Newcomb: Indian casinos an exercise of self-determination

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With the recent hullabaloo over Indian casinos, (TIME magazine cover story, "Look Who's Cashing in on Indian Casinos," Dec. 16) a quick review of certain fundamental principles of American Indian self-determination is in order.

Indigenous nations and peoples have existed in North America for thousands of years, obviously long prior to the formation of the United States. In addition to other characteristics and qualities, every Indian people on the continent also is a body politic, or a distinct political community with its own governmental status.

The Kumeyaay nation is but one example of such longevity. For thousands of years the Kumeyaay people have been living in their traditional homelands in the region of what is now known as San Diego, extending down into Baja California.

Indian peoples, such as the Kumeyaay, consider themselves placed by the Creator in sacred and spiritual relationship with their homelands, as "a people distinct from others." They belong to the land. The Kumeyaay people constitute one such Indian nation, with their own language, culture, spiritual traditions and oral history that has been in existence for an unknown succession of ages.

The concept of Indian nationhood was best articulated in the U.S. Supreme Court ruling Worcester v. Georgia (1832). In Worcester, Chief Justice John Marshall said that the word "nation" simply means, "a people distinct from others." Contemporary Indian nations that were originally free and independent prior to the invasion of their sacred homelands by Christian European powers, even today continue to possess a distinctive political identity while situated inside the boundaries claimed by the United States.

This extremely brief summary of Indian nationhood brings me back to the topic of Indian casinos. Such casinos are an exercise of the principle that nations have the right to determine for themselves their own forms of economic development that will, in their view, most likely benefit their people. Such economic decisions are simply an exercise of the inherent political powers of every Indian nation.

Some people contend that Indian advocates justify casinos in Indian country with the argument that Indians are domestic dependent nations, subject to the "plenary power" of Congress. This contention, however, is both inaccurate and overly simplistic.

In 1831, in the case Cherokee Nation v. Georgia, Chief Justice Marshall said that rather than being regarded as "foreign states," the Indians "may, more correctly, perhaps, be denominated domestic dependent nations." The key words here are "may" and "perhaps." U.S. Indian law scholars often wrongly conclude that the Court held in Cherokee Nation that Indian nations are domestic dependent nations, when in fact Marshall was merely expressing the possibility that "domestic dependent" was an accurate designation.

Marshall clarified this ambiguity in the Worcester ruling one year later when he wrote that, "the settled doctrine of the law of nations is, that a weaker power does not surrender its independence - its right to self-government, by associating with a stronger and taking its protection." In 1836, scholar and Supreme Court reporter Henry Wheaton made this same point in his book "The Elements of International Law."

In Worcester, Marshall further said that the relation between the United States and the Cherokee Nation "was that of a nation claiming and receiving the protection of one more powerful, not that of individuals abandoning their national character, and submitting as subjects to the laws of a master." Taking this pronouncement as our cue, the correct political relationship between the United States and Indian nations (or, say, between Indian nations and the State of California) is diplomacy, and not a relationship based on a unilateral and wrongful exercise of U.S. "plenary power" over Indians.

True, Indian peoples and their advocates have said that Indian casino ventures are a course of economic development that serves to ameliorate the grinding poverty and oppression that Native peoples have been forced to endure for generations. But this is only true for the most fortunate. It is also important to remember that only some one third of all federally recognized Indian peoples have been able to benefit from this form of revenue generation. For those that do not have gaming, and even for some that do, the bad conditions brought about by institutionalized federal and state oppression persist in Indian country.

It is the birthright of every Indian nation to remain inherently free to define their own political status, and to freely pursue their economic, social and cultural development. Thus, Indian casinos should not be simplistically regarded as a form of reparations. Their establishment by Native political communities must be correctly viewed as one example of the exercise by Indian nations of their inherent and fundamental right of self-determination, also commonly known as sovereignty.

Steven Newcomb, Shawnee and Lenape, is Director of the Indigenous Law Institute, and Indigenous Research Coordinator at D-Q University at Sycuan, on the Reservation of the Sycuan Band of the Kumeyaay Nation. He is a columnist for Indian Country Today.