Journal of the American Planning Association

Winter 2004

20404Ra

 

Tribal Nations, Local Governments, and Regional Pluralism in Washington State

The Swinomish Approach in the Skagit Valley

 

Nicholas Christos Zaferatos

 

This article reviews the events that led to improved regional cooperation in land use planning in the Skagit Valley region of Washington State. When the Swinomish Indian Tribe realized that it could not successfully achieve its community development goals in isolation from the surrounding political region, its approach was to bridge relations with surrounding communities by entering into cooperative agreements. The result was to pave the way for a new form of political pluralism in the region that would advance tribal interests and help to achieve Washington’s growth management goal for consistency in regional planning. The article concludes with lessons that can be applied to other regions that face similar opposing interests in the development of coordinated land use policy.

 

 

Zaferatos, AICP, is an assistant professor of planning at Huxley College of the Environment, Western Washington University. He has practiced in Indian Country for more than two decades.

 


Cooperation between local governments can produce greater efficiencies in the provision of local government services (Bardach, 1994; Nye et al., 1997; Zegans, 1990). Coordination of government policies can also reduce jurisdictional conflicts and help attain a unified regional development policy—especially necessary for achieving growth management goals (Altshuler & Zegans, 1997; Bardach, 1998; Bunnell, 1997; Howitt & Bromling, 1988; Riffle, 2000). Many states encourage voluntary agreements by local governments to create joint plans for economic growth, long-term land use, transportation, and other aspects of regional planning.1 Washington State mandated local government cooperation in 1990 when it enacted its growth management law (State of Washington, 1990a). One requirement of the Act is that local land use plans must be consistent with adjoining local jurisdictions, creating the necessity for intergovernmental cooperation. While cooperation among counties and municipalities has progressed in Washington State during the past decade, less progress has been made to improve relationships with Washington’s tribal governments.

One of the most perplexing problems facing regional cooperation in Washington State lies in the relationship between local governments, which derive their authority from the State, and Native American tribal nations, whose authority emerges from their own inherent sovereignty and are therefore not subject to state planning laws (Cornell, 1984; Cornell & Kalt, 1992; Frizzel, 1974; Sutton, 1991). Tribal self-governing powers are recognized by the federal government, which also has a responsibility to protect tribal sovereignty and reservation lands and natural resources (Deloria, 1985). Further, local governments have historically asserted their own often-conflicting jurisdiction within tribal reservations (Johnson, 1988). Adding further confusion is the absence of a clear directive in Washington’s Act to require or even encourage local governments to coordinate their plans with neighboring tribes. The differences that exist between tribal and non-tribal community goals can result in regional conflict.2 Litigation often results from these conflicts, further frustrating efforts towards a consistent and unified regional vision (Gardner, 1980; O’Connell, 1983; Scott, 1984).

This article examines the case of the Swinomish Tribe, whose reservation is located in western Washington on the Puget Sound. Figure 1 shows the location of the reservation and surrounding jurisdictions. A brief history of regional conflict is followed by a review of the approaches used to improve interjurisdictional coordination in the Skagit region.

 

[Figure 1 about here]

 

Origins of Regional Conflict

The causes of the regional conflict between Washington’s tribes and state and local governments arose over a century ago. Several events occurred during the past century that have permanently altered the character of many of Washington’s Indian reservations since they were first established as exclusive tribal homelands in the 1850s. The General Allotment Act of 1887 (U.S. Congress, 1887), which allowed for the subdivision and eventual sale of Indian lands, permanently disrupted their exclusive tribal territorial interest. The Act made possible the ownership and occupancy of reservation lands by non-Indians and the imposition of non-tribal government authority over those lands, which then led to overlapping policies.

The tribes of the Puget Sound region each depict varying forms of “incorporation”3 as represented in reservation land tenure conditions (Sutton, 1975; 1991) and the presence of non-Indian residents. Highly incorporated reservations contain “alienated” fee lands, that is, reservation lands that were sold in fee simple title out of federal trust ownership to private, non-Indian ownership and a large population of non-Indian residents. In fact, the Puget Sound area tribes’ combined 2000 reservation population of 68,168 is composed of about 15% Indians and 85% non-Indians (U.S. Census, 2000). Table 1 shows the correlation between the population of non-Indians on the reservations and alienated land holdings, indicating that alienated lands result in increased non-Indian occupancy. An alienated land condition is shown for each reservation that was created under treaties and subjected to the provisions of the 1887 General Allotment Act. In contrast, land alienation is absent in reservations established in the years following the Act. Land use conflicts tend to arise when alienated lands create concurrent jurisdictional conditions and non-tribal governments apply land use policies that are at odds with tribal policies. The need to mediate the ensuing conflicts between tribes and state and local governments is evident.

 

[Table 1 about here]

 

Background to Washington State's Historic Opposition to Tribal Sovereignty

Conflicts between tribal and non-tribal governments are complex and, in certain cases, associated with decades of continuing litigation (State of Washington, 1985b). While some of this litigation has been in defense of suits brought against the State, other litigation has been initiated by the State. Recently, the focus of Indian litigation in Washington State has shifted from treaty fishing rights of the 1970s to concerns of tribal land claims, land use, and natural resource management. Civil jurisdictional disputes have occurred in the regulation and appropriation of reservation water resources (Dufford, 1979), the application of tax laws (Clow, 1991), and the application of state land use regulations (Weaver, 1990; Williams, 1992a; b) within the exterior boundaries of the reservations.4 These issues pose new challenges that affect the interests of the tribes, the State and local governments, and non-Indian owners of reservation property.

