Why Can't Dick Read?: Dick Day's ignorance of treaties and the constitution


In a disturbingly dishonest op-ed entitled "Minnesota's tribes have it both ways," Republican state senator Dick Day repeats old anti-Indian canards in a callow, self-serving way.

This piece is irresponsibly simpleminded and should not go unchallenged. It is ignorant of history, of the U.S. Constitution, of modern law, and of ethics.

It is also sadly representative of most politicos' understanding of Indian tribes and their relationship with other American governments. Let's talk about Indian law for a second.

The larger point of Day's argument -- he wants to build a racino for gaming revenue -- is fine for what it is. If Minnesota's legislature wants to approve Day's plan, fair enough. But when he gets into the "tribes have it so easy" nonsense, he's clearly out of his depth.

Case in point: Day mutters -- unsupported and devoid of context -- standard anti-Indian talking points like these:

"Domestic dependent nations" is the label that the U.S. Supreme Court has assigned to the relationship of Native American tribes with the U.S. government and the state of Minnesota. "Dependent" is the word that catches my attention. The tribes are dependent on a lot of state services that we all benefit from, but they alone are exempt from paying for those services.

Of course, it's not at all the way Day paints it. In exchange for all the land that now makes up the state of Minnesota, tribes bargained for certain guaranteed rights. The right to fish, the right to maintain a land base -- rights they'd had since time immemorial anyway.

This is one of those "even if it were true, so what?" sort of arguments -- tribes gave up all of the land that is now Minnesota, land of immeasurable value. Even supposing it were so simple as Day indicates, this is a sweetheart deal for non-Indians anyway.

Then there's the sovereignty issue. If we had taken the law seriously since the treaties were signed, tribes would be considered fully sovereign nations, not "domestic dependent nations." The constitution itself prohibits treaties between any two parties with less than full sovereignty -- states can't make treaties, for example. Which means the tribes have to be fully sovereign, or else the treaties are void, and the U.S. has no title to the land Indian people gave up.

(By the way, Article 6, Section 2 of the U.S. Constitution declares treaties to be the "supreme law of the land," on a par with the constitution itself. Inviolable.)

Some Indian scholars have noted -- correctly -- that tribes should be under no legal obligation to enter into these state-tribal gaming compacts at all. They're sovereign nations; France doesn't have to ask Minnesota for permission to build a casino, and neither should the Mille Lacs band.

Day blames Democrats' desire to preserve an Indian gaming monopoly for his bill's repeated failure. He should look in the mirror rather than resort to the race-baiting red herring of Indian gaming. Day's proposed racino has little or nothing to do with tribal business, despite him using this opportunity to push a wedge issue.

So how did tribes get to be declared "domestic, dependent nations"? Political expedience. In Cherokee Nation v. Georgia, John Marshall used the phrase, declaring that tribes were "in a state of pupilage" and that "their relations to the US resemble that of a ward to his guardian."

This was then, and remains, nonsense of the highest order. The U.S. had yet to encounter a single tribe west of the Mississippi, and yet all Indian nations were suddenly wards of a state they'd never encountered. Stunningly, Marshall's ruling was actually liberal for the times -- it was designed to undermine Andrew Jackson's murderous Cherokee removal policy. Still, it created unjustifiable law.

You'll note, despite that last reference to the Cherokee Trail of Tears, that none of what I've just written depends on what Day calls "wrongs we committed in the past."

These wrongs -- land theft, denial of treaty rights, suppression of religion and culture, and yes, genocide -- should absolutely not be minimized. They should also not be characterized as "past," given that the wounds inflicted continue to affect Indian people today, and that the federal government continues to mismanage funds rightly owed to native people, costing them billions.

But if you don't want to consider that history, fine. Consider it a strict legal relationship rooted in that most American of documents, the constitution itself. Both sides signed treaties. Minnesotans got land on which to settle; tribes got a trust relationship to preserve their sovereign rights in perpetuity. If you're happy with one half of the exchange, you have to accept the other half.

Treaties are a solemn oath sworn between two fully sovereign nations. When a politician like Day seeks to undermine them, it is a sign that the politician either gravely misunderstands the law -- or cares nothing for honor and decency. Which is it, Dick?