Tribal/County Cooperation: Making It Work at the Local Level
A bridge spans the finger of saltwater in north Puget Sound known as the Swinomish Channel, and links the island world of the Swinomish Indian Reservation to the fertile farmlands of the Skagit Flats. It graceful arch visible for miles around, the bridge is a symbol of the growing cooperation between the Swinomish Indian Tribal Community and their Skagit County neighbors. This cooperation is fed in part by a particular project undertaken to "break the ice" and establish a long-term, government-to-government planning and regulatory relationship. Since 1986 the tribe and the county have labored together to jointly develop and implement a comprehensive land use plan for the reservation. They have been assisted in their efforts by the Northwest Renewable Resources Center (the Center) a small Seattle-based not-for-profit organization that specializes in natural resource issues. This work was conducted under the auspices of the Indian Land Tenure Project (1986 - 1990) and the Tribes and Counties Project (1990 - 1996). These projects were initiated by the Center and funded by Northwest Area Foundation and The Ford Foundation. The objective of this work is to develop cooperative institutional linkages at the local level.
The aboriginal lifeways of the Swinomish, Kikiallus, Samish and Lower Skagit peoples of the north Puget Sound, like native peoples the world over were rooted deep in the natural world and finely tuned to seasons and cycles. The land and water over which they roamed and the resources that sustained them were the source of their culture and identity.
Today, the descendants of those early ones call the Swinomish Indian Reservation home. The 8,000-acre reservation represents the last vestige of a much largest territory ceded by tribal leaders to the U.S. government under the provisions of the 1855 Treaty of Port Elliott. That ancestral territory is now Skagit County, 60 miles north of metropolitan Seattle and one of the fastest growing counties in the state. Despite the changes brought about by a century of intensive land development, it remains a place of remarkably beatury and natural resource wealth: many miles of saltwater shoreline; the Skagit River, home to legendary salmon and steel-head runs and wintering bald eagles; world class agricultural lands; cedar and Douglas fir forests; acres of spring daffodils and tulips; vast flocks of migratory snow geese and trumpeter swans that winter-over on farm fields.
The treat promise of the reservation as an exclusive homeland was broken by the passage of the Generally Allotment Act in 1887. The Allotment Act was one in a long line of legislative and administrative efforts to obliterate Indian culture and assimilate Indian people into American Society. It superimposed the concept of private property and individual ownership onto the communally held reservation land base. With the express intention of turning the Indian into a farmer, reservation land was subdivided into allotments of between 40 and 160 acres each and given to individual tribal members. Much of this land was later sold to non-Indians or lost to tax forfeitures, reducing Indian holdings nationwide from almost 140 million acres in 1887 to 48 million acres in 1931.
Allotment devastated the Swinomish Reservation. Today, only four percent of the land is communally owned. Individual tribal members own 50 percent of the reservation and lease out approximately one-quarter of that land to non-Indians, under long-term residential lease arrangements. The remaining 46 percent of the land is in fee-simple, non-Indian ownership. Non-Indian population exceeds that of Indian by approximately a 2:1 ratio.
The damage from the Allotment Act extends well beyond land losses. The transfer of title in Indian lands within reservation boundaries to non-Indians, thereby enabling the establishment of large non-Indian populations on the reservation, has probably been the single most important factor in the erosion of tribal autonomy since most important factor in the erosion of tribal autonomy since the early nineteenth century. The presence of non-Indians within the reservation radically changes the character of the reservation as a permanent homeland for the tribe and drastically impairs the ability of the tribal government to effectively control the reservation. Non-Indian reservation residents, unable to vote in tribal elections, view the county as their representative government and are reluctant to accept tribal jurisdiction over their activities.
Tribal governments occupy a unique position within the United States governmental system which is neither clearly defined nor generally well understood. Tribal governments are political entities that predate the U.S. Constitution and the colonization of this continent. Determined by early case law to be "domestic dependent nations" subject to the plenary power of the U.S. Congress, tribes have retained inherent sovereign as distinct, independent, political communities. As such, they are anomalies within the governmental framework, being neither the equivalent of states nor the subdivisions (i.e., counties and cities) thereof.
