have threaten to close our county roads, have done everything to devaluate my property, I have been waiting five years of to build, because they say they it is their water, and have even threaten to be sued if we bring off reservation water because they say that is there also. There is no water shortage here, the Tribe Is using utilities to stop building and to gain control of 'ay property". This would be against the law anywhere else. Is this the Intent of sovereign immunity? Which allows the tribes not to be responsible for their actions as the rest of us are including County, City, State and Federal governments »rm. I am also paying the illegal utility taxes on the standby fees for water and sewer. There is nothing in the treaty that gives them this right. It Is imperative that our constitutional and civil rights be protected. Our due process must not be set aside to benefit another citizen or 'self-govermMnt" due to race or national heritage. We are one Nation not many, as the tribes would have us believe. Removing Sovereign Immunity will be a step forward in treating all citizens the same and making the tribes responsible as the rest of local and State and Federal governments of this •ONE NATION" *r», equal under the law. One has to be reminded that the tribes "as citizens" of the States and of this Nation, have been afforded special rights and privileges over and above my rights as a citizen. CBome could be as little as lOX Indian.] U it the riahts. privileges «q£[ Oua. Process sf npn-lntit«n BC non-Trlbal aembers that acS bMlDS. ffpnimd. Sincerely yours, Hf. UmbTt flowers 766 VanOyk Rd. Lyndsn, Wa. 98264 758 Col. C. D. Clarenbach ret. USA 4199 Sucia Drive Femdale, WA 98248 Senator Slade Gorton 730 Hart Washington D.C. 20510 SUBJECT : Sovereign Immunity For The American Indians Dear Senator; Indian tribes clearly have a special class of citizenship because of Sovereign Immunity. This gives them power and privileges normal citizens do not have. They do not recognize county or state laws and do not abide by the same regulations as the rest of us. They drill wells where they want without regards to existing permit process. They ignore county cease and desist orders. They build casinos, smoke shops and liquor stores on federal land without accountability. Because of Sovereign Immunity they have no accountability to the communities that surround the reservation. Because of sovereignly we cannot sue them without permission and if there is any litigation they get federal money to fight in court. Its like suing myself. I am a retired veteran on a 100% service connected disability. I have given my all for this country and for what it stands for. I always thought that one of the fundamental principles of our nation was equality for all. Now I am finding that we have a privileged class that is above many of the laws and regulations that the rest of us have to live with. This is not what America stands for. I urge you to eliminate sovereign Immunity. Thank you, 759 6*ptB«ib«p 16, 1996 Committee of Indian Affair* 838 Senate Hart Office Building Washington, D.C.20S10 Dear Chairman and Committee Hemberei I mm writing today asking for your help and support In the problem* that »rm caused by the special rights and privileges afforded the Indian tribe's, based on their race and national heritage. One only ha* to be part Indian to be afforded these rights #cut privi leges at the cost of other property Qt»ners #Qd. residents. Lack of Mater Is not the problem on the Lumml reservation, the Lummi tribe's goal it to stop non-Indian development on lands they have sold, by controlling basic utility services, water and sewer, this is about land and control by any means and get u* off Our property. 1. The Lummi tribe is deliberately interfering with our water well. When a tribe can come onto our residential development, erect a huge storage tank next to a residence, precede to drill a well 100 feet away and 40 feet below the our association's well, which serves over 600 homes all without required permits, and ignored a county stop order, then something Is wrong. The Lummi tribe had available a road access several lots away to a huge tract of trust land where they could have erected their well 1,000 feet away and avoided Interference. Bui. interference, ifi fls tfi prevent further non-Indian devel opment was their goal. Our assoeiattons water well was nearly depleted in the summer of 199S. Senator Slade Gorton and Congressman Jack Metcalf, interceded on our behalf. Now tgg^ need ^ permanent solut ion, a* we know thi* hara**ment i* not going to *top if sovereign Immunity is allowed to continue. The tribes must be held accountable for their action*. We have been told if we attempt to bring in off-reservation water, we will be sued by the tribe. This is about control of our land, wff *rm « ymall community who doesn ' t have the resource* -for legal fees, as the tribes have. We Plead with yflu to do something to protect u» from acts such a* the*e ac il wl 11 continue. Quoted from the Lummi Indian Resolution •90-108 "NOW THEREFORE BE IT RESOLVED, that the Lummi Indian Reservation has no surplus water present for additional non- Indian development and water present on the Lummi Indian Reservation is subject to the sole regulatory authority of the Lummi Indian Nation." 2. It is the threat of litigation that has caused some of the utility companies and businesses to be used as a collection agent for this tribe. Even though utility company lines cross county roads and on county easements, which are outside tribal regulatory Jurisdiction. The utility companies managed to roll the taxes to the reservation ratepayer* and tHer-»by avoid tha trlb*'* threat o4 takln9 tn* cempaniss to the Supreme Court for non-payment. The Utility and Transportation Commission approved the roll over because they felt the costs of potential litigation initiated by the tribe, outweighed the personal rights of the ratepayers. There are some utility companies who re fused ta P«Y ihM. utility tax ta tl^f tribe , the tribe has pot t^Ken them to cgiictj. ii i» the threat al litigation that has caused the other P»8m I of 2 760 utility comp^ni— Sfl mn^orcm ftnfl collect thm t-umwi UtiH^y lAS. ordin«nc«. Un-fortunataly litls«tion is now r»quir»d to rsvarss th« action of th« U.T.C. «t • v»ry " high co«t" which now must b» born by the non- Indian ratapayar*. Wh*r« do w* gat the funds? Who do ws sus? ths utility companies? ths U.T.C? Hew do you think «•• would do in tribal court were thars Is no separation of powers? This is what we ar« up against! 1. The same tribal attorney Mi:^ Johnsen. who nost likely developed and wrote the utility tax ordinance, it went back to his office after it was signed by the tribal council. 2. He still represents Lummi Indian Business Council. 3. He also represents the Lummi Indian managed, Lummi Sewer District which collects the tax and made the decision not to challenge if the utility tax was legal. 4. He also served as hearing examiner at the sewer board tax hearing, prior to tribal court. 3. He also wrote the argument on behalf of the sewer board and the L.I. B.C. at the tribal court hearing, even though another tribal attorney represented the tribe at the sewer board hearing. L(. this a problem ^sm ttauld \ \ k p is fuct? Cams H#1.K la gkir lhPK«t The Native Americans mrm citizens of the county's and states where they reside, they »rm entitled to all state and county benefits, CAn vote for state and county candidates the same as I, run for any office, they already have these same rights as I do, il is the non-Indian or non-tribal member who's rights «n^ flyji proc»ft i« ftfttoa dypied. You have on this reservation, residents that live next door, that because of their "race". Is afforded special rights and privileges and denies me my constitutional rights and due process. This is not a matter q£ beina "Political Correct", thi* is significantly tea imPPrtf^nt. is ab out doina the right thin? for all citizens regardless of race c^ culture. Sincerely yours sincerely yours, y. t ly dr. and Mrs. Uoe Anstette 414S Patoes Femdale, Wa. 98248 761 SEPTEMBER 20, 1996 THE HONORABLE SLADE GORTON U.S. SENATE WASHINGTON, DC 20510 DEAR SENATOR GORTON: UPOW HAS INFORMED ME THAT YOU WILL APPEAR NEXT TUESDAY, 9/24/96, BEFORE THE SENATE'S SELECT COMMITTEE ON INDIAN AFFAIRS WHEN IT WILL CONDUCT A HEARING ON THE QUESTION OF TRIBAL SOVEREIGN IMMUNITY. IN THE SPRING OF 1962 I COMPLETED CONSTRUCTION OF A PERMANENT RESIDENCE IN KITSAP COUNTY, WASHINGTON IN WHICH I STILL RESIDE. THE AGENT WHO SOLD ME THE PROPERTY DID NOT SEE FIT TO TELL ME THE LAND WAS LOCATED ON THE PORT MADISON INDIAN RESERVATION. NO MAPS MADE AVAILABLE TO ME SHOWED THE RESERVATION. THE FEW INDIANS STILL LIVING IN THE GENERAL AREA HAD NO VISIBLE PRESENCE. SINCE DECEMBER 30. 1982 MY WIFE AND I HAVE BEEN DEFENDANTS IN INDIAN LAWSUITS, FIRST BY A QUIET TITLE SUIT BROUGHT BY THE SUQUAMISH TRIBE AND CURRENTLY BY ALL THE PUGET SOUND TRIBES IN AN EXTENSION OF THE BOLDT CASE. WE CAN NO LONGER TOLERATE THIS CONTINUAL HARASSMENT BY THE TRIBES AIDED AND ABETTED BY OUR OWN GOVERNMENT AND FUNDED WITH TAX DOLLARS FROM OUR OWN POCKETS. WE ASK ONLY FOR A 'LEVEL PLAYING FIELD" CREATED BY THE ELIMINATION BY CONGRESS OF THE SO CALLED "TRIBAL SOVEREIGN IMMUNITY", A MYTH CREATED BY THE FEDERAL JUDICIARY. I HOPE YOU AND THE COMMITTEE CAN GIVE THIS SITUATION THE QUICK AND DECISIVE ACTION IT SO COMPELLINGLY DEMANDS. s PIERCE W. DAVIS 17128 S. ANGELINE AVE., NE SUQUAMISH, WA 98392 TEL 360-598-1996 762 WENDY S. PEARSON KATHRYN I, EIMS 22416 80"^*^ Ave. West Edmonds, WA 98 026 September 12, 1996 Sen. Slade Gorton 10900 NE Fourth St. Ste. #2110 Bellevue, WA 98004 RE: Swinomish Tribe; Stewart & Sharon Wright; West Shore Tenants Association Dear Senator Gorton: We are writing you on behalf of Sharon and Stewart Wright, and the West Shore Tenants Association. As you are no doubt aware, the Wrights and their associates have been attempting to negotiate equitable and just purchases of their home sites from members of the Swinomish tribe in northwest Washington. These are homesites on which these people have built their lives, and on which they intended to live for the remainder of their lives. The only legal and procedural means by which they can fairly attempt to keep their own homes has been thwarted by the U.S. government's Native American ombudsman, the Bureau of Indian Affairs (BIA) . The homeowners and the Native American landowners have been individually willing to negotiate terms which would allow the West Shore Tenants to keep their homes and buy the lots on which they sit, but the BIA has undermined their efforts to do so. For years, "necessary" red tape has hindered good faith efforts of the Swinomish tribe beneficiaries (owners of the land in trust) to obtain fee title or otherwise secure a means for selling their land to the tenants association. It is ironic given the Republican hue and cry for "less government" that a government agency is wasting time and effort to work against the will of its clients and the taxpayers upon which it relies for financial support. The checks and balances of a democratic and due process are wholly unavailable to both willing buyer and willing 763 Sen. Slade Gorton 09/12/96 Page - 2 seller in this matter. The tenants association has been given little or no standing to protect their financial and inalienable interests in property. The voices of individual tribal members who have sought to se] 1 their land have been unheeded by the Swinomish tribal association. And sadly, a U.S. bureaucracy has fostered the seeming unfettered ability of a Native American tribal association to deafen the voices of its members and to prevent U.S. citizens from defending themselves against actions which threaten their security, their homes, and their lives. We find it an utter outrage. PLEASE help the Wrights and the West Shore Tenants Association secure due process of law to protect their rights and interests. Please also seriously consider the necessity of maintaining the BIA, an agency which has apparently outlived its intended purpose. Sincerely, Wendy S. P earson . ' r^L-u,^ ^^^'^ Kathryn I . Eims cc: West Shore Tenants Assn. 764 «S6StV^ M 3U\ 3608 Love joy Ct NE Olympia, WA 98506-9619 Sept. 8, 1996 Senator Slade Gorton, 730 Hart Senate Office Bldg. Vl^shTngl-Btk^^.C. 20510-4701 Dear Slade, I understand that the September 24th meeting of the Senate Committee on Indian Affairs will consider the rest of us Non-Indians as part of the United States. For those of us who have been battling the invasion of private tidelands for the past several years this is a welcome and hopeful approach. I feel strongly as do my neighbors living on the salt water that the time is here for some positive action in Washington, D.C. As a native born American citizens we should have the same constitutional rights as the so called "Sovereign Nation persons living among us. I know that treaties were made by our forefathers and by many folks since then but there comes a time when these should be reviewed and revised as appropriate for the good of all citizens. The Indian tribes have proven that without integration into the American Community that survival is difficult. As Sovereign people with much outside and usually mercenary help they have instituted gambling, sales of non-taxed liquor and cigarettes, and have received disproportionate share of fish and shellfish from our waters as well as receiving millions of dollars in goods, services and cash from the government. All of the f orementioned activities not available to other citizens . It is time these tribes join the United States and live under the same laws and rights as all other citizens. Sii^cerelv^' RAy^insmore ^-- PS: Keep up the good work for us in Washington. 765 Chris & Barbara Lindsley 736 Tillamuk Drive LaConner, Wa 9S25Z September 12, 1996 Senator Slade Gorton Attn: Nina 730 Hart Senate Office Building Washington, DC. 20510-4701 Dear Senator: Please eliminate tribal sovereign immunity. I have no quarrel with their right to govern their own people but we are living on an Indian reservation as citizens of the U.S. and are constantly being threatened by the tribe refusing to honor our laws that the rest of us have to support and obey. The Indians are dependent upon the Federal Government but they should not be able to govern the lives of non-tribal members. There have to be laws in common for all. The tribes must be responsible for their actions and not be able to hide behind their immunity. We have invested hundreds of thousands of dollars in improving our leased land only to discover now that the tribes are not accountable in our courts and are attempting to change the meaning and terms of our leases. If you waive tribal sovereign immunity, we would be able to seek recourse for any injustices and make them accountable under the same laws as all U.S. citizens. Very Truly Yours, 3S-.S49 Q7 - Ofi 766 September X. 1996 Senator Slade Gort«n K,)9 NK Fourth St tf21 10 Bollevuo, Wa 98U04 Senator Daniel Inouye Senate Comnnttee on Indian /MTairs SH-838 HSOB Wash, DC 20510-6450 Dear Senators Gordon and Inouye, Your file contains numerous letters regarding the Morris Dan Tract with respect to the tenants and their attempt tu purchase tlie land on which the> reside I'roiii the Indian land owners Although 11 of the 14 land owners have agreed to our otfer the HIA and the Tnhe have coerced and convinced the 3 remaining not to sell They liavc undergone this t\pc of harassmeiil since they mitialed the ofler to buy in June of 1995 The other on-going struggle as you are also aware is with the BL\ and the tribe over the horrendous increase in lease rents that have been imposed on all the Tenants in this area. This prompted the formation of the West Shore Tenants /\s.sociation (\VST.\) As ihc :iale is currently being blocked by the BIA and the Tnbe they have broadened their energies tu Ibrce the issue on the rent factor and other associated wrong doings such as the imposition of a Sewer System charge which in its self is fraudulent. Here in lies the problem The Tenants are not allowed a voice or representation on any of the decisions the Tribe and BIA have made to impose these charges. It is akin to taxation without representation! What nukes matters worse in the Tribe considers itself a Sovereign Nation and accordingly claim Sovereign Immunity, blocking any avenue the Tenants have to as.sert legal action. Every day all of us see projects going on- on the Reservation paid for by our tax dolUirs that seem in some ways a waste of these tax dollars If the Tribe declares itself a Sovereign Nation, then let them stand alone and cut or hold of funding until they act responsibly. ^ The Tenants need your help Senator Gorton and Senator Inouy e and they need you to inform your colleagues of the injastices they are e.xpenencing The Tnbe and RIA opened the Reservation to Tenants at reasonable rent rates Now they arc tmppcd by lease increases over 500%. They have lost their equity, they have no representation and they apparently have no legal resourse. They are in a Foreign Country funded by the Tenants themselves. Sincerely, Patricia E Lawler 15108 NE 68th Street Redmond, W.A 98052 767 September 9, 1996 Honorable Senator Slade Gorton c/o Kay Gabriel, Deputy District Director 10900 N. E. 4th St., Suite 2110 Bellevue, WA 98004 RE: Private Property Rights Dear Senator Gorton, We have been very concerned about our private property rights on a forty-three acre parcel of land we own within the boundaries of the Quinault Indian Reservation. This is fee simple land that has been in our family for ten years. We have paid property taxes on this land to Jefferson County all that time. The Quinault Indian Tribe has declared their right to zone and control the permitting systems on our land. We have looked to the County Commissioners in Jefferson County to protect our right to build or develop our property. After years of pleading our case to the three Commissioners who should have intervened for us since they have collected taxes from us on this property, Jefferson County signed a "memorandum of understanding" with the Quinault Tribe that basically gave the Quinaults rule over us with regard to our land. Now we have no idea just what we have paid taxes for on this property. We thought we would have all the private property rights afforded to all other property owners in that county. We do not have "due process" with the Quinault Tribal government and the county government has abandoned us. We respectfully request your support for legislation to protect our Constitutional property rights for our land on the reservation. Several Supreme Court decisions have been in our favor with regard to other similar circumstances on other reservations. Hundreds of other land owners are in this same dilemma. Please help us defend our property rights with legislation that will settle this matter once and for all. /'~\ fully, ] ., X' and Ken Walton 3148 Marvin Rd . S. E. Olympia, WA 98503 768 SepiemDer 6, 1 996 The Honorable Slade Gorton United States Senate Washington D.C. Dear Senator Gorton. I ann a high school civics teacher involved in a real lite example or tne Federal Systenn. Over tne last two summers I have been searching tor an aftordabie piece of recreational property for my family. ^ecenr!>, i fours a twenty acre piece of property on Lake Roosevelt, on the Coleviiie inc a^- Reservation side of the lake. This property is not. ana never nas been, cart of the Coleville Indian Reservation. The property is fee land and not subject to special zoning restrictions by the Coleville Indian Tribe. However, the tribal zoning office has informed me that i >vouid never be able build on the property as they consider the land as part of the;r Triba' Game Reserve. Ferry County considers the property very bui Idable but tne threat of Tribal litigation makes it impossible tor me to purchase the property. It has been brought to my attention that you are preparing to hold Senate Hearings concerning Indian Tribal Zoning. I would very much like to attend those hearings to provide input, but unfortunatiy employment commitments make it impossible for me to attend, i hope this correspondence will help provide some imput at your nearmngs. After having read the United States Supreme Court decision Srendaie v. Confederated Tribes and Bands of the Yakima Indian Nation . it is obvious that the Coleville Tribal zoning office is in complete violation of a Supreme Court decision and thus The Law Of The Land. To try and circumvent that decision with an Inter-Govermentai agreement with Ferry County IS in violation of the 14 Th Amendment. Section 1, which forbids a state or local government to discriminate against, or draw unreasonable distinctions between, persons. The land in question is fee land, private property and not part of the Coleville Indian Reservation, much less part of their Game Reserve, i 769 would hope that your Senate Hearings would help clear up these zoning threats by the Coleville Tribe and thus push for Congressional legislation that would preserve the rights of property owners and to eliminate useless and tinne consunning litigation concerning zoning issues that are already The Law Of The Land. Sincerely, Steven 0. Banks 8807 169ThSt. Ct. E Puyallup, Wa. 98373 (206) 845-9409 770 f2''ijiyu>aLXi^ ^*-e aieo AM-^ /e=^/y .yn^^ (^£^ti^4^ P.O. Box 887 ABKDEEN, WASHINGTON 98550 773 -^ S£^ g yg ■ W^ di^ -7f l£dJ!L_C«; -J^H lie « V ^ ^\0l ■ ■ ■ Saat•i^ YY^.• s^ V^:-^ ■JA. W Lcmitjt- Jjjg ._A w JP-^A, H \fA.sf ft<\ ^. 'Ut \;;\s Of \c/Yvin.if i^M.y ■<>> 4i«S- 16^ j&d lUAU Vvrf>A ' i Vqxu., YYUy \ta.A> ^ , ^ ftrftrtittf^ _jik JJU. ^ -V^. itmtA; 774 ^ Jl. n j Sim I Off, b^. mur \>>.Vf, Qot'tsfl •fe c^at> mnon. I UU]& OJ^ VV^^^^ YY\»ft ' 'm<-^^.r>A<. JtQJL siufe _U/^ 3^ u)as> M, pgfaom^-- \T ftV ^ '.s J ^^Sl! ^ft\aA ••• ftp loS^Wn W\i.. Si a; V..-V "^S W^ 0^,fyi 5ife_QM: ^ \tis^ ^i^ ^A Arftfc t- JgiaiiULLLJrLJBlv LLi) Onoia >^»vi(«t.L ; V ^;»v\;^^«a'u AitMtmA'iwt- ;Vjtj-4-V>'.aeoy 775 WASHINGTON FEDERAL SAVINGS AND LOAN ASSOCIATION OF SEATTLE SEATTLE, WASHINGTON 1. ACCOUNT SWMtAATSCCTKM ACCOUMTWOLOeniSl Ho Aoditton* Ptrmtnta CHARLOTTE HARRIS flUS OCUCLIS HARRI3 _ Date o( la*uanc» ig=fPlgj RENEWAL TEBM - SEE SECTION 4 OPfNIMG BALANCE MINIMUM BALANCE KEOUIBEMENT INITIAL MATunirr date RENEWAL TERM RATE OF EARNINGS PER ANNUM FREQUENCY OF COMPOUNDING •,625. :C 35C2.:C T,-:Z-S^ 13 "lonth 9.250 daily Eamtngs OiStnOulion DatM Mginning ^UHS ID > ».r ° J thsnartw •vnn irt« Mt (]istnt>uiK>n on tn« rinai Maiunty Dal*. 2 QENCRAL SECTIOM Ttiii c«niriM tnai rrw Accouninoidcr noMs • savings acco«ni •itf> itva Op««'ng Baianc* »no to* 'n« iflu* T^rm axoinng on tha initial Maiuntr £>«• M%owr r«raon in tha aoova I'larnM seringa ■nstiluiion 3 EAUHiMOS SfCnoM This «cco«n' sf^aji raca<«a aa^mfl* at iha 'ala ano with ^na F'Bquan ma account IS not raduCM Mtow irta Mimmum Baianca fl«au'ran>am if sucn oaianca >s raducafl t)aio» if>a K mmuT* Bata/Ka naouiromant. ma Rata oi Earnings on me f»m*iping Baianca »^al' maraaHa* oa •aoucao 10 ma rata man 0**0 on raguiv Mvi'^gs accoams iMa aiso Sacnon S) * BEMEWAL SECTION Thij account arvail Da auiomaticaiiy ranawao ai ma ciosa o( D«sina*s on ;f>a imtiai Matuniy Oaia or ma maiurttY 3»ia of any Ranawai Tarn jniaaad) withdrawn wiinin tna 7-aay otnoa ratarraa lom Saction & naraol on2) at laaai iSdaya pnorioany maiuntvdata. thaaasocistiongivaa wmtan noilcaioma AccouninoiOar 'rmi this account mil not 0» 'tntw^a. In sucn lattar avani, jpon rnatunty tha account a.!! ba con»»nad to a raguia* sa»'ngs account and racaiva aaminga ai tha ^ata tftan Mid on regular aavmga accounts "n^ tim of aai^ings rof any Qanawai Jmrm sAaii Da a) ma rata t>aing otfarad foe mis tarm cariiricaia by ma Aaaociaiion on ma ran«wa> daia. t KNALTT CLAUSC SECTION Excapt as otnanaisa srovMMO nacatn. :n ih* •want Of any «r>r¥ data, ina Accounmotdar snait fortan an ainouni aduAi 10 sib mcynns aaminga. wftairtar aarnad or not. on tha amowm wthdrawn ai ir>a nominal :siffloia intaf»»l) rata &a«ng qamI on ma account, ragaraiaaa of tna langtn of ma 'iiT>« ma f\tncs «nconipai»nca of any AccountftolOar Any mithdrawai whtcn r«ducas ma account aaiartca batow tha Minimurn Saiarvca Raouirafnani. oranychanga >n tha tarm or flataof Earnings, sftali bacon- sidarad as a withorawai of ma antira account baiar-ra arKl s^a•l b* suCiac^ 'o '^4 panajty praacfbaO na^^m Earnings crediiad to Iha account dunng any tarm may 0* withdrawn at any tima aunng sucn tarm ■xihout oanairy if tha account is ranawad at tna sama aamings 'ate. earnings <3unng trte orscadirtg tarm as wail as tha currant tarrri nvay tm •vithdrawn at any tima without panaiiy dunng ma Ranawai Tarm. if iha Ranawal Tarm rata s diffarant earnings 3ir • Address The bank oi '"J^shington Federal. Sa.y.ings 4 Loan. hereby acknowled!:es receipt of notice of tlie above As>;i(;nment -of Savings Account No, ig-A0i07n-q to the United States Department of Interior, Bureau of Indian Affairs. Dated this l^th day of nay 19 az . 'Aff^y ./T^^J^Or T itle : -anag. 777 Steven Peck P.O. 60x1132 Shelton, Wash. 98584 August 30, 1996 1996 SlP-S - i-.m United States Senate Office of Senator Slade Gorton, Washington, DC, via Bellevue, Washington State Office ATTN: SENATOR SLADE GORTON, HONORABLE CHAIR OF THE UNITED STATES SENATE INDIAN AFFAIRS COMMITTEE, COMMITTEE MEMBERS. Please consider the following as my testimony for inclusion in the official record on the matter before the committee regarding tribal sovereign immunity. Dear Senator Gorton; Please feel free to have this testimony read into the record. I would be willing to come to Washington, DC. to testify if you feel it would be effective or necessary. I have been involved in law enforcement in one form or another for a number of years. Several of these years I served as a police officer for Indian tribes. I have a two year degree in Criminal Justice, have attended and graduated from two law enforcement training academies sponsored by the State of Washington, and attended other law enforcement seminars and training. I have been witness to many illegal acts committed by tribal personnel. These acts have gone unpunished, unprosecuted, and. in some cases, uninvestigated, because of sovereign immunity claims by the tribes. Most recently, on August 16, 1996, while driving an automobile in a safe and legal manner on a roadway controlled and maintained by Mason County Government , and an Interstate Highway maintained by the State of Washington, I had my civil rights violated by a local Indian police force when they initiated a contact. I was illegally stopped, detained, and assaulted by alleged tribal police officers that were operating outside their jurisdiction and without lawful authority. These persons were operating vehicles without external emergency blue lights, without police uniforms, and without authorization from the State of Washington. These persons were not lawfully commissioned to enforce Federal, State or County law. When I was stopped by these unmarked, non-uniformed persons I was never presented a reason for the contact or shown any form of identification, badge, picture identification card, or commission card. Even when I asked to see identification, I was shown none. I have contacted and complained to my state senator, state representative, the Bureau of Indian Affairs, (BIA), the FBI, the Washington State Attorney General, the Mason County Sheriff and prosecutor regarding these crimes My State Senator advised that since the violations involves an Indian tribe that there, "is nothing we can do." My state representative agrees with me that what happened is unlawful, improper, and outrageous, but can do nothing more that make inquiries. The BIA and FBI have shown absolutely no concern 778 that civil rights are being violated and have declined to investigate. The end result in this case is that there is apparently no one, no government agency, no court of competent jurisdiction, no local. Federal, or State law enforcement agency, or any other governmental entities that are willing to pursue these illegal, unconstitutional acts, or to investigate the many civil rights violations committed against myself and other citizens. The Indian police in this case, and in many Indian police agencies across the United States, commit civil rights violations and other illegal acts without fear of punishment, accountability, responsibility, nor are they held to any legal or ethical standard, or are they answerable to a United States court of law Several times I was ordered, by tribal police supervisors, to violate the civil rights of citizens of the State of Washington and the United States. I informed them that I had no jurisdiction or lawful authority to act as ordered, and that I was morally and ethically bound to enforce the law in a legal manner I also told them that I had concerns that if I were to act as ordered I would be subjecting myself to prosecution for civil rights violations or be civilly sued for exceeding my lawful authority. I was told, "Don't worry. If anything happens, the tribe will cover you with it's sovereign immunity. No one can legally touch you." While on patrol, I was requested by a tribal police officer to meet him at a location outside our jurisdiction. This area was several miles away from the reservation. Upon my arrival the officer told me that he had entered onto about six private properties, conducted searches of those properties, and concluded that these properties contained material that he was intending to seize. He did not show me a legally obtained search warrant, he enumerated no probable cause, nor did we have jurisdiction to lawfully take any action. He requested my assistance in searching a particular house and property and assist him in seizing some material from this property. In the absence of a legally obtained verbal or written consent to search the property by the property owner, or without a legally obtained search warrant, without probable cause to search, and having no legal jurisdiction to conduct a search, or any other lawful reason, I had to refuse to participate in the apparent illegal search he was conducting. I observed this officer enter the private property, conduct his illegal search, seize material from the property, place the seized property into his patrol vehicle and into a civilian truck owned by a tribal members husband. This officer took some of the seized material to his residence and the civilian minor took some of the seized material to his parents residence. There is no indication that this officer properly disposed of the seized material by placing it into the police evidence / property room for safekeeping nor was it returned to it's proper owner. I filed a detailed report with my supervisors, with the BIA, and any other agency that I felt had any remote jurisdiction. No charges were ever filed against this officer for his illegal acts nor, to my knowledge, were the acts ever officially investigated. Although the tribal officials knew of these illegal actions, no action was taken. The tribe has no fear of ever being held accountable in a United States court of law because they claim sovereign immunity. The landowner in this case was unable to recover any dsunages. At one Indian police agency I witnessed officers burning seized Indian fishing nets within 20 yards of a river used for spawning by large salmon runs of multiple species. 779 These nets are made with synthetic materials such as nylon, plastic, lead, and Styrofoam. All of these materials are toxic when burning and the burned residue Is toxic to the environment The lead and other toxic residue was released into the air and the river where the salmon make their home. I reported this illegal burn to the local Pollution Control Authority and they indicated that they was nothing they could do, I also witnessed numerous civil rights violations and other illegal acts committed by officers with this department and no action was ever taken against them. Lack of action was due, for the most part, to the tribe having sovereign immunity. I was ordered by a superior to falsify Federal documents that were used to calculate the amount of money that the tribe was given for law enforcement activities. The falsifications related to artificially inflating the numbers used to gather statistical information by the BIA regarding police activities. I reported this to the BIA. I notified my superior that several tribal members were illegally selling salmon that were supposed to be counted as treaty share for the purposes of complying with Federal law regarding treaty allocation of salmon. I was told to ignore this illegal activity. I personally observed two tribal members digging shellfish in an area known to be polluted with human fecal chloroform bacteria, commonly known as E-Coli. I approached these persons, told them the area was polluted and that they should stop digging. I was later contacted by my superior and advised to not tell these persons, or other individuals, that they could not dig clams from this beach. When I informed him that this beach was polluted I was told, "They can dig for subsistence shellfish on any public beach they want to." I advised, that due to past experience with these persons, I believed they would sell the unclean shellfish. This particular tribe was allowed a subsistence amount of 50 pounds of shellfish, (clams), per person per day. It is illegal under tribal law to sell clams dug for subsistence. These two persons had about 200 pounds of polluted clams in their possession when I departed the area. I drove about 10 miles north of this location, spent a short time there checking for violations, and returned to the area where I had first contacted the clam diggers. The diggers had left. About five miles south of the polluted beach was an Indian business, (known as a "fish buyer"), that purchased shellfish from clam diggers and in turn sold them to wholesalers that sold them to stores that sold them to the public. I observed the two persons I had contacted earlier digging clams at the polluted beach at the Indian fish buyer selling the polluted clams. Their car was distinctive, I knew the individuals by name and on sight, and the five gallon plastic buckets that held the polluted clams were distinctive as well. They had no time, due to tidal conditions and time constraints to dig any other clams, nor did they, when I asked, have clams that belonged to other individuals. I advised my superior what I observed and was told, "You cant prove it, just forget it." I checked the documents each fish buyer is required complete after each purchase from a digger. The document contains information as to the date the clams were dug, the location of the dig, weight of clams, diggers name, etc. The documents regarding the polluted clams that were purchased from these two persons had been falsified as to the location the clams were dug. The document listed the location the clams were dug as four miles south of the actual digging site. These polluted clams were sold to an unsuspecting public whose health was highly endangered The persons that were made sick or damaged by these polluted dams have no legal 780 recourse for damages caused by this reckless act of knowingly selling polluted shellfish for public consumption. Any persons damaged by the polluted shellfish cannot bring any legal action against the Indian diggers, the Indian fish buyer, or the tribal officials that permitted the sale because of the tribe and it's members enjoying sovereign immunity. I witnessed a tribal gillnet fisher violating no less than three of the tribe's laws and regulations regarding the manner, mode and place they were allowed to fish. I warned this person twice that he was fishing in an illegal manner and subsequently issued a citation for the violations. Later, I was advised by my superior that he was changing the regulation so that the fisher was no longer in violation and voided the citations I had issued. The non-indian fishers that were damaged by these acts have no legal recourse to regain the lost fish they were legally allowed to catch. This last incident I will relate depicts, is a clear and cogent manner, the necessity for removal of the tribal sovereign immunity law. While an employee of a Federal Government Contractor, an Indian tribe, I was the only minority police officer. From the first day of my employment I was the target of racial harassment, racial slurs, and discrimination by tribal officers on a daily basis. I witnessed officers, on a daily, routine basis, harass and intimidate citizens based solely on race or national origin. The victims of these abuses have no legal means to stop the abuse or to bring it to light via the courts. I observed officers conduct illegal searches, convert seized property to personal use, make illegal arrests, illegally serve arrest warrants, and otherwise act immorally, unethically, and outside the law. I witnessed tribal officers verbally intimidate, demean, and demoralize an Indian woman, who is mentally retarded, until she was in tears. I daily documented these illegal or improper acts and when I reported these activities I was ignored. I was finally ordered by the sergeant to stop documenting the racist, illegal, and improper activities I witnessed. I was also ordered, once again, to falsify Federal documents for the monetary gain of the tribe. I was ordered to rewrite an accurate, factual, truthful, police report and insert false information into the report that covered up misconduct that I witnessed and attempted to report. I confronted my harassers during the second week of employment and told them that their harassment, racial slurs, and other misconduct was not wanted or appreciated and I requested that they stop. After being ignored, I complained to the sergeant regarding the racial harassment I was being subjected to. When the sergeant continually ignored my complaints, I went to the Chief of Police. When the Chief of Police failed to stop the racial harassment, slurs and discrimination, I went to the tribal personnel manager. After I filed my formal written complaint with her and after she gathered information from me regarding specifics of the incidents, she informed me I was being terminated. When I asked the reason for the termination I was told, 'Its because you filed this complaint and because you are not working out. " I inquired of the personnel manager as to how long she would take to process my complaint She indicated that I should give her about a week. If a week went by and I did not hear from her I was told to file a complaint with the Washington State Equal Opportunity Commission. (EOC). After ten days I received no response from the tribal personnel manager Despite repeated requests for action, the tribe took no action and has done 781 nothing to this day. Prior to applying for this job, I noticed the tribes advertisement in the local newspaper for employment with the tribe. I noticed that within the advertisement was the phrase, "An equal opportunity employer". I also saw, posted in the workplace, posters issued by the EEOC, indicating that racial, sexual, or other forms of harassments or discrimination were not allowed and a contact person, the tribal personnel manager, was to whom any violations were to be reported. Considering that I was employed by "an equal opportunity employer", and feeling that I had been, illegally treated, violated, and degraded by the acts of racial harassment, discrimination, and other illegal acts I experienced, and receiving no response from the tribe, I began a nightmare that continues to this day trying to obtain a little justice. I first filed my complaint with the state EOC, who, at the same time filed with the EEOC. I subsequently received letters from both the State and Federal EEOC offices that they had no jurisdiction. I was told that the Indian tribes are exempted from Title VII of the Civil Rights Act and are not required to adhere to anti-discrimination laws. I complained to the U.S. Office of Civil Rights and was told that they had no jurisdiction. I filed a lawsuit in Federal District Court only to have the tribe's attorney claim that the court lacked jurisdiction and the tribe had sovereign immunity. I complained to the FBI and they have done nothing. I complained to the BIA Area Offices in Everett, Washington and Hoquiam, Washington, and both failed to do anything. In August or September of 1991 , I complained to the BIA Regional Office in Portland, Oregon. They maintained, for about a year and one half, that they had no control over the tribes and could do nothing. When I later confronted the BIA with irrefutable facts, they indicated they had some responsibility and would take action. It took until August of 1995, about four years after my initial complaint, for them to conclude that I was subjected to racial harassment and discrimination in the workplace. As of the date of this letter the BIA has taken no action of any kind against the tribe that allowed and tolerated racial harassment by it's employees, and in the words of a BIA official, "the tribe knew they, (the persons who harassed me), were racists when they hired them." It took the BIA in excess of two years to issue a "Report of Finding of Fact and Determination" that is and remains unsigned by the BIA official that issued it. I notified the BIA Inspector General. (BIA / IG) of numerous examples when the BIA failed to adhere to the law or it's own regulations, knowingly receiving falsified documents, failing to investigate these falsifications, and failing to maintain control over it's contract with this indian tribe, and other problems. Also, that they have failed to conduct an impartial, fair, complete investigation. I was informed by the BIA / IG that I had a right to appeal the lack of action of the BIA to the Area Director of the Portland. Oregon Area Office of the BIA. I am expected to appeal to the area director that is responsible for doing nothing about this problem. I have been attempting to get a response from the Area Director regarding my appeal to the Area Contracting Officers Report for just over one year and to this date have received no appropriate response. I grew up in and around an indian reservation at Marysville, Washington. I have spent several years serving the indian community. Given all my experience with the indian tribes, all the knowledge I have gained in life and in dealing with indian tribes, and all 782 the training in law enforcement I have obtained tell me that to allow a group of persons to act with impunity, without regard for lawful behavior, without accountability to any United States Court, by not allowing compensation for damages suffered from the protected group via the legal system, is quite simply, inviting the type of abuses I have related and to allow and condone the abuses to go on. To continue the special right of sovereign immunity is just plain WRONG. The tribes are allowed to file suits against me but the reverse is not the case. How can this be and why is it allowed to continue? It is my hope that you will very seriously consider my valid concerns. I feel that my experience and what I witnessed cannot be ignored, overlooked, or considered lightly. Given the proliferation of Indian gambling casinos in this country it is now, more than ever, imperative that you take action and rescind the tribes sovereign immunity For the most part, the Indian casinos are designed to attract non-indians People enter these casinos believing they have their civil rights intact, this is not an accurate belief. The tribes currently operate these casinos without adequate supervision. This lack of supervision will, in all probability, allow organized crime to easily enter and flourish. The tribes are not legally liable for any damages caused by their employees. Tribal police know they are free to, and likely will, conduct illegal searches, make illegal traffic stops, illegal seizures of property or persons, violate the civil rights of Citizeihs of the United States, commit other illegal, improper, or other negligent acts at these casinos and they know they are not legally accountable. The citizens against whom these illegal acts are perpetrated have no access to a competent court of jurisdiction for a redress of their grievances. In the State of Washington, as in other states, if a person is over served alcoholic beverages by a barkeeper, and then that over served person exits the cocktail lounge, drives an automobile and causes property damage or personal injury to another, then the person damaged is allowed to recover damages from the person responsible for the over service of the alcoholic beverages. When a person enters into an Indian casino cocktail lounge, and is over served, drives an automobile and causes damage or personal injury, the person damaged cannot recover damages from the tribal barkeeper or the tribe as can be done under state law. Without your action to rescind sovereign immunity, Indian officials can and will continue to act without accountability, without responsibility, and without regard to the law. Civil rights have been, and will continue to be violated without action from you that would change the status quo. Reasonable and legitimate damages for negligent or illegal acts committed by Indian tribes must be allowed. Whenever one group is allowed special rights that no other single person or other group enjoys, it is not only unfair, but reprehensible and corrective action is long overdue. I realize that I am only an individual citizen, and that in the big picture I am insignificant, but. on this matter I urgently, strongly, implore you to rescind the tribes sovereign immunity protection and place them under the same laws that apply to all of us. The time is long past for this immunity to be rescinded because the reason a 783 sovereign immunity exemption was granted is no longer a factor There is more than enough legal avenues and support available to the tribe to use against the non-indian, but no such legal avenues exist for the non-indian against the tribes for their unlawful, intrusive, improper, damaging acts This single fact alone makes rescinding sovereign immunity a requirement to obtain equality, and fairness. I gratefully thank the entire committee your time, your due consideration of my information and experiences, your patience, and your support of all Americans by acting to do the right thing and rescind sovereign immunity so the tribes can be truly self-sufficient and ALL Americans can truly be equal. Re^ectfullv submitted for the record: Steven Peck 784 Ih/«^l I W, t\J%^\J ^' ^\<^^ 13 " /^- 36 I Ol I I VV I I it I 1^ II no KK/ yOui in I <(^ycSl \JO K\J LI l«.^ l«9«9UO V/l II Ih/CII ^^^^ VOl Wl^l I 1 1 I II I lUI t lif . I bll I I cai I /~\i 1 1^1 iv,fCrii I v^iLi^v^i I, t CL/vpajf «^> , k/uoii iwoo v./ vvi i&i cii i\j c« pwi *9V^i i vvi i«^ lo k.r«>\.«\i/i i in im wio^i 1^1 i&ii it^w Willi LI 1^ Vvwiuo v>iiU i^cliiwii, ui luci v^wi, Willi i-ii^«^i Ljr SiiU Jw5liC€ iCi A!!". A oir»/^l^ nrr\t ttr\ r\^ ir»Hu/iHi iilo oK/MiW o^\t K^ /^U/^rt e>r\^k^*L^. /~\ OIII^IW ^IK^iUf^ V^l tllViJIV IViJI.Jft4l«,» Ol IV/UIVa I I^^L ^J\^ ^1 V V^l I Ofi/^^WtCli ten I 1^1 iio ui ivj ^iivn^^u^^o I i\^ MCIL IdV.'W, CI\.A.^^/I VJII 1^ L^ WUl Dm Wl IM^IILO Cll l\J V^WI loU LU LlWI I . II C4I I IllUlOll I I iUW I Ib40 Wl l^.'O^^I I L^ kj\^\,f*^i I iw i^W ^/«« I I I iCillOl I II iwl t 0%^ iJw IL. I I IW pi ^^iWwll Vw UlCil IfXWL of funds and benefits allotted to that Indian Nation should cease and they should become responsible for all harmful actions such as discriminalion , harassment and financial wrong doing. I feel that this shield of Sovereign Immunity is giving these Indian Tribes a license to stomp over and abuse the very people who have been footing the bill for far too long. They want independence, but only if they are allowed to stay in the money flow. THIS MUST STOP! Only then will thsy become independent and responsible for their ov/n actions. The poverty on the reservations is blamed on the White Man. This is not true. In fact if the Tribes had to be accountable, we would see v/ho is getting the m.oney and where it is being spent. This is not to say that there aren't some tribes that do very' well handling their affairs. As in the White population, there are some that manage very well and others who need help. We have created lav/s to help people handle their monies and property, so why don't we do the Ir^/^irsr*** r\irt fK^ II iui«^i lo \./i I 11 1 C^ I woCi w biiii./] lo. L.\y\,/i\ bii «^ui lu y\jxjtf \^s^ y\j%a iiCivC iii\^iC i v.»o|^Cwl i\jt ii iC ones you see trying to get on with their life, and contributing.... or the ones that Ofia o|\*#owo off^r rvyr\r>ct\t 4r\rrv> \*rM lO bli W CAiVVUyo bllL\,«l I I IVi/l IX^jr l^yilll JKJKJi I hope you v^/ill all take a good hard look at the monster that has been created >vereign Immunity. jnd Sincerely, Linda Barnes P.O. Box 101 La Conner, Washington 98257 785 1996 Si 12- 1,5 David M Montague 775 Dan Street LA Conner. Wa. 98257 Senator Slade Gorton 730 Hart Office Building Washington, DC 20510 s^^ /■^"X Dear Senator Gorton, I am writng this letter to encourage you and other members of the U.S. Senate Indian Affairs Committee to consider waiving Tribal Sovereign Immunity. I, along with my family, currently reside within the geographical boundaries of the Swinomish Tribe, Skagit County, Washington, and have for the last thirteen years. I selected this site to build my house for many reasons but also had never had any particular negative associations with the Tribe and had essentially "grown-up" with many members and subseqently have always felt comfortable here. Property was purchased as "Fee Simple'", listed as part of Skagit County and always considered to be part of the County with its commensurate tax responsibilities. What is not comfortable is to become aware that this link to the County is tenuous, with local and state government officials being reluctant to represent property owners and that there is a political/legal/cultural group (Tribe) which has access and power within U.S. system and which may also act unilaterally, as a Sovereign Nation, which has direct impact on non-tribal persons and issues about which they have no control or even effective input. Essentially, the tribes may participate in both systems but it is impossible for a non-tribal person to participate and be fairly represented by a group asserting total control. It feels very much like being a "non-citizen" within one's own country. The re-birth of Indian culture and the economic advances of many tribes is truly heartening. Locally 1 see many indications that folks are more hopeful and are starting to actually see a good future for themselves and their children. Particularly through the proliferation of casinos the local tribes have realized a way to economic prosperity, though I fear they may over do it and I can't help feeling my own personal cultural apprehensions about the grown of gambling. I just would like to see the political/legal playing field leveled somewhat and I feel that waiving Tribal Sovereign Immunity is the place to start. I don't believe that this would negatively impact the Tribes but would actually improve their "equity" by establishing accountability which is a cornerstone in the financial world we live in and begin to make us all truly equal in the eyes of the 786 eyes of the County, State and Federal Government. Thank you for your time and consideration. I know this is a very difficult issue and I appreciate your dedication to government service and your willingness to take on problems and to speak out when its necessary. Sincerely Javid M. Moi 'Xn22iilir 787 September 12, 1996 861 Kallspell Drive LaConner, WA. 98257 Senator Slade Gorton 730 Hart Senate Office BulldlftQB SEP 1 6 fii\2-5B I a Washington, D.C. 20510-A701 /- i.<*^ t^/(^' Dear Senator, Enclosed,-" please find a copy of our letter to H,he Senate Committee on Indian Affairs. We need all the help that we can receive to eliminate tribal sovereign immunity. Thank you. Robert L./Mary C. Bibeau P. 3.: I agree that the native american has been short changed in the past. However, we feel that the government and the courts have gone overboard on the greater than equal rights for tribes. They are immune to our court systems except -when they benefit from it, such as the Judge Boldt decision. 788 September 12, 1996 861 Kallspell Drive LaConner, WA. 98257 Senate Committee on Indian Affairs 838 Hart Senate Office Building ■Washington, D.C^ 20510-6450 Dear Senators, We purchased a sub-lease here in Shelter Bay on the Swlnomlsh Indian Reservation through the Shelter Bay Company in 1989. That same year, v/e had a home built on the lot and retired In 1990. The land use agreement fee to 1992 was $360/yr. Per the master lease agreement, the land was re-evaluated In 1993 and the new land lease agreement provided for a lease fee of ^675/yr to the year 2003. The awlnomish tribe is now disputing the renoglated lease agreement relative to the land value. In that the tribes are exempt from court action and are subject to BIA interpre- tations, I fear that our lease fee could triple from that of the current agreement. If this marsh had not been developed by the Shelter 3ay Cc -iny, this community would be non-existent and the land for all practical purposes would be essentially worthless. It surely would not have been developed by the tribe. In our retirement years, this will become a significant burden. In that we do not own the land, there is no way that we can potentially recover these monies through the sale of our property. In all fairness, we feel that our native americans should be subject to the same laws as any other non-native american. The tribes should be required: 1) to pay taxes, be it local, state or federal on Income, (le;land leases, businesses and gamDling casinos), 2) to abide by legal contractual agreements/oDllgations ,and 3) to be subject to prosecution and subsequently penalized Just as the general public is liable, lie heartily support your hearings leading to the elimination of tribal sovereign immunity. ■ Yours Sincerely, Robert L./Mary C. Bibeau 789 Jack & Betty Wockner MSEP \2 ... |: 15 8919 160* St Snohomish, Wa. 98290 August 31, 1996 Senator Slade Gorton 730 HSOB Washington DC 20510 u& fj RE: BIA/Swinomish Tribe Land Leases ^ LaConner, Washington < Dear Senator Gorton, We are writing to you to ask for your help in saving our home on the Swinomish Reservation. We entered into a lease with the Land Owner to be administrated by the Tribe and BIA in 1986. We felt that the rent amount was fair. We had no indication at the time from either the Tribe or BIA that we would have anything but a fair and reasonable rent increase at time an adjustment was called for by the lease. Then at that time we were stunned by the notice that our lease rent would increase almost 400%! We find this to be excessive and without merit. On top of that, we have also been charged with the cost to construct a sewer system even though we are the Tenants. We've ' attempted to appeal the rental increases, but to no avail. We are trapped and injeopardy of losing our property. We can't sell it because of the unreasonable lease and accordingly, we have lost our equity. Now we understand the Tribe will declare Sovereign Immunity, blocking any I action we may wish to take against the Tribe. As a member of the Senate Committee on Indian Affairs and our I Senator, we are asking for your help. Thank you. 790 August 20, 1996 The Honorable Slade Gorton . I C^ I 730 Hart Senate Building v/^t"^ I i Washington, DC 20510 K. Nf J/ I i Dear Senator Gorion: ^ We live at 2214 Lummi Shore Road and we have recently built a new house that is within the exterior boundaries of the Lummi Reservation. We heard that you are planning to have hearings about the abuse that occurs by the Lummi Indian Business council as it pertains to Non-tribal members living on Fee Patent land. I want to relate to you a situation that happened with our new house that needs to be addressed in the hearings. We made application to the Whatcom County Building and codes for our new house. We of course had to show that we could get water and sewer before we could proceed. We arranged for a well driller to drill a well on the property and we discovered that we did not need a water right or permit to drill a well since our use would be under the 5,000 gallons per day waiver set by the Washington State Department of-Ecology. We found out that the Whatcom County Building and codes department routinely send the Lummi Tribe a copy of the building application as a goodwill effort to co-manage building and zoning with the tribe on the reservation. Also, it is standard practice for the department of ecology to send the tribe notification of an impending well drilling even if it is under the 5,000 gallon personal use waiver. What happened during the next few weeks was bizarre to say the least. We noticed that a van was parked near our new home during the day and night and inside were tribal members watching to see if the well driller was coming to drill the well. We put up with this spying for approximately 1 week before the well driller arrived. When the well driller arrived the Lummi Law and Order came onto our property to see what he was doing and told us that we should not be drilling a well. We asked the Lummi Law and Order to leave and they did but they remained near our home constantly until the well driller left. My question to you and this hearing board is; "Is this not an abuse of power and authority of the Lummi Indian Business Council?" 1 fee! as though we are living inside of a police state and we have no recourse or say in how individual rights are being violated and we want it addressed! Sincerely, Gail and Wes Whitney 2214 Lummi Shore Road Bellingham, WA 98226 360-758-2833 791 August 19. 1996 Honorable Slade Gorton: 730 Hart Senate Building Washington, DC. 20510 Dear Senator Gorton: We are very pleased that you are reviewing the impact of Sovereign immunity with the Indian tribes, across the nation. We feel this federal law is one of the worse forms of racial discrimination that this government has ever imposed. It is our understanding that the Lummi Tribe can put water and sewer lines or what ever they wish in front of our house and then deny us hook-up, because we are non-tribal members. Whatever services that are made available should be for the benefit of the whole community, not just a certain group of people. The Lummi tribe also has imposed taxes on businesses that in turn pass these taxes on to non-tribal members and non-tribal members are not allowed to be on the Tribal Councils and have equal representation. This is a system that perpetuates racial discrimination and the only recourse available for non-tribal members is to sue the Federal govenunent. If our city councils, county councils or school boards were to govern in this manner they would be held liable for their actions and this type of abusive system would be stopped immediately. It is time to stop the give away to all tribes of this nation and teach them to be economically and socially responsible. Sincerely Wes and Gail Whitney 2214 Lummi Shore Road Belllingham, WA 98226 360-758-2833 792 Cliappelle Arnett 4136Saltsprino Dr. Fcniclalc. WA 982-48 8/19/96 Senator Slade Gorton 730 Hart Senate Office Building Washington, D. C. 20510-4701 Dear Senator Gorton: Whatever reasoning prevailed to allow sovereign immunity for Indians needs to be reexamined. No other "nation" or government enjoys such status and for good reason. There are a number of situations which have developed within the so-called boundaries of the Lummi Reservation which have resulted in major problems for fee-land owners. Among these, the following are of major importance in recent years. 1. Tribal drilling of illegal wells without permits in Georgia Manor and Sandy Point on residential zoned fee land. They obviously have been able to continue pumping threatening the water supply for all; this is also a special problem for people who purchased property with the understanding that water would be available. They continue to pay property taxes, water/ sewer assessments, and community assessments. This is most unfair and a real financial burden for many as they are unable to build or to even sell the property without sustaining a substantial loss. 2. The Tribe ignores contracts and court orders for county parks such as Portage Island, Bellingham City water, and sewer/water hookups. 3. Tidelands issues problems increase. I live on Saltspring Dr. which is adjacent to a prime clam area. This year was one of the best ones attracting 50- 100 tribe members on weekend days over a two-three week period with fewer on some week days. They park cars/trucks on private property, have walked through mine and neighbor's yards without permission. And in the past, during a salmon fishing time, they "camp" on so-called tidelands at South Cape which no-doubt are using the private property there which is undeveloped. This camping occurs with children, and no sanitary facilities, and after doing this for a couple of weeks, they leave household furniture such as mattress, folding chairs, and even a stuffed chair. All of this I have witnessed on walks and cycling in this area. 4. Tribally passed taxes affecting non-Indians is taxation without representation. There are other situations that could be addressed, however, I will limit this and ask why the Tribe is able to rule over non-Indians? It is time to move into the 21st Century in view of equal rights and responsibilities of all citizens; reexamine treaties in light of changes in society without endangering true tribal jurisdiction and property. Furthermore, the goal of the American way is to integrate all peoples; we seem to encourage Indians to remain a separate culture-however, many Tribal members have left the reservation to follow the American dream? | A complex situation which will not improve as long as Tribes enjoy such exclusive status as sovereign immunity! Thank you for your attention to this request. I Yours truly, Chappelle Arnett 793 K. Jeff McKay 4693 Sucia Dr. Femdale, WA 98248 (360)384-1863 August 16, 19% Hon. Slade Gorton United States Senate 730 Hart Senate Office Bldg. vl ^\ Washington, DC 20510 ^""^ ' ^ Dear Senator Gorton: ^af\ I am writing to su{^rt efforts in the Senate to waive sovereign immunity for Indian Tribes. The doctrine of sovereign immunity is founded on the ancient belief that "the King can do no wrong", and when applied to Indian Tribes has caused great harm to Indian tribal members and non-tribal citizens who reside on or near Indian reservations. It is time to leave behind this antiquated concept and move forward in the spirit of equal justice for all citizens of this Nation. In our conmiunity, tribal sovereign inrnfiunity has allowed Lummi Nation to threaten and to cause real harm to its neighbors. Those who are harmed and threatened have no recourse in conunon courts to defend themselves. Examples of the abuses that have occurred because of the inability of the citizens to protect themselves in court are: • Threats by Lummi Tribal leadership to close public roads, denying us access to our homes. • Attempts to ruin the Sandy Point and Georgia Manor conmiunity wells; actions that would almost certainly be declared illegal in a court of law. • Imposition of utility taxes on those who have no voice in Tribal government (taxation without representation). • Continual threats to initiate law suits against our water associations and local government entities. This is a form of "legal blackmail" as we can not afford the exorbitant costs of defending our rights in Federal Courts. On the personal level, I was threatened by Lummi Tribal Officers acting under the authority of the Lummi Indian Business Council while drilling a well on my fee-owned IHivate property. This well was fiilly permitted under the laws of the State of Washington, yet the well driUer and I were both harassed and intimidated by Lummi authorities. I can attest to the apprehension that anyone would feel, knowing that the Constitutional Rights and access to channels of legal grievance which are taken for granted in our society are denied when dealing with Indian tribal authorities. 794 It is time for our Government to protect the rights of all it's citizens equally. Every level j of government, every public official, and every individual in this Nation is subject to the | same legal system with the exception of tribal governments which are the last vestige of '■ "sovereign immunity". The only comparable exceptions are foreign diplomats who can j evade our laws by claiming "diplomatic immunity". Removing the "sovereign inmiunity" of tribal governments is not an attempt to interfere with the ability ofthe tribes to govern their own people. It simply makes tribal \ government accountable for it's actions as is every other level of government in our I Nation. Discrimination in favor of Indian tribes is just as wrong as discrimination against i Native Americans. Sincerely, M^f^^A K. Jeff McKay 795 I^' ■I August 17, 1996 To: Senator Slade Gorton cc: Senator Patty Murray cc: Congressman Jack Metcalf From: Dale R. Petersen at Sandy Point, 4052 Sahspring Dr, Femdale, WA 98248 Subject: Tribal Sovereign Immunity Thank you. Senator, for "staying witfi us" as we fee land owners contim^g^g fight for our water, property, and constitutional rights at Sandy Point within the original external boundaries of the Lummi Reservation. Section 1 1 5 in the budget bill offers us some relief in that the war-like actions of the Lummi Indian Business Council has ceased for the moment. Our biggest problem is that of sovereign immunity enjoyed by the LIBC. The enclosed page on this subject highlights die need to have this provision removed fi°om Indians. If there were no sovereign immunity, we could sue and resolve in court matters that Whatcom County will not touch and we must rely on Congress to resoK-e. If Congress and the tribes themselves really believe in self-govemace, then they should want sovereign immunity removed. The Lumnus claim they want more independence. If diey do, diey need to "grow-up" and accept full responsibility for their actions and have sovereign immunity removed just like die United States and Washington State governments have done. Certainly the Point Elliot Treaty of 1855 did not give the Lummis this right End - 1 796 Endofure 1 to Dale R PeteTBea ktta on SovoeigD Immun i ty Waiving tribal sovatign immunity would enable those banned or threat- ened by tribes' or tribal ofiBdals' ac- tions to have recourse in the state or district court systems. Federal courts have consistently ruled the tribal gov- ernments are immune fiom lawsuits, unless Cong ress specificaUv waives such immunitv . (Federal and State governments and their officials are no longer able to claim such sovereign immunity for their actions.) Some specific instances wbere sovereign immunity has inqwcted OS are: I.) tribal spot zoning in residential areas (fish plant, casino, bingo hall, RV trailer ptA), and agrictiltural flood plain aiess (gas statka with in ground tanksy, 2) tribal excusing of themselves from getting the environmental permits which all others must get for projects in shoreline, flood plain, wetland and other areas; 3) tribal ignoring of contracts and court orders for county parks, Bellingham City water, and sewer and vwter hookups 4.) tribal represen- tatives creating fear by threatening access b>- non-Indians to utihties and their homes; 5.) tribal drilling of illegal wells without per- mits in Georgia Manor and Sandy Point on residential zoned fee land; 6.) tribal govern- ment threatening of well drillers with confis- catiMi of equipment for drilling on fee lands; 7.) tribal refiisal to get county building per- mits in fee land areas aflects assured quality of construction and county govt over- sight/accountability in residential neighbor- hoods 8.) tribally passed ta.Nes alTeeling non- Indians is taxation without representa- tion. 9.) tribally passed laws aflccting non-Indians and refasol lo allow access to iliose laws is discrirainatorv' lack of due process. we belitfve that waiving sovereign immunit}' will improve the self-government of Indian tribes. It will make tribal governments respoiuiihic for their actions in the same ways as oilier gov- ernments within the US. AddilioniilK. it may help tribes attract businesses which presently are wai\ about dealing »ilh ihem due to luck of accountability becau.se of sovereign inununity. 797 Peg Norheim 4269 Sucia Drive Ferndale, Washington 98248 a06)384-4497 August 20, 1996 Senator Slade Gorton 730 Hart Office Bldg. Washington, D.C., 20510 Dear Senator Gorton, AlC"/ '«/ My name is Peg Norheim and I live within the political boundaries of the Lummi Nation in Washington State. I'm writing to you to encourage you to support the waiver of Tribal Sovereign Immuiiity. As you well know, for the past few years, our community has faced several challenges from the Lummi Indian Business Council and Lummi Nation which continue to put stress on me as an individual fee land owner and the demeanor of our community as a whole. I worry that under Sovereign Immunity the tribe will usurp my water rights and I will have no legal recourse. I worry that additional taxes will continue to be levied and raised without my consent or my voice in the levy process. I worry that the tribe will continue to deplete the natural aquifer upon which we rely for water to slow new development(okay by me) and to eventualljr drive the nonnative population off the reservation. What will stop the drilling of additional illegal wells on fee land? There are a number of issues which impact me and I want an assurance that, if necessary, I can fight back - legally. Please support the waiver and encourage those committee members with whom you serve to do the same. Thank you in advance for your support. Respectfully, Peg Norheim cc: Senator Patty Murray 798 August 8, 1996 SENATOR SLADE GORTON 730 Hart Senate Bldg,' / ^ » Washington, DC 205IO v /^ j ^\ We wish to thanK you members of the Senate for having the hearing on waiving the sovereign immunity of the Indian Tribes* This waiver is badly needed and long overdue* We fee land owners are harrassed, threatened and intimidated by the tribes in many ways and tribes cannot be held accountable for their actions like all other Governmental entities and we citizens* The Lummi tribe has levied an unconstitutional utility tax on us and we can not take them to court to prove that it is tax- ation without representation* lou and Congressman Jack Metcalf seem to be our only help in congress but you ar« hamstrung* If tribal sovereign inoiunity were to be waived, perhaps we would be able to solve some of our own problems with thorn. We do not like having our water supplies threatened and we do not like being intimidated on our own beaches* Please do every thing in your power to see this thing through* Thank you again for all of your efforts on our behalf. Sincerely i!xi^^/^ ^c . -. ^ v^ Robert L Trumble Mickie Trurable 4850 Beach Way Femdale, WA 98248 ce* Citizens Equal Rights Alliance Inc* 799 August 19, 1996 Honorable Slade Gorton: 730 Hart Senate Building Washington, D.C. 20510 Dear Senator Gorton: tioff^ Please find enclosed with this letter substantial documentation on past incidences 1 have experienced on the Lummi Reservation. I own property at 2233 Lummi Shore Road which is within the exterior boundaries of the reservation on Fee Patent land. I have spent an incredible amount of both time and money trying to correct the racial discrimination that is perpetuated by the Lummi Indian Business Council against non-tribal members that live within the boundaries of the reservation. The first incident is about an abuse of the Lummi Law and Order trying to stop me and my family from walking on the beach. 1 have included a description in my own words about the situation and attached a letter from my attorney and pictures of the Lummi Law and Order physically abusing me. The second incident is regarding an incident where the Lummi Law and Order came onto our property and put out our legal beach fire. Attached is a letter from you from a previous communication. 1 never heard back from Sheriff Brandland but 1 was too busy to follow up on this matter. The third incident also involves the Lummi Law and Order in a traffic incident where they are using the state computer traffic network to scare and intimidate non-tribal members into thinking they are legitimate law enforcement officers. Please refer to the attached notes for full detail. The fourth case is involving yet another traffic infraction and how the Lummi Law and Order Officer followed me to my house and entered my property unlawfully. You will find my attorney's notes and the officer's notes on the incident in the attached pages. The fifth incident involved yet another traffic incident where they saw me driving my fathers old beat up truck with my two boys in the truck. They were sitting on the seat and not in an approved child seat even though technically they were both above the age and weight of a child restraint system. I was not speeding but the Lummi Law and Order had been so upset with me because of past incidences that they just waited for me on the road and stopped me frequently for no reason. 1 believe it is a form of harassment and abuse of their power over me. They asked me for my license and 1 said no and I requested that a sheriff deputy be dispatched because 1 did not recognize their jurisdiction over me. The officer went ballistic and told me and my two young boys that if 1 did not give him the license that 1 would be hauled off to jail and my kids would be taken away from me. My boys started to scream and became hysterical and 1 insisted that he call a Sheriff deputy and he said once again that he would not and asked me to step out of the car so he could arrest me and take me to jail. He started pulling on my mirror and tried to pry the door open but 1 had it locked. Luckily 1 had a cellular phone with me and 1 called 91 1. A sheriff deputy arrived 40 minutes later and spent 20 minutes calming me and my children down. To this day my two boys do not have a good understanding of who is a good police officer and who is a bad police officer. 1 have very little documentation on this case as the Sheriff office somehow decided to not send out a warrant for this traffic infraction. 1 believe the reason for this is because it would have been such an embarrassment to the Sheriff office because if it ever became public which is what 1 was prepared to do, it could look as if the Sheriff actually condoned this abuse of power because of their long-standing 800 agreement with the Lummi Law and Order to handle traffic infractions for the Sheriff office within the reservation boundary. I have written enough about our woes as a minority in the foreign country of Indian Land. As much as all of you in Washington would like me to believe that I do live in a foreign country and that my rights are subject to the laws of the Lummi Nation, I still refuse to believe it. 1 will continue to fight for the day when all people residing within the reservation believe and understand that we are one nation under God, indivisible with liberty and justice forsdl. Sincerely, Michael G. Bezona 2233 Lummi Shore Road Bellingham, "WA 98226 360-758-2566 801 l^frnli/l'^l At 10:30 a.m./^I was walking south on the beach, approximately 10 feet from the road, with Bob Bezona, Kay Clark, and Jeff Clark. A Ltunmi Law and Order officer riding a 3 wheel ATV, told us that we were trespassing. We told him that we were not trespassing and he pulled in front of us blocking our path. I asked, by what authority he was stopping us by, and he didn't answer me. He was joined by officer Yamada, who was in a car on the road. My Dad asked them by what authority, and they would not answer. They told us we were being detained and to wait for a Sheriff Deputy. After 10 minutes, I said that I was going to continue to walk on and they had no right to detain me, I was on fee patent land. They said that we were committing civil trespass. When I attempted to walk on. Officer Johns grabbed my arm and wrenched it behind my back and told me they were going to handcuff me. I relaxed and then attempted to exit the beach onto the road. When I reached the road, both officer, Johns and Yamada, grabbed men and pulled me back onto the beach and told me that I was to remain there until the Sheriff came. My Dad took pictures and they threatened him and told him that he'd better not take any more pictures of the incident. We waited 45 minutes without incident for the Sheriff to come. At 11:15, the two Lummi officers asked us to give our names and information. I said; "no". The officer said; "well, we already have your information (names and addresses)". He said, "our Chief said to wait a reasonable amount of time for a Sheriff to come, but if you give names, you can go" . At 11:25, deputy Bradshaw and a tall officer with back hair arrived and talked with the Lummi police for 5 minutes. I stood up and yelled across the road for assistance. The officers came down and asked us if we were aware that we were trespassing. We told them we were not aware. We were not on the tidelands. Our neighbor, Tina Ellen-Bass, came down and told the Sheriff that we were on her property and she did not care if we were on it. I asked officer Bradshaw if they were arresting or citing us. They said, "only if you don't give you name". I said; "then arrest me". She would not do it. I asked her to take my statement, and she wrote very few words down on paper. She continued to lecture on trespassing on Indian property without any concern for my own property rights. She would not allow me to file a harassment complaint against the Indian police, we gave officer Bradshaw our names and they let us go. 802 SKEEL. HENKE. EVENSON & ROBERTS Attorneys at Law 3eOi Bank of Caufornia Center Seattle, Washington 9816-4 TEL:f20fi) 623 -03 1 Fax f20€) 62S-2033 J^ril 12, 1991 Mr. Larry Mount, Sheriff Whatcom County Whatcom County Courthouse 311 Grand Avenue Bellingham, Washington 98225 Re: Michael Bezona Infofflticn Report Ho. 91A-04336 Incident March 30, 1991 Dear Sheriff Mount: Please be advised that the undersigned has been retained by Michael Bezona concerning the events of March 30, 1991, which resulted in the referenced information report. Mr. Bezona did not receive a copy, and, on his behalf, we herewith request that a copy be forwarded to this office. Mr. Bezona informs me that on March 30, 1991, two Lummi tribal officers stopped him and several others walking with him on the seaward side of Lummi Shore Road and forcibly detained them until county officers arrived, after which Deputy Sheriff Carol Bradshaw took his name and reprimanded him for trespassing on tribal property . From the information we have it apoears that Hr . Bezona was not on tribal property. We understand that he and the people who were with him are prepared to testify they were walking well upland of the point normally reached by the high tides. The owner of the residential property at that point, Tina Ellen-Bass (2117 Lummi Shore Road, 758-7376), who observed the group after the tribal officers detained them, states that they were on her land, which includes the upland on the seaward side of the road. Mrs. Ellen- Bass also states that she informed the tribal officers that these persons and others peaceably walking along the shore had her permission to be there. Whether the tribal officers informed Officer Bradshaw of that is not known. Mr. Bezona and his neighbors strongly believe that the county should not aid the Lummi Tribe in attempts to extend its tideland ownership claims to the extreme high waterline . The Lummis have I 803 Whatcom County Prosecutor April 12, 1991 Page 2 apparently adopted the practice of other Puget Sound Indian tribes of posting signs claiming exclusive tribal rights to the extreme high waterline.^ Such claims are entirely without legal foundation. On Mr. Bezona's behalf, we respectfully request that you consider, after appropriate consultation with the prosecutor's office, offering guidance to your officers on this matter. We understemd that the Lummi Indian Reservation includes the tideland along the waterfront, and that the waterfront allotments patented to members of the tribe, to which Mr. Bezona and the property owner at the point he was detained cure successors in interest, do not include tideland. We also understand that the boundary between the tideland and the upland allotted property shifts along the water with accretions and erosion. United States V. Boynton, 53 F.2d 297 (9th Cir. 1931). The elevation of the boundary, however, is the "ordinary," i.e., mean (not extreme) high waterline. United States v. Pacheco, 2 Wall. 587 (1865). More precisely, it is the mean of all high tides over an 18.6 year period. Borax Consolidated v. Los Angeles, 296 U.S. 10 (1935). We believe that the edxtve principles, generally appliceJsle to the shore boxindary of all government survey lots conveyed by federal patents, are fully appliceOsle to Indian allotment patents adjoining tideland or a riverbed within a reservation, whose title remains in the United States in trust for the tribe. Pvyallup Tribe v. Port of Tacoma, 717 F.2d 1251, 1261 (9th Cir. 1983). It should also be noted that the allottees emd their successors in interest within an Indian reservation also have, as an incident of the allotment grant, a vested federal common law riparifui right of access and wharfage across the tideland. Confederated Salish and Kootenai Tribes v. Namen, 380 F. Supp. 452 (D. Mont. 1974), aff'd per curiam 534 F.2d 1376 (9th Cir. 1976) {Namen I) . It follows that as to the actual tideland, below the mean high waterline, abutting owners and their permittees have access rights, even though the beach is owned in trust for the ^he f>osted sign near Mrs. Ellen-Bass' property reads: Restricted Area No Trespass log Luand. Reservation tldelands are reserved for use by Luani tribal OMinbers only. All other persons are prohibited froa entering upon or using the tldelands for any purpose unless specifically authorized by the Luiml Indian Business Council. Tribal tldelands include all areas between the extreote high and extreme low water oiarks. Tribal and federal laws prohibit trespass, hunting and fishing, and destruction of this sign on tribal tldelands. For leasing and other information, call Lummi Land office at: 734-8180 or 384-1489. 804 Whatcom County Prosecutor April 12, 1991 Page 3 tribe. An Indian tribe was held to have power to regulate the erection of certain structures on its tidelands by nonmembers , because of their potential impact on tribal welfare, in Namen II, 665 F.2d 951, 962 (9th Cir. 1982), but the continued validity of this ruling is now doubtful in view of Brendale v. Confederated Yakima Nation, 492 D.S. , 196 L. Ed. 2d 343, 109 S. Ct. 2994 (1989) . The propriety and practicality of the county attempting to ascertain and police the limits of nonmembers ' riparian access rights through the application of state criminal trespass laws to persons merely present on the beach would seem to be equally doubtful . In the past, we are told by Mr. Bezona, your deputies have generally not aided the Lummi Tribe in its sporadic harassment of non- Indian property owners and their guests along the shoreline of their lots. Again, on Mr. Bezona's behalf, we respectfully suggest the county return to its past practices in this regard. Very truly yours. ^. Eric Richter ER/sab 00300230 cot David McEachrzui, Whatcom County Prosecutor Carol Bradshaw, Deputy Sheriff MUce Bezona 805 Restricted Area Mo Trespassing Lummi Reservation tidelands are reserved for use by Lummi tribal members only. All other persons are prohibited from entering upon or using tidelands for any purpose unless specifically authorized by the Lummi Indian Business Council. Tribal tidelands include all areas between the extreme high and extreme low water marks. Tribal and federal laws prohibit trespass, hunting and fishing, and destuction of this sign on tribal tidelands. For leasing and other information, call Lummi Land office at: 734-8180 or 384-1489 Ujiy Ltiyy^tn] S^^'?al resolUkjn which appied to the whole reservatk>n and showed us a copy of a tribal document to ttial effect which he had received from the tribal representatives, dated July l^h. That document was lengthy, but the first paragraph saki, that in a spirit of cooperatkm with Whatcom County, the Lummi Tribe would allow no burning on the reservation. It was in memo form, and I believe that it was from the Lummi Indian Business Cound (I do not remember to whom it was addressed). I asked for a copy of the document, but was tokl I coukl request a copy fi-om the tribal center on Monday, and was not alowed to keep a copy of ttie document. The deputy told us to go to the tribe on Monday and get a copy if we wanted one, and he gave the copy which I had been reading, bade to ttie tribai representatives. The tribal representatives apologized for destroying the fire pit and saki they would fix it. While we feel that we are making progress wAh the tritjal representatives as to the ^ct that this is the first time ttiat they have admitted that we own to the mean high tide line (arKi not ttie prevnusty claimed vegetation line), we are still very concerned ttiat Whatcom County ShertfTs deputies wouki tell us that in a "spirit of 809 cooperation" tribal resolutions apply to our lands, and would show us a tribal document in "proof, but would then refuse to let us have a copy of said document. We are asking, is this the new sheriffs policy now, that fee lands are subject to tribal resolutions, or did the deputies misunderstarKi? Did Whatcom County issue a reservation wide recreational burning ban? If so, why weren't residents and the DNR notified, and why dkJnl the deputy have a county copy of the resolution available, or at least serxl me to the county on Monday for a copy rather than to the tribe? Would you please send me a copy of the county resolution declaring the reservation wide burning t)an. SirKerely, Michael Bezona 810 SLAOE GORTON A«*IOf«ATX>NS WASHMGTON _ **^"* BUDGET TDO 202-224-C7ra 730 HAMT Sf NATl OfWCI I 12021 Z24-3M1 ^ ^ _ _ ..