Native American Sovereignty

Vine Deloria

 For the past century, the U.S. government has played the role of limited steward to American Indian tribes. Partly in reparation for its insensitive treatment of tribes during the nation's formative years, the federal government pays for a number of programs to assist Native Americans with education, health care and housing. The government also holds Indian lands, including tribal reservations, in trust, although individual Native Americans technically own those lands.

But for years, the government has also granted American Indians special rights to govern themselves, so that they are subject only to federal--rather than local and state--laws. These rights, often collectively known as Native American sovereignty, were first outlined in the hundreds of treaties the U.S. government signed with tribes in the 18th and 19th centuries. The treaties, whose legality has been upheld in the Constitution and in a number of Supreme Court rulings, gave tribes independence from outside governments in return for land. A number of federal laws have also cemented tribes' right to self-government.

Many Republicans in Congress believe the time has come to restructure the government's policies toward Native Americans. They say the combination of sovereignty and large aid programs has allowed--even encouraged--Indians to remain outside the mainstream of American society. This situation benefits neither American Indians nor other Americans, Republicans say. Often, Indians on reservations become ensnared in a cycle of poverty and government dependence, critics say, while their immunity from state and local laws gives them unfair advantages over ordinary citizens.

For example, some Republicans complain, tribes are immune from certain lawsuits brought by non-Indians, shielding the tribes from liability. Also, they say, the law makes it easy for Indians not to tax non-Indians who spend money on their reservations, giving the Indians an unfair advantage over other merchants. Other laws allow Indians to hunt and fish in areas that are off-limits to other Americans. As U.S. citizens, critics of sovereignty say, Indians ought to be held to the same laws as everyone else.

Critics also contend that a law that allows Indian reservations to run gambling casinos--some of which have become highly profitable--has greatly increased the prospect that at least some tribes could be weaned from federal aid. It is unreasonable to continue to give taxpayer subsidies to tribes that generate millions of dollars a year in gambling profits, many conservatives argue.

Most Indians, for their part, protest the notion of repealing Native American sovereignty or scaling back federal aid programs. Most agree that tribes must somehow attain greater economic self-sufficiency if they are to thrive. However, only a small number of tribes now make enough money from gambling and other business ventures to be able to achieve self-sufficiency, critics warn, while the rest continue to be mired in destitution.

Native Americans remain the poorest and least-educated people in the U.S., they point out--a situation they attribute largely to governmental mistreatment of tribes in the past. Therefore, the government could not with clear conscience withdraw any of its Indian aid programs, Native American leaders maintain. Conditions for Indians on most reservations would become intolerably desperate. "There are huge, continuing problems of poverty in Indian America," says Stephen Cornell, director of the Udall Center for Studies in Public Policy at the University of Arizona in Tucson.

Native Americans say tribal sovereignty is their most fundamental right. Indians should not have to live by exactly the same laws as other Americans, they say, because tribes' histories are entirely distinct from those of non-native peoples who have arrived in the U.S. in the past several centuries. That separate heritage must continue to be accommodated by law, Indians contend.

Subordination and Sovereignty

The federal government's treatment of American Indians as white settlement spread Westward is generally recognized as one of the most shameful aspects of U.S. history. Broken treaties and promises, forced confiscation of Indian lands and brutal wars characterized the government's Native American policy from the 17th through the early 20th century.

After the U.S. won official independence from Great Britain in 1783, the fledgling national government made a number of land treaties with Native American tribes. Under the treaties, Indians signed away their rights to large tracts of land--while retaining the rights to other portions--and recognized the authority of the U.S. government to govern the lands in question. In return, the U.S. often paid the Indians a sum of money, agreed to provide military protection and agricultural and medical resources, and recognized the tribes' sovereignty.

In Article VI of the U.S. Constitution, adopted in 1789, treaties made in the name of the U.S. government--including those made with Indian tribes--were made the "supreme Law of the Land." However, throughout the 19th century, the Indian treaties were poorly enforced and many white settlers seized land that had been reserved exclusively for the tribes. Violent skirmishes--the so-called Indian wars--frequently broke out. Indians, who often lacked the sophisticated and deadly weapons used by the whites, were the usual losers in those wars.

In what most historians view as the ultimate indignity imposed on Indians by whites, the federal government forced more than 70,000 Native Americans to march from their homes in states East of the Mississippi River to reservations in Oklahoma territory and other western areas between 1830 and 1840. Thousands of Native Americans died of starvation, exposure and exhaustion on the westward journey, which became known as the "Trail of Tears."

