Tribal Disputes

Mediating Tribal Disputes Across The United States

Mediation is increasingly recognized as an effective means for Indian tribes to resolve disputes with non-tribal parties. In the past 15 years, John Bickerman has assisted more than two dozen tribes throughout the United States resolve their disputes with other tribes and, more commonly, local, state and federal governments. He has mediated fishing and hunting rights claims, sacred sites, environmental disputes, Federal Energy Regulatory Commission (FERC) relicensing actions, land use disputes with local governments and cigarette taxing disputes with states. He is a frequent speaker at tribal conferences, and his understanding of tribal sovereignty and decision making make him a highly effective mediator.
Although well known as the mediator of Cobell v. Salazar, the class action Indian Trust case that claimed the United States had breached its fiduciary duty as a trustee of Individual Indian Money assets, he also successfully resolved claims in United States v. Michigan, a dispute over implementation of 1836 Treaty rights involving five northern Michigan Native American tribes, the State of Michigan, and the United States in northern Lakes Michigan, Huron and Superior. He mediated the highly emotional, controversial and public claims of the Lower Elwha Klallam Tribe over the desecration of its sacred burial grounds in Port Angeles, Washington. Perhaps one of the oldest archaeological sites in the United States, the settlement may become a precedent for Indian burial disputes throughout the United States. A book has been written about the dispute and the resolution.

City Of Everett/Tulalip Tribes

Mediation of water rights/natural resources dispute between the City of Everett and the Tulalip Tribes. The parties successfully resolved the development of a parcel of land on the Snohomish River and signed an Alliance under which they will cooperate on future disputes. In November 2001, the Tulalip Tribes filed suit against the City of Everett seeking compensation resulting from the construction and operation of the City's diversion dams on the Sultan River. The Tribe claimed the diversion had damaged the Tribe's treaty-reserved right to take fish at its usual and accustomed grounds for the period 1916 to 1960. Although the legal claim related to a water diversion, the parties negotiated over numerous economic, environmental and cultural issues. Through the process, they explored new opportunities for future cooperation while building a broader foundation of mutual respect and friendship between their communities. Interestingly, the final resolution provided for the City to divert finished water for the benefit of the Tribe and to work with the Tribe to find funding for the construction of a new pipeline. In turn, the Tribe agreed to forego asserting any new reserved water rights claims.

Kalispel Land Into Trust:

Successfully mediated a dispute between the Kalispel Tribe of Indians, Spokane County, Washington, and the City of Airway Heights, Washington, regarding local agreements relating to land being taken into trust by the United States Department of Interior.

Suquamish Indian Tribe Of The Port Madison Reservation v. Foss Maritime:

Resolution of dispute between the Tribe and Foss Maritime under the federal Oil Spill Act for damages to a sacred site as a consequence of a Christmas Eve oil spill in the Puget Sound.

Lower Elwha Klallam Tribe v. The State of Washington

Successfully mediated a highly controversial and emotional dispute over the return of tribal remains to an historic burial ground in Port Angeles, Washington. Perhaps, one of the oldest archaeological sites in the United States, the settlement may become a precedent for Indian burial disputes throughout the United States.

United States v. Michigan:

Successfully resolved dispute over implementation of 1836 Treaty rights involving five northern Michigan Native American tribes, the State of Michigan, and the United States in northern Lakes Michigan, Huron and Superior. The Consent Decree sets forth a comprehensive and creative approach for the management of fisheries in these lakes while providing greater opportunities for tribal commercial harvest without sacrificing needs of state sport fishermen. In 1985, three Indian tribes, the State of Michigan and the United States entered into a consent agreement regarding the fisheries of northern Lakes Michigan and Huron and eastern Lake Superior. The 1985 agreement sought to implement rights granted to the tribes under an 1836 Treaty. The parties' agreement, which had been entered into over the objection of one tribe, was set to expire in 2000 and had been the source of ongoing conflict between non-native sport fishermen, environmental groups, the State and the tribes. In 1999, the parties, including two new tribes who had been recognized in the interim period, agreed to mediation. Differences in interpreting scientific explanations for fish mortality informed the parties' diverse and opposed positions. Moreover, there were substantial intra-party differences that made prioritizing negotiating positions for each side extremely difficult. Long-standing animosity between tribal and non-tribal participants made the interpersonal dynamics of the negotiation very challenging. After 10 months of intensive negotiations, the parties reached an agreement that provided for comprehensive management of the resources. The settlement allocated resources between tribal and non-tribal participants. Significantly, parties who had never before been able to work together developed relationships that will make this settlement much more durable and achievable than the 1985 effort. We were subsequently retained by the parties to assist in the negotiation of inland fishing and hunting, which the parties also successfully resolved.