Tribes Seek to Govern Non-Members : Indians’ New Powers Bring Gains, Conflicts

It has been 17 years since Guy McMinds, tribal officer for the Quinault Indian Nation here on western Washington’s rugged coast, first saw the young white men appear before him.

He was sitting in his small house on the Quinault River. We can help you, said the one with stringy hair and a beard. We will fight for you.

McMinds considered.

At that time, this village in the heart of the Quinault reservation was a ghost town.

Most of the reservation land had long ago been allotted to individuals and sold off to non-Indians. Three real estate speculators were planning residential developments. Visitors were ransacking the tribe’s ancestral beach lands. Logging companies were slashing huge patches in the reservation’s 200,000 acres of thick forest land.

‘Look Like Hippies’

“You guys look like a bunch of hippies,” McMinds answered. “You’re lucky I don’t rip your butts off.”

Despite this uncertain introduction, the young white men stayed. What’s more, they delivered on their promise. Over the years, these Legal Aid and Vista volunteer lawyers have helped the Indians dramatically transform the Quinault reservation.

The developers, stymied by strict Quinault zoning codes, have departed, leaving behind unmarked wilderness. The beach lands are closed to non-Indians. Faced with physical demonstrations and lawsuits, the logging companies have changed their methods. Members of the tribe who fled the reservation have returned, more than doubling the Indian population to almost 2,000.

The Quinault experience is just one example of a deliberately planned and largely successful national drive by American Indian tribal governments in recent years to establish that they are sovereign forces with inherent power over their reservation lands and anyone working or living within their boundaries.

Pored Over Treaties

A host of young lawyers, both Indian and white, came out of law schools in the late 1960s and early 1970s and began looking hard at the language of century-old treaties and case law.

It seemed clear to them that the original treaties had been agreements between independent nations. The Indian nations had ceded vast territory to the United States in exchange for smaller plots of land and protection for their way of life. The tribal governments did not owe their existence to state or federal law, but rather, brought their sovereignty with them. Indians were truly dual citizens.

The young lawyers and Indians concluded that the tribes need not so much argue for new rights as simply claim ones they always had.

To the surprise of many, the judges have largely agreed.

Over the last 15 years, the U.S. Supreme Court and assorted federal courts of appeal have decided in dozens of cases that American Indian tribes have some sovereign powers and can in ways operate much like other independent governments.

The tribes’ newly asserted powers, however, have spawned as much conflict as celebration. When the status quo of the last 100 years is disrupted, someone’s ox gets gored.

Much of the friction arises because tribal governments increasingly are claiming the right to regulate not only their own members but also the many non-Indians who over the years bought land from individual Indians and now live or work within reservation boundaries.

Impossible to Build

Property owners who bought lots for vacation homes here on Washington’s coastline have found it almost impossible to build because their land falls within an area zoned as wilderness by the Quinault nation.

A grocery store owner lost his business after he was shut down by the tribe for violating its building and sanitation codes.

Other businesses operated by non-Indians, on land they own, found that they had to pay taxes to the tribe as well as to the local county government, Grays Harbor.

Led Off to Jail

One man was led off to tribal jail for clearing brush on his land without a Quinault permit, another for walking on the beach in front of his oceanfront home.

Because they cannot vote on reservations, non-Indians increasingly are protesting what they call taxation and regulation without representation. How could the same government that fought ferociously against such a thing 200 years ago, they ask, now place its own citizens under jurisdiction of tribal governments in which they have no voice?

“If the Indians want sovereignty over themselves, fine, but not over me and my property. What about equal protection for all? Whatever happened to the Constitution?” said George Garland, president of the Quinault Property Owners Assn. and one of those who has been unable to build on a coastline lot he owns here.

Others see it differently.

Tribal Control Eroded

The federal government’s allotment programs destroyed the integrity of the reservation by parceling out tribal land to individual Indians, they say. Some Indians, ill-equipped to handle property, made unwise sales to non-Indians. Control of reservation land gradually slipped from tribal control. This violated the essence of the treaties.

“If you or I had property south of the reservation, we’d have to go through the permit process of Grays Harbor County,” said Joe de la Cruz, the Quinault tribal council chairman. “You are in our jurisdiction here. You are an alien in here. If it weren’t that way, there couldn’t be tribal governments at all. The timber barons and allotment programs have ripped up land that our treaty set aside for us. The only way to correct this is to go back to the way it should be.”

The state of the law involving Indian tribes remains difficult to summarize, for the guidelines are in a state of flux and depend often on the details of a particular case. The lawyers talk of a “quasi-sovereignty” and of “domestic dependent nations” within a nation. What this means is open to frequent debate.

