Lake Roosevelt Administrative History

Testing the Waters: Indian Rights, 1949-1960

As the federal government was looking into ways to end its trust responsibility to the tribes, the Spokane Tribe quietly began to test the limits of Indian rights at Lake Roosevelt. The first target was lands on the Fort Spokane Military Reservation, administered by the OIA (and later by the BIA). Department of the Interior (DOI) Solicitor Nathan R. Margold had ruled in December 1939 that the government did not need to compensate any tribe for lands flooded at Fort Spokane, reasoning that there was never any treaty concerning these lands. Furthermore, he wrote, when the President set aside lands for a potential reservation in November 1873, the government assumed that the tribe's acceptance of the reservation meant that they had relinquished title to any lands outside of its boundaries. Local Reclamation and Park Service staff eyed the remaining Fort Spokane lands above the 1,310 line as early as 1943 because of the location's recreation potential, but departmental officials cautioned against trying to withdraw the remainder of the military reservation, noting that the land was not required for the purposes of the Columbia Basin Project. Superintendent Greider raised the subject again in 1947 and noted that he had the support of Wade Head, Superintendent of the Colville and Spokane reservations. While the Commissioner of Reclamation still opposed the idea, Reclamation's Regional Director enthusiastically supported withdrawal of these lands for recreational development as part of the new national recreation area (NRA). [45]

While Reclamation and the Park Service discussed the propriety of adding Fort Spokane lands to LARO, the Spokane Business Council passed a resolution on March 17, 1949, asking for confirmation of their title to these same lands. This claim distressed Park Service officials who believed that the STI was trying to get Margold's 1939 decision reversed. "It is unfortunate that this somewhat belated assertion of rights in the land by the Indians will delay, if not entirely block, the addition of the lands to the recreational area," wrote Paul R. Franke, Acting Director of the National Park Service, in October 1950. He realized, however, that the agency could do nothing until the BIA had completed its study and the Department of the Interior made a decision. [46] Due to the uncertain situation, the Park Service decided to forego any plans for the main fort grounds and instead planned to confine its concession developments there to the lower bench area that it already controlled. BIA Commissioner Myer sided with the STI early in 1951, noting that the 1873 agreement to relinquish lands, including the fort grounds, had never been ratified and there had been no compensation for the loss of this land. He said that the Indians believed that they had never given up their claims to these lands and thus still had "valid rights in and to the lands based on their aboriginal use and occupancy thereof." The BIA agreed that the Indians at least had a "strong moral claim to the land." [47] The Solicitor concurred with this moral claim and went further to say that even though aboriginal title had been extinguished, the STI might be entitled to compensation. He also suggested that the lands could not be withdrawn for recreation purposes unless Congress authorized such action. [48]

Faced with these opinions and tribal opposition, the Park Service attempted to reach a compromise on Fort Spokane lands. The agency realized that it might not need all of the 331.31 acres and decided to propose a division of the lands designed to achieve legislative approval. They hoped to secure a water supply for recreation development and in return were willing to offer the Indians a concession there for the sale of arts and crafts. BIA representatives supported this proposal as long as the United States agreed to recognize tribal ownership of the fort lands outside the recreation area. They believed that the Indians might support the settlement once they recognized the advantages of federal money used for recreation development, along with a display for local handicrafts. The STI refused to capitulate, however. At a meeting in April 1952, Council members reiterated that they still were not sure of their rights to the Fort Spokane lands and until this was cleared up, "they could do no horse trading without horses to trade." [49]

Despite this setback, Park Service officials continued unilaterally to make plans for the development of the Fort Spokane lands during the next few years; these plans covered not only the strip of land owned by the Park Service, but also the entire fort grounds administered by the BIA. Their concern increased in 1957 when they discovered that the BIA recently had abandoned the old fort buildings. LARO Superintendent Hugh Peyton pointed out the historical significance of the area and warned that removal of any part would be tragic. He asked the BIA to hold off any disposal until the Park Service could assess the site and its preservation possibilities. Because the public was increasingly interested in historic sites, Peyton believed that tourists to the fort would benefit the reservation's economy. [50]

