June 19, 2001
The Coeur d’Alene Tribe owns the southern third of Lake Coeur d’Alene, the highest court in the land affirmed Monday.
In a 5-4 decision, the U.S. Supreme Court ruled Congress intended at least 110 years ago for the tribe to maintain ownership of the submerged lands, including Lake Coeur d’Alene and the 20-mile reach of St. Joe River within the Coeur d’Alene Indian Reservation boundaries.
With the victory, Tribal Chairman Ernie Stensgar said the tribe may petition the court to declare the Coeur d’Alenes owners of the rest of the lake as well. That decision would not be made before later this summer, he said.
“It’s working out,” Stensgar said. “What we want is for the people of Idaho and the people who use the lake not to be afraid of the tribe. I think we will be good stewards.”
The decision upholds a 1998 ruling by U.S. District Judge Edward Lodge who ruled after a nine-day trial that Coeur d’Alene reservation boundaries include 5,200 acres of lake and stream beds.
Clive Strong, deputy attorney general argued Idaho has authority over navigable waters under the “Equal Footing Doctrine,” over submerged lands and navigable waters. The doctrine gave new states entering the Union sovereignty identical to the original 13 states.
But the high court, in and opinion delivered by Justice David Souter, determined that Congress intended for the Coeur d’Alene Tribe to maintain sovereignty over the water within its reservation.
By executive order in 1873, President Ulysses S. Grant formed reservation with the north boundary drawn straight across the lake. The boundaries were to become law upon consent of the tribe and Congress.
“Congress was on notice that the executive order reservation included submerged lands,” Souter wrote.
The Senate ratified a treaty recognizing the executive order boundaries in 1889. But the full Congress didn’t ratify the treaty until 1891 — eight months after Idaho received statehood.
The dissenters in the divided court, led by Chief Justice William Rehnquist, ruled that the intentions of Congress didn’t carry the force of law when Idaho became a state, because the treaty wasn’t ratified.
“At the very moment that Idaho entered the Union … Congress and the president vested in Idaho the accouterments of sovereignty, including title to submerged lands,” Rehnquist wrote. “It is therefore improper for the court to look to events after Idaho’s admission.”
Strong said the decision ends a longstanding dispute, but now the state and tribe must work cooperatively, because Idaho still has jurisdiction over the northern part of the lake.
“It will be an essential aspect of our future relationship that we find out how to co-exist with the joint ownership of the lake,” he said. “There is no other alternative.”
Strong said he doubts the tribe can expand its claims of ownership further, considering the evidence used for proof of the current reservation boundaries.
“I think as a practical matter any attempt (by the tribe) to prove ownership of the other two-thirds would be precluded by the court’s opinion,” he said.
Rehnquist was joined by Justices Clarence Thomas, Anthony Kennedy and Antonin Scalia in the dissenting opinion.
Other justices siding with the majority were Sandra Day O’Connor, Ruth Bader Ginsberg, John Paul Stevens and Stephen Breyer.
California, Alaska, Arkansas, Wyoming, Washington, Oregon, North Dakota, South Dakota, Utah and Vermont filed briefs supporting Idaho’s position. Some of those states were concerned about maintaining jurisdiction over waterways next to tribal lands.
High Court to Hear Tribe’s Claim to Lake
Ten states side with Idaho in case with far-reaching implications
By Julia Silverman, Staff Writer
For years, the Coeur d’Alene Tribe and the state of Idaho have wrangled over ownership of Lake Coeur d’Alene.
On Monday, the nine U.S. Supreme Court justices will hear arguments in the case. A decision should follow by June.
The high court’s decision has far-reaching implications, from local concerns over jurisdiction on dock permits or lake patrols, to broader debates over states’ rights and tribal sovereignty.
And the Supreme Court’s decision will echo in a Boise courtroom, where an ongoing trial pits the tribe and the federal government against two mining companies. At issue is who will pay for the costs of cleaning up a century’s worth of mining contamination in the Coeur d’Alene River Basin.
The tribe contends that some of that pollution has ended up in Lake Coeur d’Alene. If the Supreme Court finds for the tribe, it might help its case against the mining companies.
In addition, California, Alaska, Arkansas, Wyoming, Washington, Oregon, North Dakota, South Dakota, Utah and Vermont, have filed friend of the court briefs siding with Idaho.
