by David Treuer
When oral arguments resumed after lunch Becker corrected himself on record. He said that tribes did not consent to PL 280. And if tribes had consented, and if PL 280 was meant to give regulatory powers to state governments, then Congress would have “slipped one by the Indians.” Becker continued to push a narrow argument confined to taxes and personal property. Though his argument was narrow, it is a marvel that the Bryans’ lawyers didn’t take the easy road and simply argue that the trailer was affixed to the land sufficiently to make it real estate (held in trust) rather than personal property. The justices continued to question widely.
After Becker concluded, the attorney for the state attorney general’s office argued on behalf of Itasca County. His main argument was that PL 280 was, in fact, a termination act—that it was regulatory in nature and aimed at terminating the special status of Indian tribes.
In the history of federal policy it is hard to find anyplace where the effect of policy itself is more noticeable than in Indian affairs. For most Americans policy has a limited immediate effect, except in extreme cases such as civil rights and the New Deal. Not so for Indians. And for Indians, Winston Churchill’s quip that “Americans always do the right thing after they’ve tried everything else” couldn’t be more true. There have been five major policies and five major shifts in those policies that have shaped the lives of Indians on reservations around the country.
During the treaty period in the mid-nineteenth century many Indian tribes—including the Cherokee, Creek, Choctaw, Chickasaw, Seminole, Winnebago, Sac and Fox, Delaware, Dakota, Ojibwe, and dozens of others—were either coerced into moving or moved by force to areas that were less important or had fewer natural resources than their homelands. Sometimes the tribe moved a matter of a few miles. In other instances whole tribes were force-marched under cruel conditions to lands and landscapes alien to their culture and history.
The disaster of allotment was somewhat ameliorated by the “Indian New Deal.” Passed in 1934, the Wheeler-Howard Act (also known as the Indian Reorganization Act, or IRA) reversed the policy of assimilation and allotment. Rather, tribes were encouraged to form representative governments with their own elected officials and to strengthen their own governments. Two million acres of Indian land were returned to Indian control. Various economic initiatives were launched and a new era seemed to dawn—in which Indians were encouraged to be in control. It didn’t last.
The U.S. government—buoyed by its economic superiority during the 1950s, and convinced that suburbs, the nine-to-five workday, and industrial production were the way to go—initiated a new policy beginning in Truman’s administration: termination. This policy was dedicated to ending the U.S. government’s responsibility to and for Indian tribes. Money dried up. Programs set up under the IRA went unfunded. Indians were actively encouraged to leave the reservation through the Voluntary Relocation Program, which promised work and education, but only in cities far from reservations. Few of the promises made were kept, and hundreds of thousands of Indians ended up in San Diego, Los Angeles, Chicago, New York, and Minneapolis with no housing, no education, no job training, no jobs, and no money with which to return home. Five reservations were wiped off the map and 112 Indian tribes in California lost their federal recognition. This was the policy in place when PL 280 was passed in 1953.
So it made sense for C. H. Luther, arguing the state’s case before the Supreme Court in 1976, to suggest that PL 280 was a termination act. But his strategy played right into Becker’s hand. When Becker was called on to rebut he said that the U.S. Congress knew very well how to pass laws that were explicitly designed to terminate tribal rights. It had passed many termination laws that were quite clear on the rights they no longer recognized. But since PL 280 had no such clear language, it was surely not a termination act, meant to destroy tribes. Rather, it had been passed to help them. Furthermore, he argued, if PL 280 was meant to destroy tribes, to assimilate them and terminate them, then it would have been aimed at tribes with strong governments that resisted assimilation, such as Red Lake, and not at tribes already close to capitulation, such as Leech Lake. With that, Becker rested. The court adjourned and everyone waited.
The climate was good for a win. Termination policy had been reversed, again. With Johnson’s Great Society still in the works, lots of money had been poured into tribes, making them stronger. Antipoverty measures had been enacted in America’s poorest places. Self-determination was the new policy, the new watchword. Tribes were encouraged to make life better for their members, to think creatively about how to solve the dire problems they faced. And on the heels of the civil rights movement and with a liberal court, things just might go our way.
They did.
On June 14, 1976, the Supreme Court ruled unanimously in favor of the Bryans. Jerry Seck called Helen Bryan with the news. “I was really happy,” says Helen with a laugh. “That was $147 off my mind. And I didn’t get no more tax notices.” My mother was home on Leech Lake and interning at the same offices where the case began—the Leech Lake Reservation Legal Services Project—when the call came. The director, Michael Hagedorn (normally quiet-mannered), answered the phone and began jumping up and down shouting, “We won! We won! We won! We won!” The next day a headline in the Minneapolis Tribune shouted, “States Forbidden to Tax on Reservations,” although the New York Times was more subdued and more accurate: “Justices Bar State’s Taxation of Reservation Indians.”
