Negotiating with Indian Tribes

History is in the Room

The adage ‘seek first to understand, then to be understood’ is always wise counsel. When interacting with Indian tribes, it is imperative.

There are over 550 federally recognized tribes in the United States, each one a sovereign nation with a unique history and culture. One of the attributes common to all tribes, in my experience, is a keen awareness of their history and, in particular, their historical and cultural ties to their traditional land. Tribes bring their history and culture into negotiations and it is critical for all parties to the negotiation to listen, learn, and try to understand. It is common, for example, for tribal officials to discuss in the most profound terms their cultural and spiritual connection to land that is now owned and managed by the federal government. Tribal people will speak about their ancestors’ painful experiences of being forced off these lands, or being attacked by the United States military, in ways that make it seem that the events occurred yesterday.

My sense is that, in order for Indian people to begin to trust other parties in a negotiation, they need an indication that the other parties respect them, their history, and their culture. It is not necessary to agree with Indian people or to relinquish positions counter to tribes’ claims in order to show respect. Simply by listening respectfully and being open to learning about Indian people, their history, and their present-day needs and challenges, parties working with Indian tribes can demonstrate the good faith that is necessary in seeking consensus with tribes.

A Bundle of Sticks

A mountain on the outskirts of one of New Mexico’s largest cities was the focus of controversy for many years between an Indian tribe claiming ownership of the mountain and the U.S. Forest Service, local governments, and the community living adjacent to the disputed land. Informal efforts to resolve the controversy were unsuccessful and, eventually, the Indian tribe sued the United States in federal court in Washington, DC.

The tribe was successful in the district court. On the way to the court of appeals the parties agreed to stay the litigation and seek resolution of the land claim. The parties retained an experienced third party neutral to mediate the dispute and all of the stakeholders – the tribe, city and county governments, a homeowners association, and the federal government (namely, the Justice Department, the Bureau of Indian Affairs, and the Forest Service) – initiated settlement talks.

The Indian tribe and the local community were fixated on ownership of the land, tied to their longstanding view of who has the right to the land, views which had been reinforced during the litigation. As is often true of any dispute, the parties came to the table tied to their positions, unable to see how a ‘win-win’ outcome could be possible.

At the outset of the negotiations, the mediator proposed that all parties describe their relationship to the land and its current uses. A lengthy and useful discussion of the land in question, its attributes, its uses, and each parties’ current relation to it ensued. While the parties seemed to gain a better sense for each other’s relationship to and concern for the land through this process, there remained an underlying feeling in the room that “someone’s ox was going to be gored” in the negotiation, that competing claims for ownership could not be reconciled.

I found myself thinking about how to frame a model for possible resolution of this disputed ownership and, in the midst of my musing, recalled the basic owner concept introduced early in Property Law in law school – the concept of a “bundle of sticks.” Essentially, the imagery of a bundle of sticks is used to represent the multiple rights and interests parties can hold in the same piece of land. There is the fee title to be sure, but in addition there are a myriad of other rights, including rights to the subsurface, the airspace above the land, rights of access, rights to use resources on the land, and rights of occupancy.

Without really thinking about the concept further I brought up the image of a bundle of sticks and suggested that the parties keep in mind the possibilities for different ownership arrangements and interests in land that might be devised to resolve the dispute. Prior to that moment the tribe’s lead negotiator had little use for me. At that moment, however, his eyes brightened. He immediately embraced the image. Many times thereafter the bundle of sticks, or some approximation of it, was brought into the discussion as a framework for talking about the parties’ rights and interests in the land. What I only realized afterward, however, was that the image of a bundle of sticks fit well with tribes’ identification with the land and the trees, grasses, and other vegetation they recognize as home.

I do not pretend to have offered a particular breakthrough to the discussions or of single-handedly pointing the way to a win-win resolution of the dispute. The negotiations went on for months and eventually the local governments and the local community group withdrew from the negotiations. Nevertheless, significant progress was achieved during the negotiations among all parties in identifying a framework for land management, use, and ownership that recognized both the tribe’s and the public’s interest in the land. The legislation that Congress eventually enacted to resolve this land claim closely resembled the settlement proposed to Congress by the tribe and the federal government, reflecting the concept of rights and interests held by the public and the tribe that all parties had come to see as possible.

The particular image or concept to move negotiations with tribes forward will vary, but it is good to remember how strong tribes’ ties to their traditional land are, and to think about how disputes over its use, preservation, or ownership might be moved toward resolution using concepts or images drawn from the land, its uses, or the flora and fauna that are found on it.

Be Aware of Your Biases

Frequently at the beginning of a meeting or negotiation with an Indian tribe, a tribal official will request to offer a prayer to bless the meeting. I have found this to be a solemn and at times moving experience.

During a break at one such meeting a Forest Service official confided to me that he would like to be able to offer a prayer to his God as well. I do not think this official let his resentment get in the way of dealing fairly and respectfully with tribal officials. The incident highlighted for me, however, how the unique status of Indian people in this country allows them the freedom to invoke a prayer at a meeting, an act that can trigger resentment in other parties or government officials. I credit the Forest Service official with acknowledging his resentment while not letting it stand in the way of working respectfully with tribal officials.

Behind the caricature of the faceless, cold government bureaucrat are thousands of dedicated public servants genuinely aspiring to effective working relationships with the general public and Indian people. I have seen this effort repeatedly, from the district ranger level while “walking the land” with Indian officials to the Forest Service Chief’s office in meetings with tribal leaders.

Nevertheless, there are conscious and unconscious attitudes and prejudices in many people that color their perception of Indian tribes, their claims, and their culture. I am not speaking of virulent or hostile racism, but the kinds of judgments and assumptions that influence perception and understanding. I have seen these attitudes in myself at times and they are fairly common whenever people of different cultures interact, even with the best of intentions.

For example, because some tribes have made substantial sums of money from tribal gaming operations in recent years, some non-Indians perceive Indian tribes to be wealthy. This perception can and does create resentment and animosity, which can impede the ability to interact effectively with Indian tribes. The perception of Indians getting rich quick off of gaming revenues is erroneous in many instances – many tribes do not have gaming operations or do not reap significant revenues from them. Poverty, unemployment, and substance abuse are severe problems in much of Indian country. The gap between a perception of Indian people as rich from gaming revenues and the reality facing many Indian tribes is stark, and this perception gap can make it difficult to understand and work with tribes as they are.

It may not be possible to rid oneself of attitudes or prejudices that arise. Still, it is vital to be aware of and recognize that a person’s attitude may color or distort a person’s view of tribal claims, culture, or interests.

To summarize, when working with Indian tribes, be aware of your attitudes toward Indian people, seek to understand and show respect for tribes’ culture and history, and take into consideration how tribes’ connection to their aboriginal land, their culture, and their creation stories shapes their approach to issues. This approach will not assure mutually satisfactory resolution of disputes but it will lay the groundwork for improved working relationships with Indian people.

                       

Jeffrey Vail

Jeffrey Vail is a staff attorney advising the Forest Service on its land management authorities in administering 191 million acres of National Forest System land. Since 1991 he has advised the Forest Service on its responsibility to and relationship with Indian tribes throughout the United States on issues that include… MORE >