^ COMMERCE. saef*CE. AND TnANSK»u Avcmu* St^n RII a south WMawTO*! Avt* Sckmj. WA W1T4 T.iiiM*. MA WMl VAU^ouvftL MIA ««• TlliilW. «i]4»-«DH isomto-oaw ismims-iiii 811 RECEIVED ^^"^ ^^' ^^^^ APR 2 fl 1995 Barbara Brenner MTo'^dTvlue WHATCOM COUNTY : Bellingham, WA 98225 COUMCIL Dear Ms. Brenner: I was riding in my father's car on Easter Sunday, April 16, 1995, when a Lummi Nation police officer stopped my father and told him that he was speeding. He told my father tfiat if he had a good driver record and his license showed that there were no warrants for his arrest that he would let him go with only a warning. This officer then went back to his car ^d checked his on-board computer and came back to my father and said that his record was clear and that he could go. My question to you is; What abilities have you given Lummi Nation Police officers to access confidential records such as driving record and other confidential information that shows up on state, local, and Federal computer systems? Who is paying the cost for the Lummi Nation Officers to use State, Local and Federal airwaves and antennas? Can I, as a citizen, have access to driving records and other personal information on these computer systems. If so please let me know in writing how I can do this. In another traffic stop, the same Lummi Nation Officer asked a person for his social security number. The person refused and he asked again and the person refiised to give it to the Lummi Officer. The officer then proceeded to interrogate the person with personal questions and made threats about going to jail. Please do not write back to me and say that I should ask the Lummi Nation first. Also, I do not give you authorization to copy or send this letter to any Lummi Nation Government entity or representative or Representative of the Lummi Nation. You are my elected representative and I am asking that you look into this matter and let me know what solution, if any, you see for this situation. Sincerely, y.J^J^^r'-y Michael G. Bezona 2233 Lummi Shore Road Bellingham, WA 98226 360-733-6400 812 'N flE»',Y agPesi - United States Department of the Interior BUREAU OF INDIAN AFFAIRS P'jgel Sounc Agency 3006 Colby Avenue Federal Suiicing Everett. Wasmngton 98201 Aueust9. 1995 Honorable Slade Gorton United States Senator c/o Christy Crawford 33206 Jackson Federal Building 9 1 5 Second Avenue Seattle, WA. 98174 Re: Your Anonymous Constituent Inquiry Dear Senator Gorton: We have reviewed your letter of August 2. 1995. Your constiniant asks several questions, first of which was, what rights have been afforded to the Lummi Nation Police Officers to access confidential information derived from Local, State, and Federal computer systems? The Lummi Tribal Police £)epaitment, like all law enforcement agencies, made application through the Washington State Patrol (WSP) OfiBce, Olympia, WA to gain access to such information. The patrol's General Law Enforcement Recognition Board reviews such applications and conducts an investigation of the law enforcement agency and issues the Originating Office Requesting Information (ORI) number. This allows the police department to gain access to the computer system. The second question was. who is paying the cost for the Lummi Nation Officers to access Local, State and Federal airwaves and antennas? The Lummi Tribal Police Department absorbs the cost. Finally he asks, can he, as a Citizen, also have access to driving records and other personal information on the computer system? In a word. no. Private citizens and the general public cannot access these confidential records. Concerning die Social Security Number request when citing a non-Indian, the Washington State Uniform Citation has a block for the Social Security Number (SSN). The police officer is instructed to fill in that space. If the police officer fails to obtain the SSN. he indicates, "does not know or refused to provide" in the SSN block. If he puts nothing, the State Jurisdiction will call wanting to know what to put in the blank block. It is a requirement to which the officer must comply. 813 Regarding Lummi Tribal Police Jurisdiction over Whatcom County Residents, the Tribe has a Mutual Aid Agreement with Whatcom County. Also, the Supreme Court of the United States refused to hear the David P. Schmuck case which made its way through the Washington State judicial system and also the United States Federal Coun Appeal Process. This case reaffirmed tribal police authority to stop, detain, investigate and hand over to the proper authority non-Indian violators. i Should you have any questions or need further clarification, please do not hesitate to call me or Mr. Phillip Charles, Senior Criminal Invistigator at (206) 258-265 1 Ext. 232 or 256 respectively. Sincerely, William A. Black Superintendent STATE REPRESENTATIX-E 42nd DISTRICT PETE KREMEN 814 state of Washington House of Representatives AGRICLLTtRE > BCOUXTi E.NERCY 4 LTlLmES LEGISLMTVE TR.\NSPO«TATIOX COMMITTEE May 1, 1995 Michael Bezona 2333 Lummi Shore Road Bellingham, WA 98226 Dear Michael: In foUow-up to my earUer correspondence, I discussed the issues which you raised with Don Qawson, Legislative Liaison at the Department of Licensing. As you can appreciate, it is difficult to respond to briefly outlined situations. However, I will respond in general terms to the issues raised in your correspondence. Generally q>eaking, law enforcement officials are allowed to access driving records from the Department of Licensing; it is considered appropriate for them to utilize this information in the performance of their responsibilities. Private citizens are not granted this privQege. Additionally, Bill Perry, Counsel for the House Law & Justice Committee, believes that the Tjimmis are acting via an agreement with local law enforcement Your question about the ability of a Lummi officer to ask for an individual's social security nimiber is a federal issue, dependent upon specific situations. Therefore, I referred your inquiry to Senator Patty Murray, upon receipt of a response, I will be back in touch. Thank you for drawing my attention to your concerns. Sincereb Pete Kremen State Representative 42nd District PK:le LnUSLATIve OFPKX: 30S X3HS L. OBREN BLTLDCiC. ai.Y>«>IA. WA aeSO*-oetX) ' (3801 Tse-TaS« • DCMNC SESSION i-aaooS3-«no 3283 >«JBTM SHORE ROAO. BELUNGHAM. WA 90336 • ISBO) 734-3ao3 • (360) 3a4-3307 FKVIEOCn KECYCLEO RVEH 815 SLAOE GORTON WASMNGTON APMOmiA-nONS 730 Hajit Scmati Owce tm.n«*i BUCXjET (303] Z2«~34«1 TOO 203-234-t273 INDIAN AfFAinS LASOn AND HUMAN TCSOilMCES Bnital ^ates ^tnatt WASHINGTON, DC 20510-4701 August 2, 199S Michael Bezona 2233 Lummi Shore Road BeDingfaain, WA 98226 Dear Mr. Be2ooa. Thank you for your letter r^arding recent traffic incidents with the Lumrai Nation Police Department. I appreciate your bringing this matter to my attention and will do what I can to see that your concerns are addressed and explanations given for the behavior of the Lummi Nation Police. I apologize for my delayed response. In an effort to assist you, I have contacted Mr. William Black, Director of the Bureau of Indian Affiiirs, Everett Office, to express my interest in this situation. I have informed Mr Black of the questions you posed in your correspondence - questions pertaining to the jurisdiction of the Lummi Nation Police Department over Whatcom County residents and access given to said police officers for local, state, and federal informational computer systems. When I receive a reply, I wiQ contact you. In the meantime, if you should have any additional questions or require fiirther assistance, please do not hesitate to contact Christy Crawford in my Seattle office. Thank you for your patience Sincerely, P^Xm^"^ 3UtXiw^ SLADE GORTON United States Senator SGzcc WMnr *7niSrW*f TT Ttn T ii i m ' |-| ■ Ml Eait rmutu Avii^a $ui tu-omo iSmi ao-n n W Wn C O OW WCCTQJO PAftH 816 SLADE GORTON WASHINGTON APfROPWATIONS 730 Hamt SCNATi Ovnci BiMjmtO BUOCrr (202)234-3441 _ _ COMMEflCS. SOENCe. AND TRANSPORTATION TOO »a-224-a273 lanitEd Starts ^tnatc WASHINGTON. DC 20510-4701 "'°"'* *"*'"' LAeOfl AND HUMAN RESOUflCES August 15, 1995 Michael Bezona 2233 Luinmi Shore Road Bellingham, WA 98226 Dear Mr. Bezona. I have received the enclosed reply from Williani A. Black, Superintendent, Bureau of Indian Affairs, regarding your inquiries into the activities of the Lummi Nation Police Department and their involvement in trafBc violations. I trust that the information provided will answer your questions to your satis&ction and clarify the Lummi Nation's law enforcement role in Whatcom County. I appreciate your bringing this matter to my attention. I was glad to be of assistance to you. If you should have any additional questions or require fiirther assistance, please do not hesitate to contact Christy Crawford in my Seattle office. Sincerely, SLADE GORTON United States Senator SG:2CC Enclosures ■ OMWSa t3D NcMM. Buuna ST U.S- C«w^ houm Bqk taS3 tJSO CA*««aoai 8lvo Momu Su^mo. Moom lit ns S«Coi« A.«Hui Swm m 9S0INkXT 17th SnwT «i Avwui ScATni. WA ni7« T» ct »t». WA mtm Vmommm. WA MMB SmAm*. WA M»I V*um. WA g«0) iMmtvua. WA 9S33S Wti«*rc>«a. MtA (MOI i3ni S&3-03M aoB stv tM« OM tm-Ttm tarn mt-am aan 2«»-«cb4 ooi > ts^^mo (soai asi-ii ia 817 Olympia OfiKC P O Box 40+<2 Olympia, WA 98504-OM2 May 18, 1995 Washington State Senate Senator Ann Anderson Republican Whip 42nd Legislative District Phone Numbers: Senate Office: i360) "«6-"682 Hotline: 1-800- 562-0000 Michael G. Bezona 22 3 3 LuBuni Shore Road Bellingham, WA 98226 Dear Michael: Thank you for writing me regarding your experience with the Lummi Police Department. I am happy to answer your questions about the general nature of tribal policing. Many of Washington's twenty-six indian tribes have entered into agreements with local law enforcement agencies to provide police services on their reservations. The terms of each agreement can vary based upon the needs and desires of the tribe and local law enforce- ment. The state Criminal Justice Advisory Council, an eleven member commission headed by the Washington State Patrol, certifies that an entity may act as a law enforcement agency and obtain criminal history and driver information from the state computer system. Generally, records of criminal convictions and outstanding warrants are not confidential information. However, the state's law enforcement telecommunication system (ACCESS) is restricted to use by law enforcement agencies. Agencies pay for access to the system based upon their needs and requirements. In the case of the Lummi 's, they have entered into an agreement with the Whatcom County Sheriff, and the police departments of Bellingham, Everson, and Ferndale for dispatch services and driving record checks. Attached are copies of Washington laws which pertain to an individual seeking to obtain criminal record information from the state. In addition to these provisions, it should be kept in mind that court proceedings are public in nature and those records are kept by the clerk of each court. I hope this information is helpful to you. If you have any additional questions please contact me at your convenience. Sincerely, (jIa/^m^ ^2^x^^a^*^i — Senator Ann Anderson 42nd Legislative District Ct>inminces Ajjnt-ulture 4 Agriuiltunil Tnide ^ C>e\cli>[>nicni • Hijiiier EJucJtion • Natuml RL•M>u^(."e^ 818 WHATCOM COUNTy SHERIFFS OFFICE Public Safety Building 311 Grand Aweime eeJDr^*fl, >AeshinSon 98225-4078 DALE BRANOIAND, Sheriff E C E I V ? MAY1 6 1W5 MFMORANDUM WHATCOM COUNTY COUNCIL XO: CoancD Members fUrlar^Awasr & Marieoe Dawson DATE: May 12, 1»5 SUBJECT: Respoim to Letter from I>Ir. Bcmna This is a lesponse to your tequea for a ooamem on flie aoadifid leaer from Mr. Bezona. Lummi Law and Onkr is a recognized law enfbicanenl agency in Washington State and is tlwrefoTE entitled to have access to infonnatiDn via the states 'access' system. They also pay for dispatch services through "Whai-Comm". I am soiry but these sovices are not available to ciiizens. If I can be of fiirther service to you please do not besitBte to ask. nme (206>67fr«6M Couttr- <20« 3a«.S3«0 iOM 76»46Sa IMU i2oe)67B-cicn Covtf. iXKi i»*^i9^ 819 CX£RK OF THE COUNQL Rdmona Reeves BUDCn/PROCRAM ANALYST Bob Woods WHATCOM COUNTY COUNCIL COURTHOUSE 311 Grand Avenue BeUingham, WA 98225-4038 COUNCIL MEMBERS Barbara E Brenner Marlene Dawson Larry Harris Kenneth R. Henderson Robert A. Imhof Ward Nelson Alvin Starkenburg May 8, 1995 MEMORANDUM TO: Dale Brandland, Sheriff FROM: Barbara Brenner, Council Member SUBJ: Michael Bezona Complaint Could you please answer the questions posed in Mr. Bezona's letter? I am not aware of what, if any, confidential information we share with other jurisdictions. Thank you for your assistance. c: Michael Bezona Dana Brown-Davis, Qerk of the Council Correspondence file Brenner BS/jkn Phone: (206)676-6690 County: (206) 384-6637 TOO: (206)738-4555 FAX; (2061 738-2550 SCAN: 769-6690 820 SLATER & SLATER Anomeya At Law 41 a Beltinghsm National Bank BIdg. ... ... ».. ^ Bellngham, Waa^ington 9822S «Jonn T. SMtar J. Timothy Slater 1208) 734-6980 February 28, 1992 David HcEachran Whatcom County Prosecutor 311 Grand Avenue Belllngham, Washington 98225 Re: Michael Bezona Dear Dave; I am writing in follow-up to our phone conversation of earlier today regarding Michael Bezona. As you will recall, Mr. Bezona was issued a speeding citation by Sergeant McSwain, of the Whatcom County Sheriffs Office based upon the written report of a Lummi Tribal officer. It is Mr. Bezona 's position that the Sheriffs Department is not authorized under the applicable statute (RCW 46.63.030) to issue notices of infraction based upon the written statements of a tribal officer. RCW 46.63.030(1) provides that only a law enforcement officer in whose presence the Infraction has occurred may issue a notice or a law enforcement officer may issue a notice based upon the written statement of another law enforcement officer in whose presence the infraction was committed. In either case, the infraction must have been committed in the presence of a law enforcement officer. It is my understanding that historically Lummi law enforcement has simply referred written reports to the Sheriffs Department whereupon review the Sheriffs Department will issue the notice of infraction. Presumably the Lummi law enforcement does not issue the notice of infraction directly in that both the tribe and the county acknowledge that the Lummi tribal officers have no authority over non- indians. This being the case, it is our position that the Sheriffs Department cannot rely upon the written statement of a "non-law enforcement officer" as the basis for issuing a notice of infraction. Again, if tribal officers were in fact "law enforcement officers" for purposes of RCW 46.63.030, they could issue the notice of infraction directly without the need to refer it to the Sheriffs Department . 821 If there is any question whether Lumioi tribal officers constitute "law enforcement officers" for purposes of Title 46, I would direct your attention to RCW 46.90,157 which defines "police or police officer". I would also direct your attention to Op. Atty. Gen. 1978, L.O. No. 18, wherein it is the position of the Attorney General's Office that tribal police officers do not constitute "law enforcement personnel" for purposes of RCW 43.101.010 so as to require the Washington Criminal Justice Training Commission to provide them with access to it's basic law enforcement training programs. I would also direct your attention to our Supreme Court's decision in Queets Band of Indians v. the State of Washington . 102 Wn. 2nd 1 (1984), wherein the court held that a federally recognized Indian tribe is not a "jurisdiction" within the meaning of RCW 46.85.020(2) and .080, which define jurisdiction and provide for vehicle registration reciprocity with other jurisdictions. In Queets, the court stated that if the legislature had intended to include Indian tribes within the meaning of the statute, it would have expressly referred to indian tribes in the statute as it had done in other legislation. Likewise, inasmuch as neither Title 46.63.030 nor 46.90.157 specifically Include tribal officers, it is clear that the legislature did not intend for tribal officers to have enforceaent authority under Title 46. Although I am writing on behalf of Michael Bezona and his particular situation, I do know that this issue is of great concern to many non-Indians both on and off the reservation (le: Luami Island for example). If Lummi law enforcement believes that the county will act upon their written reports, it will continue to stop non-Indian vehicles. I am concerned that if Lummi law enforcement continues to stop non-Indians for minor traffic infractions, that a confrontational situation could develop where somebody is injured or killed. I would suggest that if the only purpose for the stop is to determine t/hether the driver of the vehicle is an Indian, that the same information can be obtained by simply checking the licence number to ascertain whether the vehicle is registered to em indian. Another option would be for the indian officer to simply follow the vehicle and talk to the driver once the vehicle has reached it's destination. If the tribe la to continue to stop non-Indian vehicles, I think it should do so at it's o«m risk without any support from Whatcom County and that Whatcom County should disassociate itself with this practice. Mr. Bezona' s case is set for a contested hearing in Whatcom County District Court on March 17th. I understand that you have a very busy schedule however, if you could 822 have one of your deputies review this natter and get back to me prior to Mr. Bezona's hearing, it would be greatly appreciated. I would also appreciate It if you would have one of your deputies review the trespass question which we discussed. As I explained over the phone, the tribal officers o%m report acknowledges that he was aware that Mr. Bezona's property was private property, that he had been instructed to stjry off Mr. Bezona's property and despite Mr. Bezona's admonition to keep off his property, the tribal officers proceeded to enter onto the property. Although the trespass situation in this case may not seem serious, it is a concern to both Mr. Bezona and to other fee land ovmers residing on the reservation. Obviously, if the tribal police officers have no criminal jurisdiction over non- Indians, they have absolutely no right to enter onto private property over the objections of the property owner. Again, thank you for your attention to this matter and I shall look forward to receiving a response from your office. Very truly yours, SLATER & SLATER BV: , J. Timothy Slater JTSipsd cc: Mike Bezona Dale Brandland 823 -E 3 F«J _ Op—' 1 u U o 7. Ed ^ «o J till ,5l 3=3. i 3i ■S K "3 O lis 1 s" iJS^-g; 11 3 e o •> " w 2 o. ■a i; 5* : g-2 2 s la*- C t- « •- >i V o oS o «i .. " 'S j; .0-5 3 ^1 E ° c « • "scoS-Sw o.'p ■? O -o ea — r= .n ^ Sa.S c C »- = ':e i 2 » >-.a.s s~ " > S S.n^ >| g_ 0, t S f-o£-^ £S5„£i^|!3 •a -"3'-.siS«>oc>-° ji7 C O S r- 4> <4-i CL 0<*»" c s = g J. a^n 3 >. * " " " 3 O " *^4; g.a „ -" I. * CM t a, ■-¥* Ec2.§ •5 o ai o ^ _ « «-=S &0 " s-s » " S3 h> u w » .S o c O K it. O^ 4» fc 5 e 0--0 V Sue n o o. £ JzS. J -a J! 1 o Z «« f9 M •-• « 2 *S ^ e** f= a-g -5 H » CO >. . -" . s ^ }^^ " •> « &5^^ ^ « 2 P 3 s « C r' ^ ® » s u O « e E 2 , S •= a * S O o e 3 »,*S >.S3 = s >." E « V w c O o b tni o> E 5 . = S £.s2 E S =■ E " .gjE -^ ba " q S * s w ...S3 -sg 3 S"S.o 11 11 " 5? 6 c: • • e* cES eS" 2-g; » E * — • _ *> KB St- <1 o C ck is;.; I s = -j o ^ ;« O k u »• 1I Is "5.3 3 c 3.S t CO A CO « s J| n *^ O u O " I S3 12 > s.s 02 «*^ «M B s g c ■Sh s 5; n ^ c.S ^■^■s i 3 :*2 ?£Ja g 2 |3 3 01 C3 "~ .a i .5^ a S-g 3 ' iu V . > I- ■ h c .3 ^ e .s ■= :S S ° E ji ,2 "S 11 x3 = •^ a fa c a S .a o "■ iSi °-.S 0,^- c "" " o S £ 2 t > S = =" ° 3 S " g « g ° i .■§ = ■S ^ j2 '^ j; — * - = ^ " - ^ S.C: = .^ ?; « HI U "" U L, 2; o c l-S ■5 o c > SI 3 SiS S3 Sag Sir S S5 £■**== i-"^ S c « 2 — 3 " - ~ -S 0.0 V.-C1 — " B =" 2g--:5 g S s fe 5; B 8 824 4) 41 = ^ ttt^ i: S^TS a sit ■2c t all i-s = „ ■a iSg J ?*■- ^2 3 £ o °- c -3 := :5 -1 [3 •« « E a> 3 ^ U r a» s^5i y. ?^ M OS o 4 ^- 3 C — e»:S3 = o-grt ^-a « 5 "^ n o Ji ■• "3 E Is-"-" '--ifei =■ § Q- C o c o-^ o C ^ n c w — i c ■" ^•^5 " n S.E & I cB S S '-' c; J. o a» - ^ ■" s 2i Q.T3 4) ., a» rt o m a» M "t; o o.-^ -fi * v e.2 1^ •5 S' « 2 >=■"££ ^^o« ^g'3^-aS.^"a.''n t).2o«J'-3jJ-"^ « t-5-"S^."-o-«^="^|-?g !•£■.? i feel .= t2"3SjS|^^-g ^ i'*^ .2 _ >.3 1* ?i ^ = a. 4, -a 5 - Oi o ^ Q.-0 ■"'is CSS C 3 S 3 g-f s s °.c s; 2 3-^ " g.2 » s E e ■■" ™ -.-;.= ct.Jr3^r4.>»«)e t«3(uajOin*S*Jrt« £ o-ti "^ -a . i^ E 2 " » » S'C °5 o S g ^^ t ^ cd tn rt Is "" r, ^ • llllilllili.Eiieis^llii ;o-5 ; CM - c . is MI J -a a S - s 5 -rr O C ^ £ ■J aj c * s =-s " .§■ I iS -5 " a g «; a ! A tS " S ■ 3 5 ?i i ." " S i ° ' "■ » & S' i.'S 3 (U o a* O .9 « o C E S 2 C ' a. u ;: ! 3 <>* -n 8-5 c «- J. 4> 4» s = 5; p 3 g:-s s s s a iliiii 63- 3 «< «J o o a f5- O O 5 2 •e^ i :5- ■= S-oS J3 t-< c a> rt c n (u o .y e 3 I cr c V o « Si c > ■§ S =1^ .3 r»£ c -sg Oi T3 — -a E O -o H a. -2 = : ■*- *§£%."'■ - ."■£2 °g> 5:? ■s 5 2 c 9^ ;« oj > £: S2 |S5e _-flQ ^ --fa 11 3g i" £■«- as I- _-: o ■fis S; •31 U i.23g S S..H E 1°! _ 4, t> "s ^"^ ». E c o bo ?, a* -5-2 Jj o ■ 3 1 ; sr >, o E .y .e:§ C c '5 s g, e ■ - I- OT s: 0) - S £ »' !^ = = »£ -S = 2 .3 - 3 "5 a c S ^ — «E " a 41 Ei a .S CO o- — — ^1 L. a> ,o VI o > =•3=-: -.3 3 B » ■= » 5 J S - C 3 825 WHATCOM COUNTY PROSECUTING DAVID S. HcEACHRAN ATTORNEY VniatcoB County Courthouse 311 Grand Avenue Bellinghaa, Washington 9822S-4079 (206) 676-6784 ^n^^^ '^(( Ma rch 18 , 1992 J . Timothy Slater Slater and Slater, Attorneys at Law 418 Bellingham National Bank Bldg. Bellinghan, WA 98225 □ear Mr. Slater: This letter is In response to your letter dated February 28, 1992 addressed to David McEachran and also to our phone conversation on March 16, 1992. Essentially, you have lalsed the issue of whether or not Lummi Law and Order has the authority to stop non-tribal members within the reservation boundary and further, whether or not they are authorized to furnish a written report to Whatcom County Sheriff's Department regarding infractions witnessed by Lummi Law and Ordet si u that Whatcom County can then prosecute the lufractioas in Whatcom County District Court. I have read all of the cases and Gtatutes you < iffjc) in your letter, including RCW 46.63.030, tlie "imLice of lijffic infraction issuance" statute. That statute essentially authorizes a law enforcement officer to issue j nut ice of traffic infraction when ...the officer is actiny upon the request of a law enforcement officer in whose presence the traffic infraction was committed. I believe the focus of your inquiry is upon the definition of "law enforcement officer", and whether or not Lummi Law and Order police oifiier^ are considered to be "law enforcement officers", for that puipose. As I read the statutes, (RCW 46.63.Ciiu, 43.101.010, 46.90.157, 46.61.021, and 46.63.010 (legislative intent), it appears that Lummi Law and Order fits the definition or "a law enforcement officer". 826 I bell eve the (Attorney General regarding a first e uwu <.d3t:s yOU ClteJ, Aq 1 O . 1976 NO . 18 opinion), which is a one paragraph opinion ■' city's police otticei's service I believe an additional case of relevant value is Ollphant V. Suauamish. 98 S Ct 1011, 435 U.S. 191, 55 L.Ed 2d 209 (1978) . The Oli phant case essentially held that Indidn tribes do not have Jurisdiction to arrest and try non-lndian intruders who come within their reservation. (As you know, this holding has been expanded to include non-tribal members and non-Iiidian intruders) . However, the Supreme Court ruling clearly states Lliat the Indian tribes are "necessarily dependent on the United States for their protection from lawless and injurious intrusions into their country". 98 S Ct at 1020. The court continues and states essentially that the tribes recognize "that the United States would arrest and try non-Indian intrudeis who came within their res e rva 1 1 on . . . a nd that the tribes "are to promptly deliver up any non-Indian offender, rather than try and punish him themselves". Id.. Thus I believe that based upon the 1 i ph a n t c Q. \li °M *" S 3 UJ . UJ U. CC -I !> \ C3 ■»-• r: • c - - ul UJ m CO < X ■C o ■5: 3 O ■ >. . k. ' O o ra « r o O £C o 2 CO Q, :^ < •o CD o X en u 3 TL X -' c ri -J ?s» n -J iij CJ UJ o c 0) £ (A 3 3 O >• < z O. CC o > < 0. O h- Q UJ CC < UJ CC Q. LLI m 35-542 97-27 830 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVID S. MC EACHRAN Prosecuting Attorney APR 1 6 1992 1 2 3 4 5 ^ WHATCOI.; COUNTY ^ ^uuiMix ur «nAxuu«. , DISTRICT COURT No. WCS77741 Whatcom County Bellingham, Wash. IN THE DISTRICT COURT OF THE STATE OFRS«?Wff. ^ STATE ZIP CODE. SEX Trace HbATE OF BIRTH 'THEidHi ^weight eyes |hair fn^'Q^NTiAu phone ni l/ini ATIDN DATE ' ' MONTH Z. OKI V^^ TIME ^ ,_ . . Q INTERPRETEn NEEDED^ D IF NEW ADDRESS O PASSENGER :iP CODE EMPLOYER VIOLATION DATE ON OR ABOUT AT LOCATION >- ONTH ^ OAT y^^Afi TIME ,_ . n2r X T^ Xf /> ^^HouR/:^ ^ ^ \ KTp ■ CITY/COUNIY OF DID OPERATE THE FOLLOWINqVEHICLE/MOTOR VEHICLE ON A PUBLIC HIGHWAY AND VEHICLE LICENSE NO TRAILER It LICENSE NO STATE^ EXPIRES VEHJfR RES 1 EXPIRES MAKE JmOOEL ISTYLE ""' .COLOR TRAILErt 12 LICENSE NO STATE EXPIRES .TR YR OWNER/COMPANY IF OTHER THAN DRIVER f [reaoino A///i ADDRESS EXPIhti ,1 SfXfE' ZIP CODE ACCIDENT ^ PO I > COMMEnCIAL VEHICLE . D YES I y DID THEN AND TH ERE COMMIT EACH OF TH E FOLLOWING y [description vehicle speI HAZARD □ YES EXEMPT O FARM O FIRE PLACARD y^yiO I vehicle DRV X'^^"^" I VipiATION/STATUIECOCJ DESCRIPTION VEHICLE SPE ONS ZONEVXfiiADAR CJPACE OAIRCRAFT 2.VIOLATION/STATUTE CODE DESCRIPTION 1AAJ2J>±(^ APPEARANCE. PENALTY/BAIL U.S. FUNDS $ WIIHOUT AOMITTING HAVING COMMITTED BACH OF THE ABOVE INFRACIIONS/OFFENSES, I PROMISE TO RESPOND AS DIHECTEO ON THIS NOTICE. OFnCER X_55i(iv\lV^t'AZ5 > DEFEND ANTS SIGNATURE V^-*^ «ANCE . MO.-:' DY. ..-, .^VRi-hlMELV .i.^A-M- |B90KlNQ^;^'>JMi?,j?Trt DATE NOTICE ^;V';•,■^'?.^r>.•|^'-;;.ti^rr^-| ifois.>|?^>y.Kk{wTE^>^-li^i<>P.'^^^^ [issued o:u//cf/^0 >IJT ADMITTlNri HAVING rOMMITTFD tACH OF 1 lCf«T»Y(O#l0eCt*«lUNDr«i'CHAirr0r ^MJU«t»5*0CB n4L»Mp» sr AFC or wAstaMO tON rHA 1 1 HAVf ncASOMASLC onouNOS/«^«otAaii CAusi TO KLCVE AfO CX> UUCVC THC AOOvf NAMCD mi30N COWUTTIO nif AtOVf MrHAC1ION0| AMVOfI OrrCN9C(S| CONTHANT TO LAW JZ-. VAiViAm )h^j3^. NUMBER INFRACTION RESPONSE C NC DISPOSITION C NC flNDIKO; JUDGMENT DATE ABSrTiAcr maIleo" 10 OLYMPIA C NC D P C NC O P COMPLAINT/CITAT TATtON ' ' PENALTY > CRO PLEA G NO Iff SERVE CNG a NO O BF G NG O 8F wiTH DAYS SUSPENDED RECOMUENOEO NONEXTENSION OF SUSPENSION CMEDII fO" 1IME SERVED SUSPENDED SUB-TOTAL t is LICENSE SunnENOEHOAtE diHErt" costs I TOTAL COST t c c WASHINGTON UNIFORM COURT DOCKET-COURT COPY 837 e>MK>iDfKm-2-3^ i-um^i S)'^>c- niNOio 0»>« tiC t StAll S{j AACt lAUl ■c jioiftCf 'oomss ■ II rNQNt M*CA COOII fliisiNissioonciS ;if scHooc irtchoio I OMSIMv«aLC »*«fStCJl, OCOiDf S I 0(SC"''«OM SU |»'CI ■ CStOtMCl •U0**CS3 .«P0StrRRESTE^CITEDffeuSPFrTFn A"#Jt J«.< N.,mB,, .i7i Arifii Bail Bono Ol C>iai>on NumD <0tJ.,„ M.oar, }l R»ct It SEX » XGt 10 «inrMO»ie lUonin Oir »«i.l W Ht .._.... I .. - 1 , ■■ — -- ■ 1 ■ ■-■... I . . ,11. -X - i_ » XSIOtNC J3 HAIB,, -, '^/^< '(:. ^£1 M OCCUPATION 35 OIMEHlOtNTirifVJATA 39 BUSINESS loi K"t>eii aOOAESS «0 Bus ^hOnE PBOPERTY STOLEN/DAMAGED/LOST '• oescHi»iK)N 41 TOT*l V*iul *» V«iu£ <4 »nO»C"tT COOC 0» Mir.MEsr VAiue II ^^^\',l.!V I 1— PROPERTY RECOVERED/Qpbll^l^lCAIgpJ^*'^'^ .. Mt.^^^^' <7 TOTAL VALUE tii\Jifft ^ ■s^ ■giS?1^ ^S5 It PROPe«l» C00€ OF HiGMEST VALUE <• 'HiJ sutulMION IS Ki «00 ici CHANGE ,o,OELETE .I^' /('^^ TT^ SO HAMRAtlVE l»e>wOt WHO AHAf WhEN WMfHE HOW WMT uf« SuPOl»«r>f rtl I N«i>ac>« ConiMuANOfl •■ aOd.l.OnAl 10AC« •! n««at0 On £-lfl-90 af 1311 hours, I was on patrol northbound Luintni Shore Road. In the 2900 block of Lumnii Shore Road I did observe a vehicle traveling southbound at an excessive rate of speed. I applied the "wph" speed r naa cmri <- COPIES 10 ""^'jOdM) r-^Tr-.-.-'-T"" ..-,;;;:=^i'"'*/-f- IH?^"— -/^^c? ..u. ^^.n^ 839 X-BIA-6833 DEPARTMENT: FFENSBINCIDENT REPORT SUPPLEMENT I • NARRATIVE CONTINUATION L-CUx? t (_)riiz/ Page . 5-BIA-€2-(6a06) LnfaowAnoNHAue l-'-UYi mi IMMOmnNUMBU M bl .:^ I I I 2. 1 5 I I fo < D«1E AWO nul B EPO BI^ Uonin _J 2. oaoanizahon cooe Uol M^l 1 LPO0frEM3€/1NCI0EHT NUUBEA II R ^ \o I .. >i».^ C MklUC Of OrrCNSC/IHOOEMT _s5p££4i^3y Tof-iVH'*^ j[S'B(gg|?W«ffL fOR i gn I WM. ' ' ' ' UHfM t w nwBUT wn i nc ii *p pI)i URn MOUNI. SHERIFF (lUICOM COUNH SIIFRIfFS OFnCI llUlEA».ol«EOfoccuR£Na -U ■ ■ u>a 6., 1-1 IM 35. H?^- r f. ■^■ p- 7' .^: 7-*^ 'f'-'' ■a it*m»Twt ■ mem* who. wut, when, wheae. how. WHT: UM Mpmit cnMU of paiMT If aMUenal ipasa U fiMdad Shore Road. I activated the emergency equipment and attempted to make the traffic stop. The driver Mr. Michael G. Bezona, 3-17-58, appeared to be talking into cellular phone. He was inattentive to the patrol unit with .emergency lights flashing and siren. Approximately 1/2-1 mile from the point at which 1 had activated the emergency equipment. Mr. Sezona did pull over to the right. I contacted him and explained why. I had pulled him over. He denied exceeding the posted speed limit. I continued to explain I had locked his speed on a gnggri measuring device in the patrol un it. svTci 7l invited M r. Bezona to visually inspect the speed reading d Lin t|^p r-Ar. I Hp i«iag r-icit. interested. 1 requested a drivers 1 i cense twice from Mr. Bezona. He did not produce any type of identification. Mr. Bezona then said I had no right to detain him and that he was going to leave. I then told him if he left he may receive an additional charge. He then told me he was going to his house and if I wanted to follow him, to go ahead. He then left. I informed dispatch I was in pursuit of the suspect vehicle which had fled during my traffic stop. I requested Officer Conway to assist me. 1 followed the vehicle to £233 Lummi Shore Road, where Mr. Bezona advised me to stay off of his property. He then went into the house at that location. I waited on the County Roadway at the bottom of the driveway for Officer Conway to arrive. When he arrived I explained the circumstances surrounding the incident. Officer Conway identified the location to be associated with non-tribal members, and thus had dispatch contact the on duty U. C. S. O. Sgt, Officer Conway, and myself then went up to the house,' and knocked on the door. fi female answered the door, she 6aid Michael was inside, on the phone, at this same moment a gentleman from next-door came over. Officer Conway made contact with this individual while I stood near the door of the residence with the woman. Ue waited for approximately 10 minutes, Mr. Bezona never came out to talk to us. Dispatch advised us they had Mr. Bezona on the phone, and they would take the information and relay it to us. We then left the location. Earlier in the mornini), I had observed this same vehicle with the same person driving it. He again appeared to be speakin g on a cellula r phone. He was exceeding the posted speed limit (^^^5/35 iiiph zone.""]} This was indicated by the speed reading device in the patrol unit, in addition to my visual observations. tinmrxui/tcnoK .-Z uoonuTOomERS^ Wr s-n IS lu. Mvn ofncsi AMD n Nuusen Ui|-^|— 1^ MDATEAHOnuE R^EWtD 3r *)«Q OA^ /Tvfe 840 Exhibit "B" SJlwSEy^ DISTRICT COURT WHATCOM COUNTY NO. • i" " K ■- ,■■ • ' NOTIFICATION IJDATS MAILED DUE DATE DEFENDANT NAHE • ■ >^''PLEASE READ A Noclce. of Traffic Infraction haa been ' , laaued to you by a-'lav enforcement officer' ' and fHed„wlth this court. Tour ,copyj l8i;enclo8ed. ■ '.. * •' . PLEASE READ CAREFULLY all of the instructions on the Notice of Infraction. ^IF YOU DO NOT RESPOND BY THE DUE DATE ■'indicated 'ON THIS. FORM. THE COURT MUST " -'i 'ADD AN 1 ADDITIONAL PENALTY OF. $ TO \THE' ORIGINAL PENALTY.' MmCTION NOTICE (JTIR 2.2(3)) ,JTIR 02.0100-1/81-WPF. 841 X-BIA-M33 DEPARTMENT:. OFFENSE/INCIDENT REPC F I SUPPLEMENT II - MULTIPLE ARREST 5-BIA-U-1U-06) 1. MftdfVATION MAmt ~h^ -Pags. .o». W[\Ax\ 1 DATA INTRT NUMBCR ^m{V^'.v/?^.^\m^ t OnCANtZATION cooc ^•^1/-!-^ OATC ANO tIME nCPORMEO c MAruAc Of orrcNSEriHcioCNF tsj o^ 'i^x'^^o [/.[^ f\/\\o ij-\{V\^(^_m k OATt AKO TlUC Of OCCUfifiEMCI C7T "" ^/(lin.f \7 OFFENSE COOC kmm^}^^^vo\uf:\^^i:Am Twr or tuCtiT 10 D*rf AND TIME 0^ INIIUL lHVtSIIC*nON -isvr h^^mA PERSON ARRESTEDfCITED/EUSPECTED r)\o\sj\s'[^\^Mi\3\/m n eusiooT $i.ius ,„ .„„„j„ „^«, _ _ IZI Anfiif6»ii Bo<*d ill Cuaiion NwrnM* . »A MUiTI^C AffnESTtCilATtON MUUSCn r OF'ENSf COOC ^^Q^:o^ nMuc hm l-rrt^l^ I MAMC - LnL F«al U«MM f , ^ m 3I.NT0NCM*« iSlJLz^ U WTr»9Mn«« jTSiSofMcrrfwEM 7 MAin .{34 CTU J BE5 PKOrt 3a occuPAriON Mi 13 CASE QtSPOS-TtOH C)\/kP\^-M>p\f\'y>M ^Ln 30 BintMOArElUoninOar :P>\W 39 OTHCn lOCNriTT DATA 3t Bl/S)NES5io' KKoeO AOORESS «0 BUS FHONC PERSON ARR£STED/CITED/SUSPECTEO » CUITOOT STAFUS ,„ 4,„,„j^ H««b« . . (7) Ait9»tit»n . Bond (31 Citaiten Nw'^«> . - 1*1 SwiBtct p,)p aU- UUITVU ARRCSffCiTAriOM NUUBEO mn-^- \r OFFENSE COOC Nv?^mi-'l 3B. NAU( LUL Fv>L U>Odl« 33 wr(Pow«*«l as MESIMHCI ADOflESS 37 RES PHONE 34 OCCUPATION 13 CASE OISPOS!T'ON :)mm^-^. i'^\mmm:\ ca^i^ 30 9IRIH0ATE lUontn Oar Ttti '-■35 31 OTMEH lOCNnTT DATA 39 BUSINESS 10* Mltoon ADDRESS PERSON ARRESTED/CITEOrSUSPECTED AO 9US PHONE I CI A....IH.II . eo«w iiot JftiM ift .n Kp,BH*t-f nR ^^'|^ — i« . notaaiMJ l^ icr rj i nimfnR ^^'' i.is..w«i I'SM lu. uuinru AMicsTiciTAiiaN whscii mm I 7 OFFENSE COOC L MAMI - IML Flru. Ulda** C3)0>r»«f 39 WT|P«wnd» at. Mnof MCI AooAcss 37. nCS. PHONC 31. OCCUPAriON 31 OTHcn lOCNTirr data 39 BUSINESS (Of tcnoon AOOnCSS 40 Bus PNONC *B.TWI»B0BMtMiOWIS lAiAOO IQCMAWOC |OlOgLFTt .^j^' / 1^ ^ '^.-^^ m SI. niHTMUl ACtlO» Tm Mo_ SI COPIES 10 OIHEIU /Jd^ ""ti o »ye»» AND p Numca I Iw daii amotiiie I \}ir'mii2^^^^ 844 8/1/96 Senator Slade Gorton 730 Hart Senate Office Bldg Washington D.C. 20510 Dear Senator Gorton; z*' I am requesting your help with a serious and ongoing situation that recently has even more potential to become violent. The Colville Tribe has on more than one occasion tried to force me into a situation which could become deadly. The problem begins with the question; Who has legal jurisdiction over private fee land within the boundaries of the Colville Indian Reservation: The tribe claims jurisdiction and Ferry County claims jurisdiction. It appears that our County Government is so deeply entrenched with the tribe that it is refusing to acknowledge my problem or help me resolve it. Our Ferry County prosecutor, Allen Nielson, has advised the County Commissioners office that my case is not the "right" casg to use as a precedent. Only one of the 3 commissioners has voiced support in my behalf. Jim Hall feels that the County should intervene for me and fight the battle instead of expecting me to go it alone. The remaining two commissioners, Ed Winsor and Gary Kohler, have made it clear that they will not support me and prefer to leave me to pursue the fight alone. I can't help but be suspicious that Gary Kohler ' s unwillingness to support me as one of his constituants and a private land owner has to do with the fact that he is a brother of the Vice Chairman to the Colville Tribal Council. The question of tribal jurisdiction over private property owners supposedly was settled in recent Supreme Court decisions. However, it appears that the Colville tribe chooses to ignore this. Last January I requested application from Ferry County to subdivide my land, paid all fees, and obtained all the necessary legal permits which were filed with the Ferry County Auditor. However, after all this was completed the Colville Tribe attempted to block this endeavor by filing a Lis Pendens on my property. THey also sent me a notice that I was to appear in tribal court to force me to comply with tribal land use regulations. When two tribal law enforcement officers (game wardens) attempted to serve me with their court summons on the county road a few miles from my home, and I refused to accept the papers, they began to pursue us with red lights, sirens, and a bullhorn. They not only did not stop at the boundary of my property, but continued to chase us all the way to my front door. When we got out and ran into the house, they jumped out of their vehicle with guns drawn and pointed straight at us. (See copies of our statement given to the Ferry Co. Sheriff's office, and Ferry Co. prosecutor's office.) I also sent a copy to the U.S. Attorney General's office in Spokane after contacting Bruce Ditich at that office of whom I am aware was a Colville Tribal attorney for a number of years. Whether or not this was a factor in the fact that he did not respond to my request into an investigation the bottom line is that he did not acknowledge that request. 845 It seems to me that beyond the limits of no experience for both me in fear for my safety, to burn me out and run and received copies of after they had read our appalling in it's erron facts. The fabrication that I was acting in a to justify their horrif is that my friend and I observation. In my opin a serious criminal assa rights as citizens of F Allen Nielson, does not obviously a felony assa heard nothing which wou on our complaint. serving a summons at gun point goes far rmal procedure, and it was a very frightening and my friend. In fact I continue to be I've had harrassing phone calls threatening me off my land. In addition I requested the tribal police report which was written statement of complaint. That report was eous detail and total falsification of the was obiously designed to make it appear "suspicious" or unlawful manner in order ying behavior that afternoon. The truth were simply out for an afternoon of wildlife ion what they did should be addressed as ult upon our persons, and a violation of our erry County. Obviously the County prosecutor, intend to charge these two with what is ult with a deadly weapon. To date I have Id indicate that he intends to follow up I respectfully request your attention and assistance in helping to resolve this matter. Copies of the Lis Pendens, my statement of complaint, and Summons by Publication by the tribe are enclosed. Thank You Sincerely, CJbYU^ Daniel J. Hoover HCl Box 362 Inchelium, Wa . 99138 (509-722-3115) 846 Civil Action to enforce CTC Title 50 begun by Confederated Tribes of the Colville Reservation. In The Tribal Court For The Confederated Tribes of the Colville Reservation No. CV96- 16042 SUMMONS BY PUBLICATION Confederated Tribes of the Colville Reservation, Plaintiff vs. Daniel and Ellen Hoover, Individually and as a marital community. Defendants The Confederated Iribes of the Coivilie Reservation to said Daniel Hoove.': YOU AND EACH OF YOU ARE HEREBY SUMMONED to appear within sixty (60) days after the date of the first publication of this Summons, to wit, within sixty (60) days after the 21st day of March, 1996,(first publication in the Republic Miner), and defend the above entitled action in the above entitled Court, and answer the Complaint of Plaintiff above described, and serve a copy of your answer upon the undersigned attorneys for Plaintiff, TIM BREWER and STEPHEN SUAGEE, at the office below stated; and in case of your failure to do so, judgment will be rendered against you according to the demands of the Complaint in this action, which has been filed with the Clerk of said Court. This Summons by publication is issued purusant to an Order of the Colville Tribal Court dated March 12, 1996. A copy of the Complaint may be obtained firom the Colville Tribal Court or the Attorneys for PlaintiflF. The object of this action is to enjoin defendants and all those in active concert or participation with them fi-om improving, developing, subdividing, selling, constructing or altering buildings, clearing, grading, moving or otherwise changing the use of their land located in the Hellsgate Game Reserve District of the Colville Indian Reservation without first obtaining the necessary permits from the Colville Tribes as required by CTC Title 50; and for such other further relief as the Court may deem proper. The plaintiff is requesting that the Court issue a preliminary injunction and such other temporary or preliminary injunctive relief as may be sought as the need arises, and an order permanently enjoining and restraining defendants from subdividing or otherwise changing the use of their land with out first obtaining the necessary permits under CTC Title 50. TIM BREWER STEPHEN SUAGEE Attorneys for Plaintiff Confederated Tribes of the ColviU&Reservation POBoxl5(i J Nespelem,WA. 99155 (509) 634-8834 '' 847 ORIGINA! ^ nf'- W;~-H C'- -r, Or: FEB 1 5 1996 IN THE TRIBAL COURT FOR THE CONFEDERATED TRIBES OF THE COLVILLE RESERVATION ^C^ /- CONFEDERATED TRIBES OF THE COLVILLE RESERVATION, Plaintiff DANIEL and ELLEN HOOVER, Individually and as a marital community. Defendant (s) . CASE NO. CV 96-16042 LIS PENDENS NOTICE IS HEREBY GIVEN that is now pending in the Tribal Cour the Colville Reservation, upon th against the above defendants, and concert or in active participatio proposed subdivision and developm in the Complaint, and that the ob any subdivision, development, sal land use changes until such time Colville Tribes Land Use and Deve obtaining all necessary land use use and title to any subdivided 1 real property located in the Colv an action has been commenced and t for the Confederated Tribes of e complaint of the plaintiff all other persons acting in n with them with regard to the ent of the Real Estate described ject of the action is to enjoin e of lots, construction or other that defendants comply with the lopment Code by applying for and permits. This action affects land ots on the following described ille Reservation and Ferry County: That portion of SW 1/4 SE 1/4, SE 1/4 SE 1/4, Section 2, and the NW 1/4 NE 1/4, NE 1\4 NE 1\4, Section 11 Township 28 North, Range 35 East, VJ.M. known as: TRACT B of the Record of Survey filed August 29, 1991, page 202, Book 2 of Surveys, under Ferry County Auditor's File No. 218799; which is also referred to as the Lagoon Point Short Plat. All persons in any manner dealing with the real estate subsequent to the filing hereof will take subject to the rights of the plaintiff as established in this action. 28 LISPENDENS-1 CONFtDERATED TRIBES OF THE COLVILLE RESERVATION .. ■• '.V.-l .!■.' ■ 6091 (w-:- 848 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED this 'j_ day of February, 1996. Filed for record at the request of: Tim Brewer COLVILLE TRIBES OFFICE OF THE RESERVATION ATTORNEY P.O. Box 150 Nespelem, WA 99155 (509) 634-8834 LIS PENDENS-2 COLVILLE TRIBES OFFICE OF THE RESERVATION ATTORNEY ..-- ^— , By ■^ : . .-t^ Steven Suagee Tim Brewer Attorneys for Plaintiff After Recording Return to: Tim Brewer COLVILLE TRIBES OFFICE OF THE RESERVATION ATTORNEY P.O. Box 150 Nespelem, WA 99155 (509) 634-8834 CONFEDERATED TRIBES OF THE COLVILLE RESERVATION ICO!*) KH - 849 fJitlA S£p ® 3 ^"J* August 28, 19% Senator Slade Gorton 10900 NE Fourth Street Suite 21 10 Bellevue, WA 98004 Re: Swinomish Tribe La Conner, WA Dear Senator Gorton, I know you are very aware of the unfortunate situation my Sister Sharon and her husband Stewart Wright have found themselves in regarding their home in LaConner, WA. My husband and I used to be homeowners on leased land from the Swinomish Tribe and we thank God every day that we were able to sell our lease before all of this injustice happened We are writing to you on behalf of my sister Sharon and her husband Stewart to enforce their position of no representation and apparently no legal resources to help them keep their home Do they have any rights as American citizens and if so, what are they? Their lease has increased 500% and as a result, the value of their property's marketability has decreased conversely. TTiis puts them in a catch twenty two situation . They can't buy their land, nor can they sell their lease — who would buy it??? The BIA, apparently, can put any price on the lease that they wish and the tenants are legally bound to accept it, or lose their homes. Where is the justice in America, Senator Gorton? Can you, as their Senator, assist them in the logical solution to be able to purchase their land at the appraised value, or at the very least rectify the unfair increase in their lease. Sincerely, ' Shirley and JoKn Barry / cc: Senator John McCain, Arizona Senator Daniel K. Inouye, Hawaii 850 SENATE COMMITTEE OF INDIAN AFFAIRS 838 HART SENATE OFFICE BUILDING , WASHINGTON D.C. 20510-4701 j ATTENTION: NINA " DEAR SENATOR SLADE GORTON, I AM A TAX PAYER AND A PROPERTY OWNER AT SANDY POINT, THAT LIVES WITHIN THE LUMMI INDIAN RESERVATION. I HAVE PERSONALLY READ OUR CONSTITUTION AND ALSO MANY OF THE TREATIES WITH THE LOCAL INDIAN TRIBES. AND I AGREE WITH YOU ON . IT IS TIME TO MOVE ON AND RESOLVE OUR PREJUDICE BETWEEN WHITES AND INDIANS. OUR FOREFATHERS FELT AT THE TIME THAT BY GIVING THE INDIANS A FEW EXTRA RIGHTS THEY WOULD HAVE THE OPPORTUNITY TO AMERICANISE THEMSELVES AND FFF INTO SOCIETY. WELL, 1 00 YEARS LATER THE EXPERIMENT IS OVER AND THE OUTCOME IS NEGATIVE. LAST YEAR I DECIDED TO PLACE MY HOUSE UP FOR SALE. MY WIFE AND I MET WITH A FEW REAL ESTATE AGENTS TO DISCUSS WITH THEM OUR DECISION. WE WERE INFORMED THAT THE MARKET WAS VERY POOR IN OUR AREA DUE TO THE PROBLEMS WITH THE INDIANS (WATER RIGHTS, BEACH RIGHTS, THREATS TO BLOCKADE OUR ROAD, AND THE CLOSING OF OUR CANAL), SO AFTER MUCH THOUGHT WE DECIDED NOT TO SELL. SIR, WHEN MY WIFE AND I FIRST ENTERED SANDY POINT CANAL, 1 2 YEARS AGO IT WAS A LIFE THREATENING EMERGENCY. OUR BOAT'S GAS TANK DEVELOPED A SEVERE LEAK AND THE WEATHER WAS FOUL AND THE ONLY PLACE TO SEEK SAFETY WAS SANDY POINT CANAL. THIS SAFE HAVEN, WAS WHERE THE COAST GUARD INFORMED US TO GO. AT THE TIME THE CANAL WAS ABOUT 5 TIMES WIDER AND MUCH DEEPER THAN IT IS NOW. THIS CANAL IS DANGEROUSLY SHALLOW AND NARROW AND SHOULD BE DREDGED FOR SAFETY. THE LOCAL INDIANS AGREE THAT THERE IS A PROBLEM, BUT THERE TRIBAL COUNCIL FEELS THAT IT IS A BARGAINING CHIP TO USE AGAINST THE LOCAL INHABITANTS (NON INDIANS). NOT GOOD POLITICS IF YOU WANT TO GET ALONG IN HARMONY I'D SAY. I WOULD LIKE TO PROPOSE AN IDEA THAT WOULD MAKE EVERYONE HAPPY. LET A LOCAL GRAVEL COMPANY (LUMMI ISLAND GRAVEL COMPANY) DREDGE THE CANAL AND SPLIT THE PROCEEDS WITH THE INDIANS. THIS WOULD MAKE THE INDIANS HAPPY, THE LOCALS WOULD GET A SAFER CANAL, 851 NO INCREASED TAXES. A LOCAL STRUGGLING COMPANY WOULD GET A BOOST, AND YOU WOULD GET A PAT ON THE BACK AS A GREAT POLITICIAN, WHICH YOU ARE TO ME. SINCERELY, M.A. Fv^RINHA P.O. BOX 28722 FERNDALE, WA 98248 852 I SKAGIT COUNTY ?IR2 PROTECTION DISTRICT #13 Box 532 LaConner, WA 98257 August 19, 1996 The Honorable Slade Gorton United States Senator lOSOO NE 4th Rm 2110 ' Bellevue, WA 98004 Dear Senator Gorton: Regarding sovereignty for Indian Tribes, please be advised of the following views from ray Fire Commissioners: ! This district has an existing agreement with the Swinomish Tribe for fire protection and emergency medicaLL ser-^ices . The ] Tribe is now two quarters behind in their agreed payments , which j were suoposed to have been based on the net. win from che casinc, j The district has no recourse . We cannot step responding co \ calls, so the local tax payer winds up paying for Swinomish calls. The Fire Commissioner strongly believe that if "he Swinomish Tribe cannot pay for fire and EMT services, then the 3IA should contract with this district. j The economic reality is that the Swinomish people remain ! wards of the federal government. Although the Swinomish Indian Senate has been recognized by Skagit County and the Town of LaConner as a sovereign government, it has been impossible to deal with the Tribe's managers regarding zoning, sewer ser'^-ices, and fire/SMS. If they are a sovereign government, chen zhey should hcncr their agreements. Otherwise, all f\inding, agreements, and management should come from the 3IA. Sincesely, DairO' Donne 11 Secretary . 853 Memorandum of Understanding This Memorandum of Understanding is entered into between the Swinomish Indian Tnbal Community (the "Tribe" or "Grantor"), a federally recognized Indian Tribe organized pursuant to section 16 of the Indian Reorganization Act. 25 U.S.C. § 476, acting through the Swinomish Gammg Commission, the Tribe's gaming regulatory, agency, and Fire Distnct #13 ("Grantee"). Recitals A. Pursuant to Section XIII. C. of the Tribal-State Compact for Class in Gaming entered into between the Tribe and the State of Washington, the Tribe has agreed to set aside 2% of the net win from Class in gaining at the Swinomish Casino as a Community Contribution to provide assistance to non-tribal law enforcement and other government services that are affected by the Casino. B. Pursuant to the Compact, first priority for funding from the Community Contnbution fund is the Skagit County Sheriffs Office, for costs related to hiring on one additional deputy, so that monitonng, routine patrol, and response services will be available to cover the Casino and to respond promptly as needed. An additional priority pursuant to the Compact is funding for fire protection and emergency medical services for the Casino, provided by Fire District #13 and Anacortes Fire Department EMS. respectively. C. Pursuant to the Compact, a Community Contribution Committee consisting(of a representative of the Tnbal Senate, the Swinomish Chief of Police, die Skagit County Shenff, the'fe lue f of Fire District #13, and a representative of the Washington State Gambling Commission has made allocations of the Community Contribution fund for the period July 15, 1995, through July 14, 1996 (the "Grant Period"), based on projections of Casino revenues for that period. The Committee recognized that if revenues during any of the four quarters of the grant period are less than the projected revenues on which the allocations were based, then allocations may need to be reduced in order to fulfill the funding priorities sei out above and in the Compact. WHEREFORE, Grantor and Grantee agree as follows: 1 . Grantee has received a tentative allocation of S25.000.00 for the Grant Period. First quaner funding of 56,250.00 will be paid by Grantor on or about November 15, 1995, or within twenty days of execution of this MOU, whichever is later. 2. Second, third, and fourth quarter funding, in amounts equal to the first quarter funding, will be paid on or about February 15, May 15, and August 15, 1996, respe«ively, provided that sufficient funds are available. 3 . Grantee acknowledges that if Casino revenues during any quarter are less than the projected Casino revenues on which the tentative allocation was based, funding to Grantee may be reduced in order to fully fund the priority programs set out above. However, any such reduction in funding will be made up at the first opportunity, to the extent that funds become available. 854 4. Grantee agrees that funding under this MOU will not be used to supplant other funding for Fire District #13, but rather, in order to offset impacts from the operation of the Casino, will be used to increase the amount of funds that would, in the absence of the grant, be available to Fire District #13. 5. Grantee agrees to maintain accurate records of the use of the grant funds, and will make such records available to the Commimity Contribution Committee upon request. 6. Grantee agrees to make reasonable efforts to quantify impacts of the Casino on the program funded with the grant, and understands that such quantification will be considered by the Community Contribution Committee in allocating future Community Contribution funds. 7. Grantee agrees to provide to Community Contribution Committee, on or before July 1 , 1996, a brief written report containing the following information: (a) amount of grant already expended and purposes for which the funds were expended; (b) amount of grant yet to be expended and purposes for which the funds will be expended; (c) any information available on the impacts of the Casino on the program funded with the grant; and (d) amount of grant funds sought for the period July 15, 1996. through July 14, 1997, and the purposes for which the requested grant will be expended. Such report shall be mailed to: Community Contribution Committee c/o Swinomish Gaming Commission P.O. Box 698 LaConner, WA 98257-0698 FOR THE GRA^fTOR: SWINOMISH INDIAN TRIBAL COMMUNITY Date: /■»* - -^ - 9 s Lorraine Loomis, Chair Swinomish Gaming Commission FOR THE GRANTEE: FIRE DISTRICT #13 By: U <->^~c C^\J~i^-^ Date: l2-/-/- q ^ Doug A^ery, 6teef ^r/i'/f^ 855 Summary of Swinomish Contributions 8/^/96 Amount 10,000 To Dist 10,000 Dist Date 10/24/91 1992 1/7/93 1/17/94 1/17/94 1/13/95 2/23/95 4/25/95 4/25/95 6/1/95 7/31/95 1/25/96 2/12/96 2/12/96 2/12/96 7/25/96 MOU payment missed 5/15/96 6,250 MOU oayment -^tre ^^^S^'O 8/15/96 6,250 For Village Village 5, 500 Dist Village 4,500 Assoc Village 5,000 Dist Casino MOU 5,000 Dist Casino MOU 2,500 Dist Village 2,250 Assoc Village 5,000 Dist Casino MOU 5, 000 Dist Casino MOU 6,250 Dist Casino MOU 250 Dist Balance from 95 500 Dist Village 4,500 Assoc Village 5,198 Dist Casino MOU due 2/15/ 96 856 SKAGIT COUNTY FIRE PROTECTION DISTRICT #13 Box 532 LaConner, WA 98257 August 20, 1996 Mr. Brian Cladoosby Assistcint Mcinager Swinomish Tribal Cotnmunity Box 317 LaConner, WA 98257 Dear Mr. Cladoosby: Enclosed is a copy of the May 6, 1996, letter which you requested. This letter was sent to you, but evidently was not received. Based on coordination between you and the District Secretary, I understand that a meeting, as suggested by Chairman Wa Walton in his letter dated July 18, 1996, is not feasible during the period of August 21 through August 23 . You have suggested a morning meeting sometime during the week of August 2e through August 30, aind that it could coincide with a special meeting of the Swinomish Indian Senate. That would be ideal. Please be advised that the Fire Commissioners can be available during that period, but would appreciate the courtesy of at least two days advance notice so that our work schedules can be adjusted. Please contact the Secretary at 466 3181 or call me at 293 3451. Sincerely, James L. Grove Commissioner in charge of Indian Affairs 857 September 09, 1996 SENATE COMMUTE ON INDIAN AFFAIRS 838 Hart Senate Office Building Washinton D.C. 20510-6450 Dear Members of the Senate Committe: Thank you for considering this letter, it is in regard to Sovereign immunity for Indian Reservations. I live on the disputed land of the West Bank of the Colorado River Indian Tribes near Blthe, CA. We have no rent control. The indians have raised our rent to an unreasonable high, and I understand they want to increase rent to three times the current high. When I called the Colorado River Indian Tribes to complain they said "Pay or be evicted". I have no recourse, just as the rest of my neighbors have no recourse. Also, we receive no services fnom C.R.I.T. (Colorado River Indian Tribes) ie.: Trash pick-up, fire department ect. We need representation in the courts, please work to abolish Sovereign Immunity for Indian Reservations. Thank you very much, I hope you will help us with this matter. Respectfully Yours, A WEST BANK HOMEOWNER CC: Senator Slade Gorton 730 Hart Senate Office Building Washington, D.C. 20510-4701 Attn: Nina 858 BIG HORN COUNTY ELECTRIC (^oapeAotwe, Stic. P.O. Box 410 Marijio. Montana 59034-0410 Quality Service Since 1941 September 13, 1996 The Honorable Slade Gorton United States Senate Room 703 Hart Senate Office Building Washington, D.C. 20510-8450 Dear Senator Gorton: This letter is offered for presentation at the September 24, 1996 Senate Committee on Indian Affairs hearing on tribal sovereign immunity. Please relay the frustration Big Horn County Electric Cooperative has experienced in dealing with the Crow tribe and their Tribal Utility Tax. Big Horn provides electric service to two sovereign Indian tribes in south central Montana. We serve the vast majority of the Crow Indian Reservation and a portion of the Northern Cheyenne Indian Reservation. Big Horn has a long tradition of providing quality electric service to our valued Native American consumers and our Trustees have maintained a clear focus on keeping rates affordable, and protecting the interest of all our consumers . The issue of Tribal taxation has driven a "wedge" into our member/tribal relations. As an attribute of sovereignty tribal governments have the authority to tax on Indian trust land. The extent of this authority, however, must be legislatively placed within parameters that protect non-tribal members from taxes enacted for the purpose of generating revenue for the provision of services to which non-tribal members are denied access. I realize that the issues of tribal taxation, and jurisdiction over non-tribal members on fee lands, are very "thorny" from a political perspective. However, if left unresolved families and businesses will be severely damaged - harmed by a situation that if it were anywhere else in the world the federal government would condemn the affair as a violation of human rights. Big Horn County Electric Cooperative is dedicated to reaching a higher level of iinderstanding between the cooperative and the Crow tribe on all issues. Unfortunately, that will only happen if Congress establishes clearly defined principles under which the tribes exercise their right of self governance. Sincerely, Tim R. Gregori Manager cc Senator John McCain Senator Conrad Burns "*-or.e- !40e; 663-2830 FAX- (40G'. 60:-f644 859 August 26, 1996 Dear Senator, I urge you to support Senator Gorton of Washington in his effort to waive the sovereign immunity of any tribe that violates the property rights of non-members. In July of thjs summer, my name was brought up for ridicule and slander by Tribal Spokespersons at a public gathering at the National Bison Range. When I asked a lawyer if I could hold them accountable, I was told no, because the Tribes have the right of Sovereign immunity, and Federal courts do not handle the type of lawsuit I was speaking of The lawyer told me that slander is something that Tribal spokespersons can simply get away with. I realize that Sen. Gorton is focusing on violations of property rights, and that I would probably have not gotten relief through Sen. Gorton's bill either. But I see it as a step toward justice, and I urge you to take it. Lisa Morris 10207 Wheatland Rd. Moiese, NfT 59824 860 COWBOY AUTO SALES mc September 6, 1996 senator Slade Gorton 730 Hart Senate Office Building Washington, D C. 20510 Attn: Nina Nguyen RE: Sovereign Immunity Dear Senator: This letter is in regard to the Sovereign Immunity of the Navajo and Zuni Tribes. As we are in business in the area surrounding these two mentioned reservations, this has presented a serious problem for us. The laws of the State of New Mexico and the laws of the Navajo Tribe and Zuni Pueblo are conflicting. We would like to know who has jurisdiction over uso Are we citizens of the State of New Mexico or of the Navajo Tribe or Zuni Pueblo Being non-indian, doing busine'fes in Gallup, NM off of the reservation we find ourselves confused. The main question here is, "Who has jurisdiction over us. Thank you fro your time Very truly yoi ( ^,„^, P.O. BOX 898 • GAMERCO. NEW MEXICO 87317. TELEPHONE (505) 722-2038 861 SUNDANCE MOTORS DARREN BAADE PRESIDENT 1121 N. HWY666 GALLUP NM. 87301 Telephone 505^63-4066 Fax 505-726-1027 TO: SENATOR SLATE GORDON RE: TRIBAL POUCIES THE LAST TIME WE (SUNDANCE MOTORS) TRIED TO GET A COURT ORDER TO REPOSSESS A VEHICLE IN TRIBAL COURT, THE COURT WAS UNABLE TO SERVE OUR CUSTOMER BECAUSE SHE HAD A BOGUS ADDRESS OR JUST WOULD NOT ACCEPT THE LETTER. WELL!!! WE LOST BY DEFAULT, ALSO LATER I FOUND OUT THAT THE NAVAJO AUTHORITIES WERE NEVER EVEN ORDERED TO SERVE THE CUSTOMER. ANYWHERE ELSE IN THE WORLD THE CUSTOMER WOUUD HAVE LOST BY DEFAULT CONSIDERING THE CUSTOMER WAS $ 1700.00 BEHIND AT THE TIME AND HADNT MADE A PAYMENT IN SIX MONTHS. THIS IS JUST A VERY SMALL EXAMPLE OF THE INJUSTICE WE DEAL WITH DOING BUSINESS ON THE RESERVATIONS IN THIS AREA I LOVE NATIVE AMERICANS AS A WHOLE, BUT I THINK THEY ARE BELITTLING THEMSELVES BY ALLOWING OUR AND OTHER GOVERNMENTS TO TELL THEM THAT ITS OK NOT DO WHAT IS RIGHT, AND THAT THEY DONT NEED TO HONOR THEIR AGREEMENTS. HERE ARE SOME EXAMPLES OF WHAT I AM TALKING ABOUT. ENCLOSED IS A TYPICAL FLYER PUT OUT BY THE D.N.A. (FEDERALLY FUNDED LEGAL AID) ON HOW TO GET OUT OF MAKING YOUR CAR PAYMENT AND AVOID REPOSSESSION. DARREN BAADE (OWNER) 862 c o 10 • c c o o (0 « u £ 0) ■p m n c o a u o ■p c o C t4 Li P P B>3 O M O ■H o «j a c 0) >i o a u ■* « « ,o > H ' a « « «" «t SJ (fl • 0) » P 0) <«-l >1 *. 01 p 4-1 < M a» o « o P s ^ - 5 » o D •H C » 5 P « S ^ » 3 0< C O o 3 « S oc" O C « fl ja 4J o C rH O 3 rH L4 O-H C P P O « -H C O 4) ■H P £ w 5 n fl fl S c 3 ^ 2.* >,* > c (r (0 TJ P 3 C P r-iO) £ 0) I ■a a ■H 0) U (0 O (0 •a o a S2 U G O ^? 0) -t £ fl P O 0■^J P M a,&°^ . .3 fl fl -"PC o o to £-H H » (0 3 I O « l-i P >i 01 « 3 O TJ J3 T5 p C 5 4J-H o 9*0) I o s ^ fl tr 0) p C < C u ■H eg 0) P -H £ J3 c ta v 4J 4J O Q) At fl) 0) a o ^ D> (0 0) fl ■p o o ^ 3 « a 3 £ fl) o o • Ho fl)*'o 5 2,^8 c « *> o> c > O -H fl fl C B U Z O 3 3 O C U C fl ■P 41 U «8^ U « r. fl) O 3 I vi jc o a •H *» >,o p u c •0 a 0) .'C I 4) « I ^ C -^r 1 o o Pi H K v-i H 5 O SB ^ s: 4J-H if .p >,o. » o O r-l Xi fl) B ^- O 3 P '' 4) C fl j3 fl a ijP J3 o o C O 41 U

-H ■H > " 3 C ^fl •o-H y c 3 fl) 4 s. a O -^J^ < • 2 >' ►i" 0) 41 p cam u c o n x: fl) M a P .P Li ;<: 4) o c . 4) fl JZ Si V a o c (0 P o -^ C ^ I*. l^p "^ n fl Jr*j >, "la P 4) a Li jC 4) O .P P O Li 4J-P . 4) O O 09 a 0) 4) lA Xix: ox U fl « j3 I o O a 4) w •a 4) fl fl) r-4 0) >; •:< •a « « 4) £ O (0 P P-H c o O-H ap 4) fl u z c O rH O •H fl T-l *J-H fl fl U > z 41 a az O (0 f-i 4) « fl jC > t< fl a 4) 4) » £ Li 10 •P 4) U -P .p P B O h> Q „ Li U fl) a > fl) 4) n 4) U^ §''^§ Li ^ • o L4 ■ S sag (0 * p o c (0 a o £ «)-H a . z « JQ O (0 « c » *J >-H fl O fl £ 'H CZ P U 4) •O L4 O *i u 3 O o « > fl z Li O cu 1^ t1 p« pq ^ D u « D o Hi D o «» iJ O ta § X > o o > M o o n D o p< « o H H X H < o D O a o H U O pa X M o 5 H •J h E4 t: t* o £ D o H Pi O M o • H g Z Wi ct O g (< H Q g s o o PC OS O zl » o o X ij 863 f& H O - ^^\ - M fl Q z • (ffl j: H o o H ^^ |U :j i{ > (0 ^4 Sf S i: » < CO \ n J 1 • >4 o 09 (fy^& 5 <« ve H CO ^% \^~* o JL ^L V 5 0* \dA V« o s g ^S\ • u u \ 1 A| w u 1 ^iV '^-— py Bi H O tk X ^ '■'^ , - ... ; -\.YSt-T ■i S" '-"''■■■■ ^•^' u a a • 3 > £ O « ■p a>< 864 20 Luicolii Ave. Salamanca, NY 14779 Sept. 24, 1996 tlonorabie Slade Ck>rton Senate Select Cumiiiittee un Indian AfTairs 730 Hart Building Washington DC 20510 Dear Senator Gorton: I was born in Salamanca February 25, 1919 and have resided here all of my life, 1 married and raised 5 children in this city, and each is a contributing member of society. I served in World War II, 4th armored di\ision, with a full year of combat; landing at the Normandy beaches, traveling through Germany into C hekoslavakia where we met the Russians. I worked here in Salamanca at Fancher Furniture Company and McMillan Supply as well as a construction worker building stores, homes, bridges, and adding additions to factories in this city. I did not sign the 40/40/0 lease because it is clearly unconstitutional, takes away the ownership of my home and because of the sovereign immunity of the Senenca Nation of Indians, does not give me the constitutional right of due process. The Salamanca Indian Ixase Authority and the 1990 city government had no right to interfere with my property interest. They had no right to sign an agreement with the Seneca Nation about which I was never informed. If I had signed the lease that was offered to me, and then sold my house, I would still be responsible for that house for the next 40 years. I think that the government of the United States should be pi'otecting my rights as an Amei'ican. The only thing I want is a reasonable and justifiable solution to this issue. Vei-y truly yours. Nathan C. Frank '^qcM'.^c^ C.Ja**"^! 865 35 CzntJial Avenue Salamancoi, NV 14779 SzptambeA 12, 1996 SznatoA Stadz Goiton Room 730 HoAt Bidg. Wcuh-ington, VC 20510 VzoA Se.naLtoK GoAton: A4 homz ouMSA^ -in thz citij od Salamanca., NV , we have, bzzn adviizd that yon axz addA.QJ>^in.Q the. ■i'i^ae. oi SovzAzign Imtnunity w-ith >izgaA.dU> to Native. AmeAlcoM. Oat home -i4 i ovza the pait 4-tx yeoA^ with A.egaAd^ to the mo^t Kecent 40/40 Indian Leai>e, which we ieel i-i unconstitutional. S.I.L.A., a committee who-ie a^-iignment was to KCseoKch the upcoming lease when it was due, instead signed a lease on oua behalf, we. then JoA.me.d a Citizens Gfioup and to date we have spent oveA $300 thousand dolloAS and io^ what BECAUSE OF SOVEREIGN imuNZTV , we. nevzA had the opportunity to have oua case even heard. We ate senior citizens and we held out until the vexy last of^ieJizd signing. That was only because oua health has deteAioKated and we iust couldn't iace another day oi stAess. We had gone so iar as to buy a small trailer out of, the city limits and we kept our important documents in the trunk oi our car because oi the constant rumors... VOU WILL BE EVICTEV AWV VAV NOW BECAUSE VOU VWN'T SIGN THE LEASE. Instead oi enjoying our twilight years, we live with constant turmoil oveA the results oi this lease and our inability to solve the issue oi the Sovejieign Immunity. TheAe are still 16 courageous homeowners who have reiused to sign the lease; thejie are hundreds more home owneAS who weAC not able to hold out but who still ieel very strongly that the issue oi SoveAzign Immunity must be resolved. Our own iedeAaJL goveAnn^nt is now in the process oi evictions against its own citizens. IS THIS JUSTICE????? Anything you can do on our behaZi is vZAy greatly appreciated. SinceAZly, EVA g Harry Poole > cc: Senator Alionse P'AMATO SA.nator Vaniel PATHKK UOVNIHAN 866 Senator Slade Gorton September 1 8, 1 996 United States Senate Room 703 Hart Senate Office Building Washington, D.C. 20510-8450 Dear Senator Gorton: This letter is for presentation at the Sept. 24th , Senate Committee on Indian Affairs hearing, on tribal sovereign immunity. As president of the Big Horn Livestock Association, I would support legislation granting immunity to non-Indian citizens on the reservations. These issues of jurisdiction, taxation, tribal sovereignty and tribal courts on "Open Reservations" are critically different than on "Closed Reservations". The U. S. Senate Committee on Indian Affairs needs to educate themselves on the differences between "Open and Closed" reservations, before recommending remedies for both. The non-Indians residing within the "open" reservations, some homesteading, were granted that right by the U.S.A. They homesteaded, with the belief they were under the U.S. flag, under the jurisdiction of the United States. If legislation granted tribes on "open" reservations sole sovereignty, this action will put these non-Indian citizens under tribal jurisdiction. This would in essence, "abandon" these U.S. citizens. The way things are now, there is little or no law in these tribal lands. Nobody knows who has jurisdiction over who. Examining past tribal court rulings over non-Indian litigation in this county, the non-Indians were treated quite severely. I do not support "denying" tribal sovereignty, over themselves. But please give the non-Indian residents the protection state jurisdiction would give them. This is what their tax dollar provides for. Sincerely, Mnes Torske Big Horn Livestock Assoc. Hardin, MT cc Senator John McCain Senator Conrad Bums m^ ^9 \-.58 867 6353 NE Balzow Rd. Suquamish, WA 98392 360-598-4432 August 13, 1996 Senator Slade Gorton 730 Hart Senate Off. Bl WAshington, D.C., 2051 Dear Senator Gorton: "" i^^l ^'^ We understand that you will be looking into some of the im- pacts of congressional actions on non-tribal members living on fee patent land lying within the original boundaries of Indian reservations. There are so many such impacts that it is hard to know where to begin. One of the most obvious is the impact of the Indian Gaming Law which usurped states' rights to control gambling within their own borders. In spite of all claims to the contrary, Indian tribes are allowed to operate under conditions unavailable to any other citizen. They are allowed to flout state laws re- garding health and safety (i.e. food service, sewage disposal, fireworks, etc.) even though they are catering to the general public. When tribes transgress the condit the federal government makes no e bility. This is partially due to the bogus claim of sovereignty, authority to unilaterally alter o It is high time that they declare over the whole country. The trea in fact include the agreement of Courts treat all Indian treaties even though they obviously are no ions of their mandated compacts, ffort to uphold its responsi- Congress's failure to address Congress has the power and r even abrogate Indian treaties, d the sovereignty of Congress ties negotiated by Stevens the tribes to be dependent, as though they were the same t. Tribes such as the Suquamish which allotted land to tribal members (by treaty agreement) were then allowed, with the approval of the federal government to have their land taken out of reserve to make it available for sale to any buyer. Now the tribe claims jurisdiction over that land and its owners by declaring that it is still reservation even though it is not reserved. This becomes the basis for claims of water rights, zoning rights, civil jurisdiction, etc. ad nausium. 1 - 868 Senator Slade Gorton August 13, 1996 Page 2 We are constantly being confronted with "deals" or agreements made with tribes by unelected bureaucrats on both state and federal levels without the knowledge or consent of the legia- lature or congress. At the state level are such arrangements as memorandums of agreement or understanding between PUD officials and tribes or DOE and tribes. At the federal level we have such fiascos as the EPA granting state status to a tribe in Wisconsin without the consent or apparent knowledge of the requirements laid down by the Supreme Court in South Dakota v. Bourland, Brendale v. Confederated Yakima Nation and Montana v. United States concerning "consensual agreements" and they are being snowed by tribal attorneys. Another sore point that is becoming explosive is the question "Who is an Indian?". As tribes expand their memberships with more and more people with less and less Indian ancestry attract- ed by the tax-free living and millions of dollars in grants and special programs, other citizens feel the extra burden and will eventually revolt over the inequity. It is one thing to support real Indians, but it is quite another thing to support free-loaders with less than one-quarter Indian ancestry. We have spent thousands of dollars defending ourselves against unfounded claims and lawsuits brought by the tribes and the justice department over the years all because of the failure of Congress to address these basic issues. Billions of tax dollars have been expended and all that has been accomplished is a proliferation of the problems. Congress must seek a solution! Sincerely, Virginia Whiteley William H. Whiteley 869 PO Box 54 1995 • ^ ">PS1 Bellingham,WA 98227 Augusts, 1996 VVi US Senator Slade Gorton , " . , ..* ; M*" - Attn: Nina Nguyen * V'""" 730 Hart Senate Oflfice Building \ Washington, DC 20510-4701 • Dear Senator Gorton: 1 am writing to request that you consider helping eliminate the status of sovereign immunity for Native American tribes. It seems to me that the efforts to provide special privileges to the Native American tribes because of past wrongs should now be over. Apparently, ail of the special privileges have not produced the desired results anyway. As a group, the Native Americans are being devastated. The rate of substance abuse, familial dysfunction, illiteracy, lack of achievement, and dependence on welfare for survival have made the once proud Native Americans little more than a group of sniveling wards of the state, for the most part. For a group of people to exist in this manner is an embarrassment and an insult. I have lived and worked with Native Americans for more than 25 years I have seen, first hand, the effects of "protection" offered by the United States government. I realize that the support cannot just stop abruptly. However, the weaning process must begin sometime and part of the process involves making the Native Americans accountable for their actions. As long as the Native Americans are not held accountable for their actions, the quality of life of average tribal members will continue to decline. If a Native American tribe opts to be a sovereign nation, that sovereign nation should be required to, at least, pay its own way. With the government opportunities offered to tribes of financial assistance for business ventures, gambling casinos, industrial development, etc., there should be no reason for a welfare state to continue in Indian Country. 870 In all honesty, a very compelling reason for my interest in cutting off financial support to Native American tribes is that my own tax dollars end up being used against me As sovereign nations, the Native American tribes cannot be sued, but they can sue and create legal roadblocks for non-tribal people. My taxes end up supporting these efforts and some of the efforts are aimed directly at me and intended to do damage to me and mine Where 1 live, on the Lummi Indian Reservation, I am the target of discrimination Efforts are being made to devalue my property and force me from my home through intimidation, threats, and actions that I, as a non Lummi, would surely have to answer to the government for Outright statements of racism have been made by the Lummi tribal leadership I have not even had the courtesy of a response to letters I have written to the Lummi leadership and the BIA about my concerns. Once again, these are the entities that are being supported by my tax dollars. I believe that the status of sovereign Imir.nrAty hzz created this mentality for doing business in the Native American leadership. This is 1996. Enough time, money, and energy has been devoted to "helping" the Native American people become productive, self-sufficient citizens of our country. Now let's change our approach and see if a difference can be made before it's too late. Ron Feiger 871 l996Aii:>27 August 19th, 1996 08 lOC^" Committee of Indian Affairs Senate Hart Office Building Constitution Avenue, 2nd Street, N.E. Washington, D.C. ^^- .^^ Mrs. Jean Saw, 3791 Sinclair Drive, Ferndale, Washington 98248 Dear Sir/Madam; My husband and I bought our primary residence at Sandy Point Heights 24 years ago. We also purchased an adjacent property 14 years ago. These properties unfortunately lie within the Lummi Indian Resen/ation Boundaries. My husband passed away 2 years ago and I can no longer afford the taxes, nor the sewer fees which are paid to the Lummi Nation, on the adjacent property, however, I am prevented from selling because the Lummi Indians will not allow me to have water provided by federal funds! I am pleading with you to please remove Sovereign Immunity before I am forced to sell my home. Yours sincere! Irs. Jean Saw CC: Governor Mike Lowry USenator Slade Gorton Senator Patty Murray Representative Jack Metcalf Representative Pete Kremen Senator Ann Anderson Representative Gene Goldsmith Senator Harriet Spanel 872 Herbert E. Nelson "56 4;jj 23 ' i-m Director, Quinault Property Owners Assn. "" '• lO 1371 Olympic Street Aberdeen, Wa 98520 August 20, 1996 Honorable Slade Gorton S- 128 Capitol Building . Washington D.C. 20510-6025 » v>S/J Subject: Non-Indian property rights on Indian Reservat Dear Senator Gorton: ions.// ^ I noted with interest that your proposal to allow non-Indians to take Tribes to State Courts to resolve private property issues was jettisoned +rom the Interior Departments -funding bill. There Are about SOO fee patent land owners on the Quinault Indian Reservation and the Tribe has zoned our recreational property "Wilderness", meaning literally NO-USE! The Allotment Act o^ 1887 (a Congressional Act) provided ^or the allotment of Reservations to the individual members of the Tribes involved. The fish eatings tribes of western Washington involved in the Quinault Reservation elected to allot the entire Reservation to the members o-f these tribes. As time passed many of the allottees on the Quinault Reservaton took their fee patents out of trust and sold these properties to non-indians and they went on the States tax rolls, and it seems then should be subject to State jurisdiction. If Congress is not willing to recognize we non-indian land owners by putting our lands under the control of the States then the Federal Government should provide the funds to purchase these properties and return them to the Tribes. After all Congress provided for allotting the Reservations and creating the dilemma we find ourselves in. Either pass provisions to establish our property rights or allocate funds for the purchase of these properties. As i t now stands we fee-patent land owners are being discriminated against. sincerely, Herbert E. Nelson 873 August 20, 1996 1996 fcuo i . 27 ... l^ 09 SENATOR SLADE GORTON 730 Hart Office Bldg. Washington, DC 20510 a/^TJ^ We certainly hope the Senate takes the lead in waiving Indian Tribal Sovereign Immunity. This is an issue that must be resolved. Everyone in this country oust be held accountable for their actions. We are having our water supply threatened, our road use is being threatened, we are being kept from enjoying our beaches, we are being threatened and intimidated with law suites, and we are being illegaly taxed (this is keeping us from enjoying natual gas service). All of this from the Lummi Indian Business Council. The really hard part of this scenario is. We can not help ourselves. We can not stop it. Tribal sovereign immunity precludes that. We truly and fervently hope that you folks in congress are about to chsmge that. Thank you very much. Sincerely Nickie Trumble Robert L Trumble Jfaso Beaoh Way Femdale, WA 982i»6 874 Mr. and Mrs. Dale V. SaThus, Sp . HCR-1 8ox 338 IncheHum. WA 99138 (509) 722-3421 Fax (509) 722-3529 Senator Slad« Gorton 10900 NE dth Street Suite 2110 Be11evue, MA 98004 Dear Senator Gorton: ^r August 12. 1996 ^ In August of 1995 triy wife and I purchased a home and 32 acres of land in Ferry County, Washington. This is our life dream and we put everything w© had into it anticipating a pleasant and secure retirement environment. Upon redeiving our deed, we found we ar9 subject to terms and conditions of Land Use formulated by the Confederated Tribes of the Colville Reservation and to conditions contained in the Intergovernmental Land Use Planning Agreement of 1993. We have fee land title, pay our taxes to Forry County and are registered voters in same. By owning our property outright, we thought there would be no encumbrances. Enclosed is a copy of our deed showing these. Now we find we cannot even hunt or fish on our own land and arm subject to laws and regulations of a Jurisdiction in which we have no representation or voting privilege. Our propmrzy rights have been infringed upon! Where arm our Constitutional rights? We have no 111 will for the Indian and do not believe in violence as a way of settling anything. Laws should be made to encourage peace and harmony. However, 1t is regulation? and encroachments of the type we see being perpetrated in our County that foster ill will and violence. We want the rights and privileges that our Constitution and 14th Amendment gives us and we appeal to you to represent our concerns at the hear-fngs in September. Enclosure: Deed Respectful ly . OaTe dnd/^arjory Salhus 875 PILBD TOR RECORD AT REQUEST OP: V'..^ (( )) ' r--' V/ SkDk * MnnmniA. P.S. P.O. Box 6 Chmciah, WaAiogttMi 99109 DEEDOriKUST (Par Uae in the Suie of Wutui^toB Only) THIS DEED OF TRUST, madt this ^ day of Augitat, 199S. bttmm DALE V. SALHUS, SR. ami MARJ(»Y M. SALHUS. husband and wife. GiaitfOT, whoae addien U 1S2S3 S.B. ITlit Place, Rcaloa, WaAii^m 98058. TICOR TITLE INSURANCE COMPANY OF CAUPORNIA. a corponiioB, TiiBttc, whoae addfCM is P.O. Box 349. Colvtlle, WaAiogton 99114, and WESTERN PACIRC TIMBER, L.L.C.. an Oiccoo liniiHl liability company, Bcacfictafy, whoac addreas ii 1 14 SW Secood Aveaue. PnttUnd. Oiegaa 97204, WITNESSETH: Otanlor betcby barnaina, aeUs and ooovey* to TiuMoe in Tnitt. WITH POWER OP SALE, the fbllowia« described ical prapetty in Ferry County, Waritington: Thai pan of the W 1/2 of the NWl/4 of Sectioo 14. Townhip 30 North, Rai^ 3S Eaal, W.M.. lying and being Notth of the Wltanooi County Road No. 47. EXCEPTING Ihei cft iM the right of way for Wihnoot County Road No. 47. SUBJECT to the temn and conditioaB of the Land Uae fomulated by ttie ConCedemed Tribca of the ColviUe Reservation a< per recorded document mBbers 189434, 189433 and 190106. SUBJECT to Colville CoBfedmnd Tribes Reaohidon No. 198S-20. SUBJECT to die terns and conditions contained in dte latergoveranenial Lead Uk Planniag A gr eement filed July 1, 1993 under Ferry Couory Auditor's Pile No. 234624. SUBJECT lo right of way iM f i w i a . inchiding dK iems and c u n di t i o f thenof, as itown or rrcord under Auditor's File No. 120402. Whidi real propoty is not used principally for agrtcutaioi or Euming purpoaes, tofether widi all hfirditsiHrBts, and appurtenances i»w or hereaAer tfaereooto belo^ng or in any wise qyttini»g,anrt the icnu, Msncs afld profits thenof. This deed is for the purpose of rrwing perfonnance of each a gr e eanat of graaur bereia conttinnd, aad paymeni of ttK sam of Fony-Thrce Thousand Six Hundred Dollars ($43,600.00) with iaterat. in arrordanty with IfeB lerBS of a promissory note of even dale herewith payable lo the B«iM6ciary or otdsr, and aside by Grantor, aad all mrwals, madificatiaas aad aiensioiH thereof, and also snch iiinher sons ss aaqr he advaaced or loaaed by Benefidaiy to Oraator. or any of dKir w irfrM o rs or assigns, together with iiSMeai thereoa si such ntc as shall bei DRDfWmUST PAGKl 876 August 8, 1996 1996 AU:, 12 ^'^ & 55 SENATOR SLADE GORTON 730 Hart Senate Bldg^ Washington, DC 20510 We wish to thank you members of the Senate for having the hearing on waiving the sovereign imiBunity of the Indian Tribes, This waiver is badly needed and long overdue. We fee land owners are harrassed, threatened and intimidated by the tribes in many ways and tribes cannot be held accountable for their actions like all other Governmental entities and we citisens. The Lummi tribe has levied an unconstitutional utility tax on us and we can not take them to court to prove that it is tax- ation without representation. You and Congressman Jack Metcalf seem to be our only help in congress but you are hamstrung. If tribal sovereign immunity were to be waived, perhaps we would be able to solve some of our own problems with them. We do not like having our water supplies threatened and we do not like being intimidated on our own beaches. Please do every thing in your power to see this thing through. Thank you again for all of your efforts on our behalf. Sincerely Robert L Trumble Mickie Trumble 4850 Beach Way Femdale, WA 98248 ce« Citizens Equal Ri«kits Alliance Inc. 877 August 12, 1996 Senator Slade Gorton 10900 NE Fourth St. Suite #21 10 Bellevue, Wa. 98004 RE: Swinomish Tribe LaConner, Wa. Dear Senator Gorton, Your file contains numerous letters fi-om my wife and me and also fi-om some of the other tenants on the Morris Dan Tract with respect to our attempt to purchase the land on which we reside from the Indian land owners. Although 1 1 of the 14 land owners have agreed to our offer, the BIA and the Tribe have coerced and convinced the 3 remaining not to sell. We have undergone this type of harassment since we initiated the offer to buy in June of 1995. The other on-going struggle as you are also aware is with the BIA and the Tribe over the horrendous increase in lease rents that have been imposed on all of the Tenants in this area. This prompted the formation of the West Shore Tenants Association [WSTA]. As the sale is currently being blocked by the BIA and the Tribe we have broadened our energies to force the issue on the rent factor and other associated wrong doings such as the imposition of a Sewer System charge which in its self is fi-audulent. Here in lies the problem. We Tenants are not allowed a voice or representation on any of the decisions the Tribe and BIA have made to impose these charges. It is akin to taxation without representation! What makes matters worse is that the Tribe considers itself a Sovereign Nation and accordingly claim Sovereign Immunity, blocking any avenue we have to assert legal action. Every day we 878 see projects going on - on the Reservation paid for by our tax dollars that seem in some ways a waste of these tax dollars. If the Tribe declares itself a Sovemeigh Nation, then let them stand alone and cut or hold ofif funding until they act responsibly. We need your help. Senator Gorton and we need you to inform your colleagues of the injustices we are experiencing. The Tribe & BIA opened the Reservation to Tenants at reasonable rent rates. Now we are trapped by increases over 500%. We have lost our equity, we have no representation and we apparently have no legal recourse. We are in a Foreign Country funded by ourselves!! Very truly yours. -Co Stewart Wright PO Box 1069 LaConner, Wa. 98257 879 Mandan, Hidatsa, & Arikara Nation Three Affiliated Tribes • Fort Berthold Indian Reservation HC3 Box 2 • New Town, North Dakota 58763-9402 September 23, 1996 TRIBAL BUSINESS COUNCIL (701)627-4781 Fax (701) 627-3805 Senator Daniel Inouye Vice-Chairman Senate Indian Affairs Committee SenatEuHart Oflfice Building, SH 722 >VimMwRton,DXL^0510 Re: Statement for the Record Concerning Hearing Before Senate Indian Affairs Committee September 24, 1996 Regarding Sovereignty of Indian Tribes and Nations Dear Senator Inouye: On behalf of the Three Affiliated Tribes, the Mandan, Arikara and Hidatsa Nations of the Fort Berthold Reservation located in northwest North Dakota, we greatly appreciate the hearing you are holding regarding the sovereign status of the Indian nations and tribes within the United States. It is our understanding that this hearing came about because of the fear of some members of the Senate Committee on Indian Affairs and other members of Congress that Indian tribes were taking advantage of their sovereign status and asserting their "sovereign immunity" inappropriately . The implication of at least one amendment to the Interior Appropriations bill seen by the tribal governments is that the tribes were, or would likely be, shirking legitimate financial responsibilities to local, state and federal governments. This statement is meant to dispel the fear that tribes, and in this case, the Three Affiliated Tribes, are acting irresjxjnsibly with regard to the exercise of their sovereignty. We are hopeful that your hearing as well as this statement will begin to dispel many myths and misconceptions that have been created in recent years about the nature of "tribal sovereignty", and "sovereign immunity", and will begin to show the relevance, and in fact, the usefulness, of tribal sovereignty as we approach the 21st century These comments are submitted for the record of your hearing on behalf of the Three Affiliated Tribes. It is my understanding that they will be made available to the entire Senate Indian Affairs Committee. "Sovereignty" defined simply is: "The right of the people of a nation to govern themselves." This is a right the Indian nations of the western hemisphere enjoyed for millennia prior to the arrival of the European. This is a right that was forcibly taken away from the Indian nations during the past SOO years. 