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First Nations' Sovereignty Versus The Rights Of The States

Copyright (c) 2007-2023

When the Europeans established Jamestown 400 years ago this year, they came with the intention of creating a new American empire in the land of our fathers.

At times, the relationships between the European's and our native forefathers were good, and at other times, those relationships were strained or broken. To get a better idea of the level of civility and type of co-existent living maintained between our First Nation ancestors and the Europeans who settled our lands, take a look at the chapter that describes the early days of Jamestown here:

What Federal Recognition By The U.S. Government Originally Meant

Federal recognition of our independent Tribal Nations has always been a point of contention between our people and the states, as well as with the citizens of the United States.

Some Tribal nations have always received federal recognition from the U.S. government – recognition that our people constituted independent nations within a larger nation. Just as Rome is a legitimate, independent nation within the boundaries of Italy, our tribes are recognized as legitimate, independent nations within the boundaries of the United States.

Within the American legal system, our First Nations are considered to be "domestic" or "dependent nations," meaning that we have a special relationship with the U.S. Federal Government. We have recognition as "sovereign" nations, whose governments predated the existence of the United States.

Our sovereign status and our special relationship with the U.S. Government is supported by treaties, the U.S. Constitution, U.S. Supreme Court decisions, and federal mandate. Under the rules that govern our First Nations governments and our status within the U.S. legal system, only the U.S. Congress can override the rules currently in place. Despite this agreement, most of the actual authority has been transferred to the Bureau of Indian Affairs, under the care of the U.S. Department of Interior and defined as a "trust relationship."

As a federally recognized "dependent nation," we are entitled to write our own laws and enforce our own laws through our own justice system. As a federally recognized nation, we are able to collect our own taxes and provide our own government services.

As sovereign nations, our First Nations tribal governments have always had the same benefits that have been given to federal, state, county and local governments around the country. All of these governmental entities do not have to pay taxes to one another. It is just the way that it is done. Under our special trust relationship with the federal government, we also do not have to pay federal, state or local taxes on transactions processed within our jurisdictions... That is the way it was intended anyway.

Broken Trust

But, as history has told us, in the latter half of the nineteenth century the U.S. Government wrote and signed many treaties with our Tribal Nations. Then, within decades, the U.S. Government would break those treaties and insist on a new treaty. Even in our modern age, many governments have felt that any treaty that was once worth writing was also worth breaking presently.

During the 1950's, the U.S. Government broke its trust relationship with 109 tribes through a process called "termination." In effect, the U.S. Government terminated the special trust relationship they had held with these 109 individual tribes and declared that the tribes would no longer receive federal recognition or protection.

Terminated, But Not Broken

Although the "termination" process only displaced about three percent of the Native American population in the United States, it still impacted nearly 16% of the tribes that previously had federal recognition.

Over the last half-century, the members of "terminated" tribes have been fighting to regain their federal recognition as independent, sovereign nations within the borders of the United States.

Many tribes have succeeded in their quest to restore their trust relationship with the U.S. Government and their status as federally recognized nations. In 1977, the Confederated Tribes of Siletz won restoration, followed by the Cow Creek Band of Umpqua Indians in late 1982, the Confederated Tribes of Grand Ronde Community in November 1983, the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians in 1984, the Klamath Tribes in 1986, and the Coquille Indian Tribe in 1989.

In total, 562 tribes currently maintain their federally recognized status within the United States. As of April of 2007, six more tribes in Virginia have cleared the first hurdle towards restoration by getting a bill out of the House Natural Resources Committee authorizing such a move. The bill currently awaits approval by the full House of Representatives in its climb to legal precedent.

In order to get their bill out of committee, the Chiefs of these six tribal nations within the borders of Virginia had to agree to give up their sovereign right to operate casinos or other gambling operations on their tribal lands. See, the white man's government is always changing what it means for us to be a sovereign nation. Of course, the Congress will expect these six First Nation tribes to honor their agreement, despite the fact that the Congress was the first to break the treaty by implementing "termination" in the 1950's.

The Tax Man Knocks...

