States, Indians Learn to Negotiate. In Idaho, the standing rule of thumb that tribes and government live by: Stay out of court. GETTING OFF THE LEGAL `WARPATH'
FOLLOWING the lead of Idaho, a number of Northwestern state governments are working to litigate less, and negotiate more, with local Indian tribes. From the fishing-rights cases of the early 1970s to the recent water-rights squabbles, much of the recent history of Indian and government relations has been written on court dockets.
But while a nonlitigious approach is relatively new in some parts of the United States, it has paid dividends for years in Idaho, where major tribal court battles with government are the exception rather than the rule. Idaho's simple formula: Stay out of court.
``We haven't had any major Indian litigation on anything in the last 10 years,'' says Ernest Stensgar, chairman of the Coeur d'Alene tribe. Robert Pirtle, a Seattle tribal lawyer whose firm represents nine tribes from Barrow, Alaska, to upstate New York, agrees. ``I've said, `Take a look at Idaho, folks, take a look at Oregon, and these will give you a model.'''
Idaho, for example, is wrapping up negotiations with Indian tribes along the Snake River to divvy up water rights on the state's major source of irrigation water, hydropower, and fish habitat. By contrast, Wyoming took the Shoshone and Arapahoe tribes to court over water rights and lost - badly.
``It wreaked havoc with the whole Big Horn and Wind River Basin,'' Wyoming Assistant Attorney General Jane Caton says. ``We were naive back then; we had no idea how badly it would turn out for us.''
Ms. Canton says the case ``polarized'' the state and the tribes. In the aftermath, Wyoming is working to take the kind of approach Idaho has taken. Other attorney general offices around the Northwest also report movement away from the courts, and toward negotiating disagreements with Indian tribes.
``Utah adopts the position that we'd rather negotiate than litigate,'' says Mike Quealy, Utah's assistant attorney general. He notes that Utah has in the past had major legal battles over reservation boundaries.
Oregon Assistant Attorney General Stephen Sanders says his state and its tribes cooperate to collect cigarette taxes and that ``a cooperative attitude has been a lot cheaper for us.''
In Idaho and Oregon, Mr. Pirtle says negotiations are carried out on a government-to-government level. Instead of dictating to tribes, the legislature meets with Indian leaders as it would with leaders of a neighboring state. Oregon's attorney general's office has an Indian Affairs Working Group.
That approach is in marked contrast to the state of Washington, Pirtle says, which has a reputation among Indians and their lawyers for taking tribes to court each time there is a conflict.
``I'm not sure it would be fair to call it a litigious relationship now; it certainly has been,'' says Tim Malone, an assistant Washington attorney general.
One reason for Washington's many court battles, he says, may be that the state has so many tribes: 25. Another reason may be the complicated legal issues involved. Some Indian aboriginal grounds, for example, are being overrun by big cities like Tacoma. Washington is adopting Idaho's approach, trying to negotiate disagreements, Mr. Malone says.
IN Idaho, residents who can't or won't negotiate head-on with tribes tell their troubles to the state legislature, some members of which have been assigned to become specialists on an Indian Affairs Committee. The seven-year effort is unique to Idaho, tribal lawyers say.
``By the creation of the legislative Indian Affairs Committee, Idaho took a big step in heading off major controversy,'' says former state Rep. Jeanne Givens.
Ms. Givens, a member of the Coeur d'Alene tribe and former member of the Indian Affairs Committee, says Idaho's approach is matched by tribal leaders who value a nonlitigious relationship. ``We have enlightened tribal leadership working with state leadership ... keeping the state out of court.''
Indian leaders in Idaho suggest the state's good relations may also stem from the fact that while Indians account for less than 10,000 of Idaho's 1 million residents, they have been well represented in the legislature. In the mid-1980s, Givens and Larry Echohawk, a Pawnee working for the Shoshone-Bannock tribe, were members of the state House of Representatives and unofficial ambassadors for the tribes.
Rodney Clarke, a member of the Kootenai Tribe's administrative team, says the relationship with the state is not perfect, but works better than any other he has seen. ``It's not a matter of absolute trust, it's a matter of whether one side gives the other the benefit of the doubt.''
On taxation, which has been a major sticking point with other states and tribes, Idaho recently reaffirmed its policy respecting reservation boundaries.
Two weeks ago, the legislature rejected a proposal by businessmen in Kamiah, a reservation town largely populated by whites, to require tribes to collect Idaho sales taxes in Indian-owned stores on Indian reservations. The tribes argued that their sovereignty would be violated. The Idaho House agreed, voting 57 to 27 to kill the bill.
Clarke and representatives of other tribes were gratified by the vote. ``It's a reaffirmation of a particular approach to Indian policy. The tribes aren't going to disappear, what's the point of keeping up the hostility?''