American federalism and intergovernmental innovation in state-tribal relations

Publius: The Journal of Federalism

Volumn 34, Issue 2, 2004, Pages 95-114

  Steinman, Erich ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

Author keywords

[No Author keywords available]

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EID: 13644270944     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a005031     Document Type: Review

References (119)

1. Robert N. Clinton, Nell Jessup Newton, and Monroe E. Price, American Indian Law: Cases and Materials (Charlottesville, VA: Michie Company, 1991), p. 493.
2. David Getches, "Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government," Review of Constitutional Studies 1 (1, 1993): 136.
3. U.S. v. Kagama, 118 U.S. 375 (1886).
4. See Article 1, Section 8, Clause 3 of the U.S. Constitution, and the Trade and Intercourse Act, 1 Stat 137 (1790).
5. David E. Wilkins has described tribes' status as extraconstitutional, "not created pursuant to, and...not beholden to, the U.S. Constitution," American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997), p. 5.
6. For an overview of the federal government's gradual usurption of tribal powers in practical terms, see David E. Wilkins, American Indian Politics and the American Political System (Boulder CO: Rowman and Littlefield, 2002), pp. 103-114. For a detailed account of legal rulings in the 1800s through the early 1990s, see Wilkins, American Indian Sovereignty.
7. For an overview of the federal government's gradual usurption of tribal powers in practical terms, see David E. Wilkins, American Indian Politics and the American Political System (Boulder CO: Rowman and Littlefield, 2002), pp. 103-114. For a detailed account of legal rulings in the 1800s through the early 1990s, see Wilkins, American Indian Sovereignty.
8. Although a modicum of tribal self-governance has been legally sustained, tribal jurisdictional powers protected by legislation and judicial interpretation have varied by domain (e.g., civil versus criminal legal jurisdiction) and sometimes by specific state or tribe (due to congressional action). See Carole Goldberg-Ambrose, Planting Tail Feather: Tribal Survival and Public Law 280 (Los Angeles, CA: American Indian Studies Center, 1997).
9. Frank Pommersheim, Braids of Feathers: American Indian Law and Contemporary Tribal Life (Berkeley: University of California Press, 1995).
10. David E. Wilkins, "Tribal-State Affairs: American States as 'Disclaiming' Sovereigns," Publius: The Journal of Federalism 28 (Fall 1998): 55-81.
11. For a recent prescription, see T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Cambridge: Harvard University Press, 2002). For an earlier view of contemporary possibilities, see Russel Lawrence Barsh and James Youngblood Henderson, The Road: Indian Tribes and Political Liberty (Berkeley: University of California Press, 1980).
12. For a recent prescription, see T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Cambridge: Harvard University Press, 2002). For an earlier view of contemporary possibilities, see Russel Lawrence Barsh and James Youngblood Henderson, The Road: Indian Tribes and Political Liberty (Berkeley: University of California Press, 1980).
13. For example, see Thomas Biolsi, "Deadliest Enemies": Law and the Making of Race Relations On and Off Rosebud Reservation (Berkeley: University of California Press, 2001); Dale Mason, "Tribes and States: A New Era in Intergovernmental Affairs," Publius: The Journal of Federalism 28 (Winter 1998): 111-130.
14. For example, see Thomas Biolsi, "Deadliest Enemies": Law and the Making of Race Relations On and Off Rosebud Reservation (Berkeley: University of California Press, 2001); Dale Mason, "Tribes and States: A New Era in Intergovernmental Affairs," Publius: The Journal of Federalism 28 (Winter 1998): 111-130.
15. For a small sampling of research on such agreements see Getches, "Negotiated Sovereignty," 121-170; Daniel McCool, "Intergovernmental Conflict and Indian Water Rights: An Assessment of Negotiated Settlements," Publius: The Journal of Federalism, 23 (Winter 1993): 85-101; and a number of chapters in Brad A. Bays and Erin Hogan Fouberg, eds., The Tribes and the States: Geographies of Intergovernmental Interaction (Lanham, MD: Roman and Littlefield, 2002).
16. For a small sampling of research on such agreements see Getches, "Negotiated Sovereignty," 121-170; Daniel McCool, "Intergovernmental Conflict and Indian Water Rights: An Assessment of Negotiated Settlements," Publius: The Journal of Federalism, 23 (Winter 1993): 85-101; and a number of chapters in Brad A. Bays and Erin Hogan Fouberg, eds., The Tribes and the States: Geographies of Intergovernmental Interaction (Lanham, MD: Roman and Littlefield, 2002).