Because of their status, tribes have a special relationship with the federal government and have relied almost completely on the federal government to address tribal needs and concerns. This has contributed to the extreme political, economic and social isolation that many Indian communities experience within their own geographic with their local counterparts, common interests notwithstanding. Few lines of communication exist and little or no intergovernmental cooperation or coordination occurs. Often, if interaction does occur, it is contentious.
Over the past two decades, spurred by a federal policy which supports self-determination and numerous favorable court decisions, tribal governments have experienced a resurgence. They have begun to assume the more classic, local governmental functions and take a more regional perspective. As ties between the reservation and the surrounding region develop, the need for constructive working relationships, and intergovernmental interaction becomes paramount.
Few, if any, models of constructive tribal/county coordination exist. The challenge is to create a mechanism that includes Indian Country into the fabric of the region not by merely subsuming tribal governments into the existing structures of the dominant society, but rather by joining as equal partners, and together developing new structures which acknowledge and accommodate pluralism and diversity.
As a part of its drive towards greater autonomy, the Swinomish Tribal Community is in the process of assuming broader jurisdictional responsibilities. The tribe views the ability to regulate land use activities on the reservation as one of its governmental functions and critical, not only to self-determination and self-governance, but to long-term survival.
The checkerboard landownership pattern of the reservation creates jurisdictional problems in that the tribe claims jurisdiction over all reservation lands, regardless of ownership, and the county claims jurisdiction over the non-Indian owned land. Similar situations are prevalent on many of the reservations throughout the country. The tribe and the county each administer zoning programs that include permitting and enforcement functions on the non-Indian owned land. This situation has caused problems because of the concurrent application of sometimes conflicting regulations.
At the instigation of the Northwest Renewable Resources Center, representatives from the Swinomish Tribal Community and Skagit Count agreed to come together to discuss ways to resolve the question of jurisdiction. Over the course of a number of meetings organized and facilitated by the Center, participants were able to acknowledge that Indian and non-Indian interests in the reservation land base are intricately interwoven. They further acknowledged that neither the tribal nor the county government could successfully act unilaterally in the regulatory realm without the potential of a lawsuit and substantial litigation costs. All agreed that it would be advantageous to develop a formal government-to-government relationship as both entities are regulating land use activities on the reservation. They recognized that an accommodation would ease the tension between the two governments and make possible necessary long-term coordination.
As a result of the talks that extended over a six-month period, a Memorandum of Understanding (MOU) was developed and signed by the Swinomish Tribal Senate and the Skagit County Board of Commissioners. The MOU committed the parties to pursue a process leading to the coordination of land use planning and regulatory activities for the reservation. Rather than dispute the juridictional question, the tribe and the county agreed that the best way to resolve the conflict was to develop a joint comprehensive land use plan together with implementing ordinances and administrative procedures. The plan was to be based on sound planning principles with landownership/jurisdiction as a background issue. The tribe and county also affirmed that cooperative problem-solving and consensus decision-making would be the means by which decisions would be made. The MOU specified a nine member Advisory Planning Board (the Board) comprised of four tribal appointees, four county appointees and a faiclitator from the Center to coordinate the effort.
Before addressing substantive issues, the Board participated in a series of educational and skills development sessions to orient them and prepare them for the task. Topics included federal Indian policy and law; functions of tribal and county government; history of the tribe and the county; culture, values and world view; cross-cultural communication; and cooperative problem-solving. The Board also agreed to a set of ground rules that laid out assumptions regarding behavior and process.
After laboring for nearly two years, the Board completed a draft comprehensive land use plan that articulates goals and establishes policies to guide the stewardship of land and resources on the Swinomish Reservation. The plan reflects the duality of interests that exist on the reservation. It seeks to protect the traditions and ancient, hallowed values of the land-based culture of the Swinomish while still allowing for future development.
The Board also proposed a set of procedures to administer the overall program. The procedures call for each government to adopt a similar administrative approach that entails joint review of proposals for land use actions and consultation at the staff level. In the event that a mutually agreeable decision is not reached at that level, the proposal moves to the Board, which is empowered to use "conciliation, mediation, fact-finding, or any other method deemed appropriate" to reach a resolution. If the Board is unable to do so, the proposal moves to the two Planning Commissions. Should the recommendations from these bodies be in conflict, the Tribal Senate and Board of County Commissioners can confer on the issue and call a special meeting for that purpose. In the event that consensus is not reached, each government will issue its decision and be free to pursue its independent interest.
