New Reservations about Reservations

On the same day that it issued two rulings concerning presidential legal immunity in cases involving Donald Trump – one in his favor, the other not – the U.S. Supreme Court also handed down the latest in a two-century history of cases determining the rights of Native Americans and defining and refining their legal status as independent but dependent nations in the United States of America.

In a case from Oklahoma, where five exiled Indian nations maintain their trial standing — tribes exiled in the 1830s from Florida, Alabama, Georgia, Mississippi, and Louisiana –the high court effectively ruled that the eastern half of that state is tribal reservation land.

The ruling came in a case regarding jurisdiction over criminal law and law enforcement on the lands of the Muscogee or Creek nation, a complicated legal area controlled generally by a 1953 federal law. The decision could portend extension to all kinds of civil disputes over land ownership, tenancy, and land controls like planning and zoning, even taxation. Much of that could well be encompassed and resolved in an ongoing negotiation between the U.S.A. and the Creek and Oklahoma’s other four tribes, the Seminoles, the Choctaw, the Chickasaws, and Cherokees given new urgency by the high court’s 5-to-4 ruling in favor of the Creek.

It is but the latest in a long history of sketchy relations between Native Americans and the early English colonies and later the U.S.A. that today leaves at least half of them in the direst want, poverty, and ill-health. Among the 574 federally recognized Native American tribes are some that have grown rich operating casinos  — about 245  of which do– though that can range from giant Indican gambling meccas like Foxwoods in Connecticut to a few slot machines at a gas station in Oklahoma.

But, no matter what prosperity some tribes have lately experienced as gambling entrepreneurs, the long story of relations between Native Americans and the rest of us leave most of them so far behind as to barely exist on the margins of American life.

The history of Native Americans is a complex and very long tale of four hundred years of exploitation, our nation’s crimes against their humanity, economic deprivation, and enforced want translating into the poorest health care, poorest educational opportunity, and being the poorest of the poor among the American people.

It is a story culminating in a brutal genocidal campaign in the late 19^th Century that aimed to wipe out Native Americans by war and disease, and of a paternalistic and patronizing system of federal control in the 20^th Century that produced still ongoing grinding poverty and despair in Native American communities.

Recently, it is a story about how for many, not all, far from all, but for many Native Americans at the end of the 20^th Century and the beginning of the 21^st Century legal gambling became a means of salvation from the preceding 200 years living within but not always with the United States of America or as Americans.

Today the U.S. Census and other sources report the Native American population to be about 2.5 million based on those who report themselves to be of one race, either Native American or Alaskan Native. The number expands to as many as 5 million if it includes those who report multi-racial background and identity including Native American and Alaskan Native.

The relationship between the United States and Native Americans precedes the founding of the nation. Every American colony on its establishment found its lands inhabited by Native Americans and every colony treated them differently and had different relations with them.

At the end of course, as in the beginning, whether enlightened or not, the new European communities considered Native Americans inferior people and both took and gained an advantage over them by war, by duplicitous trade, and by expropriation of native lands, ancestral fishing, and hunting grounds and of tribal claims to the abundant natural resources of the New World.

From the founding of the United States, the government attempted to establish and regulate its relationship with Native Americans. The Second Continental Congress established committees to deal with Native Americans and authorized Benjamin Franklin and Patrick Henry to negotiate treaties with Indian tribes to obtain their neutrality during the Revolutionary War, implicitly recognizing from the founding of the American nation the sovereignty of tribes as separate nations.

In 1789, the first United States Congress elected under the U.S. Constitution assigned responsibility for relations with Native Americans to the War Department. In the first decade of the 19^th Century, the department created the position of Superintendent of Indian Trade to maintain commercial relations with Indians in the then all-important fur trade.

In 1824, acting on his own without congressional authorization, Secretary of War John C. Calhoun of South Carolina created the Office of Indian Affairs in the War Department. In 1849 Congress brought the renegade agency within its purview when it adopted legislation transferring the office to the Department of the Interior, where it has remained ever since with a name change in 1947 to the Bureau of Indian Affairs.

Over the course of more than two centuries, judicial decisions and federal statutes have established, changed, and recast the relationship between the United States and Indian tribes with many important milestones on the course that leads to the present-day status of Native Americans and their tribes’ standing.

