Jaime Pinkham: Intergovernmental and Intertribal Relations: Walking the Sovereignty Walk
Pinkham, Jaime. "Intergovernmental and Intertribal Relations: Walking the Sovereignty Walk." Emerging Leaders seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 21, 2012. Presentation.
"So I get the opportunity to talk about 'Intergovernmental Relations: Walking the Sovereignty Walk.' And believe me, a lot of my comments will come from my personal experiences at Nez Perce. And it's good to see Joanna Merrick, one of our tribal leaders from Nez Perce, who was able to join us for this conference here. Because if you think about the political landscape of a place like Idaho, it's probably a lot like what the people at Yankton Sioux experience in South Dakota -- a very conservative community, a very conservative government, which trickles down into how the local governments kind of operate and feel and look at Indian policy. So it really was out of necessity that we found ourselves working on these intergovernmental agreements.
I think those of you from the Pacific Northwest probably know of a guy by the name of Billy Frank, Jr. from the Nisqually Tribe. And one of the quotes that I always steal from Billy, one of my favorite quotes, is when he said, "˜We need to be peacemakers when we can and warriors when we must.' Those of you who ran for tribal council, I bet you've heard the standard campaign is, "˜I will fight for sovereignty, I will fight for treaty rights.' It doesn't always have to be a fight, does it? Well, I've never heard anybody who said, "˜I am going to fight against sovereignty and treaty rights,' much less somebody who got elected on that platform. So we ask ourselves, in this nation-building tool kit -- all these things that we've been sharing with [you] -- how does intergovernmental relations become a part of the tool kit?
So let's look at what's been going on over the past three decades, since the 1980s. We've seen this thickening of relationships between tribes and with states. And some of this is driven by the fact that we see governors being elected and taking actions to formalize new relations with tribes within their states. Some of it will come as an executive order by the governor. Just in 2010, the Governor of South Dakota, newly elected Governor [Dennis] Daugaard, had created a secretarial position -- Secretary of Indian Affairs -- and he selected someone from the Cheyenne River Sioux, an attorney by the name of J.R. LaPlante, to head up this first department within the State of South Dakota. And what's interesting, before this the tribal relations in South Dakota was under the tourism department in the state. So it shows a major shift in thinking. And we also see state legislatures responding, too. For example, in Idaho, the State Legislature had passed legislation that created an Indian Affairs Commission. And on this commission you have a representative from the House, from the Senate, from the Governor's office as well as a representative from each of the five tribes in Idaho. The expectation is that maybe there's another avenue to resolving these conflicts and trying to head off issues before it gets into the legislature because believe me, you don't always want state legislatures working on Indian policy.
There are other areas, too, that we see. If you looked at the National Conference of State Legislatures -- it's a coalition of the 50 state legislatures in the U.S. -- and on their website, if you look under the Indian Country headings, 42 of the 50 states now have some kind of a formal relationship that they're developing with tribes, whether it's through the actions of the governor or the legislature. So we see this emergence. But the other thing we see too, which I find extremely fascinating, is the number of Native Americans running and getting elected to state legislatures. Now you see this in South Dakota, certainly up in Alaska, Montana, we're seeing it in Idaho and Washington. One of my favorite stories is Richard Marcellais, Chairman of Turtle Mountain Chippewa. Not only was he chairman of the tribe, but he was also the state senator from North Dakota from that particular district. And back in 2010, when the chairman was running for re-election, he gave me one of his campaign cards. And you look at it and here he is with this war bonnet on and this picture that says, "˜Integrity, Honesty, Hard-working. Re-elect Richard Marcellais, Chairman, Turtle Mountain Chippewa.' Turn the card over. Here he is in his business suit, "˜Honesty, Integrity, Hard-working. Re-elect Richard Marcellais, State Senator.' I thought it was fascinating. How many citizens have this ability to exercise leadership in multiple layers of government? And tribes have that opportunity, and we see many tribal people exercising it.