Historically, the State's response to Indian conflicts has been to take a piecemeal approach.5 Past conflict between the State and the tribes was due, in part, to disagreement about the political status of tribes. While tribes possess certain governmental powers, it has historically been argued by the State that such powers are not equivalent to State powers (Pirtle et al., 1992; State of Washington, 1985b). A unique characteristic of reservation governance is that non-Indians residing within the boundaries of reservations are not entitled to participate in the election of the tribal governments that enact reservation laws. The situation becomes particularly problematic where, as in the Puget Sound region, non-members constitute a majority of the reservation population. This difference has emerged as a major source of conflict between tribes and non-Indian residents, resulting in State and county intervention in reservation affairs.

Mediating Tribal-State Conflicts

The resolution of the historic divisions in tribal/non-tribal government relations begins with the search for ways to form meaningful working relationships (State of Washington, 1990b). In order to mediate jurisdictional disputes and as a procedure for developing intergovernmental policy reform, a meaningful dialogue was required that began with a commitment to learning about the divergent interests and values that exist in the Indian and non-Indian communities (Ambler, 1992; Kauger et al., 1990; National Conference of State Legislatures, 1989; Northwest Renewable Resources Center [NRRC], 1993; 1997). By the early 1980s, the State's approach to resolving conflicts with tribes was dramatically altered to emphasize negotiation6 as an alternative to litigation.7 This trend towards negotiation evolved further when, on January 3, 1989, Washington Governor Booth Gardner proclaimed that a government-to-government relationship respecting tribal sovereignty would form the basis of the State's new tribal policy (State of Washington, 1989a). That policy was institutionalized with the signing of the 1989 Centennial Accord outlining the new intergovernmental relationship (State of Washington, 1989b). The Accord formalized the cooperative relationship and encouraged its use in other areas of State government. The new policy established a government-to-government relationship to address complex problems under a philosophy based on mutual respect. While these experiences were primarily motivated by the need to address Indian interests in protecting off-reservation tribal rights under the jurisdiction of the State, the process is also well suited to resolving on-reservation issues. The transformation in the relationship between the tribes and Washington State offers a promising new approach for overcoming other conflicts from inconsistencies in regional policy and the long-sought reconciliation of land use conflicts that tribes and local governments face.

Forming an Intergovernmental Working Relationship

Several important obstacles impede the coordination of land use planning by tribes and local governments, as observed in a 1992 survey of tribal and country planning departments in Washington State. This survey was conducted by the Northwest Renewable Resources Center and included all 18 Washington counties that contained Indian reservation and 25 of the 26 federally recognized tribes in Washington State (Doering, 1992). The survey identified three categories of obstacles to improved coordination: (1) differences in planning approaches, (2) differences in community cultures, and (3) jurisdictional obstacles. The survey found differences in the manner in which county and tribal planning priorities were established. The survey respondents acknowledged that fundamental cultural differences were manifested in county and tribal policies and agreed that these differences needed to be better understood in order to avoid the “inevitable misunderstandings that may result if these differences are ignored" (p. 5). Tribal respondents emphasized the importance of observing the legitimacy of tribal sovereignty as the most important problem that required reconciliation before intergovernmental coordination could successfully occur. County respondents expressed frustration over the tribal tendency to emphasize issues of sovereignty and rights guaranteed by treaty. Tribes sought a relationship based on the Centennial Accord’s government-to-government principals and were frustrated by the tendency of counties to treat tribes like private citizen or special-interest groups.

The survey also identified an important difference in the interpretation of the decision of Brendale v. Confederated Tribes and Bands of Yakima Indian Nation (Goeppele, 1990). Most county respondents interpreted the decision as an affirmation of county jurisdiction over non-Indian owned fee lands on the reservation. Respondents from tribes, however, interpreted it to mean that their own jurisdiction was affirmed unless reversed based on reservation-specific circumstances. Counties also indicated growing political pressure from non-Indian constituents living on reservations to fully apply county authority, since they felt underrepresented in tribal decision making. County planners were often discouraged when requesting tribal participation in reviewing plan proposals subject to mandated growth management deadlines. Frustration resulted when tribal input was either not received or was received after the public comment period, often with objections. Since a tribe exercises its planning authority under its own inherent authority, rather than under the State’s Growth Management Act, tribal planning priorities and procedures often differ from those of local planning agencies. The survey suggested several measures for overcoming obstacles in the tribal-county relationship:

·        Regular meetings. Tribal and county planners identified the importance of establishing regular meetings among planning staff. Regular meetings would help planners stay informed about current issues affecting their jurisdictions and build trust by everyone learning more about each agency’s priorities.

·        Continuing education. Tribal and county planners recognized the need for gaining mutual knowledge about county and tribal governing systems, Indian policy history, cultural and community development priorities, and new approaches for establishing intergovernmental coordination programs to overcome inconsistencies among government policies.

·        Meetings of elected officials. Regular meetings between elected officials were noted as a necessary first step to establishing a long-term cooperative relationship. Staff-level relationships were observed to be limited without the explicit support of elected officials.

·        Formal and informal agreements. Agreements are important first steps for institutionalizing a continuing working relationship between tribal and county planning agencies. Memoranda of Understanding and interagency procedures are needed to guide coordination.

The survey of planning practitioners provides important insights to the problems experienced by government planning agencies, especially as these practitioners are often called upon to recommend strategies to overcome interjurisdictional conflicts. There was overwhelming support for increased cooperation by county and tribal planners and a willingness to establish a government-to-government relationship as the means to overcome historic conflict.