17. For a small sampling of research on such agreements see Getches, "Negotiated Sovereignty," 121-170; Daniel McCool, "Intergovernmental Conflict and Indian Water Rights: An Assessment of Negotiated Settlements," Publius: The Journal of Federalism, 23 (Winter 1993): 85-101; and a number of chapters in Brad A. Bays and Erin Hogan Fouberg, eds., The Tribes and the States: Geographies of Intergovernmental Interaction (Lanham, MD: Roman and Littlefield, 2002).
18. See Ann Bowman, "American Federalism on the Horizon," Publius: The Journal of Federalism 32 (Spring 2002): 3-22, and Wilkins, American Indian Politics and the American Political System.
19. See Ann Bowman, "American Federalism on the Horizon," Publius: The Journal of Federalism 32 (Spring 2002): 3-22, and Wilkins, American Indian Politics and the American Political System.
20. Richard M. Nixon, "Special Message to the Congress on Indian Affairs" (8 July 1970). For discussion of the early years of the self-determination policy, see Thomas Clarkin, Federal Indian Policy in the Kennedy and Johnson Administrations, 1961-1969 (Albuquerque: University of New Mexico Press, 2001); Vine Deloria, Jr., ed., American Indian Policy in the Twentieth Century (Norman: University of Oklahoma Press, 1985); and Emma R. Gross, Contemporary Federal Policy Towards American Indians (Westport, CT: Greenwood Press, 1989).
21. Richard M. Nixon, "Special Message to the Congress on Indian Affairs" (8 July 1970). For discussion of the early years of the self-determination policy, see Thomas Clarkin, Federal Indian Policy in the Kennedy and Johnson Administrations, 1961-1969 (Albuquerque: University of New Mexico Press, 2001); Vine Deloria, Jr., ed., American Indian Policy in the Twentieth Century (Norman: University of Oklahoma Press, 1985); and Emma R. Gross, Contemporary Federal Policy Towards American Indians (Westport, CT: Greenwood Press, 1989).
22. Richard M. Nixon, "Special Message to the Congress on Indian Affairs" (8 July 1970). For discussion of the early years of the self-determination policy, see Thomas Clarkin, Federal Indian Policy in the Kennedy and Johnson Administrations, 1961-1969 (Albuquerque: University of New Mexico Press, 2001); Vine Deloria, Jr., ed., American Indian Policy in the Twentieth Century (Norman: University of Oklahoma Press, 1985); and Emma R. Gross, Contemporary Federal Policy Towards American Indians (Westport, CT: Greenwood Press, 1989).
23. Richard M. Nixon, "Special Message to the Congress on Indian Affairs" (8 July 1970). For discussion of the early years of the self-determination policy, see Thomas Clarkin, Federal Indian Policy in the Kennedy and Johnson Administrations, 1961-1969 (Albuquerque: University of New Mexico Press, 2001); Vine Deloria, Jr., ed., American Indian Policy in the Twentieth Century (Norman: University of Oklahoma Press, 1985); and Emma R. Gross, Contemporary Federal Policy Towards American Indians (Westport, CT: Greenwood Press, 1989).
24. As one scholar noted, "Many tribes were dormant as governments, under the yoke of federal suppression...and prospective [reservation] residents saw them as not much more than miscellaneous bumps on the horizon." Charles F. Wilkinson, American Indians, Time and the Law: Native Societies in a Modern Constitutional Democracy (New Haven: Yale University Press, 1987), p. 23.
25. Biolsi, "Deadliest Enemies," p. 140, quoting Vine Deloria, Jr., Behind the Trail of Broken Treaties: An Indian Declaration of Independence (Austin: University of Texas Press, 1985 [1974]), p. 48.
26. Biolsi, "Deadliest Enemies," p. 140, quoting Vine Deloria, Jr., Behind the Trail of Broken Treaties: An Indian Declaration of Independence (Austin: University of Texas Press, 1985 [1974]), p. 48.
27. Biolsi, "Deadliest Enemies" p. 143. As Biolsi documents regarding the Rosebud Sioux Tribal Council, this notion of broad territorial jurisdiction rather than control over just tribal members was a distinct change from tribal beliefs of previous decades; see pp. 142-146.
28. The 1975 Indian Self-Determination and Education Act in particular routed significant federal funds into tribal governments as federal program administrators, although under narrow and burdensome restrictions.