Well, we also see the growth in intergovernmental relationships between tribes and states. For example, the Indian Gaming Regulatory Act requires that we negotiate compacts with states, which in turn are intergovernmental relations. And many times we see these compacts also leading to other relationships and agreements with local governments over gaming and its impact on land use and public safety and revenue sharing and other areas as well. So we see this emergence going on. And the growth in intertribal partnerships have long been occurring. I was talking with Jefferson earlier, another Columbia River Treaty tribe at Warm Springs. We've had this ancient relationship where we're connected by river and our relationship to salmon, which that grew into a connection by blood. And so that strategic alliances with tribes that have lasted over maybe the axis of a common resource, a common language or maybe we had common enemies. So we always had these nation-to-nation relationships between tribes and that's nothing new for us.
The growing interest by governments in strengthening agreements, avoiding the pitfalls, and simplifying processes. Gosh, believe me, they just don't print enough money to solve all our problems these days. So what are some other avenues that we can have to provide the services that our tribal citizens need, whether it's through health care or law enforcement, jurisdictional issues? And I'll share some examples of where this is coming true. And the drivers for this growth are many.
We see this devolution of power. The federal government -- the granddaddy of governments, so to speak -- wanted to transfer more responsibilities and authorities down to other governments whether it's tribes, the states. And many times they transfer those responsibilities, but they don't transfer the resources to implement them. But we see this devolution going on. In some respects the Indian Self Determination Act, which provided the tribes with the opportunity to manage those BIA [Bureau of Indian Affairs] responsibilities, we see cases where tribes and even the states are asking for a greater say or the ability to manage natural resources like federal lands or the bison range in Montana when it comes to the Flathead Tribe [Confederated Salish and Kootenai Tribes], or Nez Perce who wanted to take on wolf recovery from the federal government for the entire state of Idaho. So you see these responsibilities being shifted from the national level on down to the tribal level and state level. And you even see states going through this too, transferring certain authorities down to counties and cities. Also the increased assertion of sovereignty by Native nations; the more that we get out there and exercise our sovereignty wisely, we see this expansion, especially where you have life-sustaining resources like water and fish and wildlife that don't know political boundaries. And so our sovereignty will be extending outside of our reservation boundaries to provide for law enforcement, management and care of natural resources. So we see ourselves expanding outside of our boundaries.
In some cases, it's the challenges themselves that drive the need for these intergovernmental relationships. In Nez Perce, we're a checkerboard reservation. You've got three counties, multiple cities. You've got these jurisdictional intersections and as cars are passing by, whose authority takes precedence? What parcel of land are you standing on at a particular time? And are you Indian, non-Indian, or are you a member of another tribe? And so you have all these complexities of this jurisdictional web of issues that you try to sort out. We also see it in social services, welfare reform, where Congress had kind of created this inequity granting more authorities to the states than they did to the tribes. So in some cases, we're forced to work with states on social service programs. And of course the limited capacities; and it's not just limited capacities of money, it's also what kind of talent and resources, whether it's technical resources or intellectual resources or information that we need to solve our problems. But as well as work with our neighbors as they face the same kind of concerns and challenges and opportunities that we do. And always there's the potential value added by cooperation. Thinking about Billy Frank's comment about are you going to be a peacemaker or a warrior, you need the wisdom and the strength to do the due diligence to decide which is going to work in your community. Sometimes it is the litigation -- you have no choice but to litigate your concerns.
One example I'd like to use that I know Joanna is familiar with, a very difficult decision at Nez Perce and it involved the adjudication of water rights in the Snake River Basin. In the tribe, we didn't want into the fight, but we had to get into the fight when the state had filed water claims against the federal government. Well, we weren't going to stand by and let the feds represent our interests. Even during the negotiation, hell, it was hard to tell what side the feds were on. Were they with us or against us? And so we knew that the only chance for us to make sure that we came out protecting our interest was to engage in the litigation. But the tribe took two tracks. They were parallel tracks that were simultaneous. One involved the litigation and one involved a mediated negotiated solution. On the litigation side, the primary basis for our claims was around in-stream flows. We're salmon people; we love our sushi. And so being [that] the Clearwater and the Salmon and the Snake rivers coming through our country, the salmon are important to our society. And so we wanted to insure the in-stream flows for the adults to return and for the young smolts to go back out to the ocean. But it was also the in-stream flows for our consumptive uses, for domestic-industrial uses. Also the litigation was over the use of springs. We used to herd our cattle all around that region. And in our treaty, we retained the right to access private property to water our cattle and horses. So that's where litigation was taking us.
