The MacNeil/Lehrer Report; "Indian Sovereignty and ""The Longest March"""

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. Funding for this program has been provided by this station and other public television stations and by grants from Exxon Corporation, Allied Chemical Corporation and the Corporation for Public Broadcasting. . . Good evening. Some 1,000 American Indians and their supporters are camped tonight on a state park 35 miles up the road from here in Maryland. Tomorrow they will break camp and march down US Highway 29 toward Washington, coming into the Capitol on Saturday for several days of prayer

vigils and demonstrations. It's the end of a 3,000 miles symbolic walk in Caravan across the country, which began in February at Alcatraz Island in San Francisco Bay. They call it the longest march. It's specific purpose to protest 11 bills, now pending before Congress, called by some the backlash bills. The Indians say they are an attempt by the white man to steal what little property rights, regular rights, and the spirit. The American Indian has left. The bill's congressional sponsors and supporters say not so. They're designed to correct injustices and inequities that have arisen. As Indian tribes have begun to win court decisions and invoke long dormant rights and jurisdiction over non-Indians involving everything from criminal cases to water. We'll be talking about the central issues involved in all of this in a moment. But first, a look at how this relatively quiet confrontation between Indian rights and non-Indian rights is plain itself out.

Wherever there are Indian reservations, there are disputes and tensions over mineral rights, traffic violations, or whatever. Some of the most important conflicts in the West concern water use and water rights. We've chosen three representative cases from Montana, Washington and Idaho. They're excerpted from a documentary produced by public station KUID Moscow Idaho. The narrator is Greg Williamson. Flathead Lake, in western Montana, is serene and beautiful. But the pastoral setting belies a conflict that has surfaced in recent years. And the resolution of that conflict may go a long way in answering some basic questions about the sovereignty of the American Indians. In 1950, Wally Matthews and his wife bought a small piece of land on the banks of Flathead Lake. A piece of land that happened to lie inside the boundaries of the Flathead Indian reservation.

We recognized that it was within the perimeter of the reservation, yes. I don't think anyone ever considered that it was any problem with it because it was a needed property. One didn't worry about what the title of it was going to be. When they bought this land nearly 30 years ago, the Matthews had no reason to worry. The affiliated tribes of the Flathead Indian Nation were dormant. The reservation had dwindled to a fraction of its original size. Most valuable farmlands and lakeshore property had been sold to nine Indians. Neither the tribe nor any of its members carried noticeable political weight. During the 1950s and 60s, the Indians were busy fighting termination. A U.S. government-sponsored policy designed to eradicate the tribes, sell reservation lands, and move Indians into mainstream American society. But termination failed, and when it did, things began to change.

Well, I think the fishing permit was the first thing that the tribes tried to inaugurate. In other words, they wanted to license you to fish on the south half of the lake. They didn't want the state involved in it, and they had very store, practically, and like in Polson and Ronan sold fishing licenses. The merchants were many of them were boy-cotted because they sold them, and people wouldn't patronize those stores because they were selling these permits. But the fishing permits were only the first step. The next step was to establish complete tribal jurisdiction over the lakebed and shore of Flathead Lake. As part of their lake protection ordinance, the tribe has instituted a system of dock fees, which has apparently met with limited success. Well, most people are turning them down, but there are a lot of people who older people who get buffed into these things. We have several widows that live in this area, and if they're threatened enough,

they'll be cheaper, and I've heard every citizen say the same thing. It's cheaper to pay the Indians $25 and get them off my back. I'll do it. You don't feel any sympathy for those people who you don't think are in a hard spot. No, because the tribe isn't going to be hard to get along with. But how can you say that? No. You know, they're making us out a bunch of people that are going to dig into their pocket books and all kinds of laws, and we're not. Can you give them that guarantee? Well, as far as I'm concerned, I sure can. Have you ever tried to give them that kind of guarantee? They won't listen. Wally Matthews and his neighbors fear the tribe will choke off access to the water, a move that would make their land valueless. And at that point, they see only one alternative. Probably all sell out and get out of here. That's something you do, and you're going to give it away because you're going to have a hard time selling your land.