29. Among the most important of such rulings was the Boldt decision affirming fishing rights for a number of Washington tribes, U.S. v. Washington, 384 F Supp 312 (1974), discussed in Fay G. Cohen, Treaties on Trial: The Continuing Controversy over Northwest Indian Fishing Rights (Seattle: University of Washington Press, 1986).
30. In American Indians, Time and the Law, Charles F. Wilkinson provides an excellent explication of the ambiguous and contradictory qualities of federal Indian law as interpreted by the U.S. Supreme Court. Wilkinson describes uniquely divergent lines of opinion that complicate attempts to identify precedent. Uncertainty over tribal status is at the center of this variation. Wilkinson identifies two lines of opinions, one line casting tribal governments as largely autonomous under overriding federal authority but free of state control, and the other construing tribes as wards of the federal government. Indian law is "time-warped" as conflicting rulings are based on laws or policies generated in different eras, and reflect variants of these two interpretations of tribal status. The underlying ambiguity has never been fully addressed by Congress, resulting in widely divergent perceptions and rulings.
31. As summarized by David Getches, the accumulated federal laws "are often vague or silent on jurisdiction" and are often extremely difficult to apply. Getches, "Negotiated Sovereignty," p. 139. As Biolsi points out, such conditions invite continued litigation because the ambiguity and uncertainty of rulings make it plausible that losing parties might win later cases, even with only slightly different factual conditions. See Biolsi, "Deadliest Enemies," pp. 1-16.
32. As summarized by David Getches, the accumulated federal laws "are often vague or silent on jurisdiction" and are often extremely difficult to apply. Getches, "Negotiated Sovereignty," p. 139. As Biolsi points out, such conditions invite continued litigation because the ambiguity and uncertainty of rulings make it plausible that losing parties might win later cases, even with only slightly different factual conditions. See Biolsi, "Deadliest Enemies," pp. 1-16.
33. As summarized by David Getches, the accumulated federal laws "are often vague or silent on jurisdiction" and are often extremely difficult to apply. Getches, "Negotiated Sovereignty," p. 139. As Biolsi points out, such conditions invite continued litigation because the ambiguity and uncertainty of rulings make it plausible that losing parties might win later cases, even with only slightly different factual conditions. See Biolsi, "Deadliest Enemies," pp. 1-16.
34. As Getches has summarized, "Congress has legislated piecemeal" in passing laws that create great uncertainty regarding state-tribal jurisdictional issues. Getches, "Negotiated Sovereignty" p. 141.
35. While a number of states had signed treaties with Indian nations in the late 1700s both before and after ratification of the U.S. Constitution, by the middle of the twentieth century such formal relationships and the equality they implied had long since passed.
36. The IRA refers to the Indian Reorganization Act of 1934, through which the Commission on Indian Affairs promoted new tribal constitutions and organizational structures as a means for revitalizing tribal communities. Between the 1880s and the self-determination era, the IRA served as the primary federal policy countering the otherwise consistent efforts to dismantle tribal communities.
37. Biolsi, "Deadliest Enemies," p. 36.
38. In South Dakota, "Non-Indians living in the opened [mixed population] counties quickly became aware of the possibility that they might be 'put back' in Rosebud Reservation, and many feared the prospect." Biolsi, "Deadliest Enemies," p. 36. In Montana, "Non-Indians on the reservation formed groups to resist through political and legal means the tribes' increasing exercise of jurisdictional authority." James Lopach, Margery Hunter Brown, and Richard L. Clow, Tribal Government Today: Politics on Montana Indian Reservations (Niwot, CO: University Press of Colorado, 1998), p. 171. Such local groups appeared around the country. See Rudolph C. Ryser, The Anti-Indian Movement on the Tribal Frontier, Special Revised Edition (Olympia, WA: Center for World Indigenous Studies, 1992).
39. In South Dakota, "Non-Indians living in the opened [mixed population] counties quickly became aware of the possibility that they might be 'put back' in Rosebud Reservation, and many feared the prospect." Biolsi, "Deadliest Enemies," p. 36. In Montana, "Non-Indians on the reservation formed groups to resist through political and legal means the tribes' increasing exercise of jurisdictional authority." James Lopach, Margery Hunter Brown, and Richard L. Clow, Tribal Government Today: Politics on Montana Indian Reservations (Niwot, CO: University Press of Colorado, 1998), p. 171. Such local groups appeared around the country. See Rudolph C. Ryser, The Anti-Indian Movement on the Tribal Frontier, Special Revised Edition (Olympia, WA: Center for World Indigenous Studies, 1992).