 

The Case of the Swinomish Indian Tribal Community

One of the most significant differences between tribal and non-tribal cultures concerns long standing attitudes towards land stewardship and land ownership. Where non-Indians generally viewed land as a commodity, and incorporated this view within a general system of free enterprise and individual ownership, Native Americans almost uniformly believed in the importance of communal ownership and use of land (Roberts, 1975). The 1855 Treaty of Point Elliott set the Swinomish Indian Reservation aside as a permanent homeland for exclusive Tribal use (see Figure 2). The Swinomish Tribe was severely disturbed by the effects of the 1887 General Allotment Act, which ignored this important cultural distinction. Over time, as Indians on the reservation were granted fee title allotments to their lands, the allotments were sold to non-Indians, or the land was lost due to nonpayment of taxes, which many Indians did not comprehend or could not afford. The process of reservation land division and alienation occurred over a relatively short period of a few decades and produced the current checkerboard pattern of reservation land ownership which now comprises about 46% alienated land holdings.

 

[Figure 2 about here]

 

Despite recent social and political development gains attributed, in part, to supportive federal Indian self-determination8 policies and programs, the economic conditions on the Swinomish Indian Reservation continue to be depressed. Consequently, establishing a viable, self‑sustaining reservation economy is the primary objective facing the Tribe--a challenge that continues to be complicated by historic land ownership and jurisdictional obstacles (Endreson, 1991). Land tenure patterns on the reservation emerge as a central cause of jurisdictional conflict when local governments impede the ability of the Tribe to use its land resources to benefit its membership (NRRC, 1997).

Non-tribal interests operating within the boun­daries of the Swinomish Indian Reservation included the presence of the State and local governments in civil and criminal jurisdiction, regulation of hunting, fishing, and natural resources, provision of roads and utilities, taxation, and the regulation of reservation land use. The inherent right of the Tribe to exercise exclusive jurisdiction over these matters had been pre-empted through a series of historic intrusions by the State and local governments. Hence, the Tribe recognized that in order to influence its own reservation development, it was first necessary to reassert its authority on reservation lands.

Tribal Self-Determination

Regaining control of the reservation was the first step toward tribal self-determination.  Beginning in the 1970s, the Tribe sought to overcome jurisdictional land use conflicts under a two-phase strategy, first by enacting sufficient self-governance powers to pre-empt County-asserted jurisdiction and, later, by negotiating interlocal cooperative agreements (Page, 1985; Swinomish, 1989). The first approach sought to expand the Tribe's authority in regulating land use, public utility services, water resources, and timber harvest practices by establishing comprehensive land use and environmental regulations. The Tribe enacted a comprehensive land use plan in 1972 and exercised its inherent powers by enacting a zoning ordinance in 1978 that affected all lands within the exterior boundaries of the reservation, regardless of ownership type. Although the Tribe has exercised its zoning authority since 1978, an obstacle was presented by Skagit County's concurrent exercise of its zoning authority over reservation fee lands through delegated powers presumed valid under Washington State's Planning Enabling Act.

Following years of frustration arising from the application of non-tribal policies on the reservation, which often conflicted with the Tribe’s policies, in the 1980s the Tribe commenced a program to reconcile jurisdictional conflicts by seeking ways to cooperate with the State and local governments. The Swinomish Tribe has pursued a planning strategy that sought to overcome a long history of conflict with Washington State and surrounding local jurisdictions. As the Tribe began to expand its capacity for self-government in the early 1970s under the then recently adopted federal policy of Indian self-determination, it acknowledged that political conflicts would likely continue unless a dramatic change occurred in the way regional decisions were made. A change was needed to ensure that Tribal interests were considered in regional planning. Moreover, the Tribe also acknowledged that it would need to reconcile the conditions that allowed for the historic encroachment by non-tribal jurisdictions onto the reservation (Amir, 1976; Cohen, 1953; Hall, 1987; 1990; Page, 1985; Royster & Fausett, 1981; Winchell, 1995). By declaring a policy that asserted its own political authority in most matters concerning reservation development, the Tribe effectively disrupted the political status quo. No longer would non-tribal jurisdictions presume to have unchallenged authority over activities that affected the reservation. By deciding to pursue a strategy of regional cooperation (Cornell, 1987; Cornell & Kalt, 1990; Endreson, 1991), the Tribe sought to overcome inconsistencies in reservation development policy resulting from overlapping jurisdictions as well as to influence off-reservation decisions in order to better protect its interests.

Since 1984, several historic interlocal agreements have been entered into that would incorporate the interests of non-tribal governments in the Tribe’s reservation policies. These agreements, detailed in Table 2, address land use, public safety, utilities and public health and environmental protection. The agreements sought to establish a government-to-government relationship as the basis for cooperating in the development of reservation policy and to increase Tribal interests in off-reservation regional planning.

 

[Table 2 about here]

Cooperative Strategies in Reservation Land Use Planning

The checkerboard land tenure conditions on the reservation had created jurisdictional problems in the application of two separate regulatory schemes, as the Tribe and Skagit County both administered zoning programs that affected reservation fee lands. Rather than litigate the jurisdictional issue, in 1986 the governments agreed to attempt to resolve the conflict by embarking on a joint planning program. The philosophy guiding the effort sought to overcome inconsistencies through a mutually agreeable land use policy for the reservation. The effort also aimed to address cooperation in the administration of these jurisdictionally separate, but consistent, land use policies.