The plan adoption process was moved off the fast track upon passage of the state-wide Growth Management Act (GMA) in 1990. Mandated by the Act to develop a county-wide comprehensive land use plan by late 1995, Skagit County focused all of its resources on accomplishing that task. Against the wishes of the tribe, the county decided that task. Against the wishes of the tribe, the county decided to fold the Swinomish planning effort into the overall GMA process and to defer consideration of the Swinomish Plan until completion of the overall county plan. To address the question of inconsistency in the interim, the county proposed a process whereby no permit application for a land use action on non-Indian owned land on the reservation would be processed without prior consultation and approval by the tribe. This process was acceptable to the tribe; it is in place and working well.
Even though languishing in the adoption process, the Swinomish Plan and the process used to develop it have enjoyed wide acclaim. The process was given an honor award in special intergovernmental coordination by the Washington Chapter American Planning Association and Planning Association of Washington 1990 Joint Awards Program. One juror described it as "a unique effort on a difficult issue-a present." Two years later in 1992, the plan won an award for Outstanding Achievements in Historic Preservation Planning from the State Preservation Officer for the manner in which it incorporated cultural values.
Legal scholars among them Creighton Geoppelle in his April, 1990 Washington Law Review article, "Solutions for Uneasy Neighbors," have held up the process as an example of how the apparently unworkable jurisdictional morass created by the U.S. Supreme Court decision in Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation 109 S. Ct. (1989) can be effectively resolved. In this case the Court was asked to decide whether the Yakama Indian Nation had authority to zone non-member (that is, non-Indian) fee land on the Yakama Reservation, an area of 1.4 million acres in eastern Washington. (NOte: In 1994 the tribe reinstituted the traditional spelling of its name.) In a complicated decision which undermines the principles of land use planning, the Court allocated jurisdiction on the basis of ownership. But by requiring that local governments take tribal concerns into account, the Court's opinion is for all practical purposes "cooperation forcing" because of the checkerboard landownership pattern in the area in question. Such checkerboard patterns are the rule on the majority of reservations.
In 1993, relations between the tribe and the county had once again stalled and the Center intervened to get things moving again. The experience of working together on the joint plan, although positive, had not been sufficient to change the organizational dynamics between the two entities nor the professional relationships of the people concerned. In that professional relationship are the heart and soul of organizational dynamics, the Center suggested that a program be undertaken to touch and transform the underlying interpersonal connections. While at its core a relationship-building effort, the program focused on geographic place, because place is the common denominator. All the governmental entities who have a stake in the future of the county were invited, not only the Swinomish Tribe and Skagit County but also the other two federally-recognized tribes, a number of towns, cities and special districts. In total, twenty-two elected officials and their key policy staff people engaged in what came to be known as the "Skagit Fellowship Circle." Conducted as four day-long sessions over a nine-month period, the Circle provided a venue for civic conversation and social learning to people who, though neighbors, were essentially strangers to one another. In a safe, comfortable setting and through formal and informal activities, participants explored viewpoints and perspectives and undertook the process of exploring differences and becoming more familiar and comfortable with one another. They uncovered a shared love of place and developed a better understanding of the differences between them. The experience engendered a new level of respect and empathy, a sense of common purpose and a commitment to work together.
During the last session the group wrote an open letter to the community that reads in part,"... With acknowledged trpidation, born of more than 100 years of ethnic, cultural and governmental misunderstanding, even animosity, we agreed to open our minds-and at times our hearts. We discovered that as a people, we share a great deal, perhaps more than we differ. And as officials and representatives, we share a common threat-that whether Native Americans or Caucasians, 100th generation or recent transplant, we are skagitonians, that we care deeply for the place where we live, that we desire the best future for our Skagit Valley home. We have started something good...and must work together to carry forward the spirit that the circle has engendered..."
