The Heartbeat of Wounded Knee

by David Treuer

  Our three hours of cutting had yielded just short of ten pounds of bark. At eight dollars a pound, we had made almost forty dollars apiece. “I want people to know they can do this, David. They can do this. They can live off the land, just like I do. It beats working at Walmart or McDonald’s. What could be better than spending the day in the woods, getting exercise, and getting paid for it? It’s what we’ve done for centuries. We’ve always done this. And we can still do this. But we have to change our thinking. We have to work together and we got to want it. I just wish our people wanted it more.”

  I think the people do want it, increasingly so. Our people spent the better part of the 1960s and 1970s figuring out how to be both Americans and Indians: how to move forward into the future in such a way as to not leave the past behind; to once and forever destroy the idea that to live one kind of life meant shedding the other one; and to find some productive balance between growth and violence, between destruction and regeneration. This balance eluded the leaders of AIM. It eluded Peltier. But it did not elude the many thousands of Indians who worked together to build schools and clinics and jobs programs, who went to college and went to powwows, who (like my mother) practiced the law as a way of perfecting it while carrying herself with the kind of fierce dignity that characterizes our tribe. As the 1970s wound down, so did the public and private violence that gave rise to, and was added to, by AIM. The effects of that violence—done to us and caused by us—will surely be felt for years. But we shuffled into the Reagan years with a kind of collective sigh, ready for some peace and quiet for a change.

  Months later, I called Bobby to go over some details. He had just dropped off two pickup loads of jack pinecones. Nine hundred seventeen dollars’ worth. “I traded those cones for two rice parchers. I was thinking of getting into the rice processing business. I’ve got a lot to learn. I’ve never been a parcher. But if I can learn how to do it, to make rice that you always sit down for, and I start buying rice, we might be able to drive the price up around here so we can make a living with it. Everyone can.” Before I rang off, he said, “Hey, check this out: I was out in the woods checking for cones and I saw the beavers and they’d been pulling up roots and cutting branches, putting fresh mud on their lodges in August. Then they stopped. They just stopped. No new feed piles. No new mud. I thought to myself, ‘Well, this is a damn strange thing! I wonder what the beavers know that we don’t?’ Maybe we’ll get some more warm weather before it gets cold, David. Maybe they know what the weather is gonna do. Think about that. Amazing, huh?”

  The beavers were right. And so was Bobby. The weather was warm for another six weeks, and Bobby was out there picking cones.

  PART 6

  Boom City—Tribal Capitalism in the Twenty-first Century

  In February 2015, amid the cedar masks, canoe paddles, and totem poles at the Tulalip Resort Casino north of Seattle, the talk was all about pot. Indian country had been abuzz about cannabis since the previous fall, when the Justice Department had released the Wilkinson Memo, which seemed to open the way for tribal cannabis as a manifestation of tribal sovereignty. The gathering at Tulalip was technically a CLE (continuing legal education) conference, so one might have expected lawyers. A stew of lawyers in thousand-dollar suits were there, of course, but so were private equity entrepreneurs, tribal officials, and tribal potheads. One of the latter, a gangly twenty- or thirtysomething wearing Chuck Taylors, a very ripped T-shirt, and a headband that held back his lank hair, slouched low in his chair and didn’t speak a word all day. His companions spoke a bit more, but with the sleepy demeanor of people who have just purchased a dime bag and smoked it all. They didn’t talk business as much as they talked relationships: We have a relationship with pot. It’s a medicine from Mother Earth. Like, cannabis is tribal. It’s consistent with our relationship with Mother Earth. Wandering among them were tribal small business owners, people who ran gravel companies or sold smoked fish or espresso along the freeway. They had forked over the five hundred dollars for lunch and a name tag to explore what marijuana legalization might mean for their community—or maybe to explore where the pay dirt lay at the intersection of legalization and tribal sovereignty. The lawyers and policy people presented on state laws; the history of marijuana legalization in California, Colorado, and Washington; and the social, cultural, and political ramifications of legalization. Tribal leaders spoke about the ways in which tribal growing could be a whole new revenue stream, if not a new tribal industry. Behind these discussions were coded questions, old and new: How best to provide for a people in the absence of industry and opportunity? How to use tribal sovereignty to the best possible effect? Did tribes really want to invest in another “lifestyle economy” like tobacco shops, casinos, and tourism? No one knew what to make of the potheads.

  The received notion—reinforced at every turn in editorials and investigative pieces and popular culture—is that reservations are where Indians go to suffer and die. They are seen by many Indians as well as non-Indians not as expressions of tribal survival, however twisted or flawed, but as little more than prisons or concentration camps, expressions of the perversion of American democratic ideals into greed—greed rapacious enough to take Indian land and decimate Indian populations but not quite harsh enough to annihilate us outright. But reservations are not stagnant places. Despite their staggering rates of unemployment, they are the home not only to traditional ways of living but to new tribal business as well. Pot as a tribal industry has a parent: the casino. Arguably, its arrival in Indian country had as defining an effect on the social and economic lives of Indians in the past fifty years as the mass migration of Indians to American cities. Many Indians, knowing this, refer to the time before tribal gaming as “BC”—Before Casino. So as the smell of cannabis, or at least its potential, hovers in the air, and everyone wonders what the latest “thing” will do to—or be made of—in Indian country, we can learn a lot by tracing the genetic code of tribal business back a generation.