For generations, it was acceptable for our tribes to own our own stores and to sell products without any state or federal taxes on those transactions. After all, we were independent nations with governments that only had to answer to the Bureau of Indian Affairs in Washington, D.C. And, we have always held that special relationship with the federal government that exempted our government from any federal, state and local taxes, just as other government entities in the United States.

Starting in the 1960's and progressing through the 1990's, individual tribal nations began to get a handle on this thing called capitalism – you know, the American way. We finally started making some real money. Then it started happening...

Some of our First Nation tribal governments and business entities began to find themselves toe-to-toe with state governments and state troopers. We started seeing the state police swooping in to shut down our businesses and take our stock on the premise that we were not collecting state taxes on our transactions.

The contention between our First Nations and state governments across North America began to grow. By law, we have always been able to open our own stores and sell products without state or federal taxes applied to those sales. After all, we are a sovereign nation within a nation, with our own laws and law enforcement.

Our tax-free designation was all fine and dandy with the state and federal governments for generations, that is, until we actually started selling a lot of products and making a lot of money from sales to their citizens. Because our tribal governments permitted our tribes to sell gasoline and cigarettes, and our businesses were exempted from charging state or federal taxes, we were able to sell those items at a considerable discount from the prices offered in nearby municipalities.

Soon the taxman began to realize how much money he was losing when "his citizens" began shopping in "our stores" in great numbers.

The taxman was happy letting us sell our products without his taxes, so long as we remained poor and destitute, but as soon as we began making serious money that would allow us to better provide for our people, suddenly the state's taxman felt we should share our newfound wealth with him!

We Are Sovereign Nations... Or Are We?

The tax-free purchases made in our shops have made our tribal enterprises very attractive to the over-taxed American and even Canadian citizens.

Cigarettes and gasoline are two of the most heavily taxed products in North America, so U.S. and Canadian citizens rushed to our stores to buy our goods tax-free.

In most states, tag agencies set their auto tag prices by county. When citizens from one county rush over to another county -- or even from one state to another -- to buy cheaper auto tags, the states and counties don't raid their neighbors stores to recoup their lost taxes. But, when state governments see that they are losing tax money to the tribal shops, they are quick to move in and to force the tribes to renegotiate an agreement with the state, so that the state will return the goods the state took from our tribal governments. I am not saying this happens everywhere, but it certainly did happen in some cases in Oklahoma when the Oklahoma Tax Commission targeted the Tribal Smoke Shops.

Although we are sovereign nations, we seem to be a little less sovereign than the state's other neighbors.

As a result of Oklahoma's actions, it became law in 1991 that Tribal Smoke Shops must pay taxes to the Oklahoma State Government for any sales transacted with Oklahoma residents.

Later the U.S. Congress passed laws stating that when a buyer crosses a boundary to buy cigarettes or gas, then the Tribal shop must collect taxes for the neighboring state. However, the Senate bill exempted tribes from having to collect taxes for the states when those transactions are conducted over the Internet.

The ironic thing about this legal precedent is that the tribal nations must collect taxes for sales to state residents, but if those same residents cross state lines to buy goods, then the neighboring state is not required to collect taxes for the buyer's home state.

As a result, any Oklahoma citizen can cross the border into Texas and buy their goods and the Texas retailer is not required to collect taxes for the State of Oklahoma. But if that same Oklahoma resident drives to the tribal reservation to buy goods, then the tribe must collect taxes for the State of Oklahoma.

Are the tribal nations less sovereign than the states? It would seem so.

Sovereign Nations, Indeed

In the American judicial system, we First Nations' tribes are promised sovereign status within the U.S. legal system, but in practice, we are a little less sovereign than our State neighbors.

Our dispossessed nations, who are seeking reinstatement after termination, may just find that they need to sign away more of their own rights in order to gain recognition they seek.

For now, 562 nations within the First Nations' umbrella have their status as sovereign jurisdictions recognized by the U.S. Federal Government, and hopefully our status will be protected by the U.S. Government forevermore. But, if the past is any indication of the future, we will remain independent nations, so long as it remains the U.S. Government's whim to allow it to continue.

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Written by: Eagle Vale of The name is a merging of the Myspace concept, with "The Rez," from a television show of the same name that reflects life on the reservation in Northern Canada.

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