Threats to Tribal Sovereignty are Nothing New

“Think not forever of yourselves, O Chiefs, nor of your own generation. Think of continuing generations of our families, think of our grandchildren and of those yet unborn, whose faces are coming from beneath the ground.”
(The Peacemaker in Wisdomkeepers, Wall and Harvey, 1990.)

Our ancestors were thinking of us. They were thinking of our mothers and fathers. They were thinking of our daughters and sons, and of our grandchildren. This was a time when our ancestors were confronted with a new relationship to the land. It was a time when other non-indigenous people came to this place and confronted our ancestors with embracing new ways of relating to this land. Our ancestors, however, were told by their elders that through living on this land, they shared the land. Following contact with Europeans, they were asked to exchange this land and to retain certain rights to anonymity and to use the land and to live as they had always lived. They respectfully acknowledged the newcomers’ traditions of negotiation and agreed to treaty-making. They were thinking of us.

“For the Lakota people, the seventh generation is a way of thinking. We give thanks to our ancestors so we could be here today. We must think about issues today, but we must also think about the issues as they will be seven generations from now. What you do today, the decisions you make, will affect them.”
(Chairman Greg Bourland, Cheyenne River Sioux Tribe, 1996)

With each generation, there are new challenges about how we survive as American Indian people. The long history of assimilation, termination, and genocide policies is not over for Indian people. While the current threats to Indian tribal sovereignty outlined in this report have long-standing historical roots, U.S. Indian policy is now more elusive in the implementation of anti-Indian sentiment or assimilation efforts. The latest threat to Indian people is a national trend by states, the U.S. Congress, and the courts to undermine the legal foundations of tribal sovereignty.

Key Findings

Attempts at assimilation of American Indians continues through subtle legal and political tactics of interest groups, states, and the federal government.
States are leading entities in attacking Indian sovereignty. An example of the breadth of the areas for attacks include the following:
Diminished Reservation Boundaries: Hagen v. Utah (1997) is one case states will be using to pursue the land base of tribes in the future.
Civil Claims: Status of off-reservation Indian commercial activity will continue to be challenged through civil cases.

Taxation: Targets for taxation, namely gaming revenues, are being pursued both legally and publicly through the media. Examples include a 16% tax negotiated in the recent gaming compact for the Navajo Nation and New Mexico and the targeting of casino revenues to finance a sports facility in Minnesota.

Tribal Membership: Challenges to the Indian Child Welfare Act to impose a standard designated criteria of “Indianness” have been made by states at the Congressional level.

Hunting and Fishing: Many states are arguing interpretation of treaty language in an attempt to impose state regulations on Indian tribes in the name of environmental protection.

Criminal Jurisdiction: Public Law 280: States are attempting to extend their jurisdiction under Public Law 280 and expand civil and regulatory power in Indian Country.

The lower courts are increasingly the first place for attack by anti-Indian groups and state and local governments due to the accessible nature of these courts and to the general lack of understanding of Indian sovereignty by judges and lawyers.
The legal pendulum is swinging from courts being more favorable toward Indians in the 1960s and 1970s to being less favorable in the 1990s toward tribes in their decision-making.

The appeals process is costly and time consuming, thereby depleting resources for tribes engaged in legal battles.
The trust relationship between tribes and the U.S. government is being challenged and dismantled through welfare reform measures and the devolution of social programs from the federal level to the state level.
Continuing threats to tribal sovereignty are being identified everyday through Indian media sources and groups monitoring legal and policy developments.

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