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A Guided Study Forced Federalism: Contemporary Challenges to Indigenous Nationhood Chapter 1 Contemporary Challenges to Indigenous Nationhood In answering the following questions, please remember that I am assessing your understanding of what you have read. If your answers are ambiguous, then I have no evidence that you actually understand the concept—even if you do. Also remember I am evaluating you as graduate students. I want to see your command of the English language manifested in complete sentences, correct punctuation, and necessary documentation. Should you use the authors’ words verbatim or with minimal change, protect yourself from plagiarism by placing those words in quotes and in parentheses give the page number from which the quote is taken. 1. Conceptualize “Forced Federalism”? 2. What is the “Rich Indian” stereotype? And, according to Corntassel and Witmer, what has been the impact upon Native Americans? 3. What was the conflict between the State of Texas, i.e., Attorney General John Cornym (now U. S. Senator Cornyn) and the government of the Tigua? 4. According to Corntassel and Witmer, what are the seven areas related to indigenous governance that have been eroded since the Indian Gaming Regulation Act of 1988? 5. Briefly give the significance of the following concepts: A. Doctrine of Discovery B. Gadugi 6. Briefly give the significance of the following legislation to Native American governance: A.General Allotment Act (Dawes Act), 1887 B. Indian Reorganization Act (Wheeler Act), 1934 C. House Concurrent Resolution 108 of 1953 D. Public Law 280 of 1953 7. Briefly give the significance of the following court cases to Native American governance:: A. Johnson v. McIntosh, 1823 B. Cherokee Nation v. Georgia, 1831 C. Worcester v. Georgia, 1832 D. United States v. Kagama, 1886 8. Give the significance of the following persons to Native American governance: A. John Collier B. Jack Abramoff 01.Corntassel Forced Federalism Contemporary Challenges to Indigenous Nationhood Jeff Corntassel and Richard C. Witmer Foreword by Lindsay G. Robertson University of Oklahoma Press : Norman 01.Corntassel 11/28/07 11:54 AM Page iii List of Figures and Tables ix Series Editor’s Foreword xi Preface xiii Acknowledgments xix 1. Contemporary Challenges to Indigenous Nationhood 3 2. Current Social Constructions of Indigenous Peoples 27 3. Managing the Politics of Perception 57 4. The Forced Federalism Survey 82 5. Negotiating Compacts between Indigenous Nations and States 107 6. Conclusions 134 Appendix A. Indigenous Nations Participating in the Forced Federalism Survey, 1994–2000 151 Appendix B. Gaming Compact between the Sisseton-Wahpeto Sioux Tribe and the State of South Dakota, 2000 157 Appendix C. Treaty with the Cherokees, 1785 173 Appendix D. Top Twenty Indigenous Populations by State, 2000 179 Appendix E. Interview with Chad “Corntassel” Smith 181 Appendix F. Interview with Brad Carson 193 Appendix G. Indigenous Government Survey, 2000 205 Notes 209 Bibliography 229 Index 241 Contents vii 01.Corntassel 11/28/07 11:54 AM Page vii They [indigenous governments] owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they [indigenous peoples] are found are often their deadliest enemies. United States v. Kagama, 1886 Articles of compact between the original States and the people and States in the said territory . . . forever remain unalterable, unless by common consent, to wit: . . . Article 3 . . . The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their pro- perty, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them. Northwest Ordinance of 1787 The Navajo Nation is the largest of the 562 federally recognized indigenous nations in the United States, but without the prominent white sign along the highway welcoming motorists to the Navajo (Diné) reservation, few people driving through northern Ari- zona would notice that they had crossed a nation’s borders.1 Fewer still might realize that they have entered another time zone. The Navajo Nation operates on Pacific standard time, not mountain standard, which is the time all other Arizona residents use.2 CHAPTER ONE Contemporary Challenges to Indigenous Nationhood 3 01.Corntassel 11/28/07 11:54 AM Page 3 Control over the application of time zones is just one subtle form of governance that indigenous nations exercise within their own com- munities and homelands today. More substantively, indigenous nations have their own languages, cultural practices, sacred histories, citizen- ship requirements, judicial systems, and governmental bodies that provide the basis for indigenous nationhood. As nations that existed long before the formation of the United States, indigenous peoples of Turtle Island have historically transcended all state jurisdictional claims in matters pertaining to their homelands and communities.3 In fact, indigenous nations have always held a political status higher than that of state governments. However, the “utmost good faith” has not been practiced by state policymakers, as they have repeatedly challenged the territorial and governance jurisdictions of indigenous nations since the passage of the Indian Gaming and Regulatory Act (IGRA) in 1988. Anthropo- logist Kate Spilde refers to the post-IGRA phenomenon as one of “rich Indian racism,” where false images related to indigenous gaming are created and propagated by governmental and media entities.4 These stereotypes motivate and enable state policymakers to deny indigenous nationhood and self-determination in two interrelated ways: (1) “by insisting tribes prove that they still need sovereign rights to be self-sufficient” and (2) “by invoking the notion that gaming tribes are less ‘authentically’ Indian, diminishing their claims to poli- tical independence.”5 Consequently, rich Indian racism places indigenous peoples in a precarious position, where they constantly have to justify their existence both in terms of the legitimacy of their self-determination powers and proof of the “authenticity” of their identities.6 First, policymakers invoking rich Indian racist attitudes contend that indigenous peoples do not need what they used to. According to this logic, gaming has magically provided indigenous nations with a surplus of economic wealth, which should be heavily regulated and taxed by state govern- ments. It follows from this reasoning that treaty-based rights, such as hunting and fishing, and homeland claims are no longer considered necessary for the survival of these entrepreneurial indigenous nations. Second, rich Indian racist attitudes invoked by state policymakers require indigenous peoples to demonstrate that they deserve self- determination and a distinct nationhood status. This assumption falsely claims that someone is a “real” indigenous person only if he 4 FORCED FEDERALISM 01.Corntassel 11/28/07 11:54 AM Page 4 or she is considered a victim of failed policies, historical circum- stances, and so on. During the post-IGRA era, rich Indian racism has led to increased regulation by state and local policymakers as they attempt to place limits on indigenous casinos and other forms of self-determination through the negotiation of indigenous-state com- pacts. It is evident from this new stereotype of indigenous peoples that the biggest challenges facing indigenous communities today are those of representation and governance. As former principal chief of the Cherokee Nation Wilma Mankiller argues, “Perception is as much of a threat as anti-sovereignty legislation. We have to regain control of our image.”7 Managing the politics of perception is one of the major struggles for indigenous peoples today as they confront the realities of a new era in indigenous policy, which we refer to as forced federalism (1988– present). The forced federalism era differs markedly from the previous self-determination era, which entailed providing indigenous nations with greater administrative control over the contracting of educa- tion, health care, and other services on their homelands. As a result of IGRA in 1988 and the subsequent transfer of federal powers to state governments, indigenous nations have now been forced into dangerous political and legal relationships with state governments that challenge their cultures and nationhood status. This rapid devo- lution of federal powers to state governments in the area of indigenous policy undermines the once exclusive federal government–to–indi- genous government relationship based on 379 prior treaties, direct consultation with Congress on indigenous affairs, federal statutory obligations, and court decisions. Therefore, given the devolution of federal powers to states, indi- genous nations have become more vulnerable to the jurisdictional claims of local governing bodies, such as state and municipal policy- makers. Invoking rich Indian images, these local governing agencies are more likely to exercise their newly created jurisdictional claims to impose new regulatory policies targeting indigenous nations (i.e., taxation, revenue sharing, etc.) in ways that benefit them econo- mically and politically. Thus far, researchers examining indigenous-state interactions have predominantly relied on regional case studies, policy overviews, and legal analysis.8 This book is the only one of its kind to systematically investigate the effects of forced federalism on indigenous nations CHALLENGES TO INDIGENOUS NATIONHOOD 5 01.Corntassel 11/28/07 11:54 AM Page 5 using case studies of indigenous-state conflicts, interviews with indigenous leaders (Randy Noka of the Narragansett Nation, Chief Chad Smith of the Cherokee Nation, Brad Carson of the Cherokee Nation), findings from surveys of indigenous leaders between 1994 and 2000, opinion polls conducted with indigenous and non-indigenous people, and data from the National Governors’ Association (NGA) annual meetings, the National Conference of State Legislatures (NCLS), and the Center for Responsive Politics.9 The purpose of this research is to examine the changing intergovernmental relationships between indigenous nations and local, state, and federal governments in the United States since 1988 and to uncover how socially constructed images of indigenous peoples have a major influence on policymaking both historically (discussed later in this chapter) and in this current era of intergovernmental relations. Stereotypes of rich Indians are motivating state governors and other state decision makers to impose new regulation and jurisdictional claims on indigenous nations. In response, indigenous nations are mobilizing politically and economically to reframe the politics of perception on their own terms. Contemporary indigenous leaders are confronting rich Indian racism by utilizing new diplomatic strategies and forms of political mobilization, but widespread involve- ment in U.S. elections carries serious risks. As Oren Lyons, faithkeeper of the Onondaga Nation, states, “If a nation feels like a nation, acts like a nation, then you will be a nation.”10 Amid threats to indigenous nationhood, Lyons’s words challenge indigenous communities and leaders to act like nations, not like interest groups, stakeholders, or smaller versions of U.S. bureaucracies. The findings of this book provide an in-depth look at indigenous political mobilization strategies and the increasing regulatory over- sight of state actors, such as governors and legislators, in indigenous policy during