It's worth it. It'll be worthless. Do you think there's a chance of confrontation at that point? It's very possible. Lloyd Ingraham is an attorney living on the Flathead Reservation. He represents an organization known as Montana's opposing discrimination, or MOD, which is working to end the reservation system. Number one, if we are to continue with our democratic way, Republican type of government in the United States, under the United States Constitution, there is no room for a sovereign nation outside of the states and outside of the United States. The population on Flathead Reservation is largely non-Indian. Members of MOD fear the results. If the tribal council were granted full judicial powers. Now, on a reservation such as the Flathead, where you have a population mix of 83% non-member and 17% member, I cannot see any way where the 17% can establish a government,

under which all the people on the reservation must live, and not give any voice or representation in that government of the 83% that are going to be controlled. Tribal constitutions rule out participation in tribal affairs by non-members. Non-member residents of the reservation would have no practical voice. In the way they're immediate local government, the tribal council ran their affairs. Nor would they be allowed to participate in tribal elections. Glenwood Washington is a tiny community that until recently was located a few miles off the Yakima reservation. Since the late 1800s it has been homesteaded and formed by non-Indian landholders. In 1966, the Indian Plains Commission found a missing survey that allegedly showed the Glenwood area to be part of the reservation. In 1972, President Richard Nixon signed an executive order, annexing Glenwood and surrounding farmlands into the Yakima reservation.

And the reality of their situation didn't strike most Glenwood residents until 1977, when the tribe adopted a new water code affecting everyone within the reservation, Indian and non-Indian alike. The code prioritizes water users with tribal interests first, private non-Indian users near the bottom. Well, I think when you take a look at the water code, you'll see that the non-Indians are seventh in line as far as priorities are concerned. And if they find that they had another use for the water and separated water from the land, from the ranchers land, you can see what land values would go because land and water are inseparable. And the water was adjudicated to the ranchers there by the state of Washington. And we've worked their lifetime putting together what we've got

and if the water's taken away, you can see what it will do to us. It is not our intent to be unfair to anyone. Naturally, with our claim, we would have to give priorities, but unfair no. The code calls for tribal control of all waters on the reservation. All users within the reservation boundaries have been required by the tribe to file claims for the water they use. My position at this time that I'm not going to file, and I think that's the position of the rest of the landowners. I don't think that they have anything to worry about if they file. I think it'd be to their benefit to file because no one, I don't think the tribe is interested in depriving them of what water they now use. Harold Gray is president of the Interstate Committee for Equal Rights and Responsibilities, a group active in the Indian Rights Confrontation.

As I've received calls from farmlands in Eastern Washington where they ask me one question, says, Mr. Gray, do you mean to tell me if this water could, then this tribe goes through it? I will have to go to the Yakima tribe for permission from my water. And I says, yes, this was through. And it's hard to think of the man saying this, but he said if this were true, my authority is going to be the end of a shotgun. Tribal officials say ranchers who do not file may find themselves without water. The basic thing that they can depend upon is going to court. I think it'd probably be good to have a test case. I think that's probably one way to help it get resolved. Expecting the worst, Glenwood residents have filed suit in federal court to block implementation of the Yakima Indian Nations water code. The struggle for water here in Yakima County is being repeated throughout the West as tribes move to claim what they say is theirs. And non-Indian water users battle to hang on to what they feel they've earned legitimately over the years.

Robert Delwell is a Spokane Washington attorney who represents several Northwest tribes. Among them, the Spokane's of Northeastern Washington state. Litigation he's initiated on behalf of the tribe includes a case dealing with this beautiful, but rather insignificant stream. Shemican Creek. But that's where the Shemican Creek case is a pioneer case. Nevertheless, it should be obvious that a tribe should have the right to protect the flow of a stream rather than not have to destroy it in order to use it. Traditional legal thought holds that the proper and protectable uses of a stream are limited to economic gain. But Delwell and the Spokane's are arguing that the depletion of a stream for agriculture or industry is not necessarily the highest and best use of the water. Shemican is the eastern border of the Spokane Reservation. Council Chairman Alfred McCoy is among those who believe the tribe should control the stream.

We feel that it is our water. It is the governing body's authority to govern all of our resources. We feel that Shemican Creek is a beautiful stream. We feel that we don't have to quantify it and hear Mark the gallons for irrigation or we want to leave it this stream just like it is. A beautiful stream. Shemican is presently governed by the state of Washington. Permits are issued to local ranchers who have a need for the water and most do. Jim Newhouse Farms land that's been owned by his family for over a century. He doesn't draw water from Shemican but takes it from a water table that the tribe says feeds the stream. I can't visualize in my mind how any tribes should control water as that eventually flow to the ocean to me it doesn't make sense.

Newhouse's small operation depends on water but he admits that if the tribe is given control of the Shemican his ranch will survive. We would probably buy water from the reservation. It would probably have a charge on it and it would probably set up something like other water districts are throughout the country. If we had to have a water charge on top of that it would make the economy of the farm hard to live with. A few years ago we were living in the present generation and as the population becomes more dense so the water is just to have to be used more economically and they have to be used for more things to provide food and help to people.