40. In South Dakota, "Non-Indians living in the opened [mixed population] counties quickly became aware of the possibility that they might be 'put back' in Rosebud Reservation, and many feared the prospect." Biolsi, "Deadliest Enemies," p. 36. In Montana, "Non-Indians on the reservation formed groups to resist through political and legal means the tribes' increasing exercise of jurisdictional authority." James Lopach, Margery Hunter Brown, and Richard L. Clow, Tribal Government Today: Politics on Montana Indian Reservations (Niwot, CO: University Press of Colorado, 1998), p. 171. Such local groups appeared around the country. See Rudolph C. Ryser, The Anti-Indian Movement on the Tribal Frontier, Special Revised Edition (Olympia, WA: Center for World Indigenous Studies, 1992).
41. In South Dakota, "Non-Indians living in the opened [mixed population] counties quickly became aware of the possibility that they might be 'put back' in Rosebud Reservation, and many feared the prospect." Biolsi, "Deadliest Enemies," p. 36. In Montana, "Non-Indians on the reservation formed groups to resist through political and legal means the tribes' increasing exercise of jurisdictional authority." James Lopach, Margery Hunter Brown, and Richard L. Clow, Tribal Government Today: Politics on Montana Indian Reservations (Niwot, CO: University Press of Colorado, 1998), p. 171. Such local groups appeared around the country. See Rudolph C. Ryser, The Anti-Indian Movement on the Tribal Frontier, Special Revised Edition (Olympia, WA: Center for World Indigenous Studies, 1992).
42. In South Dakota, "Non-Indians living in the opened [mixed population] counties quickly became aware of the possibility that they might be 'put back' in Rosebud Reservation, and many feared the prospect." Biolsi, "Deadliest Enemies," p. 36. In Montana, "Non-Indians on the reservation formed groups to resist through political and legal means the tribes' increasing exercise of jurisdictional authority." James Lopach, Margery Hunter Brown, and Richard L. Clow, Tribal Government Today: Politics on Montana Indian Reservations (Niwot, CO: University Press of Colorado, 1998), p. 171. Such local groups appeared around the country. See Rudolph C. Ryser, The Anti-Indian Movement on the Tribal Frontier, Special Revised Edition (Olympia, WA: Center for World Indigenous Studies, 1992).
43. Indeed, some state officials promoted congressional action to restrict tribal rights or abolish tribes and many treated tribes as ethnic groups unfairly enjoying anachronistic and undemocratic rights. For example, in 1977 and 1978 Washington Representatives Jack Cunningham and Lloyd Meeds introduced bills intended to destroy or seriously weaken Indian treaty rights and tribal sovereignty, Congressional Record 123:29777, and 124:20848-49.
44. Interview with Rudolph Ryser, 19 March 2003; also see Linda Medcalf, Law and Identity: Lawyers, Native Americans, and Legal Practice (Beverly Hills, CA: Sage, 1978).
45. Interview with Rudolph Ryser, 19 March 2003; also see Linda Medcalf, Law and Identity: Lawyers, Native Americans, and Legal Practice (Beverly Hills, CA: Sage, 1978).
46. The authors of a major casebook on American Indian Law note that the decade between 1973 and 1983 was "characterized by a rising crescendo of success for the efforts of Indian peoples [as] on balance Indian tribes and members were winning more cases than they were losing." Clinton, Newton, and Price, American Indian Law: Cases and Materials, p. v.
47. The Quinault Nation is located in Washington State.
48. DeLaCruz twice served as president of the NCAI in the early 1980s, and had also been president of the National Tribal Chairman's Association.
49. U.S. v. Washington, 384 F Supp 312 (1974).
50. Between 1970 and 1996, Northwest tribal leaders held the presidency of the NCAI for seven different terms. Furthermore, from 1968 to 1980, Northwest tribes voted in a bloc at the NCAI.
51. Interview with Ryser, 19 March 2003.
52. For example, at the 1979 NCAI convention, DeLaCruz served as a presenter for a session on intergovernmental relations "designed to highlight the potential for intergovernmental cooperation as a means for both exercising and protecting governmental powers," National Congress of American Indians, A Challenge For The 80s' Political Unity: 36th Annual Convention (Albuquerque, NM: NCAI, 1979), p. 136. The session featured "avoid[ing] the use of confrontational politics as a first-line political strategy" as well as a call to "expand and examine new and alternative methods of exercising and protecting governmental powers," ibid, 136. It also highlighted the limits of litigation, which was cast as "time-consuming and expensive and no matter what decision the court offers one party will perceive it as administratively restrictive and generally will enter into further litigation in hopes of removing judicial current restraints," ibid., 137.