As the then Tribal planning director and general manager, the author was instrumental in developing the 1987 Memorandum of Understanding (MOU) for cooperative land use planning. Beginning in 1983, he participated in several informal discussions with the then County planning director to explore ways out of the conflicts posed by overlapping and inconsistent jurisdictions and to advance mutual community interests through better cooperation. Since we shared common professional principles that advocated a reconciliatory approach to regional conflicts, we agreed to encourage our respective leaderships to consider new approaches that would overcome the conflictive course the two governments had been experiencing (NRRC, 1997: p. 28). Initially, the Tribe was concerned that entering into such a dialogue might be seen as a weakening of its jurisdictional position, which was very firm. While the Tribe was willing to acknowledge that the County had a legitimate interest in Reservation affairs, it would not acknowledge the County’s jurisdiction. To determine the extent of the County’s jurisdictional interest would require the governments to argue the factual issues in court, which at the time neither government was willing to do. The goal of the cooperative approach was based in the belief that local communities should be able to resolve their conflicts directly and avoid litigation. The idea of a formal agreement between the two governments eventually gained political support as the leadership of both governments developed a close working relationship and were ready to explore a process for cooperatively resolving complex land use issues.

Tribal and County elected officials met on several occasions to begin discussions on issues of mutual concern, acknowledging that historic events had created a situation whereby Indian and non‑Indian interests both were present on the Reservation. They further acknowledged that neither government could successfully act unilaterally without incurring objections from the other party and the threat of litigation. They agreed that it would be advantageous to avoid costly litigation by resolving differences under a formal government‑to‑government relationship. They also recognized that an accommodation would facilitate the development of a longer term working relationship that could help to address other mutual concerns. In 1987, following 6 months of discussions, the Swinomish Indian Senate and Skagit County Board of Commissioners entered into a Memorandum of Understanding (MOU) in 19879 agreeing to pursue a process leading to the coordination of land use planning and the regulation of fee lands on the reservation. A comprehensive land use plan would be jointly developed with implementing ordinances and administrative procedures. The plan would be developed on the basis of sound planning principles that incorporated the distinct cultural priorities of the Tribe, with questions of jurisdiction taking a secondary position. The governments also agreed that consensus would be their preferred means of reaching joint decisions.

The Tribe’s motivation to enter a formal agreement stems from two considerations. First, the Swinomish Tribe has traditionally sought, as a cultural norm, non-confrontational relationships and the Tribal community supported the prospect of cooperating with a former adversary. Second, litigation risked the possibility of diminishing Tribal sovereignty in the event of an unfavorable court decision, which could also adversely affect other tribal governments. In addition, the Tribe sought to avoid high legal costs and the potential outcome of increased anti-Indian public sentiment in the region (Cornell, 1984; Ryser, 1992).

As specified in the MOU, a nine‑member Advisory Planning Board composed of four Tribal appointees, four County appointees, and a neutral facilitator10 was established to oversee the planning effort. Before addressing substantive issues, the Board attended a series of educational work sessions on federal Indian policy and law, functions of tribal and county governments, history of tribal and non-tribal culture, and consensus‑based negotiating and problem solving techniques. The work sessions served as a form of social learning intended to broaden appreciation of cultural and political differences and to prevent misunderstandings about the parties' interests. After convening for a period of 9 months in 1987, this group developed a draft comprehensive land use plan for the reservation and forwarded it to each government for review.

The draft Swinomish Joint Comprehensive Plan was the first comprehensive planning effort attempted between a tribe and a county in the nation (Larsen, 1989; NRRC, 1997). The plan articulated goals and established policies to guide the stewardship of reservation lands and natural resources and outlined a framework for an implementation strategy that was agreed upon by the governments in 1996. Each government relied on its own perceived authority, agreeing to defer questions about absolute jurisdiction, if necessary, to a future time. While the Tribe continues to assert its exclusive jurisdiction over all reservation lands, the approach provided for the active participation by the County in reservation decision making, recognizing that successful coordinated regional planning is a desired outcome not obtainable under the conditions of a unilateral and conflicting public policy. The plan expressed the cultural significance of the Reservation as a Tribal homeland and sought to ensure that future development would be responsive to Tribal community goals even while it concurrently addressed the interests of non-Indians residing on the reservation. The plan was also mindful of federal court tests11 concerning a tribe’s interest over reservation fee lands (American Indian Law Review, 1982; Goeppele, 1990; Kauger et al., 1990; Weaver, 1990) by providing for the consideration of non-tribal property rights interests.

Testing the Cooperative Spirit

Although either government is free to end its participation in the joint planning program at any time, intergovernmental cooperation persists, having survived changes in Tribal and County leadership as well as professional planning staff. Importantly, the agreement provides a written record of the process employed for reaching mutual agreement on difficult issues that has now endured for a decade and a half.

In 1996 a second MOU was signed to jointly administer land use policy12. This agreement provides a procedure for reviewing land use applications and establishes a process for dispute resolution to ensure consistency in land use matters administered by the two governments. Either planning agency may accept and transmit to the other applications for land use permits on reservation fee lands. In the event of a disagreement between the two agencies, staff members from both agencies must meet to resolve their differences. If they are unable to reach agreement, the matter is then forwarded to a 5-member advisory board appointed jointly by the governments to help mediate an acceptable outcome. If resolution is not reached, the matter is then referred to the governing bodies for final resolution. Further, while the County does not assert an interest over Tribal trust lands, in the spirit of regional cooperation, the Tribe also forwards trust land use permit applications to the County for comment. Currently, the planning departments are drafting a third MOU to resolve inconsistencies in development standards. It will outline common standards to be enacted to ensure the consistent administration of land use, building codes, and other regulations.

