The Heartbeat of Wounded Knee

by David Treuer

  Helen may not have gotten much from standing her ground, but tribes got a lot from Helen. The decision opened the door to many things the government (and most Indians) had considered closed. The power to regulate—commerce, banking, gaming, liquor, tobacco, and a host of other things—is a tremendous kind of power. Soon after the court’s ruling, tribes across the country put their imaginations to work, and within a year or two, they began to test the limits of the ruling.

  In 1976, the Seminole Tribe in Florida, following the lead of the Colville Tribes in Washington state, opened tax-free cigarette stores on their reservation land. This move pitted them against the sheriff of Broward County, Robert Butterworth, who felt that Indians were breaking the law. They went back and forth for some time on the issue of cigarettes, but after the Bryans won, the tribal chairman, Howard Tommie, saw an even bigger window and pushed the tribe through it. In 1979 the tribe built and planned to open a high-stakes bingo parlor. At that time, only nonprofit organizations like the Catholic Church were allowed by Florida state law to operate bingo games no more than two times a week, with jackpots no higher than a hundred dollars. The Seminole advertised that they would be open six days a week and their jackpots would be much bigger. Again, Butterworth threatened the tribe with arrest even though many local non-Indian residents were supportive of the enterprise. The day they opened for business, Sheriff Butterworth was waiting with his deputies, and they arrested people within minutes. The tribe, expecting this, promptly sued. They won in the U.S. Fifth Circuit Court of Appeals, which ruled that states have no power to abrogate or regulate treaty rights. So the Seminole didn’t just reopen their bingo hall, they made it bigger. Meanwhile, in Southern California, the Cabazon Band of Mission Indians opened a poker room and bingo hall. As in Florida, the sheriff of Riverside County immediately descended on the operation, closed the game rooms, arrested tribal members, and confiscated money and equipment. Like the Seminole, the Cabazon had expected this, and they took the matter to court as well. The state argued that the poker rooms and bingo halls violated state laws, and that under PL 280 six states, including California, had been granted criminal jurisdiction over tribes and tribal members living within those states. But this was already a losing argument. The Cabazon noted that gaming laws in California were regulatory, not criminal laws, and the courts had already ruled that states didn’t necessarily have regulatory power over tribes. The court ruled in the Cabazons’ favor, noting wryly that not only was some gambling legal in California, but the state actually encouraged it through the California State Lottery. Together with Bryan v. Itasca County and Seminole v. Butterworth, this ruling brought law and policy in line with sovereign treaty rights and clearly established that tribes could be into the gambling business.

  California v. Cabazon Band of Mission Indians wasn’t resolved until 1987, but by then, gaming enterprises were already under way across the country, with the biggest concentration of casinos in California and Oklahoma. The court might have been deliberating, but Indians—having waited in so many ways for so many years to have their sovereignty affirmed—were not. The increase in funding for tribal programs throughout the 1970s, the emphasis on improving access to education, support for the poor, funding for health care—all of this positioned Indians to move, and move fast. By the mid-1980s, elected tribal leaders had gained forty years of experience in IRA governments and forty years of experience in dealing with the Bureau of Indian Affairs and state and federal governments. They had become expert at playing with soft power, and they were prepared to make the most of the opportunity for gaming. Within a year of the Cabazon win, tribal gaming revenue was bringing in $100 million a year. The door to economic development—at least in the realm of gambling—seemed to have been flung wide open.

  But not so fast: the states, a powerful lobby in their own right, were determined to have a stake in Indian gambling, or at least some measure of control. The federal government felt the same way. So in 1988, Congress passed and Reagan signed the Indian Gaming Regulatory Act. IGRA codified the process by which tribes administered gambling. It established three different classes of gambling. Class I was, more or less, traditional tribal gambling (bagese, moccasin game, hand game), social games that tribe members could continue to play without any federal meddling or oversight. Class II gambling was mostly bingo, but it also included pull-tabs, tip jars, and “non-banked” card games (like poker) where players play against one another and not the house. IGRA maintained that tribes had exclusive authority over Class II gaming so long as the state in which the tribe was located also allowed that kind of gaming, and so long as the tribe developed a gaming ordinance approved by the National Indian Gaming Commission (also established by IGRA). Tribes, ultimately, were tasked with control of Class II gaming with federal oversight.