At the same time that eastern Indians were marching to Oklahoma, however, the Supreme Court was making a series of rulings that solidified the notion of Native American sovereignty--a notion that remains the benchmark of American Indian policy and is perhaps the most cherished right among Indians. In the case Cherokee Nation v. Georgia (1830), the court ruled that states did not have the authority to confiscate land from Indian tribes, since Indian lands were protected by treaties with the federal government. In the decision, the court termed tribes "domestic, dependent nations" that were to be treated much like foreign countries. The following year, in the case Worcester v. Georgia, the court even more strongly affirmed tribal sovereignty, defining an Indian tribe as "a distinct political society, separated from others, capable of managing its own affairs and governing itself."

The court's rulings meant that the federal government had no authority to impose laws on tribes--instead, agreements on land rights and other matters had to be reached by means of treaties. Between 1778 and 1871, Congress ratified 371 treaties with Native American tribes. But in 1871, Congress declared that Indian tribes were subject to federal law, and were no longer entirely independent. Still, tribes retained their immunity from state and local law, a status that applies to no other group in the U.S.

The idea of Indian tribes as "nations within a nation" was reinforced by the reservation system, under which the federal government set aside strictly defined areas exclusively for Indian tribes. Even today, tribes on reservations have many of the same powers as states, and answer only to the federal government. Those powers were affirmed by the Indian Self-Determination Act of 1975. Tribes may adopt their own constitutions and can set their own taxation policies (they are exempt from local and state--but not federal--taxes). And, like state and local governments, tribes are immune from tort lawsuits (lawsuits in which plaintiffs seek damages for wrongful acts). Individual Indians, however, can be sued in federal court.

Courts have ruled that treaties signed in the 19th century guarantee many tribes unique rights to fish and hunt on public and private lands without being subject to the same restrictions as other people. For example, the Supreme Court ruled in Minnesota v. Mille Lacs Band of Chippewa Indians (1999) that Chippewa Indians in Minnesota need not obey fishing limits that apply to others, due to an 1837 treaty the Indians signed with the state.

In a similar case, the high court in April 1999 let stand a ruling that allows 17 tribes in Washington State to collect shellfish from privately owned beaches, again as a result of a treaty. Also in Washington, in 1997, the International Whaling Commission gave the Makah Indians permission to kill five gray whales--an endangered species--per year, based on an 1855 treaty that protects the Indians' right to do so. The Indians received a $300,000 federal grant to carry out their hunt. The killing of endangered species is outlawed for all other citizens by federal law.

Aid v. Self-Sufficiency

In some ways, Native Americans have rebounded from the setbacks they endured in the past several centuries. In the 1920s, there were only about 250,000 people of Indian ancestry living in the U.S., down from an estimated 10 million to 15 million prior to colonialization. Today, there are slightly more than two million people who identify themselves as Native Americans in the U.S, with the population increasing at a rate of 2.7% a year.

However, despite their growing numbers, social and economic conditions for many American Indians--particularly those living on reservations--remain dire. According to the 1990 U.S. Census, nearly one-third of Indians live below the poverty level--more than twice the national average. Indians' overall unemployment rate was 14% in 1990, compared with 6.3% for the total population. Among the approximately 400,000 Indians living on reservations (about one-fifth of the total population), unemployment has been estimated to be as high as 46%.

Indians living on reservations complete less education and have the shortest life-spans (and worst health) of any group in the U.S. They have the highest rates of alcoholism, child abuse and suicide in the nation. Much of the housing on reservations is dilapidated.

Many observers blame past and present U.S. policies for the destitution of the Native American population. "It's a national disgrace," says Sen. John McCain (R, Ariz.), who is running for the Republican presidential nomination in 2000 and who headed the Senate Committee on Indian Affairs until 1997. "Any objective observer would say that our treatment of Native Americans is a national disgrace."

Periodically since the 1930s, Congress has attempted to alleviate the dismal conditions that characterize most reservations. These attempts have alternated between plans that give tribal reservations federal assistance and bills that encourage Indians to leave reservations and assimilate into society at large. For example, the Johnson-O'Malley Act (1934) outlined a package of services that the federal government would provide to Indians--including health care, improved educational facilities, farming equipment and welfare money--while the Relocation Services Program, begun in 1952, gave money and vocational training to Indians who wanted to move off reservations and into cities. The conflict between providing assistance to poverty-torn reservations and encouraging economic independence continues to characterize Native American policy today.

