Myths and Realities of Tribal Sovereignty

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MYTHS AND REALITIES OF TRIBAL SOVEREIGNTY,THE LAW AND ECONOMICS OF INDIAN SELF RULE. Joseph P Kalt,John F Kennedy School of Government,Harvard University. Joseph William Singer,Harvard Law School,Harvard University. NATIVE ISSUES RESEARCH SYMPOSIUM,Harvard University. December 4 5 2003 revised January 2004, SPONSORED BY THE HARVARD UNIVERSITY NATIVE AMERICAN PROGRAM.
SUPPORTED BY THE ERNST FUND FOR NATIVE AMERICAN STUDIES. www ksg harvard edu hunap,MYTHS AND REALITIES OF TRIBAL SOVEREIGNTY. THE LAW AND ECONOMICS OF INDIAN SELF RULE,Joseph P Kalt. Joseph William Singer, The last three decades have witnessed a remarkable resurgence of the American. Indian nations in the United States The foundation of this resurgence has been the. exercise of self government sovereignty by the more than 560 federally recognized. tribes in the U S In this study we explore legal and economic dimensions of current. perceptions of and debates over the nature and extent of tribal self rule in the United. States Our objective is to clarify and illuminate by distinguishing between myth and. reality We address key threads of thought and assumption that pervade accurately or. inaccurately discussions in the public policy arena What emerges is a picture in which. tribes do exercise substantial albeit limited sovereignty This sovereignty is not a set of. special rights Rather its roots lie in the fact that Indian nations pre exist the United. States and their sovereignty has been diminished but not terminated Tribal sovereignty. is recognized and protected by the U S Constitution legal precedent and treaties as well. as applicable principles of human rights, Prof Kalt is the Ford Foundation Professor of International Political Economy John F Kennedy. School of Government Harvard University He also serves as faculty chair of the Harvard University. Native American Program HUNAP and co director of the Harvard Project on American Indian. Economic Development www ksg harvard edu hpaied Prof Singer is Professor of Law Harvard. Law School Harvard University and a member of HUNAP s Faculty Advisory Board The authors. gratefully acknowledge the helpful comments of Sanjeev Khagram and participants in the Native. Issues Research Symposium as well as the financial support of the HUNAP s Ernst Fund for Native. American Studies,MYTHS AND REALITIES OF TRIBAL SOVEREIGNTY.
THE LAW AND ECONOMICS OF INDIAN SELF RULE,Joseph P Kalt. Joseph William Singer, I Introduction A Critical Point in the Course of Indian Self Rule. The last three decades have witnessed a remarkable resurgence of the Indian. nations in the United States After centuries of turmoil oppression attempted. subjugation and economic deprivation the Indian nations have asserted their rights and. identities have built and rebuilt political systems in order to implement self rule and. have begun to overcome what once seemed to be insurmountable problems of poverty. and social disarray The foundation of this resurgence has been the exercise of self. government by the more than 560 federally recognized tribes in the U S. Supported by every U S President since the 1960s and bolstered for a time by a. combination of federal court rulings and congressional policies tribal self rule. sovereignty has proven to be the only policy that has shown concrete success in. breaking debilitating economic dependence on federal spending programs and. replenishing the social and cultural fabric that can support vibrant and healthy. communities and families 1 While gaming enterprises of tribes governments garner most. of the attention self rule is creating more and more economic success stories in Indian. This conclusion emanates from an extensive and growing body of research particularly that associated. with the Harvard Project on American Indian Economic Development For example on economic. development see Cornell and Kalt 1992 1995 1997a 1997b 1998 2000 Jorgensen 1997 2000a. 2000b Krepps 1992 Krepps and Caves 1994 On social conditions and health see for example. Adams 1999 Dixon et al 1998 Moore et al 1990 Costello et al 2003. Kalt and Singer American Indian Sovereignty, Country from the virtual elimination of tribal unemployment and the boom in non. Indian hirings in the factories and other operations of the Mississippi Choctaw 2 to the. cutting of unemployment from 70 to 13 in six years via the non gaming businesses of. the Winnebago Tribe s Nebraska Ho Chunk Inc 3 Gaming success itself is spurring. self sufficiency as tribes such as Oneida New York and Mille Lacs Minnesota take. the step of eschewing federal funding And the success of self determination is not solely. economic as when Mississippi Choctaw plows the fruits of economic development into. dramatic improvements in public safety and health care delivery 4 Mille Lacs is able to. invest in award winning efforts to replenish Native language use 5 and Jicarilla Apache. New Mexico and White Mountain Apache New Mexico are able to take control of. wildlife and forest management with professionalism and results perhaps unmatched by. any government anywhere 6, Despite or perhaps because of the economic social and political success of. Native self rule tribal sovereignty is now under increasingly vigorous and effective. Ferraro 1998, Harvard Project on American Indian Economic Development Economic Development Corporation.
