Tribal Governments in Kansas and Their Relations with State and Local Governments by Thomas J. Sloan, Ph.D. Kansas State Representative Contents Tribal Governments in Kansas and Their Relations with State and Local Governments ....................................... 1 The Kickapoo Tribe in Kansas ..................... ................................................................................................................... 11 Prairie Band of Potawatomi ........................... .................................................................................................................. 15 Iowa Tribe of Kansas and Nebraska .............................................................................................................................. 17 Appendix: Constitution and By-Laws of the Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas ..................................... .................. ............................................................................................... 19 iii Tribal Governments in Kansas and Their Relations with State and Local Governments Overview of American Indian Law cal "trust" relationships. At the time of this writing, and Tribal/Federal Relations tribes from across the United States are engaged in a lawsuit against the Department of the Interior for At its simplest, a tribe is a collective of American In- mismanaging funds held in trust for the tribes. A fed- dians (most historic U.S. documents refer to "Indi- eral court is deciding whether to hold current and ans") recognized as constituting a distinct and his- former department officials in contempt for contin- torically continuous political entity. The U.S. Depart- ued failure to account for hundreds of millions of ment of the Interior insists on federal recognition of tribal dollars. a tribe as a prerequisite for entitlement to its ser- The court and Congress have also become en- vices administered on behalf of the American Indian gaged in protecting reservation lands and resources people. Federal recognition may arise from treaty, from further erosion by Department of the Interior statute, or executive or administrative order. policies and mismanagement. Despite the above definitions, distinct tribes of- Most tribes have constitutions adopted pursuant ten were assigned to a common reservation and to the Indian Reorganization Act of 1934. The stan~ thereafter treated by the federal government as a dard tribal constitution was developed in the Depart- single tribe. The Loyal Shawnee of Oklahoma were ment of the Interior. It describes tribal lands, eligi- combined with the Cherokee, for example. bility for tribal membership, the authority of the tribal A tribe may exist without being formally recog- council, and an amending process. nized by the federal government. However, such The secretary of the interior retains veto power tribes generally are not eligible for federal programs over many ordinances and resolutions adopted by or state tax exemptions, and members cannot attend tribal councils and over proposed constitutional revi- Haskell Indian Nations University in Lawrence, Kan- sions. (See Article 5, Section 4 of the Kickapoo tribe's sas. Haskell is the only all-American Indian and constitution, the appendix to this supplement.) Alaska native, intertribal university in the United During much of the 1950s and 1960s, Congress States. It receives most of its funding through the terminated the special relationship between the fed- Department of the Interior's Bureau of Indian Affairs eral government and more than 100 tribes by ceas- (BIA). ing to recognize tribal status. Congress ceded tribal The four Kansas tribes are the Prairie Band lands to individual American Indians, who were then Potawatomi, Kickapoo, Sac and Fox, and Iowa. The able to sell, mortgage, and pay taxes on the lands. relationship of the four tribes with state and local gov- Non-American Indians ultimately acquired many of ernments is a fonction of the often-ambiguous rela- these lands. Termination of tribal status recognition tionship between all tribes and the federal govern- also resulted in the loss of all Bureau of Indian Af- ment. fairs/Department of the Interior programs and Indian Historically, federal government-tribal relations Health Service benefits. The objective was to assimi- have been based on paternalistic financial and politi- late all American Indians into the majority culture. 2 TRIBAL GOVERNMENTS IN KANSAS Recognizing the value of cultural diversity and tion properties. Just as states generally are precluded treaty obligations, Congress has reversed the termi- from taxing tribal members and businesses living on nation policy and recognized a few tribes since 1973. or doing business on tribal lands, they generally are However, for many of the terminated tribes, the loss precluded from regulating tribal members and busi- of lands and recognition resulted in the loss of tribal nesses on tribal lands. However, just as with taxa- government and identity. tion, states have the right to regulate tribal members off the reservation and, in many instances, nontribal members on reservations. Sovereignty The issues of taxation, regulation, and sovereignty become complicated and contentious as tribes attempt At its most basic level, sovereignty is the inherent to assert independence from state and local rules and right of people to govern themselves. By treating state governments attempt to enforce uniform behav- tribes as having legitimate governments for the pur- ior and tax policies for all persons living within the pose of signing treaties and agreements, while largely state's borders. Tribes and states, including Kansas, leaving tribes to regulate their internal affairs, the frequently litigate issues to clarify sovereignty. federal government historically has recognized tribal sovereignty over tribally controlled lands (now res- ervations). Indian Gaming The U.S. Supreme Court has determined that tribes in Kansas have no police or regulatory author- The governing statute for all tribal gaming endeav- ity over nontribal members on non-American Indian ors is the Indian Gaming Regulatory Act of 1988. The fee lands (lands owned by nontribal members within act requires compacts or agreements between tribes a reservation) and no criminal justice authority over and states to govern the scope and conduct of Ameri- tribal or nontribal members. Thus, the court estab- can Indian gaming operations. Compacts may address lished state jurisdictional supremacy for criminal jurisdictional issues between tribes and states, such cases that occur on reservation lands or involve tribal as pre-employment security screening. members. Tribal courts generally retain civil jurisdic- The gaming act lists three types of gaming op- tion for tribal members. erations and specifies regulatory oversight. Class I Treaties between the federal government and gaming consists of social games having low-value tribes are made pursuant to the U.S. Constitution and, prizes. That class is wholly within tribal jurisdiction. therefore, take precedence over conflicting state laws. Class II gaming, which includes bingo and all its However, treaties with tribes, as well as federal laws permutations, is largely subject to tribal jurisdiction, and international treaties, may be modified or re- rather than state or National Indian Gaming Com- pealed by Congress. Such actions, including termi- mission jurisdiction. nation of tribal recognition, do not require the acqui- Class. III gaming is everything not included in escence of the affected tribe. classes I and II, such as slot machines, blackjack card games, and roulette. Before a tribe can operate a class III gaming facility, its tribal council must pass an au- Taxation and Regulation thorizing ordinance that is approved by the secretary of the interior and be located in a state that permits States usually do not have authority to tax American such gaming. Indian trust lands (reservations), impose motor fuel The Indian Gaming Regulatory Act determined taxes on tribes or their members, or tax the income that the Kansas Legislature has authorized a state- of tribal members living on their reservation. operated lottery (a class III game by nature of not However, states may tax tribal members living off being identified as a class I or II game). Thus, Kan- the reservation, tribal businesses outside the reser- sas tribes are eligible to operate any type of class III vation, and nontribal members purchasing items, gaming operation. Governor Joan Finney began ne- such as motor fuel, from tribal businesses on the res- gotiating compacts with the four Kansas reservation ervation. Because tribes are immune from state law- tribes. Governor Bill Graves completed the negotia- suits, the U.S. Supreme Court has determined that tion process and the Legislature approved the com- states may collect sales taxes due on products sold pacts, authorizing the tribes to engage in class III to nontribal members from product distributors sup- gaming. plying the tribal businesses. Tribes may tax and regulate their own citizens and nontribal members and businesses on reserva- TRIBAL GOVERNMENTS IN KANSAS 3 Kansas Tribal Government Structure ware villages. The Delaware are matrilineal, so clan membership (Turkey, Wolf, Turtle) was determined Three types of tribes interact with Kansas' govern- by lineage through tribal women. ments: A more formal government structure was neces- sary for interacting with the U.S. government in situ- • Recognized