Most federal programs for Native Americans are administered by the BIA, formed in 1824 and a division of the Interior Department since 1849. Much of the BIA's budget, which is $1.9 billion for fiscal year 2000, is given to tribes in the form of grants to improve conditions on reservations. The amount of assistance that tribes receive varies mostly according to their size. The Cherokee Nation of North Carolina, which is the second-largest tribe in the country, after the Navajos, receives about $100 million in federal assistance each year. But many of the 558 officially recognized U.S. tribes have only a handful of members, and they receive far less. [See 2000 How the Bureau of Indian Affairs Spends Its Money]

The grants vary, too, with the BIA's budget, which suffered significant cutbacks after the Republicans swept Congress in 1994. In 1996, the Republican-dominated House and Senate approved a 10% funding cut for the BIA, most of which has since been restored.

In 1988, Congress passed a groundbreaking law designed to push reservation Indians toward economic self-sufficiency without encouraging them to leave the reservation. The law, called the Indian Gaming Regulation Act, allows tribes to operate gambling casinos on their reservations, on the condition that their state of residence approves. Until the act's passage, almost all states banned gambling entirely. However, gambling operations are highly profitable, and since the gaming act passed, 24 states have approved reservation casinos in order to help Indians improve their economic conditions.

A number of those casinos have since become quite profitable. For example, the Mashantucket Pequot Tribe grosses $1 billion a year at its Foxwoods Casino, on reservation land near Ledyard, Ct.; it is the most profitable casino in the Western Hemisphere. A casino operated by the Oneida Nation of central New York is now the largest employer in two counties, and generates hundreds of millions of dollars in revenue. However, by most reports, success stories on a par with the Mashantucket Pequots' and Oneidas' are few and far between. According to the General Accounting Office (GAO), the investigative arm of Congress, half of all Indian gaming profits in 1996, which totaled $1.6 billion that year, were earned by just 10 tribes.

Some policy makers say that tribes with high revenues from casinos and other businesses should have their federal aid allotments adjusted. Those with the least need for public assistance should receive less funding, they say, and the surplus should be redistributed among needier tribes. [See 2000 Are Some Tribes Too Rich for Aid?]

Sovereignty Said to Go Too Far

In Congress, the leader of efforts to reform Native American sovereignty has been Sen. Slade Gorton (R, Wash.), who is chairman of the Senate Appropriations subcommittee on interior and related agencies, which controls BIA funding. Gorton has written or sponsored a spate of bills in recent years that seek to make Indians subject to most of the same laws and ordinances as other U.S. citizens. He says the notion of sovereignty gives Indians leeway to act outside of basic laws that should apply to everyone. "This is a matter of principle for me," Gorton says. "Indians are citizens of the United States. They should be governed by laws of the United States as everyone else is."

To what extent should Indian sovereignty be reined in? Policy makers who favor limiting tribal sovereignty have targeted several areas for reform in recent years:

Reservation Tax Laws. In the past three sessions of Congress, Gorton has introduced bills that would stiffen penalties for Indians who skirt a tax law that applies to reservations. By law, Native Americans purchasing goods on reservations are not subject to taxation, but non-Native American purchasers must pay state sales taxes. According to Gorton and others, however, non-Native Americans are rarely taxed, so that many people buy food and other goods on reservations in order to avoid taxes--thereby giving the reservation stores an illegal advantage over those outside the reservations and robbing states of millions of dollars in tax revenue. Gorton says that in fiscal year 1998, Washington lost $64 million on cigarette taxes alone because of lax enforcement of the law on reservations.

Casinos. Gorton and others also advocate taxing revenues on Indian casinos, which, like all businesses on reservations, are currently tax-exempt. Many Indian casinos are highly profitable and could easily afford to pay taxes just as non-Indian businesses do, critics contend. "Keep in mind, the gaming compacts are not a treaty right," says Wisconsin Gov. Tommy Thompson (R), who advocates taxing tribal casinos in his state. "We are asking nothing from the tribes that exceeds the principles of reason and fairness."

Some critics contend that because some studies have shown that gambling is addictive and can lead to crime and other social maladies, the number of casinos operated by tribes should be limited. Indeed, in June 1999, the federal National Gambling Impact Study Commission urged a moratorium on legalized gambling in the U.S.--including in reservation casinos.

