Tribes' issue of sovereignty requires expert counsel
Guest viewpoint - Brian Cole
September 17, 2005
Siuslaw News
Florence, Oregon

The casino in Florence has been and is a very talked about issue, and the issue of tribal sovereignty is a reality the Florence community must come to terms with.  The concept that the 90-tribal-acres will continue to represent the sole geographic "sovereign footprint" within our community is shortsighted.  The issue of a tribe's ability to expand sovereign land holdings must be considered and clearly understood, and thus the impact this "uncontrolled" growth may have should be contemplated.  It should also be noted that tribal land holdings, whether sovereign or not, come off the tax rolls.  A tribe known as "Graton Rancheria" has voluntarily waived some of its sovereign immunity in its willingness to work in cooperation with the community in Sonoma County, California, in order to show that it truly cares about those who live there.  Thus it would appear that negotiating a Memorandum of Understanding (MOU) with a recognized tribe is the time to deal with real issues and concerns. 

Have we researched the issue of tribal gaming in order to understand the sovereignty issues and how they might impact our small city? 

Can we put together a plan that will allow both entities, the tribe and the non-tribal community, a long-term working relationship?

It would appear that many newspapers and news media fail to address the issue of federal Indian sovereign policy or tribal government of Indian casino activities, possibly for fear of either being politically incorrect or losing a large (casino) advertiser, or both.  It has been said that the perception of tribal sovereignty from the eyes of tribal leaders is that it is "inherent since time immemorial" and predates (some say supersedes) the U.S. Constitution and state constitutions.  This cultural perception of tribal sovereignty surely works well internally with the Indian culture.  It would, however, create concern outside the tribal cultural circles in a country such as America that denounces royalty or birthright privileges in its Constitution and strives for equality for all Americans.

Actual quasi-dependent tribal sovereignty, as granted to federally recognized Indian tribes by Congress, is a grant by Congress through its plenary powers and exists at the pleasure of Congress. 

Florence citizens may want to learn the difference.

The people of Florence and the surrounding community must understand the complexity of dealing with a sovereign power.  Considering the upcoming sewer connection election to service the tribe (enabling the tribe to expand its activities), the long-term relationship that may exist with the tribe as neighbor, as well as its ability to expand its sovereign holdings (including commercial activities) requires Florence to consider a whole new realm of complex questions and issues.  Zoning rules and regulations and local planning regulations and requirements do not apply to sovereign tribal lands, current or acquired.  The process of negotiating any sewer connections with a sovereign tribe may enable such issues to be discussed and mitigated.

Unfortunately, it appears the only true current interests may be one of money offered by the tribe to the city.

Of course, fire departments, libraries, schools, police departments, etc. are all happy to get money.  An issue such as planning pertaining to the growth of the sovereign holdings and the impacts their growth may have on Florence has not been recognized and discussed.

What potential exists for a wealthy tribe to acquire via purchase much of the currently privately owned lands, business enterprises, and such and become the primary entity controlling much of our current city?

Can the tribe grow faster than our city?

Could our existing businesses and enterprises safely compete with a monetarily powerful sovereign entity and can our residential neighbors withstand a potential onslaught of uncontrolled commercial activity amongst their midst?

Have we considered what might possibly be needed to protect our small community from these sovereign issues?

Florence has every reason to research, organize, and take the time necessary to determine the future of their community so it seems reasonable and prudent that we understand the concept that "tribal sovereignty is a reality that the community must come to terms with."  It is important to understand that there are three sovereignties addressed in the U.S. Constitution:

1.  that of the federal governments,
2.  that of states, and
3.  that of the body-politic (citizens).

The fourth "quasi-dependent" tribal sovereignty is merely a temporary grant by Congress (several tribes have been de-recognized) subject to termination if need be.  The words "federally recognized" in front of "Indian tribes" should make it clear that the federal government has ultimate power when dealing with "sovereign tribes."  Thus it would appear that some form of federal ratification should occur pertaining to any Memorandum of Understanding.  The issue of our state's power has come into question and may or may not be decided.  What power we the citizens of the Florence community have has yet to be determined.  A well-informed Florence electorate will help considerably.

It should be noted that Florence citizen sovereignty and the sovereignty of their state are "permanent", neither "quasi" nor "limited" by Congress.  Hopefully, Florence citizens will not be required to confront bad government decisions at the local, tribal, state and the federal level merely because of political correctness.

The sovereign issues coming forth require expert counsel, considering the complexity of "tribal sovereignty" and the federal jurisdiction.  Hopefully, our city council and city staff recognize this need, and will pursue an avenue of prudence when negotiating and putting together a plan to come before the voters.

Brian Cole, Florence