Washington and Lee Journal of Civil Rights and Social Justice Volume 4 | Issue 1 Article 3 Spring 4-1-1998 ANCESTRY AND CASINO DOLLARS IN THE FORMATION OF TRIBAL IDENTITY Eric Henderson Follow this and additional works at: https://scholarlycommons.law.wlu.edu/crsj Part of the Gaming Law Commons, and the Indian and Aboriginal Law Commons Recommended Citation Eric Henderson, ANCESTRY AND CASINO DOLLARS IN THE FORMATION OF TRIBAL IDENTITY, 4 Race & Ethnic Anc. L. J. 7 (1998). Available at: https://scholarlycommons.law.wlu.edu/crsj/vol4/iss1/3 This Article is brought to you for free and open access by the Washington and Lee Journal of Civil Rights and Social Justice at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Journal of Civil Rights and Social Justice by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. ANCESTRY AND CASINO DOLLARS IN THE FORMATION OF TRIBAL IDENTITY Eric Henderson* Table of Contents I. In tro d u c tio n ................................................................................................................................................................ 7 II. The Indian Gaming Regulatory Act and Tribal Sovereignty ................................................................................. 10 A. Introduction B. Restraints on Tribal Sovereignty Under the Indian Gaming Regulatory Act III. Indian Gaming Regulatory Act and the Law of Tribal Membership ...................................................................... 13 A. Membership Criteria and the Preservation of Cultural Values B. Per Capita Distribution of Gaming Revenues Under the Indian Gaming Regulatory Act: 1. Federal Court Analysis 2. Tribal Court Analysis IV. Tribal Property,Tribal Integrity and Membership:A Case Study of the Cherokee, Pueblo and Ute Tribes ........ 18 A. Dissolution and Allotment:The Cherokee Experience B. Dissidents and Cultural Norms:The Pueblo Experience C. Terminating the Mixed Blood Northern Utes V C o nclu sio n .................................................................................................................................................................... I. INTRODUCTION "groups," recognized Indian tribes maintain a distinct political relationship with the federal government. The indigenous peoples of the United States are Certain tribal entities however, are not recognized at all.' enmeshed in a complex and unique web of socio-eco- The tribal entities that are recognized by the federal gov- nomic and jural-political relations.They are, collectively, ernment are governed, at least in part, by numerous spe- an "ethnic" group or class known as American Indians cific federal statutes and rules. recognized in American law. This generic categorization, To some degree an individual's "ethnic identity" however, is less conspicuous than the distinct tribal iden- involves attributes4 of both self-identification and ascrip- tities of indigenous peoples. Unlike other ethnic tion by others. Historically, one's ancestry or race has *Eric Henderson teaches anthropology and criminal jus- by persons under pretext of authority from the Cherokee tice at Great Basin College (Elko, Nevado). He holds Ph.D. Indians, and providing for imprisonment of persons who (anthropology) and J. D. degrees, both from the University of should reside among such Indians within the Cherokee Nation Arizona, and clerked for Justice Stanley Feldman of the Arizona without first obtaining authority to do so from the governor of Supreme Court and Judge Joseph Livermore of the Arizona the state, is a nullity, because the Cherokee Nation within the Court of Appeals. I would like to thank Dr. Thomas Hill for his state of Georgia, having been recognized by the laws and comments on an earlier draft of this paper and Elizabeth Garcia treaties of the United States as subject to the control and for her dedicated and patient editing. dominion of the Cherokee Nation of Indians, is not within the ISaint Francis College v. Al-Khazraji, 481 U.S. 604, 613 territorial jurisdiction of Georgia). 