by David Treuer
What is surprising is not that more than twenty-five hundred tribal members in California have been disenfranchised in the past decade for such reasons. It’s human—and American—nature to want to concentrate wealth in as few hands as possible. What is surprising is the extent to which Indian communities have continued using a system of blood membership that was imposed upon us in a violation of our sovereignty.
In the late nineteenth and early twentieth centuries, the U.S. government entered into treaties with Indian nations that reserved tracts of land for tribal ownership and use and guaranteed annuities in the form of money, goods, or medical care. Understandably, tribes and the government needed a way to make sure this material ended up in the right hands. Blood quantum, and sometimes lineal descent, was a handy way of solving that problem. For instance, if one of your grandparents was included on the tribal rolls and you possessed a certain blood quantum—say, you were one-fourth Navajo—the government counted you as Navajo as well.
But it had another benefit, for the government at least, which believed that within a few generations intermarriage and intermixing would eliminate Indian communities, and the government would be off the hook. “As long as grass grows or water runs”—a phrase that was often used in treaties with American Indians—is a relatively permanent term for a contract. “As long as the blood flows” seemed measurably shorter.
Indians themselves knew how artificial this category of tribal membership was and used it to their own advantage. Before my tribe, the Ojibwe, established the White Earth Reservation in Minnesota in 1867, Chief Bagone-giizhig lobbied to exclude mixed-bloods from the rolls—not because they weren’t Indians but because, most likely, they formed a competing trader class. Bagone-giizhig swore they would rob White Earth blind. That he was right is a bit beside the point—he probably wanted to rob it blind himself.
Something similar happened after the passage and subsequent amendment of the Dawes Act of 1887, which established a process of allotment under which vast lands held in common were divided into smaller plots for individual Indians. Although excess land could be sold off, full-blood Indians were forbidden to sell. But whites wanted the land and sent in a genetic investigator. In short order, the number of registered full-bloods at White Earth Reservation went from more than 5,000 to 408.
After Congress passed the Indian Reorganization Act in 1934, effectively ending the allotment of land, the provisions of blood quantum became ingrained in Indian communities. They determined if you could vote or run for office, where you could live, if you’d receive annuities or assistance, and, today, if you get a cut of the casino profits. Blood quantum has always been about “the stuff,” and it has always been about exclusion. I know full-blooded Indians who have lived their entire lives on reservations but can’t be enrolled because they have blood from many different tribes, and I know of non-Indians who have been enrolled by accident or stealth just because they’ll get something out of it.
Things were different once. All tribes had their own ways of figuring out who was a member—usually based on language, residence, and culture. In the case of the Ojibwe, it was a matter of choosing a side. Especially when we were at war with the Dakota (many of whom were our blood relatives) in the early nineteenth century, who you were was largely a matter of whom you killed. Personally, I think this is a more elegant way than many to figure out where you belong. Who is and who isn’t an Indian is a complicated question, but there are many ways to answer it beyond genetics alone. Tribal enrollees could be required to possess some level of fluency in their Native language or to pass a basic civics test. On my reservation, no schoolchild is asked to read the treaties that shaped our community or required to know about the branches of tribal government or the role of courts and councils. Or tribal membership could be based, in part, on residency, on some period of naturalization inside the original treaty area (some tribes do consider this). Many nations require military service—tribes don’t have armies, but they could require a year of community service. Other nations take these things into account, and in doing so they reinforce something we, with our fixation on blood, have forgotten: bending to a common purpose is more important than arising from a common place.
Of course, just remaining alive and Indian for the past 150 years has been one of the hardest things imaginable. A respect for lineage is a respect for the integrity of that survival, and it should remain a metric for tribal enrollment—but not the only one. Having survived this long and come this far, we must think harder about who we want to be in the future and do something more than measure out our teaspoons of blood. Also, as Lumbee legal and political scholar David Wilkins points out, disenrollment often occurs when there is no casino money at stake. This is precisely what is happening up the road from Tulalip among the Nooksack.
The Nooksack, a Coast Salish tribe in the corner of Washington state, were, historically, much like the Tulalip and other coastal tribes in the Northwest: they lived in small villages, fished extensively, and were avid traders. They were much diminished during the nineteenth century and lost federal recognition along the way. However, they fought back and after a long road—tasked with the absurd chore of proving to the government that tried to wipe them out that they actually did exist—they won back federal recognition in 1973. At that time the tribe controlled but a single acre, but over the past forty years it has been purchasing back land, and now it has nearly twenty-five hundred acres of land in trust with the federal government. The tribe also owns and operates a small casino, but it isn’t much more than a jobs program for some of the seven hundred tribal members (of more than two thousand enrolled members) who live on or near the reservation.