While implicit from the manner in which the United States dealt with tribes as early as the Continental period, the first real legal definition of the status of Native Americans came 40 years after the adoption of the U.S. Constitution.

In 1829, writing in a case that defined the status and relationship of Native Americans to the United States, Chief Justice John Marshall said the tribes are “domestic dependent nations under the umbrella of U.S. government protection”.

The ruling established that Native American tribes are sovereign nations and thereby established the basis under which the United States would deal with them and from which it would attempt, however badly through most of the next two hundred years, to regulate its relationship with Native Americans and to define and limit their sovereignty.

The very worst example, among many, of that relationship, took place under the presidency and close direction of Andrew Jackson and after his presidency during the presidency of his vice president and successor in the White House, Martin Van Buren.

Jackson, a slaveholder and intolerant anti-Indian bigot pushed through Congress the1830 Indian Removal Act. With it in force, he presided over the forced exile of tens of thousands of Indians among the aforementioned tribes from the southeastern United States to Indian Territory, which became Oklahoma when it became the last of the 48 continental states granted statehood in 1912.

The forced marches of the “Trail of Tears” terminated at what is now the eastern half of Oklahoma, the territory affected by the new Supreme Court ruling.

Jackson especially, while credited with great democratic impulses for his time, was a complete demagogic monster in his oppression of Native Americans. He was the architect and director of the theft of their lands, their heritage, and the lives of their most innocent.

Under the indictment in the main war crimes trial at Nuremberg convened in November 1945 and the charge to the tribunal by its chief prosecutor, Supreme Court Justice Robert Jackson, Andrew Jackson today certainly could be charged with crimes against humanity and war crimes.

More than 10,000 of the 60,000 Native Americans sent on the hard, forced marches over the Trail of Tears died on the journey, including thousands of children, while whites moved in to steal more than 25 million acres of the southern lands from which these indigenous peoples were focibly evicted by the U.S. Army.

Ironically, given that the Trail of Tears ended in Oklahoma it is perhaps fitting that today  Oklahoma hosts more than 110 Indian gambling locations, the most of any other state and far more than the second-highest Indian casino state, California, which has 10 times the Sooner State population.

In the late 19^th Century — especially after the adoption of the General Allotment Act of 1887 that permitted non-Indians to take tribal lands — as American migration moved west and the land and resources of the west beckoned, the United States imposed its will by military force, by diplomatic and political subterfuge and by deception on hundreds of thousands of Native Americans in hundreds of tribes.

By these means, including at rifle point, the U.S. firmly established the reservation system that forced Indians onto the least desirable lands and began to forcibly impoverish them as it destroyed tribal hunting, gathering and trading economies and denied Indians education and participation in the emerging U.S. western economic system built on farming, ranching,  fisheries, timber and extraction industries like mining and oil drilling.

The American and Hollywood versions of the Apaches in the southwest, or of the treatment of the Sioux in the Dakotas in their 1876 victory with other tribes over Col. George Custer and the 7th Cavalry Regiment, must give way in the real history — to the real truth of what the United States did to Native Americans in the last half of the 19^th Century — creating and enforcing the reservation system.

It is the reservation system that created the worst place to be born, to be raised and to exist – not live – but exist in the United States —  the Pine Ridge Reservation in South Dakota.

Pine Ridge, about the size of Connecticut, is notorious for one of the highest levels of alcoholism in the nation with 20,000 alcohol-related arrests among its 45,000 inhabitants in 2011. It is estimated 85 percent of Pine Ridge families are afflicted by alcoholism.

Population estimates put the number of Lakota Sioux, the tribe of Sitting Bull and Chief Crazy Horse, who live on the Pine Ridge Reservation between 28,000 and 40,000.

Median income on the reservation is no more than $4,000 a year; unemployment is reportedly as high as 80 percent; life expectancy is 48 years for men, 52 years for women compared to 77.5 years for the general U.S. population; infant mortality is five times higher than the national average; the rate of diabetes is three times the national average; the school dropout rate is 70 percent; 49 percent live below the federal poverty line; 60 percent of homes on the reservation are believed to be infested by black mold and almost 40 percent of Pine Ridge homes are without electricity.