Ho Chunk Inc Winnebago Tribe of Nebraska Tribal Governance Success Stories Honoring. Nations 2000, Harvard Project on American Indian Economic Development Choctaw Health Center Mississippi. Choctaw Tribal Governance Success Stories Honoring Nations 1999 Harvard Project on American. Indian Economic Development Choctaw Community Injury Prevention Program Mississippi. Choctaw and Family Violence Victim s Services Mississippi Choctaw Tribal Governance. Success Stories Honoring Nations 2003, Harvard Project on American Indian Economic Development Ojibwe Language Program Mille Lacs. Band Tribal Governance Success Stories Honoring Nations 2000. Harvard Project on American Indian Economic Development Wildlife and Fisheries Management. Program Jicarilla Apache Tribe Tribal Governance Success Stories Honoring Nations 1999. Harvard Project on American Indian Economic Development White Mountain Apache Wildlife and. Recreation Program Tribal Governance Success Stories Honoring Nations 2000. Kalt and Singer American Indian Sovereignty, attack Over the last decade in particular the Supreme Court has moved repeatedly to. limit tribal powers over nonmembers Lower courts have fed this process with decisions. that increasingly rein in the ability of tribal governments to govern commerce and social. affairs on their reservations 7 Congress too has seen increasing numbers of bills. introduced to abolish the tribes sovereign immunity limit their taxation powers and. regulate their commerce 8 The well known Indian Gaming Regulatory Act of 1988 so. widely credited by mainstream media with fostering rising incomes on a number of. reservations in fact imposed limits on tribes sovereignty that had been secured in 1987. with the Supreme Court s ruling in California v Cabazon Band of Mission Indians 9. State and local governments similarly are pushing back against assertions by tribes of. tribes governing authority 10, Indian nations have re entered the consciousness of the general public and the. media and many are left wondering why tribes have suddenly become regional. political forces and increasingly economic engines To many non Indians Indians are. seen as legitimate only to the extent that they fill those non Indians stereotypes If. Indians are poor or authentic they may deserve federal handouts perhaps as. compensation for conquest but if they are wealthy and modern why do they continue to. enjoy special rights Similarly tribes as collectives are seen by many non Indians as. legitimate if they act like private clubs but not if they act like sovereigns Non Indians. For a useful summary see Wilkins 2002 esp at 92 96. Wilkins 2002 at 78 81, California v Cabazon Band of Mission Indians 480 U S 202 1987.