That story—of a small tribe that was all but destroyed or absorbed into surrounding communities but fought for its continued existence and won—might have been the whole of the Nooksacks’ story. Except in 2012, the tribal chairman swerved. A tribal member named Terry St. Germain filed paperwork to have five of his children enrolled. It should have been a simple procedure. But the enrollment process stalled. When Terry’s brother Rudy asked Bob Kelly, the tribal chairman, what was going on with the paperwork for his nieces and nephews, the chairman said they were missing documents, and it seemed that the St. Germain children couldn’t be enrolled. Not only that: Rudy, Terry, and the rest of the St. Germains—all of whom traced their ancestry back to the same ancestor, Annie George—should be disenrolled. All in all, Bob Kelly determined that 306 living descendants of Annie George should be jettisoned. Kelly maintained that he was simply following the tribe’s rules: Annie George wasn’t on a 1942 federal census—United States censuses of Indians since the nineteenth century are known to be woefully inaccurate—used to determine lineal descent. And he felt it his duty to follow the rules despite the resulting social turmoil. The tribal council stopped functioning properly, meetings were canceled, tribal business was not attended to, sides were taken, a judge was fired. In a community that small, you pull one string and the tribe unravels. Kelly was passionate about the decision, not just for the rules’ sake, but in order to protect Nooksack culture. “I’m in a war,” he told a reporter from The New York Times. “This is our culture, not a game.” But is it?
Culture isn’t carried in the blood, and when you measure blood, in a sense you measure racial origins. Or, more accurately, you measure the social construct that race is. Culture is carried on in many ways—kinship, geography, language, religion, lifeways, habits, and even gestures—but not in blood. I think that Kelly is about as far from the truth about culture as one can be: by relying on blood to measure culture, all you are doing is showing that you don’t have much culture left anyway. Blood matters. And blood is and will continue to be used as a way to determine who is in a tribe and who isn’t. But it is useless to determine who is and isn’t part of a culture. It should be noted that there is only one remaining fluent speaker of Nooksack—and how, for that matter, can fluency even be measured if no other
speakers remain to evaluate it?
What’s fascinating to me is that the whole question of culture didn’t become part of the conversation about who is and who isn’t Indian at all until the period AC—After Casinos. True, being Indian (as something one did in addition to being something one simply was) began back with the Red Power movement and was amplified by AIM. But in those early discussions and actions, being Indian was more a matter of politics and emotional affinity than a matter of culture. Even the religions claimed by AIM were antagonistic and political: AIMsters danced the Sun Dance as a way of saying “We’re not you” more than as a positive assertion of religious identity. But after casinos began injecting millions and then hundreds of millions and then billions of dollars into Indian economies, culture really came to the fore of discussions of Indianness.
In part this phenomenon appears to be generational in origin. Many of the Indians who moved to cities in the 1950s, 1960s, and 1970s stayed in the cities. They put down roots, got jobs, went to school, and had families. Their urban and suburban children were raised on story after story of the rez—stories about bad cars and violent sheriffs and selling blueberries or baskets or tamales or necklaces by the roadside; about five or ten or fifteen people living in a shack; about one drunkscapade after another; about the foibles or idiosyncrasies of this or that elder. These stories became foundational myths, benchmarks of authenticity, even though they were all, in one way or another, stories of loss. Nonetheless, for many Indian kids not raised there, the reservation and the mythology around it carried the idea that there was more to being Indian than simply having a tribal ID card. The new emphasis on culture may also be a matter of class, too. By the 1980s, a recognizable Indian middle class had begun to emerge. The origins of this class can be traced back to the earliest days of the reservations—to mixed-blood Indians who set up shop as traders, foremen, loggers, miners, and the like, relying on both their Indian and their white families. Also, as destructive as the boarding school era was, it had taught many students to not only read and write but to farm, sew, and operate and fix machinery as well. And allotment had made property owners of many Indians. With that added level of security, work and capital were suddenly available to them. World War II and the social programs of the 1960s and 1970s also helped bring a few Indians into the American middle class without necessarily compromising their culture. The advent of casinos could be seen as yet another step in this progression. Gabe Galanda, the lawyer who represents the “Nooksack 306” in their battle to be reenrolled in their tribe, notes that while Indians on reservations saw their income rise 33 percent and the poverty level decrease by 7 percent after the advent of casinos, there was little evidence to suggest that the rise of income and the fall of poverty could be attributed directly to casino income.
The energy around the casinos, and the money derived from them, fed efforts to promote Indian culture, too. Casino-rich tribes—and even tribes like mine that haven’t made much from gambling—began sponsoring powwows with large purses for dancers and drum groups. They built and operated museums. They continued and expanded tribal schools where students learned reading, and writing, and math but also took classes in Indian singing and drumming, crafts, and tribal languages.
