The Law and the Land

Indian Law Attorney Brian Gunn pushes into new territory for his tribe and others

In the summer of 1951, a Colville Indian named Peter Gunn sued the United States government for the loss of a portion of his ancestral lands. He joined members of a number of other tribes including the Lake, San Poils, Methow, Okanogan, and Nespelem, all living on the Colville reservation and whose homelands, which once covered nearly half of Eastern Washington, had been given to the public for settlement in the late 1800s.

Two generations later, Gunn’s grandson Brian, 38, filed another suit against the U.S. Department of the Interior, this time for the mismanagement of the remaining lands on the Colville reservation, most of which are held in trust by the federal government. And this time, the suit resulted in one of the largest Indian settlements the federal government has ever made.

The Gunn family has a long history of action and activism on behalf of the Indians of north-central Washington. Peter Gunn was a founding member of the Colville Business Council. He was also a police officer, game agent, and often a person to whom members of the community could turn for help or advice. He was well liked and trusted, the only council member to ever be elected from each of the four districts. Even his death, in 1953, came during service to the tribe. He suffered a stroke during a council meeting.

Brian Gunn’s father Virgil served on the business council in the 1970s and testified before Congress on education and health issues. Now Gunn ’95 is a Washington, D.C.-based Indian law attorney and lobbyist working for tribes and tribal businesses around the country.

We start our visit at the Okanagan River which, like Gunn’s career, winds itself through and then out of the 1.4 million-acre reservation. It is a stark and stunning landscape of Eastern Washington endowed with rivers, lakes, farm and rangeland, and pine-filled forests. Gunn meets me in the early morning at the Omak Stampede grounds, on the western edge of the reservation. A member of the Colville Confederated Tribes and a WSU alumnus, he was named one of the National Law Journal’s “Minority 40 under 40,” and most recently made headlines as the lead attorney in a suit against the federal government for mismanagement of Indian trust land and resources—not only on the reservation where he grew up, but a number of other reservations around the country.

Dressed in a crisp button-down shirt, jeans, and loafers and holding a paper cup of coffee, he looks more like a D.C. lawyer on a weekend than an Omak local. Still, his high school is just across the river and the tiny house where his grandmother Bertha lived is a few blocks away.

Though Gunn spends most of his time in the offices and conference rooms of Washington, D.C., he makes a point of coming home several times a year. It’s a time to reconnect with his friends and family as well as the people he serves as the tribes’ attorney and federal lobbyist.

He often brings D.C. dignitaries with him, allowing him to show national decision-makers the people and landscape of the Colville reservation: the mountains, forests, farmlands, lakes, and rivers, and even the nation’s largest hydroelectric dam—the Grand Coulee—at once one of the most successful public works projects in U.S. history and one of the most damaging to the Indians’ salmon fishery.

Gunn’s reservation has a mix of landmarks: historical, cultural, personal, and—for someone who has spent a third of his life studying Indian law—legal. At one end of town Gunn points out the Stogie Shop. It’s a small building along Omak Avenue, but a significant landmark from a recent lawsuit over the 2009 tobacco compact between the state and the tribe. It didn’t come out in the owner’s favor, he says. The decision proved the tribe had a right to tax tobacco sales on the reservation. As we drive on, we pass the plywood plant, which was shut down in 2009 because of the drop in the housing market and plywood prices, putting 230 people out of work.

Out of town and into the countryside, we pass farms and pastures along the river, then dry steppe hillsides which later give way to wooded areas. These are sites of the reservation’s natural resources, which are to be managed by the U.S. government for the benefit of the tribes.

Today there are 12 tribes and more than 9,000 members on the reservation. Their ancestral lands ranged throughout the Inland Northwest covering the Columbia Plateau from the crest of the Cascade Mountains to the west where the Wenatchi, Entiat/Chelan, and Methow lived, down to the Palouse—into Idaho and Oregon with the Palus, Snake, and Nez Perce. The Arrow Lakes territory stretched up into Canada.

While they shared common languages and subsistence patterns, the tribes maintained their own unique customs and social practices, notes Jerry Scott ’92 in his master’s thesis for the WSU history program. There were no permanent villages, but the Indians moved throughout the seasons through a definable home range. Large winter villages along rivers and waterways accommodated up to 300 people. In the spring the residents would disperse into the steppe to harvest camas, wild carrots, and other root crops. In late spring, they returned to traditional fishing areas along the rivers to catch migrating salmon.