53. For example, at the 1979 NCAI convention, DeLaCruz served as a presenter for a session on intergovernmental relations "designed to highlight the potential for intergovernmental cooperation as a means for both exercising and protecting governmental powers," National Congress of American Indians, A Challenge For The 80s' Political Unity: 36th Annual Convention (Albuquerque, NM: NCAI, 1979), p. 136. The session featured "avoid[ing] the use of confrontational politics as a first-line political strategy" as well as a call to "expand and examine new and alternative methods of exercising and protecting governmental powers," ibid, 136. It also highlighted the limits of litigation, which was cast as "time-consuming and expensive and no matter what decision the court offers one party will perceive it as administratively restrictive and generally will enter into further litigation in hopes of removing judicial current restraints," ibid., 137.
54. For example, at the 1979 NCAI convention, DeLaCruz served as a presenter for a session on intergovernmental relations "designed to highlight the potential for intergovernmental cooperation as a means for both exercising and protecting governmental powers," National Congress of American Indians, A Challenge For The 80s' Political Unity: 36th Annual Convention (Albuquerque, NM: NCAI, 1979), p. 136. The session featured "avoid[ing] the use of confrontational politics as a first-line political strategy" as well as a call to "expand and examine new and alternative methods of exercising and protecting governmental powers," ibid, 136. It also highlighted the limits of litigation, which was cast as "time-consuming and expensive and no matter what decision the court offers one party will perceive it as administratively restrictive and generally will enter into further litigation in hopes of removing judicial current restraints," ibid., 137.
55. Ryser recounts, in comments born out by tribal government documents of the late 1970s, that absent any formal structuring of the political relationship by the federal government, "we said if that is the case, then we have to create a mechanism or a structure or something between the tribes and the states...because the federal courts won't do that....It was a question of trying to figure out how to create mechanisms for it."
56. The Commission on State-Tribal Relations was jointly founded by the National Conference of State Legislatures (NCSL), the National Congress of American Indians (NCAI), and the National Tribal Chairmen's Association (NTCA) in 1977.
57. See also National Conference of State Legislatures, Finding Common Ground: The Government-to-Government Relationship (Washington, DC: NCSL, 1990), pp. 172-173.
58. A number of the publications directly produced by the commission or the American Indian Law Center are suggestive of the commission's work, for example State-Tribal Agreements: A Comprehensive Study (Albuquerque, NM: American Indian Law Center, 1981), Handbook on State-Tribal Relations (Albuquerque, NM: American Indian Law Center, 1984), and Laura Luna, Tribal-State Intergovernmental Agreements: Analysis of State Enabling Legislation (Albuquerque, NM: American Indian Law Center, 1991). The commission also conducted workshops on state-tribal relations and created curricula for others to do so, such as Improving the Tribal-State/Local Intergovernmental Relationship, authored by Marc Mannes (Albuquerque, NM: American Indian Law Center, 1984).
59. A number of the publications directly produced by the commission or the American Indian Law Center are suggestive of the commission's work, for example State-Tribal Agreements: A Comprehensive Study (Albuquerque, NM: American Indian Law Center, 1981), Handbook on State-Tribal Relations (Albuquerque, NM: American Indian Law Center, 1984), and Laura Luna, Tribal-State Intergovernmental Agreements: Analysis of State Enabling Legislation (Albuquerque, NM: American Indian Law Center, 1991). The commission also conducted workshops on state-tribal relations and created curricula for others to do so, such as Improving the Tribal-State/Local Intergovernmental Relationship, authored by Marc Mannes (Albuquerque, NM: American Indian Law Center, 1984).
60. A number of the publications directly produced by the commission or the American Indian Law Center are suggestive of the commission's work, for example State-Tribal Agreements: A Comprehensive Study (Albuquerque, NM: American Indian Law Center, 1981), Handbook on State-Tribal Relations (Albuquerque, NM: American Indian Law Center, 1984), and Laura Luna, Tribal-State Intergovernmental Agreements: Analysis of State Enabling Legislation (Albuquerque, NM: American Indian Law Center, 1991). The commission also conducted workshops on state-tribal relations and created curricula for others to do so, such as Improving the Tribal-State/Local Intergovernmental Relationship, authored by Marc Mannes (Albuquerque, NM: American Indian Law Center, 1984).