As a wa of carrying forward that spirit and in the general spirit of reconciliation, two cities and the county passed resolutions acknowledging the governmental status of the tribes and pledging to work cooperatively in the future. The county's declaration concludes with a commitment to "nurturing of the bond between the tribal governments and ourselves in order to mutually preserve the character of our shared community."
Circle participants have since reconvened twice to review events, gauge progress and plan future activities. There is general agreement that relationships, both personal and professional, are very different from what they once were. The ice has been broken and a degree of familiarity has been established. It is now much easier to initiate necessary interactions, talk over what needs to be done, and share information both formally and informally. A number of processes dealing with various aspects of intergovernemental coordination have been instituted and show real promise. The Swinomish Plan has indeed been made part of the Skagit County Comprehensive Plan and awaits action by the Planning Commission. The words of Robert Joe, Sr., longtime Chair of the Swinomish Tribal Community, best capture the situation: "We've got a long way to go and it won't always be easy. But at least we've made a start. Together."
The approach developed by the center for this effort drew not only from alternative dispute resolution but also from land use planning, cross cultural communication, community development and collaborative learning methodologies. What envolved was a hybrid, highly-applied approach that has proven to be particularly well-adapted to conflict-habituated situations like that of Indian/non-Indian relations.
The general tasks associated with the approach are, in large measure, standard with those associated with conflict resolution efforts: opening lines of communication; convening key players; serving as intermediary; initiating and facilitating the problem-solving dialogue; creating and maintaining an agreement-building environment; traditional information gathering and technical assistance; organizing opportunities for collaborative learning experiences; performing follow-up and maintaining the momentum. The specific project activities are outlined in the chart of the process on the previous page.
The project's use of a third party professional, available at no cost to the participants thanks to foundation grant support, to function as project initiator and organizer, is perhaps the most important feature of the approach. It enables necessary but undervalued activities to occur that would otherwise not because of the high political risk involved. Furthermore, even though neither tribe nor county could have successfully initiated and maintained the necessary contact, neither would have been willing to pay for the services of someone to do it for them. Their operating budgets re slim and there are innumerable competing demands for those limited resources. They were wholly unwilling to pay for such an endeavor given the distinct possibility that the talks would not lead to anything. In that case, the expenditure of funds would seem completely unjustifiable. Furthermore, it would have been difficult politically to justify paying for help to talk to the "other side," especially for the extended period of time it took to change the relationship.
With regard to timing and scheduling, it was made clear on many occasions that participation cannot be forced, nor can the process be artifically accelerated. The third party is, after all, only the catalyst. The substantive work, together with the risks and the rewards, belongs to the principals. The most a third party can do to influence events is to create and maintain an environment that facilitates open discussion, and ensure that the process is constructive an consistent. To do so requires a dedicate touch, a full understanding of central as well as peripheral issues, the trust and respect of the participants, and the willingness to be forceful at strategic moments.
As was demonstrated repeatedly, the process was very sensitive to a wide range of external factors that served both to help and hinder the progress of the project. In all, a great deal of time was spent buffering the project from the negative effects of unforeseen and uncontrollable events. In addition, each bad experience or setback-and there were many-caused one side or the other to retreat for a period of time. Here again the value of a third party was evident, because without an outsider to "patch things up" and then regain the momentum, contact would have been broken off and the opportunity for further discussions would have been lost.
The relationships between the Indian and non-Indian participants have dramatically changed over the course of the project. But the bonds that have been established remain fragile and tenuous. These new relationships must be nurtured and sustained in order for them to continue. Unless there is a concerted effort on the part of all to do so, old patterns of behavior will reassert themselves because divisions are real and run deep, and old wounds are easily flared.
The final observation is that much more time should be spent on broad-based, relationship-building activities and should include individuals beyond the circle of direct project participants. A network of informed individuals who support cooperation between Indian and non-Indian communities would maximize the achievements of the project and ensure that its purpose and direction are maintained.
Becoming human to one another is the first step towards bridging differences. Mutual respect is the key to inter-governmental cooperation and making it work at the local level. The essence of such cooperation is not found in legislation or court decisions. Nor does it flow from memoranda of understanding, resolutions and the like. Rather, it arises in the hearts of those with the courage and the humanity to extend a hand across the divide and draw the other in, as equal and as neighbor.
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