INDIAN CASINOS BRING PROBLEMS OF NON-FEDERAL TRIBES INTO FOCUS

JACK D. FORBES

Non-federally recognized tribes have been around for a long time. In fact, all tribes were non-federally recognized until the Continental Congress began to negotiate treaties with some Native nations in the 1770s. But the new U.S. federal government chose to concentrate its attention upon nations found west of the Appalachians or in Florida, ignoring virtually every tribe located within the core boundaries of the original thirteen states. The eastern tribes, in spite of the new federal Constitution which established federal supremacy over "commerce" with the tribes, were left to flounder in a sea of neglect, racism, and ambiguity. Things have not changed all that much in two centuries!

The issue of sovereignty is at the heart of current disputes over the opening of casinos by Native communities. It is generally conceded that federally-recognized tribes possess a residue of sovereignty (self-rulership) which enables them to use their land base in self-determined ways not subject to state laws (except in certain cases). However, it is not generally recognized that state-recognized tribes which possess reserved lands (formerly known as "Indian towns" and later as reservations), also are likely to possess the same degree of sovereignty as federally-recognized tribes. More on this later.

On both the east and west coasts there are a number of Indian communities which are not federally-recognized, such as the Poospatuck (or Unkechaug) of Long Island. Some of these tribes have lacked any communally-owned land base, while others like the Poospatuck, the Mashuntucket Pequot of Connecticut, the Pamunkey and Mattaponi of Virginia, and the Penobscot and Passamaquoddy of Maine have managed to hold on to at least part of their reserved lands or towns. Over the years, many such groups have managed to achieve federal-recognition, much of it during the 1930s and 1940s when the Bureau of Indian Affairs began to search out "lost tribes" from Louisiana to New England. Others, such as the Narragansett of Rhode Island, the Creeks of Alabama, and the Penobscot of Maine had to wait for a more recent phase of "re-recognition."

Unfortunately for tribes such as the Poospatuck and many others on the east coast, state recognition, and long acknowledgment of their existence by experts in Indian history, have not combined to lead to federal acknowledgment, except through a very cumbersome and tedious process which has currently bogged down (as much because of politics and fear of casinos as for any other reason). Another factor involves our country's "love affair" with racism and stereotyping, a factor which very much affects most eastern tribes (though not all). Tragically, white people have come to believe that Native Americans should physically resemble the Sioux or Navajos seen on television, or the Italians playing Indians in old Western movies. Our school books and films do not explain to the public that eastern Native communities were often places of refuge in the colonies and states, places where the laws of racial segregation did not apply.

From New England to Florida most Native tribes provided homes for persons of mixed white and Native, Black and Native, and other combinations of ancestry. As a result many eastern Indians began to partially resemble African-Americans (and, indeed, large numbers of African-Americans have American racial ancestry in any case, from the Caribbean as well as from the United States itself). This presents a challenge, then, for white people obsessed with stereotypes. They might be willing to accept a white-Indian mixed person as an Indian, but their racial sensitivity balks at recognizing a person of part-African appearance as being a descendant of Uncas or Chingacook!

In my book AFRICANS AND NATIVE AMERICANS I go into great detail about the mixture of Africans and First Americans, but here it is enough to say that being a tribal member is not determined by one's racial mixture but by one's membership in a historic community with a legacy of self-rule. That brings up a key issue, one currently being raised by the Poospatuck. Where does Indian sovereignty stem from? It clearly does not come from federal recognition since the federal government could never extend sovereignty to a community located within the boundaries of a state (and every tribe is, nowadays, located within a state's external boundaries). Instead it has to stem from the ancient self-rulership passed on from generation to generation. Thus one can argue that state-recognized tribes with a land base, such as the Poospatuck, are entitled to develop casinos on their land even without federal recognition, on the very same terms as any federally-recognized tribe located in New York state.

One can argue, in any case, that all state-recognized tribes automatically acquired federal status when the U.S. Constitution was ratified by the states, which thereby voluntarily ceded jurisdiction to the central government over "commerce with the tribes."