University of Oklahoma Press
Approximately every two decades, federal policy shifts between a conservative laissez faire delegation of power to the states and a liberal, often paternal, centralization of power within the federal government. The latest development in the cycle, according to the authors of Forced Federalism, is the new federalism that began more than twenty years ago.
Corntassel and Witmer argue that forced federalism has arrived unnoticed, with most people thinking, if they think about it at all, that Indian policy remains as it was in the 1960s. Under Lyndon Johnson federal policy was liberal, and indigenous people were allowed a significant amount of self determination as well as a large amount of federal support. In the late 1980s under the new federalism, specifically in 1988 with the Indian Gaming Regulatory Act, the federal government abdicated its role in Indian affairs and gave the states the responsibility for Native American populations. Indian nations are sovereign entities, comparable to the federal government, whose relations with the United States are set by treaty. Dealing with the states rather than the federal government as such produces a loss of status for Native American nations.
When the American Indian Movement (AIM) seized the Oglala reservation at Wounded Knee, South Dakota, in 1973, its purpose was to obtain redress for grievances and bring the federal government to acknowledge treaty violations. AIM was not protesting state or federal neglect of constituents. Rather, it was drawing attention to violations by a sovereign nation, the United States, of an international agreement with another sovereign nation, the Oglala Sioux. To reinforce its claim to sovereignty, AIM attempted to present its case before the United Nations, a forum where sovereign nations handle problems with other sovereign nations.
Since before the formation of the United States, indigenous peoples’ sovereignty has been eroding, falling to semi-sovereign or dependent status by the 1820s en route to the elimination of the sovereign power of making treaties in 1871. Periodically, the federal government would take responsibility for Indian affairs, as with the Indian Reorganization Act that reestablished recognition of Indian sovereignty in the 1920s. However, the periods of active interest have consistently given way to times in which the federal government attempts to lower the status of native nations by “Americanizing” them or otherwise denying their right to self determination. Instances include the allotment of Indian lands under the Gilded Age Dawes Act and Termination, which Eisenhower established to break up reservations and incorporate individual Indians into American society. The latest and potentially most damaging assault on the autonomy of the various indigenous peoples in the United States is a policy known to its advocates as the new federalism, to its critics as forced federalism.
Aside from issues of sovereignty,
Forced Federalism
declares, that indigenous nations also face state hostility. The more than 500 semi-autonomous nations must deal with state and local governments, they must become active in state and local politics, because that is where the money and the decision making now rest. At that level, the indigenous nations face “Rich Indian racism,” with state and local authorities contending that the tribes no longer need the special exemptions given them through treaty. Examples of rich Indian racism include trying to tax Indian smoke shops and gasoline stations, attempting under the guise of conservation to abrogate treaty rights to fishing and other uses of natural resources, and pushing state law onto the reservations. This lowering to the level of a supplicant of the state is inappropriate to a nation that should be working to retain its status as co-equal through treaty and other agreements with the federal government and, thus, above the state.
Few Native Americans get rich from their casinos. If spread evenly, casino income would amount to $3000 per Native American, and that’s not enough to overcome the $10,000 discrepancy between average Indian and average American income. Only a few casinos are profitable in a large way; most break even, and some have closed. But the states promote the stereotype that allows pressure on native leaders to cooperate with state demands. State pressure hampers tribal governments in their efforts to develop solutions to internal social problems and needs through traditional consensus building rather than worrying about meeting the outside economic demands as just another constituency in competition for scarce resources.
Forced Federalismis unique in that it is the first scholarly work to explore forced federalism from a political perspective. Previous studies have taken a legal approach, and this one does track the laws that have pushed the Indians into this situation. However, it moves beyond the legal aspect to discuss how the tribes have found themselves operating as just another pressure group, hiring lobbyists and putting their initiatives before the people of a state by referendum – and thereby weakening their claims to sovereignty, autonomy, or nationhood.
