2IS THERE A NATIVE AMERICA? DIMENSIONS OF DIVERSITYSize – Geography and PopulationLocation – Urban v. RuralHistorySocial & Economic ConditionsGaming v. Non-GamingAgriculture, Tourism, Manufacturing, SubsistenceCulture – Historic and ContemporaryLanguageReligion and CeremonyArtsSocial RelationsGovernmental Form
3…BUT WITH COMMON CHALLENGES Political Self-DeterminationDefending and Expanding SovereigntyExercising Powers of Self-RuleSocial and Cultural Self-DeterminationContinuity of Shared IdentityCollective Commitment to the NationEconomic, Social, and Cultural Well-BeingReversing the Centuries of Deficits“A Place Where People Can and Want to Live”The Challenge is Nation Building
4NATION BUILDING Definition The enhanced capacity of indigenous nations to realize their own cultural, educational, economic, environmental, and political objectives through foundational actions of their own design and initiation.
5SUCCESSFUL NATIVE NATION BUILDING – THE COMMON PATTERN The “Sovereignty” AttitudeCapable InstitutionsCultural Match…..andLeadership
6KEYS TO NATION BUILDING IN INDIAN COUNTRY Indian Nations That Are Successful on Their Own TermsUse Strong Leadership toAssert the Right to Govern Themselves andExercise That Right EffectivelyBy Building Capable Governing InstitutionsThat Match Their Cultures.
7What Constitutes “Citizenship”? The Case of Upper Sioux
8CASE SIMULATION: UPPER SIOUX CITIZENSHIP Small Tribe, SW Minnesota<1000 Acres, <1000 MembersSuccessful CasinoEvery Upper Sioux Also a Member of Another TribeChair Helen Blue-Redner Seeks Constitutional ReformSees Lack of Loyalty & Dedication to Upper SiouxPer Capita Payments & Other Benefits = Rising MembershipConstitutional Reform OptionsRequire Relinquishment of Citizenship in Any Other TribeTight, Enforced Residency Requirement – w/in 5 Miles of ResNo Per Capita to Dual Enrollees and/or Non-Resident Members
9Elements/Sources of Individual and Social Identity LanguageProperty OwnerCommitment +/-Shared historyPolitical ViewsPolitical ConnectionsRace/Blood QuantumDescendencyCultural ValuesResidencyFamily ties+/- Economic ContributionAchievementStatus of KinEducationFriendships
10Strategies of Nation Building: Vice-Secretary of the Crow Nation Darrin Old CoyoteVice-Secretary of the Crow Nation
11Sand and Gravel Resource Areas Bentonite Resource Areas Coal Resource AreasCBM AreasOil and GasLimestone Resource Areas
14Legal and Policy Foundations of Tribal Sovereignty
15FORMS OF TRIBAL SOVEREIGNTY Sovereignty as Self-RuleDe Jure…by LawDe Facto…in PracticeDe Recto…by Moral Right
16ORIGINS OF TRIBAL SOVEREIGNTY Pre-Contact Proto-Nationhood in North AmericaThe Colonial PeriodBritish v. Spanish and French ExperienceConflicts and AlliancesEarly U.S. State-Tribal and Federal Tribal RelationsAlliances and Power BalancesThe Founders and the Iroquois ConfederacyThe U.S. Constitution
17THE EBB AND FLOW OF TRIBAL SOVEREIGNTY IN THE UNITED STATES StatusChronologyDistributionInternational Treatiesc. 1776…Military alliances, conflict, land acquisition,Law(and Military Expansion)c. 1830…Intra-US and border Native nationsMilitary Conquestc. 1865…Internment, “pacification”, genocideTermination through Allotmentc …Haphazard targeting of selected reservationsIndian Reorganization Act of 19341934…All federally-recognized Native nationsTermination through Derecognition1953…100+ selected Native nationsSelf-Determination Policyc. 1970…Tribal PracticeSelf-selected Native nations
18TRIBAL SOVEREIGNTY AND THE U.S. CONSTITUTION Article I, Section 8, Clause 3: The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…Article I, Section 2, Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed…Article I, Section 8, Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
19THE FORMATION OF FEDERAL INDIAN POLICY Trade and Intercourse Act, 1790 (Permit Required for Trade with Tribes)Cherokee Nation v. Georgia, 1831 (Tribes Not “Foreign Nations”, but “Domestic Dependent Nations”)Worcester v. Georgia, 1832 (Federal law supreme; tribes are “distinct, independent political communities retaining…original natural rights)Jackson Removal Act, 1830 (Attempt to remove tribes to the western territories)U.S. v. Kagama, 1886 (Federal Government is as a “guardian to a ward”)Allotment Act, 1887 (Allotment of reservation lands to individual Indians; sale of surplus lands)
20VASCILATING FEDERAL POLICY: SELF-DETERMINATION OR TERMINATION? Indian Reorganization Act, 1934 (Repeal of Allotment; Constitutional Tribal Governments)Termination Policy, 1953 (Official Policy to Terminate & Disband Tribes; 100+ Terminated)Indian Civil Rights Act, 1968 (Apply U.S. Bill of Rights to Tribes, Except Religious Non-Establishment, Voting Based on Race; Review by Tribal Courts)Nixon Self-Determination Policy, 1970 (Reverses Policy of Termination)Indian Self-Determination and Education Act, 1975 (Tribal Take-Over of Federal Programs)Clinton Government-to-Government Executive Order, 1998 (Tribal Consultation, Easier Waivers of Federal Statutes and Regulations).
21RECENT EVOLUTION OF TRIBAL SOVEREIGNTY Oliphant v. Suquamish Tribe, 1978 (Tribes Lack Jurisdiction over Non-Indians)California v. Cabazon, 1987 (States Lack Jurisdiction over Tribal Government Gaming)Brendale v. Yakima Nation, 1989 (Tribes Lack Jurisdiction over Non-Indian Lands on Res)Atkinson Trading Co. v. Shirley, 2001 (Tribes Can’t Tax Non-Indian On-Res Land Owners)Nevada v. Hicks, 2001 (Tribes Lack Jurisdiction over Non-Indian Law Enforcement on Res)
22TAX STATUS OF INDIANS Type of Tax Indians Who Work On/Live On Res Type of TaxIndians Who Work On/Live On Res Indians Who Work On/Live Off Res Indians Who Work Off/ Live On ResFederal Income TaxYESState Income TaxNOFICAState Unemployment TaxProperty TaxYES (Fee Lands)*State Sales Tax**Liquor, Gas & Cigarette Tax**Motor Vehicle Tax**
23SOURCES OF TRIBE’S SOVEREIGNTY “American Indians were conquered and lost their sovereignty.”“There can’t be multiple sovereigns in the same geographic area.”“Tribal sovereignty means ‘special’ rights for Indians.”“Indian rights of sovereignty are race-based.”
24THE STATE OF TRIBES’ SOVEREIGNTY “Tribes aren’t really nations; they’re more like clubs.”“The treaties are out-of-date anachronisms.”“Even if Indians originally had rights of self-rule, there are no authentic Indians left.”“The U.S. is anti-sovereignty.”
25CONSEQUENCES OF TRIBES’ SOVEREIGNTY “Tribes may be sovereign, but their sovereignty produces lawlessness.”“Sovereignty is a shibboleth. Reservations are just welfare states funded by the federal government.”