The Heartbeat of Wounded Knee

by David Treuer

  Nevertheless, the Kansas Act of 1940 was followed by the awkwardly worded “Act to Confer Jurisdiction on the State of Iowa over Offenses Committed by or Against Indians on the Sac and Fox Indian Reservation” in 1948, the New York Acts of 1948 and 1950, and the California Act of 1949, all of them modeled on the Kansas Act. It should be noted that these acts were in direct violation of the treaties that the tribes had entered into with the federal government (not the states), which had been (and still are) the bedrock of tribal sovereignty, and that thus something beyond coercive “consultations” was surely needed to make them law. Be that as it may, the Termination Act of 1953—actually House Concurrent Resolution 108—passed concurrently with Public Law 280: a dry pair of names for exceptionally bloody acts.

  The act changed the ways tribes would relate to the government to this day. Until that time—with the exception of piecemeal legislation—federally recognized Indian tribes were, or functioned as, “domestic dependent nations” and had sovereignty, or something approaching it, which meant they related to the federal government on a government-to-government basis. Public Law 280 was the first move to formally defederalize the status of the tribes in relationship to the rest of America.

  Public Law 280 was ostensibly intended as a law-and-order act, spelling out how to address the wrongs committed by Indians against other Indians and giving Indians equal access to protection under the law in criminal and civil disputes. With respect to crimes other than those mentioned in the Major Crimes Act, Indians lived in a kind of legal gray area. Some crimes were prosecuted in federal court, some were tried in the Court of Indian Offenses, some were tried in tribal court. It wasn’t clear. And it wasn’t cheap. Public Law 280 sought to end all of that, but in so doing, it dealt a serious blow to tribal sovereignty. The law granted six states the right, ability, and responsibility to prosecute all criminal offenses and civil disputes within its borders: Minnesota (except for Red Lake Reservation), Wisconsin (except for the Menominee Reservation), California, Washington, Oregon (except for Warm Springs Reservation), and Alaska (upon statehood). Tribes in states not covered by Public Law 280 continued to administer civil and criminal matters in tribal and federal courts. Tribes within the six states covered by the law were not offered any chance to vote on, amend, or ultimately reject the legislation. Other states had the option of adopting the provisions of the law, with some limited input from the tribes. The states that ultimately followed along and adopted some of the provisions of Public Law 280 were Nevada, South Dakota, Florida, Idaho, Montana, North Dakota, Arizona, Iowa, and Utah. Even narrowly defined and implemented, the law put most tribes under state control and state oversight, a bit as if the U.S. government had unilaterally extended Minnesota state laws to (a much smaller) Canada. And although the act had been put forward as a piece of law-and-order legislation, the states almost universally interpreted and implemented it as a regulatory directive as well. They levied taxes, administered schools, stepped into health care and licensing, and curtailed treaty rights by extending the jurisdiction of game wardens and overseeing licensing for harvesting game, edibles, and the like. This illegal overstepping would not be completely rectified by the Supreme Court until the 1980s. Tribes are still in the process of defining (and limiting) the excesses of Public Law 280.

  Just as the law was transferring legal power over Indians to states across the country, House Concurrent Resolution 108—Orwellianly referred to as the “Act to Free Indians from Federal Supervision”—ended Indians’ status as wards of the federal government. In legal terms, in other words, it was the death of Indians as Indians. It read in its entirety:

