Keys to Native Nation Building

IS THERE A NATIVE AMERICA? DIMENSIONS OF DIVERSITY Size – Geography and Population Location – Urban v. Rural History Social & Economic Conditions Gaming v. Non-Gaming Agriculture, Tourism, Manufacturing, Subsistence Culture – Historic and Contemporary Language Religion and Ceremony Arts Social Relations Governmental Form

…BUT WITH COMMON CHALLENGES Political Self-Determination Defending and Expanding Sovereignty Exercising Powers of Self-Rule Social and Cultural Self-Determination Continuity of Shared Identity Collective Commitment to the Nation Economic, Social, and Cultural Well-Being Reversing the Centuries of Deficits “A Place Where People Can and Want to Live” The Challenge is Nation Building

NATION 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.

SUCCESSFUL NATIVE NATION BUILDING – THE COMMON PATTERN The “Sovereignty” Attitude Capable Institutions Cultural Match …..and Leadership

KEYS TO NATION BUILDING IN INDIAN COUNTRY Indian Nations That Are Successful on Their Own Terms Use Strong Leadership to Assert the Right to Govern Themselves and Exercise That Right Effectively By Building Capable Governing Institutions That Match Their Cultures.

What Constitutes “Citizenship”? The Case of Upper Sioux

CASE SIMULATION: UPPER SIOUX CITIZENSHIP Small Tribe, SW Minnesota <1000 Acres, <1000 Members Successful Casino Every Upper Sioux Also a Member of Another Tribe Chair Helen Blue-Redner Seeks Constitutional Reform Sees Lack of Loyalty & Dedication to Upper Sioux Per Capita Payments & Other Benefits = Rising Membership Constitutional Reform Options Require Relinquishment of Citizenship in Any Other Tribe Tight, Enforced Residency Requirement – w/in 5 Miles of Res No Per Capita to Dual Enrollees and/or Non-Resident Members

Elements/Sources of Individual and Social Identity Language Property Owner Commitment +/- Shared history Political Views Political Connections Race/Blood Quantum Descendency Cultural Values Residency Family ties +/- Economic Contribution Achievement Status of Kin Education Friendships

Strategies of Nation Building: Vice-Secretary of the Crow Nation Darrin Old Coyote Vice-Secretary of the Crow Nation

Sand and Gravel Resource Areas Bentonite Resource Areas Coal Resource Areas CBM Areas Oil and Gas Limestone Resource Areas

Coal Resource Areas

Oil and Gas, CBM

Legal and Policy Foundations of Tribal Sovereignty

FORMS OF TRIBAL SOVEREIGNTY Sovereignty as Self-Rule De Jure…by Law De Facto…in Practice De Recto…by Moral Right

ORIGINS OF TRIBAL SOVEREIGNTY Pre-Contact Proto-Nationhood in North America The Colonial Period British v. Spanish and French Experience Conflicts and Alliances Early U.S. State-Tribal and Federal Tribal Relations Alliances and Power Balances The Founders and the Iroquois Confederacy The U.S. Constitution

THE EBB AND FLOW OF TRIBAL SOVEREIGNTY IN THE UNITED STATES Status Chronology Distribution International Treaties c. 1776… Military alliances, conflict, land acquisition, Law (and Military Expansion) c. 1830… Intra-US and border Native nations Military Conquest c. 1865… Internment, “pacification”, genocide Termination through Allotment c. 1885… Haphazard targeting of selected reservations Indian Reorganization Act of 1934 1934… All federally-recognized Native nations Termination through Derecognition 1953… 100+ selected Native nations Self-Determination Policy c. 1970… Tribal Practice Self-selected Native nations

TRIBAL 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.

THE 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)

VASCILATING 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).

RECENT 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)

TAX STATUS OF INDIANS Type of Tax Indians Who Work On/Live On Res   Type of Tax Indians Who Work On/Live On Res  Indians Who Work On/Live Off Res  Indians Who Work Off/ Live On Res Federal Income Tax YES State Income Tax NO FICA State Unemployment Tax Property Tax YES (Fee Lands)* State Sales Tax** Liquor, Gas & Cigarette Tax** Motor Vehicle Tax**

SOURCES 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.”

THE 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.”

CONSEQUENCES 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.”