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10/17/2003 06:55:00 PM | Timothy Arnold wants to raise taxes... Just on Indians. Calpundit links to this Jacob Levy article and mocks Arnold:"Did I say no new taxes? I meant no new taxes unless you're an Indian." Erza Klein over at Not Geniuses has made comments that make me think he does not understand the points Calpundit makes about the nature of state powers over Indians. (Though Calpundit might be a bit too catagorical.) I suspect a few comments to this post will also demonstrate a lack of knowledge of Native Americans and federal law, which that is pretty common. More here.... This knowledge of case law is from a class I took 5 years ago at Dartmouth, but here's my recollection of the situation: In 1987, the Cabazon Supreme Court decision said the tribes had a right to gamble based on their existing sovereignty, where states permit any form of gambling (including church bingo or the like). Congress said something to the effect of.. hmmm... this could get out of control. So they passed the 1988 Indian Gaming Regulatory Act that set up more barriers for tribes to get Casinos, and crucially gave the states a voice in the process (States could always simply ban all forms of gambling entirely). But IRGA was meant to be a compromise. States were not meant to extort large sums of money, but were required to negotiate in good faith. Of course, many governors basically refused to do this. Many tribes also offered 'revenue-sharing' to move the process along, but there was federal supervision here too. IGRA had a provision that allowed tribes to sue states for not negotiating in good faith. Unfortunately, in the Seminole decision in the mid 1990s, the Supreme Court said that the 11th amendment (the text of which never mentions Indian tribes) doesn't allow IGRA to make it so Indian tribes can sue states, unless states voluntarily waive their sovereign immunity. So in part because tribes cannot enforce the rights they have under IGRA (and had before from the 1987 Supreme Court decision), states can make even more demands on tribes because of their increased bargaining power. This is because federal law originally gave them only a voice; but the Supreme Court knocked out one part of a federally imposed framework of negotiation, turning that voice into a veto. Anyway, I say all this to show how federal law usually controls Indian policy; how Indian sovereignty is recognized as continuing (unless Congress acts or some other court limitations); and yet how a federal law allowed states to play hardball to get money and other concessions despite the basic intent of the law. (For those who don't know, my primary research interest in political theory involves indigenous sovereignty.) UPDATE: Another post to ponder and discuss. perma link |
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