‘Before, we were invisible:’ How Minnesota’s most prosperous Indian tribe became a powerhouse in Washington

photo of mystic lake casino
MinnPost photo by Bill Kelley
A sprawling complex anchored by a 150,000 square foot casino and a tower with 586 hotel rooms, the Mystic Lake Casino boasts a 70,000-square foot conference and events space, an 18-hole golf course, and a 2,000-seat concert venue that regularly hosts performances.

It was a situation that persisted for years, and like many things in Indian Country, it seemed almost unbelievable to non-Native Americans once they learned about it: If a Native woman was assaulted, abused, or raped on tribal land by a non-Native man, tribal law enforcement could do nothing to prosecute him.

That’s because tribal authorities did not have the jurisdiction to prosecute any case involving someone who is not Native, leaving any offenses committed by a non-Native on tribal land in the hands of federal law enforcement authorities. But they often proved ill-equipped to handle violence against Native women: With few officers available to handle cases on reservations, which are often remote and rural, the U.S. government passed on prosecuting over two-thirds of sexual abuse-related cases in Indian Country, according to a 2010 report.

This translated into a dangerous — even lethal — state of affairs for Native women, who experience domestic and sexual violence at disproportionate rates compared to other groups in the United States. Policymakers in Barack Obama’s administration and in Congress wanted to do something about this, and they found an opportunity in 2011, as Congress took up the re-authorization of the Violence Against Women Act, or VAWA, the landmark 1994 law establishing more protections for victims of domestic or sexual violence, and more funding to investigate those crimes.

They proposed expanding the law to give tribes the authority to prosecute non-Native men charged with violent crimes against Native women. It would be a narrow start — the accused man would have to live on a reservation or work for a tribe in order to be affected — but it would still be a start.

Others in Congress, however, did not see the tribal VAWA provision as narrow, and it sparked a contentious debate that made the law’s reauthorization — usually a drama-free affair — a heated political battle.

The idea of extending tribal jurisdiction to non-Natives was concerning to a group of congressional Republicans: Even though advocates sought to assure them that non-Natives would receive fair due process like anyone else, some remained skeptical.

As lawmakers debated the issue in Congress and in public, an increasingly powerful and influential force went to work behind the scenes: lobbyists representing America’s tribal nations.

A handful of tribes led the way in advocating for their desired changes to VAWA, including one of the country’s most prosperous and powerful tribes: the Shakopee Mdewakanton (Mid-ah-WAH-kah-ton) Sioux Community.

Advocates for tribes recall an all-out push to get the new VAWA provisions through. Vice President Joe Biden got heavily involved, pressuring Rep. Eric Cantor, then the Republican majority leader, to get on board.

In February 2013, the efforts paid off. The Democratic-controlled Senate, along with a bipartisan coalition in the GOP-controlled House, sent a bill containing the new protections for Native women to Obama’s desk.

It was not a sweeping, unqualified victory; the bill established a pilot program on a few reservations to test out the new provisions, and it would be two years before all tribes could exercise this new authority. But it was still a victory, and one that tribal advocates and their allies look back on with pride as an example of something they might not have been able to accomplish ten, or even five, years prior.

After centuries of oppression in their homelands and decades on the sidelines in Washington, the VAWA victory was a clear sign that tribes had finally joined their peers — states, local governments, businesses and other groups — as forces to be reckoned with in the nation’s capital, on a broad range of issues.

And few tribes have been as central to that evolution as the Shakopee Mdewakanton Sioux.

Finding prosperity in Prior Lake

The big, purple shuttle buses leave from a lot of places — Minneapolis, St. Paul, Anoka, Brooklyn Park — but they all exit Highway 169 at the South Canterbury Road exit, in Shakopee.

The buses head south off the highway, beginning a four-mile ride through typical Twin Cities exurbia — a stout Hampton Inn, a Lowe’s, empty fields, scattered homes. They pass the Shakopee Mdewakanton Sioux Community Organic Recycling Facility, and then the Shakopee Dakota Convenience Store, and then Mazopiya, the Shakopee Mdewakanton Sioux natural foods market. The road follows gentle hills, dotted with trees and lakes that are lined with palatial homes.

Finally, the buses stop, and their passengers alight at their destination: the Mystic Lake Casino and Hotel, which sits in the middle of the Shakopee Mdewakanton Sioux Community reservation, looming over the 2,000-acre plot of land inhabited by the tribe.

Map: Shakopee Mdewakanton Sioux Community
The SMSC reservation, outlined on the map below in green, is located to the southwest of the Twin Cities, near Prior Lake.

A sprawling complex anchored by a 150,000 square foot casino and a tower with 586 hotel rooms, Mystic Lake boasts a 70,000-square foot conference and events space, an 18-hole golf course, and a 2,000-seat concert venue that regularly hosts performances. Across a vast parking lot from Mystic Lake — there is plenty of free parking — is the smaller, quieter Little Six Casino, which is lined with slot machines and blackjack tables.

Mystic Lake, Little Six, and the amenities that have sprouted up around them are what bring people, and their dollars, from miles around to this sliver of land near Prior Lake. The hotel bills itself as the Midwest’s “top casino destination,” and in terms of square footage, Mystic Lake’s cavernous casino floor is on par with Las Vegas brand names like MGM Grand and Mandalay Bay.

The gaming and hospitality business has been good for the Shakopee Mdewakanton Sioux Community, or SMSC. It’s also been good for non-Natives in the area: the tribe says that between Mystic Lake and other enterprises, like the natural foods market, it is the largest employer in Scott County.

For the SMSC, though, the gaming business, and everything that flows from it, has been truly transformative for their way of life. By most measures, the SMSC is among the wealthiest tribes in the country. It pulls in about $1 billion in revenue annually; for the tribe’s roughly 500 members, that translates into annual payments of about $1 million — a sum largely exempt from taxation, thanks to the tribe’s status as a sovereign government. (The tribe does not officially reveal how much each member receives per year; the $1 million figure was made public after a 2004 divorce case involving a SMSC member revealed he received monthly payments of $84,000 from the tribe.)

Tucked away from the bustle of Mystic Lake and Little Six, behind hills and roads with “no trespassing” signs at their entrances, are sprawling homes with luxury cars, boats, and boat-sized RVs in the driveways. In a rare interview given to the New York Times in 2012, the tribe’s then-chairman, Stanley R. Crooks, said the tribe has 99.2 percent unemployment. “It’s entirely voluntary,” he said.

The SMSC’s immense wealth has inspired its fair share of sensationalist tabloid stories. “Inside the richest native American tribe in the U.S.,” blared a headline from the United Kingdom’s Daily Mail newspaper. The article went on to detail the “almost unbelievable wealth” that exists on the reservation.