With Newhouse's farm threatened by the action of the tribe one might expect him to be bitter but he's not. But there are others involved in the suit. Because of the expense of the suit he had to sell irrigated portions of his land. The tree is there's two of them and there's nothing in it about water. It's hunting and patient.

13 foot water level down there and there's not a thing in that treaty either nothing about water. A few treaties specify water rights. Western water rights are based on the concept first in time first and right. The first user to be granted rights to a body of water will always have first rights to that water. The tribe was here first but over the years their water was allocated in increasing amounts to non-Indians. In 1908 the United States Supreme Court made a landmark decision now known as the winners doctrine. They said that Indians placed on reservations were entitled to all the water necessary to irrigate their lands but the tribe doesn't want to irrigate. It's a beautiful stream and our goals are to keep our reservation as it is as long as we can. This council probably the future generations of younger people will look at some recreation developments.

Ralph Johnson is an instructor at the University of Washington Law School and a specialist in Indian law. Indians have the legal right for example to zone Indian reservations to control water rights and such. But having not asserted those for all that time other people non-Indians have come on with legitimate expectations about what their rights are that they were controlled by state law. So you have a real clash going on now. And my own judgment is and this is just a personal prediction is that there's got to be some accommodation. There's going to have to be some compromise there. Now for a for a congressional view of the Indian rights versus non-Indian rights issue with Congressman Lloyd Meads. Democrat of the state of Washington the sponsor of two of those 11 so-called backlash bills the Indians are protesting. Congressman do you think compromise is really possible in this general issue? Yes, I think it's not only possible but essential.

You see what we've seen here tonight is the impending collision or actual collision of Indian tribal rights and constitutional rights of American citizens. Some people and we saw that in the film are advocating that you simply do away with reservations and that assimilate the Indian into the total population. The lead child is culture and change him. That's one what I consider to be extreme. You do not support that. No, I do not. Another one is espoused by many of the leaders of the American Indian movement which is that tribes and reservation should have absolute sovereignty. There are islands of sovereignty some 244 Quebecs in the United States. I don't espouse that either. I don't think that will work. My legislation, particularly my jurisdiction legislation, deals with the problem by establishing that the jurisdiction, the power to determine and decide over people's lives and property and things will be exerted by Indian tribes over their own members on their tribe on their reservations. But it will not be exerted over non-Indians.

Even if even in matters that relate directly to what happens on the reservation. Is that right Congressman? That is correct. Yes. In so-called Indian country. Ernie Peters who is a Ogilale Indian from South Dakota and one of the leaders of the marches just now joined us. Mr. Peters, I was just interviewing Congressman Meads here about his views on this whole question of Indian rights versus non-Indian rights. And I'll be to you in just a moment to get your reaction. Congressman, one of the bills in addition to the one that you have introduced on jurisdictional grounds, on jurisdictional rights, is one that relates directly to water rights, which the film just went into. What is your position on how India, on how water rights should be resolved, the problems there? My position is that the 98 winners doctrine ought to be made more certain. Right now it's a legal theory, a legal doctrine. And it's a paper right.

It is my position that for everybody's best interest, the Indians and the non-Indians, that that right ought to be quantified. It ought to be established as to what it is. And I set up in this legislation a procedure to establish what that right is. That procedure is to take the use, the highest use for the last five years, and establish that as the basic right, which the Indians are entitled to as of the time their reservations were created. It would be prior in time to almost any cities and a number of other users which have come in. But this will give Indians a basic allotment, and then they could join with others in obtaining further rights. I don't say this is the be-all and the end-all. It may not be the best way, but it's something we've got to start talking about. I think responsible Indians will tell you that they feel those rights should be quantified too. All right, well let's go to Mr. Peters. Mr. Peters, the point that Congressman Meade's is making is that there has to be compromise between the two extremes, as he calls them, between those who would want to do away with the reservations,

to aggregate the sovereignty of the Indian nations and assimilate Indians into American society, versus some Indian leaders who believe in complete sovereignty and have nations in and of themselves. Do you believe from the Indians point of view there is area to compromise between these two positions? Well, let's put it this way first. After 500 years of total genocide by the United States government, to my people, the red man that works in hemisphere. After taking all our land except the reservation and now they want our reservations, you have to understand something, and this is what I want the public, the innocent victims of the same government that they're pressing us. There are two hundred and seventy-one treaties, three hundred and seventy-one treaties we're asking the United States to honor. First, you have to remember, the United States, and I'm sure a means would be interested in this.