One complaint with the book is that
Forced Federalismis weak on demonstrating force. If the new federalism is forced federalism, then there has to be coercion, unambiguous and substantial, in the process. For example, when Arnold Schwarzenegger won the California governorship in part on a “rich Indian” campaign, he renegotiated five gaming compacts, collecting a billion dollars from the tribes. The work doesn’t explain why the tribes felt compelled to renegotiate. It doesn’t show coercion, merely claims it (p. 33)
But when
Forced Federalismtalks of the things that the autonomous nations have to provide for their people, the devolution of responsibility from the federal level becomes clearer. Social services such as elder care, Temporary Aid to Needy Families (TANF) and food stamps, unemployment assistance, job training, and so on are now provided through the states rather than through the federal government. This is the new federalism of Ronald Reagan, devolving programs to the states with barely enough money to cover them. As argued in the book, this has resulted in states that either see or portray the casino Indians (all Indians in this view are casino Indians) as taking scarce resources from the state’s needy even though they are rich. Casino Indians are also viewed as tax cheats because their businesses – smoke shops and gas stations too – are tax exempt. The indigenous nations are forced to deal with states whose perception is negative if not hostile.
The origin of this project was, according to the authors, in their examination of the participation of indigenous nations in political campaigns during the 1994 election. Thus, it is disappointing and surprising to find that the chapter on Indian political participation, including registering and voting, is not completely satisfying. Its basis is a survey the primary author developed and sent to a representative sample of the leaders of the indigenous peoples four times. The response averaged about 20 percent, which is low but acceptable. The larger difficulty is that the survey covered only four years – 1994, 1996, 1998, and 2000. There is nothing from the pre-forced federalism era to compare the data to, and there is no data for the first eight years under the new federalism or nearly a decade of the 21st century. Additionally, the author modified the survey, adding questions after the first year, so some of the data deals with only a couple of surveys. Still, the chapter does indicate that there is a dilemma in participating in American politics. If the nations are truly sovereign, why should they involve themselves in the internal affairs of an equal nation and, especially, a subordinate component of that nation, the states? Are lobbying, backing political candidates, and voting weakening the claim to independent and equal status?
The authors may be overly ambitious, given the limits of their data. There is no question but that American Indians have become more involved with the states over the past two decades. And historically the states have not been friends of Indians. But, as African Americans found out when they began voting and started to dominate politics in states that had long been hostile to their interests, the states do respond and change and become closer to fair and open. Indians may be a small percentage of the electorate nationally, but they have the numbers to be a force in the pockets where they cluster.
The most interesting and important chapter is the one on state-tribe compacts under the Indian Gaming Regulatory Act of 1988. The authors point out that treaties are international agreements, binding theoretically into perpetuity. Compacts, sometimes negotiated under duress because the federal law requires the Indians to develop them with the states, are business agreements, subject to abrogation at a moment’s notice, as half a dozen state governors have demonstrated in the two decades of this system. This difference best illustrates the authors’ contention that the new federalism, what they and others label “forced federalism,” creates a dilemma for Native Americans who have to surrender their autonomy under treaty in order to get the resources to allow their nation to develop as it desires.
Among the pitfalls of entering into electoral politics as just another constituency is that the novice can be taken for a ride. An example is the Tigua hiring of Jack Abramoff who was already working the other side of the street and successfully shutting down the Tigua and Alabama-Coushatta casinos in Texas. Having to pander to the voting public is yet another negative; the Rhode Island casino referendum is mentioned or discussed in several places.
The narrative is relatively short, just 150 pages, and many of them contain illustrations, charts, or graphs. The work is full of charts. It relies heavily on surveys, but it also includes interviews with prominent Indian spokespersons. It also includes interesting and useful appendices, including a list of tribes, a representative state-tribe gaming contract, a 19th century treaty the authors use to demonstrate their argument that indigenous nations were then treated as near equals, one of the surveys and an interview with Brad Carson, unsuccessful candidate for Congress in Oklahoma and Native American.
The new federalism may have run its course anyway. If the authors’ pattern of reversal every twenty years or so holds true, then the federal-indigenous nation-to-nation relationship will renew, and the role of the states will diminish. Forced federalism will be history. When it becomes a discrete era in American governance, then will be the time to assess its significance. The author of that future study will be well served to build on Forced Federalism. In the meantime, this work stands as a preliminary study of a difficult time for Native Americans.
Reviewed by John Barnhill
Independent Scholar, Houston, Texas
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