Eternal vigilance is the price of tribal sovereignty

The strongest weapon in support of tribal sovereignty is the will to defend it. Tribes are still here in the first place because of their stubborn will to survive, not from the benevolence of the mainstream culture. Federal ìIndian policyî went through several phases of soft genocide, from the ethnic cleansing of the Jackson Era to the termination and relocation that shamed the Eisenhower years, before the government ñ or at least its legislative and executive branches ñ realized that the only answer to this ungovernable problem was to let Indians govern themselves. The dramatic successes of the past generation have shown the strength of the Indian heart in the face of still daunting problems and very steep odds. But the fight has to go on every day.

Will is the strongest element the human can give in any endeavor ñ a quality evident in issues from personal regeneration to cultural preservation, language retention and the revival and founding of Native institutions. It is also the key to economic survival. For vivid proof, just consider the recent struggles for tax sovereignty.

States have tried to extend their taxing power to Indian territory almost as soon as their cruder methods of dispossession passed out of fashion. Their concern for revenue has to be called secondary. The earliest efforts clearly heeded Chief Justice John Marshallís dictum, ìThe power to tax involves the power to destroy.î Counties from New York state to Kansas used the property tax as a means of seizing the remaining Indian land. When Native land owners were unable to raise hard cash to pay tax bills, as invariably happened, counties began foreclosure proceedings. The U.S. Supreme Court slapped down this tactic with some moral revulsion in its famous pair of 1867 cases, the New York Indians and the Kansas Indians. But, incredibly, it continues to this day.

The Oneida Indian Nation (whose Four Directions Media tribal enterprise publishes this paper) has won a series of stays against foreclosure actions, even in the aftermath of the Supreme Courtís disastrous City of Sherrill v. Oneida Indian Nation of New York decision. And just at the end of June, the Keweenaw Bay Indian Community in Michigan prevailed in an important Sixth Circuit U.S. Court of Appeals ruling. A three-judge panel decided that its neighboring towns could not put Native-owned reservation land on their tax rolls, even though it had been allotted long ago and was not held in trust.

Even though the Keweenaw Bay ruling revolved on a technical point about whether treaty provisions expressed the will of Congress, it limited the scope of an earlier Supreme Court disaster, the 1998 Cass County [Michigan] v. Leech Lake Band of Chippewa Indians case. Two footnotes rebuked other circuit courts for holding that ìalienableî Indian land (that is, held privately with the right to be sold) automatically became taxable. Itís not clear yet whether the case might be appealed to the Supreme Court, and prompt another disaster, but for now the stubborn resistance of the Keweenaw Bay community has stalled a major legal attack on Native property owners.

The Keweenaw Bay leaders have taken a lonely road. They are also fighting a state sales tax on reservation cigarette sales when other Michigan tribes have entered into state compacts. They lost this case in U.S. District Court and are waiting for a Circuit Court hearing. They fit the pattern of the current fight against state sales taxes. Over the past decade, the strongest resistance to this economic encroachment has often come from isolated holdouts, fiercely committed to tribal sovereignty at a time when a majority of the tribes have been willing to strike deals with their surrounding state. But the holdouts often enough have carried the day.

This pattern became high drama in the 1997 tax revolt of the New York state Indians. Most of the tribal leaders, discouraged by yet another negative Supreme Court ruling, had signed tax compacts with Gov. George Patakiís lawyers by May of that year. The two holdouts were the Seneca Indian Nation and the state-recognized Unkechaug Indian Nation, an Algonquin tribe on Long Island. Unkechaug Chief Harry Wallace recalls receiving personal threats from Patakiís chief lawyer. But their resistance sparked a grass-roots revolt that reached such proportions that Pataki backed down. He declared the reservations to be free of state taxation, even on sales to non-Indians.

It was a wise move that fit Republican ìsupply-sideî ideology. (Pataki also pushed Empire Zones, giving corporate tax breaks to encourage economic development.) It also worked. Tribes and Native entrepreneurs generated thousands of jobs, mainly for non-Indians, in the ensuing decade. State courts ratified the policy, recognizing the sovereign immunity of tribal governments. But the narrowest of special interests, the convenience store and gas station lobby, has felt that Indian competition threatened some of their members. It has used its influence in the Legislature (purchased remarkably cheaply) to push for a reversal of Patakiís policy.

Pataki himself caved in where he could, using the lure of casino deals to win tax concessions. Some expatriate Iroquois tribes, far removed from the tax struggle and beaten down by oppression in their own states, surrendered tax sovereignty entirely. But the state Legislature overplayed its hand. The deals are off, and the tax fight is building. Wallace has tired of waiting for tribal governments to unite and is starting his own grass-roots alliance. Seneca businessmen paid for a poll by the respected Zogby International firm which found an astounding level of public support for tax sovereignty.

Itís time now for tribal opinion to rally around the leaders who succeeded in 1997. The forces jealous of the reservation economic success stories will only stop if they meet determined resistance, both in the courts and the court of public opinion. The battle, as always, will be won by the side with the greater will.