  Whereas it is the policy of Congress, as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all of the rights and prerogatives pertaining to American citizenship; and Whereas the Indians within the territorial limits of the United States should assume their full responsibilities as American citizens: Now, therefore, be it Resolved by the House of Representatives (the Senate concurring), That it is declared to be the sense of Congress that, at the earliest possible time, all of the Indian tribes and the individual members thereof located within the States of California, Florida, New York, and Texas, and all of the following named Indian tribes and individual members thereof, should be freed from Federal supervision and control and from all disabilities and limitations specially applicable to Indians: The Flathead Tribe of Montana, the Klamath Tribe of Oregon, the Menominee Tribe of Wisconsin, the Potowatamie Tribe of Kansas and Nebraska, and those members of the Chippewa Tribe who are on the Turtle Mountain Reservation, North Dakota. It is further declared to be the sense of Congress that, upon the release of such tribes and individual members thereof from such disabilities and limitations, all offices of the Bureau of Indian Affairs in the States of California, Florida, New York, and Texas and all other offices of the Bureau of Indian Affairs whose primary purpose was to serve any Indian tribe or individual Indian freed from Federal supervision should be abolished. It is further declared to be the sense of Congress that the Secretary of the Interior should examine all existing legislation dealing with such Indians, and treaties between the Government of the United States and each such tribe, and report to Congress at the earliest practicable date, but not later than January 1, 1954, his recommendations for such legislation as, in his judgment, may be necessary to accomplish the purposes of this resolution.

  Before we look at what happened to the Menominee, it’s important to know that, even by the time this cocktail of disastrous legislation was being passed, it was possible to know what might result, because there were tribes that had, in effect, lived under termination long before it became federal Indian policy. The Little Shell Band of Ojibwe provided one such cautionary tale.

  The Little Shell Band was led by Esens (Little Shell), a Pembina Ojibwe leader. The Pembina generally, and Little Shell’s band in particular, were unusual among the other Ojibwe bands scattered around the Great Lakes. Whereas most Ojibwe had migrated over centuries from the East Coast and by the seventeenth century had secured our homelands around the western Great Lakes, some had continued pushing farther west and wound up in the Red River valley, on the present-day Minnesota–North Dakota border. This was a buffer zone of sorts between the rest of the Ojibwe and the Dakota, whom the Ojibwe had gradually pushed into the Plains. The Ojibwe focused largely on trapping and trading to the east, and the Dakota, after acquiring the horse, expanded to the south and west. The group that became known as the Pembina had settled between them in the nineteenth century. By that time, the Dakota had more or less relinquished their claim on that area in the Treaties of Traverse des Sioux and Mendota.

  The Red River valley was rich with game and waterfowl and herds of bison that wandered in from the west. But its soil is particularly well suited for farming, unlike the sandy uplands to the east and west. Between 1849 and 1850, before Minnesota statehood, Zachary Taylor resolved to open up the area to settlement. (A major accomplishment in his sixteen months as president.) Under government pressure, the Pembina and Red Lake Bands of Ojibwe signed the Treaty of Old Crossing a decade later, relinquishing their claim to the Red River valley.

  Little Shell was a signatory of the Old Crossing Treaty. It was as if a gulf opened up between the Ojibwe in Minnesota and those, like Little Shell, who were on the North Dakota side of the cession. Little Shell and other Pembina Ojibwe clustered around the Turtle Mountains in the northern part of what was to become North Dakota, on the Canadian border. The Turtle Mountains were a great place to settle: almost completely forested, they provided timber, game, and shelter from the ravages of Plains weather. Wild rice grew in the rivers, creeks, and sloughs—the westernmost region in North America where it did so. From their stronghold, the Pembina Ojibwe ranged fa
r and wide, traveling north into what was to become Saskatchewan and Alberta and as far west as central Montana in search of game and trade. The formerly woodland Ojibwe came to resemble their Plains neighbors more and more.

  Even though the Old Crossing Treaty was signed in 1863, it wasn’t until the 1880s that the Turtle Mountain Reservation was officially created by Congress. The Ojibwe and Dakota signed the Sweet Corn Treaty in 1858, dividing and establishing their separate territories: the Ojibwe had all the land from Minnesota through what would become North Dakota up to the Missouri River. The Dakota had the land west of there. Five years later, as part of the Old Crossing Treaty, the Ojibwe gave up all of their land in North Dakota except for the area around Turtle Mountain. It wasn’t until 1882 that the boundaries of Turtle Mountain were established. (The reservation that remained covered 460,800 acres.) After 1863, Little Shell refused to sign any more treaties with the government. Every time the tribe came to the treaty table they had walked away with less.

