Friday, May 30, 2003
Yakima Herald-Republic
Gregoire's Right to Place Tribal Dispute in the Court Pipeline Rather than fault Attorney General Christine Gregoire for intervening in a
dispute involving Yakama tribal utility charges, we applaud a government official for attempting to get some answers to ongoing
jurisdictional questions on the reservation.
Gregoire has filed a formal complaint with the state Utilities and Transportation
Commission. The complaint calls for the utilities to stop collecting the charge from reservation customers and to seek a judge's opinion on
the validity of the charge. The rate hike went into effect about six months ago after the Yakama Nation approved an ordinance requiring
utility companies to pay 3 percent of reservation-based revenues in return for rights of way on reservation lands, which tribal officials
say have either expired or were never granted.
The WUTC effectively ducked the issue by letting stand the companies' request to impose the
3 percent charge on reservation customers as a tax rather than spread it among ratepayers statewide as a fee. Even the Yakama Nation
disagrees with that interpretation.
Gregoire's complaint is separate from a citizen lawsuit filed over the charges.
A Yakima County Superior Court judge is expected to rule sometime this month on a
lawsuit brought by the Citizens Standup Committee of Toppenish, which contends the state lacks authority to rule on a tribal law affecting
non-Indian reservation residents. The citizens group has long argued the Yakama Nation does not have jurisdiction of any kind over
non-Indians within the exterior boundaries of the reservation.
But Gregoire's action is more focused. "It's fundamentally unfair to leave this at the doorstep of the ratepayers," she said. We agree.
The utilities commission has up to 10 months from the filing to address the complaint, which Gregoire says will trigger a
quasi-judicial proceeding that will produce a record that can be appealed through the courts.
She predicts the issue may eventually go all the way to the U.S. Supreme Court. We do not argue the merits of
the charge and whether it's a fee or tax and who should pay it. But we see the issue as but one more example of the thorny thicket of
jurisdiction that must be resolved in the best interests of the Yakama Nation and non-Indian reservation dwellers. The nation rightly
operates as a sovereign nation. But when the non-Indian issue is factored into jurisdiction within the exterior boundaries of a
reservation, things get murky in several areas of dealings among the state, nation and non-Indian reservation residents.
Years ago, the state assumed jurisdiction on reservation lands in eight different
areas of law, including school attendance and welfare. But it took a U.S. Supreme Court ruling to answer those questions.
t's not unprecedented then to expect some up-to-date sorting out of jurisdictional issues, and if the courts are the only way to
accomplish that then so be it.
Gregoire's action focuses on one of those issues that must be clarified for all concerned parties.
February 17, 2002
Blood won't always tell
As perks make tribal membership increasingly desirable, some find Indian heritage not enough to get in
Rob Carson; The News Tribune
George Sibbits can't understand why the Puyallup Tribe of Indians won't let him in.
He's 100 percent American Indian and a full quarter Puyallup - more than many members. His grandmother was a Puyallup tribal elder, and, 12 years ago, his brother enrolled in the tribe with no problem.
But Sibbits has consistently been told no.
"You do not meet current requirements set forth in our constitution," said a curt letter he received from the tribal enrollment office last month.
Deciding who gets in and who stays out has become a divisive and emotional issue, not only in the Puyallup Tribe, but in tribes across the country - particularly in those with profitable casinos.
"This is a very sensitive issue right now," said John Weymer, a spokesman for the tribe. About 200 people apply for membership in the Puyallup Tribe each year, Weymer said, and about half of them are turned down.
Sibbits, whose 46 years have been one long string of disasters, never thought much about being an American Indian when he was growing up. But now he could use the perks of tribal membership: free medical care, job opportunities and legal assistance, not to mention the $200 monthly check every member gets from casino profits.
Sibbits says the rejection is personal, and when he talks about it he gets so worked up his hands tremble. "They're trying to keep me out of it for some reason," he says.
Tribal officials say there's nothing personal about it.
Sibbits, like many others with Puyallup heritage, has run up against membership requirements that are tougher than they used to be. Growing profits from the tribe's Emerald Queen Casino - estimated at about $4 million a month - have raised the stakes of membership.
The controversy over membership criteria begs larger questions that have significant political, cultural and economic ramifications. Among them: What is an Indian tribe? And, beyond that, what is an Indian?
Previous definition
In years past, being an Indian was a simple matter of race. If a person had a certain percentage of tribal blood - usually one quarter - he was considered a member of that tribe. Below that amount, he was not.
Now, however, many tribes - including the Puyallups - have discarded blood quantum requirements in favor of social and political criteria.
"This whole blood quantum thing was invented by the federal government" said Robin Torner, the tribal chairman of the newly recognized Cowlitz Tribe, which has headquarters in Longview. "Blood quantum is a pit trap at the end of a dead-end road."
