Planning with your Native Neighbors
Session: Planning with your Native Neighborhoods
March 30, 4:00 PM
Jon Norstog, AICP
Shoshone-Bannock Tribes
Michelle Pak, AICP
City of Pocatello, ID
Darrell Shay
Shoshone-Bannock Tribes (1)
Abstract
Throughout the United States and especially in the west, Indian Reservations
abut or are overlapped by non-Indian jurisdictions. Planning conflicts between
Native and non-Native jurisdictions arise in the grey area created by the erosion
of tribal authority in statute and court decisions, throwing planning into chaos
and spoiling economic development. This jurisdictional grey area creates a field
within which the easy response, litigation, usually leads to more bad law. This
paper outlines the jurisdictional issues and proposes a "win-win"
strategy based on understanding, mutual respect and cooperation. Four specific
strategies based on the unique advantages that Indian Nations bring to the planning
table are outlined. References to sources are included.
Planners, especially in the western United States, frequently find themselves
at the front end of the often-contentious relationship between Indian nations
and their neighboring local and state governments. This relationship
(2), and the underlying misunderstandings, fears, and resentments which
drive it, are factors that over many years have diverted too much of community
resources into non-productive actions and have contributed to the poverty seen
in both Indian and neighboring non-Indian communities. As planners we are in
a position to take a lead role in changing this mutually destructive relationship,
to the increase of prosperity and well-being in all our communities.
The issues dividing Indian and non-Indian communities, as well as the rewards
for cooperation between them, spring from the same sources: from the unique
nature of the Indian Nations as sovereign governments, and from their relationship
with the federal government. Most Indian nations entered directly into treaties
with the United States in which they relinquished rights to some lands or granted
right of passage to the Americans. The treaties usually defined which rights
the Indian nations retained, set boundaries within which the nations retained
their aboriginal rights of self-government, and established the United States
as guarantor of those rights. Treaty-making set the pattern of “government-to-government”
relations between the first nations and the federal government. Treaty-making
acknowledges a rough equality between or among treaty partners; thus when tribal
leaders go to Washington they are customarily met by secretarial-level officials.
With this parity at the executive level, it was natural for Congress to gradually
assume powers of oversight over Indian nations and people similar to what it
exercises over the Executive Branch.
In their areas, the Treaty Nations for the most part predate the establishment
of states, counties and other jurisdictions as well as land surveys and the
creation of real estate. Over the years, however, states, counties and even
cities have extended their jurisdictions to overlap Indian reservations. Many
reservations are now “checkerboarded” with state and federal public
lands and with fee lands. Reservations have become home to non-member Indians
and non-Indians who buy land or marry into the community. Indian lands are criss-crossed
by utility corridors, railroad, pipelines, and by state, county and U.S. highways.
Tribal governments and organizations as well as Indian and non-Indian individuals
have opened business on Indian reservations, selling goods and services to both
Indian and non-Indian customers.
These are all developments that have brought up questions about the extent
of tribal jurisdiction, questions that have often enough been settled in court
and at the expense of Indian nations’ ability to effectively govern their
territory. Such has been the case with tribes’ ability to plan, zone and
regulate development on Indian lands. Early cases like Worcester v. Georgia
(1832) (3) and U.S. v. Kagama (1886) (4)
outlined tribal sovereignty and jurisdiction as nearly unimpaired in Indian
country. For tribal planners, these cases are in some ways equivalent to
Euclid v. Ambler and the other early cases that enabled local government
planning and zoning.
The Court has since then both reaffirmed and trimmed the authority of tribal
governments, with recent cases tending to diminish first nation governmental
powers. Two cases in particular are significant for planners. In Montana
v. U.S. (5) Indian nations were found to lack authority
to regulate non-Indian activities on fee lands within reservation boundaries,
except to protect a tribe’s political integrity, economic security or the
health and welfare of its members. The Montana decision probably applies to
non-tribal member Native Americans residing on-reservation as well. As with
the takings cases of the 1980s and ‘90s, tribal (local) government powers
to regulate are left intact provided there is a sound public purpose for their
use, but with no definitive guidelines from the Court.
In Brendale v. Confederated Tribes (6) the court
decided its first Indian law case directly related to planning and zoning, and
it decided against Indian nations’ authority to plan. In Brendale
the court found that an Indian nation could not zone or regulate land belonging
to non-tribal members (except in a case-specific “closed” area of
the reservation where non-conforming development was not much of an issue anyway.)
