Recently, the American Indian Tobacco Education Network, an 11-year program of the California Rural Indian Health Board, learned that Governor Gray Davis might be considering an attempt to impose smoke-free workplace requirements in Indian casinos on sovereign tribal lands in California. This legal encroachment by the State onto tribal government lands could strengthen State power and control over tribal lands as it is touted as “necessary” for the good of all Californians.
The results, however, can have far-reaching negative consequences for tribal governments as it relates to the protection of their sovereignty as distinct nations and the rebuilding of healthy communities initiated and supported at the local level. Without adequate state-tribal consultation and input from people who understand this type of unique political reality it could also increase tensions and diminish existing cooperative relationships between these governments.
Considering this from a different yet related perspective, the likelihood of California imposing and being successful at enforcing its legal smoke-free will on Oregon or Nevada is highly unlikely. Even though tribal governments often enjoy a higher governmental status and authority than states (which is derived from an Indian nation to federal government relationship), a large amount of Indian tribal authority and property has been taken by both the federal and state governments.
If the administration decides to move forward with such an initiative, the legal vehicle of choice could be the tribal-state gaming compact agreements. The insertion of state-mandated smoke-free workplace requirement language into the tribal-state compacts could mean that tribal governments, in order to operate their gaming facilities, would have to abide. If this is the case then the fundamental question is, does the state have such power and authority over tribal governments in California to impose such a regulation on sovereign Indian land? One option that tribal governments might consider using to protect their sovereignty could be the adoption of their own smoke-free policies in these buildings that goes beyond state standards.
The state government must understand that for decades California tribal governments have struggled with self-governance issues stemming from inadequate funding of BIA programs to health care services. The lack of infrastructure at the tribal governmental level has meant that some tribes, with the advent of Indian gaming, are now reaping some level of financial success and find it necessary to establish much needed governing institutions. They are also establishing laws in the form of tribal ordinances governing their members, economic development enterprises, and the patrons of these enterprises. Smoke-free ordinances instituted by tribal governments themselves should be a natural progression toward providing a healthier environment free from coercion, penalties or sanctions by the State of California. In addition, the myth that smoke-free tribal casinos cannot generate adequate revenue is being consistently debunked by a number of tribes within the state. Such tribes have realized that there are many non-smokers that thoroughly enjoy spending their money on playing games of chance in Indian casinos as long as it is in a smoke-free environment.
From the formation of the federal government system to today, acknowledgment of tribal government rights to self-government on their land have always been challenged as states have worked to acquire such authority and territory. While the federal government established a body of Indian doctrine and trust responsibility law, states consistently attempt to erode tribal sovereignty and control. There is some protection for tribal governments as state assertions of power and control over tribal governments are often blocked by the doctrine of federal supremacy in tribal affairs. In defense of tribal government rights both the tribes and federal government cite the treaty and commerce clauses of the U.S. Constitution as foundations of tribal governments’ legal power and rights.
It is important to note that there has never been a consistent federal policy on tribal government affairs. In fact, tribal government policy has shifted like the wind during the past 200 years, from (1) regarding tribal governments as equals to the United States, (2) forcing tribal governments to move out of the East, (3) attempts to exterminate tribal peoples or assimilate them into white society, and now (4) encouraging tribal government independence. These policy changes have often occurred abruptly and are often disruptive, and tribal peoples were almost never consulted in their development. It should be encouraged that the historical tendency of non-tribal consultation does not repeat itself with regard to this smoke-free policy issue being examined in California.
Finally, as many are aware, what happens to one tribal government in the United States in terms of federal legal decisions usually has a ripple effect on the rest of Indian country. Hopefully such tribal-state power and authority questions can be adequately addressed and answered between these governments (with tribal governments not relinquishing additional aspects of their sovereignty), rather than pursuing expensive and time-consuming federal legislative or court remedies.
Mark LeBeau, Pit River Tribal Member, AITEN Programs Manager and CRIHB employee, has been working with tribal governments in California since 1999 to develop effective and culturally appropriate tobacco policies on tribal lands. During 2002, Mark worked for Congressman Frank Pallone Jr. in Washington, D.C., on American Indian/Alaska Native legislative initiatives to benefit Indian country. LeBeau can be reached by email at: mark.lebeau@mail.ihs.gov.