The Cowlitz Tribe, which won federal recognition in January and claims between 1,500 and 2,000 members, does not require any minimum blood level.
Torner and many others in Indian country's political mainstream say blood quantum requirements amount to slow-motion genocide. If the children of those who marry outside the tribe were disqualified, they say, the tribes would disappear.
"We're not breeding dogs here," Torner said. "Belonging to a tribe has got a lot more to do with than blood. It has to do with tribal affiliations, your heritage, who you live with and who you give your loyalties to."
Lately, the federal government has tended to agree. In the 1974 U.S Supreme Court case, Morton v. Mancari, the justices ruled that, while there is a racial component to belonging to a tribe, the group identification is primarily political. The tribes themselves should decide who their members are, the court said.
"Since then," said Bob Anderson, head of the Indian Law Center at the University of Washington School of Law, "the federal government has generally kept out of the mix in terms of determining membership criteria."
Even so, most tribes continue to use a blood standard, although the requirements vary - from as low as one-sixteenth to as high as one-half.
The Nisqually Tribe requires members to have at least one-quarter Nisqually blood, according to Frankie McCloud, a member of the tribe's enrollment committee. The Nisquallies are not heavily invested in gambling and have not experienced increased interest in membership, McCloud said.
The Nisqually membership has grown from about 400 in 1990 to about 600 now.
The Puyallup Tribe uses a different approach. It has no blood quantum requirement. But it does require proof of direct descent: That is, if either parent is a member, the children are eligible, too, regardless of how little "Indian" blood they have.
Those who argue that blood standards should be lowered, or done away with entirely, note that tribes, particularly those in the Puget Sound area, traditionally intermarried. There is no reason that still should not be the case, they say, even if tribal members intermarry with other races. The important factor, they say, is social cohesiveness, and that is something only a tribe can assess.
But the direct descent requirement leaves out people such as Sibbits. According to the Puyallup enrollment office, his grandmother never officially enrolled his mother. Under the new rules, that makes him ineligible. His brother was accepted because the tribe had looser requirements when he applied.
"Once the chain is broken, that's the end of it," said Weymer. "Once you're out, you can't get back in, and neither can your children."
Sibbits finds that absurd, especially when he sees a growing number of tribal members with blue eyes and sandy hair collecting their monthly $200 checks from the casino. Furthermore, he says, the Bureau of Indian Affairs has told him his mother was enrolled.
He is unemployed and living in a car parked in a friend's driveway. He lost his license because of a drunken-driving conviction and wants to use the tribes' legal assistance to help him get his driver's license back. "I can't get a job if I can't drive," he said.
The Muckleshoot Indian Tribe, which runs the state's most profitable casino and is ready to build another, has attracted many shirttail relatives and Indian wannabes, according to members. Like the Puyallups, the Muckleshoots have instituted rules that keep out those who have breaks in their membership.
Puget Sound tribes are so intermingled, said Muckleshoot attorney Rob Otsea, that many people are eligible for membership in more than one tribe. What brought the Muckleshoot policy about, he said, were opportunists who bounced from tribe to tribe, depending on where the benefits were best.
Now, Otsea said. "If you disenroll, you are prohibited from re-enrolling."
The Muckleshoot Tribe was an amalgam of tribes to begin with, and neither the Puyallups nor the Nisquallies have any full-blooded members left, a situation that's typical among all but the most isolated tribes. According to the Bureau of Indian Affairs, six of every 10 American Indians were full-blooded in 1980. Now, the ratio is just one in three.
By 2080, a 1986 congressional study predicts, only three of every 100 American Indians will be full-blooded.
As blood levels thin, the number of people who call themselves American Indian is steadily rising. In 1960 there were fewer than 400 Puyallups. Now there are more than 2,600. Nationally, the Indian population has more than tripled since 1970, to 2.5 million. In the 2000 census, an additional 1.6 million people said they were American Indian in combination with other races, for a total of 4.1 million.
Membership disputes
Recent disputes in Indian country over membership mostly have to do with sharing profits and entitlements, says Gabriel Landry, a Puyallup tribal member and former council member.
Some Indians are in favor of keeping a blood quantum requirement because it naturally limits the number of people eligible to enroll, he said.
"Their view is that the more people you have, the smaller the pieces become when you start dividing up the pie," Landry said. "They think the more tribal members we have, the smaller my share is going to be."
When the benefits of membership rise in value, such sentiments tend to increase. In Minnesota's Shakopee Mdewakanton Sioux Tribe, for example, approximately 100 members who collect gambling payments of about $400,000 each per year have for years been fighting off a court battle being waged by more distant relatives.
The other point of view, Landry said, is more inclusive: "It's that the larger our numbers, the greater our strength is going to be, and the better things are going to be for everyone."