  Class III gaming was casino gaming, where the real money lay. The provisions for Class III gaming were the result of a vigorous compromise between the federal government and Indian tribes. The first provision was that whatever forms of gaming a tribe wanted to conduct in a state had to be legal in that state. (This meant that in places like Minnesota, where casino gambling was not legal, the state had the power to wrest concessions in the form of taxes in order for the tribe to secure a gaming compact with the state.) The second provision was that tribes must enter into gaming compacts with the state that entailed where and when each casino could be built, how large it could be, how much the state took, and the like. The third provision required the tribe to develop gaming ordinances to be approved by the chairman of the National Indian Gaming Commission, which would consist of a chair appointed by the president and approved by Congress and two associate or assistant chairs. Not more than two members of the commission could be from the same political party and two of the chairs had to be enrolled tribal members. Since its passing, some but not all of these positions have been held by Indians. IGRA also provided that the FBI (rather than city, county, or state law enforcement) would have jurisdiction over tribal gaming.

  After the passage of IGRA, Indian gaming boomed. Revenues grew from $100 million in 1988 to more than $26 billion in 2009—more than Vegas and Atlantic City took in combined. Despite the influx of money in general, however, gaming changed little for most Indians. In 1965 the national Indian unemployment rate was 52 percent. The rate for California Indians was 53 percent. In 1993 the national unemployment rate among Indians had dropped to 37 percent. But in California, despite the rapid growth of Indian gaming, 41 percent of all Indians living there were unemployed. Between 1989 and 1995, in areas with tribal gaming, Indians living below the poverty line decreased from 17.7 to 15.5 percent. In areas without Indian gaming, Indians living below the poverty line remained static at 18 percent for those years. By 2010, when the national unemployment rate had spiked to 10 percent, the highest in thirty years, Senator Byron Dorgan, chair of the Senate Committee on Indian Affairs, noted, “There are a lot of people in a lot of areas on Indian reservations where they would welcome 10 percent unemployment.” The unemployment rate for Native American communities nationwide was 50 percent in 2010, and in the northern Great Plains, it rose to 77 percent. Addressing the committee, Harvey Spoonhunter, chairman of the Northern Arapaho Business Council for the Wind River Reservation (combined Shoshone and Arapaho) in central Wyoming, noted: “The unemployment rate on the reservation exceeds 73 percent, as stated by [Senator John] Barrasso, and over 60 percent of the households live below the poverty line. With the opening of our three relatively small casinos, the marketing of our organic beef from the Arapaho Ranch to Colorado-based food stores, and our sponsorship of the tribally-chartered Wind River Health Systems, a federally supported rural health system, we have begun to provide meaningful jobs outside of tribal government for our members.” Meanwhile, the Shakopee Mdewakanton Sioux Community, a tribe of only a little more than 480 members with a very large casino near Minneapolis, have boasted a 99.2 percent unemployment rate: each tribal member receives upward of $1.08
million annually.

  The contrasts, while extreme, shouldn’t be surprising. This is America, after all. Like all American avenues to wealth, casinos privilege the few and leave out the majority. But at Tulalip signs of a possible third way have emerged.

  Two months after the “pot summit,” I sat across from Eddy Pablo in the same casino. He had come armed with notes and handouts about marijuana legalization, medical uses of marijuana, and tribal dispositions about legalization and capitalization at Tulalip. Eddy is about five-foot-ten, with an absurdly strong build, dark skin, small eyes, and spiky black hair in a neat crew cut. He’s thirty-one with three children and he is on the make. “I’ve lived here my whole life. Both my parents are from here. I’m thankful for it.” He is soft-spoken but gives off that uniquely Indian sense that nothing bothers him. Yet there is plainly a kind of seething, sliding, waiting energy underneath his social self. He speaks of the business aspects of marijuana in the same tone of voice as he tells the story of how he almost died while diving. “I was diving for geoducks and the compressor ran out of gas. It feeds oxygen down to me where I was, about forty feet down. And the com went down, too. The guys on the boat thought I was dead when I was hauled up. They asked me if I was all right. And I was like, ‘Fuck no, I’m not all right.’ Man, I’m happy to be alive.”