Helen had endured abject poverty and disenfranchisement—she remembers having had a phone before either running water or electricity. Her current husband, Bob Johnson (Russell died in 1994)—shy, dark, self-effacing—remembers clearly the way Indians were treated back then. “I joined the 82nd Airborne during Korea. I lied about my age and joined when I was fifteen. I did nineteen months in Korea. Two tours. I fought over there. I went all over the world. And I came back to Cass Lake—and I saw the racism for the first time. I saw what everyone did to us. I’d been around but when I came home I was just another Indian. All the business guys down the street here [he waves down Third Avenue in Cass Lake] were John Birchers, were racists. And they got rich off of us.” Helen pipes up, in her quiet way: “I never got nothing from nobody. 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 his headstone. That’s all I got from them.”
The ruling was more than a victory for Helen Bryan and for Leech Lake. It was a victory for Indians across the entire country. The Supreme Court made a sweeping ruling about the limits of PL 280: “The same Congress that enacted PL 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.” And the court found nothing “remotely resembling an intention to confer general state regulatory control over Indian reservations.” It was a huge victory. But no one—not Indians across the country, not the Bryans who would not be taxed, and not the court—knew just how huge.
No one knew how huge because no one imagined gambling. It was simply something no one had in mind. People thought immediately about taxes on income and property. Some thought about tribal courts and civil cases. But almost no one thought about gambling until the Cabazon Band and the Seminole started up their card rooms four years later. Reservations were largely seen as poor places with little to no economy. Helen herself didn’t know, but she knows now. “I don’t want anything. I just want a little recognition. I want people to know that I fought when it was hard to fight. Another guy from Ball Club had a similar case. I think his name was Joseph Whitebird. He dropped it. Life hasn’t changed for me much,” she says. “I’m still poor!” But because Helen Bryan stuc
k up for herself and her family, a lot of Indians and a lot of tribes aren’t. “The papers picked up the story and said that the ruling affected ten thousand Indians in Minnesota. I told Russell at the time,” says Helen, “if we did so much maybe if every Indian in Minnesota sent us a dollar, we’d be rich!” In my opinion, everyone should. Send your dollars to Helen (Bryan) Johnson, 60876 County Road 149, Squaw Lake, MN, 56681.
2
We decided to pull up stakes, head out of the broiling desert, and get closer to the coast: Temecula. The Pechanga Resort and Casino. I have to say I was impressed. There is a huge, fake (but very nicely faked) coast live oak in the lobby and a stained-glass window showing another oak tree. I learned later that one of the oldest coast live oaks is on the Pechanga reservation, near the eleventh hole of the golf course. When I checked in and went to our room, I noticed a lot more Native motifs in the carpet and in the artwork on the walls. It was a beautiful casino. The rooms were tasteful. The whole place was elegant, especially the clubhouse and restaurant at the golf course.
Casinos have an interesting aesthetic, and Indian casinos even more so. In the eighteenth century in Europe, casinos were playgrounds for the rich, and they were built to resemble aristocratic chateaux and mansions. Think of Casino Royale. In fact, the word “casino” is derived from the Italian casino, a small house, summerhouse, or pavilion built for pleasure. It is interesting to note that in Italian casino can now mean “whorehouse,” and the gambling establishment is spelled the same way but with an accent: casinò. This is interesting because American casinos, as reinvented in Las Vegas, worked to combine the excitement of a carnival or circus (the big top, marquee entertainment, the “big show”) with the intimate naughtiness of a bordello. Then the 1980s came, and those of us who’ve watched Casino know that the honest dirt of mob-controlled Vegas was replaced with dishonest, Disney corporate dirt. Under new leadership, casinos became “family destinations” with water parks, boats, gondolas, and so on.
None of this evolution was able to erase completely the species of the past, so casinos are a weird aesthetic jumble with blackjack dealers in tuxedos, circuslike dings and whistles coming from the slot machines, big shows (many a has-been rock and country band has Indians to thank for its continuing career—Whitesnake, Styx, and Air Supply are all regular performers at Indian casinos), theme parks, a whiff of prostitution, and now Indian images and motifs.
I opted to play in the poker tournament offered nightly in the Pechanga card room. Small poker tournaments are hilarious. I don’t know why, but the white guys (almost always between the ages of eighteen and twenty-eight) wear caps and sunglasses and fiddle with the headphones of their iPods as though they were being filmed in the World Series of Poker. These guys are almost always the ones who lose first. I lost, too. I made it just short of the final cut and decided to play poker at the three- to six-dollar table instead. (Three dollars is the minimum bet, six dollars the maximum.)
Poker, in particular Texas Hold ’Em, has become a huge phenomenon. Partly because of cameras that allow TV viewers to see the players’ cards, and partly because Indian casinos have allowed backroom players to play in public with strangers all across the country, Texas Hold ’Em has entered millions of American households. It’s a brutal sport. Each player is dealt two cards. Betting ensues. The dealer then deals the “flop”—three cards faceup. More betting. Another card is dealt faceup—the “turn.” More betting. Then the last card is dealt—“the river.” More betting. At each stage, there is intense mental warfare, as well as frustration, hope, and a chance that the last card will make your hand. Even at a three-to-six table it can get expensive. The problem is that it isn’t expensive enough, so people will play just to play, regardless of their hand or their position. Hands that most sensible people would fold are kept until the river. And good hands lose—they’ve been “rivered.” The house makes its money on the rake—a small amount taken from each pot at regular intervals—and on drinks, too.