A person can be prosecuted both in tribal and federal court. The Supreme Court has ruled this is not double jeopardy, because two separate sovereignties are involved.

At times a person cannot file a lawsuit in any court.

A non-Indian involved in an automobile accident as he was driving through the Standing Rock Reservation in North Dakota filed a civil suit for damages in tribal court, but it was dismissed. The tribe allows non-Indians to use its courts only when they reside or do business on the reservation.

So the white man filed suit in state court, which dismissed it because it had no jurisdiction on the reservation in an action involving an Indian. Then a federal court dismissed the suit for the same reason.

Tribal governments do not have criminal jurisdiction over non-Indians, but recent court decisions suggest that tribal governments can, depending on varying circumstances, impose taxes on Indians and non-Indians, regulate land and resources, zone, establish health and building codes and issue liquor licenses.

States cannot apply their taxes or zoning regulations to tribal members on reservations. Tribes can operate bingo and other gambling houses and not pay state taxes on the proceeds. Indians do not pay federal or state income tax on revenue derived directly from reservation land held in trust.

To a large extent, the tribal courts are not bound by the Bill of Rights or other parts of the Constitution. Federal courts have jurisdiction over constitutional rights disputes on a reservation only if someone is seeking release from custody through a habeas corpus petition.

Seeds of Change in 1960s

Very few of these powers were being used by tribes as recently as 1970. The seeds for change were planted indirectly during the 1960s.

President Lyndon B. Johnson’s Great Society programs began funneling funds to tribal governments, and the civil rights movement provided a psychological impetus.

In 1966 and 1968, Congress passed laws that for the first time allowed tribal governments to pick their own lawyers and file their own lawsuits.

In 1968, with funding by the Office of Economic Opportunity, the University of New Mexico Law School at Albuquerque started a scholarship program for Indians.

Since 1971, this program has pumped 35 to 40 Indian lawyers into the system each year. This manpower in turn has spawned several institutes of legal advocacy, such as the Native American Rights Foundation in Boulder, Colo.

The Indian lawyers, and young white attorneys fresh from the civil rights battles, started looking at the implications of Indian law.

Mike Taylor was a Vista volunteer and head of the Seattle Legal Aid office when he first visited the Quinault reservation in 1969. He was one of the handful who one day found Guy McMinds sitting in his house by the river.

Taylor had only recently opened, for the first time, “Felix Cohen’s Handbook of Federal Indian Law,” the definitive text in its field.

Cohen’s volume was a revelation to Taylor.

Sovereignty Backed

As far back as 1831 and 1832, Chief Justice John Marshall had affirmed the principles of Indian sovereignty in two landmark cases, Cherokee Nation vs. Georgia and Worcester vs. Georgia. As recently as 1959, the Supreme Court agreed in Williams vs. Lee that only the tribal court, not state courts, could settle a dispute between a white Indian trader and Indians on the Navajo reservation in Arizona.

Taylor looked about him.

Maybe in the lawbooks the Indians have sovereignty, he thought, but certainly not on the Quinault reservation. There was poverty and high infant mortality rates. The steelhead and salmon runs, the Indians’ livelihood, were dwindling because of logging practices and aggressive sports fishermen. The Quinault reservation was dying.

It seemed to Taylor that for the tribe to survive, it needed to control its homeland.

The turning point in the Quinault experience came in 1972, when the tribe won a grant--$30,000 a year for three years--from the Akbar Foundation to establish an attorneys’ office on the reservation. Until then, if the tribe had representation at all, it was private counsel paid by the hour. Now they could hire their own guns. Taylor and several other young lawyers moved to the reservation.

‘What’s Our Strategy?’

“We sat in dark little offices on the beach,” Taylor said. “McMinds would walk around asking: ‘What’s our strategy, what’s our strategy?’ Gradually, we began thinking about how we could get people to fight us or how we could attack them so we could go to court and establish tribal authority over life on the reservation. We were making a conscious effort to develop specific issues.”

They chose to make their first stand on their beach lands.

The tribe for years had vainly asked visitors not to dig up their valuable commercial clam beds, or spray-paint the legendary Point Grenville Rock. Now, 40 tribal police simply appeared on the beach, escorted everyone off the sand and installed signs announcing the closing of a starkly untamed 4 1/2-mile stretch of coast south of Taholah. Those who insisted on returning eventually were arrested and hauled into tribal court.

Next, the tribe imposed a license fee and tax on all business activities within the reservation, seeking to raise revenue for the support of tribal governmental services. The tax was levied on Indian and non-Indian businesses alike, even those that occupied fee lands--that is, lands for which non-Indians held individual title, as opposed to trust lands held by the tribe.