61. A number of the publications directly produced by the commission or the American Indian Law Center are suggestive of the commission's work, for example State-Tribal Agreements: A Comprehensive Study (Albuquerque, NM: American Indian Law Center, 1981), Handbook on State-Tribal Relations (Albuquerque, NM: American Indian Law Center, 1984), and Laura Luna, Tribal-State Intergovernmental Agreements: Analysis of State Enabling Legislation (Albuquerque, NM: American Indian Law Center, 1991). The commission also conducted workshops on state-tribal relations and created curricula for others to do so, such as Improving the Tribal-State/Local Intergovernmental Relationship, authored by Marc Mannes (Albuquerque, NM: American Indian Law Center, 1984).
62. National Conference of State Legislatures, Finding Common Ground, p. 174.
63. Between 1978 and 1982, a series of bills establishing a formal tribal-state compact process were proposed in Congress. None of these were enacted. See David E. Wilkins, "Reconsidering the Tribal-State Compact Process" Policy Studies Journal 22 (Autumn 1994): 474-488.
64. Interview with Philip S. Deloria, 21 February 2003.
65. Commission on State-Tribal Relations, State-Tribal Agreements, p. 47.
66. Ibid, 53.
67. "The relationship between state and Indian tribal governments...is not the only intergovernmental relationship with overlapping territorial jurisdictions. It is not the only one with jurisdictional conflict, ambiguities or competition. Nor is it the only one whose jurisdictional differences provide potential advantages for certain special political or economic interests," Commission on State-Tribal Relations, Handbook on State-Tribal Relations, pp. 14-15.
68. Ibid, 25.
69. Ibid, 51.
70. Luna, Tribal-State Intergovernmental Agreements.
71. National Conference of State Legislatures, 1991 State Legislation Relating to Native Americans, 7 August 2003, programs/esnr/91trbleg.htm" http://www.ncsl.org/programs/esnr/91trbleg.htm. Also authorized were agreements in education, repatriation of Indian burial remains, land development, housing, health care, and other areas.
72. I b i d.
73. James B. Reed, State Legislation Relating to Native Americans (Denver, CO: National Conference of State Legislatures, 1992).
74. See Lloyd Burton, American Indian Water Rights and the Limits of Law (Lawrence: University of Kansas Press, 1991), and Thomas R. McGuire, William B. Lord, and Mary G. Wallace, eds., Indian Water in the New West (Tucson: University of Arizona Press, 1993).
75. See Lloyd Burton, American Indian Water Rights and the Limits of Law (Lawrence: University of Kansas Press, 1991), and Thomas R. McGuire, William B. Lord, and Mary G. Wallace, eds., Indian Water in the New West (Tucson: University of Arizona Press, 1993).
76. For example, the 1980 State and Federal Government "A" Committee of the North Dakota Legislative Council was a temporary body. It studied the state's intergovernmental relations with tribes and complemented the North Dakota Commission of Indian Affairs, an executive-branch agency.
77. Arizona Commission on Indian Affairs, ACIA History, 1 August 2003, http://www.indianaffairs.state.az.us/aboutus/aciahistory.html.
78. The Centennial Accord and other information about Washington state-tribal relationships can be accessed at the website of the Washington Governor's Office on Indian Affairs: http://www.goia.wa.gov/. For an account of the development of this accord, see Erich Steinman, "Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law through Institutional Entrepreneurship," forthcoming in Law and Society Review.
79. The Centennial Accord and other information about Washington state-tribal relationships can be accessed at the website of the Washington Governor's Office on Indian Affairs: http://www.goia.wa.gov/. For an account of the development of this accord, see Erich Steinman, "Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law through Institutional Entrepreneurship," forthcoming in Law and Society Review.
80. As the governor's former chief of staff characterized it, "this closes the door on anyone who wants to assert that they don't have sovereignty rights. It's like it's over now [for anyone] that needs to have some connection to the center, [who] isn't just right wing. I just don't see someone coming out and repudiating it." Interview with Dick Thompson, 19 December 2002.
81. Interview with Ron Allen, 29 January 2003.
82. Letter from Inouye to Washington Governor Booth Gardner, 27 April 1989, available from author.
83. Pommersheim, Braid of Feathers, pp. 154-155. The chapter including his comments on Washington's Centennial Accord was first published as a journal article in 1991.
84. According to a 22 February 2002 presentation by Sam Deloria, over 60 percent of tribal governments have service populations of less than 500 people, and fully 87 percent serve less than 2500 people. The modest scope of most tribal governments stands in stark contrast to the population of 180,000 living on Navajo land (as of 2000), 168,000 of which are enrolled tribal members. In addition, approximately 80,000 Navajos live in nearby areas. There were 255,000 enrolled Navajo as of 2000, making it by far the largest tribe. The tribe controls more than 27,000 square miles, an area larger than ten of the fifty U.S. states. Navajo Nation Profile, http://www.nnwo.org/nnprofile.htm, accessed 10 July 2004.
