Tribes and states contesting sovereignties

Editors Report
3/22/03

Relations between states and tribes are increasingly tested these days. As economic opportunities based on tribal sovereignties emerge and expand, jurisdictional issues are hotly contested. Sometimes non-Native citizens, acting under a mantle of states' rights, challenge and often actively attack the very notion that Native tribes have any reserved rights as peoples and nations. Particularly when tribal issues prevail and can defend against the unrelenting push to possess Native territorial bases - both geographic and legal - anti-Indian groups will emerge and pressure in the courts and in the legislatures to break the Indian hold.

A recently published collection of essays, "The Tribes and the States: Geographies of Intergovernmental Interaction," (Rowman and Littlefield Publishers, Lanham, Md.), sheds a great deal of light on this subject and provides an excellent resource base on related issues. We congratulate the emerging crop of scholars - both Native and non-Native - who are delving deeply and seriously into these dynamics. They have provided Indian country with a valuable resource tool that should be studied by Native leaders and opinion-makers everywhere.

From the early history of the republic to the present day, recognition of tribal rights to territory and self-government have been consistently challenged as states have sought to impose themselves over their claimed territories. While the federal government eventually settled into a body of trust responsibility law and doctrine, states routinely attempt to erode Indian jurisdiction. To some measure of relief for tribes, state assertions of power over tribes are challenged by the doctrine of federal supremacy in Indian affairs. In defense of Indian bases, as the book points out, both federal and tribal governments cite the commerce and treaty clauses of the U.S. Constitution as foundations of Native legal rights.

States have consistently sought to impose themselves over American Indian governments. The thinking has been that they needed to do so in order to thrive as states. A good analysis of this situation as it develops in Kansas in the mid-1800s is presented by Melissa A. Rinehart and Kate A. Berry, in their article, "Kansas and the Exodus of the Miami Tribe." The authors recall the situation of the mid-1800s, when states and territories consistently agitated for Indian removal beyond their own borders. Thus the states were most "instrumental in getting titles to tribal land ? and extending their own jurisdiction."

The state of Kansas, for instance, encouraged and enabled non-Indian settlement on the lands of the Miami and other tribal reservations. This technique was part of the initiative "promoted by the state to have the Miami removed." State legislation paved the way to removal, fueled by fraudulent land deals involving state politicians. The authors point to language used by the Court in the 1866 decision in U.S. v. Kagama: "The (American Indian tribes) owe no allegiance to the states, and receive from them no protection. Because of local ill feeling, the people of the states where they are found are often their deadliest enemies." Methods and arguments against Indian land-holding and jurisdictions sounded much the same as they do today, over a century-and-a-half later. Anti-Indian groups, such as the Miami Claims Association, "declared themselves to be law-abiding citizens who were subjected to lawsuits without substantial merit that, if successful, would deprive members of their freedom and rights and would ruin the prosperity of the regional economy."

In his article, "Diminishment and the Question of Indian Character," Erin Hogan Fouberg discusses the opening of four South Dakota reservations to non-Indian land ownership. This sorry history is somewhat known, but certainly not widely or deeply enough. It was in fact a super imposition of the powerful state forces, lobbying Washington successfully against the nearly powerless Native reality of that era. The resulting "diminishment" and "checker-boarding" of Indian country in South Dakota is the gristmill of great misery and bitterness to this day. The arguments presented by the state, as it moved relentlessly to establish jurisdiction over the allotted and disputed Indian lands, makes for very instructive reading.

Professor David E. Wilkins is one well-informed and illuminating contributor. Wilkins cites Native American Church v. Navajo Tribal Council (1959), wherein a federal district court stated: "Indian tribes are not states. They have a status higher than that of states." Few people are aware, for instance, of the "Indian disclaimer clauses," agreed to by 12 western states, prior to gaining statehood. Wilkins skillfully examines these disclaimers, included in their territorial and enabling acts, and which are directly aimed at keeping the states from "extending their authority" onto Indian reservations.

These disclaimers incorporate very interesting (and important) legal language impacting states that encompass some 80 percent of American Indian populations and most of the 278 Indian reservations in the U.S. These include: Wisconsin (1836); Iowa (1838); Oregon (1848); Washington (1853); Kansas (1854); Nebraska (1854); Colorado (1861); North Dakota (1861); Idaho (1863); Montana (1864); Wyoming (1868); and Oklahoma (1890). Eleven states as well include such clauses in their constitutions, among which adds Arizona, Utah, New Mexico, South Dakota and Alaska to the list of states that address in their foundational documents language that protects American Indian jurisdiction.

Again, the purpose for these disclaimers was to protect Indians from settlers and homesteaders. As new states were being admitted to the Union before the removal policy was completed, a way to protect the tribes and to assert the supremacy of federal relations with tribes was needed. Relative to the newly acquired rights by the State of Kansas, for example, Wilkins cites two exceptions mentioned by a U.S. District court, (United States v. Stahl), which stated: "The first exception reserved the lands of Indian tribes which had treaties exempting them from state jurisdiction; the second, the power to tax the lands of the United States and of the Indians."

Many tribes, Wilkins points out, negotiated treaties with provisions that assured them a primary or sole relationship with the federal government. While the tribal-federal relation remains paramount, over the past two centuries, federal policies such as allotment and termination, as well as the infamous Public Law 280, have diminished the protections of the disclaimer clauses. Additionally, since 1989, the Rehnquist Supreme Court has seen fit at times to extend states' authority over Indian tribal rights in cases where states are not specifically precluded from exercising such jurisdiction.

And even this preclusion is not always tried and true, as seen in the case of the Indian Gaming Regulatory Act, which mandates tribes to negotiate compacts with states for some types of gaming, although, as Wilkins reminds us, "these measures' very existence is a reminder to states that the federal government has ultimate responsibility for Indian policies."

The bases for Indian tribal sovereignty are as hotly disputed as they are misunderstood. The book is a worthwhile compilation of documented legal language, presenting excellent citations from treaties, court cases, congressional reports and other important sources. College courses on contemporary Native issues would do well to teach using this informative book. Present and future leaders on Native issues are urged to embrace it as a solid primer for expanded thinking on the important and defining relationship between tribes and states of the American Union.

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