Some of those states are concerned about maintaining control over navigable waterways that may border tribal lands. Others are concerned whether states control water on lands designated as federal property before statehood. That includes national forests and national wildlife refuges, said Robert Anderson, director of the Native American law center at the University of Washington.
Kootenai and Benewah counties have also filed friend of the court briefs siding with the state.
“The strong feeling that the commissioners have is that we should not be dividing up that lake, that it belongs to all the people of Idaho, not just a select group,” said Kootenai County attorney Dennis Molenaar.
Currently, people who want to fish, boat, build a dock or float their home on the southern third of Lake Coeur d’Alene must obtain a tribal permit, said tribal press secretary Bob Bostwick. Users of the rest of the lake need a state permit.
The tribe also patrols its portion of the lake.
The tribe contends that according to an agreement hammered out by President Ulysses Grant in 1873, the southern third of Lake Coeur d’Alene and a portion of the St. Joe River lie within reservation boundaries.
At statehood, Congress clearly recognized the intent to include the submerged lands and navigable waters within the boundaries of the reservation, the tribe’s lawyers have argued.
The state’s argument is that control of the lake, as with all navigable waters in Idaho, passed to the state on July 3, 1890, when Idaho was admitted to the union. Congress never made it clear that a portion of the lake should remain within the tribe’s control.
“The state has obligations as a public trustee to manage these resources for the public benefit,” said Bob Cooper, a spokesman for Attorney General Al Lance’s office.
Two previous decisions, one by U.S. District Judge Edward Lodge in 1998 and one by the 9th U.S. Circuit Court of Appeals in 2000, both sided with the tribe.
But the Supreme Court agreeing to hear the case might be bad news for the tribe, according to both Anderson and Howard Funke, a Coeur d’Alene attorney whose partner, Ray Givens, will argue the case for the tribe on Monday.
The 9th Circuit Court of Appeals has a reputation as a more liberal court, and for having a higher than average percentage of its cases overturned at the Supreme Court level, Anderson said.
And the tribe is concerned about what it perceives as the conservative slant of the Supreme Court, Funke said. Givens hopes to sway justices Sandra Day O’Connor and Anthony Kennedy, who are believed to be swing voters, he added.
Still, Anderson said the tribe should not give up hope.
O’Connor, an Arizona native familiar with land-use issues, wrote an opinion upholding the federal government’s right to manage the Arctic National Wildlife Refuge.
The state of Alaska had argued that Congress did not designate the land as federal property until after statehood. But the federal government said Congress’ intent had been clear all along.
The Alaska case was cited as precedent in the Coeur d’Alene case by the 9th Circuit Court of Appeals.
The tribe believes that it rightfully has control over the entire lake, not just the southern third, Funke said. A claim to that effect was dismissed by the Supreme Court in 1997, which found that the tribe could not constitutionally sue the state in federal court.
The current case was brought by the U.S. Department of Justice in 1994, and later joined by the tribe. It involves only the lower portion of the lake because that is the area that the federal government believes that Grant set aside in 1873.
David C. Frederick, an assistant to the U.S. solicitor general, who will later this year be one of the government’s lawyers in the Microsoft anti-trust suit, will argue the case on Monday. Deputy Attorney General Steven Strack will argue for Idaho.
In its earlier appearances in court, the state contended that when the reservation boundaries were established, the Coeur d’Alenes were dependent upon agriculture, and that the lake was a secondary resource, so Congress would not have recognized it as within the reservation.
But, said Funke, the lake has always been a central part of the tribe’s history.
“It is the origin of their beginning, the center of their homeland,” he said. “Their entire culture and way of life is centered around it.”
Jurisdictional Fights Spark Tension on Nez Perce Land
By Julie Titone, Staff writer
LAPWAI, Idaho _ On June 2, 2000 a Nez Perce tribal officer pulled over a silver-blue Honda that was speeding on U.S. Highway 95.
The driver got out and stepped toward the patrol car. He ignored several megaphoned warnings by officer Renaldo Phillips to get back. He kept coming.