880 This general sovereign right of the Indian nations to govern themselves was guaranteed for many tribes by treaty, including the Three Affiliated Tribes in the 1 85 1 Fort Laramie Treaty While the boundaries of the Fort Berthold Reservation set aside for the Three Affiliated Tribes were reduced by statute following the Fort Laramie Treaty, and, in fact, in violation of that treaty, the right of the Three Affiliated Tribes to govern themselves within the reservation boundaries generally was not affected by such legislatioa Today, as tribal governments are acutely aware, the remaining Indian nations in the United States have been defined by the United States Supreme Court for more than 1 50 years as "dependent sovereign nations". The meaning of the phrase "dependent sovereign nation", as the attorneys tell us, is subject to Congressional interpretation because under United States law. Congress retains full power over the affairs of the dependent Indian nations, if it v«shes to exercise such power. The key element of the power of Congress over the sovereigns status of the Indian nations in the United States is that in general, the hidian nations may exercise such sovereign rights as Congress, or the Supreme Court, has not taken away. It is this fundamental doctrine which led to Indian gaming and which is now also leading to a tremendous increase in economic activity on the reservations of many Indian nations, directly benefitting the Indian and non-Indian people on, and in many cases, off the reservations. For example, the Three Affiliated Tribes owns a full serviced casmo and lodge, which it will soon be operating on its own, owns and operates an electronics firm, a radio station and newspaper and a construction firm, among other Tribal entities, all of which contribute amounts in the tens of millions of dollars to the local economy. As a part of their governmental development, and in the exercise of the sovereign right of the Three Affiliated Tribes to govern themselves, the Tribes have enacted a complex set of lavre and established a Tribal court in which many types of disputes may be heard. Not only does the Tribal Court hear the usual criminal and civil suits between Tribal members, but it also hears more complicated commercial disputes. For example, as a matter of law, the 8th Circuit Court of Appeals, in the case of Bruce H. Lien Co. v. Three AffUiated Tribes, et al., on August 28, 1996 ruled that the Tribal Court was the proper forum to initially hear a dispute between the Tribe and the company which is managing its casino about the validity of the management contract between the parties. The Court ruled, in essence, and consistent with the U.S. Supreme Court's prior rulings in a number of decisions, that the Tribe had the sovereign right to have disputes which arise imder its own constitution determined in its own Tribal court. Thus, in the commercial setting, and in its relations with the state in which it is located and with other states, and, indeed, even with the United States government, the Three Affiliated Tribes expect to be treated no less equally that any other foreign country; that is, it expects commercial and governmental disputes arising out of transactions which occur on the reservation to be determined in its Tribal Court. But the tribal government is also sophisticated enough to know that in order for substantial commercial activity involving the Tribe to take place on the reservation, it cannot hide behind a shield of "tribal sovereignty" as it enters into multi-million dollar commercial ventures. Like most tribes, therefore, in order to participate in various commercial ventures, the Three Affiliated Tribes has found it necessary from time to time to waive its sovereign immunity, the waiver limited to the amount of the capital borrowed. Also, like most other tribal governments that are now actively developing their local economies, the Three Affiliated Tribes is rapidly developing its tribal laws to be able to handle more sophisticated 881 commercial transactions, both for the benefit of Tribal commercial entities and for its members. The Tribes fully expect that over time, disputes arising from commercial transactions on the reservation will be decided in Tribal court, rather than State or F^ral court. For example, in North Dakota, tribal financial planners and other tribal leaders have been actively meeting with North Dakota bankers to determine how best to make capital available on the reservation, both for tribal projects and for the benefit of individual tribal members. The tribes have understood that development of their tribal commercial codes is essential for the financial community to have confidence that any disputes that arise regarding transactions taking place on the reservation will be decided under a commonly understood set of legal principles. The sovereignty of the Indian nations has also provided special opportunities for economic development because the Indian nations are not generally subjected to state, local or federal taxation. Many tribes, including the Three Affiliated Tribes, have therefore established their own tax system - an illustration of the doctrine that if Congress has not exercised its right to limit tribal sovereignty, the tribes may exercise it. But exercising such sovereignty in the commercial setting brings with it special responsibilities, which the Three Affiliated Tribes understand fully. For example, the Three Affiliated Tribes is contributing a substantial amount of funds to the local Ambulance District, which serves many Tribal members, and which is also partially dependent for its funding on local property taxes to which Tribal members are not subject. The Three Affiliated Tribes has entered into various cross-deputization agreements with local law enforcement agencies to allow more uniform law enforcement. It has also entered into a number of self-determination contracts with the Federal govenunent, which contain a limited waiver of sovereign immunity, and the resulting local control over these governmental functions not only contributes to the local economy and provides essential services, but also again contributes greatly to a responsible tribal government. To put it another way, the Three Affiliated Tribes believes it is in the best interest of it members to cooperate with the local, state and Federal governments as each attempts to provide various governmental services and fulfill vital govenunental functions. There is simply no advantage for the Three Affiliated Tribes to avoid its govenunental responsibilities by failing to work with other governmental entities to solve conunon problems. We firmly believe that tribal governments nationwide are also similarly situated. We strongly resist any notion that our governments lack the ability to act responsibly in the modem business world in which we find ourselves. As Chairman of the Three Affiliated Tribes, I firmly believe that our tribal govertunent, with its unique advantages, is well on its way to meeting the challenges of the 21st century as a vital part of a growii^ economy, both locally, state-wide and nationally. ours. ell D. Mason, Sr Chairman Three Affiliated Tribes -3- 882 EXECUTIVE COaUITTEE EARL OLD PERSON. CHAIRMAN BERNARD ST GOODARC, VICE-CHAiRMAN ROLAND KENNERLV. SECRETARY ELAINE QUARDIPEE. TKEASURER BLACKFEET NATION P.O. BOX 850 BROWNING, MONTANA 59417 (406) 338-7179 FAX 338-7530 BLACKFEET TRIBAL BUSINESS COUNCIL EARL OLD PERSON BERNARD ST. GOODARD ROLAND KENNERLY HARLENE BEAR-WALTER TED WnXlAMSON ARCHIE ST. GODDARD JIMMY ST. OODOAHD GABE GRANT CARL KIPP September 20, 1996 Senator Daniel K. Inouye United States Senate 722 Hart Senate OfiBce Building Washington, D.C. 20510 Re; Position Paper on Civil Jurisdiction on Indian Lands Dear Senator Inouye: Enclosed please find the Position Paper of the Blackfeet Tribe on the above topic The Position Paper sets forth the views and perspectives of the Blackfeet peoples and is representative of the collective thoughts of the Blackfeet Tribal Business Council. Feel fi-ee to share this Paper with other members of the United States Congress. Thank you very much for your consideration. Sincerely, Earl Old Person, Chairman Blackfeet Tribal Business Council 883 EXECimVE COMMITTEE E«RL OLD PERSON. CHAIRMAN BERNARD ST GODOARO, VICE-CHAIRMAN ROLAND KENNERLV, SECRETARY ELAINE QUARDIPEE. TREASURER BLACKFEET NATION P.O. BOX 850 BROWNING, MONTANA 59417 (406)338-7179 FAX 338-7530 POSITION PAPER ON CIVIL JURISDICTION ON INDIAN LANDS BLACKFEET TTtlBAL BUSmESS COUNCIL EARL OLD PERSON BERNARD ST GODOARO ROLAND KEKNERLV MARLENE BEAR-WALTER TED WILLIAMSON ARCHIE SfaODOARD JIMMY 5T (iODDARD GABE GRANT CAPLKIPP The Blackfeet Tribe has been involved in many matters regarding cixal jurisdiction within the exterior boundaries of the Blackfeet Indian Reservation. These matters include but are not limited to environmental issues, taxation, civil litigation, reserved water rights, mutuality and enforcement of state and tribal judgments, and natural resource use and management. The Blackfeet Tribe has litigated many of these issues all to the way to the United States Supreme Court in order to protect the recognized sovereignty of the Blackfeet people. Indian tribes of course do not exist m a geographical and political vacuum, and it is important that the rights of ail residents of Indian country be protected and preserved. However, it is of equal importance that the sovereign status of Indian tnbes be recognized and respected. The Blackfeet Tribe has always attempted to accommodate Tribal members, non-tribal Indians and non-Indians in its governmental and non-governmental interactions with these individuals. It now appears that a direct attack has been launched against the authority of Indian tribes to exercise jurisdiction over certain of these parties and to basically erode any notions of Tribal sovereignty which have been the foundation of the continued existence of Indian peoples for centuries. When non-Indians initially encountered Indian tribes and Indian peoples, they had no notion of how to deal with these native peoples There was simply nothing in Anglo-Saxon jurisprudence to dictate a methodology by which to deprive the native peoples of ownership, occupation and use of their lands. Therefore, the treaty became the mechanism by which the non- Indians could accomplish a means to an end, namely remove from the native peoples any claims to the lands to which they held aboriginal title and provide for occupation of the same lands by non- Indians. Treaties, despite their inherent solemnity, can be best viewed as the formation of a contractual relationship involving an offer, an acceptance and an agreed-upon consideration. A review of treaties and their provisions gives an individual strong indications of the efforts which non-Indians exerted in depriving native peoples of their lands. The provisions of treaties always set forth that a particular Indian tribe was "reserving" onto itself certain lands and/or retained rights of use, and that the remainder of their aboriginal lands were being "ceded" to the United States Government Other provisions of these treaties provided for monetary consideration, guarantees of educational benefits for the Indian children of the tribe, supplies of food for the entire tribe and mutual respect for the boundaries of the Tribal "reservation" which was very specifically described by the United States' surveyors It must be emphasized that all too often during the negotiations of treaties, the native peoples did not speak the English language and rehed upon translators and interpreters provided by the United States. 884 Our ancestors were undoubtedly wiser than we, as they could great steps while dealing from a position of definite weakness to ensure that modem-day Indian tribes would have a geographical base of support to rely on as they in turn provide for their tribal members. Now, the very nature of treaties and treaty rights is being undermined, when treaties in fact represent the machinery which guaranteed the existence of non-Indians within this nation. Indian tribes have struggled long and admirably through the courts and via the legislative process in order to continue their existence. Tribal authority to levy taxes upon non-Indians doing business on Indian reservations has been litigated in various scenarios, as has criminal jurisdiction, water rights, employment preference, gaming, environmental regulatory authority and general land use management. The end result has created a maze of jurisdiction, when in fact Tribal governments are entitled to and capable of exercising the necessary civil jurisdiction over all residents of Indian reservations and Indian country. The technical and communicational skills of Indian tribes has increased dramatically in the past decade, and it is clear that Tribal governments will continue to enhance the qualitative delivery of governmental goods and services to all residents of Indian reservations. In the final analysis, it is to the advantage and benefit of non-Indians to work with Tribal governments, since State and local governments can provide only so many services to non- Indians because their limited budgets. On the Blackfeet Indian Reservation, the vast majority of Reservation residents are members of the Blackfeet Tribe. There is a significant percentage of non-members residing on the Reservation, most of whom rely upon the Blackfeet Tribe for governmental services such as law enforcement These permanent residents pay little or no monies to the Blackfeet Tribe for these services by way of taxes, fees, assessments for water use and other methods of revenue generation by the Tribe. They also utilize the Tribal courts for dispute resolution and do not pay for these services. The point is that there is often no alternative for all Reservation residents but the Tribal government when assistance is required. The historical continuum of treaty enumerated rights and contemporary exercise of those rights by way of Tribal governmental authority and jurisdiction has created a method by which Indian tribes can exist peacefully and with a foundation of strength. The United States must recognize the legal, practicable and fimaional validity of Indian tribes and continue to live up to its obligations of trust and fiduciary. The native peoples of this continent are entitled to this consideration as they search for a harmonious relationship with all peoples of this worid. The Blackfeet Tribe strongly urges the President of the United States and the Congress to recognize the rights, power and authority of Indian tribes to fiJly and completely exercise civil jurisdiction over all lands, transaaions and disputes which are located and occur within the exterior boundaries of the Blackfeet Indian Reservation and other geographical areas throughout the United States which satisfy the definition of Indian Country. 885 fO^W*^' mad» tkit, a cotmAjf vf ^juaL, ,%m» ^f*«al sAati^ Aeue^ i^Mt^kt Utt^ ib ft^tfoun i^ kumai laiou\ fU dm ittildin^ of oti^ *aUi9a^ Slt^Aatm gttMtm ib ie g*eatt/ m«nt.- S«ki ofA*^ cotmn u n Up . ^>0(^ Aatm noieiJIuKl^ not t^icMf^ait^ ^u>cia/ UaAt^ ot^u»- iledg^ 'i¥et ike^Aatfe nianlainetl tktiU Medad a^ iinettUotai ^* ftuteika/u aU i^ na/iona/i£i» iAat AaiM! ^AoA^ iandlbietkiiU ^^ComiiAti*»^ %C%oi^ML &Ai^Uingt^m»tbif»«ftouUofi/u^iea^ ,^/ind^Aa/ iAsiti i^ ontt /aU iaOlif ib 4e £au^A/db4un^alli^^iMdundoioneyt«at ^benuwMiictAfaiio^ 3km ^ueUion of ,Voi»«t- ieg/n i'fmmundff.fut a. i/kecia/fmtt t^^ntmuoani^ A UAmikti tttfouiof %amioe/tA kan^in^ o«w* outkfiadi. ,^f.^ma^.9u¥i€ddli^elb*m/uMib^ouamM»cfi^iuiaiideiof£kfi,%i<4it- ei^ ,^nt mu. ni i^ ^iSoin. (^ tke^ittvfacii ii iound^ likii a f%«a£ , Moikt^Jwod and ,j4ft^ .Slfe caM« of ik» ,9ndian jViUion^ ,^ ma^ ^i^m ikem ee^ladn fuiufeV^ /b go*>«tn ik^mtiedtn^ r9t mof g^ a feat tAaiim ,9ndiimi> in ik« ftMftet fUacei , nwte^etMt. ,^ ieundi g^tea/ fo* ionui, kU you aw oiii^«dib coniidet ike wkolf of ike JVaditm ifeofUei. ,4i ftMient, many nati^ f»eojfU» ka^. no iecouue ftt inMguiiie^ ikaika/i/utn on ike iit«ieu»aiion, 4ecau^ tk^ katm ibao 4ef>te ikei* oum ikikal co€t\i^ and ik^Ao ikaikamit ike futuHit in ike Suka can keefi oikeii in a iukieti^Hii'f ftnUion. Hkeie a\e many caiei ofiki^ on tecotd and if ikeie fteofUe kadike iante ofifuAiUniiy fo* ^^iAtinn ika/Mte .fimeticam ka^te, ikey unxUd ie msdek ieUfitoff .j4lony ufiik ikii ,9i>tmteiyn ,^mmunity corned a lotofoikut kayyaye ikaiii conitaMy ibikmconUUuiionofike'4lniied ffiaiK/^ i^ fzct ikaiikey do noi keum £a 4e acniuniakln fU ikeit arUoni kefoie a f>ou*i of ^£aut like ike teUofuA. '^(ken me ran Me ike ^¥iiAU- deni andoan'ii44e and .Indian leemieA one to utondet ofkat 'Jlocket ,%ientiU deUyned ikdu /kkik^tky. ^Mken ike meat ik^eattfa Wxu* .Vuitoan Ubfi a yM>etnmeni fom enfueiny i& kykmtu, 'Wken ikey eon ikteatem atkole commdutieA ky diyyiny an iUeyai umJI floie ib ou* motet MftfUy and atlemfUiny to dtadn it eloum to a danyetoM letiel ,^m/u>iiny taare^ mitk- OiU ttftteteniation. ijken to ikteaten ta take out fMmetty, UKtkout comft^nuOion, enouyk i^ 886 iA» &'«coiui ^£la^ ^€Ui^et%^ %oA U tmioH ikai onl^ ic*n» cf ui Jtatm ia totUiiiuiB ii> ifu> iEiftU^ iAatik* i^MitiM^ tittmtibimfuAtof/Ai^ttaiioH. ,^ A-^>»i^ eeu^ ^ iAois t»Ac Aatm -MO co*Uaet»i>iik a tui« thrive (ifi. 44HmoB ib 4^ tUmattd^ o^tke £U i«^ 'MtU4Aci*c/ui wAc Sc44^fAl lant/ *H TEE SIMPLE * wiiAin tit4i idundatiei o/h 44tU*iMU&>n a*s ieinahut 4n an it%4et»tMe UAia/io tt. '^i^Aen ute iougAi ou*^ ft^oftMiiei iu>«iUp /i^Mu ^etUA tMc, t^e «MM« letuiio 4e^eMm «m Aadi«cuutu *h dk* S^a$i»^ c£4k»i land. '^tle'Aa^e /uud ou* laaun £m. all ike^ ^«ti*^ a*tJ imftumeel otu ftMfieU^ J\foi» di^ eleckU il»«^ iifamt it iae/k tutel uttf 4eca44ie U A ^keitif lk4Mjf tAmt Aatie lb ^a^ £^ *L f^ iA*i utAai f^mtmtito ^a^Jo^ <>to eoun- ^^ fjo uiU% Aeedotn So* e v oi^ ioei^ iui «ne, So MctAaim ilie aS i / i l it ib iJa/U £d\ fKM **oA/^ *n a cott%i of ^Sam ointMfiee%^ ,0ft*a^ 4b ^QbJikai^ou iiUll Aatm iftB fo*ii^kt ib a* «fAe*m iAA ,VcvttU t)^ .9nunu- nii^ miUia/fe i^A t c u n ik u. 3k« ,0ndian 4iMllo*»lu m un' t m i^ 4ee e tm*mu»%a ^a*i €)/iAt> £iiue cf iAA g^t*ta/ naOot*. 3te tat* nuutUcuH AA li«u£aa» and euiiom^ iiim ciA** MstU ntanna- iionoiUiiei 3€b Mtdi iAen aet iaeA AA H/^id*.. 36^ iMliiA»A A» oAlg ib iaAb eul^ianiaatt c/iAti p**ai c^ M A iMM ^ oimdaAle «w iAeA oMai land initbad o£ iA^ cbtn At ti o/iAtt i^teHt^nMUion. 3€b 4»ani^ *'**^ ^ ^ eux^ied and Aa*is iA* *^Ai^ ttud Aeedonii c/iA* naUon ai a -tttAbln and to db ,^. ^^Umiedofe uidl acAitme iAaig^oal • 9b»mAledit>e *mU oiU i**0Bmnd fad. ifow»* c i ^ t^ m m iiMiY^ A nciiAm amitve* and n mm e i MBU4iL i^ -^cd^ ^ai*, ^o* iAb ,^ndi€tn& ^oAb and fU ,A(^f .9es arising out of an Indian self-determination, Public Law 93-638 contract. Furthermore, the White Mountain Apache Tribe, in its dealings with national banks, has negotiated limited waivers of sovereign immunity for commercial and business purposes However, this is done on a case by case basis and taiksred to the indivklual needs of both the financial institution and the tribe It has wor1 Dear Senator John McCain and members of the Senate Indian Afrairs Committee, I am a FEE Land porperty owner, within the boundaries of the Lummi Indian Reservation, located near Bellingham, Wa.. I have been a full time resident for 6 years During the last two years I have seen what appears to be a serious increase in very aggressive actions taken by the Lummi Indian Business Council and its' Chairman Henry Cagey, directed at non-tribal residents, who are property owners and tax paying citizens I beleive that this increase is caused by the fact they are not being held accountable for their actions. Some of these actions have been. 1 The drilling of a non-permitted large capacity well on a FEE simple residential lot, in violation of county and state regulations as well as in violation of a county stop work order and within 100 feet of a long existing, community water association well that provided water to trit>al and non- tribal residents as well as water to a tribal fish hatchery 2. The threat of closing down a county public road to non-triba! users 3 The threats and implied threats of lengthy and cost prohibitive legal action against any person company or government body that opposes their current position Examples of this are the change in position fo the local PUD offer to bring off reservation water in to supplement existing v/ater supplies and the reluctance of the Corp. of Engineers to RESTORE the entrance of the only SAFE HARBOR entrance for miles. The above are a few of the actions that cause me to urge you to remove sovereign immunity for Tribal Governments just as it has been removed for the Federal Government and the State Goverments. I belieive the removal of sovereign immunity will allow the tribal government system to grow by making them accountable for their actions and, in turn, allow them to become a better governing system. Yours truly, /^ Wayne K Peterson 41 55 Salt Spring Drive Ferndale, Wa. 98248 360-398-8806 902 August 19, 1996 ^f <\ To: Senator John McCain, Chairman and Members of the Senate Indian Affairs Committee Your hearing on tribal Sovereign Immunity is applauded! We trust it will be an impartial analytical appraisal of this exclusive privilege which has been afforded to only one segment of our country's citizenry, the American Indian Tribes . We have owned our fee simple property here in Whatcom County, Washington for over ten years. There have been numerous instances relating to the Lummi Indian Business Council (LIBC) which have threatened our freedoms or impacted what should be an excellent quality of life here on a spit of land within the geographic boundaries of the Lummi Reservation, known as Sandy Point. It was not until we felt our health and safety were being seriously impaired by the LIBC's illegal well did we become actively involved. Allow us to relate, with documentation, a number of situations, starting with the illegal Lummi well. ILLEGAL LUMMI WELLS at Sandy Point and Georgia Manor. County did not take action regarding their Stop Work Order and State didn't enforce the permit process because of jurisdictional complexities and potential of tribal litigation, as well as the lack of funds to support legal defense. In the words of a Lummi tribal member. . . "Regarding that well up there (at Sandv Point ).. .desperate situations reguire desperate measures to preserve our land and stop development". An apt statement of the Lummi intent when they built and last year pumped excessively from the illegal well, 100 feet from the Sandy Point community well from the same aquifer threatening the health and safety of 550 Sandy Point fee land owners and 40 tribal homes. This well, was drawn down to dangerously low level, is still in place, is still pumping, although not as aggressively, yet remains a dangerous threat to the short and long term well being of the Sandy Point community. (Complete recap attached) The fact remains the Lummi well is illegal, having been built against a county stop work order in a residentlally zoned neighborhood and without fulfilling Washington state's permitting process for commercial production wells on fee simple land over which the County and State have jurisdiction. Initially the Lummi well was secured with armed guards and razor wire fencing. JUDGE BARBARA ROTHSTEIN'S CONSENT DECREE has been violated. Sewer service has been denied to Commander Murray-Jones at South Cape (Summary and complete Affidavit attached) and for a 5 lot tract on Decator in Sandy Point Heights and other individual lot owners denied sewer connection without signing a tribal consent to jurisdiction agreement, (documents attached) Property owners have no recourse due to Lummi Sovereign Immunity, yet discriminatory acts like this continue to exist. 903 Page 2 There are numerous fee simple property owners who own land at Sandy Point and elsewhere on the reservation, paying taxes and stand-by sewer fees who are being held hostage by the various tactics of discrimination for sewer and Bellingham water hook-ups by the Lummi leadership and policies. Judge Barbara Rothstein's 1982 Consent Decree section lie specifically refers to Federal Housing laws wherein signatories to the Decree are not to coerce or attempt to coerce, intimidate, threaten, or interfere with any persons in the enjoyment to the right to housing secured by 42 U.S.C. S3601 et seq, or applicable laws. Federal funds supported the Lummi sewer project, however discriminatory abuses of these federal statutes are being flaunted by the LIBC. (Consent Decree attached) BELLINGHAM WATER is piped onto the Lummi reservation. . .We understand 1.44 million gallons per day are available and only 30-50,000 gallons per day are being used by the LIBC. It was provided by federal funding but is denied to non-tribal members on a discriminatory basis. No recourse by property owners, nor the City of Bellingham for this discrimination due to tribal Sovereign Immunity. The original non-discriminatory language was deleted after LIBC assured they would not discriminate against non-tribal applicants. (Original and final agreements herewith) Letter signed by Henry Cagey to Albert Sperry dated 5/12/94 quotes LIBC Resolution #90-108. .. "NOW THEREFORE BE IT RESOLVED, that the Lummi Indian Reservation has no surplus water for additional non-Indian development and that all water present on the Lummi Indian Reservation is subject to the sole regulatory authority of the Lummi Indian Nation." Albert Sperry couldn't take the tribe to court because of Sovereign Immunity, so rather than fight the battle he decided to sell his property. (Complete Resolution and Cagey letter, plus transcript of KGMI, Jeff Kent interview with Commander Murray- Jones and Albert Sperry 8/24/95 attached) SEWER TAX AND PENALTIES are non-consensual and in violations of federal law. Taxation which has NOT been properly approved by neither the Commissioner of Indian Affairs nor the Secretary of Interior, as specifically directed by the Lummi Constitution. We have no true voting privilege other than voting for two of five Lummi Sewer Board members. No voice in tribal government, which amounts to taxation without representation . No recourse other than the stacked deck of the tribal court system, where Intimidation and harassment of non-tribal members occurs by tribal approved judges. We are without legal recourse unless Sovereign Immunity is waived by the tribe. We have a serious flaw In our judicial system in this regard. 904 Page 3 WATER TO RESERVATION BY PUD to fee land owners is blocked because the threats or fears of legal action by the Lummi Business Council. Letter from PUD Manager dated, June 20, 1995, (copy herewith) stipulates they will provide water supplied from its Nooksack River water right but "jurisdictional and legal matters must be cleared up" first. Another instance of not having access to our rightful legal process due to Sovereign Immunity by the Lummi tribe. HENRY CAGEY INTERVIEW ON KVOS-TV on June 29, 1995 the LIBC tribal chairman said referring to the water supply problem at Sandy Point ... "We' re not here to take away any water from domestic people up there, that are actually living there. "Where we have concerns is any future development . "Until we move toward adjudication , until we move toward understanding, then that's where we see some problems." A clear attempt to control growth, not allowing property owners, who pay taxes on their undeveloped land to build. Again, no recourse with the American judicial system because of Sovereign Immunity. (Complete transcript of KVOS-TV report and Henry Cagey interview with Jeff Kent on KGMI Radio, 8/11/95 enclosed.) ROAD BLOCKADE THREAT . . . Henry Cagey ' s threat to blockade the roads to our homes is another illustration threatened control over fee property owners within the geographical boundaries of the Lummi Reservation. A threat with direct impact on our constitutional freedom and rights. (Bellingham Herald article enclosed) TIDELANDS . . .When the land on which Sandy Point is located was purchased by William and Justine Wood (1953) and James Bolster (1957) from Frank and Celena Finkbonner and subsequent sales to various owners/developers, the land came with all appurtenances and the riparian rights to use the tidelands . just as the Finkbonners had used them during their ownership. Yet Sandy Point Improvement Company on behalf of property owners paid LIBC a huge $534,000 lease payment and the beaches have been posted with no trespass signs in the past. Plus non-tribal members have been ordered by Lummi law enforcement to stay off "their tidelands". Again, no recourse available to property owners due to tribal Sovereign Immunity. (Chain of ownership attached) The time is right to remove tribal Sovereign Immunity. The time is overdue for tribal accountability and for non-tribal members to have due process and true justice within our otherwise excellent legal system. Respectfully submitted: Earle Baker and Gertrude Baker Phone/Fax 360 380-2343 4175 Sucia Drive Ferndale, WA 98248 cc: Senator Patty Murray 905 104 Scott Drive Sheridan, Wyoming g2801 Sqjtember 19, 1996 Senator Jdbn McCain, Chainnan Senate Ccoimittee on Indian Afiaiis 838 Hart Senate Office Building Washington, DC 20510-8450 Dear Senator McCain: RE: Senate Ca have the light to direct access to State or Federal courts in Indian related matters. I emphasize that I am not wishing to take away the powers of Tribal Government over their own people and lands, but Non-Indians should not be subject to ttie Jurisdiction of Ae Tribes. The American pubhc when traveling through Indian Reservations are now subject to TribalJurisdiction and Tribal Court ifthey break a law or have an accident, llus will put a burden on the American PuUic to get proper insurance to protect autos and machineiy. On the Crow Indian Reservation, people living on their own deeded lands are unable to get the State. Federal or Tribal officers aikd officials to prosecute Indians £m^ theft, assault, etc because of the canfusioQ of Jurisdictioa As a result Non-Indians and Indians, alike, do not have propex protection. Our Constitutiaaal Ri^its are being stripped from us that do business on the reservations and we definitely need legislation ihat will establish that Non-Indians and flieir property arc not subject to Tribal Jarisdktian. Vejy Sincerely cc. Scnatcx^ Ciaig Thomas Senator Slade Gorton Brad Spear Senator Al Simpson Senator Conrad Bums 906 104 Scott Drive Sheridan, Wyoming 82801 September 19, 1996 Senator John McCain, Chainnan Senate Committee on Indian Af&iiB 838 Hart Senate Office Building Washington, DC 20510-8450 Dear Senator McCain: RE: Senate Committee on T pd i < «" Af&irs September 24, 1996 These are my conunents which I would appreciate your entenng in the record for the above healing. It is essential to the freedom and due process of Non-Indians to have thbal sovseign immunity eliminated from Non-Indians and their property T am requesting that Non- Indians have the right to direct access to State oa: Fedoal courts in TnHian related matters. I emphasize that I am not wishing to take away the powers of Tribal Government over their awn people and lands, but Non-Indians should not be subject to tfie Jurisdiction of the Tribes. The American public whea traveling through T'^ '^iqn Reservatians are now subject to Tribal Jurisdiction and Tribal Court if they break a law or have an accidoit. This will put a burden on the American Public to get piopex insurance to protect autos and machinery. On the Crow Indian Reservatica, people living on their own deeded lands are unable to get the State, Federal or Tribal officers and officials to prosecute Indians for theft, assault, etc. because of the oooiusion of JurisdictioTL As a result Ncn-Iudians and Indians, alike, do not have proper protection. Our Constitutional Rights are being stripped from us that do business on the reservaliuns and we definitely need legislation that will establish that IVan-Iudians and (heir property are not subject ta Tribal Jurisdiction. Very Sincaely Yours.yV^n^j^M'"^ cc. Senator Craig Thomas j^ \ \~\A Senator Slade Gorton Brad Spear /fSU^ Senator Al Simpson IOXTANA HOUSE OF REPRESENTATIVKS September 21, 1996 REPRESEhfTATIVE ULA V. TAYLOR HOUSE DISTRICT 5 HELENA ADDRESS: CAPITOL BUILDING HELENA. MONTANA 59620-0400 PHONE: (406)444-4800 HOME ADDRESS: BOX 595. KIRBY ROUTE BUSBY. MONTANA 59016-0595 PHONE: (406)757-2236 Senator John McCain Chairman Senate Committee on Indian Affairs 838 Hart Senate Office Building Washington, D. C. 20510-6450 COMMnTEES: NATURAL RESOURCES AGRICULTURE STATE ADMINISTRATION Dear Senator McCain: Thank you for recognizing and addressing through this hearing the problem of jurisdiction of non-Indians and non-Indian lands within the exterior boundaries of the reservations. In our case the reservation is the Crow Reservation in Montana. We are non-Indians residing on deeded land within the Crow Reservation. We are United States citizens and Montana residents and are subject to county, local, state and federal taxes . We are governed by the laws of the United States and the state of Montana. However, we are also supposedly under the jurisdiction of the Crow Tribe and their laws and tax codes and their court system. As you well know somewhere close to half of the Crow Reservation , if not more, is owned by non-Indians. The issue of jurisdiction is becoming one of the most divisive issues separating people on this reservation. The issue of taxation without representation was settled years ago in this country by a Revolution. Don't keep ignoring this issue hoping that it will go away. It will not. Through our Constitution we as United States citizens are guaranteed due process of the law. Let the process be through the state and federal courts where laws passed through the democratic process are judged. 911 I represent this district where we live as a Representative for the State of Montana. My district has both Indians and non-Indians both on and off the Crow and Northern Cheyenne Reservations. I work very hard to represent all of these people equally. Our legislature works to fund education for all schools equally. We work for a strong economy that employs all people equally. We struggle with tax issues, employment, roads, health care, etc for everyone within our state equally. Yet this jurisdiction issue treats people unequally and only causes division. The issue of tribal jurisdiction on non-Indians within the exterior boundary of the reservation creates disincentives for businesses to locate on the reservations and instability and uncertainty for those already here. Our family was one of the few families that Congress moved onto the reservation by the settlement of the 107th. That move, among other things, meant that our residences are now on the reservation and under tribal jurisdiction. We still are responsible for all our same tax bills as before, however, now we are subject to tribal taxing laws and tribal courts with no vote or say. As we try to work through these issues, the insurance companies are beginning to question their ability to insure where there are continual questions of court remedy. The banks are beginning to look at loans made to businesses on the reservations where they may have no recourse to recover property. Please try to realize this problem for the severity that exists. Sincerely, Lila V. Taylor 912 To the Honorable Senator John McCain, Chairman of the Senate Committee on Indian Affairs, Concerning the issues of tribal immunity and their effects on non-Indians. Before the Crow Boundary Settlement Act of 1994 %% of my deeded property lay outside the Crow Reservation Boundary., today 96% lies within the Reservation Due to this act of congress certain intrinsic rights as a United States citizen have been stripped from me and all the other landowners involved . The Declaration of Independence states, as one of its miqor grievances against Great Britain, "for imposing taxes on us without our consent". We are now taxed without representation one of the issues guaranteed us in the Constitution. In propCTty di^Mites we are required to "exhaust civil remedies in the tribal courts before filing in the state or fedoal courts". Article VI of the Bill of Rights guaranteed citizens the right of access to an impartial jury. When a jury consists of men and women drawn from any one common denominator 410 matter what it is, how impartial can it be? I beseech the committee to be cognizant of the concerns and fears of non-indians with property within reservations. I did not choose to have property on the reservation, I as well as all the others involved fed that not to be governed and ruled by the Constitution of United States is a popetration of our rights as United States citizens. Sincerely, Jessie E. HufiKnan HC 42, Box 640 Busby, MT 59016 913 Walter J. Taylor Jr. HC42 Box 595 Kirby, MT. 59016 September 21, 1996 Senator John McCain Chairman Senate Committee on Indian Affairs 838 Hart Senate Office Building Washington, D. C. 20510-6450 Dear Senator McCain: I am a non-Indian that owns land within the exterior boundary of the Crow Reservation in southeastern Montana. My family's ranch headquarters was put on the Crow Reservation with the enactment of Public Law 103-444 Nov. 2, 1994 "Crow Boundary Settlement Act of 1994". Our biggest problem since that time has been being put under Crow Tribal jurisdiction. I will not go into the inequities this 'Crow Boundary Settlement Act of 1994" did to the people like my family who own land within the disputed land lying between the 1891 Survey line and the 107 Meridian. More importantly for this hearing on the effect of tribal jurisdiction on non-Indians within the exterior boundaries of an Indian Reservation, one must first recognize the difference between an open reservation and a closed reservation. The Crow Reservation is an open reservation which means a large amount of land is owned by non-Indians approximately fifty percent. The landowners who have fee patents on this land , can be Indian or non-Indian. They pay County and State property taxes. I am eligible to vote and elect the government which levies these taxes. The Indians are also eligible to do the same. The problem comes when the Crow Tribe levies taxes on non-Indians within the exterior boundary of the reservation, as we have no vote in the election of their government. The court system which we appeal to also falls under Tribal jurisdiction. Our local law enforcement and game warden have no jurisdiction on violations on fee patent land involving tribal members. I have never had the Bureau of Indian Affairs respond when called for help on violations, 914 and we have some cases documented. They always try to turn the violations over to the deputy sheriff who has no jurisdiction. I feel it is time the U.S. Congress stops perpetuating discrimination between Indians and non-Indians within exterior boundaries of Indian Reservation. Only the U.S. Congress has the power to do this, and it is in the best interest of both parties. Thank you for the opportunity to explain our situation. I hope you will work to correct this disparity. Sincerely yours; U.r- <^.y.(.. / / ■ Walter J. Taylor Jr. 915 P Z RANCH HC-42, Box610 BUSBY, MONTANA 5901 6 September 21, 1996 Senator John McCain Chairman Senate Committee on Indian A£fairs 838 Hart Senate OflRce Building Washington, DC. 20510-4701 Dear Sir, I request this letter be made part of hearing record of hearing by Senate Committee on September 24, 1996, "Indian Affairs on Civil Jurisdiction in Indian Country" I am writing this letter to request you vote, YES, granting non-Indians and non-Indian property within the boundaries of Indian reservations to be under the jurisdiction of Federal, State, and local courts and governments, not tribal jurisdiction. As non-Indians we have NO vote in Indian law or taxation issues We belong under local. State, and Federal jurisdiction. As a footnote, we had property placed within an Indian reservation boundary in the 1 07th Meridian^settlement with the Crow Tribe, this was accomplished with NO consultation with the land owners. Any h^ you can give to us will be greatly appreciated. Sincerely, Dwight S. Ferguson cc: Senator Slate Gorton Senator Conrad Bums Senator Max Baucus 916 MY NAME IS G.L JAMES, IM NOT SPEAKING FOR THE TRIBE BUT AS A TRIBAL MEMBER " ■ nSOT HEAR)" THINGS POKES DONT LIKE TO HEAR IT WASNT ME WHO DID THAT SO DONT BRING THAT CRAP TO ME AND LAY IT ON MY DOOR STEP. THAT I HAVE TO BE RESPONSIBLE FOR SOMEBODY ELSES ACTIONS I WANT TO BRING FORTH HOW PEOPLE GET INTO POSITION THAT THEY WERE IN OVER HERE TO SELL THEIR PROPERTY I WAS BORN HERE. I WAS BORN ON MC NEAL ISLAND IN THE MIDDLE OF THE NOOKSACK 1 RIVER MY FATHER WAS A FISHERMAN AND HE WAS ARRESTED SO MANY TIMES FOR TRYING TO EXTTCUITE A LIVING AS A RSHERMAN AND TRY TO FEED HIS FAMILY THAT HE WAS FORCED TO SELL EVERTHING HE HAD. BECAUSE THE STATE AND THEIR POLICYS WERE FORCING THEM NOT TO BE ABLE TO MAKE A LIVING. NOW YOU SAY GEE! BUT THESE PEOPLE SOLD THEIR PROPERTY IT DOSEN'T MAKE IT RIGHT IT ANGERS ME WHEN SOMEBODY POINTS OUT HERES A CONTRACT SOMEBODY SOLD THAT LAND AND WE NOW HAVE A RIGHT TO IT AND YOU ARE PREVENTING US FROM GETTING TO IT. IGNORING THE FACT THAT IT SHOULDENT HAVE HAPPENED IN THE FIRST PLACE. SOME POKES MAY CALL IT RACISM I CALL IT LOOK BACK. NO BODY WANTS TO LOOK BACK AND SEE WHAT HAS ACCRUED TO ALLOW THAT TO HAPPEN IN THE FIRST PLACE. YOU MENTION SOME OF THE COUNCIL PEOPLE THEY WERE ALL FOR IT. I WAS ON THE COUNCIL FOR 7 YEARS, 1 DID SOMETHING THAT THE PEOPLE DIDN'T WANT ME TO DO THEY TOOK ME OUT AND MAYBE RIGHFULLY SO. THEY HAVE THE ABILTTY TO DO THAT. YOU LOOK BACK AT SOME OF THE OLD DOCUMENTS THAT WERE PUT TOGETHER BY THE SECRETARY OF STATE BACK IN THE 40'S AND 50'S EDUCATING PEOPLE IN THE STATE ABOUT INDIANS. IT WAS A PRETTY GOOD DOCUMENT. BUT YOU DONT SEE IT ANYWHERE IN THE SCHOOLS NOW DAYS. THERE IS ON PARAGRAPH IN THERE ABOUT GOVERNMENT AND IT MENTIONED HOW FRUSTRATING IT WAS DEALING WITH INDIAN PEOPLE AND INDIAN GOVERNMENTS. BECAUSE SOMETIMES THE PEOPLE .AGREE WITH THEIR LE.ADERS AND SOMETIME THEY DONT. SOMETIME THEY WERE ABLE TO APFE.ATE DEALS AND SOMETIME THE WERNT. BECAUSE THE PEOPLE ARE THE ONES THAT DICTATE TO GOVERNMENT. NOT THE OTHER WAY AROUND. SO I MAY OF LEARNED SOME OF THOES LESSONS MYSELF. HOPEFULLY I AM LEARNING THEM. THAT THE PEOPLE HAVE TO BE INVOLVED IN WHAT IS GOING ON. I DONT SEE A WHOLE LOT OP OUR PEOPLE HERE TODAY BUT THERE SOME OF THE ONE HERE TODAY (2) VERY UP-SET ABOUT THE TRIBAL COUNCIL SAYING YES! GO AHEAD ALLOW THE POKES TO GO OVER. THERES A LOT LOP ANGER HERE ITS NOT RACISM ITS ANGER. WERE SITTING HERE TALKING ALLOWING POKES TO GO OVER TO AN ISLAND THAT WE PRESERVE AND YES ITI S A SERENE PLACE. THIS WHOLE COUNTY WAS A SERENE PLACE AT ONE POINT FT IS NOT US WHO SCREWED IT UP. ITS NOT US WHO LOGGED IT OFF AND BEEN SUCKING OFF ALL WATER AND DIVERTING IT AND POLLUTING IT SO NOW IT COMES DOWN TO GEE! THERES VERY FEW PLACES LEFT. LETS PRESERVE THE INDIAN RESERVATION FOR ALL OP US THAT SCREWED UP EVERYTHING ELSE. THERE IS A LIMIT TO WHAT POKES CAN SHARE. ESPECL^LY WHEN THERE IS THING GOING ON THAT ARE, LOOKS LIKE IF WE DONT ALLOW IT AND WE ARE TRYING TO PROTECT THE PROPERTY WE HAVE IT IS RACISM. WHEN ITS THE OTHER SIDE OP THE FENCE SAY HO! HO! YOU CANT COME ACROSS HERE. YEA! ITS IN THE BOUNDARIES OP THE RESERVATION. YOUR NOT GOING ACROSS THERE, IF YOU DO WERE GOING TO ARREST YOU AND THAT ISN T CALL RACISM ITS CALLED PROPERTY RIGHTS. AND PROTECTING YOUR OWN PROPERTY SO I THINK AND I AM NOT SAY THIS TO HURT ANYBODY. JUST TRYING TO LET YOU KNOW THAT THERE ARE DIFFERENT POINTS OF VIEW ABOUT WHAT HAS ACCRUED MR. DEITCH MENTIONED THAT THIS ISLAND WAS STOLEN FROM WHATCOM COUNTY. WHATCOM COUNTY DIDN T EXIST. THE STATE DIDN T EXIST UNTELL 1889, THE TREATY THAT SET THIS ALL UP WAS 1855. THERE IS A LOT OF EDUCATING THAT NEEDS TO ACCRUE. MR KENT INVITED US OUT HERE. WE CHOOSE TO PARTICIPATE UNTELL THE LAST MOMENT OUR COUNCIL SAID MAYBE YOU OUGHT TO BE DOWN THERE SO WERE HERE THE RELATIONSHIP HAS NOT BEEN VERY GOOD. ITS BEEN VERY TENACIOUS. WE HAVE JUST GIVEN YOU AN EXAMPLE. A LOT OF YOU MAY HAVE SEEN WHAT IS GOING ON WITH THE WATER DISPUTE OUT HERE, WE OWN 75% OF THE LAND HERE. 917 EITHER TRIBAL OR TRIBAL n«rt)rVIDUAL OWN 75% OF THE LAND. 25% IS NON-INDL\N OWNERSHIP. 3% OF THAT LAND IS SUB DIVIDED LIKE DOWN HERE AT SANDY POINT. GEORGA MANNER. USING OVER 50% OF THE WATER AND WERE BEING ASKED TO SHARE. SHARE SOME MORE WELL LOOK AT THE RESULTS OT SHARING AND WHAT GOING ON YOU HAVE TO LOOK AT THE IMPACT ARE TO OUR PEOPLE AND THAT THIS LAND WAS SET ASIDE FOR OUR SOLE USE, THAT NO NON-INDL\N SHALL RESIDE UPON WITHOUT OUR PERMISSION. WE NEVER GIVEN THAT PERMISSION (MARLENE DAWSON) I HAVE A QUESTION I UNDERSTAND IN 1934 THERE WAS A FEDERAL REORGANIZATION ACT. ALL TRIBES IN THE UNITED STATES HAD AN OPPORTUNITY TO ADDRESS RATHER THEY WANTED TO CLOSE OFF THE RESERVATION AND STOP THE SALE OF THE LAND TRIBAL PEOPLE SAID WE WANT TO LIVE THE AMERICAN DREAM AND BE ABLE TO UVE OFF THE RESERVATION AND HAVE A CHOSE OF SELLING OUR LAND (G.L JAMES) NO! NO! THIS IS NOT TRUE. THIS IS ABSOLUTELY REJECTED (MARLENE DAWSON) THEN HOW DID IT GET SOLD THEN? (G.L JAMES) ANOTHER LARGE PARTY HERE IS THIS PICE OF PROPERTY. BOYTON PROPERTY, DR. BOYTON CONHCEATED IT (MARLENE DAWSON) PROPERTY CONTINUES TO BE SOLD TODAY (G.L JAMES) WELL YOU SEE IN THE CC»JSTITUTION, OUR CONSTITUTION THAT THE TRIBE CANT SELL IT. THE BUREAU TAKES THE POSITION THAT YES WE CAN. BUT IF YOU GO BACK INTO THIS RESERVATION UNDER THE GENERAL ALLOTMENT ACT, WHICH YCXJ MAYBE REFERRING TO. WHICH WAS 1889 PEOPLE CAN SELL THERE PROPERTY. THIS TRIBE, THIS RESERVATION WAS NOT SET UP UNDER THE GENERAL ALLOTMENT ACT, IT WAS ASSIGNED NOT ALLOTTED AND THERE IS A DIFFERENCE BETWEEN ASSIGNMENT AND ALLOTMENT. ASSIGNMENT YOU GET TO USE IT AND IF YOU DCWT USE IT. IT GET ASSIGNED TO SOMEONE ELSE SO THERE IS DIFFERENCES HERE. DO WE AGREE WHAT HAS HAPPENED NO. LIKE I WAS SAYING DR. BOYTON OVER HERE GOT THAT WHEN AFTER SC»^ONE DIED THAT HE WAS TAKING CARE OF. PROPERTY HAS BEEN INHERITED OUTSIDE OF TRIBAL OWNERSHIP BY BEING INHERITED BY CANADAN INDIANS. WHICH THE UNITED STATES CONCEDERS NOT AN INDIAN LOT OF THAT HAS ACCRUED. PEOPLE HAVE OPTED TO TRY AND SELL THERE PROPERTY AND THE BL\ AGREED WITH THEM AND HAS ALLOWED THEM TO DO IT. 918 104 Scott Drive Sheridan, Wyoming 82801 September 3, 1996 Joseph P. Mazurek Alttauey General State of Montana Post Office Box 201401 Helena, Montana 59620-1401 Dear Mr. Mazuiek: I am tbrwarding you herewith - a copy of intbrmation on the thett of 3 pickups from the Spear O Ranch of Busby, Montana and a copy of a incident iliat occurred with James Hamilton of Decker, Montaiu. Both of these incidences happened on or adjacent to the Crow Indian Reservation. The Spear O Ranch theft of 3 pickups is in limbo - nothing has been done yet, I guess. On August 2 1 , 1 996 1 visited with Wesley Stops, 3IA Criminal Investigator. He advised me ihsl the people involved with the theft had been arraigned, charged and sentenced. I asked tor a written disposition of the case and he advised me to get it from the Tribal Prosecutor - Marjorie Iron Ivlaker. Ms. Iron Ivlaker did not know anything about the case and said she wo\ild look for it and to call her back in a tew .days. On Monday, August 26, 1996, 1 called Marjorie Iron Maker and she advised that she has uoi had lime io look for the iile. I called Wesley Stops and he advised that he will check with her to see what the disposition was. On this date, September 3, 1 996, 1 again called tor Wesley Stops at 8: 10 AM and again at 2:PlVl - tlie poUce secretary said he wasn't in both times. I also called for N-Iarjorie Iron Maker at the same time and she was not in the first time I called and the second time I was told by the fellow answering that perhaps she was not back from her vacatioiL Also, on this date, I called the Big Horn County Attorney, Christine Cooke and she advised that she has not heard from the Federal Attorney - Shirley Briney and will call her this afternoon as to her opinion. Your advice would be appreciated as to any other steps that we can take in this situation. / Uj''/-' ^^ r'^^-^'i-lo , ChairmarJcMS6AReservaton_R^tion.^_^^^, ^//e^ ^j/ -ri^ Im-'F ^if--^'-: ■-'■ ^ < 919 A SHORT REPORT ON SOME VISITATIONS 3 Pickups stolen at SPEAR O RANCH Medicine Hoise, Sr., SheriiTof Big Horu County, Montana. He advises that things are d one a different way than many years past, now. Dq>uty Pnce, if not certain of his position, will turn in a report to the County Attorney - who in turn will advise what is needed and then he will act on that information. July 24, 1996: Sandra Smith and I met with Wesley Stc^s, Sr. at Crow Agency, Montana. Mr Stops is the BIA Investigative Officer. When Sandra showed him the information and after some brief discussion, he remarked that he should have been informed by the other officers so that he could have made a complete investigation. He advised that they know this, but he was not aware of the incident imtil several days later when Gtos Ventre said lie was sending him a report, which he had not received yet. Now, he saj's he cant take pictures or finger prints, etc. because the evidence has been moved. He advised Sandra that he wauled to iulciview hei husband, the Bahxu's, and tlie people at tlie Kirby Saloon, etc., in the next few days. Wednesday, July 3 1, 1996: Sandra and I met with Christine Cooke, Big Horn County Atty.. She advised that she has sent information to the Federal Attorney and that Shelley Briney has been assigned to the case. Ms. Cooke will contact her and see if her office can prosecute for auto theft. They would have to prove that Victor Kermedy knew that the 1990 GMC was stolen - otherwise it would be using without permission. When asked about the others being on deeded lands on Corral Creek, she replied thai the STATE has no jurisdiction on lands in INDIAN COUNTRY. 920 3 STOLFN PICKUPS - SPEAR O RANCH BUSBY, MONTANA 59016 Soai>!iiiU£,betwet3tS:30 AM and 8:30 AM, Juue6, 1S>96, fivp Iixiuin payif i^apteA Priv«ii> TVtfUi i jinng ohuic k|>t:i>r w Mjutotbouipaay, oi-tfusoy, »io the Eiuil HdLua fee Laid. Tlic 1979 wd:> luidly scratdbcd up in tlk: bruaL uud the 1979 pickuit had the frame bent axvl torn up in the catlleguard. Lal£T in the morning, Paula and Emil Dahm noticed the pickup off the road on their side of the catlleguard. The}' foimd an Indian - passed out and badley bcatoi - in the pickup. They called the ShciifPs office. Deputy George Rogers of the County SheriflTs office and Albert Gros Ventre of the Crow Police came over about nooa They identified the fellow in the pickup as Hugh John Stops. They were told by Stops thatthe others imwived were: Victor Kennedy, Curtis Iron, and Garret Door, Jr. They located the 1979 Fonl in the brush not very lar from the 1975 tlatbed. By following the tracks Rogeis,Gr« Ventre, and the Bahm's went down to the Torrey Johnson ranch -about 1- 1/2 miles down the creek. 'Ihey Iburid evidence indicating ihatttK Indian boyi entered the garage, went upstain and Ibund tike kevs to tlie OMC 1990 Extended Pickup m a jewelry box. Mr. tiahm noticed that two ritles were nussmg fixxn the gun rack - a iO.U6 with a scope and a compass buih into the stock; and a .22 boh acdon rifle with 921 a 5 bullet clip. The Jotmson Ranch is deeded piopaty also. TUe IHUIiUUi UMS tU£ 1 OOO OlMO, WIUI34 lUUI U>UU KUU tUUU MUW III tUIC (MN^ ilMU ICA - Rogers and Gros Ventre drove to the Spear O Ranch and talked with George and Sandra Smith, who had just returned from helping some nei^bors brand at about 5:30 this morning. On July 7, 1996, at about 3:30 PM. George Smith saw the 1990 GMC coming from the Sheridan direction on the Rosebud Road near the old X4 Ranch on Indian Creek. He followed them to the Kiiby SaJooo. The Sheriffs office was called. It was reported that Dexter Falls Down refused to go to the Kirby Saloon because it was off the Reservation. Deputy Larry Price was sent over. Dick Roebling had the bartender niake the call to the Sheriff. Larry Price amved about an hour later It was determined that Julia Roundstone was tlie driver of the pickup (1990 GMC) and Victor Kennedy were minors (\9 years of age). The other two were aduhs: MeJvina Roundstone and Waldo Roundstone Wounded Kye. Deputy Price called the dispatcher and rqjoned iiis nndings. He was instructed to bring in the two minors on a "possession of alcohol" charge, luui tui II iLc odiers loose, ocui y^ Suuiii was infomied thai siuce lite uuue of ibefl was cuiuiiuued uii liic rcscrviuioii llbii Deputy Price could not arrest iheai for slealiii)j ihe vcliicle - lie liiul no jtirisdiciion. Wriic ui tLe tools were in tho back of Uie pickup. Tools missing: 3/4 " drive sockets and handles; speed ratchet; hydraulic jack; small set of 1/2" scdarts and drive handle; and s ncvv Hotndite Chain Saw; in addition to the rifles. On Monday, the 1 0th of July, l^ota Stops and a fellow who did not wish to state his name, came to the Spear O Ranch to get the red car. They could not get it started. Sandra called Terrj- Tolou and then the Crow Police - who asked that they not klet the red car get away. They came in about an hour and took possession of the red car. Leota Stops aixi friend were gone by this time. Page 2 - Stolen pickups report 922 SCR No. 9606-0160 OCfi.lt ^ <5- Recdi Disp Arfd. ClTd Incident Location: SPEAR RANCH Last Name, First. Middle Complainant: EMIL fl«fES 6>/^H/V) Address 'Speh)Q.-C' 'lSl-^'4cy CR lS7-a^'l Res. Phone: 757-2777 Bus. Phone: Sheriff Disp Coroner Disp Rre DepL Wrecker Disp c Type/Incident/Offense THF/F Amended Officer Disp. 5 BIA Ambulance Disp Domestic Abuse Case Yes_ Suspect Charged Yes HWY Patrol Disp Patrol 6 Weapons Rfearni- Knife. tup. WEL_ Other Dang. Weap Child W/Uy«liam Steve Clulstenten CoivaUls JofanQraode Lennep Tom Horn Cobafec Don Ross Chinook Jobn Matovicfa Ualta StCTcRoth Big Sandy GaiyRuiT Custer Randy anith Gfan JohnSvBnz Judith Oaf September 23, 1996 U.S. Senate Committee OD Indun Af&irs 836 Halt Senate Office Buildiiig Washington, D.C. 20510^50 Honorable Senators and Oueste: As president of the Montana Stockgrowers Association and a ranc&er that owns property and resides on the Crow Indian Reservation in Montana, tribal sovereign immunity is a very un&ir policy. It must be eliminated. As non-tribal members, rancteis en Indian reservations do not have equal protection under the law. Non-tnbal members have no standing in tribal matters. We have no say and no right to vote on matters of taxation. We are subject to taxation without representatioa For non-tribal members to have tbe fieedom and due jKocess guaranteed to all citizens in die United States, tribal sovereign immunity must be eliminated. Additionally, we are also requesting tbe liglit to direct access for non tribal members to state or federal court in tribal related matters. On behalf of the 4,000 members of the Montana Stockgrowers Association, your consideration to this very soious issue is appreciated very much. Sincerely, Ocorge HamiTiond Oeoige President Senator Conrad Bums Senator Max Baucus Senator Slade Gorton 929 September 24. 1996 STATEMENT OF MONTANA GOVERNOR MARC RACICOT BEFORE THE SENATE INDIAN AFFAIRS COMMITTEE I. INTRODUCTION I wish to thank the Commrttee for the opportunity to submit a statement on a matter that has great importance to states with Indian reservations. There is, in my view, no more controversial or deeply-felt issue in Indian country than the question of tribal jurisdiction over nonmembers. From the tribes' perspective, the ability to regulate conduct of all persons on their reservations goes to the very core of their sovereignty; from the nonmembers' perspective, being subjected to the authority of a government in which they have no voice violates what Justice Kennedy rightly called in Duro v. Reina . 495 U.S. 676, 694 (1990), "a fundamental basis for power within our constitutional system'-the "consent of the govemed." At the outset I want to emphatically urge Congress to address and reconcile the tribes' and nonmembers' competing visions conceming the reach of inherent tribal and state authority. My belief, after years of experience, is that Congress, in all likelihood, will not have the will to do so, but I cannot overestimate how important definition and resolution of jurisdictional issues are to the long-term and mutual best interests of both tribes and states. It Is important to understand that everyday there is a significant amount of cooperation that results between tribes and states. In Montana, for instance, there are literally hundreds of cooperative agreements between the State of Montana and the Indian Nations within our borders that allow for the effective transaction of business on a govemment-to-govemment basis. Whenever and wherever there is irreconcilable . difficulty, it is inevitably because of questions conceming jurisdiction. Page 1 1 930 Neither the states nor the tribes created these jurisdiction problems. The constant failure of Congress to assume its responsibility to resolve these issues over the last century and longer, along with the plodding, inconsistent, and largely impotent attempts of various courts, mostly federal, to fill the void left by Congress, has relegated both tribal members and nonmembers to constant uncertainty and acrimony. It is a preposterous situation that strains the fabric of our mutual existence sometimes to near breaking point. At best, allowing this situation to develop and persist has been the product of benign neglect. At worst it is an unacceptable denial of responsibility that works substantial injustice to Indians and non-Indians alike. My hope is that Congress will find the courage to address the transcendent issue of jurisdiction in the most definitive terms possible. Those jurisdictional principles that apply to criminal cases, although complex, are not for the most part, the subject of daily controversy. Parenthetically, however, I would point out that appropriate enforcement resources for federal and tribal authorities on some reservations are completely inadequate. The most significant difficulty is with tangled, imprecise, inconsistent and, in many instances, as yet unknown civil regulatory and adjudicatory jurisdictional principles. In Montana whenever a noncriminal jurisdictional problem arises because the parties don't know where they stand, the State's position is that the individual tribe has jurisdiction over tribal and trust lands, while the State has jurisdiction over nontribal lands. Although such a position may, in the wisdom of Congress, need further definition, I believe such a jurisdictional njle vindicates and respects the sovereign interests of both states and tribes, and places both parties in co-equal positions. As mentioned eariier, I have grave doubts that Congress will go as far as it should, and that in fact the focus of this hearing will be confined to property transactions. If that is indeed the case, I would urge Congress to consider legislation to Page 2 1 931 resolve definitively the previously-described inconsistent visions of jurisdictional authority in an expeditious, hopefully cost-effective manner, by reopening the doors of federal courts to claims by nonmembers that tribes have exceeded the scope of their regulatory authority. These doors have been closed by unfortunate, and quite misguided, decisions in those Circuit Courts of Appeals - the Eighth, Ninth and Tenth - »/here most Indian country is located. In this regard I ask only that nonmembers be accorded the same access to federal courts that tribes have when seeking to have the scope of their inherent authority determined and that persons challenging the exercise of state authority have. II. LEGAL BACKGROUND - NATIONAL FARMERS UNION Some legal background is necessary to understand the nature of the problem. In 1985 the United States Supreme Court decided a case from Montana, National Farmers Union Insurance Cos. v. Crow Tribe . 471 U.S. 845 (1985). The dispute there involved an accident that occurred in a public elementary school's parking lot, in which a Crow member was injured. The school is located within the Crow Reservation. The injured member's guardian sued the school district in tribal court, but the district failed to respond to the sumir.ons and complaint. A default judgment then issued, and the injured member's guardian began the process of attempting to execute under tribal law on school property. The school district's insurer filed an action in federal district court seeking to enjoin the execution, arguing that the tribal courts lacked jurisdiction over the district. A decision favorable to the school district by the federal district court was reversed on appeal by the Ninth Circuit, which dismissed the case for lack of federal question jurisdiction under 28 U.S.C. § 1331. After granting certiorari, the Supreme Court reversed the Court of Appeals. It held that the federal courts had subject matter jurisdiction over the dispute, since the scope of tribal authority is determined by federal common law. The Supreme Court, however, heW further that the school district was Page 31 n 7 D 932 obligated to present its jurisdictional challenge to the tribal court's authority before proceeding to federal court except in very narrow circunnstances. The latter holding is now known as the National Fanners Union exhaustion rule. The exhaustion rule established in National Farmers Union is an exception to the "virtually unflagging obligation" of federal courts ( Colorado River Water Conserv. Dist. v. United States . 424 U.S. 800, 817 (1976)) to exercise their jurisdiction when that jurisdiction has been invoked properly. The exception is grounded in the Supreme Court's conclusion that promotion of tribal self-govemment is furthered by "a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge." National Farmers Union . 471 U.S. at 856 (emphasis added). I emphasize the word lorum" because its use indicates that the Supreme Court was concerned with the effect of exercising federal court jurisdiction on the orderly completion of tribal court proceedings-a concem analogous to that the Supreme Court previously expressed in a series of state-court abstention cases beginning with Younger v. Harris . 401 U.S. 37 (1971). III. EXPANSION OF NATIONAL FARMERS UNION In National Farmers Union , the Supreme Court viewed the requirement that a tribal court defendant present its jurisdiction defense to a tribal court as not unduly burdensome and consistent with the deference one judicial system owes another where a collateral jurisdictional attack is mounted. Assuming the decision is con-ect and fair, the radical expansion of the National Farmers Union exhaustion rule overseen by lower federal courts is neither equitable nor constructive. Most important, many lower federal courts require all challenges to tribal regulatory authority by nonmembers to be presented first to a tribal administrative agency or court, regardless of whether administrative or judicial proceedings are ongoing. So, for example, in Buriington Northern Rai lroad Co. v. Crow Tribal Council- Page 4 1 933 940 F.2d 1239 (9th Cir. 1991), the Ninth Circuit held a railroad could not commence a suit to challenge the authority of a tribe to regulate its on-reservation activities, which took place on right-of-way granted by the federal government, even though there were no tribal administrative or judicial proceedings yet initiated. Subsequently, in Middlemist V. Babbitt . 19 F.3d 1318 (9th Cir.). cert, denied . 115 S. Ct. 429 (1994), the same circuit held two landowners could not challenge a tribal ordinance regulating modifications potentially affecting non-navigable streambeds until they had initiated tribal administrative or judicial proceedings for the purpose of arguing that the tribe lacked regulatory jurisdiction. The Eighth Circuit in Duncan Energy Co. v. Three Affiliated Tribes . 27 F.3d 1294 (8th Cir. 1994), cert, denied . 115 S. Ct. 779 (1995), similarly conditioned access to federal courts upon a nonmember corporation's commencing tribal adjudicatory proceedings for the purpose of contesting the tribes' authority to tax the corporation's activities and to regulate its employment practices. The Tenth Circuit reached the same result in Pittsburg & Mining Coal Co. v. Watchman . 52 F.3d 1531 (10th Cir. 1995), wrtth respect to a Navajo tribal tax on a nonmember corporation's activities on fee lands. None of the cases involved interference with ongoing tribal court proceedings. These decisions are questionable for several reasons. First, they mean greater deference is accorded tribal processes than state processes— an anomalous result in view of the federalism principles inhering in the Constitution. Under the Younger v. Harris doctrine, federal courts may refuse to exercise their jurisdiction to consider a federal law-based challenge to state authority only when state court proceedings are ongoing. Thus, had the challenges in Buriington Northern . Middlemist . Duncan Energy or Pittsburg been to state law, the involved federal court would have been required to exercise its jurisdiction and resolve the controversy. Indeed, the Ninth Circuit has been willing to address preemption claims by tribes against application of state law Page 5 1 934 ■ Pag'eSI notwithstanding the existence of ongoing state court proceedings and even to enjoin such proceedings. Fort Bellcnap Comm'y Council v. IVIazurek . 43 F.3d 428 (9th Cir. -i994), cert, denied . 116 S. Ct. 49 (1995); White Mountain Apache Tribe v. Smith Plumbing Co. . 856 F.2d 1301 (9th Cir. 1988). Second, nonmembers are forced to initiate tribal court proceedings for the purpose of arguing that tribe lacks jurisdiction over them. It is a strange rule of law that requires litigants to invoke the jurisdiction of a tribunal solely to contend that the tribunal's sovereign has no jurisdiction over them. This situation differs markedly from the one in National Farmers Union , where the school board had been sued in tribal court and thus was defending on the basis of lack of tribal jurisdiction. Finally, the issue whether a tribe has inherent authority to regulate nonmember conduct in a particular context is a question of federal law. While it may be assumed a tribe's courts have special expertise with respect to the proper interpretation and application of tribal law, the same assumption cannot be made with respect to the interpretation and application of federal law. Requiring nonmembers to initiate proceedings in tribal court thus furthers no interest in securing a definitive determination of federal law - the very purpose of the nonmembers' challenge to tribal authority. IV. PRACTICAL EFFECT OF NATIONAL FARMERS UNION The practical effect of the lower courts' application of the National Fanmers Union exhaustion doctrine can be quite significant to individual nonmembers. Two examples from Montana reflect this effect. One of the cases mentioned above - Middlemist v. Confederated Salish and Kootenai Tribes - began in 1991 when a rancher on the Flathead Reservation sought funding from the Agricultural Soil Conservation Service (ASCS) to replace or refurbish a stockwater tank on his fee lands. To receive this funding, the rancher was told that he would be required to obtain not only federal and state permits but also a permit from the 935 Confederated Salish and Kootenai Tribes under its Aquatic Lands Conservation Ordinance. About the same time, a second rancher, who has a perennial stream-fed impoundment reservoir on his property, requested a permit from the Corps of Engineers to make improvements to the dam associated with the reservoir. The Corps, as had the ASCS, required him to obtain both state and tribal approval of the proposed improvement. Neither rancher believed his activities were subject to tribal regulation, and in late 1991 they filed suit in federal court seeking a declaratory judgment to that effect. The district court dismissed the suit in February 1993 after concluding National Farmers Union exhaustion was necessary - i.e., that the ranchers first would have to present their jurisdictional challenge to the Confederated Tribes for resolution. The Ninth Circuit affirmed in April 1994, and the Supreme Court denied certiorari in October 1994. The ranchers then brought an action in tribal court seeking a determination that the Confederated Tribes lacked jurisdiction over the proposed fee-land activities. The tribal district court, however, dismissed the action on the ground that the ranchers were required to exhaust administrative remedies before the involved tribal agency. The tribal district court's decision was affinned by the tribal court of appeals in June 1996. The tribal court of appeals, like the lower court, did not address the merits of the jurisdictional issue. These ranchers may be right or wrong on the merits of their jurisdictional challenges. That is an issue, again, which I do not address today. Nevertheless, to require them to invoke the jurisdiction of the tribal courts or a tribal administrative agency as a condition to ultimately securing a federal court detennination of the jurisdictional question effectively closes the doors of the federal courts with respect to an issue over which those courts admittedly have jurisdiction. It is not a sufficient answer to state that the doors are closely only temporarily since, as the Middlemist case indicates, "temporarily" means years. Exhaustion for most landowners is too Page 7 1 V 936 time-consuming and expensive to be a feasible altemative - especially when they face the almost certain prospect of protracted federal litigation after exhaustion. The exhaustion requirement in the context of challenges to regulatory jurisdiction thus has the practical effect of inducing nonmembers to comply with tribal regulation simply because the alternative is so burdensome and futile. The second example comes from the Crow Reservation. The Crow Tribe enacted a "resort tax" in 1995, requiring all reservation tourist businesses to impose a four percent tax on gross receipts. All such businesses are owned by nonmembers, and the vast majority of the affected sales are to nonmembers. Recognizing the obligation to exhaust tribal remedies under existing Ninth Circuit law, all but two of the businesses initiated proceedings before the tribal administrative agency to challenge the Tribe's authority to Impose the tax. Under the tribal tax code, they were required to pay the challenged tax amounts under protest, but there is no provision in the code for return of the protested amounts should the challengers prevail. The tribal tax agency rejected their protest, and the business owners appealed to the tribal courts. In June 1995, the tribal trial court denied the owners' motion for summary judgment, concluding that questions of fact remained to be decided with respect to the jurisdictional issue. In the meantime, the Tribe has filed liens with the Big Horn County Clerk and Recorder as to allegedly delinquent resort taxes. Whether these liens are authorized under state law is uncertain, but it is clear that they constitute a cloud on the property titles of the business owners. It is also clear what is really needed is an expeditious resolution by a federal court of the core question: whether the Tribe can impose the resort tax at all. This kind of dispute, needless to say, does little to encourage entrepreneurs to invest in reservation businesses since, aside from the jurisdictional questions themselves, there is no forum viewed by nonmembers as impartial immediately available to answer those questions. I^age 8 1 937 V. SUGGESTED STATUTORY CHANGE The scope of tribal jurisdiction over nonmembers is a vexing legal issue that can be resolved conclusively only by federal courts unless Congress acts to define such authority. Although it would be entirely appropriate to define that authority legislatively, I do not foresee Congress doing so in the near term. But what Congress can do, at least, is to remove a judge-made obstacle to nonmembers' gaining access to federal courts to determine jurisdictional issues. Providing access merely would make the playing field level, since tribes can freely sue states or individuals in federal courts to have jurisdictional issues resolved. Beyond notions of basic fairness, providing access would have the practical effect of allowing far more expeditious determination of these issues; reducing the extraordinary cost attendant to requiring exhaustion and then, in almost all cases, a federal court action; and developing a more complete body of federal decisional law to guide tribes, states, local governments, businesses and ordinary citizens in understanding the reach of tribal authority. The National Farmers Union exhaustion doctrine as applied by the lower federal courts has greatly impeded the development of law in this area. It is perhaps beyond the scope of this statement to propose the text of the statutory change I think is necessary. Nonetheless, I urge consideration be given to amending the Indian Civil Rights Act, 25 U.S.C. §§ 1301 to 1303, to provide that access to federal courts shall not be denied by failure to present claims or issues challenging applicability of the powers of self-govemment to the federal court plaintiff for resolution by a tribe, a tribal agency or officer, or an Indian court, unless the federal court plaintiff is a defendant In a tribal court proceeding Initiated prior to the federal court action and has a full and fair opportunity to raise the claims or issues in such proceeding. Thank you for the opportunity to present my views on this very important issue. Page 9 1 938 BIG HORN COUNTY ELECTRIC P O Box 410 Hardin, Montana 59034-0410 ./. Quality Service Since 1941 September 13, ISSg wj The Honorable Slade Gorton United States Senate ""- Room 703 Hart Senate Office Building Washington, D.C. 20510-8450 Dear Senator Gorton: This letter is offered for presentation at the September 24, 1996 Senate Committee on Indian Affairs hearing on tribal sovereign immunity. Please relay the frustration Big Horn County Electric Cooperative has experienced in dealing with the Crow tribe and their Tribal Utility Tax. Big Horn provides electric sei-vice to two sovereign Indian tribes in south central Montana. We serve the vast majority of the Crow Indian Reservation and a portion of the Northern Cheyenne Indian Reservation. Big Horn has a long tradition of providing quality electric service to our valued Native .American consumers and our Trustees have maintained a clear focus on keeping rates affordable, and protecting the interest of all our consumers. The issue of Tribal taxation has driven a "wedge" into our member/tribal relations. As an attribute of sovereignty tribal governments have the authority to tax on Indian trust land. The extent of this authority, however, must be legislatively placed within parameters that protect non-tribal members from taxes enacted for the purpose of generating revenue for the provision of services to which non-tribal members are denied access. I realize that the issues of tribal taxation, and jurisdiction over non-tribal members on fee lands, are very "thorny" from a political perspective. However, if left unresolved families and businesses will be severely damaged - harmed by a situation that if it were anywhere else in the world the federal government would condemn the affair as a violation of human rights. Big Horn County Electric Cooperative is dedicated to reaching a higher level of understanding between the cooperative and the Crow tribe on all issues. Unfortunately, that will only happen if Congress establishes clearly defined principles under which the tribes exercise their right of self governance. Sincerely, — r3^.^s--v^- Tim R. Gregori Manager cc Senator John McCain Senator Conrad Bums Phone: (406) 665-2830 FAX: (406) 665 2644 939 Senator Slade Gorton September 1 8, 1 996 United States Senate Room 703 Hart Senate Office Building Washington, D.C. 20510-8450 Dear Senator Gorton: This letter is for presentation at the Sept. 24th , Senate Committee on Indian Affairs hearing, on tribal sovereign immunity. As president of the Big Horn Livestock Association, I would support legislation granting immunity to non-Indian citizens on the reservations. These issues of jurisdiction, taxation, tribal sovereignty and tribal courts on "Open Reservations" are critically different than on "Closed Reservations". The U. S. Senate Committee on Indian Affairs needs to educate themselves on the differences between "Open and Closed" reservations, before recommending remedies for both. The non-Indians residing within the "open" reservations, some homesteading, were granted that right by the U.S.A. They homesteaded, with the belief they were under the U.S. flag, under the jurisdiction of the United States. If legislation granted tribes on "open" reservations sole sovereignty, this action will put these non-Indian citizens under tribal jurisdiction. This would in essence, "abandon" these U.S. citizens. The way things are now, there is little or no law in these tribal lands. Nobody knows who has jurisdiction over who. Examining past tribal court rulings over non-Indian litigation in this county, the non-Indians were treated quite severely. I do not support "denying" tribal sovereignty, over themselves. But please give the non-Indian residents the protection state jurisdiction would give them. This is what their tax dollar provides for. Sincerely, /-^ ^ Mifes Torske Big Horn Livestock Assoc. Hardin, MT cc Senator John McCain Senator Conrad Bums 940 THIS WRTTTEN TESTIM^Bi^^^|^S«4^ RECORD. MONTANA HOU8K OF HKPRE8ENTATIVKS RS)nESEKT4TIVE JUDY RtCe MtAOOCK aMum^ES: HOUSE 0ISTRICT6 ■DUOmON AQRICUUWE HGLQtAAOORESS: SJK(B*WaEML(SLKKINB CAPTTOLSUILOING HELfNA, MOnVUtA 5)8200400 PHONE {406)*«-«00 HCNMEADORESS: POBOXQ LOOOE OBASS. MONT/WA 39090 PMOKE;(-««}6»«08 SEPTEMBER 24, 1996. SENATE COMMITTEE ON INDIAN AFFAIRS HEARING ON CLIVIL JURISDICTION SOVERCEGN IMMUNITY OE INDIAN TRIBES AND ITS EFFECT ON NON INDIANS ON AND OFF RESERVATICWS. Seoator SIste G(»tcn U.S. Senate Committee Mc^ mdodes tnlial ottn^ tfae satoe teq>ect the states bands are tied in idadon to tribal meitbers becaose of tfac semi-sovadgB nation status. Liloe wise Banks and other businesses are eocouraged, is &ct mandated to make loans to tnbal meoibers, bnt as soon as tribal members rctam to reservatioiu where soveieign iimntim^ ststDS is in effect the banla and othen . have no vsy to dann property in debob, except tfaniugh tribal courts. . Sovereisn tnununily has made no separation of powers, between judicial and executive braocbes of tribal govemnent Tbetc ate no specific guide line Ibr procedure. Tiibal courts are lu^ tied to any code of ethics. People who work tiiere or are a part of the tribal legal system are there at die pleaaoe of whoever is in cootrt^ of tribal politics. Again I have no inteatioa of making judgment of flie tribal or ooD-ttibal posons who become ioyotved in die tribal courts If you are rum tribal, you are smpiy at the mercy of the mood of day. There is no wjQr of being guaranteed yoor civil rl^ as a IMted States dtizen, you have no say in ariy w^shqieorfbcm. If you are a tribal menber, you have ewen less recourse, becaose your options are limited. Ifyou have complaint coocemingdBctiwt or tribal hiring prDcednre.OTfirit^ you arc referred to tribal court and if yoa dm't haH>en to be in accordance with A»4iatev«r adnunistiation. the court are aemng at flie letture of the trfbd administration. In trying to find soliikms to deal with afl ^pes of otitic oil the Citw Reservatiou, ^ consensus of law cafi)«»Mrt officers is always, we c«x i»ck up d>e oflfaidcrs but if the court can't «• won't deal with ifaem, what else can we do? The curious thmg about the 941 REQUEST Tins WRITTEN TESTIMONY BE E^f^EE^ED IN THE RECXHID. whole aovemg^BBoe 15 ftgt people Hke tew aifoi t xu tgtt officers can not State wiffltlfae problem is. fix fearoflosingtbdr jobs. Banks can't say IbeprcAkoiistiieyeDcoiHiter, tfaey aic ampiy expected to make toens. The jurisdiction issues are a bit liVe the story of the king's new doftes, evoyooe knows but can't say, becansc someone might be ofTeodfld. Limits of sovereiyi imuiumly «od joriadictioD.. leave lOOm fin- a lot of mischief on taws, the wurt systems, kw ari tei!)ber20, 1996 Dear Senator Slade Gornp^ My ftmit^ and 1 Sin Ml tiie Crow Indian Resovadon In Mcmtam; and w^ fl^violm#i^ MgaiiMtt ncYnJn^iaiM gomglidoig ihft Ctipw Trihaj CoUTt The ClDW iTUfian Court System bUased in ilwrdedfioas and tT3)al Judges serve at the pteasore of the Tribal Conndl or tiie Qaiiman. The United States Cansthutioa does iK)t apply for Don-Li(£ass goiAg to tribal (xwit Ihong om die leservatioo; and tberi^xe oar povMsd rishts mean DOthi^ If by chance a oon-In^an^vins in atobal court, veiy sddomis any acdon takea in Ae non-Int&n's &vor. Tbe best couise of action for evoyone is to have tlMsr cases presQited in de County, State or Federal Cooxts. ^ncerdy. LyteNeal cc Senator Cosiiad Bums Senator Max Baucua 943 RoyNeal RT. B Box 922 Lodge Crass, MT S90S0 Se{>tember20, 1996 Dear Senator Slade Goitso. I am itt&voroflegidaaon to separate noiHi4>d members and tribal m^^ . joiisdicttonal purposes. To preserve tiie dvil lig^ of afi iK>Qrtr3)a] members it is necessaiy and prudaot for Cat^EKS to claii^r jurisdictiooal boandtfies. ^dS American citizens who are not tribal members should not be aisject to Tribal jimafictioiL The Coimty, State and Federal coiirts have protection to safe guard i£. citizois dvil rights. Another level of courts only leads to further deteiiofaijnn nf ti\diviH,^a) firce^rym and is an additional financial burden m an area that is already he»nly buidenad. Sinccrety, n^ tluK RoyNeal CC Senator Conrad Bums Senator Max Baucas 944 Mirileb States BiBtrirt (Court StfUm Biitrid of SaihrngUiti ^niltb atitt* Courthouii StatHt. WnMiiixiatm SSWA-lliT SorluBa 3- Botfaitim. CJHHlttJjt * November 7, 1990 Richard T. Bremer, President Lumini Property Owners Association 177 Telegraph Road, Suite 647 Bellingham, WA 98226 Dear Mr. Bremer: The court has received your letter of October 11, 1990, expressing concern about discriminatory actions tcJcen against non-Indians by the Lummi Indian Business Council. You contend that applications for sewer exten- sions by non-Indians are being reviewed and denied by the Lummi Tribe in a discriminatory manner, in violation of this court's Consent Decree issued December 8, 1982. Upon review of the documentation attached to your letter, the court is indeed concerned about possible vio- lations of the non-discrimination mandate in the Consent Decree. You should be aware that the Consent Decree does set forth specific grievance procedures to be followed by anyone contesting decisions related to sewer service (see paragraph 19). However, given the serious nature of your allegations, the court strongly urges you to seek the assistance of an attorney. Enclosed you will find a copy of the Consent Decree. The court is forwarding a copy of your letter to the at- torneys of record in the underlying lawsuit, and it hopes that a resolution to this particular problem is quickly forthcoming. Please keep the court informed of any de- velopments in this matter. Sincerely, Barbara >f Roths te in cc: G.Z. James Sealth, Lummi Indian Business Council Harry L. Johnson, Office of the Reservation Attorney Daniel A. Raas, Office of the Reservation Attorney Abigail Ellas, United States Department of Justice Carl A. Johnson Charles B. Roe, Jr., Assistant Attorney General 945 UJHHI PBOPEBTT OVNEKS ASSOCIATION 177 T«l«gr«ph Road, Suit* 647 telllDghaa, WA 98226 Octobar 11, 1990 Judge Barbara Rotbataia Ra: Racial Diacriainatlon by 1010 Fiith Av*nua Luaal Triba toward paraona U. S. Court llou«a raquaating aavar axtanalona Saattla, WA 98104 Daar Judga Rotbatala: Wa b*ll*v« tbat tba Lu— 1 Trlba la discrlainatlng against non-Indiana by danylng raqu*«tad aavar axtanalona to non-Indiana In tba Sandy Point Halghta davalopaant araa. In dlract conflict to your conaant dacraa In Civil Action no. C79-6a2R, Uual lodiU. IHittS. IBSL \lDiiSl Stataa fil A— rica v^. WUbUC Sloca Hovaabar ot 1969, paraona raquaatlng aavar axtanalona hav* baan told that thay aust aign a conaant to tribal jurladietlon stataaant (copy ancloaad) bafora balng allovad to book up to tha aa«ar. To our knowladga, no non-Indian, aftar raadlng tha atataaant, haa baan vllllng to algn tha atataaant, and ao aoa-Iadlaa aavar axtanalona hava baan built In ovar a yaar. UnXortunataly, aa aar collactor llnaa vrm not axtandad to all lota vithln plattad davalopaanta at tha tlaa oi original conatruction. Llnaa vara run to axlating tioiiaaa only, and aignificant araaa of lota vithin pradoainantly non -Indian ovnad pXattad davalopaanta vara laft unaavarad. Racant pi upoaari aavar axtanalona by non-Indiana in tha Sandy Point Halghta araa, which vara approvad by tha Luaal Tribal Savar and Watar Dlatrict board, hava baan turnad dovn by tha Luaal Indian Buainaaa Council. Tha raaaon givan for tha danial of aavar axtanaion la tha daia by tha council that tha vatar purvayor aarvicing tha araa doaan't hava a valid vatar right (copy of lattar ancloaad). Additionally, tha LIBC haa aant a lattar (copy ancloaad) to tha aavar board that tha LIBC policy la to hava tha Luaal Tribal vatar ayataa, vhich la adainiatarad by tha Luaal Tribal Savar and Vatar Dlatrict board, dany vatar aarvica by tba dlatrict to any nav non-Indian hoaaa. Aran't thasa •ctiona by tha LIBC la diract conflict vith tha non-dlacrlainatlon aandatad by you in tba eoaaaot dacraat Va baliava that tha raault of thaaa actiona by tha Luaal Indian Buainaaa Council la to dany oon-Indiana thalr conatltutional right to anjoyaant of thalr proparty and aeoaaa to a m»^9T ayataa vhich thalr tax dollara hava •Iraady paid for. Va aak that you look into vhat va baliava to ba racially diacriaiaatory policiaa by tha LIBC, aapacially aa to tha condltiona of tha conaant dacraa ragardlng aavar aarvica, and to mm* that tha Luaal Trlba la nada to ba aecouatabla to tha coodltiona of tha conaant dacraa. •Abla. Va would appracia lag froa you aa Siaoaraiy, Braaar, Praaldant Luaai Proparty Ovaara Aaaoclatioa 946 LUMMI INDIAN BUSINESS COUNCIL V- 2616 KWINA RD. • BELLINGHAM. WASHINGTON 98225-9298 • ^206) 734.8t'80 oe?