  * * *

  —

  AS SOON AS THE SUBJECT of casinos comes up with outsiders, the same questions always pop up. I present them here to dispense with them, because they get in the way of our actually understanding the effect casinos have had on Indian life.

  Q: Have casinos made Indians rich?

  A: Some. Of the more than 500 federally recognized Indian tribes in the United States, fewer than half (238 tribes) own and run gaming operations. For instance, in 2002, 12 percent of tribes earned more than 65 percent of all Indian gaming revenue. So some tribes do very well with gaming, others so-so, and the majority not so well at all.

  Q: Do Indians get money from casinos directly?

  A: Some. Some small tribes pay per capita payments to tribal members from their casino profits. The smaller the tribe and the bigger the casino, the bigger the payment. The St. Croix Chippewa Indians of Wisconsin have roughly one thousand enrolled tribal members. The tribe owns and operates three casinos. Tribal members receive per capita payments of between $5,000 and $8,000 annually. By comparison, the Pechanga Band of Luiseño Indians, who own Pechanga Resort and Casino in Temecula, California, with the same number of tribal members, distributed $290,000 annually to each of them as of 2006. Most gaming tribes, however, do not distribute per capita payments at all, and revenues, such as they are, are used in lieu of a tax base for roads, schools, eldercare, and so on.

  Q: How come Indians don’t have to pay taxes on any of this?

  A: They do. Most Indians don’t pay state tax if they work and live on their home reservations, but all pay federal income tax and property tax on land they own outright. Tribal casinos don’t pay corporate taxes, but they do payroll taxes, etc., just like any other business operating in the United States. And the gaming compacts signed between tribes and states often include provisions that redirect some casino profits to states and state organizations.

  Q: Have casinos destroyed Indian culture?

  A: That’s a
stupid question. Has commerce (generally) destroyed American/Chinese/German/French culture?

  Q: Why did the government give casinos to Indians?

  A: The government didn’t “give” us casinos. Gambling is (among many other things) a civil matter and a right we’ve reserved or retained. The freedom to gamble for money is a right we had long before white people showed up in the New World. Much more on this later.

  Q: Isn’t it sad to go into casinos and see Indians gambling? I mean, they have all sorts of other addictions to contend with.

  A: Ha ha. When I walk into casinos I see way more white and Asian people gambling than Indians. The more they lose, the richer we get.

  * * *

  —

  NOW THAT THAT’S OUT OF the way, let’s begin. Casinos, believe it or not, owe their existence to a $148 tax bill on a trailer in the village of Squaw Lake on the remote north end of Leech Lake Reservation. In the spring of 1972, Helen Bryan and her husband, Russell, were sitting at their kitchen table drinking coffee when they saw a pickup truck pull into the yard. Squaw Lake is not the kind of place one wanders into. They watched, curious, as a man got out of the truck and began measuring their trailer. Once he was done measuring, he took pictures. And then—without having knocked on the door or introduced himself or even asked the Bryans’ permission to step onto their property—he got back in his truck and drove away.

  As it happened, the trailer was something of a miracle for the couple. They had been able to put an $800 down payment on it in 1971 thanks to some of the GI insurance money that came to Helen’s family after the death of her brother, a Vietnam vet. It was a modest two-bedroom affair, but it gave a home to Helen and Russell and their six kids—Russell and Helen slept in one bedroom, the girls in another, and the boys in the living room. They had heat, running water, and electricity at a time when having all three at once, in a home of one’s own, was something of a rarity on the reservation. Helen worked at the Leech Lake Head Start for minimum wage, and Russell didn’t work at all, but even on their meager income they could cover the trailer’s $92/month mortgage. A few weeks after the arrival of the mysterious visitor, however, Helen received a tax bill of $29.85 for the remainder of 1971. She was confused: she hadn’t thought she’d have to pay taxes on her trailer. Russell didn’t care. He said they should pay it. “He wasn’t mad like I was,” remembers Helen. “I said it was wrong, it’s got to be wrong. And how was I going to pay for taxes and feed my kids and make house payments?” She ignored the bill. But like all tax bills everywhere, it didn’t go away and it was followed by others. The bill for 1972 was $118.10, bringing her total to $147.95. Helen didn’t know what to do. Things were so tight for her family that the bill—small though it was—mattered a great deal. And then there’s Helen’s nature as well: she might be a poor young mother from a remote reservation, without access to lawyers and help, but she knew that the bill was wrong. It was just wrong. And she wasn’t going to pay it.