Kettle Falls was one of the most important Indian fishing sites along the Columbia River. More than 100 million pounds of salmon could be pulled from the river each year. It was like a small city, with around 1,000 Indian fishers using the location in a season.

Jesuit missionary Pierre-Jean DeSmet described “a fine and abundant fishery” where fish going up the falls would jump into an enormous basket attached to projecting rock. Every seven to eight hours the basket would be emptied, with around 250 fish inside. “The Indians, meanwhile, were seen on every projecting rock, piercing the fish with the greatest dexterity,” he wrote.

What fish they didn’t need, the Indians would trade with tribes further east for other items. Overall, they were thriving with the available food and natural resources, needing nothing from the fur traders and the white missionaries.

In 1825 the Hudson’s Bay Company established Fort Colville, a fur trading post, near the fishery. The company’s presence and influence altered the way of life of the Indians, according to Scott. By the 1850s settlers were sifting into the region and territorial Governor Isaac Stevens worked to negotiate treaties with the tribes, creating reservations in certain areas of the ancestral homelands and ceding other lands east of the Cascades to white settlement. While negotiations were underway in Walla Walla, gold was discovered near Fort Colville. The news sent miners rushing over tribal land and frustrated the tribes, many of whom felt treaties were being forced upon them.

The absence of a treaty made it difficult for the white authorities to control the encroachment of whites on tribal lands, notes Scott. Still, few whites settled on the plateau and many of the prospectors moved on. “While Indian/white relations on the Columbia Plateau were relatively tranquil, affairs within the Indian Office were not,” writes Scott. The federal and local officials charged with negotiating peace treaties with the tribes often struggled with issues of mismanagement, corruption, and confusion.

The confusion was compounded in 1872 when President Ulysses S. Grant issued an executive order creating a reservation for the Columbia Plateau Indian tribes in the Colville area not yet under a treaty. The boundaries of what amounted to a three million acre reservation included the Colum
bia River to the west, the Spokane to the south, the Little Spokane to the east and the 49th parallel to the north. It contained suitable farmland, timber land, and tribal fishing grounds. But a few months later the plan was altered to accommodate white settlers who wanted land in the area of Spokane and west. Later, even more large portions of the reservation were taken away from the reservation and opened to white settlement, ultimately leaving 1.4 million acres to several different tribes of Indians. This was the subject of the 1951 lawsuit to which Peter Gunn joined his name.

Two of the most famous Indian leaders in the history of the West ended up on the Colville Reservation. Chief Moses of the Columbia, active and outspoken for the rights of his people, was ultimately pushed to cede his peoples’ territory in the Columbia Basin and move here.

A similarly complicated relocation took place with Chief Joseph of the Nez Perce, who in the 1870s refused to move his people from their ancestral lands in Eastern Oregon to a small reservation in Idaho. Joseph and his followers became entangled in a war with U.S. soldiers. Though greatly outnumbered, they were recognized for their skill and strategy. Ultimately, they surrendered in 1877, having lost many friends and family members. Chief Joseph, who declared “I will fight no more forever,” and his band were moved to Kansas, then to Oklahoma where many succumbed to disease. They were finally allowed to come back to the Northwest, but to the Colville Reservation many miles north of their home.

Nespelem, the tribal headquarters, is at the heart of the reservation. The northwest end of town holds Chief Joseph’s grave, a tall marble marker in a dry and quiet hillside cemetery. Gunn sought it out on his own as a high school student. The history of this place is important to him.

As we drive up to the headquarters, Gunn looks across the parking lot. “I think that’s Alex Sam,” he says, explaining that Sam is a relative of Jim James, of the San Poil Indians, one of the last traditional chiefs on the Colville Reservation.

Gunn didn’t rush over to the older man, who was gingerly moving down the sidewalk. In fact, he slowed his approach, finally coming close enough to call out “Alex” before he bent his frame toward the open car door. Sam turned as Gunn stepped up to introduce himself. “You knew my grandfather Peter Gunn,” he said. “Oh yes,” that sparked a discussion of Sam’s uncle James and the chiefs from the different tribes.