Brendale ruled that county, not tribal jurisdiction prevailed in such
cases. The result of Brendale is that the governments of the majority
of tribes having non-Indian fee lands inside their boundaries are no longer
able to implement comprehensive planning and zoning. This has thrown a monkey
wrench into planning both for those nations and for the counties or other jurisdictions
that suddenly are being asked to process permits and variances on-reservation.
No planner could possibly be unaware of the effects of Supreme Court decisions
limiting the authority and ability of local jurisdictions to regulate land use
and development. There is a similar effect resulting from recent Court decisions
diminishing the authority of tribal governments and communities within reservation
boundaries. Planners, like Indian people and tribal governments, have learned
that to litigate is to open the door for more “bad law.” As planners
we have some freedom to substitute cooperative for adversarial relations; we
can help our respective communities stay out of court; perhaps we can instead
get rich. In the following pages we propose some strategies for doing this.
Our Neighbors, Ourselves: the City Perspective
The City of Pocatello has only made efforts to reach out to the tribe for joint
planning within the last several years. Planning in Pocatello has generally
been very narrowly focused within existing City limits and the “Area of
City Impact,” a boundary developed in 1998 to indicate directions for growth
over the coming twenty years.
Attempts at Regional Planning
Pocatello’s most recent effort in regional planning was the “Our
Valley Our Vision” project which was meant to provide a regional perspective
on long range growth and development in the Portneuf River Valley, centered
on the abutting cities of Pocatello and Chubbuck. A consultant was hired to
conduct a visioning process with extensive public input which would be used
to update both cities’ comprehensive plans. While the project was initiated
and mostly funded by the City of Pocatello, other jurisdictions, including the
neighboring Shoshone-Bannock Tribes, were invited to be a part of the project.
Representatives or key members of many interest groups were included on a steering
committee for the project. Sherwin Racehorse with the Shoshone-Bannock Tribe
sat on this Steering Committee as a tribal representative.
After the first round of public meetings were completed, a letter was sent
to members of a Steering Committee updating members on issues that had been
raised about the public meetings and asking each member to solicit additional
input via a “visioning questionnaire”. Mr. Racehorse returned three
questionnaires which illustrated concerns about the environment, a need for
recognition that the Portneuf River Valley is the aboriginal territory of the
Shoshone-Bannock people, and resentment of how tribal members are perceived
and treated. Mr. Racehorse also included a cover sheet indicating that he believed
that the tribes were involved too late in the process and the tribes should
have been involved in hiring the consultant and they should have ownership in
the product. The letter declines further tribal involvement in the process which
Racehorse eloquently expresses:
The past method of the MPO was to plan up to the Reservation line and turn
to look within the urban fabric. Today, we join you on that jurisdictional
line and look over our shoulders with the full understanding that we will
plan for ours and you yours.
City of Pocatello staff members involved with the earlier stages of the Our
Valley Our Vision program note that there was never an intentional effort to
leave the Tribes out of the planning process. Because the project was focused
on the growth and development of the metropolitan area and immediate surroundings
it made sense for the City to take the lead in managing and paying for the project,
but the viewpoints of the County, Tribes and School District should be included.
The letter from Mr. Racehorse came as a shock to the planners involved in the
process and reinforced the perception that reaching out to the Tribes was a
futile effort.
Jurisdictional Disputes
Complicating matters on developing cooperative partnerships with the Tribes
are the jurisdictional conflicts between the Tribes and the City. One current
conflict is over whose law will apply at the city-owned airport located on the
reservation. Law enforcement has been another area of conflict, since city and
county officers are required to secure a tribal judge’s approval before
serving an arrest warrant on the reservation. This is “well known”
in the community, where the reservation is commonly, if untruly, perceived as
a “home free” area for those evading arrest. Volumes could be written
about each of these issues separately. They have created a climate for planners
in which efforts to reach out are discouraged because they involve the City
in what could easily become matters for the court. At one point this year, the
Mayor instructed senior staff to refer all matters related to the Tribes to
the City’s legal departments.
Tribal Planners Become Point of Contact
In 2001 the Tribe set up a planning office and hired a planner. This change
has greatly enhanced the ability of Pocatello planners to reach out to the tribe
because there is now a point of contact. Previously, it was unclear who should
be approached with issues so the City’s Development Services Office took
issues to the Tribal Council. Because the Tribal Council is a political body
with a short election cycle, there is less continuity and work on long-term
projects can be challenging.
