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:

  1. Participating in the conference session also was Deborah A. Howe, FAICP, Department of Urban Studies and Planning, Portland State University
  2. Some people call this relationship “the same old same-old”
  3. Worcester v. State of Georgia, 31 US (6 Pct) 515, 561, 8 L Ed483 (1832)
  4. United States v. Kagama, 118 US 375, 381-2, 6S Ct 1109, 30 L Ed 228 (1886)
  5. Montana v. United States, 450 US 544, 565, 101 S Ct 1245, 67 L Ed2d 493 (1981)
  6. Brendale v. Confederated Yakima Indian Nation, 492 US 408, 109 S Ct 2994, 106 L Ed2d 342 (1989)
  7. “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
  8. 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
  9. 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
  10. United States Department of Agriculture, “Champion Communities List” http://www.ezec.gov/Communit/champions.html
  11. The Shoshone-Bannock Tribes are the only designated Champion Community in Idaho and have Hub Zone status as well.
  12. Other ownership and location structures are probably litigable.
  13. 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