While the STI was hoping to negotiate an agreement with the Park Service over Fort Spokane lands, some tribal members continued to push for an expansion of their rights on the reservoir. William Kieffer, a Spokane Indian who operated a small gas station on Highway 25, wanted to install a dock with gas pump on the Spokane Arm in 1958. LARO officials discouraged this and viewed the action as an indication that the STI was questioning the Park Service's authority to regulate and administer concessions within the Indian Zones. BIA representatives warned the Park Service that the Spokane Tribal Council was "considerably agitated" by the ruling against Kieffer. They had changed their thinking on Fort Spokane and now wanted to trade these lands for shore lands bordering the Spokane Reservation. LARO Superintendent Homer Robinson referred Kieffer's request to the Field Solicitor who ruled in favor of the Park Service, saying that the 1946 agreement gave the agency sole responsibility for approving and supervising concessions catering to the general public on any site in the recreation area. [51]

Attorneys for the STI issued a lengthy opinion strongly disagreeing with the Solicitor's conclusions. They argued that before construction of the dam, Indians had exclusive rights to license non-Indians for hunting and fishing on reservation lands, and the 1940 Act did not terminate these rights. They also had the right to exclude non-Indians from such activities, and "if the Indians could exclude, they could license." They concluded that Congress did not intend to limit Indian rights further with the 1940 Act since this

would not be fair in light of the rights previously enjoyed by the Indians. . . . Thus, we say the public should be excluded from the land portions of the Indian Zone, and that the Indians can use the land portions to set up concessions or make such other ordinary uses as they previously could. If they cannot do at least this, then they are entitled to compensation for loss of valuable rights . . . .

Actually, the Indians do not want further compensation; they want to share to some small extent in the economic opportunities made available by the vast lake created by Coulee Dam. The river bank land and access to the water was formerly one of their most important assets; it would be a most serious loss for them — not only of revenue but of opportunities for employment and self-enterprise — if they were to lose all benefits in this asset. The Act clearly contemplates that this asset was to be an "Indian Zone," and that the Indians were to have special rights in it. The Field Solicitor's opinion would deprive them of those special rights. [52]

The attorneys concluded that the Park Service could neither prohibit nor regulate concessions in the Indian Zones. Although such control would be advantageous, the agency must not trample Indian rights to gain it. The Indians were willing to cooperate and negotiate agreements with the Park Service, but until then, "they resist any attempted abridgments of their rights." Soon after this, tribal representatives met with Department of Interior (DOI) officials, and all agreed to have the Solicitor consider the issues. [53]

Superintendent Homer Robinson downplayed this disagreement, saying that he did not know of any actual plans that Indians had for concessions on the lake. Instead, he believed that they only wanted to establish a policy allowing them to provide services to the general public. Nonetheless, he worried that the Park Service might have to give Indians "preferential contracts to protect them from marginal operations intended only to skim the cream from the available business." [54]

The STI's request for a Solicitor's determination of their rights languished for nearly a year, during which time the Park Service was moving closer to acquiring the Fort Spokane lands from the BIA. A tribal attorney complained about this, saying that the Indians wanted to be part of any recreation plans for the area near their reservation and they hoped to work out an agreement with the Park Service. They were unable to proceed with this, however, without a determination of their rights. Because the STI was so poorly compensated for the loss of their lands, the attorney believed it was only fair for the Park Service to share the economic potential of the new recreation area. When the Solicitor's opinion finally arrived in May 1960, however, once again it went against the tribe. Deputy Solicitor Edmund T. Fritz concurred with the Field Solicitor's 1958 opinion that Indians, "like anyone else," needed to get a Park Service permit before developing or operating public concessions in the Indian Zones. [55]

In the spring of 1960, the Park Service not only prevailed with the Solicitor's office but also acquired the entire 331.31 acres of Fort Spokane. Public Land Order No. 2087 of May 9,1960, revoked the 1882 Executive Order that had established the military reservation, along with the Executive Order of November 17, 1887, that modified the boundaries, and turned the lands over to the jurisdiction of the Park Service "for use as an administrative, museum and historic site in connection with the Coulee Dam National Recreation Area." [56]

Turning Up the Heat: Indian Rights, 1960s

The CCT briefly raised the issue of fishing rights in 1963 when a tribal game officer stopped a non-tribal member who was fishing within the Indian Zones without a reservation permit. The officer did not prohibit the man, who had a state fishing license, from fishing, but he told him to purchase a tribal permit and forward the information to the tribe or risk having his case turned over to the U.S. Attorney. When Superintendent Robinson heard about the incident, he asked the Field Solicitor if the tribes had the right to require special permits within the Indian Zones so the Park Service could inform visitors to prevent such misunderstandings. The Solicitor replied that although the BIA required a special permit to fish on any waters within the reservation, he did not believe that it had yet been decided if this applied to the waters of Lake Roosevelt. He thought that this was probably an isolated incident brought on by a tribal game officer who was unclear about his authority. He offered to write an opinion if there were a repeat incident, but the issue remained dormant for several years. [57]