Same thing, though, on a negotiation was about the in-stream flows. But when we got to negotiation we found out there were other things that we could put onto the table. We were allotted and all the surplus land that was not either reserved for tribal allotments or for the tribe in common and not homesteaded was given to the Bureau of Land Management. We had federal BLM lands within an Indian reservation and dammit, we wanted those lands back. So we put those on a negotiating table. The next thing we said, 'There are two federal fish hatcheries on this reservation. Why are the feds running them and why aren't we running them?' We said, "˜We want those fish hatcheries,' under negotiations. Well, the feds said, "˜Well, we'll give you this one. This other one has this huge research facility, it's state of the art and we don't want to give it up.' So we negotiated and we said, "˜Okay, let us co-manage it with you.' So we started talking about even more than that. And we started talking about funding --funding for watershed restoration, funding for the infrastructure to have clean water and clean sewer, to build a community infrastructure. So we had a funding package on there. Then it came up to a vote and I tell you there was not a wrong answer. Do you vote for litigation? Do you vote for negotiation? They were both right answers. And I think there's something liberating about you can pick either one and either one is going to work. But after a hard decision -- I was no longer on council so that rested with Joanna and others -- they voted with the negotiations. And it was actually one of the largest-funded water rights settlements in this country. So it shows that sometimes litigation and cooperation -- tough choices -- but cooperation does allow you to put more opportunities on the table.
When I was on council and we'd be talking about these intergovernmental agreements, we had concerns about going forward with them. And one is we have this long history of conflicts with these governments. So why would we want to sit down and be their partner all of a sudden? And wasn't it just the feds who have this government-to-government relationship with us? Why do we want to recognize these more junior governments like cities and counties? And we also thought, 'Yeah, they're the minor leagues. We're a tribal government. We're in the big leagues. We don't want to deal with these little junior varsity governments.' And also the feeling that we are tribal sovereigns. We always think there are three true sovereigns, and that's the tribes, the federal government, and the states. And why would we want to deal with these other governments? By dealing with these non-sovereign sort of governments, doesn't that erode our sovereignty? So there was a concern about that. And the other one is heck, sometimes we're so darn good we just beat them in court anyway any time there's a conflict. But we figure, we admit that these intergovernmental relationships -- we're talking about how government is a tool for the nation -- well, this is one of the tools in the toolkit here, is these nation-building tools of how tribal governments can interact with other governments because we can influence policy outcomes on a broader scale. When you interact with state on policy issue, your authority, your voices get expanded and may impact how things go on outside your community. And it enhances economic opportunities. And I'll share an example of how this worked at Nez Perce, where because of the existence of the tribe and our work with the local city, we were able to expand the economic infrastructure to support both the city and the tribe. And also the delivery of quality services to our tribal members, especially on reservations where you're very rural and we had limited resources to provide for our tribal members, but also the counties and the cities have the same limitations. So are there opportunities that we can cobble everything together to create a single functioning program? And again, I'll share more examples of that.
This federal devolution thing -- it's not going to go away. I think it will continue to expand and we need to be prepared for it. Utilization of scarce resources, the mutual concerns -- as I covered before -- but also I think what's important here is when we talk about the concerns -- that I showed on an earlier page -- really these intergovernmental relationships are an exercise of sovereignty. We say to ourselves, when we get into these agreements, that we have the sovereign ability to negotiate the terms of an agreement, to pick and choose who we want to partner with, to characterize what is the nature of that relationships. So really these intergovernmental agreements are just an expression of our sovereignty. And so the contributions are many -- and again so that I stay on time and we play a little bit of catch up here, let me cover these in the examples that I'm going to show here in a bit.