3 (1987) (the Court held that the legislative history of 42 U.S.C. American Indian Policy Review Commission, Final Report, f 1981 indicated that "Congress intended to protect from dis- vol. I 461-84 (1977); See generally, Sharon O'Brien, Tribes and crimination identifiable classes of persons who are subjected Indians: With Whom Does the United States Maintain a to intentional discrimination solely because of their ancestry or Relationship?66 Notre Dame L. Rev. 1461, 1472-76 (1991). ethnic characteristics"). Saint FrancisCollege, 481 U.S. at 610 n.4 ("some, but not 2Worcester v. Georgia, 31 U.S. 515 (1832). (holding that all, scientists ... conclude that racial classifications are for the statute to prevent the exercise of assumed and arbitrary power most part socio-political"). had a central role in the American social norms of ethnic themselves as Indians or view themselves as members of ascription.! In addition, other factors such as community a specific tribe,t° but whether they are members of a par- of residence, appearance, language, religion, and culture ticular federally recognized tribe is a separate question. may also be important. For an American Indian the Thus, individual self-identification as an Indian may not social norms of the wider society are interwoven with suffice to qualify as an Indian, at least for tribal purposes 12despite meeting specific tribal norms and laws governing affiliation with federal criteria for "Indian-ness" under 13 the tribal polity. This is apparent because "[elach tribe, one or more statutes. recognized as a distinct political community, has the Historically there has been a sort of semi-permeable 7 power to determine its own tribal membership. barrier through which some individuals' identities shift Theoretically, one may become a member of a tribe among the categories of tribal member, 4 "Indian" and without having any tribal or even Indian ancestry as the non-Indian.The shifts may occur and reoccur throughout Cherokee intermarriage and freedmen cases show . the lives of some individuals and depend upon specific Conversely, all of one's ancestors may have been tribal situational contexts." Perhaps most individuals retain a members and yet one may not qualify for tribal mem- specified and seemingly unalterable identity throughout 9 bership. In most situations, individuals fail between life, but the number of individuals6 whose status entails these theoretical poles. Many individuals have several ambiguity is substantial. ancestors who were members of a particular tribe, while Racial ascription, of course, has long been an impor- other ancestors were members of a different tribe or tant element in American social relations. 17 On occasion, were non-Indian. These individuals may self-identify the concept of race has intruded into American legal 5Eric Wolf, Europe and The People Without History, 380- l0The United States census currently relies on self-identifi- 381 (1982), (distinguishes between racial and ethnic distinc- cation in enumerating the Indian population and tribal affilia- tions. He views the former as imposed as a result of the subju- tion. C. Matthew Snipp, American Indians: The First of This gation of populations in the course of European mercantile Land, at 36-37 (1989). 11This was asserted expansion. Ethnic categories, on the other hand, express the by the Supreme Court in Morton v. ways particular populations come to relate themselves to given Mancari,417 U.S. at 553 n. 24, (limiting the employment pref- segments of the labor market in capitalist systems.) See also, erence to members of recognized tribes operates to exclude Carol Mukhopadhyay and Yolanda Moses, Reestablishing Race many individuals who are racially to be classified as Indians). in Anthropological Discourse, American Anthropologist "The basic concept of retaining tribal relations,... con- 99:517-533 (1997); But see, S.O.Y Keita and Rick Kitties, The tinues to be manifested in the notion that an essential element Persistence of Racial Thinking and the Myth of Racial of Indian status is a relationship with an Indian tribe." Cohen, Divergence, American Anthropologist 99:534-44 (1997). supra note 7 at 23. Cohen notes that Congress has occasional- Pauline Strong and Barrik Van Winkle, Indian Blood: ly specified the scheme of tribal membership or delegated that Reflections on the Reckoning and Refiguring of Native North authority to the Secretary. Id. at 248. 13Cohen, supra American Identity, Cultural Anthropology 11:547-576, (1996) note 7, at 23. (There is no single statute that (discussing contemporary Washoe identity); See also, Joane defines Indian for all federal purposes). Nagel, American Indian Ethnic Renewal: Politics and the " This may include meeting the criteria of membership in Resurgence of Identity, American Sociological Review 60:947- more than one tribe. 15On ethnic 965 (1995). boundaries generally, See Frederik Barth, Felix S. Cohen, Handbook of Federal Indian Law, at 248 Ethnic Groups and Boundaries,(1969); See also Nagel, supra (1982) [hereinafter Cohen]; citing Santa Clara Pueblo v. note 6, at 948-51, (discussing the process among American Martinez, 436 U.S. 49 (1978) (discussed, infra, part IIA); See Indians). But see William Unrau, Mixed-Bloods and Tribal also the Cherokee Intermarriage Cases, 203 U.S. 76 (1906) (dis- Dissolution: Charles Curtis and The Quest