The real estate website Curbed did a feature on the “whales” — a real estate term for high-dollar property buyers  — of the SMSC, replete with satellite photos of the reservation’s massive homes.

The tribe uses its fortunes for a lot more than mansions and toys, however. The SMSC is a philanthropic powerhouse: It touts itself as the biggest philanthropic giver of any tribe in the U.S., and its giving rivals that of established Minnesota institutions like 3M.

The tribe says it has donated over $325 million, total, to various organizations and causes; in 2016 alone, it donated $18 million, with the bulk of that sum going to other tribes, nonprofit organizations, schools, and universities.

In the last 20 years, the tribe has also built itself into a political player, bankrolling political campaigns for politicians and lobbying campaigns in Washington. Since 1996, the SMSC has given over $3 million to candidates, party committees, and political action committees, making it a leading political contributor among all tribes in the U.S.

But they have directed more money toward lobbying efforts: Since 1998, the SMSC has spent $3.7 million lobbying Washington on federal policy and legislation, an average of $190,000 a year. While that’s a significant outlay, it’s not as much as some other tribes spend, such as the Pechanga Band of California, who operate immense gaming enterprises, and lobby intensely in D.C. over those issues.

Federal lobbying disclosures reveal that the SMSC, too, has actively pushed its gaming agenda in D.C. The bulk of the tribe’s lobbying activity has focused on blocking efforts to expand online gaming, and protecting tribes from certain federal labor regulations, to keep them in the same category as state and local governments.

Beyond gaming, though, the tribe has taken on a broad portfolio of issues, lobbying Washington on things like the implementation of the Clean Air Act and campaign finance reform — making it part of a small group of influential tribes that are lobbying on issues that tribes traditionally have not before.

In recent years, the SMSC has focused on food policy, looking at the federal Farm Bill and issues of nutrition and sustainability in tribal communities. It commissioned a newly released study looking at “opportunities” for tribes in the upcoming Farm Bill, the massive legislative package that determines federal agriculture and food policy for a five-year period.

Few, if any, members of the SMSC rely on Farm Bill programs. Food stamps and subsidized school lunches aren’t a necessity when tribe members pull in a reported $1 million per year.

But for other Native American tribes, these are life-and-death issues. The SMSC are one of a handful of tribes that have taken on a responsibility to lobby on behalf of those that can’t afford to spend much in Washington, and to engage on topics that are important to all tribes, not just to them.

Holly Cook Macarro is a lobbyist for tribes, and is a member of the Red Lake Band, an Ojibwe tribe in northern Minnesota. The Red Lake are the most impoverished tribe in Minnesota: 40 percent of members live in poverty, and nearly half of all Red Lake children do, per the U.S. Census Bureau. The unemployment rate is 25 percent — seven times higher than the state's overall rate. The SMSC often write loans to poorer tribes, and it has lent $60 million to the Red Lake tribe to help it construct gaming facilities.

Macarro told MinnPost that “the Shakopee tribal leadership exemplifies how to be effective in Washington. They show up, they know the arguments, they stay on it.”

“It’s not just two or three visits a year, but they are there, and take advantage of the opportunities they have to meet with various members, and to carry not just their message but the message of Indian Country.”

Leadership, timing, and luck

That the people of the Shakopee Mdewakanton Sioux have grown so prosperous is due to a combination of shrewd leadership, good timing, and pure luck. But that prosperity and stability has been a long time in the making.

The Shakopee Mdewakanton Sioux are Dakota, or Sioux, people, meaning they share linguistic and cultural characteristics with a group of about 20 tribes across the upper Great Plains, on both sides of the U.S.-Canada border.

There are three other Dakota communities in Minnesota, including the Prairie Island Indian Community, in Red Wing, who operate a casino of their own but are less prosperous than the SMSC. That tribe has fought the government and Xcel Energy for decades over the operation of the nearby Prairie Island Nuclear Power Plant, where the company stores radioactive waste in above-ground casks that sit on the Mississippi River floodplain.

The other seven tribes in Minnesota are Ojibwe, or Chippewa, peoples, who are spread throughout the northern Great Lakes region. The Mille Lacs, Leech Lake, and Fond du Lac bands, who live in communities around northern Minnesota, are all Ojibwe people.

According to the SMSC, Dakota peoples first made contact with non-native people — primarily French explorers and merchants — around 1640. By 1851, two years after the creation of the Minnesota territory, the U.S. federal government owned all Dakota lands, with Dakota people relegated to small reservations.

Through the 1850s, the federal government had largely failed to make good on its treaty obligations to tribal nations, in which tribes ceded much of their territory to the U.S. in exchange for future financial support, among other things. In many cases, the federal government instead took tribal lands and sold them to settlers, returning little in the way of money or land to the tribes themselves.

By the early 1860s, the Dakota people in Minnesota were hungry, poor, and desperate. Long-simmering tensions boiled over in August 1862, which saw the breakout of armed conflict: Dakota people attacked white settlers and traders, hoping to drive them away, which prompted the federal government to get involved.

President Abraham Lincoln claimed the Dakota raids killed as many as 800 people, and he sent in the U.S. Army to quell the uprising. The Minnesota Historical Society says more than 600 whites were killed by Dakota soldiers, including 50 armed settlers. After months of conflict around southern Minnesota, 77 U.S. soldiers and 150 Dakota soldiers had been killed.

The war’s most infamous day came at its close, Dec. 26, when the U.S. Army summarily executed 38 Dakota men in Mankato. The mass hanging remains the largest single execution on U.S. soil.

After the war, the U.S. government imprisoned thousands of Dakota near Fort Snelling, where at least 120 died in captivity. The vast majority of Dakota were forcibly expelled from Minnesota — Congress passed a law banning them from living within the state's borders — which started a diaspora in which many of them ultimately settled in North and South Dakota.

The ‘transformative’ growth of gaming

According to the SMSC, the U.S. government began purchasing land for the tribe around Prior Lake in the 1880s, more than 30 years after land was promised to the tribe in a treaty. It was not until 1969 that the federal government recognized the SMSC as its own tribe.

The first decade of tribal recognition for the SMSC — the 1970s — was marked by experiences of severe poverty. Tribe members recall living in rundown trailers, lacking access to running water, and sharing outhouses with their neighbors. “Not a lot of hope,” the tribe's Chairman, Charlie Vig, said of that era in a recent video. “Not a lot of inspiring things to think about.”

In the 1980s, however, the economic and political realities on the SMSC reservation, and on other reservations around the country, began to change, thanks to the advent of Indian gaming.

