Research Reports
Reflections on Traditional American Indian Ways, 1998
Threats to Tribal Sovereignty, 1998
Traditional American Indian Leadership: A Comparison with U.S. Governance, 1997
Contemporary Threats to Tribal Sovereignty From the States
States are attempting to usurp Indian sovereign status in the areas of taxation, tribal membership, land diminution, and civil immunity. States are contending that new conditions or situations merit re-interpretation of federal law. The number of cases proceeding through state courts at this time is significant. Carvell states that "state courts issued about 100 decisions dealing with Indian law between January 1996 and April 1997 alone" (1997, 1).
Diminished Reservation Boundaries
A persistent problem in Indian Country is, as Carvell states, "whether a reservation has been diminished in size or disestablished all together [sic]" (1997, 5). Several cases (Hagen v. Utah, 1997; Yankton Sioux Indian Reservation v. S. Missouri Waste Management Dist., 1996), for example, have been litigated or are in the process of litigation on this issue. The central question is whether or not reservations were diminished as a result of allotment and the opening up of surplus land to non-Indian land settlement.
In Hagen v. Utah (1997) the Supreme Court ruled that the Uintah Indian Reservation was diminished when Congress opened up the reservation to non-Indian settlers. States are utilizing this decision to challenge the land base of Indian sovereignty. The South Dakota Supreme Court has ruled in a separate case, State v. Greger (1997), that the Yankton Reservation was similarly diminished. The Eighth Circuit Court of Appeals has concluded in the Yankton Sioux Tribe case that the reservation has not been diminished. It can be expected that more states may utilize Hagen v. Utah (1997) to pursue attacks on the sovereignty and land base of tribes.
Civil Claims
Some states are trying to undermine tribal sovereign immunity by challenging the status of off- reservation Indian commercial activity. Civil claims of employee rights, contracts or personal injury are becoming common. According to Carvell, "tribes, tribal entities, and businesses incorporated or otherwise authorized by tribal law are more and more subject to everyday civil actions" (1997, 5).
The State of Minnesota litigated against the Mdewakanton Dakota tribe, arguing the tribal entity that owns a bingo parlor, Little Six, Inc., is a commercial business enterprise and not a tribal governmental agency. While the court ruled in favor of the Mdewakanton and concluded that Little Six, Inc. has sovereign immunity from civil suits, it opened up the question for further judicial review. The court held that "tribal sovereign immunity now extends to commercial activities...which the U.S. Supreme Court has never addressed" (Gayle v. Little Six, Inc., 1996).
State Taxation
The most visible and media focused issue relating to Indian sovereignty is taxation on Indian gaming. States view money generated by Indian tribes through gaming as a potential tax revenue. States are targeting tribes both legally and in the public media as sources of untapped revenue. A state tactic has been to use political blackmail to attempt to force tribes into negotiations over gaming taxes. One such effort is being employed by Minnesota, where it has been suggested that allowing non- Indian gaming in competition with Indian tribes may be inevitable unless tax agreements are reached. In a letter asking tribal leaders to participate in such discussions, Minnesota's Governor Carlson wrote "there is a growing sense among many Minnesotans that the tribal casino monopoly should be reviewed" (personal communication, May 2, 1997). Minnesota's gaming compacts with Indian tribes have no expiration date, and cannot be reviewed without tribal consent.
Political pressures in New Mexico have already resulted in gaming compacts that require payments of 16% of the net win on gambling machines and fees to the state by eight American Indian Pueblos and tribes. Taking affect August 29, 1997, the state of New Mexico had received $2.8 million dollars from five of the eight tribes prior to the October 25, 1997 deadline for payments. Many American Indian officials said they signed the compacts because they were concerned that without a legal contract they would be ordered to shut down the casinos. However, they also stated the payments amount to illegal taxation of one sovereign nation by another (Testerman 1997). Even prior to the New Mexico compact, this political trend of taxation may lead states to attempt to unilaterally amend tribal gaming compacts and pressure Congress to modify the Indian Gaming Regulatory Act (1988) (Murphy 1996).
Another potential source for state taxation has been attempting to tax fee lands. In 1992, the U.S. Supreme Court ruled in the County of Yakima v. Confederated Tribes of the Yakima Indian Nation that land allotted by General Allotment Act (1887) was subject to state taxation. The Federal Circuit Courts of Appeal have heard several related cases and have ruled inconsistently on this issue.
Some county and local governments are also attempting to impose user fees on Indian tribes in unique ways. In Minnesota, Scott County proposed toll booths on all roads leading to the Mdewakanton Dakota Mystic Lake Casino. Initial construction costs are estimated at $108,000 with an annual operating cost of $477,000. The County asserts the annual estimated cost from the Dakota community at $2.3 million. The annual revenue expected from the toll roads is $2.9 million (letter to Scott County from Nguyen, M., January 13, 1997).
Tribal Membership
The Indian Child Welfare Act (ICWA, 1978) established federal procedures in Indian child custody matters. Under ICWA, tribes retain the authority to determine tribal membership of children. States have initiated efforts and continue lobbying Congress to amend ICWA and impose standard designated criteria of "Indianness," including such measures as level of cultural ties. Determining who is a tribal member is fundamental to tribal sovereignty.
Welfare Reform
Passage of Public Law 104-193, called the Personal Responsibility and Work Opportunity and Reconciliation Act of 1996 will have immediate and significant repercussions for tribes. Tribal members, like any other citizen of the United States, will have to meet state program criteria and compete with non-Indians for funds. There is no telling the impact of loss of benefits to tribal members or the impact to tribal governments. Social welfare programs for Indian that were once viewed as part of the trust responsibility will now be funded as block grants to states. This gives states the control over tribal matters that is supposed to be under the plenary power of the Congress. This change in laws affecting Indian tribes conflicts with the manner in which the plenary power is to be exercised by Congress: Congressional action impacting tribes must be explicit, not implicit.
Hunting and Fishing
Indian hunting and fishing rights retained by treaties are being challenged by the states under the name of conservation and environmental protection. Many states are challenging tribal sovereignty and arguing interpretation of treaty language in an attempt to impose state regulations on Indian tribes. States are pursuing these objectives in the name of environmental protection and are asserting that Indian hunting and fishing is subject to the same state regulations as non-Indian regardless of treaty language. The rationale being used is that Indians and non-Indians should be "equal under the law" and all should be subject to the same state laws and regulations.
In Minnesota, the Mille Lacs Band of Ojibwe hunting rights were affirmed by the U.S. Eighth Circuit Court of Appeals. The State of South Dakota is contesting tribal issuance of hunting licenses on trust land. South Dakota is arguing that Sisseton-Wahpeton trust land is technically "former" trust land, because it had been reclaimed by the U.S. Corps of Engineers. Many non-Indian hunters are blaming the Salish Kootenai for decimating moose herds in Montana, and are calling for Indian hunting rights to be abolished.
Criminal Jurisdiction: Public Law 280
Tribes subject to Public Law 280 (1953) face potential threats because state jurisdiction exists to a limited extent. States are attempting to extend their jurisdiction under Public Law 280 and expand civil and regulatory power in Indian Country. This problem is compounded by the fact that reciprocity agreements exist between tribes and state governments which grant states jurisdiction over tribal members. Recent cases in Minnesota have helped to clarify boundaries where the state had assumed jurisdiction (Bray v. Commissioner of Public Safety, 1996; State v. Stone, 1996; State v. Jackson, 1997). Nonetheless, the full impact of Public Law 280 is in the process of being determined through litigation.
The
Well-Being of American Indian Children in Minnesota: Economic Conditions,
1994
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