  Then Helen remembered that a legal program had been started on the reservation a few years back. The Leech Lake Reservation Legal Services Project was founded in 1967 under the auspices of the Office of Economic Opportunity, empowered by the Economic Opportunity Act of 1964. It was the first independent Indian legal-services project in the country. (It persists to this day, fighting for the legal rights of Indians under the name Anishinabe Legal Services.) Helen called them up and explained her situation to Jerry Seck, who thought she had a good case. He agreed to take it on, and he wrote down her information. Helen mailed the tax notice to the office, and over the ensuing months, lawyers from the office called occasionally. Finally, Seck phoned Helen and told her they were going ahead with her case. He promised he’d buy her a beer if they won.

  The social genius of legal-services organizations is that they can take good cases and argue them in broad and interesting ways. Helen’s case could have been argued narrowly: The Bryans’ trailer was attached (annexed) to Indian land. As such, it was considered tribal property and exempt from state taxes in the same way that state, county, and federal lands and buildings are not taxed by states. The broader and bigger argument was that the state didn’t have the authority to assess personal property tax on Indians living on Indian lands. The idealistic young attorneys at the Leech Lake Reservation Legal Services Project opted for the harder path. They lost.

  The Itasca County district didn’t agree with the Bryans’ argument. It was a hard argument to understand, and the precedent was murky, as was the implicated legislation. But basically the reasoning was that, as the U.S. Constitution granted the federal government, not the state, power over tribes, absent express legislation or federal consent—such as the 1953 Public Law 280, which transferred some criminal and civil jurisdiction from the federal government to the states—the states had no power over the tribes. As previously discussed, PL 280 was intended to combat lawlessness and to give Indians better access to the criminal and legal systems they needed. It was not intended to do any more than that. The civil section of the law reads: “Each of the States listed . . . shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State.” But the states had interpreted it as a much broader transfer of civil power. The Bryans’ lawyers appealed to the Minnesota State Supreme Court. They lost again. That beer, and relief from the taxes, had begun to seem very unlikely. But then the U.S. Supreme Court agreed to hear the case.

  By now, many of the lawyers who had started on the case had left the legal-services team. A new lawyer stepped in. Bernie Becker, from New York, was portly, brilliant, and personable; a great ally. He argued that PL 280 had been meant as “law and order” legislation, and only that. If the government had intended PL 280 to include all civil actions (like taxation), it would have said so. And if it had been written with that intent, it would have, in effect, been “termination” legislation. Congress had passed other termination legislation and had been clear about its intent.

  Part of the problem, Becker argued, was that PL 280 was vague (so vague, in fact, that it had been amended more than thirty times). He further argued that tribes had not consented to PL 280. It had been imposed on them, and if it had been imposed on them as a sneaky way to terminate them, Congress “would have ‘slipped one by the Indians.’” C. H. Luther, representing Itasca County, argued that PL 280 was indeed intended as an “integration and assimilation” initiative. This argument was bullshit, just another way of saying “termination legislation,” part of a host of 1950s legislation with that aim. Becker was ready for him. True, the government had wanted to terminate tribes. It had passed legislation that clearly did just that. But those laws were very clear on which rights they would no longer recognize, whereas PL 280 had no such language. And that was because it had been passed to help tribes, not demolish them. On June 14, 1976, the Supreme Court ruled unanimously for the claimants. Writing for the court, Justice Brennan noted, “The same Congress that enacted Pub.L. 280 also enacted several termination Acts—legislation which is cogent proof that Congress knew well how to express its intent directly when that intent was to subject reservation Indians to the full sweep of state laws and state taxation.” In the opinion of the court, there was nothing in PL 280 “remotely resembling an intention to confer general state regulatory control over Indian reservations.” Jerry Seck called Helen with the news. “I was really happy,” she says. “That was $147 off my mind. And I didn’t get no more tax notices.” The news was picked up by Minnesota papers and by The New York Times, which headlined it “Justices Bar State’s Taxation of Reservation Indians.”

  For Helen and her family, life
didn’t change much. She was still poor, and she remained poor. “I never got nothing from nobody,” she told me in that quiet, fierce way of hers. “I never got a penny from the tribe for housing or anything like that. I supported all eight of us my whole life. But when Russell died the tribe offered to pay for his funeral and for his headstone, but only if they could choose the wording for it. I said sure. So they put RUSSELL BRYAN VS. ITASCA COUNTY—VICTORY right on the headstone. That’s all I got from them. The papers picked up the story and said that the ruling affected ten thousand Indians in Minnesota. I told Russell at the time if we did so much maybe if every Indian in Minnesota sent us a dollar, we’d be rich!” I think everyone should. Send your dollars to Helen (Bryan) Johnson, 60876 County Road 149, Squaw Lake, MN 56681.