The amount of the tax was based on the number of workers employed. To encourage companies to hire members of the tribe, Indian employees were taxed at half the normal rate.

State Rejects Use of Plates

When the state vehicle licensing authorities would not recognize the Quinault government as a municipality eligible for token $1 registration fees, De La Cruz simply put his own Quinault nation license plates on the tribal government’s fire truck, ambulance and garbage hauler.

The Quinault governing council issued a six-inch-thick code of laws that covered everything from assault and battery to neglecting dogs. Just as important, the code included zoning, building, sanitation and conservation ordinances.

When John Cardin, non-Indian owner of a grocery store on fee land within the reservation, failed to correct sanitary code violations, the Quinaults sued in tribal court and obtained an injunction. Tribal police forcibly shut down the store.

The most bitter confrontations began when the tribal government declared a quarter-mile-deep band of coastal land to be a wilderness area. The Quinault zoning codes said such areas were “generally for day use,” although “individual residences may be permitted upon special application.”

De La Cruz was throwing a block at well-heeled real estate developers and speculators, but caught in the middle were dozens of less powerful individuals who had bought lots with plans for vacation or retirement homes.

Elmer Millner was still a Boeing employee in Seattle when he first saw the light-blue advertising circular put out by a development firm called Moclips Ocean Tracts Inc. “Scenic, beautiful Santiago Beach,” it read. “An Ocean of Fun . . . . Clam digging. Deep-sea and surf fishing. Beachcombing. Beautiful wooded sites.”

He knew the land was in the Indian reservation, but he thought the Indians had jurisdiction only over land they owned. If he had title, then it was his.

Bought Oceanfront Lot

He bought an oceanfront lot and secured Grays Harbor County building and septic tank permits. Just in case there might be a problem with roadway access, he also got one from the state highway commission. In 1973, he began building what was to be a sprawling circular two-story home, with a deck wrapped around the upper level and views everywhere.

One day he found a stop-work order nailed to the rafters, summoning him to tribal court. He knew he had a problem when he showed up there. Everyone kept talking about the Quinault tribe being a separate nation.

He did not have a tribal building, zoning or sewage permit. He also lacked a waiver to build in the wilderness zone.

Those waivers were issued only for small cottages intended for weekend or overnight use, no more than 20 feet by 30 feet. Even then, to get a waiver Millner would have to dedicate a strip of land between the high water line and the line of vegetation to the tribe for administration as a wilderness area. The waiver had to be renewed every 15 years and was not transferable when the property left the hands of the present owners by deed, death or foreclosure.

Dismantled Home

Millner thought on this only briefly before he dismantled his nearly completed home and moved it to another lot at Ocean Shores, about 20 miles south. He figures he lost $20,000.

Sitting in his Ocean Shores home recently, Millner thumbed through a pile of old Grays Harbor County permits.

“That land was first sold to a white man in 1927,” he said. “Can you imagine if you just decided your ancestors didn’t get a good deal on land they sold, so you wanted it back? My father was a pioneer, the first shoemaker in this area. He was a friend with the Indians and told me to be good to them. We don’t want to take anything away from the Indians, but I don’t think they should have more rights than we do. This was a real shock to me.”

Millner and other individual property owners formed associations and spoke out angrily, but they say they could not afford to test the tribe in court. During the mid-1970s, however, some businesses affected by the Quinaults did file lawsuits challenging every move the tribe had taken.

Cardin sued when the tribe closed his grocery store. Albert Sechrist sued when the tribe ruled he could not build a recreational vehicle park on land he owned in the Quinault wilderness zone. Ken Snow and a group of other business owners sued over the tribe’s business tax. State troopers cited a Quinault garbage truck bearing tribal plates.

This was what the Indians’ lawyers had expected. The lengthy courtroom tests could begin.

Idea Spreads

While these cases wound their way through the judicial system, other tribes across the country also were asserting newly realized powers.

Here in the state of Washington, a host of tribes (including the Quinault) claimed treaty language gave them the right to half of all the steelhead catch, even from off-reservation fishing sites, as well as the right to travel across private homeowners’ land to get to those sites. Waterfront homeowners in such areas as Fox Island near Tacoma now often find Indians encamped in front of their houses.

The Six Nations Iroquois Confederacy in northern New York state began issuing its own international passports. So far, these have been accepted in such countries as Holland, Switzerland, Germany, Colombia, India, South Korea and Turkey. Only Japan and Israel rejected them outright.