James, and likely most of the residents of the reservation, was not forewarned about the Grand Coulee Dam project, which broke ground in the 1930s. He ran into surveyors on Indian land pounding stakes into the ground. They told him they were going to build a dam, but didn’t go into detail.

The project inundated 21,000 acres, homes were moved, towns were lost, and the historic fishery at Kettle Falls was lost. Burial grounds at 50 different locations had to be unearthed and relocated, a job which Peter Gunn supervised.

Sam had memories of Peter Gunn, especially as a friend of Chief Jim James and as a founding member of the Colville Business Council. More of Peter Gunn’s story rests in newspaper clippings including several in WSU’s archives. One of the first, dated 1933, describes a meeting where Indians complained of being discriminated against for jobs in reforestation camps on the reservation. Peter Gunn presided. Others detail the formation of the business council when the leadership decisions transferred from the hereditary chiefs to elected members of the council, a major step toward unifying the tribes.

There are also traces of Gunn’s grandfather in rare films shot during the construction of Grand Coulee Dam. As the lead Indian representative in the effort to relocate Indian graves, Peter Gunn appears in footage dressed in a red cardigan right in the middle of the action, assisting with the hand-digging and overseeing the workers.

Brian Gunn grew up with his parents and sister Jennifer in a ranch-style house on a 10-acre parcel a few miles outside Omak. He loved roaming the hillside behind his home. “He was adventurous,” says Jennifer, who now lives near their old home. “He collected snakes. He loved to lift things up and look underneath.”

The Gunns are a large family and Brian Gunn has a wealth of uncles, aunts, and cousins who live and work either at or near the reservation. He attended high school in Omak, graduating with 88 other classmates. He chose WSU for college where he found his way into the Comparative American Culture program as well as the offices of the Daily Evergreen.

His dream was to become a filmmaker. But once on campus, his perspective changed. Through the Evergreen he landed an interview with William Kuntsler, the civil rights lawyer who had defended the Chicago Seven and members of the American Indian Movement involved in the Wounded Knee incident.

Gunn was enthralled. He talked with Kunstler for more than an hour about topics including Malcolm X, the FBI, and Watergate, and came away realizing that he, too, would be a lawyer. He turned to Professor William Willard, who was teaching both anthropology and Comparative American Cultures, and asked for help preparing for a career in Indian law. “It is its own peculiar field,” says Willard, who helped Gunn set up several study projects including a review of the original treaties and federal policies.

That this was Gunn’s interest came as no surprise to Willard, who was well aware of the Gunn family history. “You have three generations who have been right out in front in dealing with legal problems for Indians,” he says. “Brian is carrying on in a very positive way.”

The summer between his junior and senior years Gunn landed an internship in the Indian Records Division at the National Archives. Besides providing him a taste for working in Washington, D.C., the experience allowed him to trace his own tribal history, which included documents and photographs, in his spare hours. It suited the student Willard describes as “intellectually curious,” and “mentally energetic.”

After graduating, Gunn took a job at the tribal headquarters. Working directly with the council members, he saw how decisions that may seem inconsequential are often very important in a small community like a reservation—even things down to plowing driveways and maintaining septic systems. He saw the council people at work and “how really accountable they are to their constituents.”

All the while, there was this awareness that the federal government wasn’t properly managing the tribes’ trust land and resources. While the land belongs to the tribes, the federal government serves as the trustee, managing the resources on behalf of the Indians who live there, says Gunn.

The laws date back to the 1880s, when Congress authorized the Secretary of the Interior to collect income from the tribal trust property. That income would be deposited in the U.S. Treasury and other institutions, collect interest, and be managed for the benefit of the tribes. As trustee, the government is obligated to maintain adequate records and controls to guard against errors or dishonesty. Yet the government has never provided an audit or accounting for the Colville trust. The tribe has been kept “uninformed as to the status of trust funds/property under Defendants’ control and management, what income the trust property has produced, and what disposition has been made of the income,” according to the suit which Gunn filed on behalf of the Confederated Tribes in 2005.