  Some Pembina thought that it might be best to negotiate from a position of strength, but Little Shell, for reasons lost to history, felt otherwise. And so the federal government did what the federal government always did. In 1884, two years after the creation of the Turtle Mountain Reservation and without consulting the Indians there, it reduced the size of the reservation, by executive order, to two relatively small townships. Their 460,800-acre reservation shrank (overnight) to a tenth its original size: a mere 46,800 acres. Little Shell was off hunting in Montana, on the western frontier of Pembina territory. During the period following the passage of the Dawes Act, in 1887, many Turtle Mountain Ojibwe (along with more easterly Ojibwe from Mille Lacs and Leech Lake) were “encouraged” to relocate to the White Earth Reservation, itself established as a kind of catchment for Ojibwe who lived in places the federal government coveted. Still, Little Shell would not negotiate and would not cede his claim to the millions of acres that rightly belonged to his tribe. So rather than contend with a leader who wouldn’t negotiate at all, the federal government propped up others it arbitrarily decided to consider leaders and brought them to the treaty table. Never mind that they had no authority to sign on anyone’s behalf, never mind that they didn’t represent any constituency: thirty-two Pembina “chiefs” arbitrarily chosen by the federal government along with dozens of other Turtle Mountain Chippewa signed the McCumber Agreement in 1892, which formally ceded all of Little Shell’s land for a pittance. When Little Shell returned to Turtle Mountain with his people, he found that not only had the other so-called leaders sold his land out from under his feet but also he had no official standing at Turtle Mountain. Overnight Little Shell and his band had gone from Indian masters of their own vast territory to landless people who, according to the treaties and founding documents of Turtle Mountain, weren’t, politically and legally at least, Indian at all. They had been written out of existence by a stroke of the treaty pen.

  “It was 1884, I think, Little Shell went out hunting, with a hunting party,” says Sierra Frederickson. We are sitting in a brewpub in Williston, North Dakota. Sierra is Little Shell Ojibwe. “We’re called the ‘landless Indians of Montana,’” she tells me wryly. “You call us landless and at the same time you ask where we’re from. How’s that supposed to work?” Sierra is young and brilliant, a writer and a teacher at the community college here, passionately committed to advancing the cause of her band however she can.

  Sierra is talking about the aftermath of the McCumber Agreement. “It was kind of a power grab by other bands around Turtle Mountain,” she says. “There were only a certain amount of people who could enroll in the new rolls. A lot of Little Shell’s people were métis, or half-blood, so they didn’t get on the rolls and got pushed off. Some of the Little Shell people had left the reservation before the agreement was signed. They went along the Hi-Line and moved west to Le Havre, Lewiston, places like that. Others didn’t go and they were rounded up and put on boxcars and brought to the Hi-Line in Montana and just dropped off.” From there the Little Shell Band endured a hellish diaspora, wandering in the desert of their own former territory. They settled in small groups in Le Havre, Lewiston, and Great Falls, from there splintering into even smaller groups as they chased work. Some reservation communities—Cree at Rocky Boy, Assiniboine and Lakota at Fort Peck, Shoshone-Bannock at Fort Hall—took them in.

  Sierra’s own grandparents grew up on the Rocky Boy Reservation, descendants of the five or six hundred members of the Little Shell Band who left or were removed from Turtle Mountain. “My grandma’s mom was born in the Sweet Grass Hills, near Browning. It’s really interesting to go through, in my ancestry, to see where they were born and where they died. It’s interesting to see where everyone moved.” With each split and each move, the Little Shell lost more of their sense of themselves. At stake was not merely some kind of round self-regard: without community and without place, without land, a people becomes leprous, they lose bits and pieces of themselves and the safety net that shared language, experience, lifeway, and place can provide. Sierra’s life story bears some of these scars.