The United States does not make treaties with their citizens, only with foreign or sovereign nations. The last treaty was made in 1973 at Mundini. So this by treaties alone make us a sovereign nation, over 800 made with the American Indian. We're asking them to honor these treaties and give us our sovereignty so that we can control our own destiny. Talking about water rights that Mr. Meade has introduced, what he is trying to say is that he wants to control our destiny. Why don't he go and control the water rights of Russia or Japan or the water rights of Canada? We are a sovereign nation, we have a right to our destiny. And right now what he's talking about, if his bill goes into effect, if we are farming 25 acres of land and we're getting water for that, and also we want to farm 75 acres, they can only go back five years and take the highest amount of water that we have used, even though it was only for 25 acres. How could we farm 75 acres? How could we become self-sustaining if we wanted to? We would have to go to every tribe and go through the legal terminology that would be set up by this gentleman who says it would be equal opportunity for all when it wouldn't be.

Congressman? Well, first of all, I hope that Mr. Peters would agree with me that there are some areas of compromise because otherwise I don't think he believes that tribes can exist as isolated, totally sovereign entities within the United States with the right to bar people from the reservation, passing highways. But before he goes any further, let me also say this, we are not isolated. In fact, our reservations are in a way of progress, what they call progress. Progress to us, which in the last 500 years my ancestors and to me, right to this point, have meant nothing but hate, greed, rape, destruction of our mother earth, the pollution that is now in our lakes, rivers in our streams and our forests. Little over 200 years in a civilization, civilization of the United States is on its downfall.

But to his specific point, do you want the sovereign nation, the Indian reservations to be sovereign nations in our own way? That's why we never have enough time to talk to men of his caliber because they only know what they have written or read. They don't know about humanity, love, compassion, survival. Like I said, we want our sovereignty because we want no part in the destruction of our great country. We want to leave something for our children are unborn. And by you, and Mr. Cunningham, right in these bills. Congressman Cunningham is the sponsor of the bill that you mentioned a moment ago. Which would abrogate the sign rights and I am opposed to that. And you are opposed to that. Yes, I am. Very much so. I'm glad I took much for you. Congressman, the question on compromise. I think that at least what you're saying, Mr. Peters, that there is no room for compromise from your standpoint. Not after 500 years.

All right, Congressman, then looking at a realistic resolution to these many problems that I have developed. And you would concede, would you not, Mr. Peters, the problems over water, mineral, even criminal cases on reservations. Because they are real problems and they exist. What is the solution then, Congressman, if Mr. Peters and his group will not compromise? Well, first of all, I think that there shouldn't be any big problems with regard to minerals and resources which exist on Indian reservations. We ought to, through governmental effort and through personal effort, help Indians develop the resources on their, on their reservations. And to help them become more self-sufficient. And to help them in self-determination. To help them in self-government. To help them become more of what they want to be. If they want to be isolated and insulated. I don't mean to interrupt. But again, he's talking about self-determination. We do not want termination of our tribes. Termination would mean assimilation into the civilization which we are fighting.

What's wrong with that? Let me ask you from your point of view, why do you not want to be assimilated into America? For that reason, every nationality in the world has a land base. Am I not right? You name a nationality. Japan, Russia, China, Egypt, Sweden, Denmark. Italy, you name it, they've got a land base. Mexico. Canada, Latvia, Lithuania. You can go on and on. I mean, we can sit here for days and do that. We are a nationality. We are the red man of the Western Hemisphere. Our land base is our reservations. Again, I have to go back and say, why don't you go to Japan and try to take away their land? We beat them in war, but we have their land. A few seconds left, Congressman. What do you think is going to happen first of all to all these bills? Well, I think these bills, almost all of them are at this time dialogue pieces to start the dialogue, to begin to solve the problems which we saw on the screen, which are very real problems. And we have had a brief dialogue tonight. Gentlemen, thank you very much. We'll see you tomorrow night. I'm Jim Lara. Thank you and good night.

Thank you. For a transcript, send one dollar to the McNeil-Lare report, box 3-4-5, New York, New York, 1-0-0-1-9. The McNeil-Lare report was produced by W&E-T and W-E-T-A. They are solely responsible for its content. Funding for this program has been provided by this station and other public television stations and by grants from Exxon Corporation, Allied Chemical Corporation, and the Corporation for Public Broadcasting. Thank you.

Thank you.