*«TjjENr EXT and (hereinafter referred to as 'the 0«n«r' ) are the ovaera a£ a certain tract a£ land located on the Lumnl Indian reacrvatlon and acre particularly described belov (*ths land*). Ths Ovner desires certain municipal services froa the Lummi Indian Tribe ('the Tribe*), for the land and activities on the land. Tb» Tribe is villing to provide the land v^'O) the requested aerviees en the expreas condition that the Ovner pay all fees and charges for the service and consent to the full civil adjudicatory and regulatory of the Tribe over the land and all persons and ac^ivi^i.es on the land. The Qwner hereby consents to the full civil ad^udica-cory and regulatory Juriadlcxxon of the Tribe over the folioving described real property and over all persons and activities thereon. The Tribe agrees to provide sanitary sever service to the property under the teras and condiiions of its Sever and Water Ordinance as presently in effs«t or hereafter amended, and any agrssaenta executed In accordance with the Ordinance. The agreement shall run vlth t>is land and be bi.ndtng on t.ie Owner's hexrs. successors and assigns, and shall be irrevocable Without the vritten consent of the Tribe. Legal description: Dated: Qvner Qvne: 947 LUMMI INDIAN BUSINESS COUNCIL 2616 KW.NA KO • EcLLlNGHAM. WASHINGTON SS226-9293 • (206; 73^-6160 OEPART.VcNT Exr August 28, 1990 m 2-1930 li.-nrai r.'itai Se.iti Oislrlei Lumal Trib«l Sewer and Water Oiscrict 21S6 Lumal View Drive Bell Ingham, UA 98226 Re: Proposed Sewer Exteosions Dear Board Mcobers: The Council considered the July 3, 1990 nemorandua from Mary Lou Julius regarding the District'* conceptual approval of three specific sewer extensions in the Sandy Point heights area, at the request of the owners of Lot 17. Division 11, and Lot 14, Division 3. The Sewer Board had approved the concept of building these three extensions with the financing details to be resolved at a later date. The aemorandua froa Che Sewer Board does not indicate the source of water supply for these properties, but It Is our understanding that the property owner* are relying upon the Sandy Point Improvement Company to supply water. Since the Sandy Point laprovement Company does not have a valid water right for its wells located on the Reservation, there is no adequate water supply system for these properties, and we cannot approve an extension of the sewer system which would have the effect of Increasing the demand for water from this source. Vhan this issue has been resolved, we' will again consider the approval of Chase extensions. Please notify the applicants of our decision. Very truly yours, XIOOU INDIAN BUSINESS COUNCIL J(.//^i4e*^ C.lfjtfiet Sealth Manager 948 LUMMI INDIAN BUSINESS COUNCIL 2616 KWINA RD. • BELLINGHAM. WASHINGTON 96226-9293 • (206) 734.8160 OEPARTWENT £XT August 27, 1990 Luaml Tribal Sewer and Vater Board 21S6 Luaal View Drive Belllnghaa. VA 98226 Re: Bater Service Frea Tribal Hater System Dear Board Hcabcrs: In answer Co your request for clarification regarding the connection of new, non-Indian custooers to the tribal water system, it is necessary to restrict new connections to tribal aenbcrs at this time. Existing non-tribal member customers will, of course, continue to receive service. Sincerely, taml INDIAN BUSINESS COUNCIL C.I. James Sealt Manager t 949 1110 Courtright Road Mohave Valley, Ariz. 86440 August 22, 1996 C.E.R.A. James L. Mitchell, 3319 ffighway 485 Jemez Pueblo, N.M. 87024 Dear Jim: Milo Nelson has already apprised you of the fourteen year struggle that he has been in with the Bureau of Land Management and the Mojave Indian tribe. My case is also part of the same struggle. I purchased over 48 acres of land in back of Dike road whose main value at the time was the contingent finger of almost 55 feet of river &ontage that allowed all of this property access to the river. My property was advertised for sale just before this situation happened. One of the offers on my property, which at that time included the finger of river access, came to just under a half milhon dollars. The prospects of this S£ile were ended when clear title could not be guaranteed due to the litigated land-grab" of the B.LM. for the Mojave Tribal benefit. Even though subsequent actions have cleared the majority of my property for sale, those actions have stripped me of all river access which made that property valuable, and have lowered the value as a whole to less than half of its previous value. I also wrote to Senators John McCain and Dennis DeConcini and Representative Bob Stump, asking for rehef in this matter, and was assured in return that the B.L.M. survey was correct, but found that no one had mentioned to them, or to the O.H.A. court that the shoreline used by the B.L.M. survey was not the one they were directed to use by the O.H.A. As a resxUt, the survey had a 77 degree angle instead of the 90 degree angle to the shoreline that it should have had. This matter could have been culminated and ended long before this by the simple expedient of a court order to show cause on the survey. However, due to Tribal Sovereignty of the Mojave Tribe, in whose interest the B.L.M. was supposedly acting, no such court order can be served nor sought. Thus, until the tribe decides to act upon the bogus survey, my once valuable property has been reduced to an almost valueless state. Another drawback to this matter is that Mohave County tax board finds the original value to be the one upon which they base taxation and ignore the valueless state that has been imposed upon it in this struggle. Please include my case along with that of Milo Nelson's as one and the same struggle that shows no sign of being resolved due to the Tribal Sovereignty that protects this issue firom being resolved in a federal court of law. Leoii Abrams 950 November 03, 1991 Mr. Willisun Covey P.O. Box 215 Big Arm, Montana 59910 This letter is being written concerning a problem which has been prevalent for seventeen(17) years. Surely, it's time for the problem to be resolved. Letters have been written and sent to the President of the United States, Secretary of the Interior, Bureau of Indian Affairs in Washington D.C., Phoenix, and Parker, Arizona. Also, letters were written and sent to the Governor of California and all of the elected officials in our state gov- ernment. Many are sympathetic to our problem, but either say they can't or won't do anything to help. Why? To whom do we turn for help? We believe as citizens, taxpayers, and voters of this wonderful country, our elected officials should respect us enough to investigate and resolve this problem, or at least address it. There is a strip of land along Havasu Lake, California known as " the colony There are seventy-seven (77) homes on this land. The Bureau of Land Manage- ment was in control of this land from 1941-1974. Leases were given to these people during the 1940's ancl 1950's, to build these homes. The " Chemehuevi Indian Reservation " is locst^O hcvn at "avasu Lake, Ca.. When the Parker Dam was constructed onC V'pvp.ru La!-.-^ forned, the Tribe was paid ( FMV ) by the Secretary o:' t'l-^ Intnr.r T for any of their land used in forming the lake No Chemehuevi J-.c^irvi cciiid he found, so the money was held in trust. Then, in 1970, a Cher'"'j;Bvi Tribe was formed and the money turned over to them. In 1974, the acting Secretary of the Interior, Mr, Whitaker, committed an act of unconstitutional disposition of public land by returning this strip o land !cnown as " the colony " to the Chemehuevi Indian Tribe. Public land can not be given to a Tribe. The Tribe gave the homeowners a fourteen (14) year lease. This lease expired on July 3, 1990. The homeovmer's group, called The Betterment Society, made twenty-seven (27) appointments with the Chairperson and the Tribal Council between January 1990 and July 3, 1990, to negotiate a new lease. Every one of these appoinl-.'nents was cancelled by the Chairperson and Tribal Council. Leases were sent out to these homeowners on November 26, 1991, and rejected. I am sending you a copy of the lease. No sane person would sign this type of lease. My sister owns her home on this property. Her income is $687.00 per month. After paying $300.00 lease rent per month for the land, plus her utility bil how is she to live? Some of the homeowners are being charged $500.00 per month lease rents for the land. The lease rents for the land range from $2100.00-$6000.00 per year. All the homes are owned by the homeowners, they are only leasing the land.. There are widows and others living on fixed in- comes. All of them thought they could live out their lives here in peace on their pensions. Instead, since 1974, it's been nothing but hassel. No one blames the Chemehuevi Indians. It's our government officials telling us we have no rights and they refuse to investigate or correct these problems. We demand, as citizens, voters, and taxpayers that these problems be investigat< and correctec Sincerely, Shirley Smith P.O. Box 1693 Havasu Lake, Ca. 92363 951 Lewiston, Idaho Dec. 1, 1991 Mr. William H. Covey President, C.E.R.A., Inc. P.O. Box 215 Big Arm, Mont. 59910 Dear Mr. Covey, The following is a summary requested by you of our boundary dispute in Kamiah, Idaho. Due to a 1989-1991 Re-survey by the Bureau of Land Management; the Bureau of Indian Affairs has informed us that we are trespassing on Indian Land and upon final decision of the BLM we will be given 30 days official notice to vacate. Fee Patent was issued on the land in question in 1953 without benefit of an official survey by the government as required by law. ( See: R.S. 2115 ) In 1957, the non-Indian purchasers, requested a surveyof these lands from the BLM and were instructed by the BLM to employ a private surveyor which they did. It was not until some thirty years later, after the lands had been improved with a house and other valuable additions that the BIA attempted to change the historical boundaries and claim Indian Sovereignty over lands on the reservation so the U.S. Courts cannot interfere and adjudicate the issues involved. (( See: TREATIES with the NEZ PERCE INDIANS 1855, 1863 and 1868 ; Indian Severalty Act of Feb. 8, 1887, sec. 6 ; and the Act of June 2, 1924 ( 43 Stat. 253 ) declaring U.S. Citizenship for all Indians The BLM, under the direction of the BIA, caused their Chitjf of Field Operations and Survey Party Chief to bring the Indian Trust Heirs onto our property and show them the corners of "Their" property as determined by the BLM survey without regard to existing Bona Fide rights of adjoining owners. As adjoining property owners, we have feared for our personal safety and have moved from our improved lands which were warranteed by the former Indian owner. We have been forced to acquire other living accommodations entirely at our own expense and have expended over $ 20,000 in defense of our property covered Govt. Fee Patent, Warranty Deed and insured title. We have been informed unilaterally by the BLM that we do not own these lands; this following documented proof on my part that their survey is in Gross Error. As a Surveyor with over thirty years experience in land survey, I have taken issue with many of the BLM survey errors and shown them documented proof to contradict their position. All of our written Protests and Appeals have been routinely denied by the BLM until intervention by Senator Craic in Auaust 1991. 952 (2) Due to Senator Craig's efforts, BLM's official decision of May 31, 1991, will be reviewed by the Interior Board of Land Appeals. This entire issue has been an emotional and financial nightmare, perpetuated by denial of our consitutional rights as United States Citizens and a total disregard for "our" Civil Rights. Sincerely, Lorna L. Boykin Reynold L. Allgood Ave. in)2 Richardsorf^ve. \ 11(I»2 Richardson Ave. 1102 RichardsorMlve. L^iston, Idaho 83501 Lewiston, Idaho 83501 953 ROBERT C. WENDT 8596 Hamilton Ave. Huntington Beach, Ca. 92646 (714) 960-2700 WILLIAM H. CX)VEY December 5, 1991 P.O. Box 215 Big Arm, Montana 59910 Dear Mr. Covey, I am addressing you as a fellow tax paying American citizen with concerns that my civil rights are being threatened. I am seeking your respected advise and assistance in the following situation. I am the leaseholder of a lot in the area known as the "Colony" on the shore of Lake Havasu in California. The "Colony is a coimnunity of seventy homes with the land held in trust by the Government for the Chemehuevi Indians. On July 3, 1990, our leases expired , at which time we continued, our previous attempts to negotiate a new lease with the Chemehuevis. Recently the residents of our community and I received a lease proposal from the Chemehuevi Indian Tribe directing us to sign and pay up or vacate the premises, meaning our homes, within fifteen days of the November 26 date stamped on the cover letter . Any personal property left in the area after that period shall revert to the landowner, meaning the Tribe. Please clarify for me; who is the "landowner" of this property? After much research I have yet to find evidence that the Chemehuevis are a patented Indian Tribe by treaty or Congressional order. As for land ownership, it is my under- standing that the Government is holding this property in trust for the Chemehuevis with the right to benefit from the rents that we pay while being relieved of the property tax burden that is also our responsibility to pay. As a leaseholder I was shocked to see the Chemehuevis issued a lease that increased our one year lease amount by more than one thousand (1,000%) percent with yearly increases according to forthcoming appraisals at the option of the Lessor for the duration of the lease. I would like to see the initial appraisal that substantiates such an increase. The term of the lease is for five years retroactive to July 4, 1990, with an additional five year option at the discretion of the Lessor. A relatively short period considering the Lessee is committed to pay an undetermined porportionate share of the cost to construct a water/sewer main sufficient in size to service the Colony area. As stated in the lease, the Lessee is to accept the expense to connect to utility services such as gas, sewer, water, cable television, etc., as they become available within 300 feet of the property line. Included in the lease is an insurance clause requiring joint coverage in the names of the Lessee, Lessor and the United States of America. In the event of damage to the extent of seventy-five (75%) percent or more of the property im- provements, reconstruction shall commence at the option of the Lessor. If the Lessor elects not to reconstruct, the premises are to be cleared at the Lessee's expense with all insurance proceeds paid to the Lessor. In discussing this matter with my insurance agent, it was his opinion that it would be practically impossible to get an insurance company in this country to provide such terms of coverage. 954 Oiie of the stipulations of the lease requires all vrtio enter the property on the Lessee's behalf to abide by the laws of the Chemehuevi Indian Tribe. These laws have never been made available for the knowledge of the "white" community, yet the , Tribe reserves the jursidiction rights to impose and enforce laws unknown to us. It is not my intent to exhaust you with each onerous provision contained in this lease but as you can see, there are many objectional clauses. I would like the opportunity to negotiate some of the terms with the Lessor. Unfortunately the only communications the Lessor will accept are in writing mailed to their address. Given only fifteen days to complete and enter into a new lease agreement or vacate I the premises leaves no feasible time to initiate a negotiation process. For more j than five years many of the leaseholders have attempted open, individual negotiations with the Lessors. Each has been greeted by a closed door. I fear the impossible deadline will have passed even before you receive this letter. Nevertheless, I would appreciate any assistance you may have to offer in this matter . Thank you. Sincerely , ^eri Wendt , I 955 GORDON & NAOhl GILBERTSON 3111 SILVER SADDLE DRIVE LAKE HAVASU, ARIZONA 86A03 (602) 855-6513 December 5, 1991 Office of Intergovernmental Affairs Washington, D.C. Dear Sirs: In 1975 my wife and I purchased approximately 279' of Colorado River Frontage located in Mohave County, Arizona. We planned to fulfil the American Dream and build condominiums on the property as soon as we could pay for it in full . Then when we could retire we would have income from the project to see us through the remainder of our years . In 1982, seven (7) years later, Mr. Leon Abreims, who also purchased property in the same location, sold his land and improvements. He went to the County seat to inquire about a zoning change and was told that he did not own the property. He called me and told me that he had found out that the Bureau of Land Management had completed a resurvey of the land and had taken our property away from us and it was now part of the Fort Mojave Indian Tribe Reservation. We immediately informed First American Title Insurance Company, who insured the property, and told them what had happened. They in turn filed an appeal with the United States Department of the Interior. Now almost ten (10) additional years have passed and we are back to square one with the Administrative Procedure process and we still do not have a final decision on the corrective survey performed by the BLM. I UNDERSTAND THAT EVEN IF AND WHEN WE OBTAIN A FINAL DECISION FROM THE DEPARTMENT OF INTERIOR, THE TITLE WILL STILL BE CLOUDED, UNTIL THE MATTER IS SETTLED IN FEDERAL COURT. This is a real hardship due to the status of the Ft. Mojave Tribe as Sovereign, and the fact that we cannot file action with them in our court system. During all of this time, the Government specifically, the Bureau of Land Management, has not been the least S3rmpathetic to our circumstance. We bought the property in good faith, and have had to fight the government, and the tribe as intervener, in an apparently endless battle of Procedures. The whole situation has created an untold financial hardship on us, and we still continue to appeal to the Secretary of Interior. When will it all stop? Will it settle in our lifetime and what do we do if we do get a final decision from the Secretary? We still can't fulfill our goals, due to the clouded title, and so all this time spent from our lifetime and we still have not regained the right of actual ownership, because of the tribe's sovereignty. The most recent reapportionment is still not equitable and there is no end in sight. I really did not think a thing like this could happen in 956 Page 2 - Gilbertson, 12/5/91 the United States, NOT BY OUR GOVERNMENT! Our property has effect been taken away from us, property that we bought in good faith and according to the law. We have both worked hard all our lives and now approaching retirement and all our efforts are in ruin. By the action of the resurvey the BLM has allotted approximately a 35% increase in the amount of river frontage allocated to Section 10, belonging to the Fort Mojave Indian Tribe, while simultaneously increasing the amount of frontage allocated to Section 15, belonging to myself, my wife and other private citizens, by only IZ. If that reflects the most equitable apportionment possible, then the Department of Interior and the Bureau of Land Management have a gross misunderstanding of the concept of "equity" or they both have patent disregard for the citizens of this country, or perhaps they just do not understand the circumstances involved!! I would appreciate your attention to the above and any action your office could recommend. Also, if you could make the President aware of our \ circumstances, he may be able to suggest other appropriate action to be ! taken . I Thank you. Sincerely, /s/ Gordon D. Gilbertson Mr. Gordon D. Gilbertson /s/ Naomi S. Gilbertson Mrs. Naomi S. Gilbertson GDG/ms cc: Citizens for Equal Rights Alliance File Map Enclosed (This letter has been retjrped from a difficult to read fax copy which Mr. & Mrs. Gilbertson sent to me. The fax copy is on file in the Citizens Equal Rights office and available upon request. The copy of the map is difficult to read, but am sure the Gilbertson' s would be happy to furnish you a better one, if you need it.) 957 958 PATTY MURRAY COMMITTEES: WASHINGTON APPROPRIATrONS BANKING, HOUSING, AND URBAN AFFAIRS BUDGET United States Senate -c.co„...o.^,cs WASHINGTON. DC 20510-4704 July 23, 1996 Mr. William Bonnar 4448 Moresley Way Feradale, Washington 98248 Dear Mr. Bonnar: Thank you for contacting me with your support for .Section 329 of H.R ^662, the fiscal year 1997 Interior appropriations bill. It was good to hear your views on this important issue. As you know. Section 329 would have subjected all governmental decisions of Indian tribes to the civil jurisdiction of state courts and waived the sovereign immunity of Indian tribal governments. Non-Indian property owners on Indian reservations have expressed legitimate concerns to me on various issues, and I understand the dynamic problems involved. However, I joined with several concerned colleagues, both Democrats and RepubUcans, to remove Section 329 from the appropriations bill for a number of reasons. First, I oppose creating controveisial and far-reaching shifts in public policy by attaching legislative riders to appropriations bills. Policy decisions should reruain with the authorizing committee, in this case the Senate Indian Affairs Committee, in order that hearings may be held on the relevant issues surrouoding a decision. Second, due to the breadth of Section 329, nearly all tribal government actions would be subject to the jurisdiction of state courts. I do not believe we should solve the problems of non-Indian property owners by stripping the rights of tribal governments. While we disagree on this issue, it is always important for me to imderstand the concerns of my constituents. If you have fiirther concerns on this or any other issue, please do not hesitate to let me know. Sincerely, on oiA/jaL/*^ Patty Murray United States Senator PM/bk no ON KCVC1£D PATCH 959 PATTY MURRAY committees: WASHMOTON APPflOPRIAT^ONS BANKING, HOUSING. AND URBAN AFfAIRS BUDGET flnitEd States Senate WASHINGTON, DC 20510-4704 September 28, 1995 Ms. Audrey Bonnar 4448 Moresley Way Femdale, Washington 98248 Dear Ms. Bonnar: I appreciate you letting me know of your concern about th^ apnropriatinn): bill for the Department of the Interior (H.R. 1977). It was good to hear from you. As you are aware, there has been cutbacks proposed in many areas during the FY 96 interior appropriations process. Although it has always been my priority to see the Bureau of Indian Affair's programs fairly and adequately funded, the most drastic cuts are currently aimed at the B.I. A. I want you to know I am opposed to these cuts and supported Sen. Domenici's (R-NM) attempts to restore fimding to the Bureau. If this bill is passed as written, many of the tribes and programs on the reservations of Washington State will suffer greatly. Section 1 15 of this bill directly effects Tribal Priority Allocations which represent an important shift in federal Indian Policy. In addition to recognizing the reduction in Bureaucracy and red tape that self-governance allows and the shifting of decision-making from the federal to the local level, the TPA fimds also represent a fundamental recognition of tribal sovereignty. Section 115 of H.R. 1977 will force undo strain on the tenuous self- governance agreement between the tribes of Washington State and the United States federal government. Be assured, I take the U.S. Government's trust responsibility to Native Americans very seriously. I recognize the govenrnient-to-govemment relationship between the federal government and sovereign tribes and trust responsibilities that emanate from our treaties with the Indian Nations. As a member of the Senate Appropriations Interior Subcommittee, I will fight hard in support of fiill funding for Indian programs, especially health, education, and protection of natural resources. Again, thank you for keeping in touch with me. ^-^ N Sincerely, ^ \ Patty Murray ^-^ \^ United States Senator PM/mos PMNTIO ON RECVOED PAPCR 960 September 6, 1996 Diane Feinstein United States Senate 331 Hart Senate Office Building Washington D.C. 20510 Dear Mrs. Feinstein, I aa writing in regards to tribal sovereign ianunity that has been granted on Indian reservations vithin our nation. I understand the issue vas raised before the Senate early this suaaer in debate over the Interior Department Appropriations Bill. The clause introduced by Senator Gorton of Washington 'proposed the repeal of tribal sovereign immunity to tribes as it inadvertently affects the rights of non-tribal members. The clause was removed from the bill providing the issue will be addressed at a hearing of the Senate Indian Affairs Committee scheduled in late September. I'd like to share with you my experience dealing with the matter of tribal sovereign immunity and the negative impact it has had on myself and virtually all those who reside in my community. A brief history of. our situation goes back to the early 1940's when the U.S. Fish and Wildlife Department offered leases Under the provisions of the Public Lands Act, now known as the Small Tracts Act to individuals consenting to build homes on the remote and barely accessible shore of the newly inundated Lake Havasu. Through a mutual, neighborly effort a seventeen mile road was graded by the tesidents from the main highway and utility service to the homes was installed providing a foundation for our community, Havasu Lake. California. Oir troubles began in 1974 when the acting Secretary Of Interior illegally gave our community to the Chemehuevi Indian Tribe thus creating a reservation. The Government promptly constructed housing adjacent to our town and the Tribe moved in with the intent to exercise their newly acquired control over the area. Due to local protests and the threat of legal action the Goverrment engaged in a behind-closed-doors settlement extending the property rights on the condition that the homeowners relinquish their right to challenge the validity of the land transfer. The extension expired in 1990 and our new landlords (the Indians) immediately increased our rent over one thousand percent in a "Month-To-Month Revokable Permit". Sadly, many of our senior citizens were unable to bear this financial and emotional burden forcing them to abandon their homes. Others are facing virtual homelessness at the news we are soon to be ejected fwith the blessing of the Federal Government) so they can rent out our homes as a parr of a casino resort. Both the Government and the Tribe have refused to compensate us for our dwellings and interest in the property. After getting the deaf-ear in several negotiation attempts with the Tribe and the Department of Interior, in 1992, we filed suit against the Secretary of Interior to correct the jurisdictional switch from Public Lands to Reservation. CXir case is supported by research coTering over 100 years of history proving the transfer and subsequent arrangements are Illegal and unconstitutional. 961 Without a hearing or consideration to factual merits of the case, Judge Terry Hatter in the Ninth Circuit Federal Court, dismissed it in favor of tribal sovereigtt immunity. The dismissal was upheld on appeal. In Uttet dismay and frustration ve even petitioned the court for a re-hearing because the dismissal contradicts decisions in similar actions nationwide. The petition was denied. Since then, the Tribe with the cooperation of the San Bernardino County Sheriff's Office have served a 24 hour Notice of Trespass, independent of a court order, to one of the occupant groups in the shoreline area forcing them to remove their property from the premises. A locked chain was. Installed across their access road and a tractor trench was dug to make re-entry lmi>osslble. The Tribe hds vowed to follow up with the same type of action against all the remaining residents of the area. Consider, please, whether justice has been served ot am I describing a situation of blatant tyranny? Our entire community is in jeopardy of being lost due to the insistence of the Federal Government to uphold sovereign immunity, which was designed as a convenience to avoid litigation in instances where they would prefer there be no challenge. The end result in our case will be the repeal of our private property lease interest constituting a "taking" without just compensation. It's preposterous to me that the Federal Government empowers a group of special interest to confiscate our property through the denial of due process especially when there were relatively simple solutions available such as, excluding the non-Indian occupied Riparian 2tone from reservation status or reasonable compensdtlon for our Interest in the land and our Improvements. As we sit in the eleventh hour ticking toward eviction, I urge you to exercise your leadership appropriately and vote for the reinstatement of the paragraph waiving Sovereign immunity to tribes violating the property rights of non-tribal members! I trust you will support, as I do. Senator Gorton's valiant proposal to defend justice for all. Sincerely, O-a^^Ujce^u^ lAixi. lerl Wendt Mailing address: 21181 Breton Ln., Huntington Beach, Ca. 92646 Telephone* (714) 960-7065 FAXi (714) 969-6871 cci Citizens Equal Rights Alliance Lana Marcussen, Attorney Fellow homeowners 962 1000 Dike Road Mohave Valley, Az. 86440 August 9, 1996 C.E.RJV James L. Mitchell 3319 Highway 485 Jemez Pueblo, N.M. 87024 Dekr Jinx-' -.'.v-'':-;....*i'l . ,r.'-, .<. Vii ■■ .V ■•■..■•-,»•,.;■•,■ I'submit for your consideration, a fourteen year ord^lthaVhaa^dUiErtd the sovereign immunity of the Mohave Indian tribe and the shrewd conzuyiance' of the Btirdi^u'bf Land Management, reduced a formerly valuable piece of profwrty'td a obn-i^solvedy and'dfead-end limbo. This is a case where the sovereign immunity iflsxie lias been utilized' not by the Indians, but in their behalf by the BXJid. for reasops known only^ to tie bureau. The litigation during the first ten years of this travesty upheld' niy^'^daimB' in evei^ hiring . Further challenges to my title would have to be hb&rd in a Fedem court where the niatter could be resolved. Faced with a certain end to this "litigated land-gfab," the B.L;M. used "creative surveying" that ignored the directions of the Officci of Hearing Appals and allowed them to freeze the matter indefinitely. Insupport of the. alK>ve^statetaentsj:hkve enclosed a copy of the map displaying the Bureau of Ileclanuitibid iimp^»6f:. clear title, utilizing the tribal sovereign immunity has been a clever way to keep me frt)m dearing tH€>titl.e either. ; ' Sincerely, ^ vj?iv:>j<^.. Milo W.Nelson :m: 963 Mr. and Mrs Milo W. Nelson 1000 Dyke Road Mohave Valley, Arizona 86440 Augiist 25, 1994 The Honorable John McCain U.S. House of Representatives Washington, D.C., 20515 Mr. Congressman: My wife and I need your help in resolving a problem that has plagued our retirement years with worry and stress. In 1975, my spouse and I purchased a piece of property in Arizona, with the intention of building a home for our impending retirement. The parcel we purchased had 150 feet of river frontage located on the Colorado River. At the time we purchased the property there was a brass cap 50 feet from our property line. The brass cap was stamped as a B.L.M. Cadastral survey marker, dated 1962 and indicated that this was the boundary between section 10 and section 15, with our property being in section 15. Assured by the presence of the marker, and by the title insurance policy rendered to the title by the 1st American Title Insurance Company, we believed ourselves the owners of this parcel of land. We began to develop our land, using savings and our earnings to build without mortgage, until we moved into our riverfront home and made it our residence in 1978. The nearby growth in Laughlin, Nevada, Lake Havasu City, Arizona and Bullhead City, Arizona contributed to the rapid growth in the value of this property, although we had and have no intention of speculating. Wishing simply to live out our retirement in peace in our hard- earned and mortgage free retirement riverfront home, we were soon the object of "Hindsight Litigation." In 1982, the B.L.M. re-surveyed and moved their original cadastral boundary marker about 1500 feet into what had been section 15. We found out about the boundary movement quite by accident, and hired a law firm to push 1st American Title Insurance into a defending action of the title we held. 1st American Title Insurance appealed, and the case went before the Interior Board of Land Appeals, (I.B.L.A.). In brief, after deciding that the Mojave Indian tribe should also be involved, the I.B.L.A. sent the case to an Administrative Law Judge, and the decision was that we had "Bona-Fide 964 Page 2 Rights" and the boundary should be moved back to its original 1962 location. The case was appealed by the B.L.M. and by the Mojave Indian tribe three subsequent times to the I.B.L.A. and three times the B.L.M. was instructed to return the marker to its original 1962 location or to use a surveying method that was not beneficial to the B.L.M's position. Finally, the B.L.M. appealed to the Secretary of the Interior to intervene. The intervention referred the case to the Office of Hearing Appeals with the result that although the surveying method decreed was acceptable to B.L.M. goals, the court decreed starting point, called zero accretion point would not result in a decision favorable to the B.L.M. Ignoring the court decreed starting point, and using the survey method that was now allowed to them, the B.L.M. once again found a satisfactory solution, although totally wrong by the decrees of the court. If this case were to be further litigated, it could only be so litigated in the Judicial system, in that a fair and impartial survey can only be done by parties not involved in the acquisition of land for the government or involved as a protectorate of the Indian Nations. Notified by 1st American Title that we and the other property owners who would be affected by this case would not accept the flagrant misinterpretation of the court ruling, the B.L.M., has refused to take further action, since any action would open the litigation in the Judicial system. The following paragraphs more fully illustrate the salient points of argued survey methods and points of survey. D l8t Hearing B.LJNL argued that the wrong method of survey had been used in 1962, and wished to use a 90 degree method of survey The I.B.LuA. (The Interior Board of Land Appeals ) court decreed that the original proportionate method of survey that all accretion titles had been settled upon was to be used and not the 90 degree method, ordered that the boundary be moved back to its original 1962 position and that the Mojave Indians must be involved in the survey and remanded the case to an Administrative Law Judge to referee. D 2nd Hearing The Adntinistrative Law Judge, in the second hearing on this matter, ordered the boundary nuurker returned to its original 1962 position, affirmed that the original proportionate method of survey be used, and affirmed further that we had ''Bona-Fide Rights." D 3rd Hearing The BX.M. appealed this decision to the I.B.Lj\, joined as per court ruling by the Mojave Indian Tribe. I.B.LJL made the decision to use the original method of survey but stated I f i 965 Page 3 that ''Bona-Fide Rights" did not exist for our property even though large sections of existing titles would be in jeopardy from this action. The BXJVL re-surveyed, interpreting the decreed method in a manner open to criticism, and moved the line from where it was in 1962 by 14 feet into what should be Section 15. The B.LJVI. felt that even the incorrect survey point used did not provide satisfaction and soon appealed the ruling to the Secretary of the Interior to intervene. 4th Hearing By the request of the Secretary of Interior for intervention, the case was taken over by the O.H.A. The decision of O.H.A. was that the previously ruled proportionate method could not be used because there was no zero accretion point. Therefore they now ruled that the 90 degree method requested by the BXJVL must be used, with the exception that the 90 degree surveyed point should be taken from the pre-channeled river. Stating that the present river channel must not be used in coi^unction with the 90 degree method of survey, the O.H.A. failed to provide for a review of the re-survey it mandated and ordered the re-survey . Reaulta of 4th Hearing and Present status The B.LJVL re-surveyed, using the survey method they had finally gained legal ruling on, but ignoring completely the stipulation that such survey method be used in conjunction with a pre-channel river survey such as the one made by the Bureau of Reclamation prior to channeling and presented to the court and the BXJVI. by 1st American Title Insurance in the 4th hearing. Without a pre-arranged court review^ of the mandated resurvey, the B.LJM. used the present channel, which suited its aims, and placed the marker approximately 460 feet inside the old section 15 boundaries, thereby placing two other land owners adjacent to my property within the boundaries of Tndiaw land. Claiming vindication of its claims, the BXJVL has made no attempt at acquisition since the resurvey knowing that such an attempt would be a valid opening for the case to be heard in the Judicial instead of the Executive legal branches and that the case would be settled by impartial surveyors and mediators not involved in land acquisition. 966 Page 4 We are senior citizens. I am now 73, and my wife is 70 years of age, and we have been retired for several years. Since the beginning of the above litigation, beginning with the movement of the boundary marker by the B.L.M. in 1982, our lives have been in a constant state of panic and fright. We feel that in our senior years that the government we both have served in two wars, supported in peace and loved all our lives has become an uncaring and callous juggernaut that threatens almost daily to strip us of most of our very hard earned retirement. Although the title policy by 1st American Title Insurance insures the original amount of $33,000.00 that we paid for the land in 1978, the rest of the property and structures were not insured against title litigation, only disasters of nature and accident as normal. Wishing our retirement home to be lien free we have invested an additional $59,000.00 in the home, and $17,000.00 in a well and other appurtenances. The additional $76,000.00 came from retirement savings and wages before we retired and as it is lien free, it has no Bank or Financial Institution to guarantee its loss. If there were any foundation, verity or legal basis in the arguments of the B.L.M. , we believe that the hearings in those courts familiar with the B.L.M. as a primary litigant would have ruled in either their favor or that of the Mojave Indian tribe. We have sunk an amount of almost $76,000.00 from savings that we could ill have afforded from our retirement except for the development of this property and home, besides the original amount for the property. A very basis for title litigation in this area can be found in the current property values. Averages from current sales in this area quote a price of almost $3000.00 per front foot for river frontage. This means that the land value is nearly $450,000.00; the 2800 square foot home at a bargain $70.00 per foot has a value of $196,000.00; and the well, retaining wall, landscaping and other structures valued at a replacement expense of $25,000.00 bring the marketable value to $671,000.00. We had no wish when we decided to build for retirement in speculating on property and had no clue that property values would reach their present amounts, but we can certainly understand how such appreciation in value could tempt any number of "hindsight Litigators." If we had been speculators we would not have attempted to become lien free, but would have provided ourselves the assurance of mortgage and the mutual interest of a large Bank or Institution. Such would have protected us against an action such as that brought by the B.L.M. If the savings of other retired people of senior age in the recent Savings and Loan Scandal were important enough for Congress to investigate and guarantee, we feel that this situation is no less a scandal and requires investigation and swift settlement. 967 Page 5 Please investigate this matter and do whatever you can to bring this litigation to a swift and just ending that would preclude future attempts at litigation, so that my wife and I can enjoy the few remaining years of our retirement in peace. Respectfully yours, Mui-V^ MUo W. Nelson d*: The Honorable John McCain Washington, D.C. iT^v- *t The Honorable Bob Stump Washington, D.C. Citizens for Equal Rights Alliance Santa Fe, N.M. Mr. John Atkins Farmington, N.M. 968 to io - S 10 iiii ml •O CI BESMDEA PI/kNinilONS 969 JOHN UcCAIN CDHMmi ON MMfO SCMVKtS COMMriTEf OM COMMCnCt. SOfNCC AMD nUNS^OflTAnOM COMiMTTU OM GOVf HMMCMTAL AffAHtS COMMrmi OM (NOUM Aff A1«S SnCUU. COMMITTEE OH ACMC ■Enitd States Senate September 12, 1994 Mllo W. Nelson 1000 Dyke Road Mohave Valley, Arizona 86440 I I I MW«MU ••■Mtl 0«MCI •«»»•■ W MB TOW. DC 20110-0303 (303)224-2239 1139 Sown* AuM SJ (Mlt 214-|]» int touTN Aim* Scmcmh Road tu>n in Ml»A. A2mi0 (Mil 4t1-4JO0 >«00 f AST i KiLTMOat CuiCvi SmTi MM (M:) M3-I4I0 «M WitT P«Ho RaooMOO twin »0 Tuc*ON. AZ tSTOI tMIl tTft-CU* TltJ^MOMi »Oa Ml&NMtO lH»A>A|0 fMll 2}«-n» (M2I tU-OITO In response to my Xatast inquiry on your behalf, •nclossd you will find the letter that I have received fron the Bureau of Land Management. After reading the letter over, I think that you will find it to be self-explanatory. Should you have any further questions regarding this situation, please do not hesitate to contact my office. Thank you for giving me the opportunity to be of assistance to you . JM/xka Enclosure John McCain United States Senator 971 IWMNIfl OvCONCINI ^•A«« fitmcf rmm m%^tjti9t Ft MitCT COMMIIM OM lanlttd ^tattB <^niatc r) nicsfM omrt co m ■«««»<»« WAtHIMQTON. OC 10«I(M>J02 MCUMrrr MN> coo»W M Turn VtTtltAM« A/«A«« .11 «Mo apt— ■fmnow Sapt«inb«r 6, 1994 Mr. and Mra . Mllo W. Nalaon 1000 Dyka Road Mohava Vallay, Arlsona 86440 Dear Mr. and Mra. Malaoni Thank you for contacting Sanator DaConclni ragardlng your problama with tha Buraau of Land Managamant . Tha Sanator haft raquaatad that I raspond to your lattar. I hava forwardad tha Information that you aant to tha Sanator to BLM. I axpact to hare from tham In approxlmataly 4 waaka . Again, thank you for contacting Sanator OaConclnl. If you hava any quaatlona or mora Information, plaaaa do not haaltata to contact me at tha addreaa balow. aincaraly. a< no S. MILLER CRAie S. MILLER Special Aaalatant Office of Oannla DaConclni 323 Meat Rooaavalt, C-100 Phoanlx, Arizona 8S003 CM ■t« •«»•**> 972 BOB STUMP 7 1 1 C«M a2 «»035 |«03)37ft-«B33 AMMCO SERVTCf S COUUtTTfC CongreKK of tfje ^niteb ^tateK ilouKr of 3^epre«tntatibe^ IBa^ington. BC 20515-0303 VmiUMS ATrAMtS COWUtTTlf KMMMO MNfOMr* MMMa November 15, 1994 Mr. and Mrs. Milo W. Nelson 1000 Dyke Road Mohave Valley, Arizona 86440 Dear Mr. and Mrs. Nelson: Thank you for your letter regarding the troubles you are having with your land on the Colorado River. Please accept my apologies for not acknowledging your letter sooner. While I have received doctnnents for the Bureau of Land Management to review, there is additional information that I am attempting to secure. Please be assured that I will keep you informed of further developments. If you have any additional concerns, please do not hesitate to contact me. Again, my apologies for the delay in contacting you. Sincerely, BOB STUMP BOB STU* Member of CongrS^s BS:mw 973 A/ Transportation /VHy*ology Topography Lummi Indian Nation N Lumjmi Imdimm Nadat Lummi Indian Business Council 2616 Kwina Road Bellingham, WA 98226 Novembers, 1996. Lummi Nation Response to Testimony of Marlene Dawson before the U.S. Senate Committee on Indian Affairs, September 24, 1996. Western Washington 974 A. WATER RIGHTS Background * The Lummi Nation has been in aaive federal negotiations with the State of Washington over reservation groundwater since July, 1995. We had been requesting negotiations from the Dept. of the Interior since 1993. Because the state requested that we quantify our reserved right we have demonstrated a commitment to negotiate rather than to Utigate this issue. During this time, Marlene Dawson and her associates in reservation water associations filed petitions for a general stream adjudication and drilled new wells on the reservation in an attempt to provoke confrontations. We firmly beheve that a negotiated solution is preferable to a lengthy and costly htigation. * A 23-year moratorium on approval of tribal water codes by the Department of the Interior has prevented the tribe from protecting groundwater trust resources from damage resulting from excessive withdrawals by non-Indian water associations operating under state permits. In addition, individual small-group domestic wells using less than 5000 gallons per day are allowed by the state to operate under an exemption from permitting and groundwater evaluation, and have proliferated along reservation shorelines. Over several decades, reservation groundwater in one aquifer has experienced salt water intrusion, and mining of the water table to below sea level in the other aquifer under state permitted withdrawals. Reservation non-Indians hving on less than 4% of the land account for 75% of domestic groundwater use. * In 1990, the tribe offered to provide sufficient water to meet the contractual obUgations of all of the water associations in order to resolve conflicts with water associations and to protect the aquifer. (A copy of the contract signed with one of these associations is included as attachment #1 so that the committee may judge for itself whether it is fdr to all concerned.) Unfortunately, these offers ^eau^fiused by all but two of the associations. The non-Indian users within the associations who do have contracts with the tribe have had no complaints. The Lummi Nation's attempts to negotiate with the other seven associations, to provide them with water and manage the groundwater protectively as a unitary resource, were rejected, even though some are without permits to cover their need. After the other associations refused, the state declared its intent to continue to allow increased withdrawals until the tribe quantified its senior right. In response to the state's demand, the Lummi government began its efforts to initiate federal negotiations over reserved water rights. "* The City of Bellingham line was built in 1990 by the Indian Health Service for a tribal water supply after state users polluted the groundwater with salt water intrusion in one aquifer. In the other aquifer, the Sandy Point association drew the water table down by more than 40 feet. It was concluded that a future supply for tribal members would have to come from off-reservation sources because there was minimal potable water left. This conclusion has been confirmed by state, federal, and tribal experts in the water negotiations. The purchased Bellingham water is used only to supplement tribal supply wells, as the water source is the Nooksack River where salmon are affected and the cost is extremely high. Reservation non-Indians utilize the groundwater at no cost with little or no proteaion by the state while the tribal system customers are forced to absorb the cost of imported water at the cost of other federally reserved rights. * Since at least 1988 Sandy Point has been refusing water service to Indian landowners who hve along Sandy Point's service lines and who have no other source. Sandy Point claims they need the water for their members, although other non-Indians outside the Sandy Point plats have been served. The IHS has refused to fund a water line for tribal members in the area since it will dupUcate an existing system, despite Sandy Point's refusal to serve Indian people. 975 * Attempts to limit our sovereignty and sovereign immunity in particular would force us to litigation to protea our senior reserved water right, which would be far more costly to all parties, including the federal government, the state, the tribe, the non-Indian landowners, and the entire County, which would be affected by our claims on the Nooksack River. We prefer a negotiated senlement that can benefit all parties. 1. "....sabotaging non-Indian water aquifers — " and "....depleting our water to dangerous levels...." These allegations are fabrications created by those who created the "crisis" as an excuse to attack the tribe pohtically. The "crisis" was the result of improper pumping by the Sandy Point Improvement Company. When the "crisis" happened, we met with Sandy Point in Congressman Jack Metcalf's office. A BIA hydrologist report of that meeting (attachment #2) documents that Sandy Point had been pvunping at very high rates for only part of the day, in effect "shocking the aquifer." WTien they agreed to our suggestion that they pump for longer periods at lower rates, the well recovered. High volumes were withdrawn from the Sandy Point well during the unseasonably hot and dry weeks before Memorial day, and the high demand for a holiday weekend was clearly a factor. The Lummi Nation had warned the state during the 1993 permit review that establishing an annual allocation without regard to seasonal extremes and peak demand periods would lead to aquifer damage. Our comments were ignored. Lummi professional staff monitors the well closely, and the monitoring records which we have provided to the State and Sandy Point show that these accusations are false. While Sandy Point has state-and-county-permitted new home construction underway, we have been forced to cut back our hatchery program to protect the aquifer, which is on the Lummi Reservation and therefore is not a "non-Indian aquifer." We have worked with Sandy Point to prevent adverse health and safety impacts, and there have been none. The second well drilled under a Lununi Nation permit on tribally-owned land near a non- tribal well IS on a main thoroughfare of the reservation, near an existing well and well-house. Close monitoring by Lummi staff is used to adjust the pumping rate at the earliest sign of a water table decline. No water table declines or impacts to the nearby non-tribal well have occurred. 2. "..drilling commercial wells 100' from the association's wells.. ..drilling of a well which included installation of a large storage tank and pump house surrounded with a chain link fence and razor wire " This well IS one of the two weUs referred to in statement 1 above, as the statements refer to the same event. The wells are not "commercial;" one is a pubhc supply well and one is a salmon hatchery well with several domestic connections. They were permitted on tribally-owned land by the Lummi Water Resources Department under senior reserved rights to water. This tribal hatchery well at Sandy Point was drilled before the Sandy Point Improvement Co. received a state permit for their well. Indian owned lands on a reservation are not subject to county or state civil regulatory jurisdiction regardless of whether they are in fee or trust status. Moe v. Confederated Sali.sh & Kootenai Tribe, 426 U.S. 463. They are still part of the reservation and subjea to exclusive tribal jurisdiction. The Lummi salmon hatchery well at Sandy Point was drilled in the only productive aquifer available, an area that is very limited in geographic extent. No other source was available. The Lummi and Sandy Point wells are 1 mile from the majority of Sandy Point homes, but less than 100 feet from large acreages of Lummi trust property that has not yet been developed. Drilling the 976 well on adjacent tracts of trust land was impossible because the undivided parcel has over 250 owners and was tied up in probate. This realty problem is a common one for Indian-owned land, and not only prevents Indian development, but in this case the tribe itself could not purchase the land to drill a well for its hatchery needs. Sandy Point Improvement Company built an 1100-lot subdivision (773 now developed) and irrigated a golf course with reservation groundwater for 22 years before receiving a state water right permit. The Lummi well was a permitted well under a senior water right. Sandy Point has two wells that are closer to each other than to the Lummi hatchery well. For years they pumped both wells illegally at high volumes, and have applied to the State to permit withdrawals from their second well far greater than those the Lummis are taking from a well farther away. The wells are in keeping with existing land use at the nearby Sandy Point well: which includes a utihry shed, two pimip houses, a chain link fence with barbed wire, and two nearby storage tanks, one of which is twice the size of the Lummi storage tank. The Lummi Nation issued public notices when drilling commenced stating that existing domestic water uses of non-members would be protected. Accordingly, we have worked with Sandy Point to avoid problems in water supply for their customers. 3. "....bad faith negotiations with the City of Bellingham...in purchasing off reservation water." The Tribe made it very clear to the City that it was seeking water for a portion of its own needs. The City made no attempt to require the tribe to serve non-members. The City's only concern was that if the tribe decided to serve non-members, they would be charged the same rate as members. The tribal code and the tribal constitution already guaranteed equal treatment and non- members have been charged the same rates as tribal members. The tribe does have a subsidy program for its low income elders, but funds for that do not come from the water system revenues. In addition, both the Water and Sewer Districts are subsidized by the tribe. Verbatim transcripts of the City Council negotiation sessions are available if there is any question about what was promised. 4. "....non-Indians are now being denied access to this off-Reservation water" and "...denying public waters..." (from oral testimony). The Lummi Water District has a number of non-Indian customers and provides new service to non-Indians under contracts with the two water associations that the tribe took over in 1990. They receive equal service and treatment and their rates are the same as tribal members. The majority of water in our public supply system comes from reservation groundwater sources. Because of the high cost and fish habitat issues, BeUingham water is used sparingly as needed to protect the aquifer. There is no way to separate on-reservation from off-reservation water, and increases in use of BeUingham water result in additional cost for all our customers. This water is not "public water" but is purchased by the tribe under a contract. Until the tribe has resolved its reserved water right, we can't obligate it to non-Treaty users other than those with whom we have contracts. It is not prudent water management to allocate water to new development without assurance that it will be there in the future. 5. "...threaten well drillers with confiscation of their equipment...." The federally approved Lummi code of laws does have provisions for impoundment of objeas used in violation of the code. There are full due process proteaions, including a speedy hearing in court. The lack of a Water Code approval by the BL\ since 1974 has prevented the tribe from protecting the groundwater, and most of the damage has occurred since 1974. 8 977 No weU drilling equipment ius been confiscated. In the absence of federal support to regulate and protect the groundwater, the tribe has tried to discourage well drilling in order to protect the aquifer from further damage, but has never made an attempt to physically stop a well from being drilled. The State has allowed wells to be drilled indiscriminately and without regard to the groundwater damage. For example, one non-Indian drilled a well in a known area of naturally- occurring saltwater. Because we were concerned about the potential for adversely affecting nearby uncontaminated groundwater, the Lummi law officers accompanied our staff groundwater geologist on-site to warn the landowner the water was saline, to no avail. We commenced legal action, but voluntarily dismissed the action after it became clear that the well would not be usable. After spending S 10,000 on the saline well, the man was forced to abandon it. Another well was drilled by non-Indians after county law officers created a confrontational situation at the well site. The county officers refused to honor a tribal court order and threatened to arrest tribal officers if they entered the property to serve the papers. Eventually the tribe elected to drop the lawsuit in favor of addressing the problem in water negotiations. The well resulted in elevated sahmty in a nearby Lummi pubhc supply well 3 weeks after it was put into operation. 6. "Residents feel it unjust they are required to pay stand by fees for an available sewer connection, but can't receive it's (ac) compliment (sic) the water." As stated above, we have offered to take over the contractual obligations of the water associations and to provide water service. Those offers have been refused, with two exceptions. The availabihty of sewer service does not guarantee water service, on the reservation or anywhere else. Two appeals have been filed in tribal court based on nonprovision of water service. Ms. Dawson acted as an advisor to the appellants and she had a full opportunity to prove all of the allegations she is now making regarding water service. She failed to do so. In one of the cases the lot involved is in a water association that refused the tribal takeover offer. The association was allowed by the state and the county to continue to add connections even after a 1974 U.S. Geological Survey report documented incipient salt water intrusion in its wells. By the mid-1980s the wells recorded salt intrusion that exceeded the Safe Drinking Water Act standard by three times, and in 1990 the state finally required the association to stop all new hookups. For this reason the water association cannot provide water service to the property. The appellant wanted the tribe to extend a tribal line to her projjerty. The second lot is not within any water association area but is in an area now affeaed by salt water intrusion from excessive withdrawals by state-permined non- tribal water associations. 7. "...a tribal member recently told me members will also be denied water unless they sign a contract stating they will never s^ their land to non-Indians." The Tribe has no such poUcy. 8. "Residents have even been threaten (sic) with litigation should we try to bring off-reservation water in from the city of Femdale.' The water from the City of Femdale is withdrawn from the Nooksack River, the flows of which do not meet state-mandated minimum flows for two-thirds of the year. The Lurruni Nation has senior reserved water rights for instream flows in the Nooksack River for purposes of the reservation, for fish habitat, and for other inherent and reserved rights. In addition, more than 500 farmers in Whatcom County are withdrawing surface and groundwater without state permits. We 978 oppose further depletion of this vital resource, but have been leaders in trying to resolve these issues through negotiation, not litigation. The Nooksack Indian tribe and the State of Washington joined the Lummi Nation in 1993 to request federal water rights negotiations from the Department of Interior. In 1995 a federal negotiating team was appointed to address the groundwater issues on the Lummi Reservation, and it is anticipated that these talks will be followed by negotiations over the waters of the Nooksack Basin. The issues are very complex, and all parties have agreed that they wish to resolve the problem through negotiation rather than htigation. The delay in basin negotiations has resulted in uncertainty over water rights in the coimty. Also, the water the Sandy Point Improvement Company wishes to import for future growth is covered by a water right junior to those of the tribes and a number of slate users. The Limimi Nation has said that importation of what may be part of our reserved water right in advance of the resolution of water rights and jurisdiction confhcts could precipitate htigation that we would hke to avoid. To commit limited water supplies to future growth, while unpermitted farmers and other existing users Uve with uncertainty, may preclude negotiated solutions necessary to avoid disruption of the local economy. Contrary to her assertion here, Ms. Dawson has been the one advocating litigation. She has been a leader in the groups urging the state to sue the tribes and every water user in the Nooksack Basin in a time-and-money-consuming general adjudication of rights. Her position on this issue is clearly in the interest of the Sandy Point board on which she sits, and not in the interest of the citizens that she represents on the County Coimcil. The County Council has passed a resolution in favor of negotiation over htigation. The Pubhc Utihty District that serves the City of Ferndale has voted not to serve Sandy Point imtil the water rights issues have been resolved. If Ms. Dawson's statement on this issue were true, then the "tribal threat" would provide her with the access she desires to a state or federal court for a water rights adjudication. It is fortunate for reservation and county residents and for the governments involved that her group has not prevailed in their attempts to force htigation. 9. 1981 report on "...whether the tribe really should get into the water perveyorship (sic). ...to be used in ways which inhibit non-Indians from utilizing their land...." The infrastructure in 1981 allowed for importation of a very small quantity of water for the isolated reservation. Because the supply was limited, the report discussed limiting development for both Indians and non-Indians. In fact, from 1976 to 1985 the tribe operated under a housing moratorium for its members because the construction of the sewer system was delayed by htigation with the state, the coimty, and non-Indian resident. Tribal shellfish beds had been decertified due to pollution by shoreline septic fields, which were largely non-Indian. After the tribe and the civil rights divisions of the Justice Department successfully sued in federal court to allow completion of the tribal sewer system, the system was constructed and operated under tribal control. In 1981 the Lummi Nation water system, as developed by the Indian Health Service, and financed by the B.I.A. and H.U.D., was in operation to serve tribal homes. The tribe, aware of the limitations of the Lummi Peninsula aquifer, was attempting as a responsible government to plan for development of the reservation by assessing the availabihty of water. State permitted users along. the reservation shoreline were developing rapidly and without restriction by the state, and refused to serve nearby Indian lands. It was clear that the water supply was Limited and that damage to the aquifer was occurring. The comments cited by Ms. Dawson are taken out of context from a discussion of the seniority of tribal water rights, and the options for protecting the existing water supply and the future reserved tribal water supply from continued damage and depletion by junior non-treaty xisers. Non-members received huge benefits from the sewer system without any charge for 10 979 construction of it. Their pro|>erty values skyrocketed, but the moratorium on tribal housing was continued due to the water shortage until 1990 when the supplementary water supply from the City of Bellingham became available. During this 14-year moratorium on tribal home construaion, non-Indian development continued at a rapid rate. As separate portions of the tribal water system were connected during the 1980s, a number of non-Indian homes along the line were provided service. It is clear from these facts, and from the faa that in 1990 the tribe offered to integrate non- tribal water associations with the tribal system and meet their obUgations for future growth, that the poUcy impUed in Ms. Dawson's statement was not implemented by the Lummi Nation. The Lummi Nation recognizes that increased numbers of non-members on the reservation have led to jurisdictional confKcts over water and land use. In addition, like most Indian governments, we make no secret of our intent to purchase reservation fee lands taken or sold in violation of our treaty, in order to fulfill the treaty intent of a tribal homeland. The tribe has purchased himdreds of acres of reservation land m the past twenty years, and in every case we have paid fair market value or above. Our land acquisition program is openly discussed as a long-term solution to the need for reservation land for homes for our {>eople. 11 980 B. SEWER SERVICE AND UniJTY TAXES Background * As discussed above (section A.9), the Lummi Sewer System was construaed in 1983-85 with federal funding. The sewer was needed to protea reservation waters and shellfish beds, which had been decertified by septic pollution from primarily non-Indian shoreline development. The construction of the sewer was delayed from 1975-83 by a lawsuit with the State of Washington, Whatcom Coimty, and non-Indian landowners over purveyorship by the tribe. When it became clear that the U.S. would prevail, the state allowed handing to proceed, and a settlement was reached with the county and non-Indian landowners. * The Consent Decree filed in Federal Court under the sewer decision provided for .the Lummi Nation to be the sole purveyor of water and sewer on the reservation. A Lummi Water and Sewer Board was established which provides for two of five positions to be elected by all State- registered voters of the reservation. In 1992, after the non-tribal associations refused the Limimi offer to integrate their water systems with the Lummi system, actions by non-Indian members of the board made day-to-day administration of the water system diffioJt. The Lummi Nation therefore separated the Sewer Board and all its functions from the Lummi Water Board. The Sewer Board, now an entirely separate entity, continues to function with the two non-tribal members participating fully in all decisions, including addressing complaints and hearings before the Board. 1. "...tribes are also pushing to collect taxes in violation of Supreme Court cases like Montana, which states taxing of non-Indians must be consentual (sic)." Once again, Ms. Dawson is wrong, both on the facts and on the law. Here is what the Supreme Court held in Montana v . United States: Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, Ucensing, or other means, the aaivities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Williams v. Lee, supra, at 223, 79 S.Ct., at 272; Morri-i v. Hitchcock. 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030; Rn-^rer v Wright . 135 F. 947, 950 (CAS); see Washington V. Confederated Trihf-. nf Cnlvi llp Indian Reservation. 447 U.S. 134, 152-154, 100 S.Ct. 2069, 2080-2082, 65 L.Ed.2d 10. A tribe may also retain inherent power to exercise civil authority over the condua of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. See Fisher V, District Court, 424 U.S. 382, 386, 96 S.Ct. 943, 946, 47 L.Ed.2d 106; Williams v. Lee, supra, at 220, 79 S.Ct., at 270; Montana Ca rhnlir Missions v. Missoula County. 200 U.S. 118, 128-129, 26 S.Ct. 197, 200-201, 50 L.Ed. 398; Thnmas v. Gav. 169 U.S. 264, 273, 18 S.Ct. 340, 343, 42 L.Ed. 740. United States v. Montana . 450 U.S. at 565-66. (emphasis added) Ms. Dawson incorrectly impUes that the taxpayer must consent to the tax itself. She is wrong. It is the consensual relationship with the tribe or its members which gives rise to the inherent power to tax. The tax she is complaining about is imposed on the tribally subsidized and tribally provided sewer service which her property receives. 12 981 2. "...must pay illegal utility taxes to the tribe" and "using threats and intimidation" to collect the utility tax (from oral testimony). The sewer utility tax is recognized by the Washington State Public Utilities Commission and approved by the Department of the Interior. The Lummi Sewer Board, including the non- Indian members, made the decision to include the tax in the sewer rates and to show the tax amount on the bills. Public hearings were held for the tax ordinance. The $1.15 monthly impact of the tax is the same for all customers, Indian and non-Indian, since the sewer rates are the same for all customers. With regard to 'threats and intimidation", we cannot tell what incidents she is complaining about. Every government issues overdue notices and collects its taxes through lawsuits if they are not paid in accordance with the law. There is ample opportunity to challenge the legality of the taxes in this process. To the extent she implies that the tribe is guilty of strong-arm tactics or illegal activities, we demand an explanation and an apology. 3. Taxing utilities whose lines pass through the reservation...."litigation is now required to reverse the action of the Utility and Transportation Commission rolling the tax to the ratepayers." (from oral testimony). Lummi does not levy any tax on any utility whose lines merely pass through the reservation, although federal law allows such a tax. Burlington Northern R. Co. v. Blackfeet Tnbe nf Blackfeet Indian Reservation . 924 F.2d 899 (9th Cir. 1991). We do have a federally approved tax on utility sales which take place on reservation, which is recognized by the Washington State Utilities and Transportation Commission. The UTC determined that the tax appeared vaHd and could be passed on to ratepayers. There is no litigation underway or, to our knowledge, threatened over the UTC decision. A detailed Interior Solicitor's opinion supports the legality of the utility tax, which is comparable to city and state utiUty taxes paid by all customers off the Reservation. Ms. Dawson requests removing sovereign inamunity to address this, yet when tribal sovereign immunity was waived in Tribal Court on the appeal of her Sewer Board hearing she did not pursue a further appeal to an outside arbitrator, as she could have under the Tribal Court procedures. 4. Sewer Board attorney conflict of interest The Washington State Bar Association has investigated this complaint and found it to be groundless. 5. Denying sewer service to non-Indian landowners (from oral testimony). Again, no specifics are provided. We are aware of one case where an appUcant was turned down for a sewer extension for a new subdivision in an environmentally hazardous area . The decision was not based on the race or tribal membership of the applicant but on the merits of the project. The projea was a 26-home subdivision at the end of an eroding sandspit, in a flood zone, where several years ago a swimming pool fovmdered and cracked. An active seismic fault has been identified offshore in a recent geophysical study. As a repair and maintenance hazard in an unstable area, costs would be borne by all the sewer customers. The proponent failed to appeal the decision or take advantage of other available tribal remedies. This development generated substantial non- tribal opposition when first proposed in 1988. In faa, a inhal proposal to extend the sewer to other non-Indian properties nearby (including land owned by Ms. Dawson) was voted down at that time by non-Indian property owners. Other than this development, all requests for service have been connected. 13 982 C. TRIBAL TIDELANDS Background * In the early 1960's the LIBC agreed to lease tribal tidelands to a real estate developer so he could dredge out a channel for a boat basin at Sandy Point. He eventually enlarged the dredging to create a lengthy artificial canal system on which he developed more than one hundred lucrative waterfront lots which now sell for around $100,000 each. Very expensive homes have been built on many of these lots, priced far beyond the capacity of our members to afford. * In 1985 a federal court review of the BIA appraisal of the value of the leases increased the beach rights lease payment from $8,000/year to $186,000/year based on state tideland lease valuation formulas. This amounts to an increase from about $7.20 to $169 per lot per year for the use of beaches for protective bulkheads, recreation and shellfish harvest which add significant property value to Sandy Point property. The channel lease for 25 years at $500/year, has not been re-appraised, and allows homeside moorage of residents' boats and access to the marina for hundreds of Sandy Point residents. * When the lease on the channel expired in 1988 the Sandy Point Improvement Company refused to renew it, arguing that residents could use tribal property without compensation since it was "owned by the United States". They even claim that a "navigational servitude" prevents us from colleaing rent on our own channel property, in spite of a U.S. Supreme Court decisions which hold that this doctrine does not apply to artificial channels such as this one. Kaiser Aetna v. United States . 444 U.S. 164 (1979); Vaughn v. VermiUnn Corp. . 444 U.S. 206 (1979). The same people who complain that their property rights are being taken when treaty Indians exercise fishing rights reserved under the treaties are the first to claim the right to use tribal property without compensation to the tribe. 1. "The Lummi Law and Order have assaulted law abiding non-Indians on their beach front property.. ..chased small children from the beaches stating they were trespassing on tribal tidelands...." Non-Indians trespassing on tribal tidelands are requested to leave tribal property by Lummi law officers. Generally, county sheriff personnel have also been present when these situations have arisen, and they have not reported any unprofessional or inappropriate aaions by the tribal poUce. Tribal members have been harassed by non-Indians who claim to own tribal beaches. Recently, criminal trespass complaints against tribal members were thrown out of state court because it was impossible to tell where the boundary lines are located between tribal and non-tribal property on the beaches. 2. "....a Lummi tribal member pulled out a resident's survey stakes which marked the mean high tide and boundary of his property. This followed harassment by Lummi Law and Order with a survey crew which had been called out after a Whatcom County Judge ordered the survey to establish the jurisdiction boundary...." We don't know whether a tribal member did this or not. No tribal official or employee did it. More importantly, the statement that a Whatcom County judge ordered the survey is absolutely false. 3. "....have allowed private non-Indian property to be used and abused by their members stating their treaty allows them use of private property." Apparently this is a reference to tribal members crossing undeveloped uplands on the 14 983 reservation in order to access tribal tidelands for fishing purposes. The treaties reserve this right of access, and it is not abiised. As the Supreme Court explained over ninety years ago the treaty fishing right includes more than simply the opportunity to fish in common with non-Indians: [T]he Indians were secured in its enjoyment by a special provision of means for its exercise. They were given 'the right of taking fish at all usual and accustomed places,' and the right 'of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for; in other words, the Indians were given a right m the land,-the right of crossing it to the river,-the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty. And the right was intended to be continuing against the United States and its grantees as well as against the state and its grantees. • * » [S]urely it was within the competency of the Nation to secure to the Indians such a remnant of the great rights they possessed as 'taking fish at all usual and accustomed places.' Nor does it restrain the slate unreasonably, if at all, in the regulation of the right. It only fixes in the land such easements as enable the right to be exercised. United Slates v. Winans , 198 U.S. at 381-2 (1905) (emphasis addecQ. 15 984 D. LAW ENFORCEMENT AND TRIBAL COURT Background, * The Lummi Tribal Court provides full due process proteaions to litigants, and the Court has the authority to invalidate Tribal Council actions and ordinances on the basis of conflict with tribal law or overriding federal law. The Court has done so on several occasions. The Court is completely independent from the Tribal Council. The provisions of the Indian Civil Rights Aa are explicitly included in the Lummi Constitution, meaning that these rights exist as a maaer of tribal constitutional law as well as federal law. The Tribal Court judges are appointed for six year terms and can be removed only for cause. The judges are licensed attorneys. One of our associate judges frequently sits as a judge or court commissioner in the Whatcom County court system as well. Appeals are heard by a three judge panel made up of judges from other reservations and local attorneys. Although it is not required by federal or tribal law, Lurrum also employs a tribal prosecutor and a pubhc defender to represent indigent criminal defendants. * The Lummi Water and Sewer Ordinance contains a comprehensive dispute resolution mechanism for all disputes over water or sewer service-related matters. The principle features are: initial decision by the manager or Board; formal hearing on the record before the Board with full representation by counsel, cross examination of witnesses and introduction of evidence under a relaxed evidentiary standard; formal findings of fact and conclusions of law and a written decision, appeal to the Lummi Indian Business Council on the limited issue of whether the Board provided a fair hearing; appeal to the tribal court on the record with the standard review being whether the Board's decision is supported by substantial evidence; further appeal to an arbitrator; and a waiver of sovereign immunity to enforce any final decision. The losing party must pay the costs of transcription of the hearing record, but attorney fees are not awarded. 1. "Lummi Law and Order have.. .made false accusations against property owners....stopped non-Indian residents to search car trunks...." Again, we have no specifics and we are not aware of what Ms. Dawson is referring to. Tribal officers do have the right and responsibility to detain non-Indians who have broken the law and hold them for state or county authorities. State v. Schmuck. 121 Wn.2d 373, 850 P. 2d 1332 (1993). There is no knowledge in our Law and Order Department of any such incidents. 2. "...threatened confiscation of road equipment used by a subcontractor of the county unless the county and the contractor paid an employment tax to the tribe." This incident relates to the Tribal Employment Rights Ordinance (T.E.R.O.), a federal pohcy requiring compUance with Indian employment requirements for projects on the reservation. A 1% tax is required which supports the tribal T.E.R.O. program administration. The contractor ignored the requirements and, according to procedures provided in advance to the contractor and after two leners of warning, a cease-and-desist order was issued by the Tribal Court. When presented with the court order and a copy of the law, the contractor immediately initiated compliance with the law. As a result of this incident, the county now includes in its bidding requirements a section regarding T.E.R.O. requirements for construction projects on the reservation. This is a maner of enforcing federal pohcy that was carried out according to procedures and resulted in a more cooperative relationship between all parties. 16 985 3. "While the Lummi Law and Order prevent non-Indians access to the 1,000 acre park land of Portage Island, purchased with state and federal tax dollars, they allow their own members free rein." Portage Island is an undeveloped island on the Lummi Reservation connected to the mainland by a sand bar that is only passable at low tide. The agreement under which portions of the Island were purchased requires that it will be held for park purposes, but it does not require that the park be opened before the tribe has sufficient revenue to properly operate and maintain it. The county was required to use the funds which the tribe paid it for Portage Island to purchase replacement park property. The park on the land purchased by the county as a replacement was recently closed by the county due to lack of funds to operate it. The County Council, of which Marlene Dawson is a member, has placed park funding in the lowest priority for county spending in the coming year, and large cuts in the county parks operating budget are likely. All governments are having problems with parks funding. The state-approved tribal park plan for Portage bland is for a wilderness park with limited access. This island is sacred land to the Lummi Nation, and is zoned by the tribe as a proteaed area. The island contains so many significant cultural and archaeological sites that it is nearly impossible to protect them from the public. Our tribe has suffered from vandalizing and plundering of sites elsewhere in the nearby area, including burial grounds. Protection of these areas is a legal right and responsibility of the highest importance to the Lummi people. We have issued permits when requested for supervised non-Indian events on the island, but we do not have the resources to supervise a public access park at this time. 4. "The former Humane Society director told me it was impossible to get closure from the tribe on a service contract as it concerns tribal dogs so neighbors are faced with marauding and nuisance dogs." The Lummi Reservation is in transition from a very rural area to having areas of denser development. This problem is now being addressed under self-governance. An Animal Control Ordinance has been drafted by our Law and Justice Commission. Funding for implementation of the ordinance has been budgeted by our Health Commission. While we did work with the county Humane Society on this issue in 1995-96, there was never any problem in our working relationship and it laid the foundation for our present ordinance process. The ordinance now under development will be implemented in the near future. It has been mentioned by our members that many dogs owned by non-Indian residents also need to be controlled. 