Since the planning office has been established, Tribal and City planning staff
have been participating in “Planners Round Table” session every quarter
where East Idaho jurisdictions have brown bag round table discussions or hear
presentations. Tribal planners have been very involved in these groups and relationships
have been established not only with Pocatello planners, but also planners in
other jurisdictions. It is very helpful in establishing cooperative relationships
to be able to put faces with names and feel comfortable calling or e-mailing
a planner in another jurisdiction.
“Partners for Prosperity”
In 2002 a regional poverty reduction program was developed with funding from
the Northwest Area Foundation that includes both metropolitan areas in Eastern
Idaho (Pocatello and Idaho Falls) the Tribes and 17 County governments. This
provided another opportunity for the Tribes and the City to work together on
a problem that both populations struggle with. In the early stages of this project,
a tribal planner suggested that in researching poverty and empowering the poor
in our communities, we use a Native American approach and use narratives about
poverty in addition to statistical research in developing action plans. This
is the approach that the project is taking. This example illustrated to the
City’s planners the value that can be added to efforts to solve community
problems from working with the Tribes and understanding their perspective.
Working Beyond Misunderstanding and Resentment
It is clear to the City’s planners that conflicts between the Tribes and
the City are based on misunderstanding and resentment. The Tribes have experienced
a physical and cultural invasion, suffering losses that cannot be comprehended
by most Pocatello citizens. The City and its residents appear to not be able
to understand why the Tribes can’t move on; while the Tribes cannot yet
trust the City’s leaders and citizens enough to participate in joint planning
efforts.
Pocatello’s planners recognize that the healing needed to take place between
the City and the Tribes will not happen overnight, especially considering the
depth of the history in this area. However, as planners we must be proactive
in efforts to improve cooperation and relationships where possible and with
respect to the Tribe’s sovereignty. Pocatello planners appreciate the steps
made by planners working in the Tribal Planning Office and will continue efforts
to build a bridge between the City and Tribes.
Four Strategies to Break the Impasse and Reach a “Win-Win” Outcome
Winning Strategy # 1: Resolving Planning Jurisdiction
Although Brendale has given counties and other overlapping jurisdictions
authority to plan and permit non-Indian development on-reservation, it does
not follow that doing so is in the public interest. At the Fort Hall reservation
in Idaho, a non-Indian reservation landowner is in court with Power County because
he secured the required Shoshone-Bannock Tribal permits, but failed to get county
permits as well. Almost thirty years ago, and also at Fort Hall, two neighboring
counties approved scores of subdivisions of reservation lands county-zoned agricultural,
in anticipation of the enactment of a tribal land use ordinance and plan. Now
the same jurisdictions find their growth management initiatives in jeopardy
because of possibly thousands of “ghost” house lots on the reservation
and outside the proposed growth boundary.
Of the four counties overlapping Fort Hall, two are inclined to press their
jurisdiction, one impinges on an undeveloped area, and one, Bingham County,
has chosen to refer all its on-reservation planning and zoning matters to the
Shoshone-Bannock Tribes. This is an arrangement that works well enough but is
probably open to challenge. It is conceivable that a disgruntled landowner could
sue Bingham County to force it to assert its Brendale jurisdiction.
Indian nations and overlapping or neighboring planning jurisdictions can avoid
the chaos, the expense of duplicate efforts, and the potential liabilities resulting
from Brendale through a strategy of cooperation and mutual respect. For
example, citing Brendale, the Quinault Nation and Jefferson County Washington
entered into a memorandum of understanding establishing a joint working group
to resolve planning issues (7). During a six-month period
in which the working group met to develop planning and zoning policy recommendations
for both jurisdictions, non-Indian P&Z applications on-reservation were
referred to the Quinault Nation. A similar process was followed by the Swinomish
Indian Tribal Community in Washington, working with Skagit County on planning
and zoning issues and with the state on matters such as natural resources and
transportation (8).
In both these cases Indian nations and their neighboring jurisdictions were
able to resolve their differences in a constructive manner. This was in spite
of much hard feeling on both sides over the “salmon wars” of the 1970s
and ‘80s. Besides a mutual willingness to cooperate, the other necessary
elements were tribal and county governments with well-established and capable
planning departments.
Winning Strategy # 2: Joint Economic Development
Economic development and generating new employment are tough for most communities,
even in a growth economy. Economic developers are always looking for the competitive
edge that will bring employers to their areas. That edge could be the presence
of suitably located Indian lands.