Wilkins 2002 at 94 102,Kalt and Singer American Indian Sovereignty. are often confused when tribes claim to be nations Don t they know that they have. been absorbed by the United States Weren t the tribes conquered long ago The fact. that non Indians can ask these questions reflects a failure of understanding of U S history. and law Tribes are sovereigns if they are private clubs they are private clubs with their. In this study we explore legal and economic dimensions of current perceptions of. and debates over the nature and extent of tribal self rule in the United States Our. objective is to clarify and illuminate by distinguishing between myth and reality We. address what we believe are key threads of thought and assumption that pervade. accurately or inaccurately discussions in the public policy arena What emerges is a. picture in which tribes do exercise substantial albeit limited sovereignty This. sovereignty is not a set of special rights Rather its roots lie in the fact that Indian. nations pre exist the United States and their sovereignty has been diminished but not. terminated Tribal sovereignty is recognized and protected by the U S Constitution legal. precedent and treaties as well as applicable principles of human rights. Tribal sovereignty is not just a legal fact it is the life blood of Indian nations. This is obviously true in the political sense Without self rule tribes do not exist as. distinct political entities within the U S federal system Moreover economically and. culturally sovereignty is a key lever that provides American Indian communities with. institutions and practices that can protect and promote their citizens interests and well. being Without that lever the social cultural and economic viability of American Indian. communities and perhaps even identities is untenable over the long run. Kalt and Singer American Indian Sovereignty,II Defining Sovereignty. The concept of sovereignty can and does fill volumes of treatises in law. political science and international relations World economic and military affairs at the. start of the 21st Century are giving new salience to sovereignty as terms like nation. building are being used as uneasy foundations for remaking countries in the Middle. East Africa and elsewhere as developed countries debate how much power to relinquish. to transnational judicial bodies such as the World Trade Organization and the World. Court and as some in smaller nations worry themselves about the loss of cultural. sovereignty to the juggernaut of media based U S pop culture The sources meanings. consequences limits propriety and other fine points of sovereignty seem destined to. be widely and vigorously discussed dissected and debated for years to come. This is no less true when it comes to Indian sovereignty But here we adopt the. most straightforward of definitions of sovereignty Sovereignty is self rule As applied. to Indian Country sovereignty boils down to Who is going to decide what constitution. we will operate under Who will decide what environmental rules will govern Who. will decide whether that natural resource gets developed Who decide if a gaming casino. is opened Who will decide what is taught in the reservation high school Who will. decide what taxes are collected and from whom Who can regulate and enforce. contracts provide remedies for negligent conduct and adjudicate disputes over property. Who will decide the speed limit on the road into the tribal headquarters Who will. decide how to decide questions such as these When the answer to questions of these. types and particularly the last question is the Tribe i e the tribal government an. Kalt and Singer American Indian Sovereignty, Indian tribe has sovereignty When the answer is some non Indian government a tribe. lacks sovereignty, Of course the foregoing does not even address the question of who should have. sovereignty As tribes have learned over the last several decades however there are. important distinctions between de recto sovereignty de jure sovereignty and de facto. sovereignty i e sovereignty by moral principle or right sovereignty by legal decree or. legislative act and sovereignty in practice Tribes and their supporters can compellingly. and articulately assert the first and petition and lobby for the second but what ultimately. matters is the last form of sovereignty the de facto exercise of sovereign powers. Indeed as discussed below armed with fierce commitment to the propriety of their de. recto claims the frontier for many tribes in today s legal and political environment lies in. building the institutional and economic capacity to exercise self rule even where its de. jure foundations may be ambiguous or even absent That is many tribes increasingly. embrace the Nike strategy of just do it when it comes to matters ranging from the. enforcement of environmental codes to the administration of justice in contract disputes. to the regulation of foster care placements for their citizens 11 They are exercising. sovereignty When they do this they create facts on the ground that can give tribes. sovereignty a firm foundation at the same time the de facto exercise of sovereignty. creates a backlash that may threaten these newfound gains. If defining sovereignty as self rule is straightforward understanding the. sources state and consequences of tribal sovereignty is not Instead such matters are. MYTHS AND REALITIES OF TRIBAL SOVEREIGNTY THE LAW AND ECONOMICS OF INDIAN SELF RULE Joseph P Kalt John F Kennedy School of Government Harvard University and Joseph William Singer Harvard Law School Harvard University NATIVE ISSUES RESEARCH SYMPOSIUM Harvard University December 4 5 2003 revised January 2004 SPONSORED BY THE HARVARD UNIVERSITY NATIVE AMERICAN PROGRAM SUPPORTED BY THE ERNST

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