Keys to Native Nation Building

1. Keys to Native Nation Building

2. IS THERE A NATIVE AMERICA? DIMENSIONS OF DIVERSITY • Size – Geography and Population • Location – Urban v. Rural • History • Social & Economic Conditions • Gaming v. Non-Gaming • Agriculture, Tourism, Manufacturing, Subsistence • Culture – Historic and Contemporary • Language • Religion and Ceremony • Arts • Social Relations • Governmental Form

3. …BUT WITH COMMON CHALLENGES • Political Self-Determination • Defending and Expanding Sovereignty • Exercising Powers of Self-Rule • Social and Cultural Self-Determination • Continuity of Shared Identity • Collective Commitment to the Nation • Economic, Social, and Cultural Well-Being • Reversing the Centuries of Deficits • “A Place Where People Can and Want to Live” The Challenge is Nation Building

4. NATION BUILDING Definition The enhanced capacity of indigenous nations to realize their own cultural, educational, economic, environmental, and political objectives through foundational actions of their own design and initiation.

5. SUCCESSFUL NATIVE NATION BUILDING – THE COMMON PATTERN • The “Sovereignty” Attitude • Capable Institutions • Cultural Match …..and • Leadership

6. KEYS TO NATION BUILDINGIN INDIAN COUNTRY Indian Nations That Are Successful on Their Own Terms Use Strong Leadershipto Assert the Right to Govern Themselves and Exercise That Right Effectively By Building Capable Governing Institutions That Match Their Cultures.

7. What Constitutes “Citizenship”? The Case of Upper Sioux

8. CASE SIMULATION:UPPER SIOUX CITIZENSHIP • Small Tribe, SW Minnesota • <1000 Acres, <1000 Members • Successful Casino • Every Upper Sioux Also a Member of Another Tribe • Chair Helen Blue-Redner Seeks Constitutional Reform • Sees Lack of Loyalty & Dedication to Upper Sioux • Per Capita Payments & Other Benefits = Rising Membership • Constitutional Reform Options • Require Relinquishment of Citizenship in Any Other Tribe • Tight, Enforced Residency Requirement – w/in 5 Miles of Res • No Per Capita to Dual Enrollees and/or Non-Resident Members

9. Residency Family ties +/- Economic Contribution Achievement Status of Kin Education Friendships Elements/Sources of Individual and Social Identity • Language • Property Owner • Commitment +/- • Shared history • Political Views • Political Connections • Race/Blood Quantum • Descendency • Cultural Values

10. Strategies of Nation Building: Darrin Old Coyote Vice-Secretary of the Crow Nation

11. Sand and Gravel Resource Areas Bentonite Resource Areas Coal Resource Areas CBM Areas Oil and Gas Limestone Resource Areas

12. Coal Resource Areas

13. Oil and Gas, CBM

14. Legal and Policy Foundations of Tribal Sovereignty

15. FORMS OF TRIBAL SOVEREIGNTY Sovereignty as Self-Rule • De Jure…by Law • De Facto…in Practice • De Recto…by Moral Right

16. ORIGINS OF TRIBAL SOVEREIGNTY • Pre-Contact Proto-Nationhood in North America • The Colonial Period • British v. Spanish and French Experience • Conflicts and Alliances • Early U.S. State-Tribal and Federal Tribal Relations • Alliances and Power Balances • The Founders and the Iroquois Confederacy • The U.S. Constitution

17. THE EBB AND FLOW OF TRIBAL SOVEREIGNTY IN THE UNITED STATES

18. TRIBAL SOVEREIGNTY ANDTHE U.S. CONSTITUTION • Article I, Section 8, Clause 3: The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes… • Article I, Section 2, Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed… • Article I, Section 8, Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

19. THE FORMATION OFFEDERAL INDIAN POLICY • Trade and Intercourse Act, 1790 (Permit Required for Trade with Tribes) • Cherokee Nation v. Georgia, 1831(Tribes Not “Foreign Nations”, but “Domestic Dependent Nations”) • Worcester v. Georgia, 1832 (Federal law supreme; tribes are “distinct, independent political communities retaining…original natural rights) • Jackson Removal Act, 1830 (Attempt to remove tribes to the western territories) • U.S. v. Kagama, 1886(Federal Government is as a “guardian to a ward”) • Allotment Act, 1887(Allotment of reservation lands to individual Indians; sale of surplus lands)

20. VASCILATING FEDERAL POLICY:SELF-DETERMINATION OR TERMINATION? • Indian Reorganization Act, 1934(Repeal of Allotment; Constitutional Tribal Governments) • Termination Policy, 1953 (Official Policy to Terminate & Disband Tribes; 100+ Terminated) • Indian Civil Rights Act, 1968(Apply U.S. Bill of Rights to Tribes, Except Religious Non-Establishment, Voting Based on Race; Review by Tribal Courts) • Nixon Self-Determination Policy, 1970(Reverses Policy of Termination) • Indian Self-Determination and Education Act, 1975(Tribal Take-Over of Federal Programs) • Clinton Government-to-Government Executive Order, 1998(Tribal Consultation, Easier Waivers of Federal Statutes and Regulations).

21. RECENT EVOLUTION OF TRIBAL SOVEREIGNTY • Oliphant v. Suquamish Tribe, 1978(Tribes Lack Jurisdiction over Non-Indians) • California v. Cabazon, 1987(States Lack Jurisdiction over Tribal Government Gaming) • Brendale v. Yakima Nation, 1989 (Tribes Lack Jurisdiction over Non-Indian Lands on Res) • Atkinson Trading Co. v. Shirley, 2001 (Tribes Can’t Tax Non-Indian On-Res Land Owners) • Nevada v. Hicks, 2001(Tribes Lack Jurisdiction over Non-Indian Law Enforcement on Res)

22. Type of Tax Indians Who Work On/Live On Res  Indians Who Work On/Live Off Res  Indians Who Work Off/ Live On Res Federal Income Tax YES YES YES State Income Tax NO YES YES FICA YES YES YES State Unemployment Tax YES YES YES Property Tax YES (Fee Lands)* YES YES (Fee Lands)* State Sales Tax** YES YES YES Liquor, Gas & Cigarette Tax** YES YES YES Motor Vehicle Tax** YES YES YES TAX STATUS OF INDIANS

23. SOURCES OF TRIBE’S SOVEREIGNTY • “American Indians were conquered and lost their sovereignty.” • “There can’t be multiple sovereigns in the same geographic area.” • “Tribal sovereignty means ‘special’ rights for Indians.” • “Indian rights of sovereignty are race-based.”

24. THE STATE OF TRIBES’ SOVEREIGNTY • “Tribes aren’t really nations; they’re more like clubs.” • “The treaties are out-of-date anachronisms.” • “Even if Indians originally had rights of self-rule, there are no authentic Indians left.” • “The U.S. is anti-sovereignty.”

25. CONSEQUENCES OF TRIBES’ SOVEREIGNTY • “Tribes may be sovereign, but their sovereignty produces lawlessness.” • “Sovereignty is a shibboleth. Reservations are just welfare states funded by the federal government.”