Taking this concept one step further, the Red Lake Band of Chippewa Indians in a remote reach of northern Minnesota late last year ordered two top Bureau of Indian Affairs officials off the reservation, announcing that visitors needed passports before entering their nation.

Since the late 1970s, the Supreme Court has been issuing a number of rulings in Indian sovereignty cases. Many have been favorable to the Indians, but a good number throw off mixed guidelines, governed more by the particulars of the case at hand than by broad principles.

Case-by-Case Review

The Supreme Court’s decisions essentially call for a balancing act, depending on a case’s facts. By focusing on specific details of a case, judges have written decisions that do not easily fit together to form a pattern or provide means for predicting future rulings.

One such case handed down in 1981, U.S. vs. Montana, has ended up having a great impact on the fate of the Quinault Nation. Perhaps no case more typifies the current complexity and confusion involving tribal regulations of non-Indians.

At first glance, it seems to limit sharply tribal powers. In addressing a bitter dispute between the Crow Tribe and the State of Montana, the Supreme Court ruled that the tribe could not regulate hunting and fishing by non-members on their own land.

Qualified Ruling

The particular case, however, involved the land status of a riverbed, and a trespassing charge. The justices qualified their specific ruling with particularly broad final sentences.

“To be sure, 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,” they said.

A tribe may regulate, tax and license non-members who enter “consensual relationships” with the tribe or its members through commercial dealing, contracts, leases or other arrangements.

Curbs on Fee Land

Perhaps most important, the justices said a tribe may also control the conduct of non-Indians on fee land “when that conduct threatens or has some direct effect on the political integrity, the economic security or the health or welfare of the tribe.”

As it happens, it was precisely this language that in the end provided the Quinault tribe with unqualified victories in each of its carefully chosen test cases.

There is no small irony in this, for the Supreme Court decision did not exist when the Quinaults first decided to exercise their legal powers.

In March, 1982, the U.S. 9th Circuit Court of Appeals upheld the tribe’s authority to enforce its codes on John Cardin’s grocery store, citing the language in U.S. vs. Montana. The Supreme Court declined to review the case.

In May, 1982, a federal judge upheld the tribe’s power to regulate land development through zoning ordinances. In Sechrist vs. Quinault Indian Nation, a lawsuit filed by the developer who wanted to build a trailer park in a wilderness zone, the judge again cited U.S. vs. Montana.

In July, 1983, the 9th Circuit ruled that the Quinault tribe had a right to impose its tax on non-Indian businesses on fee land. The court said only that the tribal court could rule on the validity of the lower tax rates for Indian employees. Once more, U.S. vs. Montana was invoked. In 1984, the Supreme Court declined to review Snow vs. Quinault Indian Nation.

The tribe even appears to have won its battle for Indian license plates.

Special Bill Weighed

After years of conflicting federal and state rulings, both sides are now negotiating over special state legislation to allow Quinault plates on tribal government vehicles.

It is possible to find Indian leaders who feel no satisfaction from recent court decisions, believing that the rulings simply recognized rights Indians already have. It is much easier, however, to find non-Indians who express dismay and outrage.

Tens of thousands of angry steelhead sports fishermen spurred Washington state voters into passing an unusual initiative in 1984. It unilaterally declares special Indian treaty rights to be terminated and unconstitutional.

“Can you see how the fishing case makes people angry?” said Barbara Lindsay, the initiative’s campaign director. “It’s like they’re saying: ‘I can hold a loud party but you can’t.’ ”

Even some of those who generally support Indian claims draw the line when the tribes assert authority over non-Indians living on fee land. Lloyd Meeds, a former Democratic congressman from this region, risked the wrath of many voters by backing the federal courts’ decision that gave Indians half the steelhead catch. Yet he felt compelled to write an angry dissent to the strongly pro-Indian 1979 report of the American Indian Policy Review Commission, of which he was vice chairman.

“I do believe Indians have some sovereignty,” Meeds said recently in his Washington, D.C., office, where he is now a private attorney. “But only in passing laws and regulations that affect themselves.”

Conflict Unresolved

Yet there is nothing more central to the recent Indian resurgence than the sense that tribes cannot have sovereignty over themselves without control of their lands. So this finally is a conflict without a resolution satisfactory to everyone.

“The Quinault closed their beaches for a practical reason,” said Rudy Ryser, a consultant for the tribe. “Clams. Eating. Same thing with the steelhead. Sportsmen like how they jump when they’re reeled in. To Indians, it’s food. If someone walked into your house and took your groceries, you’d have to do something. The issue is survival. This really is a clash of two cultures.”