Connection between Indian Gambling and Economic Situation in Native Tribes
Reaffirming this rule just three years later, the Court explained that “the idea that relations between this Nation and the Indian tribes are a political matter, not amenable to judicial review… has long since been discredited in the taking cases, and was expressly laid to rest in Delaware Tribal Business Comm. v. Weeks.” 29 Thus, while Congress has power “to control or manage Indian affairs,” that power extends to “appropriate measures for protecting and advancing the tribe” and is further “subject to limitations inhering in a guardianship and to pertinent constitutional restrictions.” 30 In short, Indian rights are no longer excluded from the protection of the Constitution.
In these decisions, the Supreme Court also articulated the standard of review under which the constitutionality of Indian legislation is to be tested. That standard requires that the legislation “be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians …” 31 Applying this standard, the Supreme Court has critically examined federal legislation affecting Indians to determine whether it comports with constitutional limits imposed on Congressional power. As a result of that analysis, the Court has set aside those enactments that contravene the Fifth Amendment 32 —or has held the United States liable to pay just compensation. 33
Federal Policy: Failure of the “Trust Responsibility” and Alternative Revenue Source to Indian Gambling
One fact that is not in dispute is the federal government’s responsibility for the welfare of the Indian tribes and their members. In the Cherokee decision, Chief Justice Marshall described the relationship between the federal government and the Indian tribes to “that of a ward to his guardian.” This “trust relationship” is a term derived from treaties between the United States and Indian tribes involving massive land successions and the fact that the title to Indian lands is held for tribal members “in trust” by the federal government. It has also come to mean that, among its other obligations, the protection of tribal members and the promotion of their economic and social well-being is the responsibility of the federal government. All observers agree that, in this regard, the federal government’s record has been poor, at best.
The statistics are disheartening. According to U. S. government figures, the rates of poverty and unemployment among Native Americans are the highest of any ethnic group in the U. S., whereas per capita income, education, home ownership, and similar indices are among the lowest. Statistics on health care, alcoholism, incarceration, and so forth, are similarly bleak. As summarized by Senator John McCain (R-Arizona) during a Senate debate:
Nearly one of every three Native Americans lives below the poverty line. One-half of all Indian children on reservations under the age of 6 are living in poverty.
On average Indian families earn less than two-thirds the incomes of non-Indian families. As these statistics indicate, poverty in Indian country is an everyday reality that pervades every aspect of Indian life. In this country we pride ourselves on our ability to provide homes for our loved ones. But in Indian country a good, safe home is a rare commodity.
There are approximately 90,000 Indian families in Indian country who are homeless or underhoused. Nearly one in five Indian homes on the reservation are classified as severely overcrowded. One third are overcrowded. One out of every five Indian homes lacks adequate plumbing facilities. Simple conveniences that the rest of us take for granted remain out of the grasp of many Indian families.
29 United States v. Sioux Nation of Indians, 448 U. S. 371, 415 (1980). 30 Sioux Nation of Indians, 448 U. S. at 415. 31 Delaware Tribal Business Comm, 430 U. S. at 85 (quoting Morton v. Mancari, 417 U. S. 535, 555) (1974). 32 see Hodel v. Irving, 481 U. S. 704 (1987). 33 United States v. Sioux Nation of Indians, 448 U. S. 371, 415 (1980); Menominee Tribe v. United States, 391 U. S. 404 (1968); United States v. Alcea Band of Tillamooks, 329 U. S. 40, 54 (1946).