Legal Immunity for Tribes. Many policy makers also decry the fact that Indian tribes can claim immunity from tort lawsuits. Gorton, who has introduced legislation to overturn this policy, cites a case from 1993, in which a non-Indian boy was killed on the Yakama Indian Reservation in Washington when a tribal police officer smashed into his car after running a red light. The boy's family may sue the tribe for damages only in a tribal court, where Gorton and others say they would have no chance of winning. "This family has no ability to hold the Yakama police or tribal government responsible for the actions of one of their officials in a neutral court," says Gorton. (The case was eventually settled when the family filed suit against the federal government, as trustee of the reservation.)

Hunting and Fishing Rights. Rulings upholding Indian hunting and fishing rights have outraged both conservatives and environmentalists. Environmentalists point out that Indian treaties were signed in an era when natural resources were much more plentiful than they are today, and are therefore no longer a reasonable way of making policy. All Americans, they say, must adhere to laws designed to protect endangered species and wilderness areas, or those laws will be rendered meaningless.

Conservative hunting groups, meanwhile, say giving tribes unlimited fishing and hunting rights depletes supplies for non-Indian hunters. If those hunters are discouraged from hunting in depleted areas, they warn, local businesses that thrive on tourism could suffer. Also, property rights groups denounce rulings that give tribes hunting rights on private property, which they call an inexcusable invasion of people's privacy.

Land Use. In one highly controversial case that has tested the limits of tribal sovereignty, the Goshute Indians of Skull Valley, Utah offered in 1998 to lease part of their land for nuclear waste storage. "We're using [our] sovereignty to attract the only business you can get to come here," says Goshute tribal chairman Leon Bear. Tribes have wide latitude in decisions about how to use their land.

However, Utah's governor, Mike Leavitt (R), and Congress members say it is outrageous that the Goshutes can make decisions that could profoundly affect other citizens' health without being subject to any state review process or public debate. They have pledged to fight the deal. "It's just not right, this use of sovereignty," says Rep. Merrill Cook (R, Utah). "The implications are frightening for us as a nation. Something is dead wrong when a small group of people"--the Goshutes number about 100 members--"can ignore the will of 90% of our state." As of January 2000, the U.S. Nuclear Regulatory Commission was considering whether to grant the Goshutes a license for the storage plant. If the license is granted, waste would begin arriving at the reservation in 2002 or 2003.

Sovereignty Defended

Native American leaders, on the other hand, defend sovereignty as their most important--and most basic--right. They dismiss efforts at reforming tribal sovereignty as illegal at best and anti-Native American at worst. The policy of treating tribes as semi-independent nations was established nearly two centuries ago, Native American groups note, by Supreme Court decisions and by a series of treaties that both implicitly and explicitly acknowledge Indian tribes as separate governments. Attempts to overturn sovereignty now "are a total departure from the government-to-government relationship the tribes have always had with Washington, [D.C.]," says John Blackhawk, chairman of the Winnebago Tribe of eastern Nebraska.

Worse, attempts to tax tribes or supersede their land-use rights represent a breach of the only remaining dignity that the U.S. government has allowed the tribes, leaders say--the right to govern themselves. "We gave up vast amounts of land in return for sovereignty and certain obligations by the federal government," says Debra Doxtator, chairwoman of the Oneida Nation of northern Wisconsin. "Now they want to throw that out." A large measure of independence, tribal leaders say, is the least the U.S. should grant Indians today in view of the grievous treatment tribes endured at the hands of the federal government in the 18th and 19th centuries.

Sen. Ben Nighthorse Campbell (R, Colo.), the only Native American in Congress, has frequently sparred with Gorton, saying sovereignty is "a result of solemn promises made by the United States to tribal governments in exchange for Indian lands." Indians have histories separate from those of non-Native Americans, leaders say, and sovereignty represents the only way tribal customs and traditions can be maintained.

As laws such as the Indian Self-Determination Act affirm, tribes are to be treated much like states, supporters of sovereignty say. As a result, efforts to strip tribes of their immunity from lawsuits or impose taxes on tribal operations are completely illegal, they say. No one is suggesting that state governments be taxed, supporters point out, even though states run programs such as lotteries that bring in large amounts of revenue, just as some tribes now do. "If you had these conservative Republicans all of a sudden trying to tax county governments or state lotteries, people would look at them like they're crazy," says Bill Golnick, general manager of the Oneida Nation of Wisconsin.