But conflicts between the governments still persist. The agreement has survived administrative appeals filed in the 1990s by both the County and the Tribe. The Tribe appealed the County’s Critical Areas Ordinance for failing to adequately protect fisheries resources. The County then appealed the federal government’s decision to accept a 350-acre reservation fee parcel into Tribal trust ownership for a Tribal economic development project.13 Even though the governments have worked to maintain consistency in land use policy, these events illustrate that such ends are not always attainable.14 Both legal actions followed failed attempts to negotiate a compromise solution, yet illustrate how the now institutionalized relationship in the land use arena can endure when other conflicts cannot be amicably settled through negotiation. Deference to a third-party mediator is sometimes necessary, as the 1987 MOU had anticipated and provided for and as these recent legal appeals demonstrate.15

Extending the Cooperative Model to Regional Governance

While the cooperative process accommodates non-tribal interests and seeks to avoid conflict in on-Reservation affairs, it also contributes to changing social behavior by promoting learning about the diverse values and priorities reflected in both Indian and non-Indian communities. Although the plural construct was initially intended to address on-Reservation land use conflicts, it was later extended to other areas of public policy to encourage a regional approach in transportation planning, public safety, the provision of public utilities, and environmental protection, as was summarized in Table 2.

 

Transportation Planning. As with land use, transportation planning within the Reservation also involves interests other than just the Tribe’s. Tribal, State, County, and federal agencies each maintain transportation systems on the Reservation. Successful transportation improvements are not always possible without a coordinated effort involving all affected parties. The State Highway 20 intersection on the Reservation illustrates this concern. The dangerous intersection experiences a high occurrence of traffic accidents and fatalities and is recognized by each government as a major public safety problem.  Improvements to the intersection were needed. In the mid 1990s the Tribe began to conduct studies to identify cost-effective solutions--assuming a lead agency role for coordinating project planning, with support from the Washington Department of Transportation, Skagit County, and the Skagit Council of Governments (the regional RTPO). Funding through the Federal Highway Administration was matched with State and local funds, and work was completed in 2003.

Regional Public Safety. Whether a state, tribal, or local law enforcement agency has jurisdiction on the reservation depends on whether an offense has occurred on non-Indian fee land or trust land, and whether the offense was caused by a tribal member, an Indian person enrolled with another tribe, or a non-Indian person. To overcome the complexity of law enforcement jurisdiction and to reduce duplicative public safety programs, the Tribe, County, and other nearby municipalities established cross-deputization commissions. These commissions authorize Tribal and non-tribal police officers to act, in limited circumstances, under dual State and Tribal authority. Before the commissions could be authorized, however, standards and procedures for law enforcement had to be made consistent. The Tribe’s law enforcement agency provides first response for emergency calls on the Reservation, reducing the response time from an average of over 45 minutes for the remotely located County Sheriff’s response, to approximately 5 minutes. Mutual aide agreements entered into since 1990 provide a coordinated system of law enforcement throughout the Skagit Valley.

Utilities and Public Health. Funded by federal, Tribal and a municipal government, a regional wastewater treatment facility was constructed and later expanded to serve a region that includes the Reservation and the nearby Town of LaConner. The 1984 and 1997 agreements provide for sufficient capacity to meet the future projected growth demands within the Reservation’s urban growth boundaries. Extension of Tribal utility service hookups requires compliance with Tribal land use policies, furthering the Tribe’s control over reservation land use development. Tribal representatives share governance on the regional wastewater sewer commission that oversees management of the system.

In 1983, when Skagit County declared western Skagit County’s Fidalgo Island a “critical water supply area,” local water purveyors came together to solve the region’s water supply problems. In 1984, the Washington Department of Health, the County, the Tribe and other regional water purveyors participated in the State’s first water supply planning program to include an Indian tribe under the State’s water supply coordination laws.16 In carrying out its responsibilities as the Reservation’s utility service provider, the Tribe constructed a public water supply system that today serves the majority of the Reservation’s urban population under common regional utility standards. Over 50% of the Tribe’s utility service population is composed of non-Indian Reservation customers. Further, evidence of an available public water supply is required under Washington’s Growth Management Act before new urban development can occur. The Skagit Coordinated Water Supply Plan designates the Tribal utility as the public water supply authority for the Reservation, which further strengthened the Tribe’s land use authority, since the extension of Tribal utilities requires consistency with Tribal land use policies.17

In order to overcome the inefficiencies associated with operating small, isolated private water associations within the Reservation,18 and at the request of several water associations, the Tribe agreed to supply water service directly to the associations’ residential customers. The agreement resulted in lifting a County-imposed building moratorium within the associations’ service boundaries after an adequate Tribal water supply was secured. Further, the incorporation of the water associations under Tribal utility laws reduced the number of independent water associations and removed the presumption of a valid state authority that had originally created the reservation associations. In addition, a private, 950-unit Reservation residential community petitioned the Tribe in 1993 to constitute its private wastewater treatment utility as a Tribal sewer utility district. After the sewer district was authorized as a “satellite utility” under Tribal laws, the residential community was able to expand its wastewater treatment plant capacity to meet applicable federal clean water act standards as well as Tribal regulations. Similar to the private water association agreements, the incorporation of the sewer district served to further reduce the State’s jurisdictional presence on the Reservation and fostered consistency between the provision of utility services and Tribal land use policy.