“It’s fair to say,” says Kathryn Rand, an expert on Indian gaming at the University of North Dakota, “that Indian gaming is one of the most transformative things that has happened to tribes in the last 50 years.”

Today, 242 tribes operate nearly 500 gaming facilities in 29 states. Their casinos, and associated hotels, golf courses, and concert venues, pulled in $31 billion in 2016, according to Alan Meister, an economist who produces an authoritative annual report on Indian gaming. In comparison, that’s roughly three times more than what every casino in the state of Nevada made in 2015.

In Minnesota, 11 tribes operate 40 gaming facilities; in 2015, they pulled in $1.5 billion in gaming revenue and $238 million in lodging, food, and other revenue, per Meister’s report. It’s unclear what share of that total is from the SMSC’s ventures, but it’s safe to assume they make up a significant portion.

The emergence of Indian gaming can be traced to Minnesota — specifically, the Leech Lake Reservation, just outside of Bemidji. In the 1970s, a Ojibwe couple living on the reservation, Russell Bryan and Helen Charwood, sued Itasca County over a property tax bill assessed on their mobile home, which sat on reservation land.

Bryan and Charwood argued that the county government didn’t have the authority to assess taxes on property on tribal land, and the case, Bryan v. Itasca County, went all the way to the U.S. Supreme Court. The high court agreed, ruling that state and local governments could not tax property on reservation land, which is considered the territory of a sovereign nation according to treaties signed with the federal government.

The Bryan decision became the legal foundation for a more expansive interpretation of the government’s role in regulating activity, particularly economic activity, on reservations. That included gambling, which was then tightly regulated and limited to just a few states. Tribes sensed an opportunity to get into that lucrative business, and they started by opening bingo halls on their lands. The SMSC opened its Little Six Casino as a bingo hall in 1982. (Its namesake, Little Six, was a legendary Dakota chief and military leader in the 1862 war. He was executed by the U.S. government in 1865 after being convicted of killing civilians during the war. )

photo of little six casino
MinnPost photo by Bill Kelley
Gaming got its start with the SMSC with the opening of the Little Six Casino in 1982.

In 1988, after a landmark Supreme Court case upholding the right of tribes to operate gambling businesses, Congress passed the Indian Gaming Regulatory Act, which established a regulatory order and put in place a federal entity, the National Indian Gaming Commission, to oversee Indian gaming.

Four years later, in 1992, the SMSC opened Mystic Lake Casino, and it proved the right move at just the right time, says Jill Doerfler, head of the American Indian Studies Department at the University of Minnesota at Duluth.

“Once gambling comes, that’s what provides the real economic opportunity that the tribe needs to raise a lot of people out of poverty,” Doerfler explains. Prior Lake may have been considered far from Minneapolis in the early 1980s, but the growth of third and fourth-ring suburbs in the ensuing decades was particularly good news for the SMSC’s business enterprise.

“Timing is everything,” Doerfler says. “Now, there’s all these people who want to come. Americans love gaming, and love bingo. It’s a great opportunity for some economic development for the tribe, and they grew from bingo, to casino-style gaming, and then through the expansion of casino-style gaming to event centers, a hotel venue.”

While other Indian gaming destinations in Red Wing, Duluth, and the Brainerd Lakes area remained far away from Minnesota’s population center, the Twin Cities’ outward sprawl made the Mystic Lake complex an appealing, convenient destination. According to Rand, the prosperity brought by Indian gaming has been spread unevenly around Minnesota.

“The northern part of the state is very different from the Twin Cities metro area,” she says. “Whether a tribe has a successful casino really just depends on where was its reservation land located.”

But location can only go so far: The SMSC had to know how to make the most of it. A crucial element of the SMSC’s prosperity — and their political clout — has been their history of smart and stable leadership. In the eyes of many in Minnesota and around the country, the tribe’s former chair, Stanley R. Crooks, embodied that kind of leadership.

Crooks, a Navy veteran whose father helmed the tribe before him, was the SMSC chairman from 1992 until his death in 2012 — a two-decade period that began with the construction of Mystic Lake, and saw the tribe’s transformation into an economic powerhouse.

In addition to overseeing the tribe’s business development, Crooks became an important figure in national tribal politics, burnishing the reputation of the SMSC among tribes. He served as chair of the Minnesota Indian Gaming Commission, and represented the SMSC in the National Indian Gaming Association, the organization that advances tribal gaming interests in D.C. The group’s headquarters on Capitol Hill — recently refurbished with $100,000 of help from the SMSC — is named in honor of Crooks.

The longtime chairman’s death was mourned throughout Indian Country, and fond obituaries noted his political influence. A member of the Rosebud Sioux tribe of South Dakota, Oliver Semans, wrote that Crooks was a “modern-day warrior,” and credited him with expanding tribes’ political clout by advocating for the voting rights of Native Americans.

According to Willie Hardacker, the general counsel of the SMSC, Crooks was instrumental in making the tribe as prominent as it is today. “The SMSC’s involvement and participation with national tribal organizations and its lobbying presence in Washington, D.C., grew out of Crooks’ strong belief in tribal sovereignty and the government status of Indian tribes,” he said.

Crooks is also credited with helping build the SMSC into a philanthropic pillar in Minnesota as the tribe’s fortunes grew. Rand says the tribe has been “conscious of the luck of the draw. They’ve taken that to heart, and are a standout tribe for their charitable contributions, especially to other tribes.”

The political consequences of casinos

For the SMSC, and for many other tribes, gaming has fueled a political revolution, giving them the resources needed to establish a D.C. presence and compete successfully in the high-stakes, high-dollar environment of the capital.

To be sure, tribal advocates have argued for their interests in the capital as long as the U.S. has existed. In 1852, a 93-year-old Ojibwe chief named Kechewaishke, or Chief Buffalo, journeyed through the Great Lakes by canoe with a delegation of Ojibwe from Wisconsin, hoping to persuade the federal government to halt its efforts to remove them from their land. (They succeeded; today, a bust of Chief Buffalo sits in Congress.)

In the 20th century, tribal governments struggled to compete with their peers — municipal and county governments — in exerting influence in Washington. With no real tax base, and little in the way of economic development to fund their efforts, tribes were forced to turn to the courts, as they did in the Bryan case, to try to advance their priorities.

According to one lobbyist, a common tribal maxim in the 197os and 1980s went something like this: “we don’t have warriors anymore — we have lawyers.”

As court victories led to an explosion of Indian gaming around the country in the 1980s and 1990s, that calculus changed: Tribes found themselves with much more money to work with, and they sought to translate that into influence in Washington by bankrolling political campaigns and retaining high-priced lawyers to lobby for them.