Eighty percent of the Colville reservation is held in federal trust. Timber seemed to be sold at below-market value. Rents for farm and range lands may not have
been collected. When he was working for the tribe in Nespelem, Gunn observed the chair of the Colville tribes’ natural resources committee formally complain to the Bureau of Indian Affairs. “Nothing came of his complaint,” he says. “I distinctly remember that.”

For decades the property had been mismanaged. Resources were sold off. Grazing rights may have been granted below cost. At the same time, the government never provided an accounting of the income earned or rents collected. “Everybody kind of knew it was happening,” says Gunn.

It would be nice to offer specifics, but the records themselves are hard to find, or might not even exist. That’s the core of the problem, he says.

Intrigued by the complicated field of Indian law, he enrolled in law school at the University of Washington, and landed a summer job with a prestigious firm, which led to full-time employment after finishing his degree. He didn’t even have time to attend graduation before moving to Washington, D.C. This winter as head of the Indian Tribal Governments team at Drinker Biddle & Reath, he added to his load of federal Indian law and policy work with a focus on wrapping up the Indian trust suits.

Besides the Colville case, Gunn had filed two more suits on behalf of other reservations. Similar cases, a total of 41, followed for other tribes around the West. Congress had been well aware of the trust mismanagement for decades. A 1992 House Committee on Government Operations report stated: “The (Bureau of Indian Affairs) has failed to accurately account for trust fund moneys … the Indian trust fund is equivalent to a bank that doesn’t know how much money it has.”

This spring, the Justice Department agreed to pay more than $1 billion to settle cases with all 41 tribes. The Interior and Treasury Departments had, according to the New York Times, “failed to adequately oversee concessions on Indian lands from companies that exploit a wide variety of resources, including minerals, timber, oil and gas.” Gunn spent much of January and February negotiating the terms with his federal counterparts.

Last spring the Colville’s Business Council Chairman Michael Finley and several other council members traveled to Washington, D.C., to hash out the details of the government settlement. With Gunn guiding them through the process, the group worked out of conference rooms at the Department of Justice. “It was just us and a roomful of government lawyers,” says Finley, who is currently vice-chairman for the council. “But we had a good negotiating team.”

Most tribes weren’t as involved, says Gunn. But the Colvilles sent a select group who could work directly with Gunn and his government counterparts. Though the historic $193 million settlement satisfied their monetary demands, “It was about more than money,” says Finley. “People felt that their concerns over the years were vindicated.”

After years developing the suit, and days negotiating, in the end they finished their work and stood and shook hands. The moment wasn’t lost on any of them, says Finley. “It started to sink in. What this all meant.”

Claims dating back more than a century had been resolved. “These settlements fairly and honorably resolve historical grievances over the accounting and management of tribal trust funds, trust lands and other nonmonetary trust resources that, for far too long, have been a source of conflict between Indian tribes and the United States,” Attorney General Eric H. Holder Jr. said in a statement.

Twenty percent of the Colville settlement will go directly to the more than 9,000 enrolled members. As for the rest, the council is working on plans, focusing on ways to improve resources on the reservation, create jobs, and provide for the members, says Finley.

While the tribes have historically counted on the timber industry and the lumber mills for employment, “We’re an extremely diverse economy,” says Finley. He points out the casinos, stores, farms, “and a lot of untapped resources. We want to diversify.”

The Colville Tribes are already working on an alternative energy program converting the out-of-use lumber mill to using woody biomass to generate power. They are returning the forests to their historic state with ponderosa pine instead of the newcomer Douglas fir. Also, the tribes have set aside moneys from timber sales to buy back portions of their historical reservation that have been sold into non-Indian ownership.

As we drive down a rugged little road by Rufus Woods Lake, the lake created by Chief Joseph Dam, Gunn points out a beach that he visited in high school. “When I’m here for work, I don’t have time to see my own favorite spots,” he says. He does get homesick for Washington. “But I think I am more benefit to the tribes doing this kind of thing that I’m doing now.”

Last spring, shortly after the settlement was made public, Gunn returned to the reservation with a “traveling PowerPoint,” to explain the settlement he had spent years concluding. He stopped in his grandfather’s hometown of Keller where the locals recognized him as an advocate for the community. “Some of the older folks came up to me,” he says. “They said, ‘We thought you would be one of Pete Gunn’s grandsons.’”