Landry personally favors the more inclusive approach. "The greater numbers you have, the more power and authority you have in the surrounding community," he said. "If the Puyallup Tribe had a population of 100,000 people, what do you think its power would be?"
The risk, though, is that once tribal members become visually indistinguishable from the mainstream, other Americans will become even more resentful of the treaty rights that give them economic advantages - like fishing rights and casinos.
That could have serious political ramifications, said Anderson. The less distinctive a tribe is, either racially or culturally, the more precarious its status as a sovereign nation. "That's where the pressure comes in to keep blood quantum," Anderson said. "But on the other hand, you can't keep marrying your relatives."
Fighting for enrollment
Sibbits refuses to give up on his quest to enroll in the Puyallup Tribe, even though there appears to be nothing he can do about it. He wants to sue, but the only place he could take his complaint is tribal court.
And, three weeks ago, his struggle became more difficult. The house he was living in burned down, and with it went the file of birth records and enrollment documents he's been collecting.
If he were only accepted into the tribe, Sibbits says, he could pull his life back together. He wants the benefits, but, he quickly adds, that's not the only reason he wants in.
"I don't know a whole lot about the Indian traditions," he said. "I want to learn about that."
When he was growing up, he said, "Indian didn't matter to me." Now, he says, "I'd kind of like to be an Indian again. I just want to be part of the tribe. I want to be proud of my ancestors."
- - -
* Staff writer Rob Carson covers tribal affairs and diversity issues. Reach him at 253-597-8693 or rob.carson@mail.tribnet.com
- - -
SIDEBAR: Feds, not tribe, first required enrollment
Much of the controversy surrounding membership in the Puyallup Tribe stems from the federal enrollment of 1929.
Indian agents told the Puyallup people they all had to enroll to be counted as members. Most did, but some - nobody knows how many - distrusted the process and refused to participate.
The question, in later years, became whether the descendants of those who did not enroll in 1929 should be allowed into the tribe.
"There are two points of view," said tribal member Gabriel Landry, "and this has been real controversial. One is that these ancestors knew they had to enroll, and they chose not to. They should not be entitled to enroll now.
"The other view is, the fact that they chose not to enroll is just an indication that they didn't trust the federal government, and, had they understood the consequences, they probably would have enrolled."
On a few occasions, the tribe has voted to open enrollment to these descendants using "adoption ordinances." Adoptions were allowed in the 1960s, when there were fewer than 400 members and the tribe wanted to build numbers for political strength. Adoptions stopped shortly before the 1990 Land Claims Settlement, which, among other benefits, guaranteed a payment of $20,000 to every member of the tribe, which by then had grown to 1,545.
Adoptions were opened again in the 1990s, but closed in 1995, the year before the Emerald Queen Casino opened.
- Rob Carson, The News Tribune
- - -
SIDEBAR: Who is an Indian?
Changing definitions of "Indian" have caused confusion in the courts, in Congress and sometimes among tribes themselves. Here are various definitions used in different arenas.
Ethnology: More than one-half Indian blood.
Federal law: Varies - sometimes "anyone of Indian descent," but sometimes a specific blood percentage is cited, most often one-quarter. Also "anyone who has been accepted as a member of a federally recognized Indian tribe."
The courts: Generally a two-part test: An individual must have some Indian blood and be recognized by an Indian community as an Indian. The Supreme Court ruled in 1974 that Indian tribes are primarily political, not racial groups.
U.S. Census Bureau: Includes anyone who identifies himself as an Indian.
The Bureau of Indian Affairs: Generally, a member of a recognized tribe who is at least one-quarter Indian.
Individual tribes: Criteria vary from tribe to tribe. Some have adoption provisions that allow members with no Indian blood; others require as little as one-sixteenth or as much as one-half. In some tribes, anyone who can trace his or her lineage to the original tribal roll can be a member, regardless of blood percentage.
© The News Tribune
INDIAN-NON-INDIAN CONFLICTS
Conflicts between Indian tribes and non-Indians that live on or near Indian land are cropping up all over the country. Here are a few examples in Western Washington:
The Swinomish Tribe is facing opposition from Skagit County over a proposal to develop a 1,200-slip marina on the reservation. The county maintains that the project will keep it from preserving farmland.
The Samish Tribe, a landless tribe in Anacortes, is facing a battle from homeowners near Campbell Lake who don't want to see the Samish build housing and other tribal buildings on an 80-acre site near the Fidalgo Island lake.
The Shoalwater Bay Tribe's plan to build a commercial housing and light industrial project on land along Interstate 5 near Vancouver is opposed by Clark County.
The Lummi Tribe is in litigation with non-Indian homeowners on the reservation over bulkheads on the homeowners' Puget Sound properties. The Lummi say the bulkheads damage the tideland environment.
And there is a dispute over tribal efforts to tax the homeowners for their access to reservation drinking water.