So let me share just some common areas for these intergovernmental agreements. One of my favorites is a Flandreau Santee Sioux Tribe in South Dakota. They sit on the far east side of the state right along the boundary of the State of Minnesota. So you've got the Flandreau Santee Sioux Tribe, a small reservation and it overlaps the boundaries of the city, the City of Flandreau. And so again you have this jurisdictional intersection. Whose laws take precedent? Who's involved in a particular action or crime? Is it civil, is it criminal, on and on and on? Well, they were struggling with this about this overlapping mixed jurisdiction and they finally decided back in 2000 and said, "˜What if we just create a single police department?' And so in 2000 they created a joint police department. And actually, it's led by the tribe, so you have uniformed police officers that provide law enforcement, tribal law enforcement, that also provide law enforcement over the city. And how they managed that, the cooperation of that is they have a joint public safety commission that provides oversight, helps with the creating of laws, and it respects the rights of the tribe as well as the interests of the city in this agreement.
Others are justice systems, and we've been talking a lot about [Chairman John] 'Rocky' Barrett at Citizen Band Potawatomi. We have a lot of Rocky stories, too. And Rocky was saying, there was a city that came to him and said, "˜We don't have the resources for law enforcement on our reservation. Can we contract with the tribal police to provide public safety on the reservation?' And Rocky said, "˜Yeah, fine, we can do that.' But he said then they came back later and they said, "˜You know what, we like how you resolve your disputes in your court system. Can we use your court system to adjudicate our conflicts?' And Rocky said, "˜That was unheard of.' A non-Indian government saying, "˜we like how your courts operate, can we use your courts to resolve conflict?' And it just shows the sophistication of the infrastructure that Citizen Band Potawatomi was developing. When I was talking to Rocky a couple years ago, he said that agreement is no longer in place. He said after a city council election, the new city council voted to disband that relationship. So we say, 'Well, the city didn't have the staying power to stay in it.' But there's another example that's been emerging.
Leech Lake Band of Chippewa in Northern Minnesota -- another checkerboard reservation -- and you've got the issues that the tribe and the non-Indian community share is the same that many societies share; and it's the substance abuse, and the crime that is associated with substance abuse. And so you've got the state, the tribe and the counties with these overlapping jurisdictions. And they decided to get together to create a joint wellness court; it was the tribe and two local counties -- Cass County and Itasca County -- that formed this wellness court. And while it focuses on the crimes itself, it also focuses on how do you drive down the repeat offenders. And so it has this intensive monitoring program that if you're convicted then you have to frequently appear before the court and they monitor you on your progress. 'Are you keeping up with your treatments? Are you doing your community service?' And on and on and on. But what's interesting is that it doesn't matter which court you go to. The joint powers agreement says, 'Well, you go to the court...' If I'm a tribal member, I can go to Cass County court and through teleconferencing I'm kind of beamed into the tribal court. And so what's interesting is that you've got these three courts with the same laws respecting their authorities, but it doesn't matter whether you're Indian or non, you can go and get the same kind of treatment and oversight in whichever courtroom you go into. And the counties actually, the counties and the courthouses, fly the Leech Lake Tribal flag in their courtroom. How many county courthouses fly tribal flags? One of the attorneys, one of the judges actually said, he said, "˜There was a time when I thought tribal courts were inferior to our courts.' And he said, "˜Through this joint powers agreement I recognize it is not so.' He says, "˜I now fully understand the strength of tribal sovereignty.' And he says, "˜That Leech Lake flag that flies in my courtroom reminds me of that every day.' There are even cases where the tribal judge, Korey Wahwassuck, takes the bench right next to one of these county judges, too. I think it's just a phenomenal agreement.
Land use examples. Swinomish, I think, is a great example; you've got another checkerboard reservation. And so you've got the county and the cities that overlap with Swinomish and each had their own land use laws. And so when maybe a county would permit something and put conditions on this permit process, you would have impacts across the boundaries on the tribal resources, impact to the water and the land. And so they decided to get together and create a comprehensive land use plan, which now they do. And that land use plan, while maybe it started with the county land use plan, it began to grow into other plans and other arrangements. Actually, as I understand, Swinomish was the first tribe in the nation to have a joint agreement on land use planning with other governments within a reservation.
Natural resource examples; there's an abundance of those. Chippewa Flowage Agreement; Lac Courte Oreilles in Wisconsin has a relationship with the state and the U.S. Forest Service -- the feds -- on the operation of a reservoir that inundated one of their villages. And so this cooperative relationship between three parties helps to address the management concerns in managing the water levels within that storage facility.
