Sovereignty, Devolution, and the Future of Tribal-State Relations
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Sovereignty, Devolution, and the Future of Tribal-state Relations Stephen Cornell and Jonathan Taylor National Congress of American Indians Mid-Year Session Juneau, Alaska, June 26, 2000 We are grateful for the invitation from the sovereignty—than they used to, and they are National Congress of American Indians to at- using it to rethink public policies and tailor tend the mid-year session in Juneau and offer them to local circumstances. It is too soon to some observations and thoughts on the state of know how far this trend will go—a great deal tribal-state relations. Our remarks stand back a hinges on how well the states perform as they bit from the particular circumstances of any one assume greater authority and launch new pro- state-tribal relationship to examine the overall grams of their own—but the basic trend is clear. state of those relations, the changes that are Relative to federal power, state sovereignty is reshaping them, and the implications of those growing and will continue to grow. changes for Indian nations. Of course devolution has a history in Indian Three Trends and the Uncertain Future of Country as well. For the last 25 years, federal Tribal-State Relations policy toward tribes, formally at least, has been devolutionary. Self-determination—which is a At the start of the 21st century, three broad devolutionary policy—ideally places power in political developments or trends are reshaping tribal hands, reducing federal controls over tribal-state relations. The future of those rela- tribal affairs, resources, and decisions. Indeed, tions is unclear, but the interaction among these one might see the self-determination policy to- trends and the relative influence of each will do ward Indian nations as a precursor of the more a great deal to determine not only the shape of general devolutionary tendency in the United those relations but the future of Indian nations. States. The first of these political developments is Combined with vigorous tribal political as- devolution: the effort to shift decisionmaking sertions over that same period, this has pro- power downward in the political structure from duced the second political development that is central to local governments. Devolution is based reshaping tribal-state relations as we start the on the reasonable proposition that policy is best new century: the resurgence of tribal power. made at the smallest level of government capa- Across the country, albeit to varying degrees, ble of doing so. With this in mind, over the last Indian nations have been taking greater control decade and around the globe, central govern- of their own affairs, implementing practical self- ments have been devolving power down to local rule. The evidence is everywhere, from 638 con- levels. The United States has been an eager tracting to 472 compacting, from the gaming participant in this trend. The New Federalism, industry to wildlife management and land use, the Seminole decision, the Contract with Amer- from foster care to TANF programs. Tribal con- ica, and welfare reform are all facets of Ameri- trol is nowhere absolute, but as a practical mat- can devolution. Together with other court and ter it has grown enormously since the 1960s as legislative developments, they constitute a sig- more and more Indian nations have moved ag- nificant transfer of decisionmaking power from gressively to exercise substantive decision- the federal government to the states. As a re- making power across a wide range of issues sult, the states have more discretion, more critical to tribal futures. flexibility, more authority, and more control over federal dollars—in short, more practical 1 Yet this resurgent tribal power is anything to a dramatic realignment of governmental but secure. And this brings us to the third politi- power, strengthening states and weakening cal development reshaping tribal-state relations: tribes? If that turns out to be the case, then the through the 1990s and continuing today, tribal political and economic future of Indian nations sovereignty has been under assault in the courts, is very much in doubt. in Congress, in the states, and now, possibly, in the presidential campaign. We need not revisit Not coincidentally, research also suggests here the potential or actual effects on tribes of that in the first scenario—a scenario of sus- the Venetie or Seminole decisions by the Su- tained tribal sovereignty—the burdens on fed- preme Court, the 638 moratorium, the Istook eral and state governments and taxpayers gen- Amendment, means-testing for TPA, or the erated by reservation poverty are likely to de- revenue-sharing compact proposals in the gam- crease. In the second scenario—a scenario of ing industry. Tribal leaders feel those impacts diminished tribal power—they almost certainly in their daily work. But we should note that will rise. there is a growing body of research showing that the assault on tribal sovereignty holds grave In what follows, we first review the argu- risks not only for the political future of Indian ments often heard against genuine, government- nations but for their economic future as well. to-government, sovereignty-based relationships Sovereignty, it turns out, is a critical economic between tribes and the states. We then review asset for Indian nations.1 The effort to reduce the arguments for such relationships. We close tribal sovereignty is perhaps the most risky and with a summary of the implications for tribal- misconceived public policy trend affecting tribes state relations and with a quick look at the since allotment. tasks facing tribal governments as they attempt to shape the outcome of these trends and build The critical question for the future of tribal- productive tribal-state relationships based on state relations and for the future of Indian na- mutual respect for sovereignty. tions themselves has to do with which of these trends—or which combination of them—pre- Arguments against Tribal-State vails. There is little doubt about devolution. It Cooperation has broad political support and seems unlikely to be reversed any time soon. The question is One consequence of devolution is already this: Will this shift in power away from the fed- apparent. We’ve been talking to tribal leaders eral government work to tribes’ advantage or around the country about the changing nature not? of tribal-state relations, and their general im- pression is summarized by one planner’s view In and of itself, devolution is not dangerous that “We never used to think about the state. to tribes. Quite the reverse: Devolution has the We just dealt with the federal government. Now potential to significantly boost tribal self-rule. we have to think about the state all the time.” But the ultimate impact of devolution depends States and tribes are involved in each other’s on what happens to the other two trends identi- business a great deal more than they used to be. fied here. Will devolution include Indian nations Whether it is the Navajo Nation’s work with and embrace the resurgence in tribal power? If Arizona on culturally appropriate definitions of so, then there are grounds for new, robust, gov- “work” under welfare reform, or the contentious ernment-to-government relationships between negotiations in many states over gasoline tax Indian nations and the states. Or will the as- collections, states and tribes are being forced to sault on sovereignty, combined with a form of deal with each other on numerous matters of devolution that refuses to recognize Indian na- policy. They have locked horns over hazardous tions as sovereign, self-governing entities, lead and nuclear waste, wildlife management, foster care, off-reservation fishing, gaming compacts, taxation of all kinds, auto licensing, policing, and other issues—in sum, over nearly every 1 On this point, see in particular the research findings of the Harvard Project on American Indian Economic facet of tribal life. States and tribes also have Development (for example, Cornell and Kalt 1992, cooperated on most of these same issues. In 1998, and in press). short, tribes and states are in relationships that 2 are much more complex and uncertain than ever Zero-sum Tribal-state Relationships before, and their interactions have ranged from the highly contentious to the mutually respect- Governments often view their conflicts with ful and beneficial. other governments as inherently zero-sum: my gain in sovereignty or economy is your loss and Indeed, one of the puzzles of tribal-state re- vice-versa. Wildlife management is an example. lations is why in one state there is little or no Some states have taken the position that tribal cooperation in a given policy area while in a assertions of game management authority are a neighboring state, tribe and state are cooperat- direct challenge to state sovereignty. If a tribe ing with success on the same issues. In one controls game-management, the state will not state, the governor and legislature may resist be able to control its herds, flocks, and fish cooperation with tribes, relying on the courts or stocks as they migrate on and off the reserva- lobbying Congress to limit tribal sovereignty. tion, and the tribe’s actions will diminish state Right next door, the state and the tribes may regulatory effectiveness. In this view, tribes are view each other as partners, proactively negoti- seen by states as obstacles to the exercise of ating solutions to mutual challenges. Why is newly devolved state powers. that? In the economic arena, some states have Some of it has to do with history. Where taken the position that tribal economic gains are animosity characterizes tribal-state relations, costly to the states. The costs, in this argument, the core of the conflict may be deep-seated mu- generally come either in lost revenues as tribes tual distrust or even racism, built up over dec- capture dollars from non-Indian vendors, reduce ades.