5. "I recently attempted to address the legality of the Lummi Utility Tax Ordinance and it's (sic) lack of proper Dept. of Interior authorization in tribal court." Full verbatim transcripts of the hearing before the sewer board and the subsequent appeal to tribal court are available. Copies of the detailed findings of fact and conclusions of law and the judicial review are anached (attachments #3 and #4). The transcripts conclusively establish that Ms. Dawson was repeatedly given accommodations by both the court and by legal counsel and that she repeatedly failed to follow even the simplest procedures. She even failed to sign her notice of appeal or pay the filing fee, defects which by themselves would deprive virtually any court of jurisdiction to proceed. A copy of a lener to Ms. Dawson from the Sewer District's attorney which outlines these defects and the District's accommodations is anached (attachment #5). How she could complain that she has been denied due process in this situation is incomprehensible. Her account of the proceedings in court is misleading. The appeal was based on the written record developed before the Sewer Board. The court had thoroughly reviewed the record and legal arguments before the time for oral argument. To imply that the court had inappropriately pre- 17 986 judged the case is nonsense. So is her account of the pre-hearing conference. One of the major points of her appeal was that the utility tax ordinance had been approved by the wrong official within the BIA. (It was approved by the Area Director following an extensive analysis by the Solicitor's office. She contends it could only be approved by the Commissioner of Indian Affairs and that approval authority could not be delegated, despite the exphcit provisions of 25 USC §la.) Ms. Dawson states that the "tribal attorney, stated he would try to get Dept. of Interior approval", implying that he admitted that approval had not been obtained. What was actually offered was resubmission to the BIA if that would satisfy her concerns. Her response was that she was not interested in gening the maner resolved on that basis. She fell she had a strong technical argument on the approval question, and she appeared to recognize the BIA would certainly re-approve the ordinance. She stated she wanted to go to federal court and tribal court was just a hurdle she had to clear in order to make that possible. At this point, the judge reminded her that courts exist to resolve disputes, and that if she was "just going through the motions" she should re-evaluate her position. Nor is Ms. Dawson's account of the tribal court judge's aaion accurate. A statement from Judge Doucet is included (attachment #6). However, Ms. Dawson's position on tribal court jurisdiction deserves further comment. The tribal court appeal was filed by Ms. Dawson after she unsuccessfully challenged the Sewer Board's decision to pay the utility tax. She initiated both the challenge to the Board's action and the appeal to the tribal court. After extensive briefing of the issues, she appeared for oral argument and contended, for the first time, that the court did not have jurisdiction to hear the appeal she herself had filed. She contends she was "berated by the judge for taking up the court's time and was also asked to be fined by the tribal attorney." The transcript of the hearing shows that the court did ask why she had not raised the jurisdictional question earUer since if it was well founded it would have saved both the court and the parties considerable time and expense. She was not "berated" and she was not threatened with a fine. The Sewer District attorney (not the tribal attorney) did ask for sanctions to be imposed on Ms. Dawson in the amount of the District's attorney fees if Ms. Dawson were allowed to essentially withdraw her appeal on the day of the appellate hearing. The District's fees would otherwise fall on the Distria's ratepayers. In the end, the court proceeded with the hearing, rejeaed Ms. Dawson's jurisdiaional argument and ruled against her on the merits. Ms. Dawson did not appeal further. 6. "The same tribal court story can be retold as it concerns two non-Indian property owners who tried to hold the tribe accountable for their bad faith negotiations with the City of Bellingham." Ftill verbatim transcripts of the hearing before the Water Board and the subsequent appeal to tribal court are available. Copies of the detailed findings of fact and conclusions of law and the judicial review are anached (anachmenis # 7 and #8). In addition, verbatim transcripts of the relevant City Council comminee meetings are available and were considered by the court. They conclusively establish that there was no bad faith negotiation on the part of the tribe. The tribe made it clear to the city that it was not interested in purchasing water from the city if it would have to open up its system to non-members, since that would defeat the purpose in acquiring the water in the first place, which was to ensure a tribal water supply. The tribe did promise to charge all customers equal rates, regardless of tribal membership. It has kept that promise. Incredibly, the appellants in the water case made many of the same fundamental procedural errors as Ms. Dawson had in her tax appeal, even including a similar failure to sign the notice of appeal, despite the fact that Ms. Dawson was acting as an advisor to the appellants. Similar accommodations were made to these appellants. (See Letter to Susan Bailey, attachment #9.) 18 987 7. "....where there is no separation of power, the i lil wags the dog as it concerns tribal court." Ms. Dawson had ample opportunity to prove this false allegation in her utility tax appeal and she failed to do so. Her comments on tribal court refer to her 1996 appeal and her assistance in the above water board appeal in the same time period; she has not availed herself of our court system on any other occasion; all of these comment refer to those two hearings. The tribal sewer code provides for a special appeal to an American Arbitration Association arbitrator in the event that a litigant is dissatisfied with the result in tribal court. Ms. Dawson could have appealed the tribal court decision if she felt that the decision was the result of lack of separation of powers. She did not appeal because she has no case on the merits. We invite the Committee to review the record in her case and in the water appeals. No court or arbitrator would rule in her favor. How could she then complain to Congress that the tribal system was unjust.' She has misused the tribal court and wasted tribal resources by going through the motions of an appeal, prediaably losing her case and then heaping blame on the tribe for her own inadequacies. She seeks now to waste this Committee's time with further distortions and falsehoods. 19 988 E. LAND USE, ZONING AND PERMTmNG Background * TTie Lummi Zoning Ordinance was enacted in 1976 and was subsequently approved by the Bureau of Indian Affairs. Applications for rezoning are processed according to the Zoning Ordinance, and include public hearings and comment periods. The hearings are open to all persons. Projects have a full environmental review by tribal Natural Resources and Cultural staff to protect tribal resources and must meet or exceed all tribal and federal standards. Tribal permits are issued, including shorelines, and all required federal permits such as Army Corps of Engineers perniits are secured. * Our 1996 efforts to work out a cooperative land use plan with Whatcom County were unanimously approved by the County Plaiming Commission but rejected by the County Council due to opposition by Coimcil member Marlene Dawson. * The Nation continues to update and revise our codes and ordinances, and recently has developed and is implementing a comprehensive plan to revise the land use plan and to update codes and ordinances. This has only been possible under self-governance. We recognize that we have work to do to build a bener system, but we have that underway. By contrast, Whatcom County has been declared out of compUance with state land use laws for the second time in less than a year. 1. "The tribal council interferes with the buying and selling of land." Sales of trust lands on Indian reservations have always been governmentally regulated, as required by federal law. Until recently the BIA performed realty functions. Appraisals, resolution of probate issues and the ability of our members to use their land were delayed and side-tracked. The Lummi Planning Department has now taken over realty functions under self-governance, serving our people far more efficiently. No tribal member is prevented from selling his or her land. Mrs. Dawson herself purchased nine acres in 1995 that were removed from trust two years prior without any problems, a process that would likely have been far more complicated under BIA management. 2. "....violate Whatcom County stop work orders for building and zoning violations for land in fee status." Indian owned lands on a reservation are not subject to county or state civil regulatory jurisdiction regardless of whether they are in fee or trust status. Moe v. C onfederated Salish & Kootenai Tribes . 426 U.S. 463, 478: If the General Allotment Act itself establishes Montana's jurisdiction as to those Indians living on "fee patented" lands, then for all jurisdictional purposes, civil and criminal, the Flathead Reservation has been substantially diminished in size. A similar claim was made by the State in Seymour v . Superintendent. 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962) [and rejected by the Court]. Indian owned fee lands are still part of the reservation and still subjea to exclusive tribal jurisdiaion. See, also, Bryan v. Itasca County . 426 U.S. 373 (1976) and Santa Rosa Band V. Kings County . 532 F.2d 655 (9th Cir. 1975), cert, denied 429 U.S. 1038 (1977). The county can participate in the tribal processes for approval of Indian projects on the reservation, but it has generally eleaed not to do so. 20 989 3. "...violated sound environmental practices by building a gas station in a wetland...." The gas station/ minimart is not in a wetland, as documented by 1987 National Wetland Inventory maps produced by the U.S. Fish and Wildlife Service. The area was used as farmland for decades. Although it is within a floodplain, the site is elevated to 1 foot above the level of the 100- year flood, the same standard as Whatcom County uses for similar development. It is at the intersection of two 50 mph roads, far from any residences. The gas tanks meet strict up-to-date standards for underground storage so they are not damaged in a flood, and with the highest standards of double-walled construction and emergency shut-off valves. It was constructed on trust land under tribal permitting. 21 990 F. ECONOMIC DEVELOPMENT Background * Economic development in keeping with tribal environmental and cultural values is a priority of the Lummi Nation in order to provide jobs for tribal members and to improve the reservation commimity for all residents. Many of our efforts have been attacked by Ms. Dawson as "illegal" or "unethical" although they are no more than routine business transactions. Her description of the tribal government as "sociaUstic" may perhaps refer to tribally-owned business ventures that are not only legal, but are necessary to provide security for the capital investment required to fund them. The tribe also encourages individual tribal member enterprises through support of a Small Business Assistance Center and classes at the Northwest Indian College. * Tribal business successes benefit not only the Lummi community, but the entire regional economy, of which Lummi is increasingly a member. The tribe is among the top five employers in the local area for numbers of employees. These employees include many non-Indians as well as Indians who hve off the reservation. The income from all tribal employment is channelled directly back into the local economy, as there are only two small convenience stores and a gas station on the reservation. In addition, the Lummi government and reservation businesses purchase virtually all goods and services from off-reservation businesses. The multiplier of dollars from tribal ventures and federal funding utilized by the government adds substantially to the local economy. The multipher of tribal dollars is 3.9 in the county and 7.0 in the state, based on a 1982-83 study by the tribe. In attacking these efforts Ms. Dawson has not considered the impact to the local economy that would result if she were successful in her campaign to reduce federal funding and prevent tribal economic development. 1. "...derails off reservation industry by refusing to meet, discuss or demonstrate good faith negotiation on tribal environmental concerns." We are proud of our record of negotiating agreements which protect vital tribal interests in fisheries while allowing responsible development to proceed for the good of the larger commumty. While we have a legal right to object to any major development activity which displaces us from our treaty reserved usual and accustomed fishing places, see Mucklesho ot v. Hall. 698 F.Supp., 1504 (W.D. Wash. 1988), we prefer to resolve these matters by negotiation. We have reached agreements with such major industrial and development concerns as Tenaska (electrical co-generation facilities), Cannery Hill (golf course and residential development), ARCO (expansion of oil tanker docks within our fishing grounds adjacent to the reservation). Pacific International Terminals (multi-modal shipping facihty) and Northwest Building Corporation (preservation of a tribal burial ground in the San Juan Islands). None of these negotiations has been easy, but it is irresponsible to claim that the tribe has failed to meet and negotiate in good faith. 2."....A CEO could spend months negotiating a contract with a tribe... only to learn that tribal councils don't adhere to agreements made by preceding councils." "...greenmail....its a well known fact that roadblocks disappear following the payment of large sums of money....Such compromising actions are not good for the tribal people and most definitely they are not good for business." The Lummi Nation is asked for a waiver of sovereign immunity in virtually every major business transaaion. Limited waivers are typically provided, but these are negotiated on a case by case basis. This allows the Nation to decide which of its assets it wishes to place at risk and allows business people to negotiate for the security they need in order to make their business proposal 22 991 viable. A legislated immunity waiver would put all tribal assets at risk without this type of evaluation. Ms. Dawson is not qualified to judge whether such actions are good for the tribal people. Only the tribal people themselves can decide if these agreements are good, and elea their leaders accordingly. Several of these agreements have also directly benefined or proteaed the Sandy Point development's environment and property values, a fact that Ms. Dawson chooses to ignore. As to whether such contracts are "not good for business," it is the Lummi Nation policy to avoid confrontation and htigation and to try to reach amicable settlements where we can, if they protea resources. Ms. Dawson's criticism of this poUcy contradicts her earlier assertion that the Lummi Nation has "derailed off reservation industry" by refusing to negotiate. Here we are criticized for negotiating agreements that meet our environmental, cultural and social concerns yet allow projects to go forward in a timely manner, which other parties and local business leaden have assured us is good for business. What Ms. Dawson calls "greenmail" she would no doubt call fair and equitable value for property and resoiirces were it on behalf of herself and non-Indian business people. As she has never talked to the Lummi Nation about these contracts or the negotiations involved, these are uninformed statements. It is irresponsible to formulate and articulate an opinion without investigating and listening to all sides of the issue. To imply that anything inappropriate or illegal is involved in these contracts is absolutely incorrea. 23 992 G. EDUCATION Background * Although it is unclear how this issue relates to tribal sovereign imnmnity, education is one of the highest priorities of the tribe. In the past 15 years, efforts of the Lummi tribe to improve tribal education have resulted in a model Head Start program, tribal elementary, middle and high schools, and the Northwest Indian College which serves Indian students from across the nation, as well as non-Indians. The NWIC is an accredited two-year college with a transition program to Western Washington University and other four-year programs. * These programs have begun to fulfill the acute need in Indian education for a cultural and historical education in context with a student's background and experience, as well as the skills and knowledge required to function in contemporary life. The schools are under the authority of the Lvmimi Education Commission and the NWIC Board, made up of community members. The reservation tribal education programs require that Limimi parents be involved in the schools, and help to foois the community on positive family activities. Parents provide aaivities to promote substance-free and abuse-free behaviors through traditional measures such as talking circles and family intervention, as well as traditional activities such as drum and dance groups, canoe club, and honor societies such as the Lummi School Order of Eagles that rewards traditional values such as assisting elders and respea for tribal c\alture and the environment. Tribal health, social, and environmental program represenutives are invited to the schools to provide education on available services and careers and to serve as role models for Lummi young people. 1. "....prior tribal educators who have been shorted thousands of dollars in their teaching contracts....they contacted the Interior Department and were told this kind of thing occurs all the time." This is an unfounded allegation. Whatever salary disputes have existed have been minor and have been settled within the normal employer-employee relationship. If they had not, the tribal personnel manual has extensive provisions for grievances for any tribal employee who feels he or she has not been treated fairly in employment. This certainly would include claims for impaid salary. The tribal court is also available to resolve employment disputes. Teachers have not been shorted any dollars. 2. "...my son made application to the N.W. Indian College....they wanted to consider him a non-resident because of his race....Our federal policy against segregated schools and the use of preferential rates is being violated on reservations across the nation." The history of Indian education is one of suppression of our language and culture and of forcing our members as children to attend boarding schools, where they were beaten for speaking our language and taught that our ailture was sinful and backward. Later many of us attended Femdale schools, where our educational and cultural needs were not met, and experiences of institutional racism that translated into individual racism and abuse were the norm. Ms. Dawson, who sat on the Femdale school board during these years, is well-known to our people for her attitudes and actions against Indian education. In 1995 Ms. Dawson sent her son to the Northwest Indian College, supposedly to register, although he never did. Instead she fded a civil rights complaint charging racial discrimination in fees to the Civil Rights Division of the U.S. Department of Education. The U.S. Department of Education, Office for Civil Rights, Region X investigated and repUed that the college was in compUance with federal law and pohcy. They pointed out that 24 993 lower tuition rates for enrolled members of federally recognized tribes is a political, not a racial designation, in that individuals who are racially Indians who are not members of federally recognized tribes are also subject to the higher tuition rate. 3. Federal and state dollars are not held accountable except in public school systems. Ms. Dawson, as a former member of the Femdale school board, is certainly aware of the accountabihty of federal funds provided for Indian education. The Femdale school system received large amounts of funding from this source before Lummi schools were established, and still does so for a number of Lummi students who choose to attend Femdale schools. Those funds have rigorous requirements for reporting and are subjea to federal audits. Lummi schools require that teachers be Ucensed in the State of Washington and the schools are subject to the same accountabihty procedures as the Femdale schools with respea to federal funds for Indian education. In addition, Lummi schools are accountable to the Lummi community in a way that "pubUc schools" never were, and this has made a great difference in our abihty to meet our childrens' educational needs. 4. "If the federal tax dollar is going to be used to encourage the education of native religion and culture, then the choice of any school should be allowed to all American parents." The choice of any school is allowed to all American parents. Indian parents can choose to send their children to non-reservation schools, and many do. Non-Indian students anend the Northwest Indian College. 25 994 H. GOVERNMENT AND GENERAL COMMENTS 1. "Certain Lummi leaders refuse to pledge alliance (sic) to our nation's flag." This allegation is just nonsense. There is no leader at Lummi who does not honor the United States Constitution, the United States flag, and those who serve and protect it, for it is so important in our culture that no individual could be a leader if he or she dishonored it. The United States flag is raised and saluted by a member of the Lummi veterans Post #33 along with the Lummi Nation flag every morning, and fhes proudly over the Lummi tribal offices. It is displayed in our Council Chambers, and is honored at every major event in our community. Our veterans have lovingly carved a special flagpole decorated with an eagle to carry the United States flag. Members of our nation have served in every war since World War I and Indian communities have sacrificed proportionally greater numbers of their loved ones in war than any other ethnic group in the United States. Veterans are honored by color and honor guards at all funerals, and on Veterans and Memorial Day there are community ceremonies and dinners to honor those who have fallen and those who have served. Both the Indian and the non-Indian Lummi veterans of Post #33 are among the most honored members of our community for having served and protected the United States flag. They perform many hours of community service and are involved in numerous projects with non-reservation veterans chapters. The Lummi Veterans Coordinator, Frank Cordero U.S.M.C. is a Selective Service Board member, a board member of the Regional Minority Veterans Affairs Committee, and has been honored by leners from Senator Ben Nighthorse Campbell (R- CO), Senator Patty Murray (D-WA) and Senator Bob Kerry (D-NE) compUmenting his dedication and professionalism. All national veterans association are represented in our community. Of the many insults and untruths Ms. Dawson has perpetrated, this is by far the most cruel. To cast doubt on the honor and patriotism of the Lummi veterans and the Lummi people is unconscionable, and there are no words to convey how we feel about her statement, knowing what our veterans and every family at Lummi has sacrificed in times of war and peace. 2. "This tribal leadership even went so far as to try to eject a candidate for congress from the reservation...." The LIBC did vote to exclude from our reservation an individual who, in 1992, was promoting a political philosophy that pubUcly advocates the abrogation of our treaty rights. It was a symbolic act to remind the pubUc of the original intent and provisions of the treaty. At the time, Mr. Metcalf was not a declared candidate for the U.S. Congress; he was elected to Congress in 1994. He was speaking at a community meeting at the Sandy Point meeting hall, and after the symbohc resolution was delivered, Lummi representatives left the meeting, making no anempt to actually "eject" him from the reservation. Several years later when Congressional anention was focused on our water rights issues, we welcomed Congressman Metcalf to our reservation for a tour of our hatchery and a discussion of the issues. We later thanked him for acting responsibly in mediating talks between the Lumrm government and the Sandy Point Improvement Company. While we may not agree with him on many issues, he is accorded the respect and dignity we extend to any member of Congress or federal official who visits our reservation. 3. "....at the entrances of this reservation...we have...signs that state all entering are now subject to Lummi Laws. Lummi laws...are near impossible to access because tribes are not subject to the Freedom of Information Act or the Privacy Act." Many of the non-Indian landowners on the reservation have said that they purchased their land without being informed that it was on an Indian reservation, or that there were Lummi 26 995 Nation laws that applied to them. This has led to conflict, confusion, and false expectations on their part. We recognize that this problem stems from a combination of irresponsible realtors, to an local educational system that has failed to address Indian history and affairs and to Whatcom County's failure to stamp deeds and erect signs at the reservation boimdary, according to a 1982 Intergovernmental Agreement (attachment #10). We responded to their concerns by placing signs on our reservation borders to notify the non-Indian public that they are on a reservation where they are subject to laws they may not be famihar with, and to dispel confusion among visitors who are most likely' to be aided by Lummi law officers in an emergency. The county had earlier agreed to the erection of the signs but now objects to our wording, contending that they should state that persons entering the reservation are subject only to "some" tribal laws. We have offered to change the wording, but the county has not responded. It is simply not true that tribal laws are "near impossible to access". Copies of the tribal code are available for pubUc review and copying at the Ubrary of the Northwest Indian College on the Lummi Reservation. 4. "The treaty forming this reservation divided the land base into allotments so the individual native could sell their land when they saw fit and pursue the American Dream off the Reservation." * It was not the Lummi Nation's Treaty of Point Elliott (1855) that divided reservation land among individual members, but the Lummi treaty did incorporate certain provisions of the Treaty with the Omaha, under which reservation land was later assigned by the tribe rather than allotted to individual tribal members. The Lummi assignments were made in 1884, three years prior to the General Allotment Act of 1887 (also known as the Dawes Act), a law that unilaterally altered to fundamental premise of the treaty: the Reservation homeland that was to be exclusively Indian. The Lummi assignments were treated as Dawes Act allotments by the Bureau of Indian Affairs in violation of the treaty, and should never have been allowed to be sold to non-Indians. Under the treaty assignment system, land not used by tribal members should have been returned to the tribe for reassignment to those who received no land. Lummi Reservation lands, reserved in the treaty for the exclusive use of the Indians, were assigned to qualified Indians Usted on the Lummi Allotment (Reserve) Schedules. There was never a surplus of land on the Lummi Reserve. No act of Congress opened the reserve to white encroachment or settlement. Even after passage of the Dawes Act the Lummi Reserve was strictly regulated by national law. Tlie 78-acre assignment of Davie Skootah, who died without heirs, was the only parcel of reservation land covered by the general allotment laws of the United States, as required by a specific Act of Congress (66th Congress, Sess.l, 1919, see: Indian Affairs, Laws and Treaties, by Kappler, Vol. FV, p. 2 19). All other Lummi lands are still protected by the original treaty language. Ms. Dawson's view of Indian and treaty history and law is limited. Her statement regarding the pursuit of the "American Dream" demonstrates a denial of the lack of opportunity that has been available to Indian people throughout our history since 1855. Although Ms. Dawson Uves on the Lummi Reservation, is a pubUc official, and despite the tribe's attempts to educate her, she continues to maintain these historically, legally and factually inaccurate views of federal law and pohcy. 5. The 1934 Indian Reorganization Act "provided the option to reverse the federal govenmient's goal of assimilation....and set up a separatist and socialistic form of government. The voting members of this reservation voted to continue assimilation." This statement is absolute nonsense. The IRA included a ban on further allotment and sale 27 996 of Indian land thai applied to all tribes, not just those who chose to organize their governments under Section 16 of the Act. Under the IRA tribes were given a choice whether to continue their traditional form of government or to organize under a federally sanctioned form of government which featured many aspects of a private corporation. It is absurd to contend that a tribe which voted to retain its traditional form of government was voting in favor of assimilation and the destruction of traditional tribal government. Mrs. Dawson's use of the terms "separatist and socialist" further demonstrates her lack of comprehension of federal Indian law and policy, or her rejection of that law and policy. 6. Voting to remove requirement for Secretary of the Interior approval of ordinances from Constitution (from oral testimony). There is no federal legal requirement that tribal ordinances be approved by the BIA. See e.g. Kerr-McGee Corp. v. Navajo Tribe . 471 U.S. 195 (1985). The 1970 tribal constitution did have a provision in it for BIA approval of certain ordinances. This is purely a self-imposed requirement and the tribe does propose to remove the approval provision if the tribal membership approves. Most tribes no longer have BIA approval provisions in their constitutions. The process for removal of this requirement has been reviewed and approved by the Secretary of the Interior. This action is part of the transition to full self-governance. In addition, the BIA has been extremely slow to make decisions on tribal ordinances. For example, 23 years ago the Secretary of the Interior placed a "temporary" moratorium on approval of tribal water codes. It is still in effect. We cannot get a code either approved or disapproved. As a result, we have seen a progressive destruction of our groundwater due to lack of an appropriate regulatory structure. 7. "Certain council members have publicly stated they can not be held accountable to decisions made by prior councils." Ms. Dawson does not provide any details whereby this allegation can be checked. We do not know what is meant here. The statement projects a negative image, but simply reflects democracy in aaion. All eleaed officials are boimd by the prior decisions (enacted laws) of their predecessors, imtil such laws or policies are changed. It clearly is within the prerogative of subsequent officials, if they have the votes, to change the prior laws or policies. Ms. Dawson to be making has been a leader in repudiating a 1982 Intergovernmental Agreement between Whatcom County and Limimi Nation (attachment #10). That agreement was part of a federal court settlement in litigation between the county and Lummi. The agreement addresses and was designed to avoid many of the conflicts on the reservation today. For example, many non-tribal reservation residents argued that they were ignorant of the fact that their land was located on a reservation and that tribal laws might apply to their activities. To address this problem the county and Lummi agreed that the county would stamp every deed and tax statement for reservation property with a notation that it is located within the Lummi reservation and that tribal laws may apply. The agreement also provides that the county will recognize the Lummi Indian Tribe as "the government of the Lummi Indian Reservation" and will recognize and give effect to tribal zoning, building permits, and shoreline management permits, etc. in addition to county permits. The agreement also provides for signs to be erected at the reservation boundaries notifying the public that they are entering the reservation. Ms. Dawson refuses to acknowledge this agreement, apparently because it was signed by the County Execuuve (the eleaed head of County government), not by the County Council (the coimty legislative body). The County has failed to abide by the agreement. 28 997 8. Tribal council members state the Federal Supreme Court decisions on tribal issues don't apply to them because each reservation of the 557 total is unique, so each tribe they say must litigate the issues at hand in order for it to be relevant to their reservation." This is another distortion. The principles announced by Supreme Court certainly apply across the country, but many Supreme Court decisions, especially those which deal with tribal jurisdiction over non-members, require a balancing of many factors which vary from one reservation to another. An example is zoning. In Brendale v. Confederated Tribes nf the Yakima Indian Nation . 492 U.S. 408 (1989), the Supreme Court itself fragmented over the extent of tribal zoning jurisdiction. It is one of the most cited cases involving tribal jurisdiaion, but there is no majority opinion. The result in that case was that some non-Indian land was subject to tribal zoning jurisdiction while other land was not. The difference in the outcome was the facts specific to the reservation. If the facts dictate different outcomes within one reservation, it is not surprising that they can result in differing outcomes from one reservation to the next. 9. Comments regarding "hostile, unfriendly" and "confrontational" actions by tribal govenmient. Ms. Dawson has expressed the opinion that "hostile, unfriendly" actions are a violation of the Treaty, a personal interpretation of the clause that was designed to prohibit and end the possibiUty of armed conflict between citizens of the United States and Indians. The Lummi government's anempts to respond to the attacks by her group and to violations of Limmii treaty and prof>erty rights on our reservation have been labeled "unfriendly." Articles and leners from the local newspaper (attachment 11) demonstrate that her opinion is not held by all non-Indian residents. A year ago the Lummi government held a dinner attended 125 non-Indian residents to improve communication and understanding. Ms. Dawson's group circulated leaflets in which she discouraged residents from anending, or from speaking to Lummi leaders about their concerns if they did anend. By contrast to Ms. Dawson's allegations, tribal attempts to resolve or lessen differences have often been rejeaed by county government under her influence. For example, the Whatcom Coimty Planning Commission recently unanimously voted to ask Lummi to take a lead role in developing a land use and zoning plan for the reservation in conjunction with the county. The goal, publicly supported by Lummi Chairman Henry Cagey at the County Planning Commission meeting, was to adopt a joint plan which would eliminate jurisdictional conflicts between tribal and county government. Even though the proposal closely tracks an earlier agreement between the tribe and the county (See attachment #10), when the proposal came before the County Council, however, Ms. Dawson strongly opposed any tribal role, arguing that Lummi should have no say in what happens on fee lands on its own reservation. As a result, the Commission's recommendation was defeated, and jurisdictional confUcts are likely to increase. Ms. Dawson complains that Lummi government officials have been "confrontational" but again fails to give any specifics so that her allegations can be checked or refuted. We do know that County law enforcement authorities have confronted tribal officers attempting to serve tribal court papers and threatened to arrest them if they carry out lawful court orders, and that the county has, as a maner of policy, refused to give full faith and credit to tribal coun decrees. 10. "Mr. Cagey stated to a news reporter, 'We'd like to shut it down temporarily, [roads] not forever. We'd like to shut it down, keep all the non-Indians out.'" Our Chairman did make an emotional statement to the press for which he later made a public apology in a TV interview, but the interview was not carried in the newscast, nor in the other media. The statement made headlines while the apology and retraction were never 29 998 acknowledged or reported. He also apologized to the Lummi people, most of whom were distressed by the original comment. The statement was made under extreme frustration and pressure. 11. "Moral, cultural, and spiritual afflictions...while other minorities flourish.. .we must ask ourselves why life for members on reservations is sub-standard.. ..there is no other group of American citizens who have played the role of Peter Pan like the American Indians. The Hrst essential step to promoting maturity and personal growth is to make our Native American groups personally responsible for their actions." The racism underlying these statements and the paternalism implicit in referring to sovereign Indian nations as "our Native American groups" accurately reflect the consistent inability of Ms. Dawson to recognize our rights as individuals and as governments. The approach she has taken is to "blame the victim." Attempts to produaively communicate with Ms. Dawson on the issues are impossible given that she refuses to recognize not only our legal status and rights, but our inherent rights as human beings. The Lummi people are proud to have survived the difficulties and unjust treatment of the past 147 years, and to have begun to rebuild our government, culture and community under self-governance. Personal accountability and the keeping of promises is an issue that we would like to discuss at length in terms of the history of relations between Indian nations and the United States, but our intention in highlighting these comments is to shed light on the attitudes underlying Ms. Dawson's views. Last year the Lummi Indian Business Council initiated a joint meeting with the Whatcom County Council, where members of both Councils agreed to meet in small groups to get to know each other as people so as to lay the fouofjation for improved cooperation. This plan fell apart after several meetings in which Ms. DawsSi spent the entire time lecturing and berating our eleaed leaders in the offensive tone exhibited m^ese statements. 12. Tribal governments are "socialistic, separatist governments" who impose "tribal tyranny" over non-Indian residents. Non-Indians on the Lvunmi Reservation are treated fairly, but they must be aware that when they move to our reservation there are certain differences from non-reservation communities that they must acknowledge, respect and abide by. We have had non-members in our community become a part of our community and who are welcome. Non-members who choose to hve in our community need to recognize that they are choosing to live in a positive multi-racial and multi- cultural community, in which the dominant culture is not their own but is Lummi. This has been difficult for some who came to Lummi either misinformed or motivated by greed, and they must learn to work with us to overcome this. The first non-Indian development on our reservation, the Gooseberry Point Community and Water Association, had a covenant in all the deeds for the lots when first sold in the late 1940s that prohibited anyone who was "...not a member of the white race. ..except for domestic servants..." from residing there. This covenant against our Uving on certain lands of our own reservation set the tone for relations between the groups. We can overcome these years, but only if non-Indians make an effort to learn and respect the history of the situation and the reality of the aspeas of hfe in our community that some have called "special" rights. It is their choice to hve here, but it is the homeland of the Lummi people. We will always be here where our ancestors Uved, fished, worked, and raised their families, doing the same. 30 999 I. BACKGROinSfD ON MARLENE DAWSON 1. Sandy Point development - Ms. Dawson is the Vice-President of the Sandy Point Improvement Company, located on the Lummi Indian Reservation, not in the City of Femdale, as she stated in her testimony. Femdale is Ms. Dawson's postal address, but there is no incorporated city on the primarily rural reservation. The Sandy Point development of 770 homes was built using reservation groundwater without a state pennit for 22 years, until 1994. Their 1994 permit does not provide for water for an additional 330 empty lots. Sandy Point developers sold all the lots with water shares guaranteeing water for which it had no permit, and the Sandy Point Improvement Company is liable to all those property owners. In addition, the development was based on a tidelands lease with the Lummi Nation for beach rights and the entrance channel to the Sandy Point marina, which expired in 1988. The development has refused to renegotiate leases because of the increase in the appraised value as approved by a federal court, yet they continue to use the tribe's property without compensation to the tribe. 2. Property - Ms. Dawson and her husband, a realtor, own four homes at Sandy Point, 1 1/2 vacant lots in another reservation development, and an 8.8 acre imdeveloped parcel at Sandy Point that she purchased only last year. She continues to speciJate in reservation land while complaining about the treatment she has allegedly received from the tribe. Her property is assessed on the tax rolls at a total value of over $770,000, but has a market value far higher. If court rulings regarding tribal sovereignty are legislatively overturned, the property values will jump substantially. 3. Activities - Since being eleaed a member of the County Council in 1994, Ms. Dawson has written over 200 leners on County Council stationery against the Lummi Nation on a variety of issues, representing her personal opinion, not that of the Coimty Council. The majority of letters have gone to federal and state agencies and to Congress, but the Lummi Nation has not received one courtesy copy so that we can answer or correct her frequently untrue or distorted accusations. In some of those leners, she has proposed legislation to our Congressional representatives that would declare the formerly leased tribal tidelands open to public access and the Sandy Point marina channel over tribal tidelands subject to "navigational servitude." In her letters she has not disclosed that she is a resident of Sandy Point, a member of its board, and the owner of multiple shoreline properties on the reservation. Ms. Dawson and a small group have conducted a lener-writing campaign to discredit the Lummi government. Her aaivities promote increased conflict and polarize the issues we have been trying to resolve amicably. While the Lummi Nation was lobbying for federal water negotiations, she and her group were filing petitions with the state to litigate the issue instead. She has sponsored resolutions in the County Council in opposition to tribal economic development projects. She has undermined water negotiations by participating in appeals over water and drilling a well on her property at the same time as she was represented in negotiations by both a County and a Sandy Point representative on the state negotiating team. Her support of Congressional legislation that would force litigation over reservation groundwater while we are negotiating the issue with two entities of which she is an elected official is part of an ongoing panem of activities that have created and exacerbated problems rather than contributed to resolving them. 31 1000 Attachments: " Page 1. Water System Transfer Agreement 33 2. BIA hydrologist report of Lummi/Sandy Point meeting 39 3. Sewer Board Appeal - Findings of Fact and Conclusions of Law 41 4. Sewer Board Appeal - Judicial Review 54 5. Sewer Board Appeal - Lener to appellant 58 6. Statement of Lummi Tribal Court Judge Randall Doucet 61 7. Water Board Appeal - Judicial Review 65 8. Water Board Appeal Findings of Fact and Conclxisions of Law 68 9. Water Board Appeal - Letter to appellant 80 10. 1982 Intergovernmental Agreement 83 11. Articles and Letters to the Bellingham Herald 86 32 1001 ATTACHMENT #1 WATER SYSTEM TRANSFER AGREEMENT RECITALS A. HORIZON HEIGHTS HOMEOWNERS' ASSOCIATION (hereinafter "the Association") is a water association organized in whole or in part to acquire water and distribute it to its members. The Association is the owner of a well, well site, puaping system, water distribution system, and a water rights claim, permit and certificate from the State of Washington, all more completely and fully described in Exhibit A to this Agreement which is incorporated herein by this reference as if fully set out. The area served by the Association is located within the Lummi Indian Reservation. 3. The LuauBi Indian Tribe (hereinafter "the Tribe") is a federally recognized Indian Tribe operating under a Constitution and By-laws adopted in its present form and approved by the Commissioner of Indian Affairs on April 10, 1970. The Tribe is located on the Lumrai Indian Reservation which was set apart by treaty with the United States in 1855 and confirmed by Executive Order in 1873. ' The Tribe is the hclder of certain rights which attach to its status as a federally recognized, reservation tribe including, but not limited to. water rights under the doctrine first stated by the United States Supreme Court in Winters v_ United States . 207 U.S. 56^ (1908). The Lummi Indian Business Council is the governing body of the Lummi Indian Tribe and the Lumrai Tribal Sever and Water District is a subordinate tribal body created by the Lummi Indian Business Council for administration of certain utility functions which the Tribe provides. Those services include the collection, treatment and disposal of sewage and the provision of drinking water. C. The parties to this Agreement do not agree on the validity of the water rights or claims of the parties, but do agree that ground water should be efficiently managed throughout the Lummi Indian Reservation, and that the Lommi Indian Tribe is in the best position to provide comprehensive management for ground water on the reservation. The parties desire to avoid litigation over their respective water rights clai.ms. AGREEMENT In light of the foregoing recitals and in consideration of the mutual covenants and promises of the parties set out below, the parties agree as follows : 1. The Association hereby transfers and conveys to the Tribe all of its facilities and easements included on Exhibit A to this Agreement. In making this transfer, the Association warrants that it is the owner of the facilities and easements included on Exhibit A and that it has the full right to make this conveyance. However, the Association makes no warranty as to the present condition of the facilities, their fitness for the use intended for them by the Tribe, or their future operating condition. The Tribe has inspected the facilities or had the opportunity to inspect them and agrees to accept them in their present condition. 2. The Association further agrees that it will not initiate any further ground water withdrawals within the Lumrai Indian Reservation and will rnake no Water System Transfer Agreement Horizon Heights Page 1 ii 1002 appLicarion for such withdrawals. 3. The Tribe agrees chac ic will provide single-familv residential water service to each of the parcels listed in Exhibit B to this Agreement, regardless of ownership of those parcels. (This involves a total of 20 lots.) Exhibit B is incorporated into this Agree.Tient by this reference as if fully- set out. In the event the Tribe is unwilling or unable to provide water service to any parcel included on Exhibit B in response to a request made following receipt by the Lammi Tribal Sewer and Water District of a petition signed by the owners of record of sixty (SOX) per cent of the lots listed in Exhibit B, requesting that a local improvement district be formed to finance the improvements necessary to provide the requested service, this agreement shall be cancelled and the ownership of all facilities on Exhibit A shall be returned to the Association. This provision shall not be applicable if the cause of the Tribe's inability to provide service is the unwillingness of the Association members to pay their fair pro-rata share of the costs of improvements necessary to provide such service. 4. In addition, the Tribe agrees that it will undertake the following: A. Operate and maintain the facilities in accordance with the Federal Safe Drinking Water Act and all other applicable laws. 3. Upon request by the affected property owners or, without such request, at the option of the Tribe, integrate the facilities into the Tribe's water distribution system for the purpose of efficient manage.-nent of the system, the proportionate costs of such" improvements being borne by the properties benefitting in accordance with subparagraph C, below. C. Upgrade the facilities by repair or replace.ment if such improvements are necessary for the efficient management of the system, the costs of such improve.ments being borne by these benefitting from the improvements in accordance with the District's Local Improvement District procedures under the federally aporoved Lummi Sewer and Water Ordinance. The parties understand and agree that the Local Improvement District procedures provide the affected property owners with substantial control over the assessment procedure. D. Establish and enforce fair and equitable rates for the provision of water service. E. Administer the water system in an efficient manner, encouraging conservation of water and other policies of wise use. F. Protect the water source which is a portion of the facilities transferred under this Agreement from pollution, conta.mination, or other degradation. 5. The parties specifically understand and agree that when the Tribe integrates the transferred facilities into the Tribe's water syste.m. water provided to the parcels listed in Exhibit 3 may come from the Tribe's overall water system and not necessarily from the source which is a portion of Che 'Water System Transfer Agree.menc Horizon Heights 24 Page 2 1003 facillciea conveyed by this Agreeaenc. IN WITSESS WHERiOF the parries have executed this Agreement this W/l'''^ L L . 19^/ . day of __^Jt_iil_ LDBMi rsDUiT^Ds cress COCSelL VEHME/ JOHNSCNC JR. Chainaan ofi che Board LOMMl'TaiBALy'sEWni AND KATE! DISTRICT / Karl'Schumak President HWOZOM HEIGHTS HOMEOWNERS' ASSOCIATION STATi OF WASHINGTON ) ) ss. COUNTY OF '-"riATCOM ) I certify that I know or have satisfactory evidence that //.'r-Vr^r L.'r^cf^ signed this instruaent, on oath stated that he was authorized to execute the Instruaent and acknowledged It as the Chairaan of the Luauai Indian Business Council, to be the free and voluntary act of such party for the uses and purposes aencloned In this instrument. gated <^luJ^ 2. /'7'J/ . Notary ?ubiic in and for the State of Washington, residing in ^^.^t^ ?^c m C^c qlTt-Y My commission expires -5~-/S-9j STATE OF SASHINGTCN ) ) ss. COUNTY OF '-■HATCOM ) I certify that I know or have satisfactory evidence that / . / '">: k „... k; signed this instrument, on oath stated that he/she was authorized to execute the instrjjsent and acknowledged it as the President of Horizon Heights Homeowners' Association, to be the free and voluntary act of such party for Che uses and purposes mentioned in Che iascruisent. Datsd /' . /'.'C-/ Vater System Transfer Agreement Horizon Heights Page 3 Notary Public in and for the State of Washington, residing in ; • .■ ■ My ccmnlsslon expires -_ . 35 1004 STATE OF WASHINGTON ) ) ss. COUNTY OF WHATCOM ) I certify that I know or have satisfactory evidence that .'■■ ■/■ v/ signed this instnunent, on oath stated that he was authorized to execute ^f the instrument and acknowledged it as the Chairman of the Lummi Tribal Sewer and Water District, to be the free and voluntary act of such party for the uses and purposes mentioned In this instrunient. Dated ^ ¥- .'.< / ^?7 Notary Public in and for the State of Washington, residing in ,-. • j. .,.'...•. . My commission expires - -" - - - - -■- . horizon. agr 1921 Water System Transfer Agreement Horizon Heights Page \ 36 1005 EXHIBIT A 1815 +/- lineal feet of i" water main, two (2) fire hydrants, a well, pump, pump house, well protective easement, together with all appurtenances thereto. A groundwater withdrawal permit and certificate issued by the State of Washington under Department of Ecology No. G1*1047C. Water System Transfer Agreement Horizon Heights Page 5 37 1006 EXHIBIT B Lots 1-11. Plac of Horizon Heights, Division 1. Lots 1-7, Plat of Horizon Heights, Division 2. 2 unnumbered lots, described as follows: ^ THACT or r^.M, r:i so:rp-<:,r::T :/^r j. s-r7:o:i ?'■ ;"«":;;i:;:,:*4-!;;"- r»Aii.;2 1 KAsr of «.m.. •:: •.i!!,-.Tr-:; r.-:i):rrv. •..•A.';n;:;cTCi:, .;Kr:ca.:'.r.:i ..- FOLLOWS: DECI!l!i::iC AT Sr.CTT'^M C-:?::-?. rr-:.".:::: T? .TSmOr'S :'i. :*. 2'' •■-•■' j;;_ l:i SAID To:.NSii:r a::;j ?A::n.-: TMStiCS ;:'-i'T!i aa-oo'OC" •.-.•KS!- "•---_-"i sou-rirKiiLY •_:::u or sa:;j skl-t:::: 2'. a :):iTA::cE or tt;..-..; Fi^. .. .n.. WESTE^LV R:3IIT-0r->'AV UNi CF MA/.TO!! WAV ; TMESCS !:cnT!l 29 -2_.0_ EAST Ar^jic sa:c -zs-zi'^.i a-c:'.--cF-;AY, a 3:sta;:c.-; of ;-£^-* ;;;;i- Tiir.NCi iicp.rii a3-;;'oc" 'in-. ?/.:v.:.:.iL t3 ths sa:u sc-jT;ici>_: -.:-i -r StCriOH 27, A DXSTANCr Or Hz. 02 "EiT 70 T;!£ TSUi PO:::T Cr DESINNINC: TilENCi C::i7:;:u::.c: ::C?.r:! 33-59'00" K£ST 1-3.56 riET: T!iE:iCi :icht;i 22-23'oo" east 92. =4 r-:-;T: T!iE::c-; r-S'JTH T^i-n.-is _ SAS--, 1S2.3; FErr; t::e;.c.- e:'-;: 2\-2-:-zz" -est s-.v; p=— .~t..:.j:-._„ TRUE ?oi:r: of deo:::i!::.C: rcorn;?:;' with a:: M-.r.iv-'i'Ji.i^ '•■'•'::' ..'.'iz'^f.''' IM a::o to the nF.Ac:i SEif.nvE snc-.:!: '-■;! tm:-; ?.:-::=:■•!;:-") ;'r--.T -h :; •■. — ■• iiEiCiiTS 3:v:s:g:; ::c. :, -n:; ;?:-;:;t o- acc'CU t:!kkkt^. SITUATE I:: coiJi.TY Or vii'AT^o:-;. rTA-K n:" wa':!:::-"'!:: A trae- of li.-.d in Covi;rr,=er.; io: 2. 3ee-i=n 2". Ts-rshi? 23 .'lor^:-., Sar.cc 1 Sas;. w.'^.. Wh4t-s3 County, Waahinqtsn, icscritci as follcvj: Se^i.-.nlnq a; Section comor coa=on to 3cctic.-.j 26. 2''. ;< antf jS in saii Towr.shi? aniJ aang?: tSe.ice MortM 33*59'3C" Wis: alcnc t>.e ScutXerly line of saii Section 27. a distanc: of 771.44 fee; to t.'-e 'Jesterl/ ris-lt-of-way li.-.e of ^a^iton way: t.te-cs :k5rt.-. 29"22'10" ijs; alonij said westerly rioht-oi-way, a dista-co of 312.13 feet: t.ler.ee North 3a*59'00* West parillel to t>.e said Southerly li.-.e of Section 27. a distance of 463.49 feet to t.^e tr-.:e ?oi.-.t of 5eo;.-.ni.-.er t.'^e.-ici conti.-.ji.-.g N'ort-. 33'S9';0- West 113.11 feet: t.".encs '••ort.t 21*25:e- rast 75. ec f-et: t.'.cnce Se-.:tS 3'.*1332- iJst IIS.IO feet: t.-ienee Sout.1 21*2S'CO" West 55. CO feet to t!:e tr.e ?oi.-.t of ieci.-.:;i.-o . T0CSTJiZ3 WITH an undivided cne-tvcntieth (1/20 ir.terest in and to t.*".* ieac.-. reserve showr: en the recorded ?lat of .^ori-.on f!eic:-.ts. Division ::o. 1, with riT.-t of across in the conunon ri^.ht-of — -ay thereto. one located to the south of Lot 5. Division 1, and one loc^tsd south of Lot 6. Division 1, Plat of Horizon Heights. 38 Water System Transfer Agreement Horizon Heights Page 6 1007 ATTACHMENT #2 UNITED STATES GOVERNMENT memorandum oATfc June 9, 1995 at™ op: Planning Hydrologist »u«jecT: Trip Report to: Portland Area Director 'Assistant Area Director, Program Services DATE; June 2, 1995 LOCATION: BellingheuB, Washington PURPOSE: To represent the Portland Area Office at a meeting between the representatives of the Luroiai Nation and the Scindy Point Improvement Company. PERSONNEL CONTACTED: Steve Goodrich, Engineer for Sandy Point Improvement Company Marlene Dawson, Vice President, Sandy Point Improvement Company Roy Pottle, President, Sandy Point Improvement Company G. I. James, Lummi Nation Policy Director Harry Johnsen, Lummi Nation Local Council Barrett Beale, Water Resources Manager Bill Black, Superintendent, Puget Sound Agency Lewis More, District Director for Sen. Metcalf DISCUSSION: Seuidy Point Improvement Company is a supplier of domestic water to a subdivision located on the Lummi Indian Reservation in northwestern Washington. The subdivision is supplied by two domestic wells located in a single well house. It is reported that the Sandy Point well was drilled in 1971 but did not receive a State of Washington permit until 1993. In 1993 the Luniai Nation drilled a public supply well on a tract of fee land near the Sandy Point well. The Tribal well is used primarily to provide water to the Tj.i>i«i hatchery. The Portland Area Office was contacted by Superintendent Black who requested that I attend a meeting with representatives of the Sandy Point Improvement Company and the Lummi Nation to discuss the decrease in the static head of the Sandy Point domoctic uat«r supply well. The Sandy Point Impr-ovement Company had contacted a number of congressmen and local officials regarding t.ne decrease in head in the well. (See attached "Notice") The meeting was held at the office of Senator Metcalf. Senator Metcalf agreed to sponsor the^m^Lirrtg- to explore potential solutions. VVK6fu-^~ 39 1008 At the meeting Sandy Point reported water production fig\ires as presented in the following table. WATER PRODUCTION FIGURES REPORTED BY SANDY POINT IMPROVEMENT COMPANY Reported Production Calculated Equivalent 200,000 gpd 139 gpm 160 gpd for 770 Services 85 gpm/123,300 gpd 160 gpd for 550 Services* 62 gpa/88,000 gpd 80 gpm average 115,200 gpd 230 gpm for 8 Hours (operator duty day) 110,400 gpd 160 gpm** 230,4000 gpd Notes : * When questioned by the Tribal Hydrologist the Sandy Point President reported that instead of 770 services there were only approximately 550 full time residents in the subdivision. **The Sandy Point Engineer stated that they were in possession of a report prepared for them that stated that the sustainable yield of the aquifer was 160 gpm. The Luauni Nation reported that they were using about 80 gpm on a continuous basis at the hatchery. CONCLUSIONS: What the actual use by the Sandy Point Improvement Company is can not be determined at this time. However, if the actual yield of the aquifer is 160 gpm, and Sandy Point must supply 160 gpd per hookup, they could provide water for more than their 550 full time residents and still allow the Tribe to use approximately 80 gpm. The Improvement Company agreed to determine if they can go on a 24 hour pumping basis and the Nation will see if they can make savings at the hatchery. RECOMMENDATIONS : Continue to monitor the situation. If you have any questions contact Mr. Robert Fenton at 231-6927. NOTED : Portland Area Director jn Assistant Area Director, 40 ^^ Program Services i I 1009 ATTACHMENT #3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 BEFCR2 THE LUMMI TRI3AL SEWER DISTRICT BOARD In Re the Appeal of MARLENE DAWSON, et al. NO. 96-S-l Appellants, vs. FINDINGS OF FACT, CONCLUSIONS OF LAW, FINAL DECISION and LUMMI TRIBAi SEWER DISTRICT, Respondent . A heari.-g en the appeal cf Marlene Dawscn was held before the Lummi Tribal Sewer Board on March 18, 1996, ccmmenci.-ig at 9:00 am. Present were Board Chairman Bill Ballew and Board mexiers Kristine Heintz, Tim Ballew, and Jeff Mackay. Board .Member Jim Wilson was unable to attend. District Legal Counsel Harry Jchnsen acted as hearing officer. Appellant Marlene Dawson was present and represented herself. She also represented the Additional Appellants who are listed in Appendix A to this decision. Martin Bchl, an employee of the Lummi Nation, presented evidence and argument on behalf of the Lummi Indian Business Council on the issue of the Nacicn's utility tax. Sewer District Manager Eugene DeCoteau presented evidence en behalf of the District. Testimony was taken from Appellant Marlene Dawson, Martin Bchl, and Eugene DeCoteau. Written legal arguments were submitted on behalf of the Acoellants on the utility tax and late payment penalty issues and FINDINGS OF FACT, CONCLUSIONS OF LAW and I FINAL DECISION - 1 41 1010 1 I on behalf of the Lummi Nation on the utility tax issue. Oral 2 opening statements, and closing arguments were made by the 3 Appellants and the Nation. 4 An opportunity for post-hearing briefing was offered to the 5 Nation, with an opportunity for a responding brief by the 6 Appellants. No post hearing brief was filed by either party. 7 However, on April 1, 1996, Appellant Dawson delivered to the 3 Hearing Officer's office forty pages of documents, listed in the 9 official docket sheet as numbers 103S4 through 10393 for record 10 keeping purposes. The ruling on these documents is as follows: 11 At the close of the hearing, all parties were informed that briefs arguing legal issues and discussing 12 the facts developed at the hearing cculd be submitted, but that no additional factual material would be 13 considered. That ruling stands. It would be a violation of due process and fundamental fairness to allow one 14 party to submit written statements or other factual material which is not subject to cross-examination after 15 the close of the hearing. Only legal briefing was allowed. 16 Docket numbers 10354 through 10363 consist of a 17 cover letter from Appellant Marlene Dawson (10354), ten new petitions (10355-10364) on the same form as Nuiriers 18 10083-10353, and four letters (10365-10363) from individuals seeking to intervene in the appeal after the 19 hearing. The parties were informed at the hearing that no additional interventions would be allowed after the 20 date of the hearing. The Lummi Nation took the position at the hearing that all petitioners should be granted 21 intervention. Notwithstanding the Hearing Officer's earlier ruling on the cutoff date for inter'/ention, the 22 Board finds that there is no prejudice to any party in allowing intervention and that the efficient 23 administration of appeals favors granting intervention provided that no new factual issues are raised. All 24 petitions for intervention (Docket Nos . 10355-10354) are granted. 25 Intervention is granted to Richard Dawson (10366) , 26 to the extent that his letter indicates he is joining in the appeal of his wife, Marlene Dawson. To the extent 27 FINDINGS OF FACT, CONCLUSIONS OF LAW and 28 FINAL DECISION - 2 42 1011 1 that the letter attempts to insert new factual material, it will not be considered. 2 The letter from Betty Wallace (10365) will not be 3 considered as it attempts present additional factual material, fails to demonstrate the author has standing, 4 and fails to address either the utility tax or penalty fee issue. 5 The remaining two letters (10367, 10368) are from 5 individuals who had previously signed intervention petitions. To the extent that they seek to argue their 7 case, they will be considered. To the extent that they seek to insert new factual material or address issues not 8 connected to the tax or penalty fee, they will not. 9 Numbers 10369 through 10388 are a letter from Linnea Smith to Appellant Dawson dated March 21, 1996, and 10 numerous attachments. The letter states chat Ms. Smith was at the March 13 hearing and was net called to testify 11 before she left the hearing. The letter and attachments purport to be the testimony she would have given at the 12 hearing. They are plainly inadmissible as untimely and will not be considered. 13 Numbers 10339 through 10392 are an intergovernmental 14 agreement between the Lummi Tribe and Whatcom County, and a resolution of the LI3C. Both contain marginal notes 15 apparently inserted by Appellant Dawson which could be considered legal argument in support of her position in 15 the appeal. Both documents appear to be authentic and are official records of the governments involved. They 17 will be considered as legal argument. 18 The record on this appeal consists of the written notice of 19 appeal, documents submitted before and during the appeal hearing, 20 the oral testimony of the witnesses as recorded en tape, and the 21 minutes of the Sewer Board meetings where the actions were taken. 22 Certain documents are deemed irrelevant to the issues on appeal and 23 they were not considered by the Board. They are, however, included 24 in the docket. 25 Two decisions of the Sewer Board are appealed. First, the 2S Board's decision to include in the sewer rates the amount of the 27 FINDINGS OF FACT, CONCLUSIONS OF LAW and 2 3 FINAL DECISION - 3 43 1012 1 utility tax imposed on the District by the Lummi Nation. Second, 2 the policy of the District of assessing a late payment penalty in 3 the amount of $5.00 in the event that any portion of a monthly bill 4 is not paid on time. 5 The Board has fully and carefully considered the records and 6 files, the testimony at the appeal hearing, and the arguments of 7 the parties and now makes the following: 8 FINDINGS OF FACT 9 1. The Lummi Tribal Sewer District is a subordinate entity of XO the Lummi Nation, created by tribal ordinance and exercising 11 powers, duties and responsibilities delegated to it by ordinance 12 enacted by the Lummi Indian Business Council, subject to the 13 decisions and decrees in Lummi Indian Tribe v. Hallauer, Civil No. 14 79-682R, Western District, Washington. 15 2. The Lummi Indian Business Council is the governing body of 16 the Lummi Nation under the Nation's Constitution and Bylaws adopted 17 by the tribal membership in 1970 and approved by the Acting 18 Commissioner of Indian Affairs April 10, 1970. The Lummi Nation is 19 a federally recognized Indian Tribe. 20 3 . In 1990 the LIBC enacted Resolution 90-89 (Docket 10054- 21 63) which provided for a utility service tax in the amount of 5% of 22 gross retail sales of utility services provided on the Lummi Indian 23 Reservation. The ordinance was approved by the Office of the Area 24 Director Bureau of Indian Affairs on October 30, 1990, (Docket 25 10065) and accompanied by a legal memorandum from the Regional 26 Solicitor for the Department of the Interior which analyzed the 27 FINDINGS OF FACT, CONCLUSIONS OF LAW and 28 FINAL DECISION - 4 44 1013 X legality of the ordinance. (Docket 10066-69) No appeal was filed 2 from the approval of the ordinance by the Bureau of Indian Affairs. 3 (TR 33) 4 4. The operations of the Lummi Tribal Sewer District are 5 performed entirely within the boundaries of the Lummi Indian 6 Reservation. (Ordinance §1.01) 7 5. Under the tribal ordinance and in accordance with the 8 decisions and decrees of the Federal Court, the services of the 9 District are available to its customers without regard to whether 10 they are members of the Lummi Indian Tribe. (Ordinance §8.03) 11 6. The rates charged by the District for its services are the 12 same for Lummi tribal members and for non-members. (Ordinance 13 §8.01) 14 7. The appellants in this matter are not members of the Lummi 15 Indian Tribe. (Petitions, Docket 10004-14, 10083-353, 10355-64) 15 8. All accounts at issue in this appeal are listed in 17 Appendix A. Each parcel is located on the Lummi Indian 18 Reservation. 19 9. Each account at issue in this appeal receives sewer 20 service from the Lummi Tribal Sewer District either in the form of 21 direct collection and disposal of sewage or in the form of 22 availability of those services. 23 10. The Lummi Tribal Sewer District has no source of funds 24 for its operations other than monies collected from its customers 25 in the form of rates and connection fees, and grants for 26 construction or equipment which have been obtained for the District 27 FINDINGS OF FACT, CONCLUSIONS OF LAW and 28 FINAL DECISION - 5 45 1014 1 by the Lummi Indian Business Council. (TR 36, 37, 40) 2 11. The Sewer District has received grant funding through the 3 efforts of the Lummi Indian Business Council. In addition to grant 4 funding for the initial system, the District has received periodic 5 grants through the LIBC for line construction, pump station repairs 6 and replacement, and safety equipment. (TR 36-40) 7 12. If the District had not received funding for these items 8 from the LIBC, the District rate payers would have been charged for 9 them. (TR 40) 10 13. In 1990 the District was informed by LIBC that the 11 District was subject to a 5% tax on its gross receipts under 12 Resolution 90-89. (TR 39, Docket 10059-060) 13 14. In 1993 the District made a decision to show the 14 existence of the tax on its customers' bills as an element of the 15 sewer rates. The District's purpose in doing so was to inform its 16 customers about that element of the rates and the reason for the 17 increase its rates. It was not the intent of the District to tax 18 its customers. (TR 39) 19 15. Since the time the District commenced operations it has 20 had a problem with slow paying customers. This has created cash 21 flew problems for the District. To encourage prompt payment the 22 District adopted a penalty fee in the amount of $5.00 per billing 23 period. (TR 40) 24 16. The late payment penalty fee was not adopted in 25 connection with the utility tax and has no relationship to it. 26 However, if a customer fails or refuses to pay to any portion of 27 [FINDINGS OF FACT, CONCLUSIONS OF LAW and FINAL DECISION - 6 46 1015 1 the monthly bill, the penalty fee is assessed on the unpaid 2 balance. It would be impractical and unduly expensive for the 3 District to segregate those billings where the customer failed to 4 pay a portion of the monthly charges as a matter of principle, from 5 those where the customer simply failed to pay the entire bill for 6 other reasons. (TR 40) 7 17. The penalty fee is not excessive in amount in light of 8 its purposes. 9 18. Appellant Marlene Dawson has paid the portion of her 10 monthly sewer bill which is attributable to the utility tax. She 11 did so to avoid the penalty fee for late payment, not because she 12 agreed with the tax or felt it was legally imposed. (TR 24) 13 19. There was no evidence presented at the hearing regarding 14 the payment of the monthly sewer bills by any of the other 15 appellants. IS 20. The monthly sewer bill is currently $24.15. Of this 17 amount, $1.15 is attributable to the pro-rata cost to the District 18 of the utility tax. For a standby customer, the monthly bill is 19 $12.08. Of this amount, $.58 is attributable to the pro-rata cost 20 to the District of the utility tax. 21 21. There was no evidence at the hearing that a cost of 22 either $1.15 or $.53 per month was an economic hardship for 23 appellant Marlene Dawson or any other appellant. The Board finds 24 that the charge does not present an economic hardship. 25 22. There was no evidence at the hearing that payment of the 26 penalty fee in the amount of $5.00 was an economic hardship for 27 FINDINGS OF FACT, CONCLDSIONS OF LAW and 28 FINAL DECISION - 7 " 47 1016 1 appellant Marlene Dawson or any other appellant. The Board finds 2 that the penalty fee does not present an economic hardship. 3 23. The penalty fee can be avoided by paying the monthly bill 4 on time in full. The economic and efficient functioning of the 5 District are dependent on a predictable cash flow and prompt, full 6 payment of monthly billings. The District has provided other 7 avenues to challenge the validity of the District's rates besides 8 non-payment. 9 24. If the District were to withhold payment of the utility 10 tax, it would be subject to legal action initiated by the Lummi 11 Indian Business Council. (Dockec 10054, 10061) The costs of 12 defending that legal action and of challenging the validity of the 13 utility tax would have to be borne by the District's rate payers. 14 (TR 40) In addition, any unpaid utility tax assessments bear 15 interest at the rate of 12% per annum. (Doclcet 10051) Those costs IS would also have to be borne by the District customers if the 17 challenge were net successful. The District must pay the tax 13 regardless of whether it collects sufficient funds from its 19 ratepayers to do so. The District has no source of funds for this 20 tax payment other than funds collected from its ratepayers and no 21 ability to raise funds from any other source. (TR 40) 22 25. The District's decision in the Fall of 19S5 not to 23 challenge the validity of the utility tax was made on the basis of 24 its analysis of the legal merits of such a challenge and on its 25 analysis of the interests of its rate payers. 26 26. The District's Board consists of both Lummi Tribal 27 FINDINGS OF FACT, CONCLUSIONS OF LAW and 2 8 FINAL DECISION - 8 48 1017 1 members and non members. It is not necessary to be a tribal member 2 to run for or vote for certain Sewer Board positions. (Ordinance 3 §1.04, 1.07) 4 27. According to the testimony at the hearing, the budget of 5 the LI3C, which includes funds collected from the utility tax, is 6 published annually and is available to both members and non 7 members. There was no evidence to the contrary. (TR 33) 8 28. District customers residing en the Lummi I.idian 9 Reservation benefit from the expenditure of tribal funds for 10 services in addition to sewer service. The provision of law 11 enforcement and certain road maintenance services are two examples. 12 (Docket 10055) 13 Based upon the foregoing Findings of Fact and the records, 14 files and legal authorities considered by the Board, the Board 15 maJces the following: IS CONCLUSIONS OF LAW 17 1. The legal incidence of the Lummi Utility Tax is on the 18 District as a utility providing service on the Lummi Indian 19 Reservation. The legal incidence of the tax is not on the 20 individual customer, irrespective of the fact that the economic 21 burden of the tax is borne by the customer. All expenses incurred 22 by the District are ultimately passed on to its customers, except 23 to the extent that grant monies are obtained by the Lummi Indian 24 Business Council for the benefit of the District. 25 2. The utility tax directly affects the District. It 26 indirectly affects the District's customers. The District is not 27 FINDINGS OF FACT, CONCLUSIONS OF LAW and 23 FINAL DECISION - 9 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 13 19 20 21 22 23 24 25 26 27 23 1018 a taxing entity and has no authority to levy a tax. 3. The indirect effect of the utility tax on the District's customers is the same regardless of whether the customer is a tribal member or not . 4. There is no requirement in the Lummi Constitution, any applicable Lummi Ordinance or in federal law that ordinances which have an indirect effect on non members of the Lummi Tribe be approved by the Bureau of Indian Affairs or any other government official outside the Lummi Nation. 5. Approval of the utility tax ordinance by the Bureau of Indian Affairs or other federal government official is not required in order for the tax to be validly imposed on the Tribal Sewer District. 6. The burden of demonstrating the invalidity of a government action is on the person alleging the invalidity. The appellants have failed to prove the approval of the tribal utility tax ordinance was invalid as applied to the District. 7. The Lummi utility tax as applied to the District does not discriminate against non members of the Tribe. 8. The decision to include the cost of the utility tax within the District rate structure was a prudent decision by the Board. 9. The decision not to challenge the validity of the Lummi utility tax as applied to the District was a prudent decision by the Board. 10. The penalty fee imposed by the District in cases of non payment does not discriminate against non members of the Tribe. FINDINGS OF FACT, CONCLUSIONS OF LAW and FINAL DECISION - 10 50 1019 1 11. The penalty fee is r ;asonable in amount in light of its 2 purpose and was validly imposed by the District. 3 12. The District's decision to include of the cost of the 4 utility tax in the Sewer District rates does not violate any due 5 process rights of the appellants. 6 13. All other issues argued by the appellants are beyond the 7 scope of this appeal. 8 Any of the foregoing Findings of Fact which are more properly 9 designated as a Conclusion of Law are hereby designated as such. 10 Any of the foregoing Conclusions of Law which are more properly 11 designated as a Finding of Fact are hereby designated as such. 12 DECISION 13 Based upon the foregoing Findings of Fact and Conclusions of 14 Law and each Board member's independent analysis of the record, the 15 Board makes the following decisions: 16 1. The appeals regarding the utility tax are DENIED. 17 2. The appeals regarding the penalty fee tax are DENIED. 18 19 DISTRIBUTION OF DECISION 20 21 Copies of this decision shall be sent by certified mail to Ms. 22 Marlene Dawson as representative for all appellants, and to Mr. 23 Martin Bohl as representative of the Lummi India.T Business Council. 24 It shall be the responsibility of the appellants' representative to 25 inform the other appellants of the decision. For purposes of the 26 timing of any appeal, the appellants shall be deemed to have 27 FINDINGS OF FACT, CONCLUSIONS OF LAW and 28 FINAL DECISION - 11 51 1020 1 received notice of the decision at the time when the appellants' 2 representative receives notice. The original of this decision 3 shall be retained in the records of the District and shall be open 4 for public inspection. 5 6 APPEAL RIGHTS 7 A copy Article XIV (Judicial Review) of the Lummi Tribal Sewer 8 Ordinance is attached. In accordance with §14.02 ANY PERSON WHO 9 DESIRES REVIEW OF THIS DECISION BY THE LUMMI INDIAN BUSINESS 10 COUNCIL SHALL PETITION THE LXMMI INDIAN BUSINESS COUNCIL FOR REVIEW 11 WITHIN TEN (10) WORKING DAYS OF THE DATE OF RECEIPT OF THIS 12 DECISION BY PARTY'S REPRESENTATIVE. The petition for review shall 13 be filed with the Lummi Tribal Sewer District Office and a copy 14 mailed to the other parties' representative by the party seeking 15 review. IS The parties having stipulated on the record that the hearing 17 before the Board was procedurally fair, any party may elect to 18 bypass review by the Lummi Indian Business Council and seek review 19 directly in the Lummi Reservation Court. If a party elects to 2 bypass the LIBC, ALL ARGUMENTS REGARDING THE FAIRNESS OF THE 21 HEARING BEFORE THE BOARD WILL BE DEEMED WAIVED. 22 ANY PERSON WHO DESIRES REVIEW OF THIS DECISION BY THE LUMMI 23 RESERVATION COURT SHALL PETITION THE COURT FOR REVIEW WITHIN TEN 24 (10) WORKING DAYS OF THE DATE OF RECEIPT OF THIS DECISION BY 25 PARTY'S REPRESENTATIVE. The petition for review shall be filed 26 with the Lummi Tribal Sewer District Office and a copy mailed to 27 FINDINGS OF FACT, CONCLUSIONS OF LAW and 23 FINAL DECISION - 12 52 1021 1 2 3 4 5 6 7 3 S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the other parties' representative by the party seeking review. Dated rriAy ^ . 1996. BILL 3ALLEW, Chairman JErF McKATr-^sii^- Chairman KRISTHKr'HEINtZ^ Secxers to whom the Association has voluntarily committed to 2 serve. 3 25. The Lummi Water District currently limits the persons to 4 whom it supplies water to members of the Lummi Nation and others to 5 whom the Tribe has voluntarily committed to serve. 6 26. The Lummi Water District has great uncertainty regarding 7 the supplies of water which will be available to it in the future 8 and the extent of the demand for water which the Lummi Nation will 9 face in the future. 10 27. Currently available supplies of water do not appear to be 11 sufficient to satisfy the long terni demand for water facing the 12 Lummi Tribal Water District. 13 28. It would not be prudent for the District to commit to 14 serving additional persons to whom it is not already committed 15 until it has more certainty regarding the supplies and sources of 16 water that will be available to it to meet that demand. 17 29. The District has refused to provide water service to 18 Indians who are not members of the Lummi Tribe. 19 30. The basis for the distinction in service policy is tribal 2 membership, not race. Tribal members are to some degree analogous 21 to part owners of the tribal water system and other tribal 22 resources. Non members do not share in that status. 23 31. The Lummi Water District has not held itself out as 24 willing and able to serve all persons requesting service, and it 25 would not be prudent for the District to do so until it has 2 6 certainty regarding both supply and demand. 27 28 FINDINGS OF FACT, CONCLUSIONS OF LAW, and FINAL DECISION - 8 75 1044 1 32. The Lummi Water District did not promise to provide water 2 service to the Sperry property. Appella.nt Sperry submitted no 3 evidence on this issue. 4 33. In 1993 the Lummi Nation began aggressively seeking 5 federal and state negotiations to resolve long-standing water 6 issues on the reservation. In July 1995 the federal and state 7 governments agreed to negotiations and water issues are now being 8 negotiated in that forum. Uncertainty of supply and demand will 9 likely continue until those negotiations are successfully 10 completed. 11 34. The Lummi Tribal Water District and the Lummi Tribal 12 Sewer District are two distinct entities with separate Boards, 13 assets, liabilities and budgets. 14 35. The Lummi Tribal Water District receives no funds from 15 sewer availability or "standby" charges assessed by the Lummi 16 Tribal Sewer District. The appellants pay sewer standby charges to 17 the Lummi Tribal Sewer District, but do not make any payment to the 18 Lummi Tribal Water District. 19 .36. The appellants submitted no evidence regarding the amount 20 of water available to Lummi Tribal VJater District, or the 21 reasonably foreseeable demands which the District will face in the 22 future from the Lummi Nation, tribal members and others to whom the 23 District is contractually committed. 24 Based upon the foregoing Findings of Fact and the records, 25 files and legal authorities considered by the Board, the Board 26 makes the following: 27 FINDINGS OF FACT, CONCLUSIONS OF LAW, 28 and FINAL DECISION - 9 7B 1045 1 I COKCLUSIOKS OF LAW 2 1. The appellants have the burden of proof as to all matters 3 necessary to their appeals. 4 2. The appellants have failed to prove that they have a right 5 to demand water service from the Lummi Tribal Water District. 6 3. Appellant Sperry has failed to prove that he was premised 7 water service and then denied service. 8 4. The appellants have failed to prove that the quantity of 9 water available to the Lutr.mi Water District is in excess of the 10 reasonably foreseeable demands which the District will face in the 11 future from the Lurami Nation, tribal merrJaers and others to whom the 12 District is contractually committed. 13 5. The appellants have failed to prove that the limiting of 14 water service by the District to tribal members and other persons 15 with whom the District has a voluntary contractual commitment 16 violates any right of the appellants. 17 j 6. Limiting the use of tribal property to tribal members and 18 I others whom the tribe has voluntarily elected to include as users 19 I does not violate the Indian Civil Rights Act or the similar 20 I provisions of the Lummi Constitution. 7 . Limiting the use of tribal property to tribal members and others whom the tribe has voluntarily elected to include as users does not violate the Consent Decree entered in Lummi Indian Tribe V. Hallauer. /// /// 21 22 23 24 25 2i 27 FINDINGS OF FACT, CONCLUSIONS OF LAW. 28 I and FINAL DECISION - 10 V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1046 8. Payment of a sewer availability or standby charge to a Sewer District does not give rise to an obligation by the Tribal Water District to provide water service. 9. An Indian tribe is not obligated to allow non members of the tribe to use tribal property, even if those individuals are willing to pay for the use of the property. 10. The Lummi Indian Tribe did not bargain in bad faith with the City of Bellingham to obtain a water contract, and has not violated the terms of that contract by electing not to supply water service to the appellants. 11. There is no requirement that tribal decisions limiting the use of tribal property to membars of the tribe be approved by the Department of the Interior. 12. There is no requirement that tribal water management decisions based on anticipated supply and demand be submitted to or approved by the Department of the Interior. Any of the foregoing Findings of Fact which are more properly designated as a Conclusion of Law are hereby designated as such. Any of the foregoing Conclusions of Law which are more properly designated as a Finding of Fact are hereby designated as such. DECISION Based upon the foregoing Findings of Fact and Conclusions of Law and each Board member's independent analysis of the record, the Board makes the following decisions: 1. The appeal of Susan Bailey is DENIED. FINDINGS OF FACT, CONCLUSIONS OF LAW, and FINAL DECISION - 11 78 1047 1 n 2. The appeal of Albert and Judy Sperry is DENIED. 2 3 DISTRIBOTION OF DECISION 4 Copies of this decision shall be sent by certified mail to Ms. 5 Susa.n Bailey and to Mr. and Mrs. Albert Sperry and to Ms. Shirley 6 Leckman as representative of the Lummi Indian Business Council. 7 The original of this decision shall be retained in the records of 8 the District and shall be open for public inspection. 9 10 APPEAL RIGHTS 11 A copy Article XIV (Judicial Review) of the Lumni Tribal Water 12 Ordinance is attached. In accordance with §14.02 ANY PERSON WHO 13 DESIRES REVIEW OF THIS DECISION BY THE LUMMI INDIAN BUSINESS 14 COUNCIL SHALL PETITION THE COUNCIL FOR REVIEW WITHIN TEN (10) 15 WORKING DAYS OF THE DATE OF RECEIPT OF THIS DECISION BY THE PARTY 16 OR HIS OR HER REPRESENTATIVE. The petition for review shall be 17 filed with the Lummi Tribal Water District Office and a copy -nailed 18 to the other parties' representative by the party seeking review. 