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New Tribal-State Relations

Oregon and Wisconsin are two states that take their relationships with Native American tribes seriously.

All of the 50 states recognize the sovereignty of tribal governments. And generally speaking, the relations between state authorities and Indian nations are cooperative and mutually beneficial. But two states in particular, Oregon and Wisconsin, have taken these ties even further. The other 48 can learn something from them.

The governors and legislatures of both Oregon and Wisconsin not only recognize the unique legal status of Indian tribes, they actually embrace formal relations with them. These states go so far as to formally acknowledge that Indian nations and tribal governments existed before the U.S. and its constituent state governments were formed. This kind of recognition can help resolve possible conflicts, clarify jurisdictions, avoid court battles, and establish its own form of domestic tranquility.

But that is atypical. State governments have traditionally been—and to a large extent still are—indifferent and even hostile to tribes. Most of them do not have formal understandings defining relations with federally recognized Indian governments and nations. Some states, including the original 13, do recognize some tribal communities under state laws. But the federal government does not supply trust protections to state recognized tribes that are not also federally recognized. Indeed, many states treat Indians as state citizens when they live and work off-reservation, while leaving reservation administration to the federal government.

This morass of competing laws and jurisdictions has been wrangled about for a long time. The landmark cases Cherokee Nation v. Georgia (1831) and Worcestor v. Georgia (1832) were concerned with verifying tribal government territorial and jurisdictional powers against the Peachtree State, which wanted to assume control over Cherokee territory and nullify the Cherokee government. But the U.S. Supreme Court ruled that federal law, based on treaties and the Constitution itself, had to prevail. Since then, federally recognized tribes have gained federal trust protection against many intrusions from state governments that did not conform to laws made by the U.S. Congress. In fact, it’s fair to say that without that consent and enabling legislation, states could not govern over tribal lands and communities.

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So where do Oregon and Wisconsin figure in all this? Simply stated, they have taken steps to smooth out tribal dealings by establishing state-tribal relations on a government-to-government basis, rather than dealing with Indigenous People as individuals without certain rights. In 1996, Oregon Gov. John A. Kitzhaber signed executive order EO-96-30, which states, “As sovereigns the tribes and the State of Oregon must work together to develop mutual respect for the sovereign interests of both parties. The relationships between our governmental structures can only be built through trust and mutual respect.” And that’s the way it now works. Oregon has formalized government-to-government relations with its nine federally recognized tribes, the better to improve mutual relations and conditions for tribal and state citizens.

Tomb of the Unknown Soldier, Ottawa, 2011.

Former Wisconsin Gov. Jim Doyle

This enlightened administration did not come to Wisconsin a bit later, until 2004. In that year, Gov. Jim Doyle signed “Executive Order #39 Relating to an Affirmation of the Government-to-Government Relationship Between the State of Wisconsin and Indian Tribal Governments Located Within the State of Wisconsin.” Applying to Wisconsin’s 11 federally recognized tribes, it declares that “the State of Wisconsin, a sovereign state with the United States, recognizes the unique status of Indian Tribes and their right to existence, self-government, and self-determination.” Although the wording is different, and the recognition came a bit later, Wisconsin like Oregon has found that its executive order can better serve all state citizens with minimal overlap and greater efficiency.

These orders, of course, didn’t happen overnight. Both Wisconsin and Oregon supported them with the appropriate legislation and means for local governments and state agencies to cooperate with tribal authorities. Wisconsin even established a special legislative committee for tribal-state relations, complete with tribal representatives, to review and propose legislation. But through such earnest means is tighter, friendlier state-tribal cooperation established. If other states have not yet learned this lesson, it’s time for them to do so.