My table was a weird mix. To my left a Vietnam vet there with his son. To my right a marine vet of Gulf War I now working in army intelligence. And to his right a young racially vague kid, age twenty-one, who had just enlisted and was supposed to ship out two days hence. It felt comfortable to a certain extent. I heard the usual tomahawk jokes one hears from non-Natives when they think that Indians aren’t listening. But I couldn’t really get mad. The more they lost, the richer some Indians (without tomahawks) got. Across from us were some Asian men—Laotian, Cambodian, Vietnamese.
I was winning. The kid kept betting against me and kept losing. I felt bad. But poker’s poker. Just before I was about to cash in, the table won the “bad beat jackpot.” The bad beat is a great hand that loses to a slightly better hand. The bad beat jackpot is an institution that casinos have set up to create excitement and to keep gamblers at the table. Basically, a pot of money grows and grows until a very rare combination of cards comes up. In our case, Pechanga’s bad beat jackpot was winnable only if one player had a full house with jacks or better, beaten by a better hand. Jackpot amount: $25,000. The table, which had been a mix of forced joviality, genuine joke telling, and snide comments (“Hey, Heineken, thanks for playing, your money feels better than mine”), erupted in a moment of unabashed togetherness. The Vietnam vet high-fived the sour-faced Cambodian. The army kid smiled and then frowned when he realized he would have only two days to spend his winnings. The bad beat got $8,000, the winning hand $4,000, and the rest of the table split the remaining $12,000. I walked away with $1,423.
And if casinos play on illusion, the illusion at Pechanga was enchanting—a beautiful casino where one can find brotherhood, equality, and wealth. A place that rose from poverty to strike it rich and where you can, too. In short and ironically, inside a casino (that manages to suggest aristocracy, bordello, Indians and nature, the big top, and a theme park) on Indian land, one feels, well, American.
2
Within a few years of the Bryan case the Cabazon Mission Band of Indians and the Seminole would be in court defending their fledgling gambling operations. Indian gaming around the country was under way and was already a $100 million annual industry. Finally, an industry had appeared that seemed to fit reservations: one that required little start-up capital, little infrastructure, little land, and no wrangling about natural resources. Finally development could occur without depletion. The Cabazon case, which relied heavily on the precedent set by Bryan v. Itasca County, opened the gates to Indian gaming as we know it. The Cabazon won. The Seminole won. Everyone seemed to win.
The federal government, seeing the influx of casino money to reservations, has been happy with the arrangement: it has to pay less for and worry less about that pesky “Indian problem.” The states, on the other hand, weren’t always so happy. More cases followed, and so did more legislation, culminating in the Indian Gaming Regulatory Act (IGRA). This was a compromise between tribal sovereignty affirmed by the Bryan and Cabazon and Seminole cases and state rights. The three spokes of the wheel came together again. The IGRA affirmed that states do not have control over Indian issues, but it demanded that tribes wanting to start gaming operations could do so only in states where gaming was already legal, where the state wanted it to be legal, and in consultation with the states, which couldn’t regulate or prevent gambling but could negotiate some terms. Moreover, IGRA clarified that the Cabazon ruling would apply to all tribes, even those where PL 280 was in effect. Those gaming compacts between tribes and states are like minor treaties or agreements that lay out where, when, how, and how much. Some states demanded a cut in the form of taxes. Connecticut has received more than $20 billion from the Pequots since Foxwoods opened in 1992. Other states weren’t so lucky. Minnesota gets no direct revenue from its casinos (though real estate and corporate and payroll taxes bring in plenty).
No one could have foreseen a $20 billion-per-year industry springing out of the Bryans’ $147 tax bill. No one cou
ld have foreseen that tribes such as the Pequots, the Seminole, the Cabazon, and the Mille Lacs Ojibwe would become the largest employers in their respective regions. The gaming industry at Mille Lacs has made Mille Lacs and Grand Casino Inc. the largest employer in the area. No one could have foreseen that the Seminole would buy the Hard Rock Café franchise. If people had been asked in 1980 whether Indians would someday own Paul McCartney’s guitar or, say, Elvis Presley’s glitter suit, it’s safe to say most would have answered, Probably not. No one could have foreseen that in 2004–2005 Governor Tim Pawlenty of Minnesota, facing a budget shortfall and trying to honor his campaign promise of “no new taxes,” would try to extort taxes from Minnesota’s poorest communities by threatening to open up gambling statewide unless casino tribes forked over money to the state. No one could have foreseen that tribes would use casino profits and branch out into banking, hedge funds, real estate, and even tech industries. No one could have foreseen the number of disputes over membership and federal recognition. Tribes made up of fractional descendants (1/64 or 1/128 Indian blood) with no culture, land, community, or language but with plenty of lawyers have been springing up across the county. No one could have foreseen so many people wanting to be Indian after 500 years of trying to kill us and 200 years of trying not to be Indian. No one could have foreseen that being Indian means, for a precious few, being rich rather than being poor. No one could have foreseen a new set of Indian wars—fought between tribes for market share and membership, and fought between tribes and states—springing up across the country.