Tribal Casino Labor Relations and Settler Colonialism

Sovereignty provides the legal basis for tribal casinos in the United States. However, since the industry’s rapid growth (valued at $34 billion for 2019), courts are now revisiting decades-old precedents in federal Indian law to reinterpret policies in ways that add new constraints to tribal sovereignty. Because tribal casinos often employ large numbers of non-Native Americans, tribal casino labor relations have become a new arena for contests over the boundaries of tribal sovereignty. This article investigates recent tribal casino labor relations court rulings (e.g. Little River, Soaring Eagle, and Pauma) through the lens of settler colonialism in order to understand new revisions to legal precedents. It argues that settler colonialism continues to underlie federal policies and that the growth of tribal casinos reveal that the federal government may intervene to undercut tribal sovereignty.

Federal Indian Law

Federal Indian law (FIL), also known as American Indian law, is the body of doctrine that regulates the political relationship between American Indian and Alaska Native governments and the federal government. FIL is best understood as the development of this “government-to-government” relationship, which intersects with other bodies of law like constitutional law, criminal law, and environmental law. FIL is comprised of legal doctrines, statutes, judicial decisions, treaties, and executive orders, all of which have direct influences on the rights and sovereignty of Indian tribes. In the United States there are 573 federally recognized tribes that are subject to the rights and privileges, as well as the consequences, of FIL. These federally recognized tribes are the third sovereign authority in the United States—the other two are states and the federal government—that retain inherent rights and that exercise and enjoy sovereignty and self-governance on their own lands. The historical development of FIL in the United States constitutes an important starting point in understanding the special relationship between Indian tribes and the federal government. The origins of FIL lay in three US Supreme Court cases known as the “Marshall trilogy,” after Chief Justice John Marshall, the presiding chief justice of Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). At that time, the primary questions centered on the sovereign rights of Indian tribes, that is, whether Indians have dominion over themselves and their lands. Throughout the development of FIL, until today, questions of Indian tribal sovereignty—or Indigenous nation sovereignty—remained contentious as Indians continued to fight for treaty rights, autonomy, and self-determination. FIL can be described as a series of wins and losses for American Indians in their fight for sovereign rights. In the end, however, the study of FIL is equally the study of how the United States was able to legally subjugate America’s indigenous peoples and acquire their lands. FIL is basically the study of America’s justification for Native America’s colonization and the genocide perpetrated against American Indians. The literature on FIL or American Indian law is vast, but the most valuable resources are authored by and for attorneys and for students of law. Although the disciplines of Native American and Indigenous studies encompass facets of American Indian and Indigenous peoples’ lives, scholarship in FIL has proven to be beneficial. The resources cited in this article represent some of the widely used texts that provide a solid foundation for studies in FIL.

Native Acts, Immigrant Acts: Citizenship, Naturalization, and the Performance of Civic Identity during the Progressive Era

This article reveals the complicity of immigration restriction laws and federal Indian policy with organized Americanization in legislating an imagined, desirable “new American” at the beginning of the twentieth century, when resurgent nationalism threatened to restrict undesirable immigrants as it also sought to assimilate Indigenous people into a mass of Americanism. While the immigrant has figured in the U.S. national imaginary as someone who desires America, the American Indian was not desired to enter into political membership—although Native land was desired, and subsequently taken by settlers through strategies of dispossession written into federal Indian law. This essay argues that the Indian—read as an imagined category with little connection to the lives of Native people—occupies an anomalous position in the legal history of naturalization, finalized with the passing of the Indian Citizenship Act in 1924, at the same time that racist immigration restriction quotas also limited the entrance of new immigrants into the United States through the 1924 Johnson-Reed Immigration Act. For Native people, Americanization and the imposition of citizenship were extensions of colonialism, adding one civic status over another—domestic dependent, ward, or U.S. citizen. For new immigrants hailing from southern and eastern Europe, forced by economic and cultural constraints to relocate to the United States, in contrast to their Anglo-Saxon or Nordic settler predecessors, Americanization meant a renunciation of political allegiance to other sovereigns, the acquisition of English, and civic education for citizenship. This essay challenges the myth of America as a “nation of immigrants,” and the settler colonial nation-state's ongoing infatuation with its colonial project as it continues to erase Indigenous presence and sovereignty.