All in all, by the end of the 1990s there was enough cushion for enough Indians and enough money to begin pondering, in earnest, what being Indian meant. Identity politics is a game usually played by people who can afford it. And by 1990, many Indians could afford it. They had enough space in their lives to want to connect to their tribes in ways that were value positive, that didn’t see being Indian as a matter of being a full-blood or being enrolled or being simply “dark,” as had been the case when I was growing up. Rather, being Indian became a matter of knowing your language, attending ceremony, harvesting game and wild rice or piñon or salmon. Being Indian was still to some degree a matter of blood, but it was also in the process of becoming about much more. By 2012, when tribal chairman Bob Kelly began kicking people off the rolls at Nooksack, the culture question was much larger and more nuanced than he could imagine. And for many Native people, the idea that kicking out three hundred members—or 15 percent—of your tribe was in some way protecting tribal culture was, on the face of it, ridiculous.
* * *
—
AS CHARLES WILKINSON POINTS OUT, by the 1970s tribes across the country had, for the first time, an “emerging litigation” capability. The legal-services organizations funded under the OEO that had helped Helen Bryan were taking root across the country. In the nonprofit sector, legal organizations like the Native American Rights Fund and the Indian Law Resource Center also represented Indian individuals, tribes, and tribal interests in areas such as taxation, undoing the ravages of the Termination Act, and advancing Indian interests and rights internationally. This was a good time, legally speaking, to be an Indian. As the Indian legal and professional class grew, the Supreme Court kept pace, recognizing Indian rights in more than 120 decisions handed down since the 1950s that touched on tribal affairs, Indian rights, and tribal sovereignty.
The frenzy of Indian legal activity in the 1960s and 1970s—government initiatives and programs, the disposition of the Supreme Court, and nonprofit organizations fighting for Indian rights—not only helped secure the idea and fact of Indian tribal sovereignty; it also “breathed life into a basic principle of American law and political science widely recognized in the early days of the Republic but dormant since the late 1800s”—namely that “there are three branches of sovereignty within the American constitutional system, the United States, the states (cities and counties are subdivisions of state sovereignty), and the Indian tribes.” The idea of sovereignty—until the 1980s usually explored and litigated in terms of treaty rights (usually but not always stipulated in treaties, such as the right to hunt, fish, and gather)—expanded to include gaming (the right to administer to the civil concerns of the tribe).
The civil reach of sovereignty was furthered in the Southwest in the 1980s when the Jicarilla Apache were brought to court by oil and gas companies that had long-standing leases on Apache land. The Jicarilla Apache Reservation in northern New Mexico sat on top of coal, oil, and gas reserves. Those reserves had been tapped by energy companies through lucrative leases with the tribe (written and executed with the heavy hand of the BIA). In the late 1970s, the Apache were no longer content with the deals that had been struck. The tribes, unable to simply change the leases, wanted to tax the oil companies. Their constitution (revised in 1968 and approved by the secretary of the interior) gave the tribe the “authority to pass ordinances to govern the development of tribal resources,” so in 1976 the tribal council adopted the Jicarilla Oil and Natural Gas Severance Tax, applicable to “any oil and natural gas severed, saved and removed from tribal lands.” The oil and gas companies sued. And the case wound up in the Supreme Court in 1982. The court found for the tribe. Justice Thurgood Marshall’s opinion articulated a delicious reversal of the prevailing attitude that tribes were savage, or pitiful remnants of savage people without “real” civilization. He wrote that the oil companies “avail themselves of the ‘substantial privilege of carrying on business’ on the reservation. . . . They benefit from the provision of police protection and other governmental services, as well as from ‘the advantages of a civilized society’ that are assured by the existence of tribal government. . . . Under these circumstances, there is nothing exceptional in requiring [them] to contribute through taxes to the general cost of tribal government.” But there were other, less tangible shifts that emerged from the sovereignty surge in the 1980s.
My mother had been born in 1943 in the Cass Lake hospital on the Leech Lake Reservation. She grew up with her three brothers and sister and parents in a two-room cabin in Bena, a town not known for much except for spawning generations of brawlers and (eventual) convicts. My grandfather, a World War II vet, and my grandmother didn’t make much. The shack had electricity but no running water,
and no heat except a barrel stove. They dug a root cellar underneath the tacked-on kitchen area, and my mother had to descend a ladder into the damp depths to retrieve potatoes. Neither parent pushed education very much, and my mother was pulled from school regularly in the fall to harvest wild rice. In the summer, her uncle Howard took her along with his wife and kids near the Canadian border, on the Ash River, to pick blueberries. Her cousin, my uncle Bobby, remembers those berry-picking trips. “In the early morning we’d head out in the hills and start picking berries. You learn to pick fast and my dad was a fast picker. Sticks, twigs, green berries, he didn’t care as long as he filled his baskets. We’d dump them all into packing crates but you can only carry a packing crate through the woods so far. Your arms give out! So my dad stapled some lath together, and then he cut up some inner tubes and stapled those on and bang: we had ourselves backpacks. We picked blueberries till it was really hot in the afternoon and then we’d swim over at the Ash River. At night me and Mikey would lay with our heads out of our tents and look for Sputniks. That’s what we called satellites at that time.” They got paid twenty-five cents a pint for blueberries.