Despite its loss over Fort Spokane lands, the STI continued to push for both definition and expansion of Indian rights at Lake Roosevelt. The tribe hired a consulting firm in 1967 to complete a land-use study of reservation lands, including shore lands. According to the tribal attorney, the consultants needed to know what rights tribal members had to shore lands and if there were additional rights that they could negotiate with the Park Service. Tribal attorney Robert D. Dellwo met with LARO Superintendent David Richie in August 1968 to discuss mutual rights and responsibilities in the freeboard lands within the Indian Zones. During the evidently cordial meeting, they worked out an agreement under which Park Service rangers would issue permits on the spot to tribal members camping on freeboard lands, allowing them to have campfires except when fire danger was high. Dellwo explained that the tribe did not intend to provoke a controversy over Indian rights at this time and instead assumed that the Park Service would recognize these rights and cooperate with the tribe as it went ahead with its plans. The tribe understood "that the best safeguard of its rights is in cooperation and in the ultimate exercise of the tribe's responsibilities in regard to them." [58] Richie responded that he believed that the interests of the Park Service and the tribe were "in essential harmony" and that they would be able to reach mutual understandings. [59]

The issues became more difficult, however, as the STI moved from campfire permits to water rights in 1969. Dellwo complained to Richie that the Park Service had charged tribal member William Wynecoop $25 for a water pump permit to withdraw water from the lake. He believed that tribal members retained the right of free access across freeboard lands to use the water and thus should not be charged. In addition, he warned that such actions were "a real irritant" to both the tribe and the Business Council and should be left dormant until a decision was reached on water rights. [60] Superintendent Wayne Howe compounded the problem two years later when he informed Wynecoop that he needed a pump permit from the Army Corps of Engineers in addition to his Park Service permit. Dellwo complained again that it had been difficult enough for the STI to develop a consensus of operation with both the Park Service and Reclamation, and he believed that it should not be forced to work with the Corps as well. He asked the Corps to reconsider this requirement to avoid a legal confrontation over Spokane tribal water rights at Lake Roosevelt. The STI was concerned that if the Corps had the right to grant permits, it also had authority to refuse them, causing a clash with tribal property rights. Dellwo suggested that the Corps delegate its regulatory authority at Lake Roosevelt to the Park Service. The Corps at first reiterated its authority in this situation but subsequently deferred such permits to the Park Service. [61]

While the debate over permitting Wynecoop's pump was irritating to the STI, the more serious water rights debate centered on a proposed withdrawal for a uranium mill on the reservation. Western Nuclear, Inc., conducted a feasibility study for a processing plant in 1969, which included a daily requirement of 17,500 tons of water or 45,000 acre feet/year, with most coming from Lake Roosevelt. The STI, which was leasing land to the company, argued that there should be no charge for this water since the tribe believed it retained water rights to the Columbia River. Dellwo said that the "unconscionably low" financial compensation paid to the STI in 1940 for lands taken for reservoir construction indicated that the government intended the tribe to be compensated instead with liberal rights, including the same water rights as before the Act of June 29, 1940. [62]

In making his case, Dellwo cited the Winters Doctrine, a precedent quoted in most Indian water rights cases. The doctrine stemmed from a 1906 decision, upheld by the Supreme Court two years later, in a case brought by the government against a group of Montana farmers who had appropriated so much water from the Milk River that there was not enough left for Indian use downstream on the Fort Belknap Reservation. The court ruled that establishment of a reservation implied that sufficient unappropriated water was reserved for the tribe to accomplish the purposes for which the reservation was established. These rights began the day the reservation was established and continued in perpetuity. The Indians could use the water in any way that fulfilled the purposes of the reservation, and they could not lose these rights if they did not use the water. Thus, tribal water rights usually superceded those of farmers since the reservations were established before most western waters were appropriated. Despite this powerful precedent, the federal government generally did not assert tribal rights under the Winters Doctrine for over fifty years. The 1963 Arizona v. California case reaffirmed the doctrine, and both the STI and CCT soon recognized its applicability to Lake Roosevelt. [63]