Because the federal government has so much power over tribal policy, Washington is more important to tribes than most entities that lobby in the capital. According to Aurene Martin, an Ojibwe woman who runs her own lobbying shop in D.C., “All policy toward natives in the U.S. is really made at the federal level.”

Gaming provided the means to influence that policy, UND’s Rand says. “There’s no doubt that the increase in Indian gaming has led to an increase in tribes’ dollars spent in politics and lobbying. There’s no doubt.”

But that boon proved a double-edged sword, says James Thurber, a professor at American University who studies lobbying in the capital. “Some tribes felt, for years, all they had to do was hire a very powerful law firm in Washington to represent their interests,” he says. “They felt they were being represented well by those interests, and I think they slowly learned they were wasting their money.”

The case of Jack Abramoff is an infamous example. Abramoff was a high-powered D.C. lobbyist who began representing tribes in the late 1990s, with an aim of helping them develop gaming operations. By the beginning of the George W. Bush administration, Abramoff amassed a team of lobbyists who intentionally overcharged their tribal clients as they split the extra profits behind closed doors. They also worked opponents of Indian gaming against their own clients to manufacture more lobbying opportunities — and billable hours — for themselves.

Abramoff and his associates netted $85 million in fees over a period of several years, as they fleeced the tribes who entrusted them with their money. Ultimately, Abramoff and his associates would face justice: after a headline-grabbing investigation and trial, he served 43 months in federal prison after pleading guilty to tax evasion, conspiracy to bribe federal officials, and mail fraud.

Thurber recalls a conversation with a student in a lobbying seminar a few years ago, who was a member of one of the tribes that contracted with Abramoff. “He said, ‘if only I knew what lobbying really was, we would have saved millions of dollars,’” Thurber says.

According to tribal advocates and lobbyists, a big reason that tribes have been more successful in Washington in recent years is that they have learned what lobbying is — and learned that they are just as effective, if not more effective, advocates in Washington than high-powered lawyers.

‘We know our own communities best’

A striking example of that change is Spirit Rock Consulting, a small lobbying firm based in the Beltway that is run by a team of Native women.

Spirit Rock was founded by Martin, who grew up on the reservation of the Bad River Band of Lake Superior Chippewa in northern Wisconsin. She has a three-decade career of working on tribal issues in Washington, and started her own firm after serving as the Acting Assistant Secretary for Indian affairs in the George W. Bush administration, and after stints at the law firm Holland & Knight. (Holland & Knight has a large tribal lobbying practice, and many tribes, including the SMSC, retain them for their D.C. work.)

Martin talked about the difference it makes to have tribal voices advocating for their priorities in Congress, not just well-trained non-Native lawyers.

“Tribes are coming in to petition the government for policies that literally decide whether someone is going to go to jail or not for a crime,” she says. “It affects your everyday life, whether you have money for your school, programs for law enforcement.”

Central to these issues is the concept of tribal sovereignty, a point emphasized by any advocate for tribes. If you have not experienced life on a reservation or tribal community firsthand, they say, you probably can’t grasp the essential importance of tribes’ status as sovereign governments, and everything that status influences, from the prosecution of criminals to how taxes are levied and how land is allocated.

“When we talk about tribal sovereignty, people kind of roll their eyes,” Martin says. “It’s in the Constitution. It’s in how everything affects us every day. It’s not puffery, it’s really something that happens to us. We approach it as, it’s our responsibility to make sure that federal policy reflects a point of view, our reality, as governments who have a citizenry to take care of. It’s not made in a vacuum.”

Courtesy of the Shakopee Mdewakanton Sioux Community
Dancers participate in the Shakopee Mdewakanton Sioux Community’s Wacipi, or Pow Wow

Macarro, the Ojibwe lobbyist from Minnesota, came to Spirit Rock after working in the administration of Bill Clinton, the Democratic National Committee, and Holland & Knight.

“The political sophistication of Indian Country has increased in ways we couldn’t have imagined 25 years ago,” Macarro says. “From New York to California to Minnesota, tribes are political forces to be reckoned with. Those voices and that influence carries over to Washington.”

“There’s a lot more Indian people who live and work in Washington, who are advocating outside the federal government for Indian Country,” she adds. “We know our own communities best. Indian people know Indian country, and having those connections, being familiar with our culture and communities at a deep level, I think that informs the debate in a much different way.”

Spirit Rock has done work for 14 tribes this year, including Martin and Macarro’s own tribes, as well as major gaming tribes like the Pechanga of California and the Seminole of Florida.

The SMSC has worked with five different lobbying firms over the past decade. The tribe did not authorize any representative to have an on-record interview with MinnPost, but the tribe’s general counsel, Hardacker, responded to questions via email.

“The SMSC’s work in Washington, D.C., is devoted to advocating for federal legislation and agency policies that positively impact all tribes throughout all of Indian Country,” Hardacker said.

Building, and funding, relationships

Native advocates say that the process of building relationships over time with elected officials is what made the progress on the Violence Against Women Act possible, when it might not have been possible even a few years prior.

Jacqueline Pata, the executive director of the National Congress of American Indians, an umbrella organization representing tribes in Washington, credited the “groundwork” tribal advocates have done over time with members of Congress.

“There was still this concern,” she says of some of the bill’s skeptics. “Can we trust tribes to deal appropriately with a non-Native? That was the core. Can we trust tribal systems to treat them fairly and equitably?”

“So many political decision-makers have come to tribal communities and gotten to know us at a different level, so that trust and friendship and understanding was really core to making these decisions that could seem complex but also be a little scary to some folks.”

Regular meetings over time with lawmakers helped to build that trust, and tribal advocates now say that most members of Congress consider meetings with tribal representatives as important as meetings with representatives of a city or county government.

Beyond that, Pata explains that Native advocates have increasingly taken advantage of two things they can use to sway lawmakers: votes, and campaign contributions.

The SMSC is a leader among Minnesota tribes in terms of political giving, having contributed over $3 million to Democratic and Republican officeholders and political action committees since 1996.

SMSC political contributions by state since 1996
In addition to more than $1.6M contributed to national party groups, the Shakopee Mdewakanton Sioux Community has made contributions to parties and politicians in almost every U.S. state. Unsurprisingly, Minnesota politicians have received the most: at least $419,000 since 1996.