19 Dated May 21, 1996. 20 /^•// A./Ilo,] 21 BILL BALLEN, Chairman 2 3 JjM WILSpW-, Board Member 24 25 TIM BALL 26 27 FINDINGS OF FACT, CONCLUSIONS OF LAW, 2 8 and FINAL DECISION - 12 79 1048 Raas, JOHNSEN, &Stuen,p.s. ATTORS'EYS AT LAW DANIEL A. RAAS HARRY L JOHNSEN THOMAS E. STUEN BRIAN K VALENTINE PATRICK J. LAKEY LAURIE A. PO^VERS Of Coimlit ADDRESS: 1503 E Srreel Biltin^han^ iVashingron MAILIKC: P.O. Bat 5746 Brilingliam, WA 9S227-S746 TELEPHONES: (360) 6470234 Facsimile (360) 733-1351 ATTACHMENT #9 June 17, 1996 Ms. Susan Bailey 6784 North Star Road Ferndale, WA 98248 Re: Aoceal of Decision Dear Ms. Bailey: This will acknowledge receipt on June 11, 1995, by the Lummi Tribal Water District of your "Appeal of Findings of Fact, Conclusions of Law and Final Decision". I have forwarded the appeal to the Tribal court rather than to the Lummi Indian Business Council in accordance with your direction. A handwritten note accompanying the Appeal stated "I am waiving any concerns with the fairness of the hearing and want to proceed straight to Lummi Court." Neither the note nor the Appeal was signed, but I assume that the note was written by you and that it represents not only your own intentions but also those of Mr. and Mrs. Albert Sperry. I filed the note with the court along with the Appeal notice. The court will send you a receipt for the filing fee. Would you please sign the enclosed copy of the signature page from the Appeal notice, and send it to the Lummi Tribal Court with a copy to my office? I cannot guarantee the court will accept it or that it will treat the appeal as timely filed because of the missing signature, but I do want to bring it to your attention. I noticed that the caption on the notice of appeal spells the other appellants' name as "Speery" whereas our records indicate it is spelled "Sperry". He did not sign his letter to the board which initiated his appeal, so I do not know the correct spelling. Please check on this so the court record is correct. I also noticed that the caption lists the "Lummi Trial Sewer District" as a Respondent. I assume the word "Trial" is a typographic error and it should read CC?Y«->iLEDTOCUEi^;r 1049 Page 2 June 17, 1996 "Tribal" . I do not want to make any assumptions about your use of the word "Sewer", but the appeal was directed to the Water District, not the Sewer District and the decision was made by the Water District Board, not the Sewer Board. I ask that you sign the enclosed stipulation to confirm the waiver of your right to review by the LIBC. Please also have the Sperrys sign their stipulations if that is what they intend to do. The original signed stipulations should be filed with the Tribal court and a copy sent to my office. A copy of the transcript of proceedings is enclosed for your use. The original has been filed v. l'_h the court. You should have copies of each of the documents which makes up the record. If you are missing any of the documents please contact me and I will provide copies. The court has assigned the Cause Number 96.6 CA 6179 to the appeal. Please include it on all future filings. It is no longer necessary to include the Water Board cause number W-96-1. I cannot give you legal advice regarding either substance or procedure. I recognize that you are not represented by counsel and that legal procedure can be confusing to lay persons. However, I have a client to represent and you are appealing a decision which that client has made. It is my job to defend that client's decision and its interests. You have elected to represent yourself in this appeal and you have every right to do so. But I will expect you to know and follow the same rules and procedures as an attorney would in similar circumstances. In that regard, I also acknowledge receipt of a six page document entitled "Interrogatories and Requests for Production to Respondents". I filed a copy with the Tribal Court. However, I do not agree that this document is appropriate in an appellate proceeding of this type. The ordinance is very clear that review is limited to the transcript and written record made before the Water Board. No discovery is allowed on appeal. There is no possibility that the material sought could lead to admissible evidence since no additional evidence is allowed on appeal. I do not intend to respond to the interrogatories or requests for production. If you feel you are entitled to responses, you may submit the matter to the court. However, I caution you that I will respond with a motion for terms (an award of attorneys' fees against you) for filing a frivolous motion and costing the District and its ratepayers additional attorney fees. I also reserve the (1 1050 June 17, 1996 Page 3 right to contest the appropriateness of the interrogatories and requests on all other applicable grounds. With regard to scheduling, the code does not specify a time for response or briefing. I suggest we submit an agreed scheduling order. Alternatively, we could request a pre-hearing conference for the court to set a schedule. I suggest Chat the District have 20 calendar days to respond to your petition (July 1) and that you have until July 12 to serve and file any rebuttal. Then oral argument would be scheduled by the court. If that is acceptable, please let me know and I will prepare an agreed order. If that is not acceptable, contact me so we can arrange a pre-hearing conference with the court. Very truly yours, RAAS, >/0HNSEN^& STUEN, P.S. HLJ:slw Water District Board Shirley Leckman 82 1051 ATTACHMEIJT #10 INT£RGOVEriNMENTAL AGHEEMENT THIS AGHEEMENT is made and executed by and between WHATCOM COUNTY, a municipal corporation of the State of v.'ashmc- ton, hereinafter designated as the "County, and the Lu.T.ni Indian Tribe, an Indian Trice recognized as such by the federal gcverrjnent , hereinafter designed as "LIT". WHEREAS, the parties to this Agreement recocnize the need for closer governmental ties in order to promote the efficient administration of a variety of governmental services for the benefit of their constituents. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. The County recognizes the importance of identifying the boundaries of the Lummi Reservation and hereby acl^ncwledges the propriety of placing suitable signs identifying same at appropriate boundary points. 2. The County shall recognize and give effect to build- ing, construction, zoning, shoreline management, development, and other similar permits issued by the LIT planning office for property located upon the Lummi Reservation; provided, that the standards for issuance of such permits by the Tribe shall be the same as those imposed by the County. This provision is not intended to limit or remove the County's aut.hority to issue permits for those properties within the Reservation subject to County jurisdiction. 3. With regard to land located within the Lummi Reser- vation, the County shall cause a stamp to be pieced upon all deeds, permits, records and tax statements filed with or issued by the County to the effect that such land is located within the Lunni Indian Reservation and tribal laws may apply to the land and activities occurring thereon. The stan.p shall give the address and telephone number of the LIT offices. 83 1052 i. . The County and LIT shaH seek to ootain rjrants or ether funding for the purpose of repair in(; anc/cr upgrading Luir,.-ni Shore Hoad. 5. The County Engine-er shall deter-iine vjhether access for children to the beach area on Lummi Shore ifcac, ot the Portage, is feasible either through remova]. of a porcion of the rip rap, construction of a walkway, or by some other rr.eu.-.s wnich will not adversely affect the roadway or incur significant cost. If such access is feasible, the County and LIT wiJ] jointly undertake implementation of such project. 6. A name, to be chosen by LIT, shall be accec to Hexton Way so as to create a new roadway desiynation incorporat- ing both names. Ten years subsequent to creation of the new designation the parties shall determine, by mutual agreement, whether the designation shall be retained, altered, or otherwise changed. 7. The LIT is working on plans for the developnicnt of the Gooseberry Point Small 3oat Harbor. The County recognizes that this project involves LIT property located exclusively within the boundaries of the Lammi Reservation and, therefore, that the LIT has jurisdiction over said project. LIT agrees that the construction, use and enjoyment of the Gooseberry Poi.nt Small Boat Harbor shall be conducted in such a manner as not to interfere with the operation of the County ferry service to Lu(7„Tii Island. 8. The County Sheriff shall recommend members of the tribal police force to the State Patrol Academy; proviced, that the tribal police meet the Sheriff's standards for deputies. 9. Vvhereas, the County has agreed to formally rec- ognize the LIT as the government of tne Lummi Indian i-.eservat ion -2- 1053 within Che framework of Federal, Tribal and State law, and to treat the Lummi Indian Tribe as a self-governing entity, the LIT hereby agrees to exercise its governinental powers, as to all people coming within its jurisdiction, in accordance with the requirements and principles of due process of law and the equal protection of the laws. 10. This Agreement Is conditioned upon the entrance, and approval by the court, of a Consent Decree by the parties hereto in the federal district court under Civil Action No. 79-6a2R. - V IM WITNESS WHEREOF, the parties hereto have set thei: hands and seals this /C day of ^^ssre^3E/^ . 1982. LUMMI INDIAi: TRIBE WHATCOM COUNTY /^ (/ /ohm louvis Countv Executive .3-«5 OC CylO n-7 1054 ATTACHMENT #11 r LETTERS: FOCUS ON LUMMI RESERVATION Su^^U Dawson's campaign counterproductive I apprecKite your coverage of the con- tlict between Lummi Nation and Whatcom County Councilwoman and Sandy Point resident Marlene Dawson (March 19 Her- ald, Page A 1). I am appalled, as u non-Indian resident ot Whatcom County, to know that one or" my County Council representatives is usiny her elected f'sition ot power to earn/ out .1 personal age ida against Lummi Nation Dawson aiid her Sandy Point neighbors, as non-tnbal residents of the Lummi Res- ervation, should have implicit respect for tribal law anil land. Why did they purchase reservation land in the first pl.ice if they were .so opposed to Lummi Indi.ins having jurisdiction over their own res.rvation lands'!* I will iicriv. ly campaign against Dawson should .she r;m for re-election, as her ac- iions Jo seen? ■.inti-Indian." In the meai-.time. 1 hope County Council members will realize that not all of their constituents a-^ree with Dawson's agenda. In workini; on the i.ssue of jurisdiction over fee land- on the resen/ation. it is im- perative thai communication lines stay open and th. t tribal law and history be considered. The Nclf-in jrested efforts of .Marlene Dawson are d^tlnctly counterproductive to the cooperair j effort that must exist be- tween Indian and non-Indian residents of the Lummi Rcser-ation. Arna .Vlernll Lummi Island Dawson's crusade will be costly I find It very disturbing that, while com- munity leaders arc calling for greater un- derstanding and ;olerance among diverse peoples in Whatcom County, Council- woman .Vlarlene Dawson is waging a one- woman campaign against Lummi Nation (March 19 Herald. Page AI). Dawson was elected to the at-large posi- tion, representing the county as a whole. not just as a paid lobbyist for non-tribal property owners on the Lummi re.serva- tion, where Dawson al.so happens to live. I also find it most ironic that Dawson is fighting a reservation rezone for a recre- ational-vehicle park in a "residential" neighborhood, while supporting council actions to convert a,ry_ral neighborhood in Custer to industrial use. The County Council members who sup- port Dawson's agenda, as well as the Custer rezone, will cost all county taxpay- ers a bundle in protracted litigation 'isca. Dons Pratner Oeming 86 1055 3?acv LETTERS: FOCUS ON LUMMI JURISDICTION Beware of further restrictions Recognize jurisdiction of Lummis Councilwoman for the people? What people^ Surely not the Indiaiu who were here to receive the explor- ers and settlers. Surely not the true Amencans, who were told to exist only on government-appointed land called reservations. Now that Lummi Nation has its own elementary, high school and college system, they are prospenng. The (white) non-Indian person says. Whoa! Complaining non-Indian people saw a comparatively inex- pensive place to Stan an expensive lifestyle of housing and pleasure boating, on reservation-appointed land. The word reservation was a way by treaty the non-Indian man could restrict the Indian tribes people. Now a Whatcom Ojunty coundlperson (Marlene Dawson, March 19 Herald. Page Al) IS trying to restria them even more. We saw it happen in Hawaii Russell & Lon Apana Femdale Respect tribal sovereignty I am a non-Indian living on the Lummi Reservation. There are many non-Indians living here who do not support the agenda of Whatcom County Councilwoman Marlene Dawson (March 19 Herald, Page Al). It seems apparent that Dawson does not understan4 or chooses to ignore, the concept of trib- al sovereignty. What's wrong with the Lummi Nation governing themselves and their reservation? Indians were deprived of their lands in 1855 by the federal government, and given small reservations to live on. But poliucs and bad decisions have created a "fee land" system on many of these reservations. Now, our local government wants to depnve these native people once again. Dawson does not speak for me. Problems on the reservation should be worked out respectfully and cooperatrvely with the tribe. To deliberately attiick Lummi Nation's decisions on how they chose to manage their land is arrogant. The native culture has witnessed the disappearance of salm- on runs, sacred sites, wildlife and clean water. These problems didn't exist before European settlers arrived. So why should they abide by our laws? I thought Dawson was a supporter of private propert\- rights. Maybe she is. unless of course, you're Indian. If you don't like living among the Lummis, then move off the reserva- tion. Colleen Berg Beilingham My wife and I are not Indians, but we live on ;he Lummi Reservation. We enjoy our beautiful surroundings and the neighborliness of the tnbal community. We came expecting to be subject to the jurisdiction of the Lummi government. Uke Canadians who own homes in Bell- ingham, we expected to pay taxes and not vote on the reserva- We fmd the county junsdiction claim an affront to the Trea- ty of 1855 between Lummi Nation and the United Slates of America. ,. . • Why can't we white Americans honor treaties with .Amen- can Indians? Is it a cultural trail we learn from our forebears? Or a gene that won't allow us to accept being subordinates to a non-white governing body? Are we inherently incapable of keepmg our word to those who were here before us^ When fear, dishonor, racism and selfishness push this into the Supreme Court, may we finally demonstrate the capacity to honor our nation's agreement with the first nations. Meanwhile, Whatcom County Councilwoman Marlene Dawson (March 19 Herald, Page Al) and others who don't like living on this Indian reservation under Lummi jurisdiction could move off the resep/ation. My wife and I will stay as long as we continue io feel wel- comed by the Lummi Nation. Tom Ricriardson Bellingham Saddened-byjDawson's actions As a non-Indian, living on the Lummi Reservation (Sandy Point) I must express my sadness and frustration with the aaions taken by Whatcom County CouncUwoman Marlene Dawson against the Lummi tribe. 1 bought my home in 1988. fully aware that it was within the boundanes of the Lummi Reservation, and fully ixpecting to be subjert to any laws and assessed fees instituted by the Lum- mis I have been treated with respect in all encounters I have had with members of the tnbe. and have assumed that 1 was a guest (albeit uninvited) on the reservation Dawson's actions appear rooted in mistrust and a desire to undermine and overturn nghts negotiated between Lummi Nation and the U.S. government Beyond being :mbarrassea by her actions, I fear that she puts at nsk the relationship that we have most enjoved - the abilit> to live in quic; enjoyment in this extraordinarily beautiful place I urge her to stop her adversarial actions. Ruth Parker Femdale 87 1056 LETTERS: FOCUS ON LUMMI JURISDICTION Jawson doesn't speak for her 1 am a resident of Whatcum County. Whatcom County Councilwoman Marlene Dawson is absolutely no way speaking for. or represents me, in her attitudes toward, or dealings with, the Lummi Nation (March 19 Herald. Page Al) Kathryn L Utter Whatcom County Article creates difficult obstacles Most .•\mencan Indians move from their Indian reservation to large cities In different states to find a better way of life. The article on "Lummi property battles looming" (March 9 Herald, Page Al) has caused difficult obstacles for other American Indians living in the Bellingham area who are searching and trying to secure the American dream for a bet- ter way of life. Finally, it would be helpful to remove these- difficult ob- . stacles for the other decent American Indians by keeping _ these kinds of reports out of the news media". This can be'ao'ne ~ by taking positive action through talk sessions by all concerned parties. Of course, all parties must show up in good faith. Everyone suffers, including the Lummis. David J Red Fox Bellingham Dawson plunders Indian rights Re: The March 19 front-page article about conflicts over Lummi tribal lands. White people came to this continent and pillaged lands from indigenous people That was barbaric, and in today's society you would think that such actions would have long been discontinued. Instead, Whatcom County Councilwoman Marlene Dawson and people like her continue to plunder what little rights Indi- ans continue to hold. The land that Lummi Nation is •iiiuated on was "granted" to them bv white people who stole the land from them in the first place. Just because Marlene Dawson and people like her covet the land that the Lummis now have does not mean they have any rights to it. Camille Hackler Bellingham Beware loose-cannon approach I want to express my concerns and my reaction about What- com County Councilwoman Marlene Dawson's letter-writing campaign. Dawson's efforts to impact Lummi Nation and tribal behav- ior by requesting that federal funds be drastically cut reflect a desperate, loose cannon approach, in my opinion. Rather than a positive approach of mutual resolution, or one of "neighborly" conflicts, or even one of respect for the laws governing treaties and sovereign nations, Dawson seeks to coerce — as in dominate, control, and/or punish — the tribal leadership for opposing her. If she wrote these letters in her official elected position, I hope her constituents share my concerns. Davell Seversen Bellingham Agrees with Dawson I aeree with Whatcom County Councilwoman Marlene Dawson 100 percent (March 19 Herald, Page Al). We should slash federal money to Lummi Nation. I also feel Lummi Na- tion should have to pay federal income tax. just the same as the rest of the US. population. .■\s of today, they do not have to pay federal income ta.<, which IS not fair to us. Steve Radisich Bellingham LETTERS Ill i _ u sf iil l"1' jlJJ r'i <■ or; s |UJ fl iO 1 < — : &. i LL. •J 1 LX. :— ; IO ill «a s gi 1 ™ J w i ^k. ^d C 'c B^ii^ «« 1 ti^^ B» <^ ■B^^S^^^^ "*•■■ > b^bBSr^^S Q 1 i^^s re t ^SB I = S J ^ : 1058 Shouldn't break treaties, promises I was ^hocked to learn of Marlene Daw- son's actions against the Lummi Indians. Has she no feeling of pride in her country that she would encourage it to so wantonly break promises and treaties made? What kind of a reputation are we. as a nation, to have when we treat our Indians as lesser human beings'" The whole world would be judging us. We have lived on the Lummi Reserva- tion for almost 20 years and have found that we've been most fairly treated. We did not come here to take over or push aside. We are grateful to be allowed to live in this beautiful place where we really, as non-Indians, are here by the grace and kindness of Lummi Nation , Jean Hammes Bellingham GOP puts out cantr^t on American children If the welfare icforms alrcadv passed bv the House also -ail tiiroimh the Senate .is Lummi Nation workers must pay income tax II the information i:iven by Steve Ra- disich (il nellinghani m his letter (March 27 Herald. Page 84) is correct, then we would like all of the federal income tax that we have paid over the years returned to us immediately. As employees of Lummi Nation, this is the first we have heard about not being required to pay income tax. This type of misinformation is at the root of many bi- ases in which the native people in What- com County, as well as across the nation, must constantly work against in their daily lives. Not only do we pay FICA and federal income tax. but we are al.so required to pay a 2 percent tax to Lummi Nation for earn- ing money on the reservation. Perhaps Radisich should learn more about his neighbors so that he doesn't pass along any more inaccurate information, which does nothing but perpetuate ill feel- ings between the two communities. Nancy Carroll, library director Lummi Reservation Library System Whatcom County T LETTERS POLICY Letters must not exceed 200 words and should be signed. Letters must be verified. Include a telephone number at which you //"can be reached between 8 a.m. and 5 p.m. Monday through Friday. Writers are limited to one letter a month. We do not print thank you letters, or those that focus on personal matters, level per- sonal criticisms, promote a particular busi- ness or advance or disparage a particular religion. Address letters to: P.O. Box 1277, Bell- ingham, WA 98227 or fax to 647-9260. It- I 90 1059 LETTERS: FOCUS ON LUMMI RESERVATION ^-Si/-^S Who took whose land away? I am a student at Femdale High School I am writing to you about an article I have just read 'H'alk of racism arises" (April 3 Herald. Page Al). In this article. I (elt that there is a lot of racism going on out on the Lummi Reser- vation. From the article, my sense was that the Indians were the only ones exhibiting rac- ism. Not true. Thert are many different Incidences where racism has been shown, such as past articles about property and water rights for non-Indians. There is one quote from Tom Ri- chardson I would like to respond to: "I think backing it up is the fear (of some residents) that sooner or later the tribe will try to take our property away from us — this is sort of a pre-empitive strike." Who took whose land away from whom? I would love to see this happen so we could get some of our homeless in a home and use the rest for future use. The land was given to us to use. It seems non-Indians want to take the little bit of beautiful pieces of land that we now have, after they took all of Nonh America. JonalhonLane Fsmdale Tribal rights should be respected I hope all of you fully appreaate the extra vigilance shown by your duly and properly elected Gjunty Council member Marlene Dawson in her frantic efforts to protect non-Indian fee land owners now living within the boundaries of the Lummi Reservation. From whom'' I have lived on fee-patent land within these boundaries for 15 years and my relations with my Indian neighbors are good. I have never felt that the tribe was in any wav trying to drive me from the reservation. Could that be because I re- spea tribal rights? Are Dawson's condem- nations of the Lummi Nation legitimate council duties? I would like to quote from the article by Rachel Prentice (April 3 Herald, Page Al): lands "held forever in trust." I point out that the tribe removed no lands frtxn trust, this was done by the fed- eral government through the Bureau of In- dian Affairs in what all knowledgeable bis- toriam agree was one of the most dishon- orable actions (the Dawes Act) against the Indian people. Its sole purpose was to re- move land from Tnbal Trust so that it could be acquired by non-Indian home- owners and developers John H Bainson Beflingham Dawson's, council's actions deplorable The General .Allotment Act of 1887 was passed with the dear purpose of destroy- ing inbal govemmenL This destruarve in- tent was recognized in the 1989 Supreme Court decision on fee lands. The County Council should bum with shame for its compliaiy in the atucks on the dignity and sovereignty of Lummi Na- non. Counciiwoman's Marlene Dawson's role had been particularly deplorable. Swastikas and burning crosses are not the only signs of racism. The long history of the anti-Indian movement has always been tinged with white supremacy. As time has gone by, the racism has become shrouded in fuzzy language like 'property nghts." The false assumption of iiiferiority due to heritage and artistry still lurks be- hind the attacks. Nobody is fooled by the recent letters denying that racist bias against Indians is an issue. It's there, it's real — the letten themseWes show it. As an anempt to si- lence critidstn. those letters are 3 failure. The people of Whatcom County deplore and condemn racism. Individually and act- ing together, we will continue to expose and confront racism — no matter how it may be disguised or what company it may travel in. The Herald's reports on racism are a public service. Paul de Amxjnd Bellingham 91 1060 • 7 ;>, ^'" o -o .E <1> GO -•-» W Q 5-2-5 t^^ - -. u 2 s 2 - X 3 -t: ^ =-=ii H n o c ^- >- = T o ^ 3 E y 5 -=- >> '11 c * o « >>U 5- ^ 5 5 -T u > — — ^ 'O — ^ y. C ~ ^' 1^1 ill or) = c ^ — j=~ 2 - _ (J |iEu > ■= Cj -a J3 S .2 J 2 — — 1) — -C = o ■>. E u rs 30 — 3 . O -3 ■■" ^ ^ ■ — - m J — ■— '-' -: i 2^ i i /-^ /■. •: '-> j: " .: >^:^ 2 3 5 •J o = - 3 2 y. — '-> ■'^ o 5 = - := i; — •" " "3 5 H-="^-= E ."3 -3 ^ 2 o ^2o ._ -y -n ^ y> - '-> r: ^ J — -nu-i^n .-— ^::-"-= VI v) 'y) D w u <-5 o — u E -5 ^ o u . ^ = - =? 5 :r 2 3 >< 3 — U E U 3 — _ - "2 2 o £ in ^ 3 5 £ d ^ i • ^ M 2 — ^ 2 ii * = - - uJ2 -i uE ! 2 itage of ilie he rules lo piolii fiom victimi/ed 1 = C/5 C zpah that cou a serious :alous att 1 right to ept. 25 1 1 she cxc s invoivin gs vs. a gr ientalive j geiida as citizen? ei part, j 1) official i ily? ake advai 1 cliange t 1 make a lime hosv upah. o — 1- -yi 2.3 CO C O cz splay chut IS troublesome lieiie D.iwson has rest in her overzc mm Tribe's Icdera 1 business (story, S lilies recjuire tliat II working on issue er property lioldin > within her rcpre; he puisuing her a 1 or as a private >oiial action on h ng for It? If it IS ai slie justify it etiiica eople who buy pro , know, or siiould Ily of juiisdiction i iiave kept the mar 1. b!ven so, the am view, and llie piice l.iciois loi nonii 3 ui for a person to t ip l.iiul, (lien try li L-.ise her chance ti: nd thioughout, w s been — what chu either Dawson — esenling us withou IB T3 Q 'S "siJi? — O .-g — _ a. CI. J P tion plex ties iaiul liie iiig -z 21 ■J 3 — V) 'J 92 1061 ▼"POINT/COUNT ERPOINT: FQC US_qNTRIBAOQVl|pG^ — ■ ■ iCe//.«y«"< -tfa-r^lty Tribal land conflicts stem from Congress CONFUCT: Gorton and Dawson's actions and approach are disgraceful. Editor's note: The (ollowing column was written by Lummi Indian Business Counal Chairman Henry Cagey. Business CouncI Vice Chairman Merle Jerterson. Business Counal memOer G.I. J^es and Jewell James o( the Lummi Treaty Protection TasK Force. Indian leaders speaking in the United States Senate hearing requested by US Sen. Slade Gorton. R-Wash.. on Indian sovereignty reminded Congress that the treaties between sovereign Indian nations and the United Stales set reservations aside for the exclusive use of Indian people. Congressional law unilaterally altered those treaties, leading; to non-Indian land ownership on reservations. What is needed to correct the problem is a federal policy that IS in keeping with the intent of the treaties, for it was the federal government thai created the problems between Indian governments and non-Indians on reserva- tions While the conflicts voiced at the heanngs are the result of failed federal poliaes, the solution proposed by Sen. Gonon is to fur- ther deprive Indian tnbes of their nghu The Lummi Nation understands that in- nocent people are involved and we are try- ing to solve the problem with the resources that we have By contrast, the actions of Whatcom County Councilwoman Marlene Dawson and congressional dttacks by Sen Gorton serve only to polarize the issues. It is diseraccfui thai Sen Gorton, who called the'he.innev left ilier lisienins; lo the niinlndMn spe.ikti> ..nvl ".i> .u'lahb absent for the prcsentatioo by the Indian leaders. By refusing to listen to all points ot view, he insulted ihe invited speakers and dishonored Congress and the voters of the state of Washington he is there to repre- sent. The problem ongmated dunng a shame- ful chapter of United Sutes history when the Indian nations, who had ceded -^t holdings of land, water, minerals, and other resources to the United States while reserv- ing certain lands and resources for Indian people, had reservation lands taken un- lusily under the historical pressure ot manifest destiny and the end of the fron- tier. . Sen. Gorton's heanngs demonstrated that that historj' continues today in the at- tempt to remove sovereign immunity m order to appropnate the natural resources of Indian reservations, which comprise ■» percent of the land but contain an esti- mated 67 percent of remaining natural re- sources. Marlene Dawsons testimony consisted of a litany of distortions and fabrications she has developed in her long-term cam- paign to discredit the Lummi government We would ask why, as she continues to complain, she continues to buy land on our reservation. Wc also would ask who she was there to represent Her testimony was submiilcd to Congress on Count)- Council stationery — did she speak as a County Council mem- ber as the Sandv Point Improvement Com- pan\ v,;;c president, as a rescn.ai.on land vpcLulamr. or .is .i private citizen^ She resorts to political maneuvering to compromise the U S Consiiluiion because her le-al iiiunieiii- ,irc invjhil N u hi.: ...IK^i.-.iM !. Tn..; ..i^iitc v.iuimi \-K ^cneJ m her complaints in tnbal coun, as she claims, unless she has been told yes? One week before the hearing, Dawson dniled a well on the underdeveloped nine acres she purchased only last year at Sandy Point. This provocative act and her support for congressional legislation that would force litigation over water rights actively undermine the water negotiations. Dawson misrepresents the tnath to en- gender fear among reservation non- Indians, so that she can then ask Congress to resolve the conflict. Her goal is to appropriate tribal tide- lands and additional water for her four Sandv Point houses and two undeveloped resen/ation properties and to avoid liability for an association :hat sold lots promising water without water nghts and tidelands n does not own. It IS unfortunate that Whatcom County citizens were represented at these congres- sional hearings by her racially biased and untruthful statements. Sen Gortons practice of attaching nders to congressional appropriation bills is nei- ther a fair nor reasonable way to address Indian polic. issues. , , ^ , He implies that state and federal courts are -ncutrar- courts, but as >he tribes have learned, they are nonneutral. The World Court .s a neutral eoun — would the Unit- ed Stales *aive its sovereign .mmunlt^• >o the cMen. proposed for Indians by Sen Gonon and subject itself to a heanng m World Coun regarding its contracts ^^nh Indian nations' Alihoueh -.he fact thai our nghts ano -c sources wire denied for so long has led o ihc perception that we have no right o elniii wear. ...nlioem thai. na.ruK n..,- i,.:,a.uii.i::- >•>'--■'-^•'""'"^- 93 1062 Treaties weren't meant to tielfemianeiit CONFLICT: It is time tribal members living on reservations become "real" Americans. BY MARLENE DAWSON GUEST COLUMNIST TTic outcome of the hearing before the U.S. Senate Committee on Indian Affairs will hinge on congressional members' views of tribal sovereignty and their personal ob- ligation to uphold the U.S. Constimrion. The state's view, as most perceive this claim of sovereignty, is that it does not now exist and never existed in any true sense of the word. One cannot be a dependent as set forth in the treaties, a ward of the government, and at the same time be sovereign. When Congress formalized the declaration of war with sovereigns, the history of Indian "war- fare" lacked even the pretense of warring against sovereigns. Certainly Congress never went through the formalized process of declanng war against the Indians as was done when dealing with others. While visiting the National Archives in Washington, D.C., I read their general- information leaflet that addressed the vol- umes of historical material under their management. The brochure stated that under the Record Admmisirations care were "hundreds of Indian treaties with their transitory promises." Yes, Virginia, the treaties were meant to serve a transi- tory period. While segregation kept the clashing cul- tures temporarily separated, the ultimate goal of the Union was assimilation. Some- how or other, treaty promises made by the Confederate government for a forever seg- regated society have been falsely trans- ferred to the intentions of the Union gov- ernment. When Congress passed the following — "No Indian nation or tribe within the terri- tory of the United States, shall be acknowl- edged or recognized as an independent na- tion, tribe or power with whom the United States may contraa by treaty," it was not addressing their sovereign status but their dependent statiis and the fact that Con- gress would be taking a new course of con- dua. The governing of tribes was to be shifted from individual treaties through acts of Congress. There are nearly 600 federally recog- nized tribes. At the hearing, several tribal chairman suggested the tribes not be treat- ed in any blanket legislation to be brought forward by U.S. Sen. Slade Gorton, R- Wash. Yet. to do otherwise is far too cum- bersome. It also would not accomplish the goal of exposing, on a national level, tribal criminal conduct, ensuring tribal account- ability and guaranteeing "all" their civil rights. If we are to deal meaningfully with race problems, we must be honest about the dealings and the goings on found on reser- vations. We should not segregate the American Indians by race, allow their seg- regated schools, allow them to maintain a racial-based court system and further sub- ject non-Indians to tjieir race-biased couns. For years, individual tribal members have been claiming they have no proper due process in tribal courts. Tribal mem- bers returning from active duty have faced the cruel rwist of fate that the liberties they fought so hard for didn't exist on the reser- vations in their home state. It may take tribes' sister and brother do- zens 10 help pave the way to reality. To- gether, we must demand our congressional members open their eyes to the injustices occurring in Indian country. Together we can demand the dictates of Brown vs. The Board of Education 347 U.S. 483, 745 S. Cl 686 (1954) which states that separate but equal is unconstitutional be acknowl- edged in Indian country. Ensuring separation of powers, freedom of information, the privacy act and other citizenship protection for reservation resi- dents will not dilute the financial ob- ligations the federal government views as mandatory. Cenainly securing the health and welfare of our domestic dependents is a far greater call than that to true foreign sovereigns If tribes aren't viewed as sovereigns, can they maintain their culture^ If we can pre- serve the lifestyle, culture and religion of the Amish. which is as difleient from main- stream Amenca as any traditional Indian community, then most certainly we can protea the unique way of Indian life. It is time that tribal members living on reservations become "real" Americans. And it is also lime that we protect the civil rights of non-Indians who bought Indian land in good faith from their fellow citizens who elected to pursue the .Ajnerican dream off of the reser^alio^- Illuminating tribal sovereign Immunity and providing direct access to state and federal courts will be that first step for- ward. Marlene Dawson is a member of It^e Whatcom County Councl. Sandy Point Im- provement Company vice president, ana owns land on the Lummi Reservation 94 1063 [f ANOTHER VIEW ntruths about Lummis show ignorance SOCIAL ISSUES: Voters should hold Dawson and Gorton responsible. An issue at Lummi lately is the sover- eignty heating in Washington. D.C, and the things Congress hears about us from Whatcom County Councilwoman Marlene Dawson. Since we don't receive copies of the County Council letters that Council- woman Dawson sends out about Lummi. it was quite an eye-opener. I wonder how many others have devel- oped a bad impression of our com- munity from her statements. In her testimony, Dawson told Con- gress: "Certain Lummi leaders refuse to pledge allegiance to the flag." Anyone hearing this must think we are unpatri- otic to elect leaders who disrespect the flag. And noihmg could be further from the truth, as those who know our com- munity can tell you. Every workday . mornmg, the US. flag is raised and saluted by a member of Lummi Veteran Post No. 33 Along with the Lummi Natinn Flag, it tlies proudlv (ivcr ihc Lummi Trib- ""~^^^^^"~~ al offices It i> ,iImi displ.iycJ in nur diuntil Cli.inihcrs. jnj IS carried by veterans at all events on inj uunni World War II. II)'- Lummi members baw militan' service Three were killed in ac- tion, a numbc .ij:e «ihiihIl.I and nian\ more Jeinr.iieil I .er. !.iniii\ .v.i-. .if- lectcd Oui ...Iti.in- ;:> tii'imf . ,. 'i-.;iil'e:« 1)1 DUI ;.tMili:uiii::^ liT si.:- ;i^ .iiiil pu- leeiiiii; llie lias: nui all il it!iie>eiil> Tlii. eiilcir mi.inl N.ilni^- .ill .ele:.:ns it hriier als. .-Xnd Veicr.iiis Oa\ .iiul Meinnri.il Da\ .ire luwuifcvl "ilh Jinneis and set vice> Oui \elei.iMs .iK,. [ie:li'ii'i :iiaii\ luiurs ol eominuniI\ service Lumnn Veieraii s C'ocrdiii.ilur hraiik (iirOeru L S .'Vt.irine ( crps non ;lie '.neal Se Ralph C. Jefferson Jr. Lummi veterans in a iiuniocf oi national veterans organizations. Every major na- tional veterans organization is repre- sented at Lummi. Of the many insults and untruths Councilwoman Dawson has tried to per- petrate, this is by far the most cruel. There are no words to express how we feel about her statement, given what our veterans and every family at Lummi sac- rificed. There is no leader at Lummi who does not honor the U.S. flag and those who serve and protect it Our people es- pecially cherish the U.S. Constitution and its symbol, the flag, for representing the laws that uphold our treaty. These things are so important to our culture and future that no mdividual could be a leader and dishonor them. Dawson wrote recently that when Lummi veterans return to the reserva- tion their nghts are denied by their own government, I invite anyone to come and meet our veterans and ask them who IS attacking their rights. They will tell you Marlene Dawson and U.S. Sen. Slade Gonon. Ask them who is defend- ing their rights and they will tell you the Lummi government. Marlene Dawson does not speak for our people; our tnbal leaders do. We trust the leaders we elect. If our tribal leaders don't respond to our concerns, they are recalled or not re-elected. We hope her views don t represent those of our neighbors. Well sec when she runs for re-election. The councilwoman said many things to Congress that I'd like to respond to here but cannot fur lack of space If the people of Whatcom Counry don't know the Lummi people well enough to tell a lie from the truth ilien we need to change that Belore vou believe these negative things, eoiiie visit us and attend our events If you do. you will find that our community lias decent, hard- workins; and pairioiie people •Marlene 1).i««.mi ..uiikl leani a 1111115: ur i\(.ii jhoul dt.iiiiii: "iili diltereiiecs nl opinion if she wimUl examine how the Lummi people h.ivL lolcr.iled her as a neighbor for all ilicse years Instead. sri!e 'O' The Sellmgnam Herald 95 1064 ▼ OUR VIEW Rhetoric 5f::^'>/fr slows search for solutions SOCIAL ISSUE Dawson's comr-ents. efforts to end tribaJ sovsreigrry creais Earners. i CooperaooQ is i±e key to leso iwn e warsr. properrv -igrm and other flwprtwrt betwesa aon-fnrtian laadowneis and Lummi NanoQ on the rjinwni Reaerv at ioii — not srrippmg tnfaai guvctnuea B erf ' the- 5C)vere:gn ■jnrnufuty. Regrenarty, ^TiaaaDtn Cooaiy Courxir^otTTan Marlene Dawson has set bade eSorti to ■■"crk c-: soiutaDos by makxg infararnaioty commenis that borceroo racsm. Dawson and Lummi trdial oSdais recscdy testified ar a U-S. Seaase It r ^i ii i g on a proposal by Sea. Siade Gorcoo, R'Wash^ to aUov aoe-Indian lesenraooB landowr.ers to ch^iB i 'iig r ; tribes' JM toiirj | and coUea damages in state or federal cour_ Tribes wTth sovereign natxjn status can't be sued cor monetary damages. In a guest coUtmn published in The Beilir.gham Herald ixpLaining her position on the mauer, Dawson made a aunber of outrageous rexmilti 3ad leaps iologK- In one insranfy, she daimed that treaties bcrween the federal govenunem and tnbes were meart to be transitory — *hich implies they ought x be disbanded. We disagj-ee. Indian reser/anons were set aside as j per-rar.ent hcn-e^ for indigenous people who "ere displaced ;rom their traditional homes by white sexilcn and gowennnem , authoriues. The faa that Indians later soW rcser/auon parcels to non-Indians doesn't — and shouldn't — chimge the faa that tribal governments jnd courts have sote jurisdiction i>ver ail reservation landowners. Wfade Eteabocs sfaooid have an ob&gaiioo to make that crystal dear to anyone wtxD buys property on the reservation, it's absurd to argue that aon-Indian 'landowners shouldn't be std})ec to Lnbal autiTOnty. Most disturbing of all s Dawson's tratr-mr-nt that it's time tnoal members iviog on reservations become "real Amnicans.'' TecfanicaDy. the "real" Americans are the Lammis and (xber iTvitam dcsrmried finom tbe people who populated North America before the nist Europeans arrived. Bat beyond that, every citizen of the United States is jtjst as "American" as any other citizen, regardless of sldn color, sex and ethnic bacxgrcind. The Eact that tiiHl goverrjnents are co nsi d e red sovereign nations m no way diminishes trftjal mernbers' stctus as .-^.t. erican caizens. On tile other hand, there's no denying rhaT there are a number of non-Indian reservation residents beside Dawson wiw fed tfaey haven't been created fairly by niiai officiais and courts. Tiijes have a responsfijiliiy to recognize rtiaf tixjse hard feelings exist and that they may have contributed to tiie problem. What's more, if s in their best interest to BK'^""' those disputes and ensure that all reservation residents are treated fairly. Lummi officr-als say they understand tiiose realiues and riave pledged to continue efforts to address the concerns of non-Indians on ti^.e reservation. Tne water negotiations -c?*een the tribe, Whatojm County and state and fesjeral officials are one example of that commitment. The bociom line !S that legally binding tribal treaties are not likely to be overturned Nor is It realistic to erpect that ail non- Indian Lr*ned land will revert lo trfl>al ownership The sooner ail sides accept that fact, rein in the -hctoric ir,d commit to Io<^t:ng for cooperative solutions, the more likely — and quickly — disputes are to be settled. 96 1065 LETTERS ^j^ .-ty-fc/f* T LETTERS Ui'^.j^^ '^/^ i^!^^ Dawson should avoid a conflict of interests A l tfa ough I aro a white living on rhe res- ervation, Wharcom Counry Coundlwoman Mariene Dawson doesn'r represent my viewpoint nor that of many others. In usng her position on the County Councu. It wouic ^hoovc her to avoid conflicts of intccst by keeping her con- cerns limited to personal stationery If she wishes ro persist with her land speculation and personal vendetta. I, as a voter, think she should withdraw from public office ro pursue her goals. To represent members of the Lummi Nation or any other Nanvc .Ajrencan as less than "reai" .■Vnerrcans goe^ beyond de- cency. Native .Ajnencins fought in wars of ".Ajnencan" intercity long before they were granted "atizenship" in f^I*. Many gave their lives to keep this country safe; they continue to serve in our Armed Forces. W'hat is a "rear" American'' Who is Dawson to judge '' This continued invective pervades our children's lives m. schiwl and wuhm the community. Why arc we teaching our chil- dren to hate"" Must they carry adult vicv>- points and misrepresentation of history around like addinon.il weight m their back- packs" We could debate upholding treaties with our world allies, former enemies and our neighbors north and -xiuth Our county'^ word and signature is In Njnd and should remain so. Kns&n« Donahue BaJlingham Question Dawson's felse information Whatcom County Coucciiwoman Marleae Oawsor. aspaready thinks Uiat fa jf r al poiicv :s :naae S 5roc.*iure wi-tcs nv dte federal archives. 3y "ffansiiory promises," the wnter taoBi the aearv pronuses were later brcv tea, aot that the Laitec States .ntendec :c break theni. ■'A'he.- .Northwesi Indians signeo the trtaacs. L-S negotiator Isaac Stevens s^cc on thre; witnesses; the rices, the -y- e.-s anc uie sun. He saia "The promises wii; oe csmec ou: as long as ;hcse uve= wiaesscs osnunue " Is Mariene saying that the Ututed States mteaded :c break those promises, and the aatior negotiatec s. hai ."aiC. ~ The lane anc .-escurces cscec a neaaes made the .Ajaer^car. drears possible to pur- sue Yet the .A.•ne.^c3^. drea-Ti was not open ic Indians, on or off rese.'vaaons. Vtarieae jr.:?oscs rie: cuiturai values on that dream *hen srie assunes we want her version of iL She also assaracs ;t can't be Ijvec on an Indja.n reservation, withic our Siirure. We are "rea; .■\irenca.-a. " too. Our \^iencan dr«;.T t^s^ be different rom hers, hut we x builcing ;t as a community, for our chiidre.".. I hooe vour reaoers have broader .-ninds than .Vlariene Dawson, arc cuestion the false iniormat;on >^e is putting out or cur tnbc. Indian people anc our history Vemon j.ie Ujmmi 3i.Sinsss Council ->emo«f BaHingrian 97 1066 ^ en 2 J-^. 3 O en ^M c o C 3 O en U Q >, Im c 3 3 O C o ■ "=■= = l-^ « S 2 .- S 'J ■3 -3 00 -b -= 2 2 ?^2 5 _ c: C.-3 c — a o 2"^-= rr -^ ^ X , 1 " 5 .2 — •" — H : ji := = '— w ™ C si — 2 = o.= = . O = ; : "" 30 ; 1-3 " c ^ .i 5 ^ ■c3 ^ u * 2 j2 a 3£ 3 .1 :i - — -" - = tr S -li ^ S i-yj- 2 2 ^ 3 S ■" 3 'J ,^ > O * 5 Ji 3 5 -= = V) -* w 2§-; ? 3 ^ = — - - ^ - 98 1067 Racism is root ^- wiird. Her misleading and unfounded .ii>criion thai it never in- tended to IS no excuse. Hamet Beaie Beiiingham /ff Dawson, Sutter " ^^'-^ above their power Whatcom County citizens should be very disturbed that Whatcom County Council- women Kathy Sutter and Marlene Dawson are using their elected positions to further their private agenda. SuUcr represents a few special interests, in her district, cenainly not the people of Whatcom County in the Coalition of Washington Counties. Nor does Dawson represcQt-.'Whatcom County in her fight aaainst the Lummi Nation King, Snohomish and Pierce counties have not joined the Coalition of Washing- ton Counties because it is too late for them. We don't want Whatcom County to become a Snohomish, King or Pierce coun- ty. There must be a plan for future growth. It is an embarrassment to us that these women are using their elected titles while pursuing personal views. It is an abuse of power. If either of these women want to con- tinue involvement in their "extracurricular activities," they should resign as council members. Oonna Macomber Beilingnam 100 1069 nLLtut^xju-x/^ hkyuuLA Sewer utility tax /c\^ isn't illegal % The Lummi tax on the sewer utility is not "illegal." as Marlene Dawson testified to Congress. The tax: 1. Is approved by the Washington State Public Utilities Commission and the [)e- partment of the Interior: 2. Pays for federally required administra- tive and environmental reports and other functions: 3. Is comparable to utility taxes in Bell- ingham and elsewhere that are passed on to the customer, just like the Puget Power tax. The Lummi Sewer Board unanimously denied Dawsons appeal on the tax. includ- ing two non-Indian members eleaed by all state registered voters of the reservation. Lummi obtained federal funding for sewer construction, which non-Indians re- ceived at hookup costs. Without it. non- Indian development would have been halt- ed by septic pollution that had decertified shellfish beds. A Lummi moratorium did stop tribal development during the 1975-83 lawsuit over purveyorship. while county- permitted development skyrocketed. The only sewer application not receiving service is an unstable development at the .end of Sandy Point, an eroding flood and seismic zone that would icopardize the sewer. All others have been connected. A ta.x on the district amiiuntina to SI. 15 passed on to each service monthly is a small pntc lo (>■'> ditional ?r>>r)crt\' for -ric MiV^itantial ad- alue SaSan^utnt.. sewer Boart. Bellingbam Dawson's actions spread cloud of shame Whatcom County Councilwoman M^lene Dawson recently testified to a U.S Senate committee hearing on Indian ""^""a taxpayer 1 would like answers to the ^^rDol'^^he'county Council have a for. n,a, position about water rights on the ^"Doe:thrCou"ntv Council have a.fo. J p^o'Ln on the issue of Indian nations ^"Tw^^Dawson delegated responsibility to speak for this county on those issues. /oid she imply that she was^ ^r-prear: cToLd^f shlme^er^all words spread ^ ='° ^ountv citizens ^rsS°s^?a^Dawson may be missing may not be legal. n 1 ^\ ' Jean G. McKay \9' (^*' ' ^ Beilingnam 101 1070 CO ^2 "a ^ 3 « o > C o en CO a> o ri >< K « jJ, 3 -J « M ou c— * « - S -3 £» P ^ *• -_ e 3 ^ J5 Sj: S 3 2 S 2 = s -, = — ■3 = — £::= „ — 1^ u o - -2 3 :2 ■= = 3 a u X y u i; I- ?S 3= 3 •JS -3«- 3 3 , -^ K U 3-3 S> U b W E 3 u 3 Ml 3 » » = c. a -5 3 "3 5 >s'C C 3 2Z c- u c C = ;n — a -3 " = i 3 -^ e u 2 _ ■5 "> 3 ^. - 3 * £ "■" «< » a o ■5 2 S-5 2 = > — •? ca a. IS o o » . Sil g.i £■§.§ Jr? C o'"-'5Sur-3^a «W _M •*■ ; -S -tj O S g ■" •— S nJ ^- ■sTj » o S S.i » -{S • * E 0-3 -jj~ E Ei^=5-S-S-H» - S^;^^ e 3^- c . 3 a > 3 H — u 3 u 2 3 ^=-2 2 5 J2J=ZS|| •i:3'3.s:^0>B 1 1 CO J3 c c o o 8.1 ? i • s as - §"8 /S 3 « ^^ 3 ilil 2 - ~ 2 |§8- P oo«P S^ .S £ 2 ^ J. s^ •a >• c s 8 u a e C 111 3 V O 5 .2 ^ — w « S c ^ S o g ' S M 3 B = X "3 "5 E 2-3-3 ^ u *■ ° S 5 a 2. S It ^ 3 ® a ° jj 3 1 £ 9 9 S •O "3 w e w 3 -s OS i = i 3 M >^ i»2(S a 2 'S 3 c ■^ .2 V5 c :> _ 3 = i^:^ E = 55 0.-3 b O 3 3 3 a. = E i: 3 c as 3 E «;5 U E >^E_ 8 3 3 0. 3 -S g g - - J « 2 - -S g 2 ■3 2 E S S i? V 3 >.--»,? 515 e o E o I - _ O k. T •.r-|J|.i5 ^i-.S St 5>"3 Ji ^*^ « 3 E-£ 3 • 5 3 ii •= ^-s -2 •■= «»-3 »>= ■ s s I ^.5 5 -"^ 2 p-H -e2=„==3i-£~ J C 5 « S- j_ «- 2 8 1 ? g 1 -s 's S TT :: - -.. S 3 = 25.^ S IB S S s u S 31 S3 » 5- 5 3 3 = A? 2 5 » ■2 2 Tli 3 g 2 jj •£ 3 102 1071 a> o i -Q 3 .1^ 5 3--.2->. 3 S -• -3 = IS — c _ 3 — 3 3 - ' — 3 — u . 3 S = 3. = >.-3 =?=-! ass 3 w = " « ' ^^ S--5 2-^^ ^ !- = = .2 I = f w "3 ■ ■ 2-= » =■ 1-3 2 -J "5 . ' i:^f3= u -5: - :^ - '■5 ■— 3 >s I si i 3 u j^ 5 5 2^ ---Si 3 30 "" **'— .= 2 5 2 y in ■ " 3 w Hi ' = 3 ■ill *.1S . .» — -3 a 3 5, ;i p-5. J: T3 ^ u c •2 CQ u a •o JJ i = f <2 5^1 >; 2 e-- CTiJ O 2 Eg ■S = £ 8 w ® oj ^ 2" Sir o) ■Q T3 £ » CD (D O 0) = - ? 3 H s c3-? 30 = -S 2 » ^ ^ =■ 3 ^ j^.S >,= c -J— 2 3 V 5,3 u VI u a O w a St -O ^'" u — c u ^-3 e M ^ .5 >-s-;2 s 2 c „ 2 , 30 3 ■= 3 •Sj = 5. — c — 2 ^■r " 5 "ill = 5 3 •= ■S -3 -J 2 3 : — > ! 2 5 = = ■ ^ Z Z *i !=— -J > ; — k. = s ■J a __ •J = = 2? — Z MJ — [^ — ffl C^ . O « > - "• V £ = 3 = - ' G 3 o = , H T= = 3>: 3 ^ 1— ■- ii "= "30 f- n - =0 5 .= * a 3 3 c >■ St = 5 H c « — — ^ 2-gi « .2 * - X ^ 3 o 5 3 "2 — ao ".y 5 -J a = u i 'J s S » 5 2 2 II f I lilt 3 _ _ m 3 = -3 « «^ 2 = .(.« — — ic =•= i 3 5 2 = " -J U 3 > 'J ^ 3 -i -= _: " " 3, ^ ^'^ ^~ : " w) a ■ .2 fr^"i 3-5^r: = '^ S = 2 a C 3 S C. 30— _ .= — "3 30 a ~ 2 : ;^2 ^. « s u C li ^ '«* 3 -.£ 2 Si a J i i §-u ^ 3 .. S 3 6 s = is 2 c £■= s 3 - 00*3 S:0 >^c - r< S » H c-2 £ c a c .a = ■3-S"3 3 ^ ,'3 5 ^^ 3 3 -. = 3 .J . c3|i| s s - = « o « «; > = i :^ ''ao=_o Tiu S 1= * > 30T; = u £ " " "T s S -i "S E H -g .>;-a ^ .2 £ 2 u 3 "•=■3 S _ C.2P-^^ v2^ J? S .2 2 ■H.s V := — Jt 3 ■— u ^ -2r a. II H P CO ^ =-= sold E 3 - — 1* "I u < 0£l E H 9 Z •o ^c C -3 o o =3 b< c o o S2 — S 2 I = 3 5? 3- " a ^ > >«-3 -3 J « ^ = 13-^ 3 5^1'i :>=3.^^ 3 2 a — ^ = ^=> 2 ^ -r? t» -r - ^ -c -3 ^ C 5 2 — § :u) = - « 3 _ U = ^ *^ 5 ^ — ^ -3 -J ." = s i^H^2 . — ■ _:. -- u -3 s a = i I ^ 3 3 I 3 I „ •= S a _J Z < H _r'i-^ - i- = lo a £ g 2 = ^_ > < £ S 3- ~ * S - = > u « O ^ 3; S 3 2 2 ^■^ u — t^ a >, a 2 >> y 3 -3 X a 2 = w >s.a =.= 5; ^ -3 M a s •« '^ §.< ^ ? J^ aZ c i 1 = 3 2 y "" 2^3- u 2 "2 t u c ? C..2 3 - 3 — U _ 3 y. 3 3 "J 3 = 33- u 30 a :2'5 S2 H u " = .2 .3 •■' ?! a 12 — je — y > -aS sis ■n S n a ai 3 yi a < = a a - J a 3 3 ^ 3 -J P ^ > " C a — ■/I y >» y 1< l-s — 3 -3 - 1072 LETTERS Dawson should sell reservation property ! According to "A History of Indian I Policy," by S. Lyman Taylor, (Page 71) I available in the Western Washington j University reference library. Doc 120.2, ! H62, the treaty making by die U.S. Gov- ; crnment ended in 1871 with Native I Americans. No fimher treaties with I tribes in the United States were made after that date. The Point Elliot Treaty, sigjied on Jan. 22^ 1855» by Isaac L Stevens, gover- nor and superintendent; Chief Seattle; Chief of the Liimmi; Chief of the Skagit tribe; and 12 other members of the Lu mm i " Tribe, was not obliterated nor negated by the ending of further treaties in I871.';^,^ .^ -^j^ Marlene' Dawson, Whatcom County Cooncihvoman, gave me the date of March 3, 1879, for the basis of her quote in her article of Oct 6 in the Herald about the U.S. government no longer deahng with "Indian Tnbes as sovereign nations." She added that one cannot be "sover- eign and independent" if one accepts funds from the U.S. government Apparently, she implies that anyone on Social Security or in U.S. government service cannot vote because they are "dependent" If .Mrs. Dawson is unhappy with her property on the reservation, why doesn't she sell it? Leonard Rtzgerald Bellingham ▼ LE'l 1 i^xv^ Doesn't want Dawson to defend his rights It is time for Whatcom County Council- woman Marlene Dawson to step down and take her avaricious behavior elsewhere. (A recent lener writer) applauds Daw- son's defense of "everyone," but I want Dawson to know that I, for one. do not need a land-hungry politician to defend my rights. I get the distina impression that the Dawson family might be in the land specu- lation business and even if that is half true she should be sent home and kept off the reservation. People who speculate on the misery of others belong in the same grave as Eben- czer Scrooge. "Fellow citizens," indeed. It's farcical. I hear also that Dawson is digging a well on some acreage on the reservation and that her family is in the construction busi- ness. That is the epitome of conflict of in- terest. How can Whatcom County or any such agency maintain such disaccord? And while we are at it Pete Kxemmen, would you please consider a request where- in Whatcom County would pay for a trip to Washington, D.C., for my wife and me? I would like to see if I can have all the Indian treaties broken, and just because I like you I will send all the Indians to Okla- homa. Warren S. Pugh Lynden 104 1073 o S^sg-ii B o. c i = 5. = S — != *■= £.2-: es 2 3 3* — I I " 3 ^ 5-3 =- .>-— = = 3 •£ — .= ^■= ^ 2 ft Sj '11=1 t ■3 - — ^ -« ?? ? 2 ^ J5 " c * o ^ ii o c *o £ ■= ■= •» a ~ C 5 3 = H c a c ■<■ ^ •■ s c = 2=5 C ?^ !<.= 2 Q : -3 :i = y = — 3?- = c ^ 2 £-.2 c — - M u — a 3 S = z ■is 3.1 3 j^ 2 S J 2 w 3 ap :r u i i-S 5 S.3 3 2 1.^ £.« 2 ■ J-ii c o -3 a •£ :2 — 3 V "" *■ c — 2 ** S 3 «; = "" C a — - r •= 5 3 c 2si 5 •-3 2 ■3 5 as E ** ^ vi -3 ? -3 -^ — -y* — w C.-5 = 3 j: - c Ti — r; a - « ■£ ^ .2I_ f .i "5 u O^ ? = ~ ^ "S 3 c« C/3 Q ^ o S >- " = » O >.i — = = = « 8 JH 3 .. J5 "3 ^ <• -J - J J — ao — a ^ ill ij^ - i u 5 3 -"^ ii 3 ^ . u _ je - -3 .■= ■-■ >. s « : "2 -^"^2 c u o = c •3 H 3 2-53 = .;; = -2 3 = tl!i 5 2 — ■= -J— ' ^ il-i = -1 - 1 of 3 S S u a ^ = ^ 5 s •=■= 3= 2- I 2 5 — — ^ •= C; ^ »> *" « « ■ 2--= a C 3 U — - '- ,<= £. H o a u — — ^ 5 S.= a 2 J 6 = : s 3 _ -= 2 c ID S "c^ s^ si -3 — o i ^ *" u — i ■•" 1074 a i H = U U 'Zf u = > 3 3" o a> ^ b. u ea ea £: X3 cyj >> (•J OJ n c o l>3 c B 03 ex 2 £.— 5-3 ^ '•J " — . 3 = u — s 3 -=1 -3 '5 3 2 2-5 J — ■= 3 u IS =o>^2 5-^ - .2 ' ^ ^ >> Xi = r w - - — •^ = •= 3 >> 5 > vS "3 =3:>g - " - Q. _ ■ ■= ■« ; a 3 I -a — - "3 C-r - w 3 .. ^ 2 5 •-• .2? S - c- -■ := II c _ 3 r 2 -3 .-i - 3 " 3 9- 3 = = * o ■— ~ y* ' 3 = — c — S3 J i! I > t9 ^ -1 — « J 3 >.— 2-lbS— 32 ■-'=»c7-3 •._ " a o 2i aj: i-r 3 I 2 = 3 ■§ » ■= ^ *z > "* — iJ '3 r ~ _ u ? * « - .- a TS ■5; ^ - 3 ST H 3 ■ '-OS, •^"--—aoOu >v ;£ i = ■■i - ^ - S S" 2 o N If - s — ^ $ ^ :>— c =« "" " ^ u "a. o e (A — — i 5 « -1 I 2 2 » 2 — c. ~ C.C 3) - 5 -g ^ s = 3 3 .^- ? 3 -J > =i 2-3 3i-= » 02- O- S.g a 00||| o CO ^i^S -I 3i3 3 C.-3 ^. ^ 23 -a 00 s .= c^ a s 2 ^-2 - - •s MC =■., I s - ^ 3 = 3 = = * ^ S 2 -2 S ■= . 5 ■= - •= -= o g..2 g i2 2 «^ ^ 3 c.— — » a 2 ■ ■3 < 30 . i 2 J 2 i 5 - o — D ■ s B o ii o en £ S «^ .« 2 41 ^T ^ fe "3 *> ll 3 = a^fq = ■_ QJ x — ± C 2?-c ■ a M C ap^ C o S S C o eo Q QO U c = C = a = — ■= 5.= ^ S S " 2 : E «_- c c „ a jj 5J i _u 5 = ^ » -I .= = 2 "3 2 = ■= S- -o -S c u b c — 3 c|S.3 3| c — .- 3 - c. ^ " _2 — — » "" "w «^ 3 - " c u -. = E 5— "■= 5 e-3SiI*'»*''2.2 »ii 2 5"2 S'S a «— '=i2"c ^ a«»aMi_^ >sA a u u ;: a >. = — ^ a ^ ae = ™ a — w > a a jo « ~ — t^ a a lis o - III JS--0 s^?? §J = ic scl of 1 n lea s 3 3 = jJ u U 10 > S Ilil III le ■c.a a •« — ^ u a = a — CO . ^ji, g „ . -c = a. 4,^ " " - To- ^ £"•■■ aj «■ i£-3s* a -S - -Tr.» I 2 3 : ;::^ 2 i. . i, . >o.' c " ♦> 2 ^s = 4 -ssis . a:2a2w=r£.; c.- =3 - 2?S-5 c-i ~ 5 " S s — w'3e^m^ — 30 3 2 -2P ^ ■» — a sS *-2:-,2 •=::S2-'5„ 5< 5 3 = " - S r = _- a af =1 r^s^sil 2J 3Ci«(« _r»4X.— C3- O 3J C C a = 00 1075 Restore trust ioj^^y"'^ 1 '•^•IM county government lU^i^ As a resident of Whatcom County, who happens to be a native-bom American of European, descent. I feel gravely disap- pointed with' the actions of Whatcom County Council in regards to growth man- agement, environmental protection, and in regards to the people of Lummi Nation. We obviously have council members with piivaie agendas. The private interests of these public officials in their efforts to ma- nipulate and repeal environmental protec- tion measures of the state Growth Manage- ment Act. demonstrates greed and and dis- regard for the well-being of others. It is inappropnate and illegal for pubic officials to be lobbying for private interests with public funds. I feel it was an abuse of pubic trust and public funds to finance Ms. Dawson's trip to Washington DC, espe- cially in light of the fact that Whatcom County funds are hmited and essential pro- grams are being cut. And the total disregard of water quality management of the Nooksack River has re- sulted in pollution to the extent that not only the fishing industry, but the health of the people of the Lummi Nation suffers. Whatcom County Council's abuse of en- vironmental resources and public funds and their lack of regard for federal treaties and state laws must stop. Let's bring public trust and responsible stewardship back to Whatcom County government. Dawson shouJd put aside persona] agenda eter of our community. "°'"" Beth Marsau Femdale \^nfd "^ ^'^="^"8 to the rebuttal Mi^eni ^ °"" 9""'^ Coundwoman o^J^ph^^^rnif""""^'^'-"™" , Ms. Dawson has made her stand quite ar^ni'h""^'' ''" ^°"^ ^d actions ^con armng her views of the Lummi Nation and and demean an entire group of people S^-l^Si^^S^--^--^"-- Ms. Dawson sooner or later must face ^ fact that Native Americans do havel ^t^n ^ ° ^"^""^ "hemselves and main- tun heir way of Ufe. How this is ac- complished IS o(«n to interpretation and t^L^T^ °[P<=,Tx=tually laying blame and fostering an "us" versus "them " men- taliO' which produces nothing buMll win To^^^rh"" °^"- "l?""*- '"'^^"^ discu^^: d^r u° ^S""^^ °f ="h" side could ^on^^, ""' ''""' ^""^ "g'« °" 'he issue of tnbal sovereignty tha'^wf n'"^"^ °^°^'" ' ^O"''' hope tftat (Vk Dawson at some point would have the wisdom and maturity to put aside her personal agenda and earnestly seek to work for the good of the entire commurWty Jennifer Reidel Belfingham Ashamed by Dawson's rhetoric Trip wasted public's money The Whatcom County Council sent Marlene Dawson to Washington, D.C at taxpayers' expense to cany her obvi- ous conflict-of-mterest agenda to anti- Lummi senator Slade Gorton. The public's money would have been far better spent if the council had al- located It to a food bank, conservation measures, or the parks department. Ralph Miner Bellingham Marlene Dawson's ■exn.TT- ^ -cit^theplX^ofX^r^^^^'^'^ dec?d: ^heth'/'or" ^^w" ""= ^^^^^ - public declaration" o°p'at™,*^"''° ^^'^ ^^^ Joseph .McCanhy tor m^ =nre'ter?c:;::;;r",^^-p-'«= tain civil ri^Ltl^l^ }^- ^did cer. ^'mereligio^S^e^ '"^ '"' """^^^'^ °' sc.^d"'we^LT«-^ '^'^ "«" Ob- cloth^g. 'a^S ^,!^,' ^^;^ ^"d stnpes as protest! that^nToivedfla^K?"^ °^ '?°'"'"' don't cite these kind, nf^-''"'?"'^- '"<^'^"^ sonsfordecJ^ngtti^s^S"'^"'"- subttitSrita1^'be"S"T"""7' ^^*-" toitsprobler ^ constructive solutions Co^nrirc;/""=^'°^«'P-"<^°fo"r ash^'aTed"' ^"''""^ '"^'" -e fee, George Mustoe Bellingham 107 1076 Dawson owes public an apology Whatcom County Councilwoman Marlene Dawson (len'er. Oct. 20 Herald, Page B4) says she is responsible for report- ing intorma'tion given to her as a council person. I believe the "information" should first be verified — creating "data" (information which has been validated). Lummi American Legion Post 33 has many non-Indian members, and an out- standing record of lOO percent participa- tion in enrollment, active volunteer work in every aspea of 'Indian and Non-Indian" field work all over the Northwest, into Can- ada, and Alaska. I believe ail veterans served to defend American's rights — to pledge, bum (the flag), not pledge or whatever according to the Constitution, which has not been changed. Lummi Indians are Canadian/American citizens, have their own U.S. Congress- approved Indian constitution/pledge of al- legiance and can salute or not salute who or whatever they please. They also have an extraordinary record of .-American military service. I believe Marlene Dawson owes every- one an apology. She does not qualify as a representative of the local people. Karen Ridley 1^1^-^^ jff^^^ Beilingham (((dlHi Expose, remove the mean and bigoted As the thres-vear cover up of links be- tween property 'nghts groups, racists and mmtS.'b/g>ns to -ravel, .t^s-mpor^ant that *e reaffirm our commitmeiit to scii S..mm"n. by !,ol■ : **• z S»- - V 9>-: .►-.- z avoh NUdPc OS 1- os - 1 ».= 1 ;: i r^ ^ i >< e u / cStjT. L.T I . "pec n oVvc < 2 /^/fjtr^ 1111 103 In old English law, certain men sent into the several counties to increase the farms (rents) of hundreds and wapentakes, which fonnerly were let at a certain value to the sheriff. See Hundred; Wapentake. Approxjinate. Used in the sense of an estimate merely, meaning more or less, but about and near the amount, quantity, or distance specified. Near to: about; a little more or less; close. "Approximately" is very nearly synonymous with "proximately", meaning very nearly, but not absolutely. Approximatioii. Equitable doctrine by which precise terms of charitable trust can be varied under certain I circumstances. Applicable to charitable trusts and em- ployed only where on £ulure of trust the court finds a general charitable intent Under this doctrine, the gen- eral intent of the donor is carried out as nearly as may . be even if the particular method pointed out by him cannot be followed. Harris v. Attorney General, 31 Conn.Sup. 93, 324 A..2d 279. 283. See Cy-Pres. Appraar« /gp ruweriy/. To f*" *" " ne's use or p rofit Appurtenance /apartanans/. That which belongs something else; an adjunct; an appendag e. Somethii annexed to another thing more worthy as' principal, and which pa sees as incident to it as a right of way or othe i^ easement to land; an outhouse, bam. garden, or or- \ chard, to a house or messuage. JopUn Waterworks Co. j V. Jasper County, 327 Mo. 964. 38 S.W.2d 1068, 1076.1 An article adapted to the use of the property to which it i a connected, and which was intended to be a permanen t! accession to the freehol d. A thing is deemed to b el in ddental or appurtenant to land when it is by right 1 ""4 with '^' '"' 'd for its benefit as in the case of a | w ay, or watercourse, or of a passage for light air, or | heat fr om o r ac ross the land of another . See also{ Appendant AppnrtenanL Belonging to; a ccessor y or incident to; •djunct appended, or annexed to; answering to ac- astonum in the civil law. Employed in leases for th e purpose of including any easements or ser vitiirfx lyjf j H or_e njoyed with the demised premises . A thing is "ap- purtenant to something else when it stands in relation of an incident to a princifial a nd is necessarily connect ed with the I'lB tTft » "ioyment of the latte r. A thing is deemed tn |y ingid*"^*' or appurlenant to land whenj t ii by right ^ffti^ with the^ land for its bene fi t as in the case of a way, or water-cnurae. or of a passage for light ur, or beat from or acnaa the land of another. See oito Eatamem. ^l/^CS y^AtxjO l/f<^-r/cy?u,c^ APK- See Annual percaniage rale. ^-'^■^C. Anno pott Romam conditam, /enow powst Bovnuffi kondatam/ in the year after the foundation of Rome. A ptaudra /a prbndar/. L Fr. To take; to seize. Brtf > prendrt la ttrrt. a writ to take the land. A right to '*lte something out of the soil of another is a profit d P'^ndrt. or a right coupled with a profit Distinguished ""•n an easement Sometimes written as one word. 'Vprtndre. apprtnder. See Pro« (Profit a prtndrtX AQUAGIUM A priori /ey prayoray/. Lat From the cause to the effect from what goes before. A term used in logic to denote an argument founded on analogy, or abstract considerations, or one which, positing a general princi- ple or admitted truth as a cause, proceeds to deduce from it the effects which must necessarily follow. A provisione viri /ey prsvizhiyowniy vihray/. By the provision of man. Apt Fit suitable; appropriate. Apta viro /iptj virow/. Fit for a husband; marriagea- ble; a woman who has reached marriageable years. Apt words. Words proper to produce the legal effect for which they are intended; sound technical phrases. Apud acta /ipad zkta/. Among the acts; among the recorded proceedings. In the civil law, this phrase is applied to appeals taken orally, in the presence of the judge, at the time of judgment or sentence. Credit Co., Ltd.. V. Arkansas Cent Ry. Co., 128 VS. 258, 9 S.Ct. 107, 108, 32 L.Ed. 448. Aqua /ikwj/. In the civil and old English law, water; sometimes a stream or water-course. Aqua zstiva /ikwj iystivj/. In Roman law, summer water, water that was used in summer only. Aqua cedit solo /ikwa siydjt sowlow/. Water follows the land. A sale of land will pass the water which covers it 2 Bl.Comm. 18. Aqua currens /ikws kjhrenz/. Running water. Aqua currit et debet currere, ut currere solebat /ikws luhrat et debat kihrariy, it kihrsriy sowliybat/. Water runs, and ought to run, as it has used to run. A running stream should be left to flow in its natural channel, without alteration or diversiot; that water is the common and equal property of every one through whose domain it flows. Aqua dulcia, or friaca /skwa dalsas/'friska/. Fresh water. Xqua: ductus /skwiy diktas/. In the civil law, a servi- \ tude which consists in the right to carry water by means ' pipes or conduits over or through the esute of anoth- A^nz haustus /zkwiy hdetas/. In the dvil law, a servi- which consists in the right to draw water from the fountain, pool, or spring of another. "Aqnz immittwidy /ckwiy inutendiy/. A civil law ease- ment or servitude, consisting in the right of one whose house is surrounded with other buildings to cast waste water upon the adjacent roo£i or yards. Similar to the common law easement of drip. Aqua foatanea /ckwa fonteyniya/. Spring water. Aqaagium /akweyjiyam/. A canal, ditch, or water course running through marshy grounds. A mark or gauge placed in or on the banks of a running stream, to indicate the height of the water, was called 'aquagaufi- 1112 I.UMMI INDIAN niiSINRSS COUNCIL PeiOKWINA III) • MIM.I INCHAM. WASIIIN<;iUN 9ll2;!6-9?nB • (206) 73'1-OinU RESOLUTION 190-108 0-108 A Till fXT THE lUHHl INDIAN BUSINESS COUNCIL WUEREA53, the Lummi Indian Duslness Council Is the duly constituted governing body of the Lumml Indian Reservation by the authority of the conatitution and By-Laws of the Lumrai Nation of the I.ummi Reservation, Washington, as approved on April 10, 1970, by the Aasiotniit CumMlBoiuiioL u£ Indinii Affairs; and WHEREAS, The People of the Lumwl Nation find that all Reserva- tion natural resources are interconnected: and that the water resource has cultural, spiritual and economic values that guide the appropriate use. Management and protection of that resource and the conditions of all water and land use activities in the watersheds, drainage basins of the Reservation and all usual and accUstoBied areas; and WHEREAS, The Lumrai Nation find that ground water are directly Interconnected by the hydraulic cycle of the region and the Roaervation, and therefore water is a unitary resource, whether occurring as surface water, springs, mineral water, soil mois- ture, precipitation, percolating water, recharge, drainage water, or otherwise; and WHEREAS, The Lummi Nation recognize that clean water is vital to the health and welfare of the Reservation residents and to the vitality of the Reservation economy. Dec.Tuse resource uses mny contribute to the degradation of water supply and quality, it Is necessary to protect the environnental quality and integrity of all surface and ground water; and WHEREAS, The Lummi Nation find that all waters reserved by treaty are held by them in truct for the benefit of the People of the Lummi Nation, as an f»«?3entinl attribute of sovereignty, the power to determine the proper uses of said waters and the manage- ment thereof is the Lunni Nations alone; and HOW THEREFORE BE IT RESOLVED, that the Lummi Indian Reservation has no Surplus water for additional non-Indian development and that all water present on the Lummi Indian Reservation is subject to the sole regulatory authority of the Lumni Indian Nation. RE IT FURTHER RESOLVED, that the Chairman (or the Vice Chairman in his absence) is hereby authorized and directed to execute this resolution and any documents connected therewith, and the Secretary (or the Recording Secretary in his absence) is authorized and directed to execute the following certification. .WCMMva MIAlOt J*>«t tuAnulcAOfv 0«>i »i wciuiw jrrrtntoN Mtlinf U rMWV Cm * II jotorrino 1113 IMTERLOCAL A6REEHEHT : LUKHI TRIBAL MATER Mffl SEWER DISTRICT MATER SERVICE WHEREAS, th« City of Balllnghui (the "City*) Is a Municipal corpor&tlon fomad under the laws of the State of Washington and a first class city which maintains a water supply serving the area within Its corporate Units and certain areas outside those limits; and, WHEREAS, the Lumi Tribal Mater and Sewer District (the 'District') Is a municipal corporation, duly chartered by the Luoni Indian Tribe, which has duly applied for and received City approval of the provision of water for resale by it to Its customers pursuant to Bellinghan Municipal Code Chapter 15.36; and, i WHEREAS, the foregoing parties are authorized by RCW 39.34 to enter Into an Interlocal Agreenent finalizing the terns and conditions of the provision of water as herein agreed to; NOW, THEREFORE, In view of the above recitals and In consideration of the mutual covenants and prooises set out below, the parties hereby agree as follows: 1. Provision of water sudqIy . The City agrees to provide to the District up to I Hximun of 1000 gallons per nlnute of uninterrupted daily potable water service, at a ainiaun of 30 psi. for resale by the District to its euttonwrt rvtiding within thi Di strict boundary as it sxiats as of thi date hereinbelow. The District boundary is presently co-extensive with that of the Luinini Indian Reservation. Service to areas other than within the existing boundary will be as agreed to by the parties and by amendment to this aoreement, except that the District nay ser^e the area between the end of the City of Belllnghaa line «t Harietta Slough and the Reservation boundary. 2. Constnjct^np nf faci'itiet . The District agrees to construct a transmission nam ten (10*) Inches in diameter, from the City's existing water main on Curtis Road to a point approved by the City along Country Lane near the Harietta Slough, and there to construct a vault, water attir and backflow device(s); all costs shall oe solely borne by the District. Such construction shall be in accordance with City standards, and subject to approval by the City Public Works Oepartnent. The District shall reimburse the City for its necessary costs of intoection, testing and acceptance of the nain and meter assembly. 3. Ownership inrf aaintenance of facilities. Upon approval of construction by the City and conoencement of the service provided herein, tha District shall forthwith transfer to the City ownership of the main, viuU, meter, and backHow device(s). Thereafter, the City will be responsible for maintenance of the portion of the system it owns, and the District for the portion it owns. C% 04 e««n|fMni art ATTORNIV >iOiaiMti'M« lailM^fUKi. timtr. n^'X H"i Uiaonan* UO»t t>i<«Wl 1114 4. Rilfi!^ I P'^ hmina . The City will chirge tha District, und th« District igreBS to pay. for watsr servlct herein provided tt Its usual rates for service out of the city is set forth in BHC IS.08. 250(C)(2). It is understood that the cost of such service represents the costs of withdrawal, diversion, treatment, transmission and return on investment. The City will bill the District nonthly, and payment thereon shall be due within thirty (30) days of receipt of billing. Failure to so remit In a timely fashion constitutes a breach of this Agreement entitling the City» at its option, to immadiately discontinue service hereunder. 5. latecomer igrgeaent . The City agrees that, for any new sales of water by it to customers connecting to the transmission main described above. It will obtain "latecomer payments' from any party so connecting for reimbursement to the District of a pro rata portion of its construction costs. 6. Hpld harmless . The District agrees to defend the City and hold it harmless as to any claims or lawsuits, well-founded or not, arising out of (a) the construction herein, (b) use of the facilities the District owns or maintains, and (c) provision of water services to District customers. The District understands, and will advise its customers as wcessary, that no leoal relationship exists- between them and the City, and that the District Is solely responsible for provision of water service to such custontrj and billing for same . 7 R^nhrs araserved . Mothing In this agreement compromises or adversely affects 'the Tribe's reserved water rights under the VJnters doctrine or other aoolicable law, provided, however, that by execution of this agreement, the City neither admits nor denies the existence of the Tribe's reserved water rights. DATED this 2- day of HA^cw iggo, by the LUHMI TRIBAL WATER I SEWEa DISTRICT, anTthe UJMMI INDIAN BUSINESS COUNCIL: .«UWCA. ■^r DATED this Attest : /»€?<■ «^^/ '^rt^ ^ ^T^i^CXy nnarice Oirac.or Approv^»d as to form*. CUy-^ltorney'sMi + ice •2- CUv o( 6*U10 QT _ "iti 1118 An LIBC letter, 24 March 1993, says in part, "premature for the Lummi Nation to negotiate. . .prior to resolving other Sandy Point I Tideland issues: leasing of Tidelands must be looked at in its entirety. . . .Until these water and tidelands issues are addressed, the Lummi Planning Commission will not grant approval of this project" . MJ ' s Sewer extension was approved by Sewer District 29 April 1993. MJ indicates that an undated LIBC draft resolution, circa June- July 1993 states, "In addition, the applicant has not made suitable arrangements for the use of tribal lands, including tidelands comprising the Sandy Point Channel. Therefore the application to extend sewer service to the South Cape area of Sandy Point is denied." MJ makes the point that the Lummi hoped their denial would compel him to persuade Sandy Point residents to renew the tidelands leases. Sewer District approval was overruled by LIBC on 14 July 1993 (subsequent to a stated meeting on 15 June 1993) for the following reasons: I "The project had not been approved by the Lummi Planning Commission. I There was no assured supply of domestic water to the project which complies with the Lummi Nation laws and policies. I The landform is unstable and subject to ongoing erosion and flooding and is vulnerable to damage from seismic activity." (MJ comments that the above reasons were presumably put forward because it was realized that linking the sewer extension to tideland lease renewal was untenable, [also], that the term "Lummi Nation laws and policies" is incapable of precise interpretation and thus meaningless.) MJ states that he was invited to a hearing before the LIBC, but declined because Whatcom County is the sole planning and zoning authority and that the LIBC has no such powers over land owned by non- Indians in fee simple. He replied on 16 July 1993 to Mr. Cagey that the power of the LIBC is limited to reviewing a decision of the Sewer Board " for the purposes of ascertaining whether a fair hearing was held " . 1119 MJ further points out that per the Sewer Ordinance, the LIBC resolution was invalid, having not been performed within the required 30 days. He further suggests that since the LIBC "has a duty to notify an applicant forthwith, it is likely that this meeting of the LIBC did not even take place until 14th July 1993". Additionally, he comments that the draft resolution of June- July 1993, in denying the extension, erroneously gives the date of the Sewer board meeting as 28 May 1993 instead of 29 April 1993, this, "an attempt on the part of the LIBC to cover up its procedural defects. ..." MJ arranged a meeting with Henry Cagey for 21 July 1993 and reconfirmed the meeting on the morning of that date. Upon arrival, he was told he was to meet a "Chief Oliver". Instead, he was ushered into the presence of Mr. Johnsen, the tribal attorney and three others. He presented his views on the situation with the understanding that no meeting was deemed to have taken place. On 26 July 1993, MJ wrote to Mr. Cagey suggesting they meet for lunch or dinner. Circa 30 July 1993, MJ heard from his engineer that Mr. Johnsen had asked her for the geological survey reports on the property, carried out for the Department of Ecology to confirm the stability of the land. This request was refused. On 24 August 1993, having obtained a copy of the Lummi Tribal Sewer and Water Ordinance, MJ wrote to Mr. Cagey pointing out that the position stated in his denial letter of 14 July 1993 was inconsistent with both the Consent Decree and the Sewer Ordinance, MJ states that he proposed to the Department of Ecology that he install a reverse osmosis system at South Cape. By letter dated 15 September 1993, the Lummi protested MJ ' s application on ecological grounds. It is noted that the LIBC claims that: " Marine waters and the tidelands of the Reservation are the property of the Lummi Nation. However, from United States v Winans, MJ quotes the following: "The States control navigable waters, including the soil under them and the fisheries within their limits, subject only to the rights of the General Government under the Constitution in the regulation of commerce." MJ also comments that Reservation tidelands are owned in trust for the Tribe and not owned by the Tribe itself. 1120 Mr. Cagey, on 16 September 1993, without mentioning MJ ' s letter of 24 August, raised a new reason for denial of the sewer extension: a section of the ordinance requiring that an extension proposal by the Sewer Board be "accompanied by an amendment to the Facilities Plan", which the Sewer Board had apparently failed to do. (MJ comments that the above is just a procedural matter; further, that this requirement had not been imposed in relation to earlier extensions to the system; further, that the Sewer District was expecting to extend the sewer to this property from 1988 onwards, and had no problems with so doing.) MJ comments that Mr. Cagey ' s letter also addressed the matter of connections to homes, a signal that this part of the ordinance permits the LIBC to refuse to permit connections from an extended sewer to houses; in effect frustrate the intentions of the Consent Decree and "swallow the rule of non-discrimination". On 21 September 1993, MJ responded to Mr. Cagey 's letter of 16 September, pointing out the inadvisability of maintaining the present course of the LIBC. His comment, "I now began to realize that 'negotiating' with the LIBC was pointless, as not only was the playing field not level, but the goal posts were always being moved--or even removed altogether." On 25 October 1993, Mr. Cagey offered to purchase the land for a sum which would provide MJ "a reasonable return" on his investment. MJ responded, "offering the property at its sellout value after development , less future construction costs. A 30 November 1993 reply rejected the offer. MJ states that on 7 June 1994, the Department of Ecology gave approval to proceed with the development and install an R.O. system without procuring a water permit. He further comments that one of the reasons given by the LIBC for not approving the sewer system is an alleged lack of water. Finally, MJ observes that the Lummi Tribal Codes do not contain any of the provisions which have been incorporated into the Sewer Ordinance in accordance with the Consent Decree. He comments this is a cause for concern since the code presumably takes precedence over the Sewer Ordinance. I i i 1121 RACIAL DISCRIMINATION PRACTICED BY THE LIBC The LIBC practices racial discrimination through violations of the consent decree. For the Federal Grant which funded the sewage collection and treatment facilities. The EPA required LIBC to sign an "Assurance of Compliance for Title VI of the Civil Rights Act of 1964 and Section 13 of the FWPCA amendments of 1972." MJ goes on to say that : When land is sold by an Indian to a non-Indian in fee simple, the United States has no further interest in the property. . . (letter, BIA, 6 August 1990), and there have been a number of recent court cases confirming that Indians do not have any regulatory control over non-Indian owned land on a reservation. CONCLUSIONS The LIBC seeks to assert control over MJ's property through denial of sewer service, which is: Racial discrimination in violation of the Consent Decree. Racial discrimination in violation of signed agreement with the EPA. Racial discrimination in violation of DOE requirements associated with grants. Racial discrimination in violation of MJ's civil rights as a landowner and taxpayer. Usurpation of Whatcom County's sole authority as relates to zoning and planning jurisdiction over non-Indian land owned in fee simple. 1122 Sandy Point Water Emergency Facts ...Lummi Indian Business Council (LIBC) purchased a fee simple lot in Neptune Heights under an assumed name, about two to three years ago. Dropped a production well within 100 feet of the Sandy Point Improvement Company (SPIC) well into the same aquifer. The SPIC well, established in 1971, is the source of water for 550 full-time families living in the Sandy Point/Neptune Heights area, plus an additional 150 hook-ups. It appears excessive water was pumped by this well over six week period, creating a water emergency. ...Construction of the new LIBC well, which began pumping in July of 1994, is on fee simple land and has not been reverted back to Trust. An industrial 100 KW Generator, an industrial cyclone fence (which originally had razor wire around the top and LIBC armed guards), an 80,000 gallon steel tank were all installed without proper County and State permits in a residentially zoned neighborhood. No conditional use permit, no well drilling permit, no discharge permit. ...a Stop Work order was issued by the County and was ignored about a year and a half ago. County did not enforce the order. ...Initially, when the LIBC fish hatchery was constructed, the LIBC used 23 gallons per minute provided from the old SPIC well, which is now dry. Then they dropped their own small well which pumped 23 gallons per minute and was used part time to supply water for their fish hatchery, which we understand was for a somewhat smaller operation than the current hatchery. Then they dropped this production well into aquifer supplying SPIC water. ...LIBC installed a 20 Horsepower pump capable of pumping 300- plus gallons per minute, which we understand had been running during this dry weather from mid-April and May between 12 and 22 hours per day and was only reduced to about half the volume when the Federal pressures began. . . .The SPIC well has a 15 horsepower pump with capacity of pumping up to 230 gallons per minute and is run at three hour intervals currently this summer to try to stabilize the aquifer and assure an adequate supply water to 550 homes in the Sandy Point area, including some 30 to 40 Lummi residents. . . .End result of the apparent excessive water being pumped for a month and a half, which has been confirmed by auditory valve sounds and professional visual outflow inspection, is a serious water emergency for 550 residents involved, creating a potential health and safety hazard. Initially it was estimated we had one week supply remaining. Area residents responded immediately to the water usage cut back notice, reducing their consumption by nearly half, according to Elden Balzer, SPIC Maintenance Supervisor. 