The STI's request drew a mixed response from Reclamation officials. One of them took exception to the tribe's claim that it had not been fairly compensated for lands lost to the reservoir and suggested that it could take its case to the Indian Claims Commission. He noted that these waters, raised "at great expense," were now available for irrigation and were "no longer in or being maintained in their former less advantageous natural state." [64] Grand Coulee Project Manager W. E. Rawlings pointed out that water users were not charged for water withdrawal, and he asked for advice on whether or not to continue this policy. Reclamation Regional Director Harold T. Nelson reassured him that there was plenty of water to meet project needs, and he saw no conflict between Reclamation interests and the proposed mining development. More important to him was the need to avoid application of the Winters Doctrine, which was being invoked at other federal reclamation reservoirs. "We see no need to involve this large-scale battle of 'principles' in this situation," he wrote, since there was plenty of water for both Indian and non-Indian uses. [65]

After Reclamation officials appeared to approve a free water withdrawal for Western Nuclear, the STI upped the ante. In its proposed lease to the mining firm, the tribe included a statement that "the tribe will make no charge for these waters and asks that lessee not make any payment for them to any department or agency of the United States Government or to any one else." This concerned Field Solicitor Paul Lemargie, who believed it might create a precedent that was inconsistent with the views of the Solicitor. [66] Assistant Solicitor J. Lane Morthland met with tribal attorney Dellwo in February 1971, and assured him that there would be no charge for water used by Western Nuclear as long as either the company or the tribe obtained a valid state water right along with a special use permit from the Park Service. But Dellwo informed him that the "Indians do not want to recognize the need for securing a state water right in their own name." Morthland then suggested the alternative - and circuitous - solution of having the tribe work out an agreement with Reclamation for water to irrigate a selected tract of land; once approved, the water could be used by either the tribe or a lessee for uses other than agriculture, at no charge. This "would in effect be a recognition by the Department of a Winters Doctrine right without adjudication," noted Morthland. Dellwo agreed, "provided it would not jeopardize or prejudice the Indians' claim to additional waters under a Winters Doctrine adjudication." [67] Later, however, a Reclamation official granted the STI the right to divert 646 acre feet of water annually, but added that Western Nuclear still would need to get permits from the Park Service and the Corps and pay required fees. It is not known how the STI reacted to this requirement. [68]

Bringing Things to a Boil: Indian Rights, 1970s

While the STI was pursuing its claims with the assistance of tribal attorneys, unrest was starting to sweep through reservations across the country. In Washington, state officials did not recognize many Indian treaty rights and attempted to tightly control Indian fishing. Indians began to protest in the 1950s, staging "fish-ins" on the lower Columbia as a form of civil disobedience. Arrests led to test cases in court and finally to what became known as the Boldt Decision in 1973, in which the federal government represented fourteen tribes in a suit against Washington state, defended by Attorney General Slade Gorton. Judge George H. Boldt ruled in favor of the tribes, saying that they were entitled to half of the catch that migrated through their usual and accustomed fishing sites. This meant that the government had to limit ocean fishing to prevent decimation of river runs. In addition, Boldt affirmed tribal rights to regulate and manage their share of the fishery. [69]

Nationally, the civil rights movement began to resonate with American Indians, especially the younger generation. Discontent increased as spending cuts diminished popular anti-poverty programs that had benefited many young Indians. The American Indian Movement (AIM) formed in Minneapolis in 1968 and urban Indians soon began to rally to the cry of "Red Power!" Three major incidents galvanized Indians across the country and drew worldwide attention to Indian demands. These included the takeover of Alcatraz Island in San Francisco Bay in November 1969; the Trail of Broken Treaties Caravan to Washington, D.C., in 1972 and the subsequent takeover of the Department of the Interior building; and the bloody occupation of Wounded Knee that began in February 1973, lasted seventy-two days, and resulted in the deaths of two Indian men and the paralysis of a federal agent. [70]