Federal and tribal government incentives provided for on-reservation economic
development include accelerated depreciation, tax credits, workforce programs,
financial incentives, special economic zones and the possibility of streamlined
regulation and permitting. Some non-Indian communities could find it worthwhile
to transfer economic development sites to tribal ownership to take advantage
of these breaks.
The Omnibus Budget Reconciliation Act of 1993 provided accelerated depreciation
of capital property and equipment for businesses on-reservation (9).
It also included tax credits for wages and benefits paid to Native American
workers, up to $4,000 per employee.
Development on Indian reservations is a good candidate for the New Market Tax
Credit, a 39 percent credit to taxpaying investors who put equity into “community
development entities” which in turn invest in productive businesses. Indian
and non-Indian communities can both benefit from CDE loans to startup businesses.
There are a number of federal special economic zone programs in place targeting
low-income or distressed communities. The US Department of Agriculture Empowerment
Zone/Enterprise Community (EZ/EC) program includes at its entry level the “Champion
Community” designation. Currently there are five joint Indian-non-Indian
Champion Communities working their way up to EZ/EC status (10).
The “Hub Zone” program allows qualifying communities to establish
zones within which businesses are eligible for first preference in some major
federal procurement and contracting. This would be a natural partnership, as
Indian nations meet the qualifying characteristics but mostly lack the kinds
of businesses that could take advantage of Hub Zone preference, as for defense
contracts (11). An Indian nation qualifies as a grantee
for establishing and operating a Foreign Trade Zone, and has the advantage over
local governments in not having to secure state authorization or go through
the intermediary step of establishing (and securing voter approval for) a special
purpose district.
Recent Court decisions have extended state tax authority over Indian-country
businesses. However, a majority Indian-owned business located and licensed on-reservation
is still most likely exempt from state business and corporate taxes (12).
State tax exemption, combined with federal incentives, can be quite an edge
for a competitive-sector business. States may find it advantageous to forego
taxing other classes of businesses on-reservation, perhaps with the establishment
of an in-lieu fund for public purposes to compensate for lost revenues. This
strategy would enable a state to create a de-facto tax abatement district in
a distressed region without having to grant the favors to every community in
the state.
Then there is the “Buy Indian” policy. Given the right ownership
structure a joint venture business with Indian participation can receive preference
in federal and other government contracting and procurement. This can generate
a lot of business volume, for instance in fuel sales and marketing electric
power.
Most of the strategies listed here are untried. A notable exception is the
case in Niagara Falls, New York, which invited an Indian Nation to set up a
casino on a city-provided site. Even before its opening, this venture has helped
revitalize that city’s laggard, tourism-based economy. There is no reason
the same strategy and spirit of cooperation couldn’t be used to promote
other types of economic activity.
Winning Strategy #3: Access
The “government-to-government” relationship between Indian nations
and the United States makes a tribal participant a valuable member of any regional
development team. In theory a tribal chairman is the equal of the President
of the United States. In fact it is a generally accepted practice in Washington
that tribal leaders are met at the Secretarial level when they visit an Executive
Branch department, and are met in person by their state’s Senators or Representatives.
Needles to say, even lower-level first nation representatives normally enjoy
excellent federal access at the staff and working level. As a result, every
Indian nation has members who have long practice and extensive Washington contacts.
Very frequently, regional planning or development initiatives require federal
funding or special legislation. There are cases where administrative attention
is required, for instance in securing transportation improvements, regulatory
approvals, loan or bond guarantees, access to federal lands, and so forth. If
your task force, committee or blue-ribbon panel includes a tribal leader, that
individual can get you the kind of access in Washington that would otherwise
cost you dearly.
Winning Strategy #4: Regional Cooperation
More and more, planners find themselves part of regional initiatives involving
multiple jurisdictions. If the region includes an Indian nation, it is customary
to invite its participation. This presents several issues.
It is sometimes problematic for a nation to participate on an official level;
the question is how one of the “three sovereigns” (13)can
interact on an official basis with local governments and other agencies that
are creations of state government, or with organizations having no connection
to government at all. Indian nation representatives usually need official authorization
to “speak for” their tribe. A typically freewheeling task force or
panel can easily put first nation representatives in positions where they are
operating outside their instructions and authority. A third issue that comes
up often is the role of Indian nation representatives. Native participants bring
a unique viewpoint and skill set “to the table” but are often relegated
to non-speaking roles or token participation. When this happens it is an immediate
loss to the group and usually leads to the eventual withdrawal of tribal participation.