1123 Sandy Point Water Emergency Page 2 ...Lummi Indian Business Council is claiming they are using this water to support their fish hatchery as provided by the Point Elliott Treaty of 1855. However, they have stated they are currently using up to 80 GPM. With and estimated pumping at 200 to 300 GPM, up to 220 GPM of precious water was being wasted, going through the LIBC Sewer system and into Lummi Bay. ...Elden Balzer has spoken with Skookum Fish Hatchery in Nooksack in the past and described the LIBC Hatchery. They confirm that no more than 50 to 80 gallons per minute would be required to support the hatchery. Others have said 80 GPM is too high. ...In addition to creating a potential health hazard for the 550 residents of the Sandy Point/Neptune Heights area, a professional water hydrologist says there is danger of ruining the existing aquifer and well systems, with the potential of sucking in sand and sea water into the systems, if the aquifer is pumped too low. Meetings between the LIBC and Congressman Metcalf and Senator Gorton have been held, as well as meetings including SPIC and LIBC. The wasting of water by LIBC has diminished, apparently cut by about one half, according to Elden Balzer and the Sandy Point Community has done an excellent job of conserving water, but the aquifer is still dangerously low, with the hottest and highest use months of July and August still ahead. ...The problem of the illegal well on fee simple, residentially zoned property, without proper permits from the County and the State still exists .. .with a Stop Work order being ignored. Precious water is still subject to being wasted. ...It is SPIC's speculation the excessive water pumping by the LIBC was in retaliation over the granting of building permits for the Sandy Point area by the Department of Ecology and the State Health Department. The LIBC excessive well pumping coincides with the granting of these permits. There has been a building moratorium for several years over the water issue, where several property owners have been paying taxes on their land, but have been unable to build. This essentially has been confirmed by Henry Cagey in his anti fee simple property growth position. ...The Sandy Point well has been in service since 1971. Each year the aquifer has been drawn down during the summer months but not to the current dangerously low levels. It is not a coincidence the well has been seriously depleted since the illegal LIBC well was put into operation. Some 550 families are threatened with potentially being deprived of their right of a fresh water supply, plus jeopardizing their health and safety. If the LIBC well is allowed continued operation at the current pumping rates the aquifer will likely not recharge this winter. 1124 Sandy Point Water Emergency i Page 3 3 . . .We need to get some teeth back into the laws which govern fee simple property. The Stop Work Order for operating the LIBC well should be enforced by County and State. Federal officials and j Department of Interior authorities are encouraged to withhold ! funds to LIBC until they correct their unfriendly activities toward SPIC. We need this violation of our civil and property ; rights, as guaranteed by the Constitution and Bill of Rights, to | end. I I A long term solution is still required. We need an independent I off-reservation boundaries water source, without resistance from | the LIBC, to augment our current water supply which has been seriously threatened. ' This preliminary information prepared by: Earle Baker, Chairman Sandy Point Property Owners Committee June 25, 1995 1125 LGMMI INDIAN BUSINESS COGNCIL 2616 KWINA ROAD • BELLINGHAM. WASHINGTON 98226-9298 • (360) 384- M89 DEPARTMENT EXT. t-OH IMMEDIATE RFLfiASE Tioedsv, Sfpt^mber ;>4. nt96 Contact: Jewell "Praying Wolf" James or Frederick lane 7021 628-1 161 AFTER FIVE HUNDRED YEARS, INDIAN NATIONS STILL CONSIDERED INCOMt^ETENT TO GOVERN THEIR PEOPLE, THEIR I AND. AND THEIR DOMAIN The Lumml Indian Nation and many of its peers from the Pacific Northwest, as well as other areas of the United States, are outraged over the current focus of a hnaring before the Senate Committee on Indian Affairs, as demanded by Senator Slade Gorton (R-WA). During the 104th Congress, Gorton has introduced one anti Indian rider after another to accomplish his anti-Indian goals - "waiving Indian Trihal sovoreignly". Duiing the Senate Appropriations Committee mark-up of the FY 1997 Interior y^ppropriations Bill, Senator Gorton introduced section 329, an expanded version of section 115 a rider attached to the FY 1996 Interior Appropriations Bill which will penaliire the Liimtni Indian Nation and other Tribes in the State of Washinc|ton if they deny non-Indians within their Reservations boundaries due-process. At this juncturH duiing the proceedings, Gorton was asked by his fellow Sen;4te co!leaguc:-> to withdraw section 329. He agreed with the condition that the Senate Committee on Indian Affairs hold hearings on "sovereign immunity" which in and of itself was wh3t the Tribes had always asked Congress dc«to - provide a fonim for the Tribes, non-Indians, and government entities to bring forward mutual concerns and work tnjieth»r towards the resolutions - not use Congress as a killing field of Indians peoples' sovereign rights Tribal governments had not been afforded an opportunity to address the concerns of the Congress, the States, or the non-Indians. Consultation was but a small request by Tribal governments prior to the seek and destioy attitude which has been the agenda of the anti-Indian sentiment in Congress during this session. For the September 24th hearing. Senator Gorton has brought in special v/itnesses from several different states while only five tribal leaders, representing the several luindrcd Indian nations, and more than four hundred Alaskan Indian, Eskimo, and Aiout Nations were scheduled to testify . 1126 According to Henry Cagey, Chairman of the Lummi Indian Nation - Bellingham, WA... "Tribal leaders recognize that many of the complaints are from non-Indians who willingly bought land inside Indian reservations and then demanded rights to develop the lands without regulation by tribal or other local governments. On the Lummi Reservation non-Indians have fought our tribe over the development of unstable shorelines, and no matter what we presented as justifiable evidence why this should not occur, they resisted our authority and have constantly filed lawsuits against our nation, claiming discrimination was the reason we did not authorize the extension of the impacted sewer facilities." Chairman Cagey continued, "Indian leaders recognize that the primary question is whether or not we are competent to govern our lands, our people, and all civil actions within our domain. Non-Indians, and several U.S. Congressmen, do not believe Indians should have jurisdiction over non-Indians, regardless of the actions in question. All tribes contend that anytime anyone enters another governments' jurisdiction, they are subject to that governments' laws and regulations. It is no different when non-Indians enter reservations. When Indians leave the reservations the same principle applies to their actions. When you drive into the Lunimi Reservation or buy land inside our boundaries, then you are subjected to our jurisdiction". According to Gerald James, Policy Director of the Lummi Treaty Task Force, "The hearing is insulting because the debate is over five hundred years old. Right after Columbus discovered the new wortd the question was whether or not Indians had the capacity of reason to manage their own affairs. This hearing only proves that the question is not answered, and there are those who hold this legal fiction to be true. We have the same rights as non-Indians to develop our own government, based on the needs of our people". Ron Allen, Chairman of the Jamestovvn S'Klallam Tribe and President of the National Congress of American Indians stated, "This hearing has the effect of undermining tribal sovereignty and implementing termination of tribal self-governance by legislative riders. This is an anachronism that Is completely unacceptable. The Congress and Presidency have both issued numerous Indian Policy Statements that support tribal self-determination and self-governance. The policies were honorable, but using appropriation riders to secure a change In law without the benefits of public hearings Is most definitely a denial of due process. In 1871 this was a tactic that denied the President and Senate their treaty-making powers; an appropriation rider of 1871. This appropriation rider tactic is tfie anachronism." Merie Jefferson, Director of the Lummi Indian Natural Resources Department agreed with Mr. Allen. Jefferson said, "This Is what happens when a 1996 Interior 1127 Appropriations Bill rider Is used to penalize Indian people for having water rights secured by Federal law and the non-Indians want the water for their personal use. The non-Indians made It look like they were the victims when, in fact they were illegally taking Indian water. In addition the non-Indians did not have a state water permit. The Lummis were made to look like the villains, the non-Indians were the poor, little victims. This is called "stealing the injury". Lummi Treasurer, Darrell Hillaire was quoted to say, "To remove the sovereign immunity of the Indian tribes would subject the tribes to endless and frivolous lawsuits by all citizens seeking to increase non-Indian real-estate ventures on Indian Reservations. Most of these lawsuits are driven by greed. One lawsuit can cost several million dollars and consume a couple of decades, as in the case of water lawsuits. All governments need the power to limit the ability to be sued. This is a critical power to the poverty stricken Indian governments". Mr. James finally added, "The U.S. Congress created the land ownership problem on the Indian Reservations. The Indian Land Consolidation Act of 1984 did not resolve the problems. These hearings should prove that the U. S. Congress should issue a moratorium on land sales inside Indian Reservations, at least all sales made to or by non-Indians to non-tribal persons or corporations. This moratorium should continue until the Congress can correct the laws to protect the intent of the reservations. The United States has negotiated over seven hundred treaties with the tribes, and ratified 367 of those treaties, and all under the power of the U.S. Constitution itself. These treaties are govemment-to-government contracts and binding upon both parties. This is a duty the United States owes to the tribes under the Trust Responsibility. The reservations were set aside for the Indians' exclusive use by special provisions of most of the treaties ratified by the U.S. Senate". 1128 SOME SOVEREIGN IMMUNITY PROBLEMS By Linnea Smith 8/1 7/96 Sovereign Immunity for Indian tribes has adversely affected so many areas of my life as a non-tribal fee land owner whose property lies within the exterior boundaries of the Lummi Indian Reservation. 1. Denied access to tribal laws (Codes, Ordinances, Resolutions) which affected non- Indians. Denied access to tribal years end Tinancial reports. The accountability required of other governments (county, state and federal) through the Freedom of Information Act is not possible when sovereign immunity and the Indian Self-Government Act are in force. In 1992 I wanted to read the tribal laws to follow up on a rumor. I had been told from several different directions that tne Lummis were rebating the utility tax on phones and electricity, (which we all had to pay to the tribe) to tribal members, if they kept their receipts and turned them in at the end of the year. I was told that I had to make a written formal request, stating specifically what it was that I was looking for, and then there would have to be a formal determination whether I could access the material. I said fine, filled out the forms asking that I be allowed access to laws (ordinances, codes, resolutions) passed from 1985 to present (1992), and was denied twice. I then sent letters out to every political official and agency I could think of for help. The Washington State Governor's Office of Indian Affairs even tned to access the information for me, but they were told that Self Government Indian Tribes were not under the Freedom of Information Act or the Privacy Act, and did not have to respond with information. Finally the BIA agreed to send me copies of all the Lummi codes, resolutions, ordinances, etc. that they had on file for the period. (Immediately after, the tribe wrote and said I could access the information ~ if I would tell them exactly what I was looking for, they would get it for me.) I was again denied access to tribal laws and full tribal budget financial information in 1 995 The tribal Squol Quol newspaper had reported that a payment made by the Sandy Point Improvement Company (I am a member) to the tribe was over $39,000.00 less than what I knew had actually been sent to the tribe. Additionally, tribal casino revenues were listed as "$0", when I knew that by reported contract they should have been at least $10,000 per month. In an eariier Squol Quol, in January of 1993, a tribal donation to the non-tribal fire department where I am a First Responder volunteer was published as being $20,000 when the amount actually received by the department was $10,000. The explanation by the tribal accounting office for these entries were astonishing. According to Bob Williams of the Freedom Foundation, in his weekly report to a talk show program regarding waste in government spending, which I heard on my car radio this week, the State of Washington is losing approximately 53 million dollars in taxes on cigarettes sold to non-tribal members this year from sales on Indian reservations. This is up from 23 million in 1991 . Apparently it is now believed that organized crime is finding this very attractive. According to Mr. Williams, the State Patrol and State Revenue Office both say that they have other priorities tJ-'an to enforce this particular law under our present governor. The Governor apparently believes he is helping tribes by winking at the law. Instead, I believe that he is encouraging them in criminal behavior. Sovereign immunity encourages cnminal activity when access to information is denied under laws which are not allowed under any other US government entity. Tribal councils are also business councils - they are in business as well as in government - and with sovereign immunity and no separation of powers required, it is not surpnsing that organized crime is becoming very interested. 2. Sovereign Immunity denies due process to non-tribal members. There is no separation of powers between tribal administration and tribal court. Tribal judges are hired and fired by tnoal council members I cannot vote for. Tribal laws are not accessible to non- tribal members. In 1991 I was seived papers v/hich demanded that I must appear in tribal court within four hours. When these papers are delivered by a tribal policeman with a gun on his hip, you don't 1129 ignore them. When I did go to tribal court. I told the judge that I did not believe he had jurisdiction over me. that the notice was too short and the I had been able to reach only one of the Boanj memt>ers, so I could not speak for any of them. I had to listen to a long harangue from the tribal judge, stating that he did have jurisdiction over me. etc., and wanting information which I was unable to give, since I wasn't able to contact the Board members. In 1993 our little water association of 38 members was sued by the tribe in tribal court I am the Secretary-Treasurer. There was no court reporter The tapes of the six hours of testimony at a pre-trial hearing, which had been very damaging to the tril>e and which had been only in tribal possession, were all blanked. Depositions of tribal experts were very hard to come by (one partial one was finally taken, of the several asked for). Reports due to us under discovery process rules in other courts were denied by tribal attorneys. We had to ask for a hearing before the judge, and judge finally told the tribal attorney that we were due the information - whereupon the case was dismissed by the tribal council that very evening. Sovereign immunity leaves no opportunity for redress of our expenses unless the tribe agrees! After I purchased a set of tribal laws from the tribal court clerk in 1995, the clerk told me that she and the chief of tribal police were reprimanded, the code books were removed from the court clerk's office to the tribal attorney's office in town, and all requests for access to tribal laws now had to go through the tribal attorney. (Kind of nice to be tribal attorney and also be able to limit access to the laws!) When I called the law office to access the information, I was told that I must talk with one specific attomey, and he was out of the office. Under sovereign immunity, cost to pursue litigation in non-tribal federal district court, should the tribe agree, is prohibitive. Federal District court is in Seattle. Local attorneys don't usually practice there, Seattle attomeys are more expensive. Travel time to Seattle becomes a big factor - working people needing to testify or wishing to attend a proceeding must take a whole day off work (or several days) to pursue justice. Lack of access to the local court system is a denial to non-tribal members of the due process, equality, and fairness enjoyed by all other US citizens. 3. County and state laws and regulations for fee lands are ignored under sovereign immunity. A tribal council member purchased land zoned rural 5 acres beside our single family residential zoned neighborhood and put in a trailer campground with 42 hookups. He told the neightiors he planned to do this. Neighbors complained to the BIA and asked that the land not go back into trust. The BIA checked with the tribal council member and the tribal planning department, both of whom said no such thing was planned at that time. Within months of the land going back into trust the RV trailer campground t)ecame a reality. Additionally, the tribal council member paid for only two sewer and water hookups. Other instances of spot zoning by the tribe include locating a tribal fish processing plant, a casino, and a bingo hall, in the middle of a residential community that had a waiver by the county for only the existing small grocery store, restaurant and boat launch/storage business. Also a tribal gas station with in-ground storage tanks was place in the middle of a flood plain and agricultural area. 4. Non Indians have no recourse toward Tribal officials and their actions under sovereign immunity. In 1993 our Georgia Manor Water Association drilled a replacement well. The tribal police served papers and demanded the drilling be stopped, even though we had all the necessary state permits to drill. When the sheriff backed us up, we and the well driller were served a summons to appear in tribal court at 430 that afternoon (the notice was served at 4:30') We had a hard time getting a driller. Local ones had been threatened with confiscation of equipment if they drilled for a non-Indian on the reservation. Even with our letter from the prosecuting attorney's office as to how the sheriff would respond, they wouldn't drill. We had to go to the Seattle area to get the dniler. -2- 1130 In 1994 the tribe drilled a well and put in a well house on a lot in the single family residential plat of Georgia Manor which was approximately 120 feet from our Georgia Manor Water Association well. Our well is on a well site behind the plat. They removed our water association's metal survey stakes which were driven into the ground when they put in a fence around their lot (I noted the removal of the stakes to one of the woriters - they said it was all right -- they were replacing the stakes when they filled in the holes!) As a former member of ttre tribal sewer and water district Board, I have been asked to help non-Indian property owners to help them get the service they are supposed to be able to get without problem from the district For instance one lady had paid the sewer connection fee for her house at the beginning of the sewer district, and had been paying full sewer fees for nine years without receiving any sewer services, but was being told she must pay several hundred dollars more to have a sewer stub put in to service her house. The stub showed on the sewer "as built" plans, but was missing in actuality, when she tried to hook up to the sewer. Another instance was a lady who had paid stand-by charges for sewer for 10 years, but was denied hookup on the basis that she did not have a tribally approved water source. (The county had approved her water source ~ a well on an adjoining property.) My neighbor called me (I am on the County Sheriffs Citizen Advisary Committee) when a tribal officer chased visiting second graders from his wife's school class up his steps from the beach, telling them they were on tribal beach and couldn't be there. The officer stayed on the owner's property at the cliff top and argued for some time. The owner was very distraught and wanted to know if his understanding was correct that Georgia Manor owned the beach (we do - to the mean high tide level). The officer was claiming ownership to the vegetation line - the top of the cliff! I suggested the owner call and talk to the sheriff directly about the incident. 5. Sovereign immunity allows tribes to ignore EPA and other environmental regulations. Tribal officials acknowledged on a Jeff Kent talk show that I listened to last year, that they did not have the environmental permits for the tribal gas station with in-ground gas tanks that they built at the corner of Slater and Haxton Way, (which would have been required of all other US citizens prior to building). The station is built on fill brought in to the middle of agricultural field crop land, is built on a flood plain that is several feet under water during flooding of the Nooksack River when the dikes overflow, and is surrounded with water during winter rains. The tribe built a Head Start office building over the still-in-ground gas tanks from an old gas station, and when asked by the contractor if he shouldnl remove the tanks, as required by EPA, they said no, cover them up. EPA was contacted by our local fire chief at the time, and they did not do anything, according to the chief in a conversation I had with him several years ago. Later, I told the EPA representative who was out checking on our local fire department in-ground diesel tank which had to be removed, about the tanks. As far as I know, the EPA still did nothing. The tribal Lummi Shore Road restoration project manager stated at a hearing I attended that the road would be built to "Lummi Nation environmental standard". It seems very wrong and very counterproductive that triljes should be allowed standards different from the those required of the rest of the US. I believe that Sovereign Immunity is the biggest guarantee of continuing that lack of accountability or responsibility. Removing it would make tribes and their representatives more responsible, and would allow due process equality and recourse for those affected by Sovereign Immunity. We allow and encourage our children to grow up and take full responsibility for their actions. Why not tribes? Sincerely, JjJfpUM, :^nTiea G. Smith 2808 Leeward Way. Bellingham, WA 98226 1131 STAU Of WASIINOKyJ GOVERNOR'S OmCE OF IN13IAN AFFAIRS 605 IVh Ave. 5, Swie 112 • MS: PF-14 (Jfymp'n. Wa^hitigioti 9»504 (206) 753-2411 • (SCAN) 234-2411 April 27, 1992 Ms. Linnea G. Smith 2808 Leeward Ways Bellingham, WA 98226 Dear Ms. Smith: Thn Oovernnr hns rpvlowod your l»»tt-pr of March 3, 1992, and asked me to respond on his behalf. Since receiving your letter from the Governor's Office, we have taken several steps to address your concerns. We called the Lummi Indian Tribe and requested any and all laws that would prohibit them from disclosing the information you have requested. After several attempts to obtain this Information, we received a letter from them citing the law which does, in fact, restrict access to the tribe's records, documents, and files. The Lummi Tribe's letter cited Public Law 102-184, the Tribal Self- Governance Demonstration Project legislation. In that legislation, tribal governments are exempt from both the Privacy Act, 5 USC 552a, and the Freedom of Information Act, 5 USC 552. Article II, Section 7a of the Self -Governance Compact governs the disclosure of documents, and these exemptioiis allow the tribes unilateral ability to restrict documents of tribal origin. The State has no authority in this matter. Under the terms of the Centennial Accord, the State of Washington has formally recognized the tribes on a government-to-government basis. We respect their right to be self-governing. Sincerely, Mxchelle^gui Executive DirV MA:rn 1132 LUMMI INUIAfvl BUSINESS COUNCIL ?C16 KV^INA RD • pr I L INGHAM WASHII>IG1 ON' 9B??6 9293 • (?06| 73<-(fC3 Requestor Name: _/^i/Jl7^iily: Ct>«>cl< out for all Tequestoic: Inspection Rt-f.CErch ( _ . .,. Hr Copy ( ; fl.oi.« ( ) . '1 yS-f.aJ/fJ- - I ! r.cedeinic. Lrp«) rss«»s«KCftaci hoj-( S ) Bt S . per hr ) J. S.heets el Cents pr Sheet) 1. Total ». Athrid Slpiinliire :(^j^^,„e-*t^< ~ /fSs' - /fflr- -Chro. BKSSr&XXKSSKsm AGENCY RESPONSE: ==-=======^===-==^^ ^=== AcceE^ elJowt-d. recotdr- ere open. ^-/rccerr. with dejrtionp only to protect pers-onel privacy riphti. fc^ Access will bf dc[|Ac;l('d l-e rcvritt»dt') k .- i v« r . Ste f.lt» dr : Keqii.M dfitrt U W>- .d". /f^^ lin.c: _ _l/.jyA Reou« r t tfcKtr: /__^^^}fi _'?*?,: I lor if d tv f > f 'he lit ^ rj« niirrt f .1 nolifirci iD /i' I :tur-: t .r'ii» ti.r •* 1133 tUlifiishai", WA riCI-C. January '^H, 19;?2 n»nag»ri Recoids •nd Archives LuMMl Indian Business Council 2616 Kvlnn Ri.nd Beillnghas, WA 96226 tiei tir-niat ol Requert lo access LIPC .■> Ordinances, Resolutions, and Cod* u'i; ? ^< Revisions ^<-'^% t»« Dear Us. ■ 1» Sauler : 1 received your nollltcntlun yeplrrdny, legardlng sy vrllten request aI r-^ January P, 1992, stating that I nay not have access to the requested Lussi T^V^- Indian Business Co\incil ordlnnnces, resolutions or changes in code fros 19ftS " ';'■ 1991'. Trie ccnnent on the denial Ktntee that 'Our attorney's have advised ws ' .: that these records are restricted by iederal and tribal la* to the usv oi tk* '^' tribe or its appointed agents. (SS per CF. I 1-17-92* «'',. If there are federal or LIBC regulations restricting access to the Luani Indian Business Council rules, regulations, resolutions, ordinances and codes, vill you please shov ae by sending copies of thea and the citations for thea, and I will certainly abide by thv restrictions. Ai. IK' ^4; j>%-«^, 4 t However, If there is no docuaentat ion regarding restriction, I eould urgf,r< that you allow access. Y «^ Llnnea G. Sslth t ccjr Hsnry Cagey, Chairsan, Luasi Indian Business Council Sincerely, \ =■* 1134 2eoe,Lpe*»rd Way March 3, 1992 Sylvia SButer Records and Archives Hana^er 2616 Kvlna Road Rei Access to Luaal rules and requlations, reeolullonSf crrtlea and rjcrilnancffa D»ar Ha. Sauter i I would afifreclate nnyihlrig you mlcihi be able to do to help we accea th» LuBBl Indian Business Council resolutions, ordinances, rvgulatlons. codes, rules and As you can see lio» the encloBed i eBjionse by the LumdiI Tribe to By request for Bcceae to 1 n for mat Ion, th«^y have ipfiirtd access to these records because they say that they are prohlbitpd by federal law lro» dlBcloBinq thea. 11 the Tribe prefers to operate its governaent in secrecy and siaply doesn't »anl to allow ae or other non-tribal neahers access to their governaental decisions, that is one thing. But to say \Ut*\ they nie piohlbltrri by federal statute Iroa allowing access to tribal reeoluticms, codes and ordinances, 1 find very hard to believe. .;,■ ► f ' Enclosed is a copy of ay request of January 8th to access records, arxt the Luaal Trikie's denial of accese, which I received .lanuary 23rd. Also »nolOitd 1* ■ rf'py nf ay letter of .lanuai y ?4»h aahlrm that they send ■• Poplvi of the Bpplicablp fetlnal or tilbnl Btn«utf>p. and citntlonB foi thea, which they referenced in their denial. To dale, I have rerplved no respc>nse to that letter. My final enclosure is a copy of ay letter of March 3rd to the Tribe, again requesting access, and also indicating a willingness to abide by reatrlctlons Iroa access, if they do Indeed exlat. 1 would appreciate anything yow wight do to help ae access Luaal Indian Busintaa Council governaental records. ■ *.: Sincerely, C^r.f, ft^^t^ ^,J*i<^^ Llnnea B. Salth '^U' cct Htnry Cagey, Chairaan, Luaal Indian Buainesa Councll--by certified Mtll '^^ 'v' t% '•. <* ■■: ,>' . t 4 '•i i 1135 2808 Leeward Way Pelllngham. WA 98226 Harch 3, 1992 Mr. Henry Cagey, Oiniiunn Rp: Arrrrn to LIBC rerolutiona Lumnl Indian Business Council Ofdlnances, and Codes 2616 Kvlna Read Belllngha*, WA 9B226 Hailed Certliled -- Return Receipt bear Chair aan Cagey i EncloBPd nic roplPB of mf .Inniini y Plh ipinippt to arcees Luaal Tribal resolutions, ordlnancee and ctKles, the I.IBC denial ieceiv€-<1 liy wp on January 23, 1992, and ay lespondlng letter ol January 24, 199? asking that you allo» access. 1 have had no response to ay January 24th letter Iroa you, iroa Ms. Sauter, or froM the LumbI Indian Business Council. 1 «■ r''nr«liiq ay i eipiP'rl to nf-rern I. IPC teRolutlonp, ordinances, and codes. As stated in ay January 24th letter, I doul.l that thrie aie federal or even tribal regulations restricting accesp to those records. 11 there are federal or LIBC regulations restricting access to the LubbI Indian Business Council rules, regulations, rernlut lour, or diiiBrices and codes, will you please chow ae by nending cf-plee ol the» and the citations lor thea, and I will certainly abide by the restrictions. However, il there Is no docu»entatlon regarding restriction, I requeal-i ■-i^';'!;' access. ;«, .. , ' '■^f* '.rlfA.W- J sincerely. L^nnea G. Saith cct Sylvia Snuter, Manager, Luaal Recoi ds and Archives Dana Raanussen, Director, Region 10, CrA HlIllaM Black, Super lnt»»ndpnt, Puqel Sound Aqency, BIA Stanley Speaks, Superintendent, Portland Agency, BIA Hanual Luhan, Secretary of the Interior Christine Gregoire, Director, Washington State DOE Christine Gebbie, Director, Washington State DOH Daniel Warner, Chairaan, Whatros County Council Booth Gardner, Governor, Vaahington Slatr> Ken Eikenberry, Attorney General, Washington State Slade Gorton, Senator, Washington State Al Swilt, Representative. Washington State Brock Adaas, Senator, Washington State Ann Anderson, Senator, Washlniiton Stat"' Leqlslaluie Dennis Bi addock, Representative, Washington State Legislature Pete Kreaen, Representative, Washington State Legislature Shirley Van Zanten, Whatcoa County FlKecutive Judge Barbara Rothsteln, Federal District Court 1136 2808 Leeward Ways Bemnghaiit, WA 98226 March 3, 1992 Wllllan Black Siip»rint»»oil* has n qteat many dlffptent functions and topics covered by Its resolutions. Some of these are clearly privileged or confidential and ate not released to any person. Others are freely available to anyone who asks. It depends a great ileal ii[>on llir- Idplc- Involved. For example, a i r>r.o 1 tit I on qlvliig official direction to the tribal attorneys Jn specific litigation would cloarly be privlleqoil niid not nf-renalble to any person. Likewise, family history natters which often come up in enrollment situations have always Ijeen treated as confidential or private by the Tribe, on the other hand, cToples of tribal ordinances ar« freely availatjle to anyone willing to pay the costs of copying. The tribal ordinances are quite extensive and copying them all for you would run into considerable expense. If you could specify the ordinances or areas with whii-li you are concerned, copies will be made at your expense. For example, do you want a copy of the tribal juvenile code? If you do, you certainly can have it. Likewise, if you would specify the areas where you are interested in amendments or revisions of specific code sections or chapters that will help focus the search and make it easier to respond to your request. A blanket or "shotgun" request for ac^cess to "all resolutions" for example, cannot be honored. ^ANMAXrFfnSON JA<«S H«LAMC 1138 H-. . Lin?i«>a '5. r.mith riii'.-h ?'. , I'i'i;' rnqe - 2 p|(>af?r> I nr.|>i fiy I o I rplu'iio . Iltifnrfii- iiatfily, I wi 1 I I)" fiiit- of t Im ofrt for tlm nr^yt- two wpekK, but Oan Raas win be able to respoiici to your (juestioiis. Vpry truly yours, OFFIfB''"F I'llp JJKSF.UVATION ATTORNEY ^ll.ii/y y. .lnliiif"''ii Il'-flr't vnt- I oil Attorney / HLJ/jmc cc: LIBC 1139 LUMMI INDIAN BUSINESS COUNCIL 2616 KWINA RD • BELLINGHAM. WASHINGTON 98226-9298 • (206) 734-8180 DEPARTMENT EXT July26. I9 N3 ■0 V •t. ^ -3 1 ■3, ■5 00 1 3 V a) ^ ■LI _* ■3 VJ H^ -J *4 -*• ~X <;^ tn 3 ••J u 3 3- as M ir 3 ■v V " J 1 1 > "u "u V ■J ^ :> '♦^ 3 3 s ,^ \/\ u /^ -^1 ^ ' ^- 4 P i ^, ^ ^— r^ ^-*. s -V s 3 1 _ ^ iO *~\ M 1 "3 ^•5 ^ ec 2 c^ V -i^ -J '-4 H ^^ 0^ 1 It. s w iZ E u E 3 .3 c s 1 at at S3 3; C at Q at at 1144 .© (A I n3 "3 •3, 0/ I 3 : IT I tn , 3^ ^9 u Of V. at 3 cr ■SI ■3 or 3" V 4' I' - <0 V^ C l/V at 3 J> •^1 1^. . , sr. CI &< ^" •3 re 'k K •* ^ R U o «ii _o K ■w^ 2 2 b. J" ^ h. e ••" ^ & ; •^ K n u c a> a« S3 a a> a> 0^ a^ -J 1145 t u "»> {? ,...€%.. ^ .... }i ... . — ^ ^ . ■> \/ V ^ •a c c 4 '^5 :> 1 ■3 a 1 ^ 5V -> ■J 7i \ ^ ^ ^ e ■3 - •3 M 1 a s 3 1 •3 -> '■u > i 3 ■-!■ <* 3 a M K O 3 3- w 1 an 3 3- b X ll ; 3 b ■3 K 3 z -— r 'n. ' 1 3 -J s 3 O 3 3 :3 •t "s _ 1; O ■J r. ^^ = s •^ v «♦• ^y \ "S , -^^ 3 5 \* — «. ^ ^2 : J- ^X*"^ J^ Jo '3 *: ^ I'l a ^ •5 ^"2 -^ f 0* ■5 ■3 s 1 6> E C u •y '^ i ee ~ S c — o 0- C — ~- T _o £ Zl Jl S ■^ ■^ •3 CI — ^ u a s 0^ £ 3 a> V ■3 _e ^ •— • 3 3 •3 3 *^ c a* ff b a< a> o 01 z ^ S w ? 3 t- ftl ~ :5 '■ £ _E "a E at E c o C a> 01 3 a e a a 01 1146 \ ^ es "2, o 5 0) 3 4> an ^1 •^ in 3 at V. it 3 Si «* 00 'u 3 'O E o 3 "3 J "•J X '4J P5 -1 •J c 3 O u a* a: V 3 O" w l_ c 9 u o \J 5t tt c 3 l/> at 3 V a e o 01 V) it Of (3 (ft c Ol u ■3 "3 5 C .2 e es E 0) a 01 3; 1147 en ^l Ck \ 1 ^ •:> 1 1 Ni 7< ^ \^ 1 7^ oT •o '3' ?< ^ a s 3 ) ^ •3 V i; 5 'V .O ^ Nj " \ a« ^ 1 > IvJ .\ -^ a 1 nJ N 3 ^ ^ 9 ) X «< •> s '< % f V 0> 01 K « 5j ^ ^^ V, 9 9 s « -\ . \* V 9 9 >«1 - yj 2 \J a: a 1 3 O S 9 O ^ * a -^ • 3 --* rs. r>» 1 .k ' ■\ M it 1 •< K s s u 5 ■ M s ■3 •3 « 0« e c -H. o ^^ a *3 ^ ■ii k m ! •# o S 9 c 41 c 5 E O 3 a- 0< 1 z c 01 * ^ o 0* *« 7 1^ « _E E w c r 01 0« 9 a e a Of s « Q a Oi 1148 ffQjtcmim COMMBffl « PMWbrmunvapa ttfmrt Ti«« Cowl TaT«LniomcT««r MET MMUCT REVCNia: toTM.NiT>anaeT COUNCIL nVENUIl Oira*rHMiMtr I n.ssi I IIT.OOO I 144.000 I »2.»0 lotin TtROTD FWMfmvaTn aaynTm %'^ UanmlCMino eaon>Til« FMlhnI OvNng Goodiafl CoMAuaon TinnU OpMMng TnnMc (WIT) ARCO Sandy PoMComnurtly CxMr Othar TOTAL COUNOL rteVENUE DCMO raOICCT RCVEMUI: CwntMcl PniCMdi MMnCMIii^l>wi— i m < lan Oannvi Rmnia TOT/U. OTHEHaUREVCMUa: NWIFC DogMi aulT MUn H^iMrn SiMy , u>nn« SMn Road i*.-" • j ?~Ti»«Mgiiadiooi ' • -^iT- -» lOTALOnMI ■**»»«■ 10.M2 M«I2 lOJOO 257.114 1I3.M7 (.699 ao.3M 40.043 US42 32.7S0 15.S30 90.000 222. 383 ISOOOO 405.000 0001 1.«a3,3»2 H.300 4US17 102.000 224.«30 4S0.444 iJM.44} 20.000 BMMcn 300000 tmamm 950O0 l»«Av«a i03 3<0 Pxan e OOO f^lMO "l23.2»0 9n.aia t 1.300000 •noer . t tooo? 522.031 • 522 031 ,«»4.8oe T .Zr4.M( t- v^HM.M* > .^.177.578 i I .i 1. Check (HOOSS in the amount of $534,16U.61 made out to the "Ci>rk or U.S. District Court" dated 9/25/92 end cashed 9/30/92 Note stated "payment plus interest on Tideland Lease Judgement C90-1732R 2. Another check #10054 in the amount of $236.70 made out to the "Dept. of Justice" dated 10/9/92 and cashed 10/19/92 Note steted "balance in full tideland judgement*' Thla second check must haue bean for additional interest, etc. _ Should you hev/e eny comments or require further information please fe el free to contact at the above address/number or at #206-592-5735. •>'■ UEMENT COnPANY 'f C;or-/T..pQe ll«ni t MU'Nn c^^"^**** Oroup Inc ^ 35-542 97-37 1150 1151 GooseberryPoint Volunteer Fire Department Whatcom Covmty Fire Protection District #15 2600 MacKenzie Road • Bellingham, WA 98226 December 20, 1994 Llnnea G. Smith 2808 Leeward Way Bellingham, WA. 98226 Dear Linnea, I must apologize for the delay in answering your inquiry. As I stated at the meeting I don't believe we were ever formally promised any cash. At one time or another individuals made statements to the effect that the district would receive cash or equipment. Whether or not they had the authority to make such statements is unknown. Here is a listing of what we have received from 1989 to date. 8-7-98 850.00 10-18-90 $ 950.00 06-11-91 $35,000.00 08-1991 6,000.00 03-24-92 $ 1,000.00 04-28-92 $10,000.00 09-30-93 $ 1,075.00 11-01-93 $13,710.00 01-04-94 $ ? Fire Safety Fees ( A share of what they tax the Fireworks stand owners) Fire Safety Fees Lummi Indian Business Council Received Used aid car acquired through Tribe and St Lukes. Fire Safety Fees Lummi Indian Business Council Fire Safety Fees Lummi Indian Business Council GSA Vehicle on loan I hope this will be of help. Sincerely, Diane Trecker Secy. 1152 eCOMIA MNOR UaiER RSSOCIATION P.O. toi I2M r«rn aparad by outalda contultanta for tha Triba irfilch contalnad Information and coriclualona contrary to tha poaltlon* publlcally atatad by tha Triba regarding tha ground watar raaourcat en the Luaai Indian Reaervatlon. For eaaeple, the Tribe ha* atated on ruaeroul occaalon* that there If a ground water ahortage on the reaervatlon and alio that the ground water reaource* trt threatened by lalt water Inlrualon cauied by over puwplng. However, In a water ftudy prepared for the Tribe by Howard and Aaaoclatea, the coniultant concluded that theie it r^ ground water ahortage on the Luaal Indian Reaervatlon and that "there doei not appear to be a direct correlation In lone H (Georgia Manor'* lone) between puaping rate* and Induced *ea water Intrueion. * Further, In a dapoaltlon of th* Tribe** watar epeclallat, Harriet Male, H*. laale conceded that the Tribe ha* no data concerning either the rate of recharge or the ■uttatiubli yield* of the equlfer* underlying the LumiI Indian ReMrvatien. The (awe day that th* Tribe notified Georgia Manor that it wa* di*Bls*in| the Tribal Court iawault, there w*< a hearing held in Tribal Court i*lch leiullad In th* Trihil Court Judge ordering the LumI Tribe to produce docuwentatlon which tiad been tequealed by Oeoigl* Manor and for the Tribe to a)«o daeonatrat* to th* Judge why the Tribe should not be requited to produce Inforaatlon concerning a ground water etudy which the Tribe currently ha* in progr***. Again, It 1* abundantly claar that the Tribe diaaltaed the Georgia Manor l*w*uit for no other reaaon than to avoid having to produce any further docuawntation which would be e«barr**«lng to the Tribe'* poeitlon. With re«pect to the Tribe'* ctalra that it la attaaptlng to facilitate negotiation* and dewonatrat* good faith toward the State and County, It thoiild be noted that In the April 1993 iasue of tha Luaal Nation newapapai', the 'Squol Dual* there la an article which appear* on the front page wherein It ■* noted that the Tribe it currently In the procett of leeking *7M,M«. M froai Congr e tt fo r Mtter lltlgetloit. Th* Tribe obvloutly ha* no Intention of reaolvlng the water l*(ue* through negotiation* and it tieply buying tlae to coaplete water ttudlet cumntly under way ai^ to ■acur* additional litigation fund* before turning to the court*. Further, the Luaal Indian Nation'* true color* with reepect to negotiation* caae through bright and clear whan they ln*l*ted that the City of Bcllinghaa reduce the rate charged to the Tribe for water pui-cha«ed frc« the city, aa well a* requiring the City to to acknowledge the Luaal Tribe a* the *ol* purveyor of water on the reaervatlon a* preconditiona to entering Into negotiation* concerning the Nookeack Aiver taain. The precondition* which the Tribe laid out for the negotiation* with the City were obvloualy de«lgr«d to avoid Meaningful di*cu**lon with reepect to the Nookeack River 8a«ln and wa* tra obvlou* atteapt to laolate the non-Indian water ueer* on the reeervation. The City, County and State ahould l>* entreaely cautleua corcerning r«gotlatlon* with the Luaal Indian Tribe regarding water reaourca* both aa they pertain to the Nookeack River laeln and alao water reaourca* on the Luaal Indian Reaervatlon. n* daaonstrated by the Tribe' a performance lor aore accurately non-perforaancel on the proaltea >tfilch it aade appronlaately II yeara ago concerning a par-k at Point Francaa, any aettlaaent with the Tribe ahould al*e Include a aeana for enforcing the tera* of the eatlleaent. Ihii can only be ln*ured if the Tribe I* willing to waive II* *overelgn laaunlty. Again, Point France* i* a priae eaaaple that aore than proalae* are needed froa th* Luaal Tribe *■ ■ condition of eettleaant. Sincerely, Roger Leiachner, Pre* I dent Beergta Manor Uatar A«*oclatlen 1153 United States Department of the Interior BUREAU OF INIJIAN AKIAIRS Portland Area omf e Oil N.E. I Ith Avenue Portland, Or«gon 97232-4 1 69 JUN 25 1992 Honorable Slade Oorton Attn; Roy Alwood 3206 Jackson Federal Building 91S 2nd Avenue Seattle, Washington 98174 Dear Senator Oorton: We have received your inquiry, dated June 16, 1992, on behalf of Mr. Tom Ehidek concerning a request by Mr. Deao Williams to accept into trust status cerUin property located on the Lumml Indian Reservation. Enclosed are copies of recent correspondence concerning this acquisition. As you can see, we have approved this acquisition after considering the factors required by federal regulations, Including consideration of jurisdictional and land use issues. We have also asked Mr. Williams to dari^ Id writing hh pliM, If any, for Ihp pidpeity he han reqiiesied bo placed In inist. Ai you can see from hit reiponie he does not have any current plans. At this time, therefore, we are still intending to move forward with this acquisition. With respect to any restrictive covenants which may be applicable to a portion of his property, Mr. Williams acknowledges their existence and that he will have to deal with them whether his property Is acquired In trust or not. However, the BIA is not the proper forum for resolving Issues of Interpreutlon and enforceability of particular restrictive covenants. It is a judicial matter for the appropriate court to resolve if the affected parties are In dispute, iheiefuie, the UlA cannot tell Mr. Uudek whether or not any particular covenant Is binding or 'will be hoitored.' We hope this letter and Its enclosures provide you with the information you need. If you have any questions, please contact Ron Appelbaum at (S03) 231-«714. Sineerely, ^^ Portland Area DlfWor Enclosures cc: Tom Dudek; 2905 Leeward Way; BelHngham, Washington 98226 Data Willlama; 2697 Lumml Shore Drive; BelHngham, Washington 98226-9242 1154 Chronological siiniinary of cor i rspoiuU-iiro rfcievod l>y Tom Dudek regai'iling Dean K i I I i nins Top- I ti- I riis I cMiivers i on (if parcels within Leeward-No I I Iik » I <' Wn I im As Mm- i n I i ''<•'■ "approval" by the county is made. Dec. 27, 1991 Jan. 2, 1992 Jan. 21, 1992 A letter is sent to Superintendent niark by approx. 25 neighborhood residents voicing concern about the possibility of llie Vv'illiains land being put into trust and tlie possibility of an RV park being built. I roc i ovod a Idler to ray Jan. 2 lot tcr county can do very action and that her on (axes, services. from Shirley Van Zanten responding In her letter she said that the ittle to deny the fee-to-trust office ran only provide inforiDation 7'i> I ebaiim uitli any questions) / s I n I i lilt tliiil till' icMiicst Tor r«!P- I <>- 1 1' us I conversion ;.| is approvril. It fiiitlirr goes on to say that although .spvi'inl |>io|>('il,\ owiiiis wiotr letlcis roKarding a "puiportrtl" futuie use as a Mobile Home Court, Mr. Williams imUcateil to this oTTice (hat he had "no such plans". Ilr also poiiitril out that VV'hatcnin County "I'roviiloil no oh jet- 1 i oiis whiMi inroiiiiril of pending appl i <-a 1 i nil for i onvei:. i on . Vie il I - I o - 1 r u-i t convi-r s i on . The loiter iiifoimed us that we liad 30 days to appeal to the Interior Board of Indian Appea Is. I . June 6, 1992 I and neighbors n-cicvi-d n copy of n letter from the ri>illanil Area Uiifrlnr, dated June 3, 1992, to Mr. Dean W i I I i iiiii.'i wiiii'h r- u siMinl-: the ii|>|>iii\al of fcp- I «> - I r us t unii) Mr. Williams c-iii answer questions legarding statements be maile to certain neigbboi's that he indeed did intend to put in a R.V. Park. The letter went on to say that "OCR PRFI.IMINARY APPROVAI OF THE FEE TO TRI'ST TRANSACTION Rr.I.IFI) ON YOUR REPRFSENTAT ION THAT vol' ONT.V INTINDFIi TO 111111.0 A HOME ON THE PROPERTY"! Note that this action was prompted by roy call on June 2nd to Ron Applebnum lolling him of the conversat ion .of ', tj neighbors Oeorge Johnson and Gene Bailif with |.'i; Dean Williams wbcioin Dean Williams told them that ■:' ' he would be pulling in an R.V. lot. H June 8, 1992 I rrcievo a c'0|>> of a letter f i oiii Oran Williams to the Portland Area Office wherein he says "I do not have any ffi current plans" and that his original intent when 't^ aquired was to use il as a home site. He never comes out and says he's no I planning on an R.V. lot and when be mentions the covenants he states "I understand that I will have I o deal with them" but doesn't say that he will honor them. His letlri' simply does not address the concern for which the approval was suspended. ' 1156 y 4ne 23, 1992 July 1. 1992 July 7, 1992 July 27, 1992 July 31, tn02 Sep. 11, 1992 Sep. II, 1992 Sep. 11, 1992 Sep. 14, 1992 Sep. 23, 1992 Oct. 5, 1992 Oct. 14, 1992 Nov. 16, 1992 Dec. 4, 1992 I iri;ipvcil a < "py <'r a letter In Senator Slade f',i t I mill Aion Diicctoi . This letter i^ ill respciiise to ii Irtlei- sent to tlie Portland Area Pirei-ljir lij Slado r'loi ilon on mj belialf inquirint; about tlip fpp to tiiist ffinx ers i nil . In tlie letter to Senator (lOiloii the PorflanrI Area Director says that the roiiv r c's i on has hocn approved ami that Mr. Williams haa c I II i I r i liiiir: fm Mil- proppi I] niiil I lin I "he does not Iiave any current plans". II also says that with respect to restrictive covenants, Mr. Williams acknowledges their existance, etc. and that the BIA . is not the proper forum for resolving issues of int r eper t a t ion of covenants. I sent notice of afpeal to the Interior Board of Indian Appeals with help of attorney, Catherine Tucker. I recicved a Pr e-dorkc t i ng notice from the IBIA with instruction the Portland Area Director to transmit recorils to llip Roaid and notice that I will be required to show that I have "standing to pursue the appeal". I rccieved Notice of Docketing from the IBIA. have 30 days to file a opening brief. States I Alloincy Co I pen Ki-lly f I I oil "Noli<;e of Appearance" on lii'lialf of I'oitliiiKl AiPD Diicrtor. 'Notice of Appearance" Altorncy llmrly I,. af:i"1 approval on Mr. Hostellers p . >l n.il Iw lot. I ....• fl.-.l H-illivmc l.n.) n)«naik woiilfl be det r i ment .T 1 \o Tn respect to whether ni not an RV nearby i f-r; i ilence.s wmilH rir-pfnd upon a number of factors iiir)\ulinQ the f wl ! nwi nq : whifh •>■ i ill j uo nf yniii rniicein and venponoe (n \ h- tir.ijf.-- and will forward same to the Portland Area Director who will rtuke ! he final di-ci ;: i uri . Sincerel y , V.'. .-■■': ^'■•\yxL I 'L^ Wi I 1 i am A. r;laf:V \m Superintendent V ■%-»-«V f 'f 1165 BIA, Pus«t Sound Agency 3006 Colby Avenue ■ <- Federal Building Everett. WA 98201 ^ Dear Superintendent Black: I am very concerned that Lummi Tribal members Dean and Sheri Uilliams are attempting to put land back into trust in my neighborhood within the exterior boundarlea of the Lummi Reeervatlon In order to circumvent county zoning regulations. They have told local residents that they plan to put in an RV park for casino gamblers. This would not be an accepted use for either of the two parcels in question at the corner of Northgate and Smokehouse Roads and Haxton Uay . Present zoning is suburban residential for one parcel and rural/farming for the other. It should also be pointed out that these parcels •re not yet free and clear according to current owner, Mr. Sparkle Hoffle. According to Lummi Tribal member Bill Ballew of the Lummi Planning Office, in a phone conversation last week, the Lummis have no zoning or planning ordinances currently in effect. He stated that ■Tribal members can do whateve they wish with the property at present". He said that the Tribe at one time had drawn up some ordinances which were never enacted by the Tribal Council, but that the grant funding for the old Planning Office ran out in the 1980 's and those orl OFFICERS Karan L htolson Tw.i. Vtnd«Woud« April 9, 1992 PamoaSHori Mr. Ed Hart, President Georgia Manor Water Association P.O. Box 1268 Ferndale, HA 98248 Dear Mr. Hart: I enjoyed meeting with you regarding your difficulties in locating a well driller willing to drill a well on your property pursuant to a state permit. Unfortunately, the County is not in a position to bring Ipqal action against the I.ummi Indian Tribe to uphold a state permit. As you know, the County does not regulate water rights. Because the permit was issued by the State, it is up to either the State or the Georgia Manor Water Association to bring any legal action necessary to uphold the validity of the permit. The County Sheriff will continue to respond to calls and enforce the law on the Lummi Indian Reservation. This includes complaints of trespass and theft made by the Georgia Manor Water Association. Please understand, however, that the Sheriff's Office cannot be placed in the position of defying court orders, including orders issued by the Lummi Tribal Court. This means that if the Lummi Tribe obtains a court order concerning Well drilling on Georgia Manor property, the Sheriff's Office will not prevent Its execution without a court order of its own to rely upon. If you have any guestions or wish to discuss this matter further, please let me Know. Very truly yours, DAVID S. McEACHRAN Prosecuting Attorney >W c c'Y' ROBERT A. CARMICHAEL Civil Deputy Prosecuting Attorney ■ RACrpJp 1167 Haije/ DriilirK) S56etlhigRd. Bow. Woshlnolon 98232 (206)766-6110 FAX (206) 766-6113 Ettabllshwj 1V40 9 December 1991 Linnea Smith, Sec. Treasurer Georgia Manor Water Association PO Box 1268 Fern(Ja1e WA 96248 Dear Members; The letter we are sending you is a copy of a result from drilling a well within the original boundaries of the reservation without first obtaining a permit from the tribe. It is our position at Hayes Drilling, Inc. that we will only drill on properties that are in question when a valid permit is presented to us or a legal determination given and a waiver from the tribe obtained . Our firm does a lot of business with Indian tribes and The Indian Health Service and we do not want to jeopardize our position with them. Than President/Owner of Hayes Drilling, Inc. DH/yl cc: file 1168 LUMMI INDIAN I3USINESS COUNCIL 2GI6 KWINA no • HELLINGHAM. WASHINGTON B0226-9?98 • (206) 734 8100 HOvombor AL, 19V I Mr. Kf>n Fowler -•■ nahlm'-in I'limp niiO Woll Drllliii'j, Inc. \ P.O. nox 42^ Durllngton, WA 98233 Uaar Mr. Fowler: This corrpnpontlence is in rpfponse to tlip Uimtni Nation'f position on the Orillltiq of wells within the boundaries of the Lumini Indian Reservation. The I.nmmi people are very concernecJ that botli the ijuantity nnd quality of the reservation 'f» aquiferB are being degraded by continued withdrawal of the resource by non-Indian individuals and groups (i.e. water associations). Further depletion of this finite resource will have a direct impact on the health and welfare of the Luromi Nation. As such, on August 23, 1990, tlie I.ummi Indian Business Council (I.inc), the legally-elected entity representing the LuirmL people, voted to proliibit any further non-Indian withdrawal of groundwater from the reservations aquifers (see enclosure). This does not restrict further withdrawal for nctivltioB that benefit tlie Lummi people (e.g., Indian llenlth iieivicn prugtninn) . The reservation was created for tl\e I.ummi people tlirough tlie Treaty of 1855. As such, the Lummi Nation is definitely the senior, and thus, superior water right. Sincerely, nenry Cagey, 6hairniyn'^ Lummi Indian Business Council CCI .IjUmmi Resource l>lannlng Division Lumini Department of Natural liesources LIBC files ICNnVCAGCV Avr itiK oivino jiiMniAjiMrnnoH VUtON. nn 1 MU9 1r*MUr«t RAurAorv jM.vt mi/unc irvijrrifn'-.OM ncHATO jrrrcnsoH vtntijol attribute of sovereignty, the power to determine the proper uses of said waters and the manage- ment thereof is the Lumai Nations alone; and NOW THEREFORE BE IT RESOLVED, that the Lummi Indian Reservation has no Surplus water for additional non-Indian development and that all water present on the Lummi Indian Reservation is subject to the sole regulatory authority of the Lummi Indian Nation. BE IT FURTHER RESOLVED, that tlie Chairman (or the Vice Chairman in his absence) is hereby authorized and directed to execute this resolution and any documents connected therewith, and the Secretary (or the Recording Secretary in his absence) is authorized and directed to execute the following certification. LukAorr V>10( J«i!. •t^Jl'si lumml View Drive ^'aj^''!' Balllngham, Woihinglon 96226-9208 •' (206)75ft-7l67or3S4.4996 >:< ' •5 LUHHI TBIBAL SEWER DISTRICT BOARD OF DIRECTORS POLICY Sever Stub The Lu««l nature ot ■tub for did not tho oJLler rlbal Sever Dletrlct cannot entlclpate the exact he future ■ubdlvialon, ae •■ to aeeure • aldesewer future lot. Even In existing plate, the District llgate Itself to provide stubs for every lot, Just with Actual structures. Since the property ovners did not participate In the funding of the original system, the system vas essentially free to everyone, thus the District Is not obligated to provide sldesever stubs. Therefore, the Board §f Directors of the Lusal Tribal Sever District do not guarantee sldesever stubs to lot owners and that one of the costs of oonnvctlon to the system may be the Installation of the stub. This policy vas passed at the August 2S, Meeting vhloh vsa attended byi 1988 Board of Directors Dan Walker, Vice-Chalrman Llnnea Smith, Secretary-Treasurer Victor Bolomen, Board Director Hllliaa Jonea, Board Director 4/88 MLClSEMSTUB. PLC 1172 ownerships, £ have two owners, whicti are Jhe same two owners for MINUTES CONTINUED: AUGUST 25, 1988 f PAGE TWO: each parcel, 1 ha« four owner, 1 has five owners, I has 51 owners, and 1 tiaa 63 owners. for thr» parcels with multiple owners a cover letter with the bill should be sent to each owner apd a notice put into the Squol Quol, stating the policy for Standby and backcharges. It was decided to set a date for another review of the Water Ordinance. Tltne was set for SeDtember 15, 19;i8 at 7ii0 at the Cove Restaurant. Dave reported tnat the reports are regular and pretty much on target. Linnea comtflented that she is still requesting that the Merrill Lynch Occount be transferred to ■t£& Connection Fee Fund. Dan asked if the final audit reoort included a manager's letter. Dave replied no the only other correspondence in the package was a proposal for the upcoming audit. Dave said he would look into it. SALISBURY QPPEOL Dave began by introducing Mrs. Mackenzie to the Board. She is Leonard Salisbury's daughter and is appealing in her father's behalf, Mrs. Mackenzie enplained that her father hasn't been well and is hoping that the Board will drop all charges owed on the trailer park during the time of his ownership. He is afraid Ron Mace could sue him for misrepresentation. fifter a lengthy discussion the Board decided that the lawsuit aoainst both. Mace and Salisbury, should proceed as indicated. EMX LETTER Dave reported that he had sent PMX a letter enplainirig, now is the time to install the air relief stations before the weather ges bad, and also asked for a break down of their cost estimates for the project. Carl stated that the District should push them to resolve the issue before the EPO audit is conducted. The Board expressed some concerns which will be expressed in a letter Skip will draft for the Board to PMX. MLSSLNB §IUB POLICY Pfter a lengthy discussion, it was decided that the Board woula set policy on said subject. -ti»^ ij»^w«*««*^ •**^'^ MOTION: Linnea made a motion to adopt proposal #1^ of tiie three options drafted uo by Skip. Seconded by Victor. Motion carried to establish this policy as part of the Rdrnirilstrat ive Code. £ER§QNN£U EQUICY Dave reported that the District's Personnel Policy was rie^9r approved by LIBC Council. Dave also stated that he had a meeting with Millie ft 01 Scott, conerning the matter. This whole issue was brought to the attention of Dave when Dan left the District 1173 RAAS, JOHNSEN. GARRETT A STUEN ATTORNEYS AT LAW 1503 E STREET P.O. BOX 8748 BELUNGHAM. WASHINGTON 98227 S74« DANIEL A. HAAS TELXPHONt HARKYL JOHNSKN <**•> W»^M< DEBORRA K. OAMSTT THOUASE.STVEM ., M^J :'•*>♦':''» ll^<' '•'>^ - / .,,,''.o.. "■"'■■ ■■ ., 1, .„.. ..KJ^^^i i|». April 27, 1988 « . .r • TOt 'Luoml Savar Board FROHi Harry L. Johnsan REi, , .'Hiaalng* aavar atul Tha Board could approach tha queatlon of tha mlsaing or non-exlatant atuba In aavaral dlfCaraat ways, dapandlng on tha policy daclalona tha Board makas. - Thara doaa not appaar to ba any cloar dlractlon In tha Sawar Ordlaanca that would raqulra a cartaln approach. Tha altaraatlvaa: 1. Tha Board could take the position that stuba are not guaranteed to lot ownera and that ona of the coats of connection to the system may be the installation of a atub. That vill certainly ba tha case vhere a large parcel vith aubatantlal frontage on a collection line la aubdlvided. Obviously tha District cannot anticipate tha exact nature of a future subdivision so as to assure a atub for each future lot. It vill mean that aome intallatlona vill ba more expenalva than othara, but that ia Juat a matter of luck. Even In exiatlng plats, tha Dlatrict did not obligate itself to provide stubs for every lot, Just those vith actual atructures. Since the property owners did not participate In the funding of the original system, they cannot complain that aoma people received a allghtly batter deal than others since tha aystaa was •saeatlally fraa to everyone . 2. The Board could assume that a certain number of lots will ba mlaaad by the aawer contractor and aimply factor that Into the connection fee for everyone. The District would then pay for the stub on each lot of record, with future aubdivlalons still being subjected to payment by the ovner, either at the time of aubdiviaion or at the time of actual connection. That would have the effect of treating everyone equally, although the District's actual costs of connection for lots having a stub vould be less than for tha lots vithout stubs. In essence, the lot owners vith existing stubs vould be paying a little more than necessary for their connection vhile those vithout a stub would ba paying leaa than their actual coats. Since connection fees are aacaaaarlly average coat* anyway, it wouldn't make any legal difference. 3. Tha Board could simply Include the cost of tha atub in every connection charge. Including thoae for new aubdivlalons on exiatlng lines. This would appaar to be the moat 'equal' treatment, but actually it would ba a •ubaidy to tha larger parcels. Vhile aocse Districts have a flat, undifferentiated connection fee, other Districts divide thalr "connection fees* into various components. For exaapla, thara might ba the phyalcal connectiona coats (either actual or 1174 Sever Stub Fees April 27. 1988 Fa«* 2 averaged), a 'buy in fee' which covnrs the prorata share of the hlaterie cost of the exleting system already paid for by the existing customer base, an admiatrative or permit fee, and perhaps a reserve for future expansion. This last category is not allowed under Washington state law, but it la uaad ia soma other atatea. The stub question focuses ntt^ntlon on the components of the District's existing connection fee. It appenrs that fee was originally set at a level that would guarantee start up expenses for the District and now it is used to provide for future non-routine maintenance. Many districts, regardleaa of how they compute their fees, place them in a separate fund for future construction. Even in Washington where the law does not allow future capacity to form a part of the rationale for the fee, there is no restriction ea eannarklng the money for future projects once the fees are collected. After all, you can't very well spend the money on projects you have already paid for, even if you are required to set the fee based on the cost of thosa projacts. 1175 2808 Leeward Way Delliriqhatn, WA 98226 October 22. 1993 Re: Filbert Sewer Hookup Fugene DeCofomi, Manager Lunirni Rnwer Disliif.t Bellinghain, WA 90226 Dear Gene: June nnd Fr**^ Filh«^tt have nllpd atul n«;kRfi thai I help in pursuing a sewer hookup for llieir properly. Hiey are going to be gone for a few nionttis, and they asked if I would be able to follow up for Uiern on their request to you. I received the enclosed request from ttietn in the mail today, and I am sending it along to you. Sincerely. LHinea G. Smith JjJ^nc6L 1176 ^9 ^^<^§ ^7y * '//^ 1177 •f C^'J~<9\ ^ 1099 1178 ^U^4^^. ^^.. ^^->^^ -^^-^ '^^^-^ ^~ '''^-^ Y ("A I, I. PRO ZHZl IjxuiimI VViiy Bellingham, \VA 98226 (206) 758-7758 August 30, .1994 Sheriff Dale Brandland Whatcom County Courthouse 311 Grand Avenue Bellingham, WA 98225 Dear Sheriff Brandland: On June 4, 1994, my family iiad a conlioniation with Lummi Law Enforcement "officer" E. Hillaire. I sent you copies of my correspondence to Lummi Law Enforcement with a cover letter. They promised an internal investigation and a report to me explaining what was found and what was being done about it. I was assured personally by both Bruce Haley and L:. Sutton, when I talked with them after the meeting which you attended at the Goosebern- Point Fire Hall, that an answer was forthcoming very soon . I called Bruce Haley and was told on August 22. 1994, that his Lieutenant would notify me with information as to what the status is. I am now convinced that they don't really intend to follow through with this matter. I am requesting that you please contact them regarding this issue. I would like their official position on this matter and on tlie beach rights in this area. I would like to know if thcu" officer" was acting on behalf of the Lummi Tribal position and within his authority. I would like to know what is being done to rectify this situation. I would like a letter of apology to me and my wife, to whom the frustration and humiliation occurred. This is not a "government to government" issue. Thank you in advance for your attention to this matter. Sincerely, Roy C^ero 1180 WHATCOM COUNTY SHERIFFS OFFICE Public Sn(oty DuildliKj - 31 1 Offiml Avonue Bellingham. Washington 98225 DALE BRANDLAND Sheriff . ..^■-'■' i-'-* Senember 8. 1994 Roy Callero 2821 Leeward Way Bellingham, Washington 98226 Dear Mr.Callero; Enclosed is a copy of my letter to Bruce Haley asking to be advised of their internal investigation. This department just spent a considerable nm.'uiii of time and effort to create a policy for dealing with tidelands issues. This policy was created to give our deputies a clear understanding of how to deal with these complicated problems. I am enclosing a copy of this policy for you. If you have any further questions or comments please feel free to call. Sincerely yours. DALE E. BRANDLAND, Sheriff DEB/nh 1181 WHATCOM COUNTY SHERIFFS OFFICE Public Salely Building • 31 1 Grand Avenue Bellingham, Washington 98225 DALE BRANOLAND Shentt LU .«.. / : r *^ ^ September 8. 1994 Brace Haley. Director Lummi Law and Order 2616 Kwina R(.;i(l Bellingham. Washington 98226 Dear Bruce: I am enclosing a copy of a letter from Roy Callero. Fie is asking that you send him the results of your internal investigation and because this incident occurred within our jurisdiction I would also like to know the results. I will be sending Mr. Callero a copy of this letter and a copy of our policy on issues concerrung tidelands and trespass. Respectfully yours. DALE E. BRANDLAND, Sheriff DEB/nh 35-542 97-38 1182 \Mivra)M cxx'fviY shkkiit^ omci: OITJUnOINAI, IX)U( Y AND n«XTi)llKI': DATE ISSUED: September I, 1994 NUMBER: 94-01.01 DrS^llUBirnON: AII Dcimty Slierins SUBJEXIT: Lunvni Reservation Tre^ass Ehforcentent bsues L I'LIUXISE Tlie puipose of this memorandum is to clarify the entbrcement stance of the Sheriffs Office for deputies that become involved in issues related to llie enforcement of trespass laws associated with matters involving "disputed nghts" of both tnbal and non-tnbai citizens on the LAimmi [ndian Reservation U. OPERA nVE reiNOFLE To equally protect from a neutral basis, the personal nghts and property interests of ail individuals, and legally constituted groups, within the Lummi Indian Reservatioa UL raiftlARY ISSUES Tide Lands Issue Tlie tide lands issue involves disputed ownership of and access to, tide lands where private non-tribal fee simple land is involved What corvstitutes "tide lands" is based on the" mean high tide line" Generally, the Lummi Tribe claims exclusive owneislup of "the tide lands" including control of all land on the water side of tlie "extreme high tide line" This claim includes "unobtrusive and non-destructive" access for tribal members, their vehicles, and boats across all lands and property to access tide lands. In contrast to the Tribe's claim, "mean high" is the generally accepted standard for determining "tide lands" by most legal sources South Cope Profierty Issue Tlie second issue is tlie right of nibal members to enter upon and use the private fee simple property known as tlie South Cape of Sandy Point, on tlie Reservation, in the fijrtherance of their "right of access" to the tide larxls. Currently, the owner of the Cape, Paul "Johnny" Murray-Jones, has posted the property with "no trespassing" signs with the intent to bar access to all unauthorized individuals from access to tlie Cape Non-Treaty Issue Trespassing Complaints Infrequently, the Sheriffs Office receives complaints of penons trespassing, or remaining on the froperty of another without permission These cases may involve tribal members, non-tribal membo^, or botli. Such matters do not involve disputed treaty rights or any other tribal issue. These matters should not be confijsed with either of the above noted types of conflicts. Lumri Reservation IVespass EDfoicemeot 94-01.01 09/01/94 ¥a^ 1 1183 \M1A1XX)M CUUIN l\ SIIFJ^IIT' Ol'l RMIONAL 1X)N(T ;VIMD IIUXJEDURE IV. OrOU IIONAL iX)UCY Until furtJiCT notice, llic Sliciifrs OITicc will mi]ilcmciii -Ir rnllinvmu o(xi.iii(niril |xiliiies \v1»cti handling "tide land" and "Soutli Cape" trespassuig coniplainls on llie Lunimi Indian RcservaLioiL A. Responses to Iiile Lands ( om|il:uirts SlienlTs deputies will respond to trespassing complaints related to ;uc:ls known ;»s tJie "tide lands" on. the Lunimi Indian Reservation as provided Ixilow 1. Deputies will respond to tide lands-related trespass complaints on the Lummi Reservation for tlie purpose of preserv ing the peace, providing information to the involved p.irtics. nnd to estahlisii a neutral mediating presence to protect the nglits of the disputants a In tliese matters, deputies will not arrest or cite the accused individual. Such rmtteis will Ix; addicssed as ;iny otlier non-cnminal civil matter would he addressed Resfxjiises to such incidents will be to document tlie incident and collect appropnate idenufying information Deputies shall not lake sides or express anv point of view, but will remain completely neutral to all parties b. If any of the involved parties decline to provide requested identiifying informatioa deputies will note such reflisal in their report and take no furtlier action to gain the information It will lie the responsibility of the complaining party to gain declined informatioa 2. Deputies shall not make physical arrests, or cite any tribal member accused only of trespassing for the purpose of accessing tide lands across the private propaly of aiiotlitT, as Ion;; as the means of gaining access was reasonable, unobtrusive, and did not cause any (iamaEe, undue disruption or physical harm to the property, or person of tlie property owner. a Reasonable access sliall be deemed to be made on foot across open land tliat is unobstructed by fences or structures. b. Unreasonable access sliall include openuig gates, climbing over fences, ejitenng into enclosed slnictures, crossing a lot with a residence, or by driving or towing a vehicle or boat Such conduct is deemed to be unreasonable and actionable as a trespassing violadoa c. Such "unreasonable" instances, will be fully documented and the report referred to the Office of the Prosecutor for a charging decisioa Lumoi Reservadon Iksiuss Ebfoicctncnt 94-01.01 09/01/94 PUge 2 1184 VMLVTCOM OOUIVIY SIIFJIIFF OnJUllONAL POIJCY AND PROCEDURE B, RfS|>i)t«scs to SiMrtli C:i[%' ( oniiil.-iiiits SlimtVs PcTSdtuu-l wll resimiid to iqxnls ol Uc'ipass on llic private i)ro|x.Tty located in llie ;itea known iis SoutJi Cajse on Sandy * Pouit as follows; 1. lJ[wn contncting individuals, wlio are not tribal meiiilxrrs. on the SoiitJi Cape property, such persons will lie aihised tliat thcv are trespassing and idninrymu inCoi matioii gatlicied Ihc [x;is()ii sliall be advised to lea\e property immediately. The information will be referred to the Office of the Prosecutor for a charging decisioa a. DqMities will ;ilso ;idvi,sc such individiuils liiat scvoiid. or successive contacts will result in the issuance of cnminal citations for trespass b. Enforcement action should onlv be taken against individuajs, dunna , an initial contact, who are committing a cnminal violation other than simply being physically present on the South Cape property c. Individuals possessuig a letter of pemiission issued by the property owner, or his designee, shall be deemed to be legally on the propert>- 2. Tnbal members will be permitted to walk across the Soutli Cape pro[)erty to facilitate their access to the tide lands, and for no otlier purpose a Tribal members accessing tide lands shall not be pennitted to enter the property vvith veliicles. launch or retrieve Ixjats, spread nets, moor boats in the canaL or loiter on the South Cape property b The commission of any of the above noted acts (a), combined with physical presence, will be sufficient to sustain a charge of trespass against a tnbal member. Tlie information shall be documented and referred to the Office of the Prosecutor for a charging decisioa c. Tribal members who are simply walking across on tlie aforementioned property to access tidelands, witliout any otlier inappropnate conduct, will not constitute a basis for any immediate enforcement actioa d. Tribal Police should be called to assist in handling these matters if a tribal member is resistive, uncooperative, or reflises to leave. e. Tnbal membet^ possessing a letter of permission issued by the property owner, or his designee shall be deemed to be legally on the property. Lunm Reservation 'nespass E^orcement 94-01.01 09/01/94 Plage 3 1185 \MIAIO),M(()IHVIA sill Kill on RMIONAI IX)I J(^ \NI) TIUK 1 J)|ilir. - C l^-simiisi-s lirvolviiH; OistiMh' l^•^n:^<; Ain-sts O'ImiIr-s in\i'Slii!;itini» lrc«:pa"=Sin!! curnplaiiit.s on llic Luiiiini Ki-:ia\:ili( ;i\(iid phvsic:\l ;uTest rray be issued a citation charging the ;ippropnate violation in lieu of completing a physical arrest D. Responses (o Noif-Tt«tfy Issite \iol:ilj()its SlienfVs [icisoiinel remain fully authorized to take appropnate enforcement actioti ayaiast ,inv indn idiuTJ who is in\oKed in crimma! conduct, inchidinu trespass in ;iny area of the Liinimi reservation known to be fee simple land wlicie tide lands access or ticaty lights .\ic not at issue El Docunientilion Rcquirwl Due to the potential for civil litigation that is associated with these types of c;iscs, all contacts. res(x>nses and actions will be fully documented via the Department's notinaj reporting process F. Disseniiiatioii of UnautlKHizitl liiloiuKrtion IJndci no ciicumstajices. aie SlicniVs personnel authonzed to distnbute infomnlion ti(Kumeiils or memoranda developed by any other individual, agency or entity regarding court decisions, opinions or interpretatioas of law related to tribal nghts. claims, or legaJ authority without the expressed permission of the ShentT, or his administrative designee G Professional Neutrality Sheriffs personnel shall, in all contacts with individuals, groups and agencies regarding these issues, remain neutral and positive 1 . Deputies must not allow thcm.sel ves to be ilrawii into an argument, or "lake sides" regarding; these volatile issues .Slicnfrs' [XMSonnel have an alisolute responsibility to serve the legitiiTnlc interests of citizens of Whatcom County witliin tlie context of the law in an unbiased manner. 2. All reasonable step should taken to preser>.'e tlie positive professional and working relationships vvitli the Lummi Tnbal Police H. Adiniiiistnilive RcfemJ Any problems or complaints ansing foim the implementation of this jxjiicy shall be rcfcned to the Sheriffs ndminist ration via nonnal departmental channels for review Individuals wishing to file a complaint against an officer, this policy or its applicauoit, should be, likewise, referred \^ DURATICXV This operational policy shall remain in effect until revised or revoked by order of the Shenff, or his admiitistrative designee Lunnm Reservation Trespass Edfoicemcnt 94-01.01 09/01/94 Fage 4 1186 Sheriff Br^.Ticnani s to take sta tt'inents from me and >''^ niy< wife. My daughter and my nn-ln laws also sent him short ; wfitten statement?- . 'ji^ I was very pleased and iripressed with their response to ^ tiEls matter. They are going to do an internal investigation i? a^^dsald they would notify mt^ of the results. '■■",';. /'-.i^ I asked that Mr. Hi 11a ire not be allowed to "set foot 'On ^k tay^ property over again" iand l-ol h agreed that "that was my right". Lt. Gutton and Det. Myers I feel that you should have a record of this incident;t,-.^.$ I have enclosed a copy of my written statement. Thank you for your attention to this matter. km)) r«ly, Cjfllero ■•■4 2821 Leeward Way Belllngham Va. 98226 ■•■;>' 1187 ' MR. BRUCE HALEY LT. SUTTON DET. GARY MYERS '! , fMM I LAV ENFORCEMENT, ' i^ Ratvirday, June 4,1004, n|>j.r ujrlmatel y 2 P.M. I Mpsettliig expel lence wlKh nui:. of youi "uLIioem". 2nd grade class was tnjoytng a day at their teachers hoii»,; -j Ve had a sra,:jll beach flie whl. h was being watched ' • - temporarily by a 5th grade helper. Adults were In the ;J.>ti, My yiiihrMji I^Bunedlate area. !| The 5th grader (Eric Ingram) heard someone yell f or ."blai: to put out the fire. He Ificked uj> to see a man in a ' I'^v' r&insuit. Eric told the roan tliat he couldn't but he would.^:'«t? get the owner. He was yelled at again to put out the flr^.'ij'A^ abd again responded that he wQ\jld get the owner. The man'.'' |<.*p «aid something to the effect of "Don't argue with me he "'r-V^J;';*? Isn't the ownei ! " . Eric ran up the beach stairs yelling '"''::■:' •^Mick! , Mick! , (my nickname). Tho man saw two 2nd grade boys * bear the top of the stairs and yelled at them to put out the ^Ire. Vhen the seconl gi adei ^s said they would get the owner ^ he got upset with them. ^ I met the man at the top of my beach stairs. He told tse |i had to put out the flie. I lerpondt-d "Vhy? Is there a burtl ban I dldn' t know about?" Ho told mo that wasn't ray property (Snd I had to put out th ieave.Vhen I asked what made him think he had a right t0.ib«Liir there he said he was an officer. Ve ( myself and ^ • i f^ ^wo-son-in-laws) looked at him and said "Your'e what"? He ""'l^, bp'?''i'::d his raincoat to slinw tjs his uniform (unbuttoned halfvi' way down) and a badge. I asked how we were supposed to. k&ovf' he was an "officer". About ih»rii my adult daught-T ran up and ilild "It's O.K. I'm going to call the police". Ve Infonpe/: akr He apparently was the j>o]ice. His name is E. Hilllarirl Y The "nfflc«:T" toll m- he - ouM call the Sh'-Mlff on ne . 'If f©S})onded that I wished ho wcuil i call tht->m, and he proceeded, to tell mo It was hi--". < holce and He- was not golrig to call ihem. To stop tlils s»f-iii».>le-.s iivjiK-lnc I told him I would put -iiat the fire and started to go d-iwn the stairs. He stoodrtlilii 1188 ^sp'-'a*' cv >i;r"'{ f>'" ' 'H''. * Th- ffc'>!** W? he wa-? right, --o f 'lid. Al-'.er I v'sjr away ftcut tTiT^ i>-'y ' I'zx, I r«- inomh^'i: ""d tTi.at he J was the <=• =>™r' "n'r f f •_*?■» ** t,h n- ■ f ti lu . -■ in R:\xtQl* I Vay iw'j oi thter y^-aisr »>;', in a Ft^.h^^r t^^s faur wheel drive -.11 . In btjt!i itish an- :*?•£-, 'tuts "tit. f i-rer" was^ liet enforcing the law as much .1= h-? was baras-^^iug •?M:il dt teB>ff lug. tr? intimidate. In ray C7plnti'n, thi« "nf f leer** is a danger to himself and to th'> genferal pnnKif-:. lo "both inssisn-Tes I f<=lt he warit:<--d "■• ■ tp> t'^'^pon! (>•>-.•»'.> f I y. Th.>^ I-' mA v--^! ye •^^ntart when stan'Ung an the top ~*e^p Kitiv yout l>=*ck *0' 9 60 foot embankmen K \ I want to thank you in ^^'lTaI1'Ce for the concern and ! attention yau are givinjg this w-iilfer. i c^lj»»:,««rely, tr'riy «~^11 >ru Tc 1 1 1 n^li.i at. V.s . 05:726 7«5S-7756 2 3 •I • S e I s 9 to 11 a 13 14 la 18 17 u 19 20 21 22 23 2-) 2i 26 27 28 29 30 31 32 1189 UUIM^^"" IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON LUMMI INDIAN TRIBE, et ah, puintirrs, •nd UNITED STATES OF AMERICA PUintlff-Intervenor, vt. WILBUR HALLAUER, Director of Washington State Department of Eeolo^, et al., Defendants. ClvU AcUon No. C79-682R CONSENT DECREE THIS MATTER cornea on t>efar« the Court upon Joint motion of the partiei to this settlement agreement for entry of this Consent Decree. The Court being fully advised in the premises, having considered the Decree presented and agreed i^on t>y the parties, hereby finds as follows; I. This action was commenced on June 6, 1979, by the Lummi Indian Tribe, and six individual plaintiffs: WlUlam E. Jones, Larry G. Kinley, Samuel M. Cagey, Vernon Lane, James McKay, and James Wilson. Four types of defendants were namedi (a) 'SUte DefendanU' including the SUte of Washington, its Department of Ecology, and eeruin staU officials, some officially and IndivlduaUy, and one spouse and the official's and his spouse's marital commifiity; (b) 'County DefendanU' Including Whatcom County, Washington, one of its Commissioners In his official and Individual capacity and hU spouse and their marital commuiity, and the County Engineer. (c) 'District DefendanU' includlix; Whatcom County Sewer District No. J (SD2), Whatcom County Water DUtrlct No. U (WDU), Whatcom County Water District No. 15 (WD15), their commissioners, the eortfmlssioners' spouses, and the ' By Agreed Order iuued October 30, 1980, plaintiffs' claims against Whatcom County and the County Engineer were dismissed with prejudice. COPY «;ONftON. JONSON & MAMACK. ^. S. 1190 1 I 3 4 S B I S 9 10 II 12 13 U la la 17 IS 19 20 21 22 23 24 a 26 27 28 29 30 31 32 eommlulonart' reip*oUv« marital eommunitlMi and (d) Individual Defendants' Including Mn. Vera Armstong, Douglas A. and Grace Marie Puhs and the Fuhs* marital community, and Fred and June FUbert and the FUbert marital community. 2. On March 20, 1980, the United States was given leave to intervene as plaintiff. The United States named as defendants the State of Washirgton, iu Department of Ecology and the DOE Director, SD2 and Its commissicncn, aad WD 11 and Its commissioners. 3. The plaintiffs and plalntlff-lntervenor sought various injunctive and declaratory relief and damages against the defendants. 4. The SUte of Washington filed a counterclaim against plaintiffs on July 2, 1979, seeking equiUtUe relief, and filed a cross-claim against district and Individual defendanu on July 26, 1979. 5. The District and Individual DefendanU filed counter and cross claims, which were completed In an Amended Counterclaim and Amended Cross-Claim filed Oetobcr 6, 1980. Haaed as- couater-defendanU were the Lummt Indian Tribe, the Lumml Indian Business Council, the members of the Lumml Indian Business Council, their spouses and their respective marital eorommiUes, certain other tribal officials, the United SUtes Environmental Protection Agency and certain of its officials in their official and Individual capaeltles. This counterclaim sought declaratory and Injunctive relief, and damages. The crosr^alm was filed against the State and County defendanu. 8. On November 8, 1980, the Court entered a Partial Judgment on Consent Decree resolvir^ all of plaintiffs' and plaintiff-lntervences ouUtanding claims among plaintiff, plalntlff-lntervenor and the SUte DefendanU. 7. On February S, 1982, the Court entered a parUal judgment on the Issue of tribal jurisdiction, declaring that the Lumml Indian Tribe had the authority to construct and operate a sewer system serving all persons residing en trust or fee On July 9, 1981 and December 17. 1981, the court entered summary JudgmenU In favor of EPA and IU officials on all cUlms against them. ^ By agreed Order Issued December 23, 1980, the cross-claim against the County defendants was dismissed. CONSENT DECREE - 2 JO» fcM* •rri«t« 9f 300 CCHTAAW SkO* 1191 1 2 3 S 8 7 S 9 10 11 12 13 14 15 16 17 IS 19 iO Jl 22 23 24 2& 26 27 28 29 30 31 32 land, within the boundaries of the Lumml Indian Reservation and requiring tU such persons to connect to the system and to pay service fees. The District and Individual Defendants have appealed thb Order to the United States Court of Appeals for the Ninth Circuit. 1. The issues remaining before the Court are (1) the claims for Injiaictive and declaratory relief and damages by plaintiffs against the District and Individual Defendants and agalnat Terry Unger, his wife and the Unger marital eommmity; (2) the claims of the United States against the District DefendanU; (3) the Crou-Claim of the Sute DefendanU against the District Defendar.U; (4) the claims for injunctive and declaratory relief and damages by the Distriet and Individual Defendants against the plaintiffs, thlrd-^Mtrty defendants, and SUte Defendants. 9. All parties to this Decree against whom claims have been fQed deny the allegations. However, these parties have conferred and agree that the entry of this consent decree is proper and further does not constitute an admission or adjudication of liability, negligence or other wrongdoing, or of a violation of any civil, statutory or constitutional right of any person or entity. 10. The parties hereto have further conferred and agree that the remaining claims in this cause among the plaintiffs, plaintlff-lntervenor and the remaining defendants (other than Unger) should be resolved without the necessity of a trial. Accordingly, the parties hereto have applied for the entry of the following order. TT a HEREBY ORDERED, ADJUDGED AND DECREED thati U. AU parties hereto, their officers, agents, employees, servants, attorneys, assigns, and successors In office commencing Immediately shall, except to the extent limited by subparagraph (h)i (a) Not make any dwelling within the Lumml Indian Reservation unavail- able to any person on account of raoe, color, religion, creed, sex, national origin or political affiliation except that the Lumml Housing Authority may continue to grant preference to Indians In the provision of housing only, according to Its charter This consent Decree does not resolve plaintiffs' claims against Terry Unger, as County Commissoner and individually, his wife, and the Unger marital community, nor does it resolve the claims among the District, individual and Stale Defendants. The parties to this decree are the plaintiffs, the plaintiff-intervenor and the Distriet and Individual Defendants. CONSENT DECREE JOMSOM. JONSON & MAHACK. P S. 300 ctMTHAL awoa itta^ttmaatm 1192 : 2 3 4 s i m 11 u tt M li M n u 19 a Ji a a u a XT a a M >: s rtKfl net Affoet -I- .3i«rf«r« wa xam pravwon of ■««« se rrict ts> mj pcnor. ai i|- of FMc, eelar, re&«Mm erceC mx. M:^aiM. anr-:^ ar ?o£ a a». •irnucoa. tivcfttoi. ar iattffcr* aitX aoy pcnea is Ua en^Bwi ar ezs«aa oC « oi illlmi' af la'^v Dbtuk cxvsaeo v njoyv^ a* an leestc:: at iaittm tmtu^ t^aec v eneaur^«c ■r; acner p«m oi *J>e exveac sr esjoysect aC tta r^t to anss-x »evee 9y 42 CSX, S9M: «. i^- ' acAcr ■gp^. ea ait ;>n. M ■«( deay, KttMipt to daiy, or «nac« oa nfUtt of nj p«naa to ■Aa mi otfvM esniraea, v ta mjaj Oa fiA aid eqia: deaefit of ail Uvs far •r pcraeoi aac prapcrr^ as a bjo7«c 9; aiwu staeia e( Uw Uaited le ■f , aOHifft •• tea;, or aon^* um ngkU ot mtj eb, or e««T«y rm. praperTT; (0 Vat wt, wder eoi«r af cute lea, m m \a ncjeet, sr atae le M •^s«etad, av p«ie« ta ua oepRvm-an af a^ rickti, prhrficfoi ar iauruB.tea teeuretf ay ife* CaauiocoB aiC ;««> af 3a Caited Sutcs or af aa SUU at (() Itot eoaapirc far Oa purpoM e^ depRraif . sr depr.vc, aiy peraoa a^ Jm s^mrit af tka aqta; pretcetiai e< ua i«M, or Ua eq«a< pnrfiefcs ar M Tarn yrvrmva ot jtgi^TtA £ uafi buaS ua SatUd 5U'.ea mij » app«.t«te« ar i«"< a. Tba Court Qarii wti larwy ntts, tiat §■ dWa lUOB S«««r lljiiia v oUarwiaa "^^"t ^at ot tMi tf OM lairra aifiMury la oaa Tiwaii 0«ere« ar* tares; Barred aoti reaotved ui r^t Utat Ua Con rata^ja )inadieueB avar tla ■oajaet aattar and tarata aa yanflraHj aat fvtk laraiMiaiav. and except la tla artaat tnat Oa Obtriet aatf hitfvidaal Dafeadaats Aa£ tavt taa r.cs: is a^paaJ Ua laua of itter :irai<« Qa appeal eurrenUy TutC, or uroi^r'': appca. afiar af flyi decree ay "« Ctmn. COtUSMT DBCSa - 4 JOi >•« C«.