“I then got out of my vehicle and said in a loud voice, `Get back in your vehicle!”‘ Phillips reported. “He turned sideways towards me with his right shoulder facing me, arms crossed and then told me `I don’t recognize your authority.”‘
The driver was Lewis County prosecutor Kimron Torgerson. In his defiant stance, the public attorney represented the feelings of local government officials on this reservation who formed an alliance in 1996 to battle tribal jurisdiction over non-Indians.
Four years later, they’re still collecting tax dollars to support their cause, still flinching at accusations of racism. Passions are running higher than ever.
This spring, tribal leaders were outraged to learn of an essay by Orofino city administrator Rick Laam. Written to explain the North Central Idaho Jurisdictional Alliance, to which his city belongs, the essay concluded that “bloodshed is inevitable” if conflicts arising from tribal regulations aren’t resolved.
Laam’s 25-page essay grabbed the attention of human rights activists. It caused Indian parents in Kamiah to march in protest, demanding that the school district drop its alliance membership. It prompted claims of harassment by the Indian-owned Orofino Smoke Shop, which was mentioned in the essay.
If Laam had it to do over again, he would tone down the bloodshed phrase. He said he did not mean to promote violence. “That’s not my nature.”
However, he doesn’t back away from his contention that violence could occur over what alliance members consider confusing, unfair and even illegal tribal regulations.
While staunchly defending the right of the tribe to exercise authority, even tribal leader Samuel Penney agrees that “it does get very complicated.”
For example, tribal officers can only cite or arrest tribal members. Non-Indian cops can’t cite or arrest Indians. But either can detain someone they believe has committed an infraction or crime, and hold the suspect until an officer from the appropriate jurisdiction arrives.
Prosecutor Torgerson didn’t wait for that backup call to be made. He drove off, with the tribal officer in light-flashing pursuit, and didn’t stop until he reached Lewiston 15 miles away.
A state police officer ended up giving him a $242 ticket for inattentive driving, which Phillips signed as a witness.
Torgerson — who was once prosecutor for the tribe — plans to contest the ticket. When people ask him if they should recognize tribal authority, he said, he tells them “follow your conscience.”
At the core of the jurisdictional conflict are two questions: What is a reservation, and what does it mean for non-Indians to live there?
There’s no disagreement that reservations are drastically condensed versions of native homelands, which Indians were forced to accept and where they often live in poverty.
“I don’t think there is anyone who says there wasn’t injustice done in the history of this country,” Laam said. “But at some point you have to move on.”
The Nez Perce Tribe is moving on, but not in the direction Laam would choose.
The tribe considers itself a sovereign nation; its boundaries established by an 1863 treaty and its powers recognized by the U.S. Congress. Congress later broke up the reservation into allotments and allowed their sale to white settlers. Now, most of the land doesn’t belong to the tribe or its 3,000 members.
In 1975, Congress reaffirmed the right of tribes to determine their destiny. With well-educated leaders, their own lawyers and an infusion of casino dollars, the Nez Perce are flexing long-unused legal muscle.
For non-Indians, that means having to buy tribal fishing licenses. It means having to give preference to Indian construction workers when other governments insist on color-blind hiring practices. It means not knowing what tax or regulation the tribe will impose next, and not having any say in the government making those decisions.
“It’s true they have no direct vote in tribal elections,” said Penney, chairman of the tribe’s executive committee. But if people choose to live on the reservation, he said, they must accept its rules.
“Many of the good things the tribe does are overlooked, “he said. “For example, our fisheries management program will benefit the entire area.”
Having tribal law officers to supplement his deputies is a big help, says Sheriff Randy Kingsbury of Nez Perce County, which doesn’t belong to the coalition.
Lewiston City Manager Janice Vassar was delighted to get some of the tribe’s federal economic development dollars to extend Lewiston’s sewer line toward the Nez Perce casino, which is just outside the city limits. Vassar describes relations with the tribe as cordial.
Lewiston, however, doesn’t lie on the reservation. It isn’t subject to tribal regulations as are the 23 jurisdictional alliance members, which include city and county governments, school and highway districts.
The alliance members see the reservation as an historic artifact. They hope for a U.S. Supreme Court decision that will recognize that.
A statement on the alliance Web site reads: “Our purpose is not to eliminate tribal government, tribal culture or heritage, but to ensure that area residents are not subject to the jurisdiction, regulation or control of this tribal government.”
