MBA Article

Here’s a quick quiz: what group of Americans is granted dual citizenship the moment they are born on American soil?

If you guessed Native Americans, you would be right.

There are more than 500 federally recognized American Indian tribes in the United States. Each tribe is considered a nation unto itself, with separate treaties — or agreements — with the government of the United States. Yet each member of these Indian nations also is an American citizen with the rights, responsibilities and privileges granted to every American.

This dual citizenship means that members of tribal nations have a special legal status in the United States. Because some of them live on tribal trust land that is considered the land of a separate nation, tax laws and judicial matters can be different for American Indians than for other Americans.

The history of the American Indian since European settlers arrived in this country is marked by a horrible disregard for Indian culture and rights. Although Indian tribes were treated as separate nations, their trust in the U.S. government proved disastrous. Their land and their culture were brutally ripped from the Indians to satisfy the goal of the government to provide more land for white settlers.

A classic example is the plight of the Cherokee Indians, who were driven by government troops from their land in Georgia, Tennessee and North Carolina in 1838 to Oklahoma, forced at bayonet point to leave behind their villages, homes, schools and churches to travel in inhumane conditions across the country. It is estimated that between 1,500 and 4,000 of the 15,000 members of this tribe died along what has become known as “The Trail of Tears.”

Indian law was created initially to define how the United States government should deal with native peoples, then became exploitative in nature, but in more recent years was designed to help restore dignity to American Indians and to compensate them for centuries of unfair treatment.

By its very nature, however, Indian law is extraordinarily complex, in large part because it is grounded in treaties signed with the federal government, in some cases, hundreds of years ago. Different treaties created different rules and regulations for different tribes, as well as different rules for the U.S. government’s responsibility to them.

As an example, let’s look at the Wampanoag tribe, the only federally recognized tribe in Massachusetts. The Wampanoags hold title to trust land in Aquinnah, or Gay Head, on Martha’s Vineyard. Those tribal members who live on the trust land pay no local property tax, according to Beverly Wright, the tribe’s chairwoman, because the land is considered that of a foreign nation within Massachusetts.

If Indians live and work on trust land, they pay no state income tax, for the same reason. If they work on trust land but live off the property they pay all local, state and federal taxes, she explains. Tribal members may vote in local, state and national elections. They can be drafted. They are responsible for obeying state and federal laws. Local ordinances, or bylaws, however, do not apply on trust land. Usually, local ordinances deal with issues of zoning, trash removal, roadways and other issues of specific local concern.

The tribe, which has a membership of about 1,000, with 350 living on Martha’s Vineyard, has its own tribal government, consisting of a Tribal Council with 11 members, four of whom are officers: a chairman, a vice-chairman, a treasurer and a secretary. The council has a constitution, including elections bylaws, and its own Housing Authority. The Wampanoags are currently in the process of creating a civil justice system for the tribe that would be in effect on the trust land. Criminal cases would still be dealt with in state or federal courts.

The Wampanoags, as do other Indian tribes, perceive the law completely differently than “non-natives,” Wright says.

“Most people think there’s a law to allow people to do certain things,” she says. “We think we can do anything unless there’s a law that says we can’t.” She cites gaming, or gambling, as an example. The Wampanoags are seeking state permission to build and run a gambling casino in Southeastern Massachusetts, much like the Mashantucket Pequot’s Foxwood Resort Casino in Connecticut.

“We have a right to do gaming,” she says. “The Indian Gaming Regulatory Act of 1987 didn’t give us the right to game. It put laws on how tribes could game.”

They are doing this in part, according to Wright, because the tribe wishes to become financially independent. Currently, the Wampanoags receive $3 million a year from the federal government. But that is significantly less than what the tribe members need to fund health care (including a tribal health clinic and health insurance for those who have none); pay salaries for tribal positions and the costs of tribal government; protect natural resources on trust land; and pay for Wampanoag children to attend local public schools.

“I would say that all tribes want to continue that government-to-government relationship and want that money to come into the tribe because it’s the federal government’s responsibility,” Wright says. “But we also want to be self-sufficient.”

Indian Law

Indian law officially begins with the Constitution of the United States, which was ratified in 1789. The U.S. Constitution states that only the federal government may regulate commerce with Indian tribes, negotiate treaties with Indian nations, and control any public land occupied by tribes. In other words, the individual states are pretty much out of the picture.

Several significant pieces of federal legislation followed. In 1834 Congress passed the Trade and Intercourse Act, which determined which land would be considered Indian land and how contracts with tribes would be negotiated. Indian land could only be leased or sold by treaty, according to the law, or in a manner conforming to Constitutional requirements. The legislation also said that the Commissioner of Indian Affairs could regulate what goods were sold to tribes, and the price and the quantity of those goods. Finally, the law made trespassing on Indian land illegal.

Fifty years later, the government, believing the customs of white people were superior, adopted a policy toward the American Indian that said Indians should not live communally, as was their cultural inclination, but should be “more like us,” living on individual homesteads. For Indians, who did not understand or agree with the concept of “private property,” the policy made no sense. Nature, they believed, was a grand and glorious host to human beings, not the other way around.

The General Allotment Act of 1887 permitted the U.S. president to portion off tribal land in 40-, 80- and 160-acre parcels, or allotments, to individual members of Indian tribes. After all “eligible” Indians received their parcels, the federal government would buy the remaining land and that money would be spent to “educate and civilize” the Indians.

Forty-one million acres were eventually parceled up, but the experiment was a disaster. The notion that Indians would become farmers, and learn what they needed to learn by simply having white farmers as neighbors, was ill conceived. They were given no serious agricultural education, and life as they had known it was completely disrupted.

The folly of the Allotment Act was acknowledged, finally, in 1934, when Congress passed the Indian Reorganization Act, which halted the allotment policy. This new policy recognized the cultural importance to Indians of a communal lifestyle and allocated funding to buy new Indian land, encouraging tribes to create their own tribal governments and to manage their own assets. The legislation helped to set up tribal business organizations, and required the conservation of water, soil, vegetation and timber on tribal lands.

World War II intervened, making it difficult for Indians attempting to restructure their lives in accordance with the act. Young men who might have become tribal leaders or accepted positions of leadership in the Bureau of Indian Affairs went off to war. Funding was reduced.

Many of the treaties signed a century or more ago with different Indian tribes today still hold the force of law. The challenge for the hundreds of tribes in the U.S. today is to not only continue to seek ways to nurture tribal life and to sustain a culturally distinct existence as nations within a nation, but to hold the federal government to its agreements made so many years ago.