85. Wilkins, "Reconsidering the Tribal-State Compact Process," pp. 481-487.
86. Dick Thompson, "Reflections on the Washington State Experience," Working Effectively at the Local Level: Tribal/County Cooperation and Coordination (Olympia, WA: Northwest Renewable Resources Center, 1993), p. 18. Notably, a delegation of policymakers from Wisconsin visited Washington to learn about cooperative state-tribal relations in 1991. Also see Sara Wilson and Paula Quenemoen, "Government-to-Government Relations - Indian Tribes and the States," a report published through the Utah Governor's Office, 7 January 1991.
87. Dick Thompson, "Reflections on the Washington State Experience," Working Effectively at the Local Level: Tribal/County Cooperation and Coordination (Olympia, WA: Northwest Renewable Resources Center, 1993), p. 18. Notably, a delegation of policymakers from Wisconsin visited Washington to learn about cooperative state-tribal relations in 1991. Also see Sara Wilson and Paula Quenemoen, "Government-to-Government Relations - Indian Tribes and the States," a report published through the Utah Governor's Office, 7 January 1991.
88. Interview with Lance Bouldry, 19 February 2002.
89. I b i d.
90. Wisconsin State Committee on State-Tribal Relations, Memo 00-13, 2001, 10 July 2004; http://www.legis.state.wi.us/lc/studies/STR/memo00_13.pdf.
91. Interview with David Lowell, 14 May 2002.
92. Interview with Ollin Jones, 24 July 2002.
93. Scholars have identified Washington state-tribal relations as a model for intergovernmental cooperation in areas tribal governments have newly been entering, such as transportation planning. See Richard A. Rolland and Dick G. Winchell, "State and Tribal Relations in Transportation: The Washington Case Study," Bays and Fouberg, eds., The Tribes and the States, pp. 139-158.
94. State of Nevada Indian Commission, "Nevada Governor, Attorney General and Tribal Leader Summit" (agenda), 9 July 2002, available from author.
95. Interview, 11 July 2002. This official requested anonymity.
96. For example, the National Conference of State Legislatures' State-Tribal Relations project and the NCAI made "Government-to-Government" the title of their joint booklet promoting state-tribal relationships. See Susan Johnson, Jeanne Kaufmann, John Dossett, and Sarah Hicks, Government to Government: Understanding State and Tribal Governments (Washington, DC and Denver, CO: National Conference of State Legislatures and National Congress of American Indians, 2000).
97. Public Law 100-497, enacted 17 October 1988. For a brief description of its key elements, see Mason, Indian Gaming: Tribal Sovereignty and American Politics (Norman, OK: University of Oklahoma Press, 2000), pp. 64-66. Also see Ann Merline McCulloch, "The Politics of Indian Gaming: Tribe/State Relations and American Federalism," Publius: The Journal of Federalism 24 (Summer 1994): 99-112.
98. Public Law 100-497, enacted 17 October 1988. For a brief description of its key elements, see Mason, Indian Gaming: Tribal Sovereignty and American Politics (Norman, OK: University of Oklahoma Press, 2000), pp. 64-66. Also see Ann Merline McCulloch, "The Politics of Indian Gaming: Tribe/State Relations and American Federalism," Publius: The Journal of Federalism 24 (Summer 1994): 99-112.
99. Seminole Tribe v. Florida, 517 US 44 (1996). Previously, the secretary of the interior could determine the conditions under which tribes could engage in Class III gaming in states that refused to enter compacts.
100. See Mason, Indian Gaming, and Joe De La Torre, "Native American Gaming in California, Native Americans, Donald A. Grinde, Jr., ed., (Washington, DC: Congressional Quarterly Press, 2000), pp. 173-183.
101. See Mason, Indian Gaming, and Joe De La Torre, "Native American Gaming in California, Native Americans, Donald A. Grinde, Jr., ed., (Washington, DC: Congressional Quarterly Press, 2000), pp. 173-183.
102. For example, in 2002, 12 percent of tribal gaming operations accounted for almost two-thirds of all tribal gaming revenues, while over 25 percent of tribal gaming facilities had revenues of less than $3 million respectively, 18 February 2004, http://www.nigc.gov/nigc/nigcControl?option =TRIBAL_REVENUE.
