Americans have never really understood Native Americans. A Native person, to many Americans, is a composite of race-based misconceptions and icons. Their most recent misconception is that we are all getting rich from casino money. One of the older ones, however, is that we don't pay taxes.
This latter misconception has an explainable source, though.
The British colonists, who eventually revolted, had a protestant notion about us, that we weren't really human beings. They had occasionally encountered Indians who had abandoned their tribal ways. As they began to craft an American political system, they tied the number of congressional representatives for each state to the number of people who lived within the state's boundaries. In a concession to the Old South whose white populations were sparse, the northern states agreed to let slaves be counted as three-fifths of a person (even though they couldn't vote). And they added into the newly drafted text that any count could not include "Indians not taxed."
These three words actually stood for a cultural recognition circa 1787. There were two types of Indians living in American colonial society: those who were taxed, and those who were not. Those Indians who were taxed had abandoned altogether their tribal ways. They broke their connections to their tribal relatives. They dressed in the white way. The Indians who were not taxed continued to maintain their ties to tribe and tradition. America had no expectation or intention to tax these kinds of Indians.
Native peoples went without taxation for many decades after these words were scribed within the Constitution. Those who chose white society, however, found themselves obliged to pay taxes. But no Indian, taxed or untaxed, was a citizen of the United States. That changed in 1924. The United States made all Indians into citizens of the United States. Some Native peoples rejoiced. But the U.S. had no constitutional authority to annex our souls - there was no consent given, on our part, to join the federal Union. Within 10 short years we were deemed by the U.S. Supreme Court to be obliged to yield to the inevitable: U.S. domination ? and taxes.
But let's do some math. By the last U.S. census Native Americans numbered around 2.725 million. Everyone considers that number to be an undercount. Estimating that one-third of that number pays taxes as adults, and giving a random $2,000 per person in taxes means that Indians pay $1.8 billion each year. Certainly the figure is probably much higher. And that doesn't account for state income taxation, sales taxes and other forms of federal and state taxes.
What may be most troubling about the taxation of Native peoples is not the heavy-handed manipulation of questionable legal principles, but rather the impropriety of exacting ransom from peoples who are regularly considered to be the most destitute in American society. We lost the American continent at the barrel of a gun. In so doing we created a real estate market that supports a significant portion of the American economy. One might say we've already made our perpetual contribution. The courts devised a conceptual compensation for these losses in the form of the trust responsibility. The trust is best exemplified by the BIA budget, which this year measures at $2.34 billion. If the figure for income taxes paid by Natives is even close to correct, we are paying for 77 percent of the trust responsibility.
So why are we financing the trust responsibility? Some would argue that it constitutes our share of the costs of the American infrastructure: its roads, its schools, its economy. But these are things we did not ask for, and surely, in many respects, have had little control over. This BIA budget shrinks annually as if the American public owes us less and less for their immense land base and the manner in which it contributes to a stable economy. America would like to dispense with every sense of guilt. To them, the trust responsibility is a reminder. A better way to dispense with guilt, however, would be to honor the trust, and, in the long run, to avoid forcing the Indian world to finance its own birthright. Issues of taxation were enough to fuel the American Revolution, and that should give us hesitation to think.
There are always darker sides to legal and moral iniquities. Thousands of Native people, indeed, do not pay taxes. They live in the shadow economy fighting poverty with the tools of barter, cash and anonymity. These are Indian people who trade cattle, sheep, firewood, cedar posts and jewelry for services and cash. Cash goes unreported. Thousands more fail to file income tax returns. Our traditional survival mentality prompts us to hide as criminals for our failure to address this tax dilemma, finding ways to avoid detection, using silence and exile, as we have for decades, against the controlling pathology of the white man, now disguised as the IRS. Is it any wonder that we feel we have to hide, that we have our own evasive pathology? This is no way for Indian people to have to live.
Since 1924 we have put up a docile resistance to taxation. Granted, we occasionally challenge one state tax or another. By our silence in the face of the federal tax coercion regime, though, we have surrendered the legal principle embodied in the original understanding of the "Indians not taxed" clause: the American colonists never contemplated our inclusion in the political entity they were creating. The Congress of 1924 was motivated by an imperfect notion of social engineering that departed wholly from the foundational understandings of the Congress of 1787 and muddied the legal waters. Professor Frank Pommersheim has designated Supreme Court decisions that ignore the fair meaning of the U. S. Constitution as "extraconstitutional." That is just a bit too kind, and, perhaps, serves to legitimize these kinds of decisions. The open use of the word "unconstitutional" might better highlight that these decisions are unjust.
Native peoples may associate "taxes" with "citizenship" and, thus may feel squeamish that their tribal membership may provide them with their only source of political identity. But the struggle to protect tribal sovereignty does, at times, come down to the behavior and attitudes of individual Indians. Tribal sovereignty means little if we cannot call for principled understandings about the line that exists between the U.S. and our tribal peoples. Certainly, an honest jurisprudence might force the Supreme Court to question the legal basis for the Indian Citizenship Act of 1924 and, otherwise, might end the taxation of Native peoples. In the process, our sense of propriety might get scrambled. But, obviously, in these are times when what is "just" or "right" is at issue, a refined conscience is most needed by us all.
Judge Carey N. Vicenti, a member of the Jicarilla Apache Nation of northwest New Mexico, currently serves as an Assistant Professor of Sociology at Fort Lewis College in Durango, Colo. He sits as a judicial official for several American Indian nations and is a columnist for Indian Country Today.