Religion as Collective Right

This chapter considers efforts to legislate Native American religious freedom in the American Indian Religious Freedom Act (AIRFA, 1978). Where courts and even common sense have seen AIRFA as a religious freedom statute—as an extension of the legal protections of the First Amendment into the distinctive terrain of Native American traditions—the chapter suggests a different view. If the legal force of “religious freedom” discourse has been only dimly effective for Native sacred claims in courts, this chapter is the one that most pointedly shows how Native peoples drew on the rhetorical power of the sacred and religious freedom to win significant legislative protections specific to Native peoples. It does so through interviews with Suzan Shown Harjo. These interviews show how the remarkable legislative accomplishment of AIRFA and, later, the Native American Graves Protection and Repatriation Act (1990), carry the rhetorical force of religious freedom into the legal shape of federal Indian law, with its recognition of treaty-based collective rights and the United States' nation-to-nation relationship with Native peoples.

Religion as Collective Right

This chapter discusses repatriation law and a cluster of legal cases involving possession of ceremonial eagle feathers, where courts have consistently affirmed the collective contours of Native religions. Courts have upheld an exemption to the criminal penalties for feather possession tailored to members of federally recognized tribes against legal challenges by individual practitioners of Native religions who are not members of those tribes. These cases illustrate well the difficulties and the possibilities of religion as a category encompassing collective Native traditions. The coalition that persuaded Congress in 1994 to pass the Peyote Amendment to AIRFA was successful in part because it was largely the same circle of advocates, lawyers, tribal spiritual and political leaders, and allies who had recently won congressional passage of two repatriation statutes: the National Museum of the American Indian Act (NMAI) in 1989 and the Native American Graves Protection and Repatriation Act (NAGPRA) the next year. The chapter thus tells the story of Native-led efforts to secure these two laws and offers an interpretation of them not as religious freedom laws, but primarily as additions to federal Indian law that encompass religious and cultural heritage.

Religion as Weapon

This chapter offers crucial historical context and shows just how freighted the category of religion can be for Native peoples. Religion, or its absence, served as a key instrument in the legalization of the dispossession of North America, first through the legal Doctrine of Christian Discovery, which continues to inform federal Indian law, and second through the criminalization of traditional religions under the federal Indian Bureau's Civilization Regulations from 1883 to 1934. As devastating as the regulations and their assemblage of civilization with a thinly veiled Protestant Christianity were, affected Native people strategically engaged religious freedom discourse to protect those threatened practices that they increasingly argued were their “religions” and protected under religious liberty. Even as the government and missionary sought to curb Native religious practices thought to retard civilization, Euro-Americans began in earnest to fantasize about a Native spirituality that they could collect, admire, and inhabit. But while this awakened Euro-American appreciation for Native cultures served to help lift the formal confines of the Civilization Regulations in the 1930s, it has continued to beset Native efforts to protect collective traditions.

Religion as Peoplehood

This chapter extends the discussion of “Religion as Peoplehood” beyond the very real limits of federal Indian law. It explores the possibilities and drawbacks of increasing appeals to Indigenous rights under international human rights law. The possibilities of the United Nations Declaration on the Rights of Indigenous Peoples are quite rich, as are its implementation apparatus for protecting Native religions under Indigenous rights. However, without having to define them as such, the approach is slow to grow domestic legal teeth in the United States. Its incremental development as authoritative law can, as this chapter shows, be strengthened by making clearer associations with U.S. religious freedom law.

Religion as Peoplehood

This chapter concerns claims to the religious in federal Indian law as part of broader claims made in the register of sovereignty. It follows a number of crucial cases that concerned the shape of treaty-protected rights to fishing, hunting, and gathering off-reservation, notably those in the Great Lakes region and the salmon cases in the Pacific Northwest, rulings that cleared the way for the Makah whale hunt. The chapter argues these cases are not simply about political sovereignty or about the economic value of the treaty rights. They are also about the religious and cultural importance of those sacred practices and how the practices themselves constitute peoplehood. It also signals where protecting religion as peoplehood, under international law and especially under federal Indian law, can have its limits, particularly in the short term.