The strongest weapon in support of tribal sovereignty is the will to defend it. Tribes are still here in the first place because of their stubborn will to survive, not from the benevolence of the mainstream culture. Federal ìIndian policyî went through several phases of soft genocide, from the ethnic cleansing of the Jackson Era to the termination and relocation that shamed the Eisenhower years, before the government ñ or at least its legislative and executive branches ñ realized that the only answer to this ungovernable problem was to let Indians govern themselves. The dramatic successes of the past generation have shown the strength of the Indian heart in the face of still daunting problems and very steep odds. But the fight has to go on every day.Will is the strongest element the human can give in any endeavor ñ a quality evident in issues from personal regeneration to cultural preservation, language retention and the revival and founding of Native institutions. It is also the key to economic survival. For vivid proof, just consider the recent struggles for tax sovereignty.States have tried to extend their taxing power to Indian territory almost as soon as their cruder methods of dispossession passed out of fashion. Their concern for revenue has to be called secondary. The earliest efforts clearly heeded Chief Justice John Marshallís dictum, ìThe power to tax involves the power to destroy.î Counties from New York state to Kansas used the property tax as a means of seizing the remaining Indian land. When Native land owners were unable to raise hard cash to pay tax bills, as invariably happened, counties began foreclosure proceedings. The U.S. Supreme Court slapped down this tactic with some moral revulsion in its famous pair of 1867 cases, the New York Indians and the Kansas Indians. But, incredibly, it continues to this day.
The Oneida Indian Nation (whose Four Directions Media tribal enterprise publishes this paper) has won a series of stays against foreclosure actions, even in the aftermath of the Supreme Courtís disastrous City of Sherrill v. Oneida Indian Nation of New York decision. And just at the end of June, the Keweenaw Bay Indian Community in Michigan prevailed in an important Sixth Circuit U.S. Court of Appeals ruling. A three-judge panel decided that its neighboring towns could not put Native-owned reservation land on their tax rolls, even though it had been allotted long ago and was not held in trust.Even though the Keweenaw Bay ruling revolved on a technical point about whether treaty provisions expressed the will of Congress, it limited the scope of an earlier Supreme Court disaster, the 1998 Cass County [Michigan] v. Leech Lake Band of Chippewa Indians case. Two footnotes rebuked other circuit courts for holding that ìalienableî Indian land (that is, held privately with the right to be sold) automatically became taxable. Itís not clear yet whether the case might be appealed to the Supreme Court, and prompt another disaster, but for now the stubborn resistance of the Keweenaw Bay community has stalled a major legal attack on Native property owners. The Keweenaw Bay leaders have taken a lonely road. They are also fighting a state sales tax on reservation cigarette sales when other Michigan tribes have entered into state compacts. They lost this case in U.S. District Court and are waiting for a Circuit Court hearing. They fit the pattern of the current fight against state sales taxes. Over the past decade, the strongest resistance to this economic encroachment has often come from isolated holdouts, fiercely committed to tribal sovereignty at a time when a majority of the tribes have been willing to strike deals with their surrounding state. But the holdouts often enough have carried the day.This pattern became high drama in the 1997 tax revolt of the New York state Indians. Most of the tribal leaders, discouraged by yet another negative Supreme Court ruling, had signed tax compacts with Gov. George Patakiís lawyers by May of that year. The two holdouts were the Seneca Indian Nation and the state-recognized Unkechaug Indian Nation, an Algonquin tribe on Long Island. Unkechaug Chief Harry Wallace recalls receiving personal threats from Patakiís chief lawyer. But their resistance sparked a grass-roots revolt that reached such proportions that Pataki backed down. He declared the reservations to be free of state taxation, even on sales to non-Indians. It was a wise move that fit Republican ìsupply-sideî ideology. (Pataki also pushed Empire Zones, giving corporate tax breaks to encourage economic development.) It also worked. Tribes and Native entrepreneurs generated thousands of jobs, mainly for non-Indians, in the ensuing decade. State courts ratified the policy, recognizing the sovereign immunity of tribal governments. But the narrowest of special interests, the convenience store and gas station lobby, has felt that Indian competition threatened some of their members. It has used its influence in the Legislature (purchased remarkably cheaply) to push for a reversal of Patakiís policy.Pataki himself caved in where he could, using the lure of casino deals to win tax concessions. Some expatriate Iroquois tribes, far removed from the tax struggle and beaten down by oppression in their own states, surrendered tax sovereignty entirely. But the state Legislature overplayed its hand. The deals are off, and the tax fight is building. Wallace has tired of waiting for tribal governments to unite and is starting his own grass-roots alliance. Seneca businessmen paid for a poll by the respected Zogby International firm which found an astounding level of public support for tax sovereignty.Itís time now for tribal opinion to rally around the leaders who succeeded in 1997. The forces jealous of the reservation economic success stories will only stop if they meet determined resistance, both in the courts and the court of public opinion. The battle, as always, will be won by the side with the greater will.