Taxes on casinos and other tribal businesses would put a damper on Indians' efforts to improve living conditions on reservations, leaders contend. Because tribal reservations are geographically isolated, it is difficult for them to draw consumers to support other types of business and industry. An even greater threat to progress is posed by the federal gambling committee's June 1999 recommendation to prohibit further legalized gambling in the U.S., Native American leaders say. According to a statement by the National Indian Gaming Association, which represents tribal gambling interests, if Congress took the recommendation to heart and put a freeze on reservation casinos, it would mean "one less hospital, one less school or one less college scholarship" for many tribes.

Many Native Americans say calls for greater restrictions on sovereignty are driven largely by a misperception that Indians are sneakily becoming rich from gambling operations, thanks to laws that protect them from state and local regulation. This perception has led to resentment among many non-Native Americans, they say. In reality, however, poverty remains the dominant aspect of life on the vast majority of reservations in the U.S., analysts say.

Indian leaders say the federal government has repeatedly shown itself to be inept at controlling Native American programs. For example, the BIA has faced decades of criticism for its handling of Native American trust funds. [See 2000 Land Trusts Incite Controversy]

There is no reason to believe that the federal government would not similarly bungle its duties in managing Indian taxes, casinos or land use, if anti-sovereignty legislation were to become law, opponents say. Tribes can manage their own affairs more sensitively and effectively than large federal bureaucracies can, Native American groups say.

Battles Remain

Gorton and his supporters say they are merely trying to rectify a legacy of policy making that has exempted groups of people from important local and state ordinances. Native Americans should be allowed to retain their culture and traditions, they say, but should also be required to adhere to the same laws and regulations that apply to all other Americans. The effectiveness of land-use regulations and tax laws will be undermined if not everyone is required to obey them, critics maintain.

However, American Indian leaders staunchly defend their sovereignty rights. They say those rights have strong roots in U.S. law and history. Overturning sovereignty would effectively nullify countless court rulings and federal laws upholding tribal self-governance, Native American groups say.

By most gauges, it appears that Native Americans are winning the battle to maintain their sovereignty. Decades-old treaties between federal and tribal governments have held up strongly in courts in recent years, most notably in decisions on hunting and fishing rights. And recent bills introduced by Gorton and other would-be reformers have been unable to muster enough support to pass Congress.

Still, bitter disputes continue to crop up at the local and state levels. Analysts are anxiously watching the battle raging between the Goshute Indians and Utah over the tribe's proposed nuclear waste storage plant, for example, and Wisconsin's attempts to tax tribal casinos. The outcome of those battles may serve as bellwethers for relations between tribes and states in years to come.

Bibliography

Biskupic, Joan; Claiborne, William. "Indians' Fishing Rights Upheld." Washington Post (March 25, 1999): A2.

Carlson, Peter. "The Unfashionable." Washington Post Magazine (February 23, 1997): 6.

Claiborne, William. "Threat to Sovereignty Sends Tribes to Capitol." Washington Post (September 10, 1998): A3.

Egan, Timothy. "Backlash Growing as Indians Make a Stand for Sovereignty." New York Times (March 9, 1998): A1.

Egan, Timothy. "New Prosperity Brings New Conflict to Indian Country." New York Times (March 8, 1998): A1.

Kilborn, Peter. "For Poorest Indians, Casinos Aren't Enough." New York Times (June 11, 1997): A1.

Miller, Bill. "Judge Orders Overhaul of Indian Trust Fund." Washington Post (December 22, 1999): A1.

New York Times (August 23, 1996). "Tribal Immunity from Suits Is Upheld": B7.

New York Times (November 12, 1999). "Tribes Are Looking Beyond Casinos to Build an Economic Base": A20.

Sanchez, Rene. "As Tribe Pursues Whales and a Way of Life, Conflict Grows." Washington Post (October 17, 1998): A1.

Whitesides, John. "Tribal Leaders Argue to Retain Immunity." Washington Post (March 12, 1998): A13.

Whitman, David. "Why the U.S. May Owe Indians Untold Billions." U.S. News & World Report (March 8, 1999): 24.

Additional Sources

Additional information about Native American sovereignty may be found in the following sources:

Deloria, Jr., Vine; Lytle, Clifford. The Nations Within: The Past and Future of American Indian Sovereignty. Austin: University of Texas Press, 1998.

Lyons, Oren et al. Exiled in the Land of the Free: Democracy, the Indian Nations and the U.S. Constitution. Santa Fe, N.M.: Clear Light Publishers, 1992.

Wilkins, David. American Indian Sovereignty and the U.S. Supreme Court. Austin: University of Texas Press, 1997.