Social services: you see the Houlton Band [of Maliseet Indians] that has this child protective team that works with the state to try to assert more authority of protecting Maliseet children in their placement and their care and establishing foster homes. The other one I want to share is Little Traverse Bay Bands of Odawa Indians; we've been talking about [former chairman] Frank Ettawageshik. They have within their constitution a clause that specifically talks about intergovernmental relationships. They said, "˜We recognize we have inherent powers and that as citizens and nations we have these inherent rights.' And in the constitution it says they recognize that there are other peoples and governments and nations within the world that also have these inherent rights. And it says, 'We will recognize their sovereignty as long as they recognize and respect ours.' It's a quid pro quo on a government-to-government relationship and I think very unique to see that actually embedded in a tribal constitution in that way.
Let me share a couple of case studies from home, one about this bitter fight that we had when I was on tribal council with this alliance, and another one is this project that we did with the City of Lewiston on expanding our infrastructure. Nez Perce is a checkerboard reservation. If you look at a highway map, it would be within the State of Idaho and it covers about three quarters of a million acres, but through our treaty we have actually a large land base that extends across three states and covers roughly 13 million acres of land. We were homesteaded. Similar case of what happened at Yankton Sioux; we were allotted and then homesteaded and that has created a bunch of conflict. Well, this alliance had formed because, as we were out there exercising our sovereign powers -- whether it be through tribal employment rights offices, we were aggressively purchasing land -- and thank god the tribe is still aggressive in buying land today. We're buying land on and off the reservations and county governments were upset because of the fear that it was going to erode the tax base and we were going to become larger land barons. We had implemented a utility tax on the reservation saying any private utility running through the reservation whether it's a railroad or a cell tower or utility line had to pay a utility tax. Law enforcement. Even the state lottery became the issue because we told the State of Idaho, 'If we had to negotiate a compact with you to have gaming on our reservation, then doesn't it serve that you have to get a compact with us to have those lottery machines on the reservation?' So we forced the state...well, we had to litigate it first and we won in litigation and it required the state to negotiate a compact with us on the state lottery; but it was a source of conflict, these ongoing questions of sovereign immunity.
Those of you who can remember back; there was a senator from the State of Washington, Slade Gorton, who was really tough on tribes with sovereignty. Well, Slade was in his heyday back then. And so 23 governments -- cities, counties, highway districts, school districts, even the same school districts our kids were going to -- had created this alliance to challenge the jurisdiction of the Nez Perce Tribe. And the premise of that conflict was the same thing that happened at Yankton Sioux. As a matter of fact, the tribal attorney that was fighting or the attorney that was fighting Yankton from South Dakota was also helping to fight tribes at Mille Lacs, the Omaha and Winnebagos in Nebraska, and he moved out west to help fight the Nez Perce on our jurisdictional issue. So this guy was really making a name for himself, kind of inciting this racial conflict over sovereignty.
And so the alliance took the position that since we were homesteaded that our reservation was diminished. Quite basically saying is that our outer boundary was erased and our only jurisdiction was over the lands that we held, that we owned. And we said, "˜No, the political boundary is intact,' and there was an issue of diminishment. And they were actually using the Yankton Sioux case to cite that. And so we had these series of conflicts and charges and countercharges that were going on. And things got so bad the prosecuting attorney from Lewis County was speeding through the reservation, coming down the grade and down at the bottom was one of our tribal police officers. And he was speeding on by and so our tribal officer pulled behind him and pulled him over. And when the tribal police officer got up there, this county prosecutor said, "˜I don't recognize your authority,' and he drove off. And our cop, our tribal cop, played it really smart. He didn't get into this wild chase, he just pulled in behind him with his lights flashing and followed him off the reservation boundary to where this guy turned him into, he turned himself into the state patrol. We tried to get the guy disbarred, but the best that we got out of it was tremendous media coverage about how reckless this is becoming. We had the city administrator for one of the communities on the reservation write a letter, an internal memo, which happened to leak and it talked about bloodshed was inevitable. Phil Batt -- grand gentleman, the governor from Idaho -- flies up and tries to convene a meeting between us and with these 23 entities around the table and, as hard as he tried, we were not going to come to a resolution and the tensions continued to grow.