Total contributions: $57,415



Total contributions: $1,000



Total contributions: $4,600


New Hampshire

Total contributions: $6,859



Total contributions: $39,500



Total contributions: $26,400



Total contributions: $48,574


North Dakota

Total contributions: $19,725



Total contributions: $419,578



Total contributions: $33,654



Total contributions: $45,116


New York

Total contributions: $19,600



Total contributions: $1,000


Rhode Island

Total contributions: $7,600



Total contributions: $11,000



Total contributions: $5,000



Total contributions: $26,200


South Dakota

Total contributions: $31,800



Total contributions: $12,944



Total contributions: $10,200



Total contributions: $13,930



Total contributions: $20,765



Total contributions: $21,830


New Jersey

Total contributions: $21,346



Total contributions: $2,100



Total contributions: $115,500



Total contributions: $11,844



Total contributions: $19,224



Total contributions: $6,000



Total contributions: $3,295



Total contributions: $3,700


West Virginia

Total contributions: $8,200



Total contributions: $25,795



Total contributions: $18,100



Total contributions: $1,244



Total contributions: $33,400


New Mexico

Total contributions: $44,614



Total contributions: $2,800



No contributions reported



No contributions reported


North Carolina

Total contributions: $11,947


South Carolina

No contributions reported



Total contributions: $83,900



Total contributions: $10,445



Total contributions: $1,000



No contributions reported



Total contributions: $3,475



No contributions reported



Total contributions: $15,709



Total contributions: $20,000


  •   More than $92,400
  •   Up to $92,400
  •   Up to $69,300
  •   Up to $46,200
  •   Up to $23,100
  •   No contributions reported

The tribe has proven a reliable supporter of members who are sympathetic to its agenda, and to tribal priorities more broadly. Fourth District DFL Rep. Betty McCollum, one of the most vocal tribal advocates in Congress and the top Democrat on the House Appropriations panel that funds tribal programs, has received $71,000 from the SMSC in her career.

The tribe has given over $250,000 to the 10 current members of the Minnesota congressional delegation, including $45,000 to the campaigns of Sen. Amy Klobuchar, $33,000 to those of Sen. Al Franken, and $32,000 to those of Rep. Tim Walz. Each Minnesota member has received at least a few thousand dollars from the tribe.

The SMSC has also given to prominent Native lawmakers, like Oklahoma GOP Rep. Tom Cole, and has frequently backed Native candidates seeking office, both Democrat and Republican. The tribe has given to top congressional leaders like Senate Majority Leader Mitch McConnell and House Minority Leader Nancy Pelosi, as well as important committee chairs like Alaska GOP Sen. Lisa Murkowski, who is in charge of the Senate counterpart to McCollum’s subcommittee.

Though it supports Republicans and Democrats alike, the SMSC, like most tribes, tends to favor the Democratic side of the aisle. It has given $1.5 million to Democratic organizations such as the Democratic National Committee, the party’s House and Senate campaign committees, and 19 state parties around the country, including the Minnesota DFL. It has given $380,000 to Republican organizations like the Republican National Committee, and the GOP House and Senate campaign committees.

Hardacker, the SMSC general counsel, framed political contributions as one way for the tribe to get a seat at the policymaking table on topics that directly affect tribes.

“While the SMSC agrees with others that our nation’s system of political giving and fundraising needs to be improved, the SMSC has determined that it will exercise its right to fully participate in this country’s political processes,” he says. “Indian tribes, even though they are recognized as governments, for too long have been ignored by elected officials at every level of government.”

In a blog post for the publication Indian Country Today, written after the 2012 election, Macarro cited the victories of two Senate candidates supported heavily by tribes, in explaining why these campaign contributions matter.

“Senator Jon Tester (D-Montana) and Senator-elect Heidi Heitkamp (D-North Dakota) were two long-shot Democratic victories achieved with tremendous help from the tribes in their respective states,” she wrote. “I guarantee they won’t forget it.” Indeed, Heitkamp and Tester have proven reliable supporters of tribal interests in the U.S. Senate, and both have received thousands of campaign dollars from the SMSC.

“The effectiveness of tribal efforts was… a result of thoughtful political giving,” Macarro wrote. “Both Presidential campaigns hosted tribal political fundraisers this cycle—again, almost the norm now but practically unheard of 10 years ago.”

Getting the ‘light bulb’ to turn on

On a recent fall morning on Capitol Hill, dozens of representatives of tribal nations gathered in a hearing room in the Dirksen Senate Office Building, where the wood-paneled walls are adorned with Navajo rugs and tribal art.

They were there to hear from members of Congress as part of the National Congress of American Indians’ “fly-in,” an annual ritual where tribal representatives come to D.C. for a few packed days of speeches, seminars, and meetings with lawmakers and their staffs.

The list of topics lawmakers touched on at the morning meeting was an illustration of just how broad and deep Indian Country’s D.C. to-do list has become.

In a 10-minute speech, McCollum talked about tax policy, the expansion of Medicaid, funding for law enforcement programs, budget cuts at the Environmental Protection Agency, sequestration, and how all of these issues affect tribes. “Your voices make a difference,” McCollum told the crowd.

It has taken a long time, and hard work, for those voices to resonate, tribal advocates say. Macarro believes that tribal lobbying now is more sophisticated than ever, but she was quick to point out that the success tribes are enjoying now in Washington is due to the hard work — the sometimes less fruitful work — of their forebears. “We all stand on their shoulders in terms of what we’re able to do today,” she says.

Hardacker provided a glimpse of that hard work, which often starts with impressing upon policymakers the basic legal and political realities of tribes.

“Making the point that the tribal governments are not interest groups is often the very first challenge tribes face,” he says. “If the state of Minnesota is not viewed as an interest group, neither can any of the 11 tribes located in Minnesota be viewed as an interest group.”

“More often than not, when elected officials openly and honestly view the facts about the law and history of tribal sovereignty, they get it,” Hardacker continues. “It is like a light bulb comes on. And once the light bulb comes on, it is so much easier to discuss the specifics of any particular issue or legislation.”

There’s a lot of specifics to discuss these days, as McCollum’s remarks at the NCAI meeting show. Broadly, tribal advocates describe a gradual evolution of their portfolio in D.C., mirroring the changes in tribes' political and economic realities.

In the 1970s and before, tribes focused heavily on the federal appropriations process, since they relied so heavily on federal social safety net programs and federal grants for tribes. Gaming entered tribes’ D.C. agenda in the 1980s, and it still takes up much of tribes’ time and resources today, as the SMSC’s lobbying disclosures in recent years clearly show.

Beyond gaming, reacquiring tribal land has figured near the top of tribes’ business with the federal government through the decades.

Lobbyists like Martin and Macarro fight to help tribes get back the lands the federal government took from them without compensation — an estimated 90 million acres. Tribes have only reacquired eight percent of that total, according to the NCAI, since 1934.

