Everett, Wash.
Published: Friday, February 27, 2009

County, Tulalip Tribes in building permit dispute

Homeowners on private land within the reservation could be caught in the middle and subject to fines.

By Krista J. Kapralos
Herald Writer

 TULALIP -- Tulalip tribal leaders have for years been offering building permits to non-Indians who live on private land within the Tulalip Indian Reservation -- permits that county leaders say the county should be issuing.

Tribal leaders warn that Snohomish County code enforcement officers could hit landowners with hefty fines if they are caught without a county-issued permit.

Most people turn to the county for their permits after they're told about the fines, but tribal leaders believe they have every right to issue building permits on any land within the reservation's historic boundaries.

"We govern all land within the reservation boundaries," said Leonard Dixon, manager of the Tulalip Tribes Community Development Department. "We're very aggressive in our assertion of tribal jurisdiction, and that is our position."

The issue is one in a long list of problems resulting from confusion over who's in charge of land in Tulalip. Tribal and county leaders are working to draft an agreement that will settle the dispute, but until then, non-Indians who live on private land within the reservation will have the option of avoiding the county's building permit process by working with the tribal government instead.

County leaders say that's a violation of state law. The tribal government has jurisdiction over land owned by the tribe and over land owned by tribal members, but land owned by non-Indians within the reservation is the same as land elsewhere in the county, they say.

"We have jurisdiction on fee-simple lands," county Planning and Development Services Director Craig Ladiser said.

Tribal laws are valid only on land that is either owned by American Indians or is held in trust for the tribe by the federal government, Ladiser said. The pockets of private land scattered throughout the reservation, known as fee-simple land, are subject to county and state laws.

Ladiser said he didn't know that the Tulalip Tribes offers building permits to non-Indians.

The Tulalip Tribes' Community Development office usually approves permits in less than a month. At the county, that process could take many months, with potential stops at planning committees, a hearing examiner or even the Snohomish County Council.

The permit cost is about the same either way, but applying to build through the tribes gives people a faster start on building projects and a chance to support the tribes' claim of sovereignty over all the land within the reservation. The problem has been simmering for decades, since the federal government split Indian reservations into parcels and gave them to Indians and settlers. Many Indians later sold their parcels.

The land that remained in Indian hands was preserved over the years as tax-free reservation land. Today, many reservations are known as "checkerboards," where parcels of private land are interspersed with Indian land. The result is a jurisdictional nightmare.

"If all that land were in trust, the jurisdiction would be abundantly clear," said Cris Stainbrook, president of the Indian Land Tenure Foundation, which helps tribes retain sovereignty over their land. "The checkerboarding that has occurred has confounded all these jurisdictional issues, and too often that results in animosities that consume county and tribal resources."

Snohomish County and a Tulalip tribal member fought over jurisdiction on private land within the reservation in court in 2002. The 9th U.S. Circuit Court of Appeals ruled then that the county does not have jurisdiction over land owned by Indians, whether that land is in trust or privately owned.

Now, both the county and the tribal government want to avoid another costly court battle.

Dixon and Ladiser said they work to collaborate with one another, but both sides believe they are within their constitutional rights to regulate the land in question.

Tribal leaders have demanded that non-Indians who own land along the shoreline apply for permits to build bulkheads or docks. Some non-Indians also oppose a 1 percent real estate excise tax tribal leaders enacted in 1987 to pay for tribal roads and other infrastructure. A small handful of non-Indians even believe they're not obligated to stop when a tribal police officer pulls up, lights flashing, behind their cars.

"This confusion also extends to property taxes," said Tom Mitchell, who leads the Marysville Tulalip Community Association, a group of residents who live within the reservation's boundaries.

Dixon said he's been meeting with county leaders since 2007 to hammer out an agreement that will determine who can issue building permits, enforce code violations and govern growth on private land within the reservation. He said both sides helped draft an agreement that would settle the dispute, but it could be two years or more before that agreement is finalized.

The problem isn't unique to Snohomish County. Skagit County, about a decade ago, reached an agreement with the Swinomish Tribe that gives people who live within that reservation the option of applying for building permits through either the county or the tribe, Skagit County Deputy Planning Director Bill Dowe said. If a permit is processed through the tribe, the county has secondary jurisdiction and receives an administrative fee, and vice versa.

Tribal leaders were concerned about sovereignty when the agreement was reached, Dowe said, but planning officials for both the tribe and the county moved forward because it was necessary to clear up the confusion.

"At the staff level, we didn't want people to have to pay for permits twice," Dowe said.

Snohomish County officials send Indians who show up at the county planning office to the Tulalip Tribes permitting office, Dixon said. But when non-Indians show up at the tribal office, Dixon said his staff can issue a building permit.

"It's up to them," Dixon said.

Krista J. Kapralos: 425-339-3422, kkapralos@heraldnet.com.
© 2009The Daily Herald Co., Everett, WA