But then something wonderful happened. And I hear Joe Kalt's going to be here later on this afternoon, and Joe Kalt is one of my heroes. And Joe had a friend from Idaho, a guy by the name of Keith Allred, who worked at the Harvard Institute and he said, "˜This is what is going on in Idaho.' And so folks at the Harvard JFK [John F. Kennedy] School of Government offered to come up and help mediate a solution. How can we get off of this litigation merry go round and ease these confrontations, which were growing and building day after day? And so through Joe and Keith, they provided this neutral facilitation and created the starting point that we would accept each other's existence and honor and recognize them. And we needed to learn about one another. The more you fear, the less that you're willing to collaborate on. And we discovered that we cared about many things. And what we ended up doing was framing this MOU [Memorandum of Understanding] where we promised to work together. We knew that the jurisdictional issues would always be there but we said, "˜There's areas of interest that we have in common. We need to focus on that. We'll commit ourselves to respect our governments and we'll agree to try to minimize these conflicts.' And so we went forward and we created an MOU that had this language in it. It says, "˜nothing in this MOU shall limit or waive the regulatory authority or jurisdiction of the governments.' The alliance signed off on that. The very thing that they feared they were willing to recognize the tribe's jurisdiction and our sovereignty. So there's still tension between them, but boy, that was a major milestone to get that agreement in place and try to bring some peace back to our existence.
Quickly here, let me wrap up with another project: the City of Lewiston, Idaho. The reservation boundary is over here in green. The City of Lewiston, the largest community next to the reservation, well, our casino is right there where that little red arrow is. We bought a sliver of land and we thought that was the ideal place. And it first started out with a little metal shed where we sold cigarettes and expanded to a little convenience store. And we said, 'It's time to put a gaming facility there,' but we didn't own a lot of land. And by putting up a gaming facility, we knew that we're going to need the infrastructure of water and sewer but that was going to eat up valuable land that we'd rather develop. So our executive director, being quite savvy, he pulled out the comprehensive plan for the City of Lewiston and he looked at their urban growth boundary. And you know what, the city was kind of encroaching and growing towards the reservation boundary. And we recognized that eventually the city is going to have to expand their infrastructure and services, so why don't we get together and hit them up with a proposal? So that's what we did. So we committed to work together. And this is when the alliance issues was going on and so we played this quite well in the media, I thought, too. We told the city, "˜How about we go out and get an EDA [U.S. Economic Development Administration] grant? And what we're going to do is we'll build the sewer line connecting to your sewer and water facility where it ends right now and let us extend it on to the reservation boundary and connect it to where we want to do our casino expansion at.' And we said, "˜We'll build it to your specifications.' And they said, "˜Yeah. Eventually we're going to want to build that and you're going to pay for it? Well, that's great. Let's do it.' And so we did. We got the EDA grant, extended the water and sewer out to our casino. And then, you know what? The tribe -- we're not water and sewer managers -- but you know what? The city's pretty darn good at it. So we told the city, 'Let us transfer the ownership of the facility to you at the reservation boundary. That way you can take over all...you've got the infrastructure in place already to manage those kinds of things.' So we did that, and so right now we pay the city a fee to maintain this. We didn't have to use up valuable tribal land to do that, and right now I'm happy to say the tribe just did groundbreaking again for further expansion. So here's a chance where we saw this intergovernmental opportunity with another tribe that helped us expand our economic infrastructure. But believe me, the good will that that created, the fact that we're fighting these 23 alliances and we said, "˜See what happens when you want to play fair and you want to respect us as a sovereign?' Our sovereign ability allowed us to do that and the City of Lewiston was one of the beneficiaries of that.
Well, I've got to wrap this up, but some of the observations are that this isn't easy work. There's a long history of conflict that we need to overcome. We had to exercise kind of that sovereign attitude; do the due diligence. Where are those opportunities where we can have these intergovernmental relationships through cooperation and negotiation? And then where are those times that we've got to be -- like Billy [Frank] says -- it's time to be the warrior and draw the line? Both are hard choices, both are difficult paths to take, but the difference is in the outcome. And I've got to wrap up now and give a couple of minutes for questions and answers, but thank you for your attention."