Environmental Protection. Several agreements were entered into with the U.S. Environmental Protection Agency (USEPA) to further the Tribe’s capacity to protect the Reservation environment. In 1996, a Tribal Environmental Agreement was signed in 1996 to implement EPA’s government-to-government Indian policy (USEPA, 1984) and the agency’s commitment to intergovernmental partnerships for reservation environmental protection. The agreement assists the Tribe to assess Reservation environmental protection needs and provides funding and federal technical assistance to establish Reservation environmental programs. An historic intergovernmental agreement was also reached in 1996 when the Tribe, the Washington State Department of Ecology, and the USEPA agreed to cooperate in the administration of federal water quality permits. The agreement followed litigation between the USEPA and the State environmental agency that ruled that the State’s environmental statutes do not apply on Indian reservations (State of Washington, Department of Ecology v. U.S. Environmental Protection Agency, 1985a). Under the agreement, the Tribe contracted with the State to perform technical studies for National Pollution Discharge Elimination Systems (NPDES) permit applications on the Reservation. After consideration of the State’s technical recommendations and issuance of a Tribal shoreline management permit, a Tribal recommendation is then forwarded to the USEPA for a final decision regarding the issuance of the NPDES permit. The agreement provides for the State’s involvement in regional environmental management by redefining its role to be a consultative agency under Tribal and federal authority.

The Tribe further extended its intergovernmental cooperative approach to obtain State assistance to carry out air quality protection and timber harvest management programs. A 1996 agreement with Washington’s Northwest Air Pollution Authority helped the Tribe to develop and administer its Reservation air quality program. The agreement results in government efficiencies by incorporating the technical resources of the State to attain mutual Tribal, federal and State air quality standards. In 1997, interagency procedures were also agreed upon in 1997 with the Washington State Department of Natural Resources to jointly review proposed timber harvests on reservation fee lands. Discussions are underway to institutionalize the procedures into a formal agreement for the joint management of timber harvests on reservation fee lands.

Finally, in 1996, the Swinomish Tribe joined two other Skagit River tribes, regional water purveyors, Washington State and the County to establish a collaborative process to secure water rights from the Skagit River in order to meet future water supply demands and conservation requirements. The resulting agreement provided funding to conduct biological studies to establish optimal instream flow rates necessary to protect treaty fisheries (City of Anacortes et al., 1996). The agreement represented the first successful program in the State for resolving complex water rights issues by fully incorporating tribal interests. Of the several outcomes from the process, the recommendations on optimal instream flows to protect threatened and endangered salmon resources were later enacted as rules under Washington State laws.

 

Conclusion and Lessons Learned

The Swinomish Tribe had acknowledged that effective reservation planning could not occur in isolation from its surrounding political region. Tribal initiatives fostering cooperation with state, regional, and local governments resulted in effective outcomes to help reconcile historic regional conflicts and develop more inclusive regional public policy.

Six important lessons emerge from the Skagit Valley experience. First, regional cooperation in land use between tribes and counties becomes possible when they employ a multiparty, government-to-government approach, cognizant of the historic circumstances that first created conflicts. Second, the process requires a capacity to address emerging issues through continuous consultation and should include a forum for dispute resolution. Third, the longstanding barriers to institutional communication must be continuously broken, although they may never disappear entirely. Fourth, successful cooperation cannot be forced or artificially accelerated; the commitment to regional cooperation requires personal and professional commitments by elected officials and, especially, by planning staff tasked with resolving complex and often contentious issues. Fifth, time and resources must be dedicated to education, orientation, and the development of skills among both policy makers and staff involved in the relationship. Finally, unforeseen events and problems that arise require constant monitoring in order to protect the relationship. The new Tribal-local government relationships that were formed are tenuous and fragile, and they require continuing efforts to ensure their sustainability. The willingness to cooperate invariably boils down to the willingness of individual leaders to form and maintain long-term relationships.

The experience on the Swinomish Indian Reservation demonstrates that by incorporating multiple interests in public policy development, effective utilitarian relationships can emerge. The method employs a multijurisdictional, co-regulatory approach in regional governance, where both Tribal and non-tribal interests are simultaneously engaged in public policy formulation. This approach avoids conflict by focusing not on who has ultimate jurisdiction but, rather, on solutions for the most pressing issues facing the communities. Although the cooperative planning approach is still early in its development, it represents a way to reverse a history of jurisdictional uncertainty and overcome conflicts in public policy to further the interests of both tribal and non-tribal communities.

Over the past decade, tribes in Washington State have experienced a transformation in their relationship with the State. The new precedent favoring negotiated solutions first applied in the 1970s to resolve fisheries management conflicts has led to the reconciliation of other policy conflicts among State, local, and tribal governments. The Skagit Valley approach encourages social learning and cooperation among government participants, creating a political plurality for the region. The case study illustrates how the principles of the Centennial Accord (State of Washington, 1989b) can be applied to promote cooperation across agencies of state government as well as to improve local and regional planning with tribal governments.


NOTES

1.      Wisconsin’s intergovernmental cooperation law requires local governments within metropolitan areas to sign at least two compact agreements with neighboring municipalities or counties for the provision of joint public services (Wisconsin Statutes, Chapter 66, Subchapter III: Intergovernmental Cooperation. Sections 66.0301-66.0315).