During this time, the push for Indian rights at Lake Roosevelt took on an active dimension to counterbalance the previous legal approach. The CCT joined the fray in August 1971 when the tribal council banned all hunting on reservation lands, complaining of trespassing by non-tribal members along with a basic lack of respect shown to tribal members and their lands by these uninvited visitors. CCT Game Officer, Howard "Doodle" Stewart did not favor such a closure but noted, "We are sitting on a powder keg." [71] The hunting ban expanded in November to include the requirement for a tribal fishing license, first for waters within reservation lands and later for Lake Roosevelt. Stewart followed guidelines from the tribal Fish and Wildlife Committee but kept local Park Service officials informed of the changes. LARO Superintendent Wayne R. Howe appreciated the information since he wanted to keep the public informed of the new requirements to avoid inadvertent violations, but he knew that the issue would have to be resolved in court eventually. The Washington Department of Game reacted more vigorously and claimed that the state owned the waters of Lake Roosevelt and thus there was no special license required. The CCT disagreed, however, and believed that all of the waters adjoining the reservation belonged to the tribes. "Let someone else prove they're not [ours]," challenged CCT Chairman Mel Tonasket. He noted that although they would have to fight for their rights, "we're not going to back up any more. We're not going to stop making waves." [72] BIA Superintendent Sherwin Broadhead supported the CCT claim while other officials went so far as to imply that the agency believed that the purchase of Indian lands for the Grand Coulee Dam had been "accomplished illegally." [73] During this time of confusion, Howe appealed for help. "I hope that some statement can be forthcoming from the Director's office or Secretary's office before too long," he wrote, "as this whole thing can get a bit sticky by next summer." [74]

The situation had already become sticky, however, as trouble erupted at Sanpoil campground during the summer of 1971. Apparently a contingent of Indians from outside the area spent time there and hosted loud parties that lasted so late that others no longer enjoyed camping at Sanpoil. Campers had to be evacuated after one incident, which may have involved threats with guns. Prominent CCT members, backed by BIA officials, aired their concerns at a November meeting with Park Service officials. At that time, the CCT expressed interest in taking over operations at Sanpoil campground. Howe agreed that this was possible under the Tri-Party Agreement, and he said he would send any formal request through channels to see if it could be accomplished. [75]

In an effort to stave off further trouble, LARO staff met with members of the Colville Business Council, a CCT Game Officer, and BIA officials in April 1972. Superintendent Howe acknowledged that he wanted to avoid any trouble like the recent Sanpoil campground incidents and he asked for cooperation from the CCT to avoid responding with Park Service law enforcement. CCT members suggested several solutions: turn the campground over to the tribes to run, provide full-time staffing to keep tourists from trespassing on Indian lands, or shut it down. Underlying these suggestions were long-standing grievances, including a belief that the lands had been taken illegally and resentment over exclusion of the tribes from the Tri-Party Agreement. BIA officials supported the CCT claims and fanned the embers of resentment. George Davis, Programs Officer with the BIA, suggested that Sanpoil campground should be closed to see if "we can get the issue hot enough to get it settled." LARO Chief Ranger Paul Larson countered that such an action would generate negative publicity and might "build up so much . . . resentment that you would never be able to take it over." Despite the tensions, the meeting ended on a positive note with discussions about establishing a program of cultural demonstrations. [76]

With the campground controversy still unresolved, the CCT renewed its push for control of fishing by passing an ordinance to require all non-Indians to purchase a tribal license before fishing in waters claimed by the tribes. These included all of the Okanogan River and half of each reservoir, including Lake Roosevelt, bordering the Colville Reservation. Despite the Regional Solicitor's opinion that there was no basis for this action, the CCT threatened to arrest anyone caught fishing without a tribal permit. Local LARO staff felt caught "on the horns of a dilemma: Responsible for keeping the public informed, but unable to sanction, or dispute the issue." [77]

The public did not take kindly to CCT demands. In March 1972, Superintendent Howe warned of the possibility of violence against any tribal game warden who arrested a non-Indian. Some non-Indians felt strongly about what they saw as high-handed actions by the CCT, causing Howe concern that Lake Roosevelt had "the potential of becoming a battleground with the Service in the middle." After CCT's Law and Order Committee asked if the Park Service would allow CCT officers to sell and enforce tribal licenses within the Sanpoil campground, Howe again appealed to the regional office for guidance on ramifications of enforcing tribal law in the Indian Zones and emphasized that he needed answers as soon as possible. [78]

Problems at Sanpoil were not easily resolved, however. Incoming Superintendent William N. Burgen described the campground as a "festering thorn in the side" of both the Park Service and the CCT and he noted that "only close coordination with the Council and mutual respect have prevented an unpleasant showdown at the site." In 1972, the site required three people per day to prevent weekend disturbances, more staffing than any other LARO area. [79] As rumors of tribal takeovers spread to neighboring towns, the Wilbur Chamber of Commerce came out in opposition to control by any ethnic group. The dam, lake, and recreation facilities had been built with taxpayers' money "and the combined efforts of all citizens regardless of race, color, or creed," the Chamber wrote. "By the same token, these facilities should be for the equal and non-discriminatory use of all citizens." [80]