103. For example, according to the Institute for Money in State Politics, tribal governments made political contributions of over $41.4 million for state races in the 2002 election cycle, up from approximately $5.7 million in 2000, 23 January 2004, http://www.followthemoney.org/index.phtml.
104. See Erich Steinman, "(Mixed) Perceptions of Tribal Nations' Status: Implications for Indian Gaming." forthcoming in American Behavioral Scientist.
105. For example, see a report by Donald L. Barlett and James B. Steele, "Indian Casinos: Wheel of Misfortune," Time, 16 December 2002, pp. 44-58.
106. Jim Sams, "Schwarzenegger's stance on tribal money similar to Davis," The Desert Sun, 28 September 2003, http://www.thedesertsun.com/news/stories2003/state/20030928015101.shtml.
107. Oliphant v. Suquamish 435 U.S. 191 (1978). For commentary on Oliphant, see Wilkerson, American Indians Time and the Law, pp. 43, 61,
108. Oliphant v. Suquamish 435 U.S. 191 (1978). For commentary on Oliphant, see Wilkerson, American Indians Time and the Law, pp. 43, 61,
109. and Wilkins, American Indian Sovereignty, pp. 186-234.
110. According to an analysis by Robert N. Clinton, between 1959 and 1986 tribes won 60-70 percent of the cases involving tribes that were ruled on by the U.S. Supreme Court. Between 1986 and 1990, tribes won only 20 percent of their ruled cases. Between 1990 and 1995, tribes won only 14 percent of the time. Robert N. Clinton, "The Dormant Indian Commerce Clause," Connecticut Law Review 27 (Summer 1995): 1055-1249.
111. For example, see Wilkins, American Indian Sovereignty; Rennard Strickland, Tonto's Revenge: Reflections on American Indian Culture and Policy (Albuquerque, NM: University of New Mexico Press, 1997), p. 49; and Aleinikoff, Semblances of Sovereignty, pp. 96-114.
112. For example, see Wilkins, American Indian Sovereignty; Rennard Strickland, Tonto's Revenge: Reflections on American Indian Culture and Policy (Albuquerque, NM: University of New Mexico Press, 1997), p. 49; and Aleinikoff, Semblances of Sovereignty, pp. 96-114.
113. For example, see Wilkins, American Indian Sovereignty; Rennard Strickland, Tonto's Revenge: Reflections on American Indian Culture and Policy (Albuquerque, NM: University of New Mexico Press, 1997), p. 49; and Aleinikoff, Semblances of Sovereignty, pp. 96-114.
114. Aleinikoff, Semblances of Sovereignty, p. 96.
115. The 2000 U.S. Census contains a racial breakdown of populations on reservations and other types of Indian land. See http://factfinder.census.gov/servlet/QTTable?ds_name=D&geo_id=D&qr_name= DEC_2000_SF1_U_DP1&_lang=en. An organization seeking to limit tribal powers, the Citizen's Alliance, lists 2000 census information on a state-by-state basis at http://www.citizensalliance.org/Reservation%20Demographics/ Reservation%20and%20Trust%20Lands%20by%20Reservation.htm.
116. David E. Wilkins and Keith Richotte, "The Rehnquist Court and Indigenous Rights: The Expedited Diminution of Native Powers of Governance," Publius: The Journal of Federalism 33 (Summer 2003): 83-110. Also, see the testimony of David H. Getches to the U.S. Senate Indian Affairs Committee, 27 February 2002, http://indian.senate.gov/2002hrgs/022702trust/Getches.PDF.
117. David E. Wilkins and Keith Richotte, "The Rehnquist Court and Indigenous Rights: The Expedited Diminution of Native Powers of Governance," Publius: The Journal of Federalism 33 (Summer 2003): 83-110. Also, see the testimony of David H. Getches to the U.S. Senate Indian Affairs Committee, 27 February 2002, http://indian.senate.gov/2002hrgs/022702trust/Getches.PDF.
118. For example, the department has organized meetings promoting tribal-nontribal cooperation and collaboration such as the Tribal and State Justice Summit, held 27-30 October 2002.
119. On 12 November 2001, the president affirmed the government-to-government relationship and tribal sovereignty through a proclamation for Native American History Month (Presidential Proclamation 7500, 66 FR 57641; 11-15-2001). Environmental Protection Agency Director Christie Todd Whitman re-affirmed the EPA's Tribal Policy on 11 July 2001 (http://www.epa.gov/indian/pdfs/reaffirmindpol01.pdf).