2.      Conflicts among tribes also exist, especially in litigation regarding treaty fishing rights (Olson 1990; Cohen 1986; Deloria 1973) and petitions for federal recognition to restore a tribe’s government status.

3.       “Incorporation” refers to the history of state infringement upon tribal sovereignty and reservation lands and natural resources.

4.      On September 18, 2002 the U.S. Court of Appeals for the Ninth Circuit upheld tribal land use jurisdiction over reservation fee simple lands held by an individual Indian person (Gobin & Madison v. Snohomish County v. The Tulalip Tribes of Washington, 2002). The court affirmed that by making this person’s fee lands freely alienable and encumberable, Congress did not expressly authorize County jurisdiction over those lands nor did exceptional circumstances warrant County jurisdiction to apply.

5.      In 1985, the Washington Attorney General established the Washington State Indian Litigation Coordinating Committee to formulate a comprehensive approach for assessing conflicts with Washington tribes.

6.      The formation of the new approach in tribal-non-tribal relations in Washington State emerged following the landmark Supreme Court decision in U.S. v. Washington (1974).  In order to reach agreement for implementing the decision, the court essentially mandated that Washington State and the tribes cooperate in natural resources management.

7.      While the benefits of negotiation may make it preferable to litigation, other circumstances may preclude the parties from accepting the resulting compromises—for example, the assertion of sovereign control over a resource or territorial area. The state is generally unwilling or prohibited from contracting its sovereign plenary powers.  Tribes similarly defend their sovereignty as fundamental to their continued existence as autonomous political communities.  In such situations, neither the state nor a tribe may willingly concede its sovereign control over rights to control land where such a concession constitutes legal precedent leading to the diminishment of its asserted rights.

8.      The term “self-determination” was first applied to Indian Nations in President Johnson’s 1968 speech on Indian policy entitled “Special Message to the Congress on the Problems of the American Indian: The Forgotten American” (1968, Pub. Papers Part I, at 335).  He proposed a new goal for Indian programs that stressed self-determination and the promotion of partnership and self help (see also U.S. Congress, 1975).

9.      This nationally acclaimed agreement received commendation from the Washington State Governor in 1990 and awards from Harvard University’s Honoring Nations Project, the Washington Chapter of the American Planning Association, the Planning Association of Washington, and the Washington State Office of Historic Preservation.

10.  A facilitator for the project was provided from the Northwest Renewable Resources Center’s Land Tenure Project, a Washington nonprofit mediation service that has facilitated cooperative agreements in several tribal-state natural resources management disputes.

11.  As established in the second exception in Montana v. United States. 450 U.S. 544. 1988 and Brendale v. Confederated Tribes and Bands of Yakima Indian Nation.  492 U.S. 408, 106 L. Ed. 2d 343, 109 S. Ct. 2994, 1988, the courts generally support tribal jurisdiction over fee lands when its policies provide for the “political integrity, the economic security, or the health and welfare of the tribe.”

12.  Copies of the 1987 and 1996 MOUs are available from the author at: nicholas.zaferatos@wwu.edu or by writing to the Planning Director, Swinomish Indian Tribal Community, PO Box 817, LaConner, WA. 98225.

13.  In 1998, the Tribe filed an appeal before the Washington State Growth Management Hearings Board (Skagit Audubon Society, et. al. v. Skagit County and Agriculture for Skagit County et al. No. 00-2-0018c) claiming that the County inadequately protected critical resources areas for fisheries resources.  The Board affirmed the Tribe’s claim and remanded back to the County.  In 1999, the County sought to reverse a Bureau of Indian Affairs decision (United States Department of the Interior, Office of Hearings and Appeals, Interior Board of Indian Appeals, Docket No. IBIA 02-1002-A) to accept 350 acres of fee land owned by the tribe into trust ownership for tribal economic development. The major issues that were raised concerned the conversion of farmland to urban uses.

14.  The Tribe unilaterally amended its comprehensive land use plan and zoning ordinance in 1998, designating the property for “tribal economic development” for a marina, mixed-use commercial development, and a wetland restoration project.  The County objected to the land title transfer as well as to the issuance of federal and Tribal marina development permits in 1997. The site remains designated as “agriculture” in the County’s comprehensive plan, while a portion of the site is designated for “Tribal economic development” in the Tribe’s plan.

15.  Notwithstanding instances of disagreement, the cooperative approach was instrumental in resolving several other land use conflicts.  A unified position was taken in 1997 when a concurrent County and Tribal “stop work” order was issued that required a fee property owner to comply with Tribal cultural resources protection policies. In the late 1980s, the County supported a property owner’s petition to the Tribe to approve a residential subdivision that had been approved by the County a decade earlier.  The Tribe agreed to classify the project as a “non-conforming” use, subject to several new conditions. The collaborative process established under the MOU helped the governments to reconcile these and other past land use inconsistencies.   

16.  In Washington State, tribes are considered public agencies and state and local agencies are permitted to enter into agreements with tribes for joint or cooperative efforts where necessary to promote “mutual advantage” (State of Washington, RCW 39.34.010).

17.  The Skagit County Coordinated Water Systems Plan (Skagit County, 1984) requires “[a]pplications for new development are presented either to the incorporated cities if the development lies within the incorporated boundaries, to the Swinomish Tribal Community within the Reservation, or to Skagit County if it is in unincorporated areas outside the reservation” (p. IB-3).