  But to be Indian and alive is no easy thing. “My high school in Marysville was a subtle racist high school. Not so much the kids. But the teachers had no expectations for us. All of us Indian kids were underperforming. If you have low expectations, then that’s all the kid will strive for. I wanted to go to college but my sophomore English grade was crappy. They put me in a special reading class.” This was followed by depression and tutoring. He made it to community college but it didn’t stick. He ran afoul of the law and landed in jail. After he got out, he got hooked on diving for geoduck. “You don’t get to dive very much. Maybe eight days a year. But a boat can make thirteen K in three hours.” Eddy becomes more animated when he talks about being on the water.

  The next day he picks me up to go digging for clams on Cama Beach Point. His car is packed with five-gallon buckets, shovels, rakes, and his son, Cruz, tucked in the backseat. As we drive, he points out the landmarks. The Tulalip Reservation—twenty-two thousand acres of Indian land—sits between Interstate 5 and Puget Sound just north of Seattle. It is indescribably beautiful. “That’s where I grew up,” he says, pointing at a nondescript house among a handful of other HUD homes facing a silty bay that was, until relatively recently, thick with salmon. Cedar, until recently, grew down to the shore. The winters are mild and the summers temperate. It’s pretty much what the land of the Lotus-Eaters looked like in The Odyssey. The entire sound was filled with Indians who pulled their lives from the waters. And it’s a testament to the perseverance of those Indians that there are still many of them left on the sound even though the cedar have been cut down and the salmon run is a trickle of what it once was. The reservation itself, established in the Treaty of Point Elliott in 1855, is made up of seven intermingled peoples—Duwamish, Snohomish, Snoqualmie, Skagit, Suiattle, Samish, and Stillaguamish—all considered Coast Salish. There are about 4,800 enrolled tribal members, but only about 2,500 live within the borders of the reservation. There are also about 3,000 non–tribal members who live within the boundaries of the reservation, making Tulalip like a lot of other reservations whose lands were parceled out to tribal members, with the “surplus land” being opened up for white purchase as a result of the Dawes Act and other allotment legislation in the late nineteenth century. And as on many other reservations, the nicest parcels, those right on the sound, are largely owned or leased by non–tribal members.

  But unlike most tribes, people here are doing all right, economically speaking. In fact, they are doing very well. One of the poorest tribes in the country, the Oglala Sioux of the Pine Ridge Reservation in South Dakota, contains the poorest county in America, with a median household income of $30,908. The percentage of people in Pine Ridge living below the poverty level has remained much the same as it was in 1969 (54.3 percent), and grew even slightly worse in 1990 (59.5 percent). The median household income at Tulalip, by contrast, is a comfortable $68,000 per year, about $13,000 above the national average. Tribal members do get a per capita payment, though according to Eddy it’s not more than $15,500 a year. The tribe, as a collective, as a business, is doing better as well. Every tribal building is new. The tribal office where Eddy picked up our permit is a soaring architectural treasure. The youth center. Museum. Cultural center. All of them cedar-clad and many of them LEED-certified. Where once the tribe’s wealth could be measured in fish, it can now be measured in income and infrastructure.

  “You see that big bluff over there?” Eddy asks as we round another curve on our way to Cama Beach. “We call that the Big Slide. Back in the 1800s that’s where one of our big villages was. Right below the bluff. And the whole thing calved off and buried the village. Hundreds of people died. And the shock wave traveled across the sound there and drowned people in another village across the way.” At least five people I’ve talked to out here have brought it up. And then they turn to the water and the fish and a brother, uncle, father, cousin who died going out on the sound.

  As for Eddy, without a college degree and with three kids to support, he hustles. He dives for geoduck. Crabs. Fishes. Harvests sea cucumber. And he owns a fireworks stand. All of this together somehow makes a living. He sees marijuana as something that can be added to the mix. “We should get in the business,” he says. “Not just opening dispensaries. Or growing. Our sovereignty can give us a leg up. We should grow, process, and dispense. We could control the whole chain.” I wonder out loud if the tribe really wants to hitch itself to another lifestyle economy—like cigarettes and gambling.