««B*^ »^«« 11» s 9 M II IS u M l» U 17 U ts a a n a a n a a 3« s a. Aa Tte prvn^i: iC -jsa tumiS anal »• m I^ &: is-t^ - r _ 7 . « .. - -. a a^f a« aeets«7 as ?c9m4i .'ar »■ accoa >««.-Hft«r act Tvou M VDfl ari 123 ttml ma :«-■ t ~ '. : :. soczsaarM «a 3cs$net ^ouncwca: a c » w . 'mk i^nmi 9« a« pio.: — J 7 > -« . -. ac S". m cadi tfMriet aaaA iril a^M .' : ' ^a rt* Lun ju M'««r rrcjA kc fucr scr. a eoSaevari ^ c*ea :Ua-.#c aae <••: -^ ;«7 raa 4««rs aa:«^ae ^mtba ji law a' OM Tnb*. EaeA " * "* Maft fea wrafac ^ aoepcca af • aaaMOiB tf ■■■• ay aaa tirm*6«m 9i 'Jus C T. ' ? , -J«a )ear.ic * ua ;r:c«sss nai ^ r^ammt MA •ijtfiad Mfw Om Qatart S:aua 2BVC. Cour*. .'ar =« «i ■ ■rtuwtak * a ■•Tf BTKiiBfaa ^ lud Mac. a a^ LC« fvmacja id mm Mm eorraecaa at tcsaian: rea a»: arcet JJfSEXT 35CXEZ - % wc « ■ c «. joasoh 4 ^AK^zi^ • a. 1194 I 2 3 i i e I s 9 10 11 \i 13 14 13 16 17 18 19 iO 21 22 23 24 25 26 27 28 29 30 31 32 S6.20.030. Th« U.L.I.D. and utAMmcnt roUi fhall further provide that Ute districts' •ward shall be paid, and assessments made, In 1983, 1984, and 1985 In equal installmenu, together with the appropriate Interest accrued upon the indebtedness, with the right of prepayment. (c) Each district may also provide for payment of Indebtedness to engineers and attorneys in computing the amount of assessmenu on the property to t>e assessed. (d) Interest on the wpaid balance of the award shall be compuud in accordance with 28 UJ.C. S1961. (•) The commissioners of each U.L.I.D. shall take aeticn in accordance with the Revised Code of Washington to collect delinquent assessments, and the Tribe has the right to require that the commissioners enforce collection of said delinquent assessments by an application to the Court. (0 Plaintiff Tribe agrees not to pursue any other rights it may have as a creditor to collect the indebtedness owed to it pursuant to this decree so long as payment t^cn the award is made by the districts In a timely manner as set forth herein. The award In this pargraph 13 is not contingent upon the method of coUeetlcn set forth herein, except to the extent limited by this paragraph (f). 14. A separate award in favor of the plaintiff Lummi Indian Tribe Is further entered against each of the fifUen individuals named as District snd IndMckjal Defendants In the amount of Four Hundred ($400.00) dollars. Payment of these awards shall not be due laitU the earlier of the filing of the final assessment roll for the formaUon of the Hrst U.L.I.D. to be formed by either WDU and SD2 under paragraph 13 hereof or January 1, 1983. Interest shall be computed on the mpaid balance in accordance with 28 U.S.C. S1961. IS. All the District and Individual DefendanU' payments shall be paid Into the registry of the Court through the Office of the Clerk for the United SUtes District Court for the Western Dtotriot of Washington. If the Clerk U unable or unwilling to accept the payments, then all paymenU shall be mailed to counsel for the plaintiffs at the Office of the Reservation Attorney, 2616 Kwina Road, BeUlngham, Washington 98226 or such other location as counsel shall direct in writing. COMSENT DECREE - 6 ..— o»r....«, JONSON, JOHSON & HAMACK. P. 8. 1195 AU payments by th« DUtriot and Individual Dafandanu «haU ba daamed raealvad by th« Tribe as of the date of the postmark on the envelope contalnlr^ any payment. If a payment U made In person rather than by maU, It shaU be deemed received when It la delivered to the Clerk of the Court or counsel for the Tribe. 16. Within ninety days after entry of thU order the Tribe shaU make food faith application to the Unltad SUtea Department of Houslr^ and Urban Development CHUDT and any other appropriate federal, sute, or local afeney for new tribal housing ipon tha Lumml Indian Reservation. ThU application shall be for at least the average number of iniU per year for which appUcaUon was made durii^ federal FY 1076, 19TT, 19T8 and 1979. The Tribe shaa also make a slmUar appUcaUon In each year of the next two federal fiscal years foUowlr^ the entry of this Decree. A copy of each application shall be filed with the Court. (a) IT within three years of the data of the IniUal appUcation the Tribe receives re*"* funds for houdns for one hundred (100) imitj cr less, $a the term 'vailt' Is defined by HUD refulatlons, then the Tribe reUlra all of the monies paid under paragraphs 13 and U of this decree. (b) If within three years of the date of the application the Tribe receives grant funds for housing In excess of one hundred (100) unlU as the term 'wit' U deflnMl In HUD rcguUtlons, the Tribe wiU refimd fifty cenu (|.S0) for every one dollar reoaived In exceas of the one hundred iniU to the District and Individual OefcndanU in proportion to their respective contributions to the monlea set forth In paragraphs 13 and U of this decree. I (e) If Um Tribe faUs to make good faith application as above, It shall refund In fuU to the District and Individual DefendanU all and any monies received. 17. The plaintiffs agree that none of the funds collected pursuant to this Decree shaU be used to oppoae the plana cr activltiea of the DUtrlct and Individual Defendants regarding utility aervioea. II. AU connections to the Lumml Reservation Sewer System, within the capacity of the system, shall be made on a non-dUcrlmlnatory and first-come, fint-servcd basis. The Lumml Indian Tribe shall amend the Lumml Sewer Ordinance to Insure this connection priority and file a copy with the Court. CONSENT DECREE JOMSON. JONSON » MAMACK, P. ■. 1196 I 2 3 4 « 6 I S 9 10 11 li 13 14 15 16 17 IS 19 20 21 22 23 24 2S S8 27 2S 29 30 31 32 19. On or b«for« th* Ject to review by the Lummi Indian Business Council only for the purposes of ascerUining whether a fair hearing was allowed. (b) Any parties to a dispute dissatisfied by the decision of the Lummi Sewer Board and the Lummi Indian Business Council may appeal to the Lummi Reservation Court. The Lummi Indian Tribe shall amend the Lummi Sewer Ordinance to permit such appeaU The Reservation Court shall conduct a review i^on the written record, and the standard used in such review shall be whether there was stJbstantlal evidence in the record to support the decision of the Lummi Sewer Board. The Reservation Court shall Issue a written decision. (c) Any parties to a dispute dissatisfied with the decision of the Lummi Reservation Court may invoke arbitration mder the rules and auspices of the American Arbitration Association. The arbitrator shall conduct a de novo review up^ the written record t>efore the Reaervation Court and iuue a written decision. (d) As a condition of appealing to each of the above steps, the party wishliv to appeal shaU first pay aU costs of the step at which it lost. CosU shaU include, but not be limited to, the preparation of a written transcript of each hearing or meeting, reasonable filing fees, and other ooeUj however, eoeu shall not include attorneys or spokesperson's fees for any of the above stages of proceeding. (e) A copy of the ordinance enacted by the Lummi Indian Tribe and a sample connection sewer contract shall be filed with the Court. (f) Operational problems or complaints of a minor nature may, at the option of the complaining party, be resolved informally through contact with the CONSENT DECREE - 8 kMv omcit or J0N80N, JONSON & MAHACK. I>. 8. 300 CCMTMAk OkOO 1197 manager of th« Lumml Sewer System. The use or non-use of this Informal, dlreet contact shall not affect • compUlning party's right to pursue the formalized provisions contained herein for the settlement of disputes. (g) For a period of five years after the date of this decree, the United StAtes District Court shall retain Jtrlsdietion over the matters in this paragraph for the purpose of cnforeinf the arbitrator's awards. The review of th« art>ltrator's award s^mU be on a basis of art>itrary and capricious action by the arbitrator. Any Order or Judgment enforcing or altering an arbitrator^ award shall include a reasonable attorney's fea to the prevailing party for attorney time spent in tha District Court action only. Feea, costs, and other expenses paid or incurred prior to the District Court action shall not be awarded as part of the District Court Order. The Lummi Indian Tribe waives sovereign immunity and shall amend the Lummi Sewer Ordinance or other appropriate ordinance to provide for a waiver of sovereign immiaiity for itaalf and for the Lumml Sewer Board sufficient to implement this paragraph 19 and shall fOe a copy of said ordinances with the Court. (h) AD sewer contracts for connection to the Lumml Sewer System shall be made available by the TritM for inspection during normal business hours. 10. No housinc «aUt which has been connected to the Lummi Reservation Sewer System stwU be diaoonneeted without the written agreement of the owner of tha houdng unit. 2L Nothing herein shall prevent the District and Individual DefcndanU from appeaUi« the February Si !••> judgment of the DUtrlot Court on the "JurisdioUon issye*. This Decree siyrsMaa no. opinion on the appealability of any prior Order of this Court. 2i. (a) If the District and Individual DefcndanU prevaQ on the Jurisdiction appeal, then (1) the Tribe i«rees to enter into contraoU with SD2 and/or WDU for tha wholesale treatment of sewerage within those dlslrieU' boundaries, and (2) the DlstricU ^ree not to annex additional territory without the approval of the Tribe which shall not be laireaaonably withheld, and which shall be determined on the basis of engineerii^ feasibility or non-feasibility of service on a gravity system basis from the tribal sewer district or SD2 or WDU. CONSENT DECREE - • JONBON. JOHaON & MAMACK. p. S. 1198 I 2 3 4 •i B < S » 10 n 12 13 M lo 16 17 IS 19 20 21 22 23 24 SS 2« 27 2« 29 30 31 32 (b) If Um distrleU ar* ultimately untuee«u(ul In ravening the Jurla- diellon ruling, then (1) S02 shall be dissolved and cease to exist save for the eoUcetlon of assessmcnu sufficient to pay Its indebtedness entered in this action, and (2) neither WDU nor WDIS shall exercise any powers to provide sewer service under any cireunutanees, save for the collection of assessments sufficient to pay Its indebtedness entered in this action, without the permissicn of the Tribe, wMeh permission may b« withheld for any reason. 23. An award of attorneys foes and costs shall be discussed by the parties hereto, but, if no agreement con t>e reached, the entitlement and amount of such an award shall be s«t by th* Court. 34. This Consent Decree may be altered or modified only by written agree- ment of all parties hereto, and approved by the Court. However, for good cause shown and upon motion to the Court by any party, the Court may enter such further Orders as may be neoeasory or appropriate to effeotuate the purposes of this Decree. ORDERED this day of August, 1912. BARBARA J. ROYHSTEIH UNTTED STATES DISTRICT JUDGE The undersigned attorneys agree to the entry of this Order. Carl A. Jonson Jcnson & Jonson, P.S. 300 Central Building Seattle, Washii^ton 98104 Attorney for DIstriet and Individual Defendants and Third-Party Plaintiffs Abigail Ellas VS. Department of Justice CivU RlghU Division Washington, D.C. 20530 Attorney for the United SUtes ' Plaintlff-Intervenor and Third-Party Defendants. CONSENT DECREE - 10 Daniel A. Raos Harry L. Johnson Office of the Reservation Attorney 2616 Kwina Road BeUingham, Washington 96229 Attorneys for Plaintiffs and Third-Party DefendanU JONSON. JONSON & MAHACK. P. S. 1199 IN THE US DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON CIVIL ACTION NO. C79 - 682R ,„ 3ETWEEN mi . .ih*,-~'y-i'. SOUTH CAPE PROPERTIES LIMITED AND THE LUMMI INDIAN TRIBE THE LUMMI INDIAN BUSINESS COUNCIL MOVANT PLAINTIFF CROSS -DEFENDANT AFFIDAVIT OF LT COMMANDER P.J. MURRAY- JONES I, Paul Johnnie MURRAY- JONES, of 8A Hatton House, 15 Kotewall Road, in the British Crown Colony of Hong Kong, on behalf of the eOjove named Movant, South Cape Properties Limited, do make oath and say as follows : - - -w 1. I make this Affidavit in support of the motion before this Honourable Court for an order to enforce the terms and conditions of the Consent Decree of 8th December 1992 in Civil Action No. C79 - 682R. All the facts deposed herein are true to the best of my knowledge and belief unless otherwise stated. It may be that some of the matters averred to in this Affidavit will be found to be superfluous to the central reason for this motion, but they have been included so as to give as complete a background picture of the situation as possible. 2. (a) I am the beneficial oWner of all that piece "of land known as the South Cape property on the peninsula of Sandy Point, Ferndale, Washington, hereinafter referred to as the land, as more particularly described in EXHIBIT I, which was acquired by me on 1200 lOth November 1983. A map, EXHIBIT II, shows the position of the South 'Cape property on the Sandy Point peninsula. (b) I hold this property through South Cape Properties Limited, a company incorporated in Hong Kong. I have also applied to register the company in Washington. A certified copy of the Certificate of Incorporation is enclosed herewith marked as EXHIBIT III. (c) The Lummi Indian Business Council has, in contravention of the provisions of the Consent Decree, wrongfully overruled the approval given by the board of the Lummi Sewer and Water District on 29th April 1993 for the extension of the sewer to my property. I am unable to con^lete the development, despite it having been approved by the Department of Ecology and Whatcom County, until the ■^ewer.is provided. 3. HISTORY OP THE PROPERTY (a) The peninsula known as Sandy Point, of which South Cape forms a part, was gremted to one Frank Finkbonner, believed to have been a German who married a Lummi girl and thus became a member of . : the tribe, on 28th March 1907. A copy of this grant is shown as EXHIBIT IV. (b) On 8th April 1953 Finkbonner sold the land, including the tidelands. to William P. Wood and Jasmine P. Wood. EXHIBIT V. (c) On 27th May 1953 the Woods sold the land to C. V. Wilder and Jessie Wilder. (d) On 7th August 1959 the Wilders sold the land to Sandy Point Gravel Ltd. (e) On 15th May 1963 Sandy Point Gravel sold the land to Bellxngham Marine Inc. 1201 •(f) ' On 4th May 1966, Bellinghairi Marine sold the land to Campbell investments Company. (g) On 10th November 1983 Campbell Investments sold the Icind to South Cape Properties Limited. 4. CHANGES TO THE TO POGRAPHY OF SANDY POINT (a) Until the property came under the ownership of a Canadian company, Sandy Point Gravel Ltd, in 1959, it was a solid land mass, as evidenced by EXHIBIT VI. Between then and 1963 gravel was excavated, eind the present harbour and canals were thereby formed.' Photographs showing this development are attached as EXHIBIT VII. (b) Thus it will be seen that the harbour was man-made, . some thirty-one years ago, being formed out land that was then, and still is, non-Indicui owned in fee single. 5. SANDY POINT TIDELAND AND ENTR ANCE LEASES (a) The former leases for the tidelands and the entrance to the man-made harbour, are pertinent to the actions . of the Lummi Indian Business Council and thus to this motion, and the background to them is as hereinafter related. (b) : In 1959 the Sandy Point Gravel Ltd, with permission from the Lummi Tribe, dredged a channel across the tidelands to enable the upland gravel deposits to be removed by barge from the basin which had been formed by the excavations, and shipped to Canada. As the excavating and dredging progressed, the inner canals were created, which automatically became, like the harbour, navigable waterways. The U.S. Coast Guard and the U.S. Army Corps 0*^ Engineers claim federal navigational servitude on the former tidelands under the entrance channel, regardless of ownership. 1202 (c) To avoid costly litigation and Tribal harassment, the residents of Sandy Point decided to enter into two leases. In 1963 a 25 year lease for the tidelands was negotiated by the Seuidy Point Improvement Company, initially for the sum of $2,000.00 per annum, in 1965 a 23 year lease was agreed with Bellingham Marine for the entrEuice channel for $500.00 per annum. Because of the small sums involved at first, the residents did not trouble to find out if the tidelands are, in reality, held in trust for the Lummi Tribe, which is open to doubt - see 3 (b) sdjove - or if they were owned by the upland owners or by the State. (d) Nor did they initially investigate whether, even assuming the tidelands are held by the U.S. Government in trust for the Tribe, any lease was required, or if the public still has a right to use the tidelcuids and the harbour. (e) These two leases expired on 3l6t March 1988, and were not renewed because of the extortionate demand by the Tribe for $269,000.00 per annum for a combined entrance and tideland lease, on which it refused to negotiate. (f) Actuated by the unacceptably high cost of renewing the leases, residents then became aware that the harbour was, and had been since it's formation, subject to navigational servitude euid under the control of the U.S. Coast Guard and Army Corps of Engineers, cuid was thus availsQsle for use by all and sundry. It is a useful harbour of refuge for small craft in time of bad weather. Thua no entrance l ease had ever been recniired. The harbour and canals are, incidentally, widely used by Lummi fishing boats by amicable arrangements with the upland owners . (g) As for the tidelands, since they are unattractive for recreation, the residents were content not to walk on them if to do so meant paying such an exorbitant sum, particularly since they believe they have a legal right to use them anyway. Furthermore, 1203 a United States Supreme Court decision, Phillips Petroleum et al v Mississip pi 484 U.S. 371, 49L. Ed 1089, 108 S. Ct . 791, 98 L. Ed 2d 877 (1988) , ruled that the traditional basis of navigability, as this determinate of public use is not the full intent of law - the Justices were of the opinion that public rights extended "to all lands under wate rs subject to the ebb and flow of the tides, regardless of naviqability in fact". 6. REASONS FOR LUMMI OBJECTIONS TO SOUTH CAPE DEVELOPMENT (a) By 1988 there had been some 600 lots developed at Sandy Point and at no time had the Tribe ever tried to interfere with Whatcom County's sole right to zoning and planning jurisdiction ever such non-Indlaui owned land, on which taxes are paid to the County. This is evidenced by the letter from the Hearing Examiner to the Whatcom County Deputy Prosecuting Attorney of 8th June 1989, referring to Lxioml objections to my development, in which he says that Whatcom County has : - ■never been issued a similar challenge before, to shoreline or zoning mattera . " EXHIBIT VIII. (b) It eventually became quite clear that the Lummi were not going to be allowed by the Coast Guard and the Corps of Engineers to block the harbour entrance, as they had declared they would do, EXHIBIT IX, and that the lease of the tldelands, which the Tribe had posted as being out of bounds to non- Indians, was not going to be renewed. (c) Paced with the loss of $269,000.00 "unearned" income, pressure was then put on nve, both orally by Mr. G.I. James, LIBC General Manager, and Mr. Marc Russell, Land Manager, and in writing, to persuade the residents to renew the leases, as hereinafter particularized : - ■ ^ — 1204 (i) A letter dated 3rd July 1989, EXHIBIT X, was received from Mr. Marc Russell, LIBC Land Manager, in which he expounded at considerable length on the tidelands and entrance leases, and discussed the possibility of a separate tidelands lease for my property. He also refers to my application of 29th June 1989 for a Tribal Shoreline Permit, EXHIBIT XI. Not then being fully aware of the ins and outs of the situation, I had applied for such a permit as the result of a telephone conversation with Mr. Russell on 28th July 1989, in which he urged me to do so, so that I could complete my development. In the last paragraph of this letter of 3rd July 1989 he says, in reference to my application : - "You can expect a detailed response within the next tWQ weeks". No such response was ever received, which leads me to the conclusion that no procedure then existed for the issue of such permits. (ii) A copy of a letter dated 14th February 1990 from G.I. James, EXHIBIT XII, regarding the possibility of a separate lease for my lots, confirms this. In this letter, he says :- "It is true that we will not approve any further developmenta at S andv Point without establishing long term lease rnmmitme nta for the affected Tidelands". (iii) On or about 24th July 1992, the tribal attorney, Mr. Johnsen, said to Mrs. Margaret Curtis of Wilson Engineering, my engineers, that the resolution of the tide lands lease "will go a long wav" to obtaining tribal approval of the subdivision. EXHIBIT XIII. (iv) This was reiterated a year later, when a letter dated 24th March 1993 was received from Darrell Phare, Chainn2m, Lummi Planning Commission, in which he says :- 1205 "The Sandy Point Tidelapd lease (a) are Btill unresolved. Thus, the Commission feels that it would be p r emature for the Lummi Nation to negotiate a lease agreement with vou prior to resolving the other Sandv Point Tideland issues ; leasing of Tidelands must be looked at in it' a entirety". He ends up by saying : - "Until these water and Tidelands issues are addressed. the Lummi Planning Commission will not g rant approval of this project". EXHIBIT XIV. (v) An undated draft resolution of the LIBC of June or July 1993, EXHIBIT XV, denying the extensiesn, refers to the entrance lease as follows : - lln — addition. — the applicant h&s not made suitable arrangements for the use of tribal lands, including tidelands comprising the Sandy Point Channel. Therefore the application to extend sewer service to the South Caoe area of Sandv Point iH denied" • (d) It is thus beyond all shadow of doubt that, right up to the present day, the basic reason for the refusal to extend the sewer in order to block the development, is the unexpected loss of am income of $269,000.00 per annum, and that the Lummi must originally have hoped that by so doing I would be compelled to persuade the residents to renew the leases. (e) A secondary aim is to block further non- Indian development, as stated in a document entitled "Water Resources Inventory Phase III" prepared by the LIBC in 1981, which states :- "Another goal is to minimize g rowth of non- Indian land ownership and residence on the reservation. m theory. utility extensions can be used as a method of growth control." ^ (f) A Lummi publication, Squol Quol for 1987, states :- "It is the goal of the LIBC to acqui re all land sold nut 35-542 97-39 1206 of trust " 'I 7. PRELIMINARY PLAT APPROVAL - 2QTH MARCH 1992 The development received final preliminary plat approval by Whatcom County on 20th March 1992, several shoreline matters having been resolved to the satisfaction of the Department of Ecology beforehcind. 8. EXTENSION APPROVED BY SEWER DI STRICT - 29TH APRIL 1993 On 29th April 1993, the board of the Sewer District approved the extension by a vote of two in favour, none against, with one abstention. EXHIBIT XVI. 9. SEWER DISTRICT APPROV AL OVERRULED BY THE LIBC - 14TH JULY 1993 (a) Two and a half months later , on 14th July 1993, I received a letter of the same date from Henry Cagey, Chairman, LIBC, EXHIBIT XVII, in which he says that the LIBC had met on l^j^ June 1993 euid denied the Sewer Board approval of the sewer extension for the following three reasons : - (i) The project had not been a pproved by the Lummi Planning Commission. (ii) There was no assured buppIv of domestic water to the project which "complies with the Lummi Nation laws and policies." (iii) The landform is "unstable and subject to ongoing erosion and floo ding and is vulnerable to damage from seismic activity." (b) These "reasons" were presumably put forward because it was realised that the position of linking the sewer extension to 1207 the renewal of the leases was untenable, and that therefore other reasons for withholding the sewer had to be invented, to cloak the reality. All these "reasons", incidentally, which are zoning and planning matters, are baseless, as explained in EXHIBIT XVIII. Also, the term "Lummi Nation La ws and policies" in 9(a) (ii) hereinabove is incapable of precise interpretation eind thus meaningless. (c) .1 I was invited by this letter to submit information for a hearing before the LIBC, but declined to do so because I Icnow that Whatcom County is the sole planning an<4 zoning authority and that the LIBC has no such powers over land owned by non- Indians in fee simple. To have attended would have been tantamount to acceptcuice of the non-existent authority of the LIBC over the lemd. (d) I replied on 16th July 1993 to Mr. Cagey, pointing out that according to Clause 19 of the Consent Decree [and Section 14.02 of the Sewer Ordinance), the power of the LIBC is limited to reviewing a decision of the Sewer Board " for the purposes of ascertaining whether a fair hearing was held ." EXHIBIT XIX. (e) Furthermore, according to Section 14.02 of the Sewer Ordinance, if the LIBC decides to review a decision by the Sewer Board, such review "shall" take place within 30 calendar days, and failure to act within this period shall be deemed an affirmation of the Sewer Board's decision. Hence, even if the review by the LIBC did take place on 15th June 1993, a period of 47 days had elapsed since the Sewer Board's approval of the extension on 29th April 1993. Thus, the resolution passed by the LIBC on 15th June 1993 is invalid, by reason of its failure to comply with the provisions of Section 14.02 of the Sewer Ordinance. Accordingly, the oriainal approval of the board of the Sewer District made on 29th April 1993 for the extension of the sewer to ray property must stand. 1208 (f) It is also interesting to note that the LIBC wrote to me on 14th July 1993, a month after the meeting allegedly held on 15th June 1993 . As the LIBC has a duty to notify . eui appliceuit forthwith, it is likely that this meeting of the LIBC did not even take place until 14th July 1993. No explanation was offered by the LIBC for the delay. (g) /. w% I also note that in the draft LIBC resolution referred to in 6^ hereineJaove , it is significant that the date of the Sewer Board meeting is erroneously given as 28th May 1993 instead of 29th April 1993 . This is clearly an attempt^ on the part of the LIBC to cover up its procedural defects and bring the date of the review to within the 30 day period, so as to validate its overruling of the approval by the Sewer Board for the extension. 10. MEETING ARRANGED WITH MR. HENRY CAGEY. CHAIRMAN LIBC - 21ST AUGUST 1993 (a) I arranged for a one-to-one meeting with Henry Cagey, whom I had never met, for 13:00 on 21st August 1993, hoping that such a meeting face to face might be mutually beneficial. I reconfirmed the meeting that morning with a Miss Natalia Calhoun. (b) On my arrival at the LIBC offices, I was first told that I was to meet a "Chief Oliver" instead, but was eventually ushered into a conference room where I found Mr. Johnsen, Tribal Attorney, Miss Harriet Beale, Water Resource Manager, Mr. Tim Hostetler, Resource planning Specialist, and an Indian water engineer whose name I did not catch. (c) I made it very plain that I was displeased at this subterfuge to get me to attend such a meeting, when the Tribe had no jurisdiction over my property, but agreed to let those present have my views on the situation on the understanding that it was all 1209 off the record and no "meeting' was deemed to have taken place, (d) On 26th July 1993 I wrote to Mr. Cagey regretting not having met him, a friendly and constructive letter which ended with a hope that we might meet for lunch or dinner. EXHIBIT XX. 11. REQUEST FO R GEOLOGICAL SURVEYS - 30TH JULY 1993 f- On or about 30th July 1993 I heard from my Engineer, Mrs. Margaret Curtis of Wilson Engineering, that Mr. Johnsen had asked her for the geological survey reports on the property, carried out for the Department of Ecology to confirm the stcibility of the Icind. I refused this request by letter dated 2nd August 1993, on the basis that such matters were the concern of the County and the State and not of the LIBC. EXHIBIT XXI. 12. FURTHER LETTER TO MR. CAGEY - 2 4TH AUGUST 1993 On 24th August 1993, having just obtained a copy of the Lummi Tribal Sewer and Water Ordinance, I wrote to Mr. Cagey in furtherance of my letter to him of 26th July 1993, pointing out that the position stated in his denial letter of 14th July 1993 was inconsistent with both the Consent Decree and the Sewer Ordinemce. EXHIBIT XXII. 13. REPLY BY MR. CAGEY - 16TH SEPTE MBER 1993 (a) On 16th September 1993, EXHIBIT XXIII, Mr. Cagey replied to my letter of 26th July 1993 - but without mentioning^ letter of 24th August 1993 - in which he raised a completely new "reason" for the denial of the sewer extension, namely, Section 1.18.4 of the Ordinance. This requires ein extension proposal by the Sewer 1210 Board to be "accompanied by an amendment to the Facilities Plaui", which the Sewer Board had apparently failed to do. •» (b) This omission on the part of the Sewer Board is just a procedural matter capedile of being corrected very singly, if it is in fact necessary. However, I am very relieQjly informed by my engineer, Mrs. Curtis, that hitherto no such amendments to the Facilities Plan had been made in relation to earlier additions to the system. (c) Again, if this was such an all inqportant requirement, it is strange that it was not mentioned as one of the "reasons" for the denial of the extension in the letter of 14th July 1993 referred to in paragraph 9(a) hereinsibove, instead of being suddenly brought up five months after the application for the extension was approved by the Sewer Board cuid three months after the Sewer Board decision was overruled by the LIBC. (d) In any event, the extension had already been exa m i n ed in great detail by the Sewer District, which had published an Engineering Report by the Sewer Engineer, Mr. Carl Reichardt, dated 18th April 1988 some five years earlier . EXHIBIT XXIV. The District Manager also wrote a very con^rehensive and helpful letter addressed to me dated 10th January 1989, EXHIBIT XXV. It is thus cibundantly clear that the Sewer District was expecting to extend the sewer to my property from 1988 onwards, zmd had no problems with so doing. (e) Mr. Cagey also refers - yet again - in his letter of 16th September 1993 to Section 4.08 of the Sewer OrdineUice, EXHIBIT XXVI. This has no bearing whatsoever on the issue, as it is only concerned with connections to "structures", i.e. houses, omd*hot to extensions of the sewer line itself. It may be appropriate to invite the attention of this Honourable Court to the fact that this Section' s provisions for compliance with applicaJsle tribal zoning, 1211 subdivision, and other tribal codes, meeuis that the LIBC could frustrate the intentions of the Consent Decree as long as these provisions are in their present form, as the provisions cam swallow the rule of non-discrimination. Thus, even though the extension was laid, the LIBC could still refuse to connect to the houses when they are built, even though they comply to Whatcom Covmty's requirements . 14. REPLY TO MR. CAGEY - 2 1ST SE PTEMBER 1993 On 21st September 1993 I replied to Mr. Cagey' s letter of 16th September 1993, pointing out the inadvisaJoility of maintaining the present course of the LIBC. My letter was friendly in content and meant to be, as always, both sensible cuad helpful, EXHIBIT XXVII. However, I now began to realise that "negotiating" with the LIBC was pointless, as not only was the playing field not level, but the goal posts were always being moved - or even removed altogether. 15. LUMMI OFFER TO PURCHASE THE LAND - 25TH OCTOBER 1993 On 25th October 1993, Mr. Cagey, presumably by then realising that the leases were not going to be renewed, wrote to my former attorney seeking to purchase the lamd for a sum which would give me" a reasoncQ}le return" on my investment. I replied myself by letter on 3rd November 1993, offering the property at its sell- out value after development, less future construction costs. Predictably, the reply dated 30th November 1993 rejected the'offer, I believe this was just another delaying tactic designed to make the "negotiations" drag on interminably, in the misguided hope that it would wear me down and make me give up the struggle. This would 1212 have tied in with the LIBC's stated aim of purchasing non-Indian property on the reservation and returning it into trust, had it not been unlikely that funds would be availcible, given the parlous state of the Tribe's finances, for such a purchase. 16..... .. WATER SUPPLIES AT SA NDY POINT AS AN EXCUSE FOR DENIAL OP ,.. SEWER SERVICE (a) The Sandy Point Improvement Company [SPIC] supplies water from it's own wells to some 600 non-InlQian homes and over 50 Indian customers. (b) SPIC acknowledges that it has a contractual licdiility to supply water to my South Cape property. (c) SPIC is certain that it has sufficient water to meet all existing and future requirements at Sandy Point and that the Lummi claims that withdrawals from, SPIC's aquifer are depleting, or affecting the quality, of reservation water supplies are unfounded. (d) A building moratorium has been imposed at Sandy Point until the water situation has been resolved. (e) In the letter from the LIBC of 14th February 1990, previously referred to in paragraph 6(d) hereinabove, it is stated that :- "Your Plan to develop l ota at South Caoe cannot be a pproved unless vou develop an alternative plan to suPDlv water to those lo ta that does not rely on reservation around water." (f ) , In a letter dated 4th April 1991 from the Director of the Department of Ecology to the President of the Lummi Propertj^Owners Association, it is said that :- " Our opinion is th at sewer service Hhould not be withheld solely on the basis of invalid water rights" EXHIBIT XXVIII. 1213 (g) ■ To Bhort circuit the arguments over well and river water sources, and solve this problem, I proposed to the Department of Ecology that I should install a Reverse Osmosis system, which teikes seawater and turns it into fresh water of purer quality them any well or river water. It is very widely used in the United States, particularly in Florida and California, as well as all over the world and in virtually every ship afloat. (For example, one R.O. installation completed in 1992 provides 6.7 million gallons per day for the municipality of Santa Barbara, California] . (h) without the slightest possibility of contradiction, it can be said that an R.O. system, taking in seawater cuid discharging it at a slightly higher salinity, does no harm whatsoever to the most fragile ecosystem, even to delicate coral beds, as is w.ell known wherever such systems are in use. EXHIBIT XXIX. (1) Predictably, by letter dated 15th September 1993, the Lummi protested to DOB my application on ecological grounds - as a matter of course - instead of welcoming it as am eminently sensible solution to the alleged water problem, as would normally have been expected. This alone proves the fact that one of the aims of the Lummi is singly to block the development, for which any "reason" will do, however bizarre and inapplicedile it may be. EXHIBIT XXX. (j) In the letter of protest referred to in (i) above, it is noted that LIBC claims that : - "Marine waters and the tidelanda of the Reservation are the property of the lummi Nation" . This would seem to be in direct contradiction to the statement made by the Solicitor General of the United States in United States v Winans . 198 U.S. 371, 49 L. Ed 1089, 25 S.Ct. 662 (1905), in which he said :- 1214 "The States cont rol navigable waters, including the soil under them and the fisheri es within their limits, subject only to the rights of the General Government under the Constitution in the regulatio n of commerce" ■ The LIBC claim also seems to fail to recognise that any tidelands which may be attached to the reservation are owned by he Federal Government in trust for the Tribe and not owned Ithe Tribe itself. (k)' The Department of Ecology, by letter dated 7th June 1994, gave approval to proceed with the development and install sui R.O system without procuring a water right. 17. .QEWER EXTENSION NOT DEPENDANT ON WATER SUPPLY (a) As has been seen in 16(e) hereincQsove, one of the purported reasons given by the LIBC for not approving the sewer extension is an alleged lack of water. (b) Even if there was in truth no water available, there is no reason to deny the sewer extension, as it could be laid "dry" and kept capped. (c) However, in this instance, when it is laid and connected, the extension will be able to serve the existing 5 homes on South Cape, which presently use septic tanks, which do not form part of my development, and which are, of course, supplied with water by SPIC already. 18. LUMMI TRIBA L CODES -CHAPTER 16 (a) Chapter 16 of the Lummi Tribal Codes, attached herewith, with enclosures, as EXHIBIT XXXI, covers the operation and regulation of the Sewer District and Sewer Board, in as much detail 1215 as the Lummi Tribal Sewer and Wat ^r District Ordincmce. (b) However, as will be seen, it does not contain cmy o£ the provisions which have been incorporated into the Sewer Ordinauice in accordance with the requirement of the Consent Decree. (c) From the enclosures, EXHIBIT XXXII, it is stated unequivocally by the LIBC that this is : - "the code book the Lumm i is currently o perating under" . (d) Since this code presumcibly tcikes precedence over the Sewer Ordinance, it would appear that this is yet emother cause £or concern . 19. WIDESPREAD CONCERN OVER RACIAL DISCRIMINATION PRACTISED BY THE LIBC That I am not alone in my belief that the LIBC is practising racial discrimination is evidenced by the fact that a number of persons , namely : - (a) Mrs. Marlene Dawson - Whatcom Covmty Councillor (b) Mrs. Linnea Smith - Former Sewer Board Member (c) Mrs. Kistine Heintz - Sewer Board Member (d) Mr. Jeff McKay - Sewer Board Member have all felt constrained to write to this honourable Court regarding violations of the Consent Decree. Tliere are, of course, many others, whom I know, who feel just as strongly, but who have not put pen to paper to voice their concerns. 20. FUNDING OF THE SEWER BY GRANTS FROM B.P.A . AND DOB (a) In 1978, the EPA and DOB provided $4,636,658.00 and $927,323.00 respectively to fund the sewage collection and treatment facilities for the Lummi Indian Tribe. A further 1216 $618,221.00 was provided by HUD, IAS, and Loan Funds, making $6,182,211.00 in total. (b) For the Federal Grant of $4,636,658.00, the EPA required LIBC to sign an "Assurance of Compliance for Title VI of the Civil Rights Act of 1964 and Section 13 of the FWPCA Amendments of 1972." This was duly signed by William Jones, Vice Chairman for the Chairman, LIBC, on 20th April 1978. A copy of this document is provided herewith as EXHIBIT XXXIII. (c) It will be seen from a cdpy of 40 CFR Ch. 1(7-1-92 Edition) herewith as EXHIBIT XXXIV, that there are explicit prohibitions on discrimination, on the basis of race, color, national origin or sex, and any person who believes that he or she has been discriminated against may complain to the EPA. The EPA will then instruct the Office of Civil Rights, which will try to settle the complaint. As a last resort, the OCR can refer the violation to the Department of Justice. (d) The Department of Ecology do not have a non- discrimination agreement, but non-discrimination by a recipient of a grant is mandatory in regard to any grants made by DOE. 21. LAND OWNED BY NON- INDIANS NOT SUBJECT TO INDIAN REGULATION (a) When land is sold by an Indian to a non- Indian in fee simple, it comes under the jurisdiction of the County, to which property taxes are paid. In this regard, a letter from the Bureau of Indian Affairs dated 6th August 1990 states that :- » the Unit ed States has no further in terest in the property and it becomes taxable and subject to the laws of the State of Washing ton the same as any other non-restricted land in 1217 (b) There have been a number of recent court cases confirming that Indians do not have any regulatory control over non- Indian ovmed land on a reservation. These Court cases are :- (i) MONTANA V UNITED STATES 450 US 544 (1981); (ii) BRENPALB V CONFEDERATED TRIBES AND BANDS OF THE YAKIMA NATION 492 US 408, 109 S. Ct . 2994, 1090 L. Ed 2d 343, (1989); (iii) SOUTH DAKOTA V BOURLAND 113 S. Ct . 2309, 61 US LW 4632 (1993) . The essence of the findings in the above case is that when land is transferred to non- Indians, "the effect of the transfer is the destruction of pre-existing Indian rights t o regulatory control". Id at 4636. (e) That this state of affairs is recognised by Whatcom County is shown by an opinion given to the County in 1990 by Robert A. Carmichael of the Prosecuting Attorney's Office, viz :- "Based on the recent United States Supreme Court case of Brendale v Confederated Bands of the Ya)cima Nation et al. the characte ristics of the L ummi reservation and the extent of fee ownership thereon, it is the opinion of the Prosecutor's Office that Whatcom County has zoning au thority over non- trust land on the reservation" . This opinion was given before the Bourland decision, which confirmed and reinforced the Brendale findings. 22. CONCLUSIONS 1. From the foregoing, it will be evident that the LIBC is see)cing to assert control over my property and block the development by the denial of sewer service, which is :- •aK RA'i Q7 _ An 1218 the Consent Decree. (b) Racial discrimination in violation of the undertaking given to the Environmental Protection Agency. (c) Racial discrimination in violation of the knovm requirements of the State of Washington in relation to the grant from DOB. -(d) Racial discrimination in violation of my civil rights afid a landovmer and tcucpayer. (e) A challenge to Whatcom County as the sole authority for zoning and planning jurisdiction oves. non- Indian land owned in fee simple, since all the stated objections are zoning and planning issues. (f) In complete disregard of the decisions reached in the Montana, Brendale cuid Bourlemd cases regarding jurisdiction over non-Indiam owned lemd. (g) In con^lete disregard to the findings in Phillips Petroleum cuid Wineuis regarding public access to tidelands. 2 . As the result of the \inlawf ul acts of the LIBC in denying the sewer extension as hereinctbove related, I am uneible to complete my development, despite it having been approved by the State and the County. Couulale Oeoenl of the) Uniled Sum of America) SS: It Hoag Koog ) Sworn by LT COMMANDER P.J. MURRAY- JONES at the <^l^^ day of October 1994 Before me. SANTfAGO BUSA JR. AMERICAN CONSUL A, This document contlits at^Ll-t'Vf -ach IniUaled by Ibe ■fBiai(i): 1219 IN THE US DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON CIVIL ACTION NO. C79 - 682R BETWEEN SOUTH CAPE PROPERTIES LIMITED MOVANT AND ''the LUMMI INDIAN TRIBE PLAINTIFF THE LUMMI INDIAN BUSINESS COUNCIL CROSS -DEFENDANT ***************************************** AFFIDAVIT OF LT COMMANDER P.J. MURRAY- JONES **************************************** 1220 Bernard J. Gamache 7820 Ashue Road Wapato, Washington 98951 (509) 865-56020 17 September 1996 Honorable John McClain Chairman, Committee on Indian Affairs U.S. Senate 838 Hart Senate Office Building Washington D.C. 20510 Page 1 of 4 Honorable Chairman, members of the Committee; My name is Bernard Gamache. I am a parent and farm manager from the Yakama Indian Reservation, Yakima County, Washington State. This has been home for my family for three generations and the location of our successful family farming operation. Thank you for this opportunity to present testimony. You need to be aware of the true situation that exists on the Yakama Indian reservation. I must assume that most of you have been or are parents with children. Do you remember that last "goodbye" that you said to your child? I do. I can picture that moment. It was October 25, 1994, 6:45 AM. Jered and Andy, two of my sons, were ready to leave the house on their way to school that day; My wife and I were also preparing to leave. We were to deliver Father-in-law to Seattle for his heart surgery schedueled early the next morning. Andy was the first to walk out of the house. "Goodbye" he said, "See you when you get back". Then Jered. "Goodbye", "See you in Yakima thursday after your meeting. I will meet you there at the office". I can never forget that moment. My wife and I also left, the house stocked with prepared meals for the kids while we tended to Father-in-law during his operation. We had not traveled but three quarters of a mile when we observed a Yakama Tribal Police vehicle pass a stopped school bus at a high rate of speed, no lights and no siren. We said to each other, "Some day They (the Tribal police) are going to kill Someone!" Reckless driving by the Tribal Police was segn regularly on that road. Fifteen hours later. Someone was killed. That Someone was our son Jered, age eighteen years and eleven days. Andy age 16; beaten to the point of near death by a public servant. 1221 Honorable John McClain 17 September 1996 Page 2 of 4 A Yakama Tribal Police officer, Tiffany Martin, chose to drive her Police vehicle through an intersection against a red light. Her estimated minimum speed at point of impact was 68 MPH . Jered's speed was calculated to be 17 MPH as he crossed the roadway; his vision blocked by a nine passenger van on his left. Why did this happen? Sovereign Immunity is the underlying problem. Would this happen again? Yes! It is only a matter of time. Sovereign Immunity is the underlying problem. Even though the actions of officer Martin were prohibited by the Tribes own Law and Order Code, the collision still occured. Neither the Tribal Police officers nor the Tribe need have concern about the safety of the general public for they are protected by Sovereign Immunity. The message sent by the Tribal Council to their police is that there will be business as usual. There is no need to change our ways. We have the right to police and govern. Jered was not the first to be killed. Someone else is going to die at the hands of the Tribal Police for no other reason than they insist on the right to act as they wish. After all, they are a Sovereign Nation. Please hear my plea for change. I have delivered in person a formal complaint to BIA secretary Bruce Babbitt. That letter was forwarded to the office of Deputy Commissioner Hilda Manual, Indian Affairs. (EXHIBIT A) The Government response to my complaint, a complaint from the public is one of disagreement and disbelief. I have explained the unsafe conditions here on the Yakama Reservation, that public funds should be withdrawn for police and jail operations under the PL93-638 contracts. Sovereign Immunity prevented the necessary leverage to cause change and the removal of contract funds would probably provide incentive for the needed improvement . Deputy Commissioner Manual's response to my letter stated that it is important to realize that Tribes are semi-sovereign entities who govern themselves. This is based on longstanding constitutional, legal and political principles. I understand this to mean that Non-Indians must be legal and political sacrifices. I didn't raise my children to be sacrificed for a political concept. Commissioner Manual goes on to say that " We cannot agree with your assertion that the entire Yakama Tribal Police Department is unacceptable to the community and that the 638 contract with the Tribe should cease. 1222 Honorable John McClain 17 September 1996 Page 3 of 4 The entire Tribal Police department is unacceptable because they have very little knowledge of State Laws (EXHIBIT B) and because they don't recognize the States safety standards nor do they follow their own. There's a problem with interpretation. Public Safety has a much different meaning to the Tribe. A concept of "The end justifys the means", is quite acceptable to the Tribal Police and that is demonstrated frequently when they respond to calls. (EXHIBIT C) This reservation community is home to 27,000 residents; 8,600 are enrolled Yakama's. Sovereign Immunity causes a shift in liability. Local and State governments pick up the load as well as business and the local population. Mutual Aid programs between the County Sheriff or any law enforcement agency won't work because those agencies carry 100% of the liability. Members of this community have petitioned the county sheriff to cease attempts at such a Mutual Aid agreement until the Tribe is answerable to elected State officials. (EXHIBIT D) Sovereign Immunity prevents incentive for change. Sovereign Immunity must be waived. Commissioner Manual states that "We share your concern for fair and equal law enforcement services for any person and if this doesn't occur, then the processes are in place to rectify matters, including citizen complaints to government officials and through civil and criminal forums. Sovereign Immunity blocks civil and criminal forums against the Tribe. The Deputy Commissioner also states that "We cannot and will not terminate our contract with the Yakama Tribe based solely on what you have described". My letter was a citizen complaint to a government official and one of the processes in place to rectify matters, but the commissioner won't act based solely on what I have described. How many bodies does She want to see? People are hesitant to speak out for fear of retaliation from the Tribe. However, they will speak if the need be to accomplish positive results. (EXHIBIT E) My personal discovery while working with this case for Jered reveals a circular pattern of "Pass the Buck". Neither the Tribe nor the BIA will accept responsibility. Telling me that the Tribes are semi-sovereian entities who govern themselves is not goinq to prevent loss of life nor improve public safety in the Yakama Reservation Community. This is why I present this testimony. 1223 Honorable John McClain 17 September 1996 Page 4 of 4 Sovereign Immunity must be waived to protect the people of the Yakama Reservation Community. I am speakina of all peoole. not just Non-Indians. Jered's death and Andy's iniurv was not iust an accident. A quote from the book "A Grace Disauised" by author Gerald L. Sittser sums up the true situation. "These losses are not random, like a freak accident or the occurance of a natural disaster. They are the consequences of the malicious, foolish, or incompetent behavior of peocle who could have or should have behaved differently." Sittser describes the human feeling and frustration of injustice. "Most victims of wrongdoing want justice to prevail after their loss... They know intuitively that there is a moral order in the Universe. The violation of that order demands justice. Without jt the moral order itself is undermined. Simple riahts and wrongs are made irrelevant, and people are given license to do whatever they want. Anything becomes possible and permissible." That, Honorable chairman and members of the commission, is the result of Sovereign Immunity on the Yakama Reservation Community. "Anything becomes possible and permissible." That includes activities that took my son Jered's life and caused Andy's injuries . Sovereign Immunity gives the Yakama Nation Council the license to do what ever they want. Only until leaislation is created to deny permission will the Tribe cease to use Sovereian Immunity as a sheild aqaist wrongdoina and start actina resoonsiblv to the community. To continue with Ouasi-'jovernment oraani zations that are granted Sovereign Immunity, will only cause an increase in struggle and strife. The absence of Sovereign Immunity will not devastate the individual lives of the Yakama Indians. There are many individuals who have rejected the coveraae of Immunity and are prospering. No one, either resident or visitor to the Yakama Indian^^ Reservation, should have to live with the hurt of that "last goodbye". Dissolve Sovereign Immunity. That is mv plea. Bernard J. Gamache Resident, Yakama Indian Reservation IN Rl I'l VRI 11 R 1(V 1224 United States Department of the Interior nURKAlJ OF INDIAN APPAIRS Waihingloii. n C. 20^40 MJ\R - 4 1996 Law Enforcement BCCO 5 04 8 Mr. Bernard J. Gamache | 6371 Fort Road 1 Toppenish, WA 98951 ] Dear Mr. Gamache: I Your letter dated January 29, 1996, to Secretary Babbitt has been < forwarded to this office for response. First, please let me | express our sincere sympathy for the death of your son, Jered. By I all accounts he was an outstanding young man. i In your letter, you outline numerous concerns involving the Yakama | Nation and its self-government. It is important to realize that i tribes are semi -sovereign entities who govern themselves. This is based upon longstanding constitutional, legal and political principles. The administration of law enforcement is a very I important part of any government, and we are confident that the 1 Yakama Tribal Government is capable and willing to face its legal j challenges. , We cannot agree with your assertion that the entire Yakama Tribal , Police Department is unacceptable to the community, and that the ' 638 contract the Federal government has with the tribe should ' cease. If you believe the tribal police are doing wrong, we urge . that appropriate tribal officials be contacted. You may also I report suspected police wrongdoing to the Federal Bureau of Investigation. The FBI is empowered to look into civil rights i violations involving any police department. '. We have checked with Mr. Jeff Sullivan, Deputy County Attorney, Yakima County, and he has informed us that his office has not made a final prosecutive determination on the matter concerning the death of your son. It would be inappropriate for us to discuss the I specifics of the case. I I We share your concern for fair and equal law enforcement services : for any person. If this does not occur, then processes are in place to rectify matters, including citizen complaints to : government officials, and through civil and criminal forums. This , includes the Yakama Tribe. I i 1225 We cannot and will not terminate our contract with the Yakama Tribe based solely on what you have described. By copy of this correspondence, we are requesting that our Portland Area Director share your concerns with tribal officials. Thank you for bringing your concerns to our attention. Sincerely, iiiLL^ (a (jyic^^^^--/ Deputy Commissioner of Indian Affairs 1226 BERNARD J. GAMACHE 6371 Fort Road Toppenish, Wa , 98951 29 January 1996 509/ 865-6422 FAX 509/ 865-6423 Hilda A. Manuel Deputy Commissioner Bureau of Indian Affairs Department of the Interior 1849 "C" Street Washington, D.C. 20240 Re: Grass roots complaint from resident of Yakama Indian Reservation TO: Hilda A. Manuel Dear Commissioner, I am compelled to write this coirmuni cation to you concerning the inappropriate activities of the Yakama Indian Nation, particularly the performance of their Public Safety Division. My name is BERNARD J. GAMACHE. I live and work within the boundaries of the Yakama Indian Reservation, located in the State of Washington, Yakima county. Along with my brothers, we operate a family farm that first started in 1913. This has been our way of life for three generations now with the fourth generation nearing completion of their college requirements in Agri- business . We farm over 1000 acres of land on the reservation, part of which we own and the rest we lease through the Bureau of Indian Affairs and the Yakama Tribe. The crops that we raise are Hops, Apples and Grapes all of which are labor intensive. We are fortunate to be farming in this area and we are pleased to be successful enough to pay taxes in support of this country of the United States. There are however, some serious problems here on the reservation, problems of flesh and blood, life and death. Problems brought on by distant regulations governing the activities of Indian Non- Indian interaction, which is the subject of this letter. My wife and I have three children, Darren age 21, Jered age 19, and Andrew age 17. Two are living, one is dead. 1227 Hilda A. Manuel Page 2 29 Jan 1996 On October 25, 1994 10:00 PM, Jered was killed and Andy received near fatal injuries while returning home from a school function. A Yakama Tribal Police officer ran a red light at the intersection of US Highway 97 and South Wapato Road and crashed her car into my sons pickup. (EXHIBIT "A1-A7") An investigation concluded that Jereds speed was 17 MPH as he crossed the highway and the speed of Tiffany Martin, the tribal police officer, was a minimum of 68 MPH. The remaining details of the incident are irrelevant at this point of discussion with the main focus on the double set of standards being allowed by "Self Determination" and the "Soverignty" Issue. There are laws in the State of Washington to prevent such senseless tragedies, laws that were paid for by the blood of others before us. The Yakama's tribal government and their tribal police choose not to abide by those laws nor do they choose to follow their own Law and Order Code. (EXHIBIT "B") Section 50.03.13: pgs 159 & 160 clearly outline the operational proceedure for an emergency vehicle yet the record shows that those rules were blatantly disregarded. It is also apparent that with little to no legal recourse between the Tribe and Non-Indian citizens and the jurisdictional differences between Indian and Non-Indian law enforcement, the pattern of insensitivety toward Public Safety will continue. There is absolutely no incentive for progressive change by the Yakama Indian Nation. They simply wait for the problem to go away. Incidently, the location of this mentioned tragedy occured within a special Safety Emphasis area established in 1993 and named "The US Highway 97 Corridor Safety Zone". My rights, the rights of all the Non-Indians living on the reservation under the Fifth and Fourteenth Ammendment of the US Constitution have been neutralized. The 1990 Bureau of the Census counts the population on the Yakama Indian Reservation to be 27,522 and 146 on Yakama Trust lands. Approximately 8600 of those are enrolled Yakamas . (EXHIBIT "C") Activities considered to be a Public Danger cannot be addressed when Soverignty is frequently used as a legal defense shield. (EXHIBIT "D1-D5") This is more than a jurisdictional problem, it is a social problem. Since the opening of our business office in 1990, on the Fort Road, six miles west of Toppenish, we have observed many instances of non-professional activities and total disregard for Public Safety just from that vantage point. There are other citizens here on the reservation who will bear witness to these activities and we have all felt the same about it. That 1228 Hilda A Manuel Page 3 29 Jan 1996 "Something needs to be done; those Tribal Police are out of control; they are going to kill someone some day." My wife and I repeated the same comment, "Someone is going to get killed" when we saw a tribal police car carry out a high speed pass around a stopped school bus. I remember that day well. It was October 25, 1994 7:30 AM. Fifteen hours later that someone, our son Jered was dead; Andrew nearly killed. The Yakama Indian Nation and their Police had defiled Public Safety. They are exacting their retardation policies on the reservation population and have become a public danger. My family and this community have paid a tremendous price for this deficiency in Federal and Indian policy. I am committed to find change. This experiment of Self Determination should not be carried out at the expense of hiunan life. Our building of a family legacy has been depredated. My three sons are the investment that my wife and I are preparing to return to society. Two to replace us and one to increase our numbers. That act of October 25, 1994 has deprived us and this community of our investment property, investment opportunity and personal property. The Treaty of June 9 1855 between the United States and the confederate tribes of the Yakama Indian Nation has provided a proceedure for grievances under Article VIII which states... that the confederate tribes and bands of Indians "promise to be friendly with all citizens thereof and pledge themselves to committ no depredations upon the property of such citizens. And should any one or more of them violate this pledge, and the fact be satisfactorily proved before the Agent, the property taken shall be returned, or in default thereof, or if injured or destroyed, compensation may be made by the government out of the annuities . " I am prepared to prove before the Agent those depredations against my family property, the economic and community impact of which is currently being calculated. Congress has obligated the Agent through the Treaty of 1855 to intervene by making the tribe financially accountable for some limited activities. In addition, it is obvious that the Yakama Indian Nation Tribal Police have operated in violation of the PL 93-638 contract which allows for Police & Jail operations. (EXHIBIT "E") I can say that these activities have resulted in the loss of life. 1229 ' Hilda A. Manuel Page 4 29 Jan 1996 Simply and fundamentally they are not acceptable in this community for neither Indian nor non-Indian. Even though PL 93-638 is considered a mature contract, I urgently and with emergency request that the funding be deleted from the Yakama Tribe and channeled to the Yakima County Sheriff to provide law enforcement services on the reservation for all 27,668 residents and visitors too. I also would like to state that my interest in public safety on this reservation is driven by all that has happened and could possibly happen if conditions are allowed to continue. I am willing to assist with the task of correcting the double standards of law that currently exist and am serious about wanting to improve the quality of life for all who reside here. Please consider the seriousness of this issue and the obligation of the Yakama Indian Nation as partners in a realistic modern society by allowing this avenue of Article VIII for redress of my grievances . Sincerely , ^ BERNARD J. GAMACHE Father of: JERED M. GAMACHE (Deceased) Father of: ANDREW X. GAMACHE cc: Bruce Babbit, Secretary of the Interior Hilda A. Manuel, Bureau of Indian Affairs 1230 z o < Z z <^ a =^ <^ < r^ W — Q Z < CO Q Z < a 5 f- Q w H UJ Q UJ Z o u c >- f- < o a < CQ 2 o u o z 5 z < c/0 *v^ r^ r\ J o 'j^ CJ c f— CJ UJ _1 1 ■ 1 u. < O UJ z UJ UJ Q O o U w W /^ z - o c 5ps Z O =) < 3 C D □ X _ aj UJ ± a; ■ UJ O Q _1 ci rj^s - < — -J o ■^ ^ H- 5 O z ^asji ^ > a! t- 3 c u !/) -1 -c u a: -1 > Fi5 e: LlJ Ix (yi > < 1 Z ■^ ^f- r— u- < s: 2 ^S ■ ■ < •J 5 ei ^^ i- O > o c r™ < a: 5 O < ^ N ■—. — < VI a: — z Q < _1 < 23 _i oi ^ t^ :> r— ^^p^_ ^ ;j ■ ■ ■ V5 z a: o tu H U < 1^ -1 u- LJ O Ci o< < ~ Q O Q !^ yj a S ~ z g I- < C Z g > > u u. < O _j ca =3 Z g > u g > u < g a 3 z g a (A UJ O U (/I z g > in u U o e< Reservaoon 100 Lower Elwtia Reservaoon 137 Low*- ciwh« Tnjsi Lands „ Luf ^servaton 3.147 MaKi servBhon „ 1.214 ' 'lesnooi Resevation 3.841 leshoot Tnjsi Larxls _ POfnnJkTION ON rNDtAN RESERVATX)NS 1990 Census* Ntsquafty Reservation 578 Uooks»ck Reservation 19 Nooksack Trust Lands 537 Ozena Reservation 12 Port Gamble Reservation .:552 Port Macftson Reservatnn 4.834 Puyalup Reservaoon 32.392 Pi/yalup Trust Lands 14 OuOeute Reservation 381 Quinautt Reservation 1,216 SatA SuiatHe Fteservation 124 ShoaNtrater Reservation 131 1990 Census' Skokomish Roservabon 614 Spokane Reservation 1.502 Squaxin Island Reservaoon „ Squaxin Island Trust Lands 157 Stillaguamrsh Reservation 113 Swinomrsh Reservation 2.282 Tulalip Reservation 7.103 Upper Skagit Roservabon 180 Yakjma Reservat>on „ 27,522 Yakima Tnjsl Lands 146 *090 Ctnsul DOOuiSDOn counts mt% subtva D poiiM* Sourcn 6u>»au or 9>« C*nsus. US 0«Mrvn*ni ol Commam coTfcaon toi untMroouni or ovwfCDuni. EXHIBIT C 1234 riigcr) Wi-.liK-s,l.iy. Niivinil.ir 2 I. I'WI Tin- WolJ llmvl jVlentorial Wapato High School mourns tragic losses Dy Jnniic M:ickc, Andrea Rcilinan and Manili Tiaiib < )vcr llic p;i';l few inoiillis. sliidciils and li-ailiccs al Wapald High ScIkkiI liavc snilcrcd ftoin Iwo tragic losses. In Uic ciinrsc of one inontli, Iwo WA-III se- niors. JcrcJ M. Gainaclic and Incs I.ora, Jniiior. have pjisscd away. Dodi Lora and Gainaclic were very involved al WapaloMlgli School. I.ora's main emphasis al WA-III was wiUi Uic Indian ("lub. lie was vice president his .sophomore year and Uxik an active pari in Ihc chib all fonr yeiirs. I Ic traveled to San l>icgo, Calironiia, to perform as an In- dian Club Dancer, lie liel|x;d organize Native American Day at WIIS, held on Sept M). "I his was his last year in Indian Club and he wanted it to be the best." com- mented .senior Jamie Johnson. Indian ("liib president. "lie wanted lo do lols of things." Accoriling lo John.son. I.ora tried to get jKople lo woik with him. He will defi- nitcly be missed bccan.sc he was always connlcd on lo get things done. "When- ever they needed to get .somelliing done they woidd call him." Johnson slated. " lliey knew he would gel it done." (iamache was exiiemely active in llic 1 iiie Alts Deparlincnl al WA-III. He ilayed tenor saxophone in the concert, lues "Junior" Imio pep and nuucliing bands and was also in the award- wiiuiingJnz/ Band. I le helped to design llii."; year's Uomccoiiiing half- tiine .show. "Besides his exceptional musician- ship," Pilgrim said, "Jcrcd al.so had an extremely giMxJ .sense ofhuinor, a fast wit and tlic ability lo make people around him comrorlabic and happy. He was willing lo lake creative risks. Because of llial he really did live his life lo Uie fullest.' Gamache was involved in tlie Drama DcpaiUnenl and was a 'Iliree Star Thes- pian. I le became head of ihc Technical Crew his sophomore year and ran lights on almo.si all ,sclKK)l-reIaled productions. Although he was usually involved in back stage production, he stepped on stage his .sophomore year as Master of (xremo- nies with Kevin I'ulker al Uie Variety Show. I lis most memorable acting role was that of Orin Scrivello, the demented dcniisi, in la.sl year's musical, "Mttle Shop of Horrors." "Without Jered, a lot of llie produc- tirms would not Irave been possible," Drama Advi.sor Dana I.cinicux staled. Gamache was also known as "Com- mercial King" during his sophomore and junior years. G:unaclie and many others designed commercials for major sch(M)I everUs such as liie De.in l"eed. the Senior Cla,ss Taco Heed, and the Camied Ttwd Drive. 'Hiey used humor and crazy ac- lions to promote what they adverli.sed, and the commercials became a sort of tr;iditionat WA-HI. Gamache lettered in golf two years. I Ic al.so participated in I.ctteniiens Club, National I lonor Society, Drama Club and Science Club. Ilolh (lamaclie and I.ora were dedi- cated to activities outside of school, (iamache was very involved in nuisic of all kinds, lie w:ix a part of the Yakima Valley (,'ominunity College Jazz Band, where he played tenor saxophone. He also traveled lo Port rownscnd for a sununer jazz session. "Jered was in every group I've ever conducted from concert band, jazz band and the pit orchestra for "Little Shop of Honors" to playing in the YVC(' j.r/z Jered M. Gamache band." Pilgrim staled. "I .saw him a lot and I really nu.ss him and all he added." I.ora was very involved in the AllTribes Christian Church and many Native Ameri- can youth programs. 1 le w:ls ehaii man of the Yakama Nation Youth Council. Piis led him lo attend a conference in Mimie- soia and Uike part in Uic Listen Togclhcr Program. I.om was al.so involved in \ Iiiily, a drug and alcohol awareness pro- gram for Native American youth thai encouraged Uiem to say no to drugs .-iiid alcohol. He was chairman of Ihe Ucsi- dential Youth Coniicil, which tried lo involve youth who lived in llie Indian Project I lousing in positive activities and encouraged them lo say "no" to drugs. Loia al.so organized a food drive for nianksgiving and Christmas. Lora told Johnson his reason for doing lliis was iK-cau.se it fell good lo do something for other people. I.ora was deserilied as a "comivtitive leader." I le competed veiy haul lor le.id- eiship positions. Iml he had no liaul feel- iiigs if he didn'l gel lliein. "I thiinghl he would leave his mark, tli.it he would leave .something behind." acknowledged John.son. "but I will always rememlier his smile." Gamache and I.ora added niiicli lo lite at WA-III with their per.sonal (jiialities and their involvemenl. Both will he mi.s.sed greatly by all who knew Ihein EXHIBIT A7 .Z' 1235 PAGE 159 SECTION 5Q.Q3.11: persons working on highway right-of-way - EXCEPTIONS Unless specifically made applicable, the provisions of the chapter except those contained in Section 50.09.01 through Section 50.09.13 shall not apply to persons, motor vehicles and other equipment while engaged in work within the right-of-way of any highway or roadway but shall apply to such persons and vehicles when traveling to or from such work. SECTION 50.03.13: AUTHORIZED EMERGENCY VEHICLES (1) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated . (2\ The driver of an authorized emergency vehicle may: ■^ (a) Park or stand, irrespective of the provisions of this /- . chapter; {hj Proceed past a red or stop signal or stop sign, but only ^ after slowing down as may be necessary for safe operation: '(c) Exceed the maximum speed limits so long as he does not endanger life or property; (d) Disregard regulations governing direction of movement or turning in specified directions. (3) The exemptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of visual signals except that: (a) An authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle; (b) Authorized emergency vehicles shall use audible signals when necessary to warn others of the emergency nature of the situation but in no case shall they be required to use audible signals while parked or standing. EXHIBIT B 1236 PAGE 160 / (4) ^Tne foregoing provisions shall not relieve the driver of an ; authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless I disregard for the safety of others. Chapter 50.05 TRAFFIC SIGNS. SIGNALS AND MARKINGS i SECTION 50.05.01: OBEDIENCE TO AND REQUIRED TRAFFIC-CONTROL DEVICES I (1) The driver of any vehicle and every pedestrian shall obey the instructions of any official traffic-control device applicable , thereto placed in accordance with the provisions of this Title, I unless otherwise directed by a traffic or police officer, subject ] to the exception granted the driver of an authorized emergency vehicle in this chapter. (2) No provisions of this chapter for which signs are required shall be enforced against an alleged violator if at the time and place of the alleged violation an offical sign is not in proper positior ^ and sufficiently legible or visible to be seen by an ordinarily observant person. Whenever a particular section does not state ^ that signs are required, such section shall be effective even though no signs are erected or in place. (3) Whenever official traffic-control devices are placed in position ^ approximately conforming to the requirements of this Title, j such devices shall be presumed to have been so placed by the | official act or direction of lawful authority, unless the I contrary shall be established by competent evidence. (4) Any official traf f ic-c~ontrol device placed pursuant to the provisions of this Title and purporting to conform to the lawful requirement pertaining to such devices shall be presumed to comply with the requirement of this Title, unless the contrary shall be established by competent evidence. SECTION 50.05.03: traffic-control signal legend ' Whenever traffic is controlled by traffic-control signals exhibiting different colored lights, or colored lighted arrows, successively one i 1237 )N nCFLT ■KFCIt United States Department of the Interior BUREAU OF INDIAN AFFAIRS YAKIMA Agency p. O. Box 632 TOPPENISH. WA 98948- . October 28, 1988 Mr. Lao Heck, Secretary Geaeral Council VBalt]f Drdre Toppeni^, li 98948 Deir Mr." Aleck: " ■• " " _. In reaponae to 7oar qaestloos October 21, 1988 coacemlxig emploT-ee respooalbilitlea aad the dlatributloa of fuoda la the P.L. 93-638 Contract for Police and Jail Operatlooa the following la provided; All P^L. 93-638 Contract evployeea are tribal eaplojeea. All contract eaplojeea are aubject to the tribe 'a pollclea and procedurea (■eaalnc they are tmder the tribe* a peraonnel ■annal). There la one exception to thla (eneral rule and that la that police peraonnel are afforded the aaae rljhta and protectiona aa BIA police peraonnel when adrerse actions are InrolTed. There are-both tribal and BIA- funds in 'tfaenpolice and Jail prograa. The Chief of Police position is one that is ftrnded vith contract fnnda. A copf of the position description for the Chief of Police can be obtained froa Tribal Personnel. I hope I hare anavered all of yoor questions. If jou still have need of creator detailed infonation I vould suffest you contact the Tribal Council Chainun. (Vhen ve contract, ve contract vith the Tribal Council and refer specific requests to the council.) ■ '. - ^ . ' ' . ' . •, " " Sincerely, AdainistratlTe Officer EXHIBIT E 1238 TO: Honerable John McCain 60918.3 Chairman Indian Affairs Committee FROM: Rene E. Gamache AMBROSE GAMACHE FARMS, INC. 6970 Fort Road Wapato, WA 98951 DATE: September 18, 1996 RE: Anecdotal Testimony Pertaining to Yakama Indian Nation Tribal Police I work for a family farm located within the boundaries of the Yakama Indian Nation. This testimony pertains to conduct by a Yakama Nation Police Officer, who I identify as "Sam". Our company employs Jose Garcia, Jose is our lead irrigator. He is dependable; he is reliable. Because of our support, he acquired a current, valid Washington State Driver's Liscense. His new, current, valid Washington State Driver's Liscense and the Yakama Nation Police Officer - "Sam" - cause this testimony. One, clear, summer morning we instructed Jose on his daily irrigation assignments. Because of the amount of work, he had Juan to assist. They entered one of our pickup trucks; drove to Fort Road (SR222); stopped; entered traffic in front of Sam. I was enroute to other duties; entered traffic behind Sam. We drove to a nearby traffic intersection. There, Jose signalled a left turn; paused for oncoming traffic; turned left. Then, Sam did a strange thing - he also turned left. After a short distance, Sam used his bar lights to signal Jose to stop. Because my men had done nothing wrong; because the vehicle driven by Jose had properly operating stop lights and turn signals; because our work schedule could be affected by this stop; I followed. I p>assed Sam and Jose. And, stopped Sam - in English - asked Jose questions. Jose, via verbal responses and hand gestures indicated; "I don't know. I dont know. I dont know." Because Jose does not write or speak English, his words were true. Sam eventually responded to my inquiry as to why he stopped my personnel and a vehicle I owned. He did not observe a valid or any license plate on the back of the truck. 1239 I pointed to a "Q sticker" mounted on the fiont windshield of the stopped vehicle. Sam did not know the "Q sticker" grants form exempt status to vehicles operating within a limited number of miles of their garaged location. My concerns about Sam's conduct: ► police officer's "should" know about the laws they are enforcing ► police officer's "should not" be surprised or frustrated when encountering non-English speaking personnel in this region ► tribal jurisdiction does not extend to non-tribal personnel ► tribal jurisdiction does not extend to non-tribal vehicles What was Sam doing? It wasn't his duties. Sincerely, Kji,^^' '• y Rene E. Gamache 1240 Kevin Riel Harrah WA . 17 September 1996 Honorable John McClain, Chairman Committee on Indian Affairs U.S. Senate 838 Hart Senate Office Building Washington D.C. 20510 Page 1 of 2 RE: Tribal Police Activities TO: Honorable John McClain Dear Sir, On Friday 2 August 1996 at around 7:00 PM my partner and I were nearly envolved in an accident that would be classified as a near miss . We are members of a local volunteer fire department and we were finishing up work at an accident scene just North of the town of Harrah at the intersection of North Harrah road and Progressive road. An Indian motorist had failed to stop at the stop sign and came to rest in a ditch. The Yakama Tribal Police were present at the scene. We left the scene in the emergency vehicle that we responded in and returned to the Harrah station for more supplies. An accident had been reported over the monitor and we anticipated that we would be responding. We were dispatched to that scene at the intersection of Fort road and Shaker Church road. Fireman Jim Morford was driving the Rescue truck and I was a passenger. Approximately three quarters of a mile South of town we encountered a pedestrian walking on the narrow shoulder of the road. We were traveling 55 to 60 MPH in response to the call and the driver partially moved the fire truck into the North bound lane to avoid hitting the pedestrian. Our lights and siren were active. Suddenly a Yakama Indian Nation Police vehicle passed from behind. He was traveling so fast that we did not notice his approach nor could we hear his siren over the top of our own. The Tribal vehicle had to use the North bound shoulder for passage to avoid a collition with our Rescue truck and his vehicle caused rocks and dust to be thrown onto the roadway. It appeared that he was having difficulty maintaining control of his vehicle . 1241 Honorable John McCain 17 September 1996 Page 2 of 2 At the accident scene, the incident was reported to the training officer from the County. He and the both of us went to talk to the Tribal officer. The Tribal officer agreed that "it was a close call", "stated that he didn't see the pedestrian untill it was to late", and "that he gave it more gas to get around quicker". He did not deny that he was traveling in excess of 80 MPH . When we asked him if he felt that his actions were safe, he stated "that the State Patrol pursues at 80 all the time". When reminded that he wasn't in pursuit, he stated that "he was first aid and CPR certified and that when he responds, he steps it up, that he passes ambulances all the time, he has been of the force for 21 years, puts his life on the line every day and has taken a bullet." This officers role at the scene was traffic control. The opinion of the training officer from the county was that trafic control was necessary, but did not need an emergency response to the scene, just for traffic control. The Tribal Police officer's attitude was that he would continue to operate as usual . Kevin Riel Volunteer Captain/EMT-0 1242 Bernard J. Gamache 7820 Ashue Road Wapato, Washington 98951 Sheriff Doug Blair Yakima County Sheriff's Dept . 128 North 2nd Street Yakima, Washington 98901-2631 18 Feb. 1995 Sheriff Blair, My name is Bernard Gamache, a farm operator from Wapato in Yakima county. I live and work within the boundaries of the Yakima Indian reservation with my family. And I provide jobs to others encouraging them to travel to and from my place of business . I am writing to you to express my concerns about your plan to deputize the Yakama Indian Nation tribal police to assist the Yakima County Sheriff Department with law enforcement on the reservation. This communication is in opposition to your proposal and I submit this letter for the public record. In the United States, you are the chief law enforcement officer of a county charged in general with the keeping of the peace and the execution of court orders. The people who live within the boundaries of the Yakama Indian Reservation deserve the same quality of peace keeping and application of law as all other citizens of the County and State. Your proposal would severely compromise your responsibilities to us the residents of this county. The laws between Indians and non-Indians is biased and unfair. There is no legal recourse when the Tribal Police cause damage, injury or death due to their misconduct. A life is discarded like some bit of garbage upon the ground. The county sheriff should not hold the county responsible for the actions of personnel who are not accountable to the laws of the State of Washington. It would be extremely inappropriate to enlist personnel to enforce our laws who are not subject to those same laws. A "do as I say not as I do situation". An agreement or compact is always one sided because of the Soverignty issue. A plan to deputize the Tribal Police would leave the reservation area without any real law enforcement. I believe that existing sheriff deputys would be reassigned to off reservation arenas 1243 sheriff Doug Blair Page 2 18 February 1995 leaving us, the non-Indians, at the mercy of this inept organization of irranitations. I predict an increase of harassment of non-Indians by Tribal Police using not only their soverignty shield but also hiding behind the sheriff badge. How am I to distinguish between the trained and the untrained Tribal Police. I believe it to be best to not interact for fear of my personal safety and rights violations without legal recourse. It is best that tribal members who are truely dedicated to law enforcement become Yakima County sheriff deputies, subject to the laws of the State and then be enlisted to help serve the purpose of the County Sheriff Department. Only when the Tribal Police qualify as sheriff deputies, only when they wear the same uniforms as sheriff deputies, only when they are subject to the same laws as all other state citizens will they be able to provide adequate law enforcement to those on the reservation. The county needs this, this community demands this. Anything less jeopardizes the peace and safety of the citizens of the state who reside on this reservation. Community morale is at an all time low. The Tribal Police have earned very little respect and a great deal of mistrust. Their past and present performance record clearly demonstrates this. To increase the interaction between Tribal Police and non-Indians would be a terrible mistake; the discrepancies must be taken care of first. I fear for the safety of my remaining family, my neighbors and my work crews, not from crime but from the Yakama Tribal Police. To use the Tribal Police as a cure is worse than the crime. There is no doubt that the Yakama Tribal Police have made their contribution to the loss of life of innocent citizens within this county . I commend you Sheriff Blair, for trying to find a solution for us here on the reservation, but there can only be an increase of frustration and grief with your plan. A better solution would be a funding plan similar to the special levy adopted by the city of Toppenish designed to provide for additional trained law enforcement officers. Then, we the citizens of the county, would be able to dictate by vote the level of law enforcement we want in addition to that allocated to us by the County Commissioners. Those communities located within the boundaries of the Yakama Indian Reservation deserve better for their part in contributing to the local. State and Federal economies. Sijicerely, ^ Gamache 1244 Sheri IT Blair, We here the \mdersigncrs fully support the letter written to you by Ikmard J. Gaiiiache regarding the deputizing of Yakinia Tribal Police. / <<'T»~''' - -7/^ 1245 Shentf Blair, We here the undersigners fully support the letter written to you by Bernard J. Gamache regarding the deputizing of Yakima Tribal Police. 1246 BERNARD J. GAMACHE 6371 Fort Road Toppenish, Wa , 98951 26 February 1996 509/ 865-6422 FAX 590/ 865-6423 Harry A. DeLashmutt BUREAU OF INDIAN AFFAIRS Law Enforcement Services 1849 C ST. NW. MS-1342 Washington D.C. 20240 202/ 208-5786 Fax 202/ 208-6170 Page 1 of 2 Re: Public safety violations; PL 93-638 infractions by Yakama Indian Nation Tribal Council, Law and Order Committee, Public Safety Division and the YIN Tribal Police TO: Harry De LaShmutt Dear Sir, As per your request, I am submitting a list of individuals who have experienced and/or witnessed activities enacted by the Yakama Indian Nation Tribal Police that are contrary to public safety and the PL 93-638 contract. There is however another group of individuals who are concerned about retaliation from the Tribe and are not yet willing to comment. I will be the first to claim standing by beginning this list with my name. The Tribe's arrogant attitude has caused the death of my son Jered and near fatal injuries to my second son Andrew. That day has initiated the vigilance that has led to the determination that the Yakama Indian Nation Tribal Police cannot be allowed to continue operations as such or more death and suffering will surely follow. I continue to urge that the Bureau Of Indian Affairs act with emergency in responding to my plea. Delete the funding that provides for police and jail operations of the Yakama Indian Nation through the PL 93-638 contract. i 1247 Harry DeLashmutt Bureau of Indian Affairs Page 2 of 2 26 Feb. 1996 Bernard J. Gamache Norm Cleveringa Dan Clements Doug Blair Paul Gamache Rene Gamache Harvey Waggener Mitch Underwood DVM Jody Hert Steve Hert Aric Gamache Larry Nelson 509 865-6422 509 829-5636 509 865-3763 509 574-2600 509 865-2962 509 865-2964 509 877-2311 509 865-3435 509 848-2622 509 848-2622 509 332-1934 509 848-2814 Agriculturalist Field Man/scout Equipment Salesman Yakima County Sheriff Agricultural ist Mechanical Engineer Machine Fabricator Veterinarian Food Service Fire Department Volunteer Student Zone Chief, Gamache Fire Department Thank you for your consideration in acting on my complaint. Awaiting to hear from you about your investigation of this matter . Sincerely, Bernard J. Gamache 1248 ISBN 0-16-054225-1 9 780160 542251 90000 I >.