Tribal Nations Fight Challenges to Their Sovereignty
Senate hearings next week will explore sensitive subject of how different federal laws help or hurt Indian tribes.
Ever since the first settlers pushed west and began populating the broad expanses of North America, what constitutes "Indian country" has been the cause of fierce legal struggles and sometimes warfare.
In the end, native Americans lost much of their territory in return for sovereignty on what tribal land remained - spelled out in hundreds of treaties, just as if they had been other countries.
Today, with the Indian population in the United States rising faster than the general population, and with many tribes finding new ways to improve their economic status and political clout, tribal sovereignty again is being debated.
Should tribes be able to sell such products as tobacco and gasoline without having to collect state taxes? Should they be immune from lawsuits brought in state and federal courts by nonnatives who believe they've been injured or damaged by tribal entities?
"Indian tribes [should] be subjected to the same responsibility that others are," asserts Sen. Slade Gorton (R) of Washington, whose proposed legislation would change federal tax and liability laws as they relate to tribes.
Rep. Ernest Istook (R) of Oklahoma says such a measure could save states more than $1 billion in lost revenues annually - $100 million in New York, $105 million in Michigan, and $27 million in Oklahoma, for example.
But Indian leaders say such changes would undermine a relationship with the US government won after years of mistreatment.
Senator Gorton's proposal would "render Indian tribes impotent to protect their lands, resources, cultures, and future generations," W. Ron Allen, chairman of the Jamestown S'Klallam Tribe in Washington and president of the National Congress of American Indians, told a recent Senate hearing. If enacted into law, the measure would "extinguish hundreds of years of federal Indian policy that protects tribal self-government," he warned.
Responding to those who say that tribes are given special treatment, syndicated columnist Tim Giago argues that "American Indian nations gave up millions of acres of land for perpetual funds to educate their children, for health care and other rights, and for the right to run their own governments." Mr. Giago is a Lakota Sioux who edits and publishes the national weekly newspaper "Indian Country Today" from Rapid City, S.D.
There is no doubt that tribal economies are improving in many places. From fish hatcheries and logging operations in Alaska to cigarette manufacturing plants in Nebraska to casinos in Connecticut, tribes are finding ways to succeed in the marketplace.
And it's not just on reservations. If the Coeur d'Alene tribe in Idaho gets its way in expanding tribal-sponsored gambling onto the Internet, and if the ads for mail-order tax-free cigarettes now being promoted by computer become widespread, all of cyberspace could become part of "Indian Country."
Such activities should come under greater scrutiny, and states and individuals should not be limited to tribal courts in seeking redress, says Senator Gorton.
But others warn that tampering with tribal sovereignty could be harmful to native Americans.
"Tribal infrastructure for roads, community water and sewer services, and other amenities that most non-Indian communities take for granted are either absent or woefully inadequate," Derril Jordan, associate solicitor of Indian affairs in the US Interior Department, told the Senate Committee on Indian Affairs last month. "Health conditions are poor, and suicide, alcoholism, and unemployment rates on most reservations are above those in the rest of our nation."
"The needs of the overwhelming number of tribal communities far exceed the available financial resources," Mr. Jordan adds. "Without sovereign immunity, the assets of many tribal governments would soon be depleted to the point where meaningful self-government would be untenable."
Over the years, official policy toward Indian tribes has shifted. In the 1940s and '50s, the federal government promoted "termination" - giving up tribal lands in return for cash payments and assimilation into general society. Under then-President Richard Nixon, that policy was reversed and tribal rights were restored.
The US Supreme Court has ruled that products such as tobacco and gasoline sold to non-natives by Indian businesses are subject to state taxes. But current law also prevents state officials from suing tribal governments if they suspect that tribes are not collecting the taxes for payment to state governments. And in some cases, nonnatives who own property on reservation land feel they should not be subject to tribal taxes or restricted to tribal courts if they have a legal grievance.
Sen. Conrad Burns (R) of Montana has drafted legislation that would give his state civil jurisdiction over nontribal members who own land within the state's seven reservations. State Representative Jay Stovall (R), a member of the Crow Tribe, has held hearings to gauge public sentiment for a proposal Senator Burns hopes will improve relations between the groups.
Meanwhile, several tribes have worked out agreements with states regarding tax collection while preserving sovereignty. For its part, the Clinton administration favors these kinds of agreements over the Gorton legislation.
Sen. Ben Nighthorse Campbell (R) of Colorado, a member of the Northern Cheyenne Tribe who chairs the Senate Committee on Indian Affairs, says the broader issue is "whether the aboriginal Americans are members of this nation, or members of a multitude of nations within the US."
"My own view is that they can be both, should be both, and are both," he said in opening Senate hearings last month.
Senator Gorton's bill is a long shot at best, but he vows to press the issue in other legislative forums as well.
Nevertheless, says Senator Campbell (the only native American in the US Senate), "In addressing these issues, we are presented with an opportunity to strengthen tribal courts, and implement good governance practices."
Senator Campbell's committee will hold field hearings on tribal sovereign immunity next week in Seattle and Minneapolis.