  “I was born in Great Falls, Montana, but grew up in Bridger. My parents got divorced then. My dad was in and out of treatment a lot.” The atmosphere at home was pretty violent. “We moved to get away from all of that. My mom’s brother lived in Bridger. Another brother lived about thirty minutes away. So from second grade through high school I lived there. I graduated from Bridger. The population of the town is about seven hundred. It’s a ‘bigger small town.’ We have Jim Bridger Days. They are ridiculous. There is a street dance, they block off the street but the street’s not very long. It’s a really small town! My parents have been there for sixteen or seventeen years. They aren’t considered as being ‘from Bridger.’ We’re probably the only Indian family in town. It’s right next to the Crow reservation but . . . there aren’t any Indians there.

  “There wasn’t a lot of racism that I noticed. Maybe more in high school and then I was more vocal about things. People would say things in class and there were no other Natives there except me, so I would say things and they would say things back. There was a little bit of that. There was an incident when someone says my dad was just an Indian and a cow thief. Things like that. But nothing really crazy. My mom is a hairdresser in Bridger, so she knows everything. My dad buys and sells cattle. A rancher, more or less. Kind of an in-between guy. Someone would call him and say, ‘I want five hundred calves and I can only spend this much,’ and my dad will go to the sale and buy them and get them shipped. My stepdad looks pretty Native, he’s Blackfeet. My sister isn’t Native, and my brother has dark blond hair and blue eyes. In my big, complicated family some of us are Native and some of us aren’t, and most people in Bridger don’t know we’re Native or that some of us are, at least. I mean: we played Crow in basketball and you’ll hear, ‘The Crow are dirty. They steal, they are lazy, and they don’t want to work.’”

  The life Sierra’s mother made with her stepfather in Bridger seems to have been a good one. The past she left behind with Sierra’s biological father isn’t so sweet or rosy. “I haven’t talked to my father since I was a junior in undergrad, about four or five years. We had a really difficult relationship; now we don’t really have a relationship at all. It’s been hard since I was really little. Me in particular. My little brother was about two when they got divorced. I was five or six when they separated the first time. I actually got PTSD when I was three or four. I remember some stuff. But I’ve blocked a lot of stuff out. He was really violent. It was tumultuous. The cops came around a lot. He was in treatment two or three times for alcohol and drugs. And he would break out and come to our house in the middle of the night and he’d have his friends come over. We moved to Bridger. And we’d do visitation, once a month or so. But when I got to middle school I had a lot of questions. I asked my mom a lot. She was always good about it. She didn’t want me to think bad of him. She’d say I have to accept him for who he is beca
use I’ll never get answers for some of the stuff I want answers for. My dad never came to track meets and volleyball and things like that—he said he was too far away. Four hours away in Great Falls.” She pauses. “I just wanted to know why drinking was more important than us. I asked him that. Never really got an answer to that one.”

  It’s difficult enough to pick up the pieces—of a life, of a community—if there is a place of return, some remnant of a homeland. Red Hall had a place to return to. When he ran away with his wife when they were very young, they went to Fort Belknap to stay with Red’s relatives. They returned to Blackfeet country after a year. He worked in Washington and Oregon, and returned again. He served in the army and returned in the 1950s, left again to work for the railroad. Browning and the Blackfeet reservation were rooted deep within him, and he was rooted deep in the place. Red is one of those guys who not only knows where everyone is but—because his memory is so good—remembers who lived there before, when the house was built, what colors it was painted over the years, and so on. And all that back-and-forth traffic in his life that brought him from the reservation out into the world and back brought his skills and experiences on similar journeys. One result was that life got better for Red and for his reservation. In this way, the tribe reaped the benefits of the Works Progress Administration, the Civilian Conservation Corps, service in the armed forces, and the GI Bill.