The paternalistic reservation system that created Pine Ridge lasted through the second half of the 19^th Century well into the first half of the 20^th Century, a period in which it was U.S. policy forcibly to remove Indian children from their homes and communities and place them in special boarding schools that aimed to forcibly integrate them into the majority white community while erasing the memory of their ancestry.

In the process, Native American children were singularly oppressed, forcibly forbidden to speak tribal languages or to recognize tribal customs, prohibited tribal worship, and bent by the will of white America to deny their heritage in all ways except to understand it as inferior, unequal and a source of shame. This systematic paternalistic system of repression of Indian childhood persisted into the 1950s.

Only in 1924, with the passage of the Indian Citizenship Act, did all Native Americans win recognition as U.S. citizens with the right to vote for the government that had regulated their lives in one way or another for nearly a century and a half. Before then, up to one-third of Native Americans did not have citizenship.

Yet it took until 1968 — 1968 — with the passage of the Indian Civil Rights Act, another Great Society law, for the United States explicitly to extend the Bill of Rights to Indians.

In 1934 the Indian Reorganization Act established the basis for modern tribal governments. Not all tribes subscribed to it but it became the basis for establishing modern tribal government by authorizing and requiring every subscribing tribe to adopt a constitution and allowing tribal councils to employ legal counsel.

It barred tribal councils from land transactions without majority tribal approval and authorized tribal councils to negotiate with the federal government and with state and local governments. If that seems a progressive step as it was intended,  it was nonetheless used by some to cheat tribes out of yet more land.

The 1934 act intended to stop the loss of tribal land by ending permission for individuals to sell it and by creating means for tribes to regain lands that had fallen into non-Native American hands. Within 20 years this law helped Native Americans regain over two million acres of land.

Importantly the law authorized the Bureau of Indian Affairs to take land into trust for tribes. But the world is not perfect as is seen by the fact that the 1934 act also enabled a counter-intuitive, anti-democratic system on some reservations in which power is held and abused by a privileged few acting under color of tribal constitutions.

Several Supreme Court cases have ultimately upheld this principle but confused the issue by a strict interpretation of one word in the 1934 statute. The law limited itself to tribes that existed, in that one word, to “now” — now meaning 1934 according to the Supreme Court in a strictly literal reading of the statute, even though hundreds of tribes have won federal recognition since 1934.

Hence, there is an unresolved dispute whether the federal government can exercise the trust power on behalf of post-1934 tribes, which became a critical question when the 1988 Indian Gaming Act that authorized Native American owned and operated casinos.

Notwithstanding these advances over decades and centuries, by the 1970s pervasive despair and anger characterized the sentiments of most Native Americans and gave rise out of their frustration to activism, civil disruption, and civil disobedience both in Washington and on reservations.

One of the most famous incidents took place in 1973 on the Pine Ridge Reservation with a 71-day siege and occupation at a small settlement on the reservation called Wounded Knee, the site of a bloody 1890 massacre of Indians, including women and children, carried out by the U.S. Army.

Propelled by the American Indian Movement (AIM) in a rebellion as much against an authoritarian tribal government and the 1934 law that enabled it as against the Bureau of Indian Affairs and U.S. government, the occupation at Wounded Knee served dramatically to bring attention to the historic and ongoing grievances of Native Americans and to the grinding poverty and despair in which most live even now outside casino-owning tribes.

In sorting out the rights of Native American tribes as sovereign nations and their right to be sovereign on their own lands, it became legally established that Native Americans could operate businesses on tribal lands that would be exempt from certain areas of federal and state jurisdiction, including exemption from state sales and excise taxes but also from the assertion of state jurisdiction over other aspects of tribal business and life.

Out of this grew reservation businesses selling tobacco and gasoline at prices lower than could be had outside reservations and, starting in the last 1970s and early 1980s, the institution of gambling operations by some tribes in the form of bingo parlors.

Two of those tribes are part of the Cahuilla people, Native Americans of southern California, principally the southern California desert lands centered around affluent Palm Springs.

The first Europeans to meet Cahuilla Indians were Spanish and it was not until the mid-19^th Century that the Cahuilla encountered Americans, setting off a troubled history that by the late 20^th Century found the many bands (tribes) of the Cahuilla substantially impoverished, residing on relatively small reservations, seeking new ways to make money even while surrounded by ironic and iconic wealth around Palm Springs. 

