Lake Roosevelt Administrative History

1974 Solicitor's Opinion

Release of the Solicitor's draft "Opinion on the boundary and status of title to certain lands of the Colville Indian Reservation" in the summer of 1973 injected a measure of calm into the situation at Lake Roosevelt. This draft, which ruled that the CCT had the right to regulate and license hunting and fishing in its portion of the Indian Zones, was followed a year later by the Solicitor's opinion that brought an end to the Tri-Party Agreement. On June 3, 1974, Kent Frizzell, DOI Solicitor, reversed much of the 1945 opinion that formed the basis of the 1946 agreement. His key conclusion was that

the Indians' rights to "paramount use" of the Indian zone are reserved rights held by the United States in trust for them, and that those rights are therefore exclusive (except as limited by the prohibition against interference with project operations and by the Secretary's explicitly conferred power to prescribe conservation regulations). Those rights are a condition to and a burden upon whatever title the United States received pursuant to the 1940 Act. [103]

Thus, in addition to exclusive rights to hunt, fish, and boat in the Indian Zones, the tribes also had the authority to regulate use of the area by others.

The impact of Frizzell's opinion was so profound that Secretary Morton immediately directed that the agencies take all appropriate steps to implement his conclusions, including nullification of the 1946 Tri-Party Agreement and negotiation of a new agreement that included the tribes. Despite this directive, the status of the Tri-Party Agreement was in question for the next sixteen years. The tribes acted as if the agreement had been nullified while the Park Service and Reclamation maintained that the agreement was in effect until replaced by another. The result was years of disagreement, with the tribes probing the limits of the Solicitor's 1974 Opinion and the agencies, especially the Park Service, struggling to find a balance. (One later LARO official, frustrated by years of attempting to make sense of Frizzell's ruling, described the 1974 opinion as "a political decision dressed in legal clothing.") [104]

Efforts to negotiate a new agreement hit a dead end immediately. At a high-level meeting on July 2, 1974, tribal representatives said that they were not prepared to discuss a new agreement at that time, but they assured the other attendees that they would call a meeting when they were ready. Despite the lack of negotiations during 1974, both Reclamation and the Park Service remained anxious to reach a new agreement that winter to facilitate future management of the NRA. [105]

While the agencies hoped that a new agreement would clarify jurisdictional issues, both tribes continued to resist negotiations. When the tribes passed resolutions concerning jurisdiction in the Indian Zones, LARO Superintendent Burgen realized that the councils intended to continue adopting ordinances until they effectively replaced the Tri-Party Agreement. Thus the tribes would assume responsibility over the Indian Zones without negotiating a new agreement with the Park Service or Reclamation, an option essentially available to them under the 1974 opinion. STI attorney Dellwo confirmed this assessment. He believed that while the 1974 opinion was a step forward, it left participants with many unanswered questions. Dellwo discouraged consideration of a new agreement at that point, fearing continual disagreements during negotiations. "The Tribes need a period of testing," he suggested. "What the Tribe is doing is probing the limits of the Solicitor's opinion and implementing it step by step. Each item is a controversy in itself." [106]

The issue of Park Service campgrounds in the Indian Zones was a relatively simple issue to resolve. Because the Solicitor's Opinion came right at the beginning of the summer recreation season, all parties recognized the need to work out temporary solutions for the summer months. At a meeting on June 25, 1974, representatives from both the CCT and STI agreed not to regulate boating, water skiing, or swimming that summer; they discussed permit prices and agreed to recognize both tribal permits; and they came up with a solution for campground operations: the tribes would encourage the Park Service to operate the campgrounds during 1974 only, as long as the agency was willing to recognize the rights of the tribes to assume control of these areas. When the tribes met later with the Park Service, the agency agreed to continue operations in the Indian Zones for the remainder of the recreation season. LARO officials asked about the problem of Indians harassing non-Indians in the parks as well as acts of Indian vandalism, and tribal council members assured the Park Service that they would tell their people that the agency was operating "at the invitation of the Councils" to prevent further incidents. [107] The tribes planned to prepare handouts to inform the public that the Indian Zones were for exclusive Indian use except where permitted by tribes. The actual transfer of the campgrounds to tribal ownership took place in May 1975, after Reclamation and the BIA concurred with the Park Service. [108]

Throughout the next years, the tribes tested a variety of tougher issues as a way of establishing their rights as well as proving their status as equal players at Lake Roosevelt. The CCT viewed its effort to enforce regulations through the tribal court system as a way for it to demonstrate that it was a viable sovereign government that could assert its jurisdiction like other governmental units as well as protect the rights of its members. The STI and the Assistant Regional Solicitor argued late in 1974 about the tribe's need to get permits from the Park Service before operating concessions in the Indian Zone. C. Richard Neely, the government attorney, argued that the area was still under Park Service jurisdiction, as stipulated in the Tri-Party Agreement. He said that the recent opinion gave tribes exclusive rights to hunting, fishing, and boating in the Indian Zones, but not the right to manage the area. STI attorney Dellwo challenged Neely's interpretation of the June 3, 1974, opinion. He claimed that the Solicitor's opinion had confirmed the existence of both exclusive rights and the authority to regulate, and the tribes did not need to wait for a new agreement before implementing these. Neely realized that the tribes essentially were claiming ownership of freeboard lands, with no intention of negotiating a new agreement. Instead, they planned to "assert what jurisdiction they wish to take, which will leave the balance of the management for the freeboard lands under a cloud of uncertainty," he claimed. He believed that these circumstances made it nearly impossible for the Park Service to manage the shore lands adjacent to both reservations. [109]

Codification of tribal policies began early in 1975 when the STI, followed later that spring by the CCT, passed nearly identical resolutions pertaining to hunting, fishing, and camping in the Indian Zones. While the STI believed that it would eventually have exclusive jurisdiction over an enlarged Indian Zone, they chose to move forward slowly and carefully, continuing to work with the Park Service and other federal agencies in areas where the tribe was not yet ready to assume jurisdiction. Under the resolution, tribal permits were needed for camping, picnicking, and fishing, although additional shoreline areas would be set aside for casual picnicking with no permit needed. The tribes took exclusive jurisdiction and control over Indian boaters within the Indian Zones but acknowledged concurrent jurisdiction with the Coast Guard, Park Service, and the state over non-Indian boaters. In addition, the tribes took exclusive jurisdiction over permits for concessions, docks, pumps, and other structures in the Indian Zones. They assumed control of Park Service campsites in their areas and set these aside for use by non-tribal members, but they also designated certain other areas for the exclusive use of Indians. [110]

LARO Superintendent William Burgen seemed wary of these changes and their implications. He wondered what the tribes meant by suggesting that the Indian Zones be enlarged. He pointed out that they could not have it both ways on jurisdictional issues. If the tribes indeed had exclusive jurisdiction in the Indian Zones, then they had to accept responsibility for these areas since no other agency had a legal right to operate there. As the tribes moved to take control of Park Service campgrounds, he grumbled, "It would be nice if they could at least ask that we relinquish our delegated responsibility." He saw a number of problems with the proposed resolutions and asked the regional office to respond soon because silence could be construed by the tribes as acceptance of their terms. [111]