Land remains an essential issue, even as tribes take on an increasingly diverse array of topics. Without land, tribes have a harder time asserting sovereignty, and face more obstacles to establishing lucrative gaming ventures.

“The nations of the Dakota people (including the SMSC) gave up millions of acres of land, valuable resources, and a way of life in exchange for promises of support made by the United States,” Hardacker says.

Finding a focus on farm issues

Beyond protecting gaming and fighting budget cuts, tribes are now, more than ever, focused on advancing a positive agenda in Washington. One lobbyist described the essence of the change as trying to make good stuff happen, as opposed to stopping bad stuff from happening.

For the SMSC, that means taking on leadership roles in advancing issues of concern across Indian Country. “The SMSC uses the resources it has regained to participate in the political process on behalf of all tribes, not just itself,” Hardacker says.

Vig, who succeeded Crooks as SMSC chairman, has continued his predecessor’s tradition of national leadership on issues important to tribes. In particular, nutrition has become a signature issue for the SMSC, and a centerpiece of their advocacy.

Many tribal communities lack access to healthy and affordable food, leading to high rates of hunger, obesity, and health complications that stem from that. Not long ago, before gaming brought prosperity for the tribe, as many as three out of four SMSC members were on federal food assistance.

The SMSC is trying to reduce food insecurity and malnutrition among Native Americans, both through philanthropy and lobbying in Congress. In 2010, the SMSC opened Mazopiya, the Whole Foods-like natural grocery store on the reservation, and in 2015, it launched what it calls the “Seeds of Health” campaign, a four-year, $10 million effort to improve health and nutrition in Indian Country. This month, the SMSC announced it would partner with the American Heart Association for a $200,000 grant program to back nutrition initiatives on reservations.

photo of mazopiya grocery store
MinnPost photo by Bill Kelley
Mazopiya, the Shakopee Mdewakanton Sioux natural foods market

In Congress, the SMSC plans to focus intensely on the upcoming Farm Bill, and it's helping to form what it calls the Native Farm Bill Coalition, a collection of groups working together to advance tribal priorities in the legislation. Hardacker says that the SMSC is providing start-up funding and a matching grant for this effort. (Seventh District Rep. Collin Peterson, the top Democrat on the House Agriculture Committee and a key player in Farm Bill negotiations, is seen as an ally of tribes, and has received over $20,000 in campaign contributions from the SMSC.)

The Farm Bill report commissioned by the SMSC, “Regaining Our Future,” outlines a blueprint for tribal advocacy on the sweeping agriculture and nutrition package, which is typically taken up every five years. The 2014 Farm Bill laid out nearly $1 trillion in federal funds.

The report says that Native Americans had been largely absent from the decision-making table on the Farm Bill, save for a few tribes and groups — an untenable state of affairs for a group that relies heavily on the programs included in the legislation. Close to one in four Natives participates in programs, like the Supplemental Nutrition Assistance Program, that are funded by the Farm Bill. About 42 million Americans, or 14 percent of the total population, receive SNAP benefits.

“We are entering a period when Indian Country voices in the Farm Bill debate need to be louder,” the report reads. “The full scope of food and agriculture programs must be available to us in order to turn the page on the significant food and health-related impacts within our own Native communities.”

The 144-page report goes on to detail the various ways in which Farm Bill programs — from commodity insurance to farm credit to availability of fresh fruit and vegetables for tribal schools — affect tribes, and where their advocates can improve.

“The SMSC,” Hardacker says, “is joining with other tribes and organizations to protect Native interests and advance Indian Country’s aspirations for greater food sovereignty, better nutrition for Native people, and greater access for Indian Country to federal funding for rural economic development and infrastructure.”

The tribe’s focus on food issues fits within a new strategy for tribes that lobbyists have identified: instead of reacting to things like proposed budget cuts, they are assessing the political climate to identify opportunities to advance their agendas.

“Tribes have become much more nimble,” Macarro says, “in adjusting to a changing political landscape, identifying opportunities.”

McCollum says the SMSC “have learned how to effectively put together coalitions to talk about a shared, common interest… They have become very effective.”

She recalled going to the Pine Ridge Indian Reservation in South Dakota, the most impoverished tribal community in the country and one of the most impoverished places in the U.S. “Shakopee is up there when asked to help, give advice, guidance, and sometimes, support,” McCollum said.

A new political reality

That Indian Country is finding ways to make progress on issues like food and criminal justice does not mean that tribes have let their guard down. The need to play defense, tribal advocates say, could again become a top task for tribes during the presidency of Donald Trump.

Speaking at the NCAI fly-in, McCollum said there has been an undeniable arc of progress for tribes through the presidencies of Bill Clinton, George W. Bush, and Barack Obama. Rep. Ruben Gallego, an Arizona Democrat, followed McCollum by saying the Trump administration was advancing “downright dumb ideas” on tribal issues.

The lawmakers’ bottom line was clear: Trump threatens the progress tribes have made. Their clearest example of that was Trump’s first budget proposal, which slashed funding across the federal government, but hit tribes especially hard.

Courtesy of the Shakopee Mdewakanton Sioux Community

If enacted, the budget would have cut $64 million in funding for tribal schools, $21 million for law enforcement, and $27 million for resource management programs, among other things.

“I’m very concerned that the budget President Trump put forth is the first budget that took Indian Country backwards,” McCollum told MinnPost.

Beyond that, key administration positions with jurisdiction over tribal policy sit vacant, over nine months after Trump’s inauguration. For the post of Assistant Secretary of the Interior for Indian Affairs, for example, the administration only named a nominee in mid-October.

Pata, the NCAI director, sees some positive signs. “If you look at markers of tribes’ engagement, we still have significant tribal engagement,” she explains, citing Native representatives’ meetings at the White House with the president and vice president, and with Interior Secretary Ryan Zinke, who has sweeping jurisdiction over tribal issues.

A comment Zinke made in an interview with Breitbart News in October sticks with Pata in particular when she talks about the progress Natives have made in D.C. — and how far left they have to go.

Speaking about the issue of Confederate monuments, Zinke asked, “Where do you start and where do you stop? It’s a slippery slope. If you’re a Native Indian, I can tell you, you’re not very happy about the history of General Sherman or perhaps President Grant.” (Sherman and Grant, Union heroes of the Civil War, said and did vile things toward Native Americans in their time.)

“Did I like what he said?” Pata asked. “No. But the fact that tribes are in the common language of secretaries on a regular basis, that’s pretty significant. Before, we were invisible. Invisible to politicians. Invisible to many secretaries in the administration, other than the Department of the Interior. Today, that is not necessarily the case.”