Two of their tribes, the Cabazon Band of Mission Indians and the Morongo Band of Cahuilla Mission Indians, turned to gambling. In the early 1980s, the Cabazon opened a high stakes bingo parlor and also a card room, emulating the legal poker clubs found throughout California at the time. In 1983 the Morongo opened a high stakes bingo parlor.

The State of California, motivated by the fact that these operations created serious competition for low stakes charitable bingo operations authorized by the state as well as commercial competition for its legal card rooms – clubs in which it is legal to play poker  — sought to close them down. The state contended the Indian clubs violated the criminal laws of California and would be susceptible to infiltration by organized crime.

The Cabazon Band filed a federal lawsuit that argued the state did not have such jurisdiction in light of judicial and statutory precedent. It asserted that precedents setting out the sovereign rights of Native American tribes on their reservations gave the federal government sole interest in that sovereignty when it is regulatory in nature rather than concerning criminal law.  The two tribes contended regulation of tribal economics, in this case of gambling, was exclusively a federal interest and in no way a state criminal law interest.

The case went to the U. S. Supreme Court, which ruled 6-to-3 in favor of the Cabazon Band, hearing arguments on Dec. 9, 1986 and handing down its decision on February 25, 1987, a startlingly swift Supreme Court deliberation.

The practical result of this ruling not only upheld the rights of the two very small Indian bands to operate their bingo and card games but also plainly conferred on every Native American tribe carte blanche to operate any kind of gambling on tribal lands.

In a demonstration of bipartisanship probably unimaginable in the political conditions prevailing 25 years later in Washington, a Democratic Congress and a Republican administration responded to intersect this threat to – to state interests in allowing and regulating casinos.

Congress enacted the Indian Gaming Regulatory Act (IGRA), the complex law that has resulted in legal operation of more than 500 Indian casinos operated by about 40 percent of the 574 federally recognized tribes. Last year, gross annual gambling revenue at Native American casinos was $32 billion.

The IGRA requires that revenue and profits generated from Indian casinos be used only:

“… to fund tribal government operations or programs; to provide for the general welfare of the Indian tribe and its members; to promote tribal economic development; to donate to charitable organizations, or to help fund operations of local government agencies.

The 240 or so tribes that own and operate casinos have taken a broad view of these economic purposes. In many if not most cases they include profit-sharing — distributing profits to all tribal members annually.

They have also invested in businesses on and off their reservations, including non-Indian commercial casinos but also in manufacturing and other service industries. They have invested in Indian cultural and non-profit organizations and purposes and in some instances invested in Indians who do not have casinos and will not have them because their lands are far from population centers and too remote and sparsely settled for casinos to make economic sense.

But if there is a glaring omission in the IGRA. it is that it did not establish a minimum internal tax to assess Indian casino gross revenue for the exclusive purpose of per capita distribution to non-casino owning and operating tribes for their economic development and to support the education of their children so that they can have a future at least as much as children in casino-owning tribes.

While it can be shown legally that each tribe and each tribe’s gambling business exclusively belong to that tribe and its members, it can’t be argued as moral. There should be a tax to benefit non-casino owning tribes and still could be if Congress amended the law to establish one.

No doubt such would be opposed by tribes that have amassed great gambling wealth, asserting the political influence that wealth buys in Washington. But isn’t settling such a possible dispute why we have a Supreme Court?

For now at least in Oklahoma, and perhaps many other states where there are Native American reservations on which the majority population has built homes and businesses it could conceivably be held that whoever today occupies those lands and improvements owes a lot of back rent to the Indian tribes on whose land the majority is squatting.

Most likely? Congress will rush to fix that with a pass at fairness for Native Americans.

But that will leave one place where nothing changes, one place where the history of our nation’s relationship with its first people remains fraught, still changing in our society and at the Supreme Court.

That place?

Pine Ridge – the shame of nations – the shame of the United States of America and the several gambling-rich tribal nations.

Maybe someday the high court will give the reservation and its Lakotas the land we call Mt. Rushmore because?

Because, actually, it’s theirs.