  “Look,” says Eddy. “Heroin is here. Once they changed the chemical makeup of prescription drugs [like OxyContin], everyone turned back to heroin. People die from that. No one dies from pot. And the tribe wants it. The people want it. We did a survey and seventy-eight percent voted yes for bringing our code in line with the state. Fifty-three percent wanted to open it up only to medical marijuana and twenty-five percent wanted that and recreational use to be legal. It could be our niche. I mean, the way marijuana is taxed in Washington could work in our favor. The producers get taxed at twenty-five percent, the processors get taxed at twenty-five percent, and the retailers get taxed at twenty-five percent. But if we were the producers, processors, and retailers? And we’re sovereign, too. So we’d have a different tax rate than a private business in Washington.” As of this writing, the tribe has opened a dispensary, and brought its code in line with the State of Washington.

  By now we’ve reached the beach. Entry is a slight hassle—the workers seem rattled by an Indian who wants to exercise his treaty rights on his ancestral land by harvesting clams—but Eddy calmly explains things to them and drives down the winding road to the beach. We unload the buckets and tools and Cruz and walk past the picnic area and down to the shingle. Here is the sound primordial: cedars and pines growing down to the edge, waves lapping and turning the silt, crawling up the gentle slope of the beach, and sliding back through the pebbles and broken clamshells with the sound of someone sucking air through their teeth. Eddy sets Cruz in a carrier facing the sea and we begin turning over shovelfuls of sand and rock. In a minute or two, Eddy says, “See, look. This is a butter clam. That one is a manila. The big ones are horse clams. They are okay. But I like the butters best.” We stop talking and relax into the very old rhythm of gathering. An eagle dives over our heads, his wings making the sound of ripping cloth, to lift a fish out of the sound. We’ve filled two buckets of clams in an hour. We are the only ones there. “I love this,” says Eddy. “I just love doing this.”

  We have only an hour, two at most, while the tide is out, to dig and sort. Soon the water will come back in and cover the clam beds, and they will be lost to us. So much of life
at Tulalip has the same kind of rhythm. Small windows in which one can make a lot of money, slow spells when none is to be made, and then another hard push. It’s not the kind of labor that breeds confidence or even certainty: no clocking in, working, clocking out, and pulling in a wage and benefits.

  So how, I wonder out loud, does he make ends meet? What’s his job? He gets his per cap from the tribe. He crabs a few days. He dives a few days. He goes after geoduck and sea cucumber and salmon. And in the same manner he runs his stand at Boom City in the summer. Almost everyone I talk to brings up two things: the Big Slide and Boom City. “You’ve got to see it,” he says. “You wouldn’t believe it. A fireworks bazaar. Bigger than anything. And there’s a place to light them off. It’s like World War Three.” He seems to think this is a good thing. And in a way I suppose it is, just like his whole operation. It’s not an American kind of work, but it is an Indian kind: a patchwork of opportunities that are exploited aggressively and together add up to a living. A good one. “We have a story,” says Eddy as we drive away. Cruz is asleep in his car seat. “When all else fails we were instructed to dig. The clams are always there. There’s food waiting there.” My mind drifts back to the question of casinos. In addition to opening new avenues to wealth—and creating a wealth gap in Indian country—casinos have had another major effect: they’ve thrown into stark relief the vexing question of who gets to be Indian at all.

  Blood Quantum and Disenrollment

  America’s first blood-quantum law was passed in Virginia in 1705 in order to determine who had a high enough degree of Indian blood to be classified an Indian—and whose rights could be restricted as a result. You’d think, after all these years, we’d finally manage to kick the concept. But recently, casino-rich Indian tribes in California, Michigan, Oregon, and other states have been using it themselves to disenroll those whose tribal bloodlines, they say, are not pure enough to share in the profits. As of 2017, more than fifty tribes across the country have banished or disenrolled at least eight thousand tribal members in the past two decades. Many different rationales have been used to justify it, but it’s telling that 73 percent of the tribes actively kicking out tribal members have gaming operations. According to Gabe Galanda, a lawyer who has come to take on disenrollment as one of his specialties, that number is increasing and reaching epidemic proportions: more than eighty tribes in about seventeen states are disenrolling their citizens. The Picayune Rancheria of Chukchansi Indians near Coarsegold, California, disenrolled hundreds, perhaps nearly a thousand, of its tribal members in what was clearly a money grab: they wanted to keep more gaming money for themselves.