American Federalism and Intergovernmental Innovation in State-Tribal Relations Erich Steinman University of Washington Relations between American Indian tribes and state governments are poorly understood; they have been inaccurately portrayed as exclusively or increasingly conjlictual. This study balances such perceptions and identifies constructive patterns of state-tribal relations that developed between 1970 and 2003. President Richard M. Nixon's 1970 policy ofIndian self-determination affirmed Indian tribes' survival; yet it failed, in the context of tribes' extraconstitutional status, to clarify their relationship to state governments. Since then, entrepreneurial tribal leaders have asserted sovereign governmental status while advocating practical and substantive cooperation with state governments in place of adversarial and legalistic relations. The partial success of these efforts has produced new intergovernmental mechanisms and the development of state-tribal relations as an ongoing and increasingly normalized category of intergovernmental relations, even amidst conflict over tribal gaming and a shifting political and legal environment. American Indian tribes and state governments have long been engaged in conflict over the control of Indian reservation land and residents. Most commonly, tribes have struggled to maintain the exclusive control they originally enjoyed at the time of each reservation's creation by the federal government. As one group of legal scholars observes, "One of the clearest and most persistent themes involving Indian sovereignty has been the continuous struggle by the states to assert greater control over Indian reservations, either at the expense of the federal or tribal governments." 1 Similarly, others note: "Exercises of state power have continually come into conflict with tribal self-government. . . . In case after case, states and municipal governments as subdivisions of the states, have stretched to assert their governmental authority over Indians and their territory." 2 Because of state encroachments, states have been understood as the "deadliest enemies" of tribes, as famously noted by the U.S. Supreme Court in 1886. 3 Conflict between tribes and states reflects the federalist division of powers regarding Indian affairs as declared in the United States Constitution. Since AUTHOR'S NOTE: I wish to thank John Kincaid for editorial assistance, the three anonymous reviewers for their helpful comments and suggestions, and Katherine Friedman, Gary Hamilton, Alexandra Harmon, Debra Minkoff, David Olson, Alan Parker, John Skrentny, and Bartholomew H. Sparrow for advice on the overall project. I would also like to thank the many individuals who agreed to be interviewed for this study. 'Robert N. Clinton, Nelljessup Newton, and Monroe E. Price, American Indian IJIW. Cases and Materials (Charlotlesville, VA: Michie Company, 1991), p. 493. 2 David Getches, "Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government," Review of Constitutional Studies 1 (1, 1993): 136. "U.S. v. Kagama,U% U.S. 375 (1886). © Publius: The Journal of Federalism 34:2 (Spring 2004) 95 Downloaded from https://academic.oup.com/publius/article/34/2/95/1823046 by Libraries of the ClaremontColleges user on 18 March 2025