It is because of tribes like the SMSC, advocates say, that things have changed over the decades, as tribes grew wealthier and savvier in Washington.

As Indian Country looks to the future, there are few reasons to doubt the capacity of top tribes to continue leading. That does not mean, however, that tribes face no obstacles to growing their political influence: the primary business the SMSC are in, for example, does not especially lend itself to long-term viability. Fluctuations in the broader U.S. economy, like a recession, can spell doom for a gambling enterprise.

Beyond that, tribal and commercial casinos alike are concerned about the spread of online gambling — a concern reflected in the tens of millions of dollars tribes spend on lobbying campaigns to block it — and how much that burgeoning industry could take from their market share.

There are plenty of examples of tribes who bet big on gambling, only to have it all come crashing down. The Mashantucket Pequot tribe of Connecticut, for example, found themselves $2 billion in debt in 2012 after their massive Foxwoods Casino struggled.

If striking gold — and holding onto it — in the gambling industry isn’t easy, the SMSC is determined to protect its prosperity and influence. In recent years, the tribe has diversified its holdings: it made a splash in 2013 by announcing its ownership of the new J.W. Marriott luxury hotel at the Mall of America in Bloomington. That could prove just the start of the tribe’s foray into hospitality and real estate in Minnesota, as it expands into other business areas to safeguard its fortune.

If the SMSC is successful — and if they continue to leverage their wealth in Washington — tribal advocates are optimistic that Native American communities will be able to weather whatever the new political climate in Washington brings, while finding chances to make long-awaited progress.

“Showing up is half the battle,” Macarro says. “They do that. They’re there.”

Comments (12)

  1. Submitted by paul jones on 11/20/2017 - 04:38 pm.

    ‘Before, we were invisible:’ How Minnesota’s most prosperous Ind

    It never ceases to amaze me how easy it is for politicians-state and federal-to dumb down as gullible non-Indian U.S./State citizens into believing that they-politicians-can pass common law that makes regulations from the womb to the tomb the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race” at the same time the Constitution’s 14th Amendment foreclosed these very same politicians from regulating from the womb to the tomb the health, welfare, safety, benefits, capacities, metes and boundaries of U.S./State citizens with ‘slave ancestry/race’ all without a shred of Constitutional authority to do so.

    This article is an astonishing piece of a deplorable lack of journalist curiosity regarding U.S./State citizens with “Indian ancestry/race” since The Indian Citizenship Act of 1924! That single Indian Citizenship Act of 1924, made null all previous common law-state and federal-including Presidential Executive Orders, Commerce Clause and Treaty Clause alleged Indian Treaties (if any U.S. Senate confirmed Indian treaties actually existed pre-1924 Citizenship) regarding U.S./State citizens with “Indian ancestry/race” so often touted by politicians and Indian advocates as being legitimate law.
    And yet, politicians and MSM continue to perpetuate willful blindness to the Constitutional absurdity that Congress, Presidents/Governors, Initiatives and Referendums can make distinguishable the capacities, metes and boundaries of a select group of U.S./State citizens with “Indian ancestry/race” post citizenship. There is nothing in U.S.C. Title 25-INDIANS that speaks to the Constitution’s mandate that common law must be for “We, The People, By The People and For The People’s” health, welfare, safety and benefits for a specific geographic area of a State or the Union.
    The United States Constitution makes for no provisions for:
    1. Indian sovereign nations. None of the asserted tribes possess any of the attributes of being a ‘sovereign nation:’ a. No U.S. Constitution recognition b. No international recognition c. No fixed borders d. No military e. No currency f. No postal system g. No passports h. et al
    2. Treaties with its own constituency
    3. Indian reservations whereby a select group of U.S./State citizens with “Indian ancestry/race” reside exclusively and to the exclusion of all others, on land-with rare exception-that is owned by the People of the United States according to a federal document readily available on-line that notes rights of renters as ‘occupancy and use’ by these distinguished U.S./State citizens with “Indian ancestry/race” only with the land owned by the People of the United States.
    4. Recognition of ‘Indian citizenship’ asserted by various tribes. There is no international/U.S. Constitution recognition of “Indian citizenship” as there is no ‘nation-state’ from which citizenship is derived.
    A simple question for politicians and MSM to answer…a question so simple, it is hard:
    “Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

    • Submitted by Pat Terry on 11/22/2017 - 02:47 pm.

      So much wrong here

      Actually, the constitution makes it very clear that Indian tribes are to be treated differently. See Article 1, sections 2 and 8.

      There is also a lot of caselaw addressing the very issues you raise. When your legal analysis is limited to whether something is found in the text of the constitution, you’ve probably got it wrong. The constitution set up a court system to address the myriad issues that could not possibly addressed in the text of the constitution itself. The courts have found that there is, in fact, constitutional authority for all of it.

      • Submitted by Ilya Gutman on 11/22/2017 - 11:26 pm.

        Article 1, Section 8 says that all taxes “shall be uniform throughout the United States.” What we have here is representation without taxation.

        • Submitted by Tim McCarthy on 11/27/2017 - 12:38 pm.

          Article 1 sec. 8 says

          Congress has the power to: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
          Section 2 says non taxed Indians are not counted in the census and thus are not citizens.

          • Submitted by Ilya Gutman on 11/27/2017 - 09:46 pm.

            Absolutely correct. So they should be either citizens and taxed or be not taxed and non-citizens. There is a contradiction in being citizens but not taxed.

      • Submitted by paul jones on 11/23/2017 - 06:15 am.

        ‘Before, we were invisible:’ How Minnesota’s most prosperous Ind

        Nope. Nice try though.

        Passage of the Indian Citizenship Act of 1924 made null all Constitution references to “Indians” including “See Article 1, sections 2 and 8.” They are U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen in accordance with the 14th Amendment’s ‘equal protection’ Clause.

        It never ceases to amaze me how easy it is for politicians-state and federal-to dumb down as gullible non-Indian U.S./State citizens into believing that they-politicians-can pass common law that regulates from the womb to the tomb the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizens made distinguishable from all other non-Indian U.S./State citizens because of their “Indian ancestry/race” at the same time the Constitution’s 14th Amendment’s ‘equal protection’ (among other Constitutional tenants) foreclosed the very same politicians from enacting common law regulating from the womb to the tomb the health, welfare, safety, benefits, capacities, metes and boundaries for select group of U.S./State citizens with ‘slave ancestry/race’ all without a shred of Constitutional authority to do so.

        Provide the Constitutional source for this statement: “The courts have found that there is, in fact, constitutional authority for all of it.”

