Sovereignty shapes county’s relationship with tribal casinos

Posted by on Nov 11, 2013 in News | 0 comments

Eleven years after the Dry Creek Rancheria Band of Pomo Indians opened Sonoma County’s only casino in the Geyserville hills, the Federated Indians of Graton Rancheria will throw open the doors to its far larger gambling palace next to Highway 101 outside Rohnert Park.

Both casinos were flatly opposed by Sonoma County government officials and many residents. But one factor above all hamstrung county officials and shaped their dealings with the tribes.

That factor is tribal sovereignty.

“It’s very significant,” said Bruce Goldstein, an Indian law expert and the county’s chief counsel, who led casino-related negotiations with both the Graton Rancheria and the Dry Creek Rancheria.

“In order to find solutions, it’s important to work with them on an equal basis. The county’s not in a position to impose regulations,” he said.

Tribal sovereignty has been controversial through the years because of the special status it accords a particular group of Americans and because it strips power from local and state governments.

But it springs from the legal recognition that tribes were North America’s original nations, a position that comes with distinct rights.

The essential backbone of tribal sovereignty is that tribes have the right to govern themselves and their territory, lands that the federal government holds in trust.

And one entity’s sovereignty necessarily excludes, at least to a major degree, that of another.

“You can’t govern yourself if you have state and local governments regulating you and breathing down your neck,” said Matthew Fletcher, director of the Indigenous Law and Policy Center at the Michigan State University law school.

In regard to their control over their reservations, tribes are in most ways free from the reach of state law. Without invitation, non-members cannot go to tribal governance meetings as they can attend board of supervisors or city council meetings. And tribes are entirely out of reach of county or city ordinances.

As sovereign nations, federally recognized tribes enjoy the same immunity from lawsuits as the federal and state governments, though that can be partially waived if the tribe chooses to do so or by congressional action.

For example, in revenue-sharing agreements that the Graton tribe has signed with Rohnert Park and Sonoma County, the tribe partially waived its sovereign immunity in certain circumstances.

The right of tribal self-governance was affirmed in what is generally considered the most important judicial ruling in Indian law, the Worcester v. Georgia case in the U.S. Supreme Court in 1832.

In that case, Chief Justice John Marshall wrote the decision that said tribes, while “weaker” political bodies than the United States, were still independent states. They had never surrendered the sovereign rights they held before Europeans arrived on the continent, Marshall said.

The ruling “held that Indian tribes were sovereign governments; they have always been sovereign governments; they can run their internal relations however they see fit,” said Stephen Pevar, an Indian law specialist and senior counsel at the American Civil Liberties Union.

Marshall also affirmed that Congress had not given the tribes their sovereignty through treaties, laws or any other means. They had possessed it “from time immemorial,” Marshall ruled.

“It’s not delegated powers; those are original powers,” Pevar said.

At the same time, tribes are in many ways subject to, as well as protected by, U.S. law. In another key decision, Marshall said tribes are “domestic dependent nations” with a relationship to the United States like “that of a ward to his guardian.”

That relationship emerges in, for example, the 1988 Indian Gaming Regulatory Act, or IGRA, in which Congress set the legal framework for how, when and where tribal gambling is allowed.

The law followed on the heels of the 1987 Supreme Count ruling in California v. Cabazon Band of Mission Indians that affirmed the right of tribes to operate gambling businesses on their reservations in states where that sort of gambling already was permitted elsewhere. In California at the time, the lottery, high-stakes bingo and poker already were legal. With that ruling, the court affirmed the principle that states cannot regulate the conduct of tribes.

IGRA alluded to the nation’s obligation as a guardian of the tribes and said the main goal of federal Indian policy was to “promote tribal economic development, tribal self-sufficiency and strong tribal government.”

But the law also asserted federal authority, requiring tribes to reach agreements with states before they could open Nevada-style casinos. In doing that, Congress exercised the power it holds over tribes and their land — which is considered final authority — by taking away sovereign independence earlier recognized by the Supreme Court.

Article 1, Section 8, of the U.S. Constitution gives Congress the right to regulate commerce with tribes. Congress can use its power even to terminate tribes, as it did to 109 of them between 1953 and 1966, actions that the Supreme Court can reverse. It also can restore tribes, as it did with the Graton Rancheria in 2000.

A terminated tribe could continue as a social and cultural entity, but it would be stripped of its sovereignty and no longer would have any governmental authority over its members or property it owned.

Indian law experts and advocates for tribal rights view the government’s power over tribes with different lenses.

“To the extent that tribes have sovereignty, it’s because Congress hasn’t taken it away,” said Tony Cohen of Santa Rosa, an Indian law attorney.

But Pevar put it somewhat differently: “The federal government has a trump card. It doesn’t mean Indian tribes lack sovereignty; they lack full sovereignty.”

And in key ways, California’s sovereign powers do extend into tribal land. In 1953, federal Public Law 280 gave California and four other states criminal jurisdiction on Indian reservations, even in cases involving tribal members.

Tribes, however, also can prosecute tribal members in tribal court for criminal offenses, even if they have been prosecuted in state courts.

Also, in another significant limit on sovereignty, Chief Justice Marshall, who elsewhere so strongly affirmed tribal rights to self-government, separately established that tribes do not have the right to sell land that is held in federal trust for them. In other words, neither the Dry Creek Rancheria nor the Graton Rancheria is able to sell all or portions of its reservation without federal approval.

Though tribes may chafe at such limitations, they are part of the parcel, said Fletcher of the Indigenous Law and Policy Center.

“You live with it,” he said.

And while court rulings have pushed tribal sovereignty one way or another over the years, at this point the broad strokes of it are largely established, Fletcher said — in part due to political realities.

“I think it’s as well settled as it can be,” he said. “The tribes have, because of their economic clout, in the last 30 years really become important.

“Nobody’s giving away sovereignty,” he said. “It will improve, or enlarge. Whatever you call it, it will be enhanced because the tribes themselves will be better at governing.”

Read more at the Press Democrat.

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