That statement is contradictory, according to Robert Crawford, a researcher with the Northwest Coalition for Human Dignity. A government with no jurisdiction ceases to exist, he says. His conclusion: the alliance is anti-Indian.
The Nez Perce are convinced that the alliance just wants the tribe to go away. That’s why, after one fruitless long-ago meeting, tribal leaders refuse to meet with the group. They say they’ll gladly meet with individual governments to discuss specific problems.
Laam, the Orofino administrator, said meetings with the tribe are frustrating because its representatives don’t want to deal with the core issues of jurisdiction.
While tribal leaders and alliance members don’t often talk with each other, they have strong, and strongly differing, things to say about their situation.
When the Kamiah Middle School was built in 1996, the tribe expected the school district to comply with the Tribal Employment Rights Ordinance (TERO). The tribe said the 1.5 percent tax on the value of the construction would add about $38,000 to the project. The district put the figure at $200,000, after hearing that contractors bid higher because of hidden labor costs associated with the ordinance.
Penney noted that the tribe waived the fee for the school district.
That didn’t happen without a struggle, recalled school board chairman Merry Leach. “They only did that after we retained an attorney and spent a considerable amount of money and we got an attorney general’s opinion saying they (the tribe) couldn’t enforce it.”
Orofino city officials are still angry about the time when, as floodwaters were rising, someone from the tribal employment office called to see whether Indians were being hired for the disaster crews.
The staffer was just doing a job, Penney said. He noted that the tribe was widely recognized for coordinating flood relief efforts.
The employment ordinance, created to reduce a high rate of tribal joblessness, continues to stick in the craw of local officials.
“If they’d just back off on TERO, maybe we could live together,” Laam said.
Local officials are annoyed that its requirements could apply to nearly any business on the reservation, if the tribe chose to fully enforce it. Not knowing if that will happen hurts the struggling rural economy, they contend.
“Who would want to open a business here? Who would want to buy real estate?,” Laam asked.
It’s not tribal rules that are keeping people away, Penney countered. “In my travels, what I hear people say is `Idaho, that racist state.”‘
If not racism, there is at least unease on the reservation.
This spring, Penney said, Nezperce High School parents asked the tribe for a contribution to the senior class party. Then they returned the tribe’s check with a note saying “Thanks, but no thanks,” leaving tribal leaders to wonder why.
Penney knows parents of one Orofino family who have been afraid to send their children to school since the Laam essay was distributed.
Said Laam: “All we’ve ever really wanted to do is educate the public on what’s on the horizon out there. We’re getting real tired of being called racists, or attached to neo-Nazi organizations.”
Alliance members would like the state to help resolve the jurisdictional disputes, but the last two governors have stayed out of the fray. Those sympathetic to the tribe’s position believe the federal government should be doing more to reinforce the validity of treaty rights.
Penney believes the best long-term hope for peaceful co-existence is to educate younger generations about tribal rights and government. To his knowledge, the only school district that makes that a regular part of studies is in Lapwai, home of the tribal headquarters. Lapwai doesn’t belong to the alliance.
“We’re the oldest yet the most misunderstood government in this country,” said tribal treasurer Jaime Pinkham. “People become confused about our authority because it’s new to them. These reservations were created as our permanent homelands, to promote the health and welfare of Nez Perce people.”
People who live away from reservations might have an overly romantic view of Indian culture, said Alan Marshall, who teaches anthropology at Lewis-Clark State College. He believes they may be too quick to condemn as racist those non-Indians who live on reservations.
Jurisdictional disputes are a serious problem, Marshall said. Tribal rights aren’t going to go away just because non-Indians haven’t been aware of them, he said.
“Many of us like to believe that we aren’t influenced by history,” he said. “This is what history is. The past is all around us.”
Following a federal court decision that denied the tribe access to toll-free, interstate phone service, the Coeur d’Alene Tribe has suspended sales of tickets for its Internet Lottery and National Indian Lottery. When first contacted by the tribe, AT&T contended that it was prohibited by federal communications laws from providing phone service for the lottery. The tribe claimed the company was obligated to provide the service because the Indian Gaming Regulatory Act preempted state laws involving gaming, so it filed suit against the phone company. After losing two decisions in tribal court, AT&T filed suit in federal court. Nineteen states filed amicus briefs in support of AT&T. The tribe has not announced whether it will appeal the latest decision.