        When you state “There is also a lot of caselaw addressing the very issues you raise” you provided no such case law. And, if you do offer such case law, where in the Constitution is the source of authority the case law is based-on?

        This excerpted essay debunks any notion of “Indian treaties” between We, the People, and other We, the People, because of the ‘others’ Indian ancestry/race:
        The object of treaties is the regulation of intercourse with foreign nations, and is external.”
        An especially interesting piece of evidence supporting the conclusion that the Treaty Clause was intended and understood by the Framing and Ratifying Conventions not to authorize the President and Senate, by a treaty, either (a) to override the Constitution, in whole or in part, or (b) to make domestic law (as distinguished from governance of relations with foreign governments),
        [Section 52.] “Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way.”

        Another fallacious statement is that a treaty “can override the Constitution;” which defies historical truth, as we have seen. A related and most preposterous allegation is that a treaty “can cut across the rights given the people by the constitutional Bill of Rights”–than which nothing could be further from the truth, partly for two reasons: the Constitution does not authorize any such treaty and, secondly, the people are, of course, given their rights by God and not by themselves through their own creation: the Constitution (including its Bill of Rights, or Bill of Prohibitions, Amendments). The quoted statement is farcical.

        These SCOTUS decisions debunk your post about the Constitution’s protection of one’s U.S./State citizenship:

        1. United States Supreme Court AFROYIM v. RUSK, (1967) No. 456 Argued: February 20, 1967 Decided: May 29, 1967
        “(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment; and a mature and well-considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261.
        (b) The Fourteenth Amendment’s provision that “All persons born or naturalized in the United States . . . are citizens of the United States . . .” completely controls the status of citizenship and prevents the cancellation of petitioner’s citizenship. Pp. 262-268”

        2. United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
        Argued: Decided: March 19, 1824
        “A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”

        3. United States Supreme Court
        ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995:
        JUSTICE SCALIA, concurring in part and concurring in the judgment.
        I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (SCALIA, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual, see Amdt. 14, 1 (“[N]or shall any State . . . deny to any person” the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, 1 (prohibiting abridgment of the right to vote “on account of race”) or based on blood, see Art. III, 3 (“[N]o Attainder of Treason shall work Corruption of Blood”); Art. I, 9 (“No Title of Nobility shall be granted by the United States”). To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
        It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand. [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 1]
        JUSTICE THOMAS, concurring in part and concurring in the judgment.
        I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying JUSTICE STEVENS’ and JUSTICE GINSBURG’S dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a “moral [and] constitutional equivalence,” post, at 3, (STEVENS, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
        That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).
        These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, “[i]nvidious [racial] discrimination is an engine of oppression,” post, at 3. It is also true that “[r]emedial” racial preferences may reflect “a desire to foster equality in society,” ibid. But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences. Indeed, JUSTICE STEVENS once recognized the real harms stemming from seemingly “benign” discrimination. See Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (STEVENS, J., dissenting) (noting that “remedial” race legislation “is perceived by many as resting on an assumption that those who are granted this special [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 3] preference are less qualified in some respect that is identified purely by their race”).
        In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. * In each instance, it is racial discrimination, plain and simple.

        Lastly, this SCOTUS Marbury decision clearly established the Constitutional fact that all disputes at the bar require the presiding judge to determine if the common law at the center of the dispute is, in fact, Constitutional…in this instance> Title 25-INDIANS. This is a Constitutional mandate upon the presiding judge(s) in accordance with their oath of office to uphold and defend the Constitution. Nothing in the Constitution provides the authority for an Article III Court to adjudicate a dispute at the bar turning on common law that does not comply with the U.S. Constitution:
        United States Supreme Court MARBURY v. MADISON, (1803)Argued: Decided: February 1, 1803:

        “If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
        It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
        If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
        Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
        This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.”

        • Submitted by Tim McCarthy on 11/27/2017 - 01:14 pm.


          “Passage of the Indian Citizenship Act of 1924 made null all Constitution references to “Indians” including “See Article 1, sections 2 and 8.” They are U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen in accordance with the 14th Amendment’s ‘equal protection’ Clause.” No, just no.
          “BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.”
          The text of the law makes clear that Indians remain Indians. They get to keep their reservations and all that entails.

        • Submitted by Pat Terry on 11/27/2017 - 02:10 pm.


          This is so far off base, I don’t even know where to start.

          What you are doing is confusing what courts have actually done, with what you (or that ridiculous “essay”) think courts should have done. You have taken language from cases – in one case here language that isn’t even controlling – and strung it together out of context to come up with, well, I’m not sure.

          As they say in that commercial – that’s not how any of this works.

    • Submitted by Tim McCarthy on 11/27/2017 - 12:47 pm.

      The Indian citizenship act of 1924

      “BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.”
      How does that void anything?

  2. Submitted by Dr Rin Porter on 11/20/2017 - 05:16 pm.

    Thanks for comprehensive article

    Sam, thank you for the extensive research and clear presentation of the complex topic of gaming, economics, and Minnesota tribes, with emphasis on the Shakopee Mdewakanton Dakota. Yours is the best article I have read in 30 years of following the situations faced by the tribes in contemporary Minnesota.

  3. Submitted by Jay Wilkinson on 11/21/2017 - 06:21 pm.

    back story

    Some scholars credit/blame Indian gaming on a case of an Indian woman in MN who challenged county taxation of her home and got brand new legal aid lawyer to start a case that ended with the last unanimous pro-Indian case at SCOTUS. Bryan v. Itasca County..

    • Submitted by Paul John Martin on 11/22/2017 - 09:33 am.

      It’s in the Story

      Mr. Brodey’s excellent article does include that part of the story:

      “The emergence of Indian gaming can be traced to Minnesota — specifically, the Leech Lake Reservation, just outside of Bemidji. In the 1970s, a Ojibwe couple living on the reservation, Russell Bryan and Helen Charwood, sued Itasca County over a property tax bill assessed on their mobile home, which sat on reservation land.

      Bryan and Charwood argued that the county government didn’t have the authority to assess taxes on property on tribal land, and the case, Bryan v. Itasca County, went all the way to the U.S. Supreme Court. The high court agreed, ruling that state and local governments could not tax property on reservation land, which is considered the territory of a sovereign nation according to treaties signed with the federal government.

      The Bryan decision became the legal foundation for a more expansive interpretation of the government’s role in regulating activity, particularly economic activity, on reservations.”

      BTW, I’m not the first to notice the deep irony that, after 200 years of persecution and genocide, gaming has finally allowed at least some Indian tribes to become rich, and challenge us whites at our own power and money game.

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