Geography is destiny, as they say, and Indian nations are often part of what
defines a region. The Fort Hall reservation, for instance is at the geographic
core of its southeastern Idaho region. Without tribal participation a regional
initiative is left without a coherent region.
In a recent initiative, the Shoshone-Bannock Tribes became involved in a regional
working group developing a plan and a multi-million dollar proposal to combat
poverty. The non-profit sponsoring this effort made it a condition that there
be meaningful tribal and other minority involvement in the working group itself,
in the proposal/plan and in the process used to develop it. Another condition
laid on the working group was that plans should be developed at the grass-roots
level and embody “out of the box” thinking.
In this case the tribal representative was a leader of the group and became
one of its two designated “communicators.” Indian thinking, values
and social skills provided the framework for the group’s processes and
plans, and Shoshone-Bannock Tribal staff provided technical support. Tribal
participation and leadership also provided a mediating influence among working
group members self-identified with competing and sometimes antagonistic communities.
Proposals that would have been rejected by other group members if seen to be
coming from one community or another were acceptable because they “came
from the Tribes.” The plan and proposal to the non-profit are in their
late stages and regional participants are beginning to see the possibility that
everyone, Indian and non-Indian alike, will see some long-term benefits.
More and more, progressive-minded agency and foundation managers are rewarding
groups and organizations that demonstrate cooperation across racial and socioeconomic
lines, that respect the views of minority and grassroots participants, that
think “out of the box,” and whose work leads to improvements in a
region’s overall social dynamic.
Notes:
- Participating in the conference session also was Deborah A. Howe, FAICP,
Department of Urban Studies and Planning, Portland State University
- Some people call this relationship “the same old same-old”
- Worcester v. State of Georgia, 31 US (6 Pct) 515, 561, 8 L Ed483 (1832)
- United States v. Kagama, 118 US 375, 381-2, 6S Ct 1109, 30 L Ed 228 (1886)
- Montana v. United States, 450 US 544, 565, 101 S Ct 1245, 67 L Ed2d 493
(1981)
- Brendale v. Confederated Yakima Indian Nation, 492 US 408, 109 S Ct 2994,
106 L Ed2d 342 (1989)
- “Memorandum of Understanding between Jefferson County and the Quinault
Indian Nation” dated Sept. 12 and Dec. 4, 1989. Center for World Indigenous
Studies, Fourth World Documentation Project. http://www.cwis.org/fwdp/Americas/quinjcmou.txt
This MOA was included in the conference handout version of this paper
- Zaferatos, Nicholas C. “Tribal Planning as Strategic Political Action:
A Case Study of the Swinomish Indian Tribal Community,” 1999 APA Proceedings.
file://J/Proceedings/PRCDS99/ZAFERA/ZAFERA.HTM
- These “Omnibus Act” provisions expire this year. They are up
for renewal, although the provisions as-passed may be somewhat different.
See for instance U.S. Department of the Treasury, Internal Revenue Service.
publication “Tax Incentives for Distressed Communities” Publication
954 (rev. June 2001) cat. no. 20086A http://www.irs.gov/pub/irs-pdf/p954.pdf
A sample of the MACRS depreciation rates for capital property and equipment
located on an Indian reservation is shown below:
Property Class...................................................Recovery
Period
3-year property ..........................................................
2 years
5-year property ..........................................................
3 years
7-year property ........................................................ 4
years
10-year property ...................................................... 6
years
15-year property ........................................................
9 years
20-year property ........................................................
12 years
Non-residential real property .................................... 22 years
- United States Department of Agriculture, “Champion Communities List”
http://www.ezec.gov/Communit/champions.html
- The Shoshone-Bannock Tribes are the only designated Champion Community
in Idaho and have Hub Zone status as well.
- Other ownership and location structures are probably litigable.
- The three sovereigns are the United States Government, the Indian nations
singly and collectively, and the States.
Author and Copyright Information
Copyright 2003 by authors
Jon Norstog AICP
Planning Department
Shoshone-Bannock Tribes, Ft. Hall ID
jnorstog@shoshonebannocktribes.com
Michelle Pak AICP
Planning and Development Services Department
City of Pocatello, ID
mpak@pocatello.us
Darrell Shay
Planning Department
Shoshone-Bannock Tribes, Ft. Hall ID
dshay@shoshonebannocktribes.com |