18.  Under the terms of the Skagit County Coordinated Water Supply Plan and the Swinomish Water Plan, the Tribe acknowledged the historic existence of several state-created private water associations on the Reservation and agreed to allow their continued operation as enclaves within the Tribal utility system.

 

 

 

 


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Williams, Kristine M. (1992b). Coordinating Jurisdiction on Indian Reservations. Planning and Zoning News, 10:12.

Winchell, Dick G. (1995). Tribal Sovereignty as the Basis for Tribal Planning. Indigenous Planners, 1.

Zegans, Marc. (1990). Innovations and the Municipal Attorney: Managing the Tension between Service and Control (Working Paper). Cambridge, MA.: Harvard University, Kennedy School of Government, Innovations in American Government Program.

 

 


Table 1. Puget Sound Area Reservation Territories.

 

Tribe

 

Land Tenure Characteristics

 

 Resident Populationa

 

 

Date

Est.b

Total

Acres

Alienated Acres

% Alienated Acres

 

Native

 

Total

% Non Indian

 

Jamestown S'Klallam

 

1980s

 

210

 

0

 

0%

 

3

 

16

 

81.3%

 

Lower Elwha

 

1968

 

443

 

0

 

0%

 

274

 

315

 

13.0%

 

Lummi

 

1855

 

12,504

 

5,181

 

41%

 

2,114

 

4,193

 

49.6%

 

Muckleshoot

 

1857

 

3,850

 

2,270

 

59%

 

1,033

 

2,205

 

53.2%

 

Nisqually

 

1857

 

4,700

 

3,693

 

78%

 

392

 

588

 

33.3%

 

Nooksack

 

1973

 

10

 

0

 

0%

 

337

 

547

 

38.4%

 

Port Gamble S'Klallam

 

1936

 

1,341

 

0

 

0%

 

514

 

699

 

25.5%

 

Puyallup

 

1855

 

18,062

 

17,446

 

95%

 

1,327

 

41,341

 

96.8%

 

Sauk Suiattle

 

1973

 

23

 

0

 

0%

 

37

 

45

 

17.8%

 

Suquamish

 

1855

 

8,012

 

4,449

 

56%

 

388

 

4,834

 

92.0%

 

Skokomish

 

1855

 

4,987

 

1,996

 

40%

 

519

 

730

 

28.9%

 

Squaxin

Island

 

1854

 

2,175

 

668

 

30%

 

327

 

405

 

19.3%

 

Stillaguamish

 

1984

 

21

 

0

 

0%

 

76

 

102

 

25.5%

 

Swinomish

 

1855

 

7,169

 

3,317

 

46%

 

655

 

2,664

 

75.4%

 

Tulalip

 

1855

 

22,490

 

11,920

 

53%

 

2,265

 

9,246

 

75.5%

 

Upper Skagit

 

1982

 

130

 

0

 

0%

 

192

 

238

 

19.3%

 

Total

 

 

86,127

 

50,940

 

59%

 

10,453

 

68,168

 

84.7%

a. Source: 2000 U.S. Census: Profile of General Demographic Characteristics, summary File 1, 100-Percent Data, for American Indian Reservation areas; Washington State Department of Transportation, "Transportation Guide for Indian Tribal Governments;" "State Jurisdiction on Reservations, Washington State House of Representatives (August 31, 1978).

 

b. Forms of reservations include the original tribal reservations established by treaty during the 1850s, the Executive Order reservations refining boundaries to the treaty established reservations following the General Allotment Act of 1887, and federal recognition of reservations following the Indian Reorganization Act of 1934.

 


Table 2. Swinomish Intergovernmental Cooperative Agreements.

NATURE OF

AGREEMENT

 

DATE

 

AGREEMENT

 

AFFECTED PARTIES

 

LAND USE

1987

Memorandum of Understanding for Cooperative Land Use Planning and Implementation.

Skagit County.

 

1996

MOU for Joint Administration of Land Use Policy.

Skagit County.

,

1989

Transportation Planning and Development.

US Department of the Interior, Washington Department of Transportation, Skagit County.

 

PUBLIC SAFETY

1994

Cross-Deputization Agreement.

Skagit County Sheriff.

 

1990-

Mutual Aid Agreements.

Skagit County municipalities of Burlington, LaConner, Anacortes, Sedro Woolley, Concrete, and Coupleville (Island County).

 

UTILTIES AND PUBLIC HEALTH

1984 – 1997

Regional Wastewater Facility Sharing and Plant Expansion Agreement.

Town of LaConner.

 

1984

Skagit County Coordinated Water Supply Systems Planning.

City of Anacortes, Skagit Public Utility District, Washington Department of Health, local water associations.

 

1987

Petition to incorporate private water associations under the Tribal Utility System.

State created Reservation Water Associations.

 

1993

Petition to incorporate and operate under Tribal Utility Laws.

Shelter Bay Community Sewer Commission.

 

ENVIRONMENTAL PROTECTION

1996

Skagit River Water Rights Agreement.

City of Anacortes, Skagit Public Utility District, Skagit River Tribes, Skagit County, Washington Department of Ecology.

 

1989

Approval for “Treatment as a State” under EPA regulations.

U.S. EPA.

 

1996

Tri-Party Agreement for CWA NPDES Permit Administration.

U.S. EPA, Washington Department of Ecology.

 

1996

Tribal Environmental Agreement.

U.S. EPA.

 

1996

Air quality technical assistance.

Northwest Air Pollution Authority.

 

1997

Protocols for Coordinated Forest Practices Regulation. Draft MOU for joint administration.

Washington State Department of Natural Resources.