Rez Life: An Indian's Journey Through Reservation Life (26 page)

The Cabazon Band capitalized on the experience of its members and on the increased availability of funds. Band members opened a smoke shop and sold tax-free cigarettes. When the state tried to collect taxes on the proceeds of the smoke shop, they fought it. Other tribes around the country were doing the same thing—the Seminole, Oneida, Seneca, and others were reaching out and exercising what strength they had. Many of them, having cut their teeth on small businesses like smoke shops and trading posts, began venturing into the realm of gambling—mostly bingo or small card halls. And this is where two significant, jagged pieces of history going back, once again, to the dawn of Indian-Anglo relations came into play. Both pieces of history, one involving the Trail of Tears, the other the taxes on a trailer amounting to $147, spoke to the issue of sovereignty. Both moments were not merely a struggle between the United States and the Indians, but actually a three-way struggle between states, the federal government, and Indian tribes. The outcome of these two struggles between three powers, in turn, paved the way for Indian gaming as we know it.

One question people always ask is: why do Indians get to have casinos and we don’t? Fortunately, the question is easy to answer: because of the Cherokee and because of a mobile home in Squaw Lake, Minnesota.

In the first part of the nineteenth century the Cherokee were doing very well. They had alternately befriended and fought the British, the Americans, and various other Indian tribes and somehow always managed to come out on top. The Cherokee had fought the Shawnee and forced them north of the Ohio River. In 1711 the Tuscarora began attacking colonists in North Carolina, as a last resort after treaty negotiations continued to whittle away their rights. The colony of South Carolina, short of troops, sent two armies against the Tuscarora. Each army was made up of just a few white colonists and both armies were dwarfed by the numbers of their Indian allies—Yamassee, Catawba, and Cherokee. The Tuscarora were soundly defeated and fled north, eventually settling in upstate New York and becoming part of the Iroquois Confederacy. The Cherokee, having thus secured the friendship of the English, watched as the Yamassee were defeated by the colonists. And then the Cherokee themselves drove out the Yuchi and then the Creeks. This made them the dominant power in the region. By the mid-1700s the Cherokee and their allies were powerful enough to treat on a nation-to-nation basis with England. Trade increased. The Cherokee started farming on the southern plantation model, and many Cherokee bought and worked black slaves—a signal of their economic and social status in the region. (In fact, a lot of African Americans with Indian blood have Cherokee blood—and not because the Cherokee and African Americans were good friends, but because Cherokee masters slept with their black slaves.) Then, in 1828, gold was discovered on Cherokee land in Georgia, and the Cherokee, the state of Georgia, and the U.S. government all came into conflict with one other over the pleached issues of control and power.

The federal government, the state of Georgia, and the Cherokee all fought over and for their respective sovereignty. The federal government believed that the states fell within its power as a sovereign nation—it and only it could make treaties, raise an army, negotiate trade relations, etc. The state of Georgia (like North Carolina
and South Carolina) believed it could ignore and dismiss any laws it considered “unconstitutional.” The Cherokee—with their own army, representative government, laws, courts, customs, language, writing system, and mode of dress, and the might to enforce their desires, thought they should be in charge of their own destiny. And so began a tripartite dispute. In the same year that gold was discovered, the state legislature of Georgia passed an act that made Cherokee territories part of and subject to the laws of Georgia. As a way of proving its power, Georgia created a test case. In 1830 a Cherokee man, George Tassels, killed another Cherokee man on Cherokee territory. This case was clearly within the physical and legal bounds of the Cherokee to prosecute in their own courts. But Georgia took Tassels into custody and planned to try him. The Cherokee, led by Chief John Ross, prepared to petition the U.S. government because they wanted to deal
with Tassels according to their own laws. Georgia ignored them. What began as a legal wrangle became much more melodramatic. Messages were rushed to the Georgia legislature, which ignored them. The government did not intervene. The Supreme Court ruled that sovereignty was not affected by states, but Georgia ignored the ruling (even though today it remains the basis for tribal sovereignty and gaming). The dispute ended with Tassels hanging from a tree on Christmas eve in a barren field. Georgia had stood its ground and hanged Tassels above it.

With Tassels hanging from a tree, Chief John Ross, with the support of many people in the national Republican Party, including Henry Clay, Daniel Webster, Ambrose Spencer, and Davy Crockett, continued his efforts to uphold the sovereignty of his people by filing a case against Georgia with the U.S. Supreme Court. The Cherokee had tried this before, in 1829. At that time the secretary of war, John H. Eaton, informed the Cherokee delegation that Andrew Jackson would support Georgia’s right to remove the Cherokee and other tribes to territories west of the Mississippi. Cheered by the verdict, in 1832 Georgia began offering lotteries to settlers who wanted Cherokee land. Ross, representing more than 20,000 Cherokee and armed with a Cherokee constitution and the will of the people, brought his case before the Supreme Court.
Worcester v. Georgia
ended in a semi-victory for the Cherokee; they were a “dependent nation” in the eyes of the court. Chief Justice John Marshall ruled that neither Georgia nor the U.S. federal government had jurisdiction over the matter, because the Cherokee nation and other Indian tribes who had treated with the U.S. government were “denominated domestic dependent nations,” a phrase that haunts the legal wrangling between tribes and the government to this day. Justice Marshall’s narrative was compelling and poetic: “A case better calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant, the present application is made.” It wasn’t until
Worcester v. Georgia
that the court recognized the complete independence and sovereignty of the Cherokee.

Despite Marshall’s poetry, or because of it, Georgia ignored the ruling. Andrew Jackson lent his support to Georgia. Jackson is probably the least-liked president in Indian country. Born three weeks after his father died in an accident, Andrew Jackson grew up fast. He enlisted as a courier during the Revolutionary War at age thirteen. An incident that testifies to his toughness occurred when he was a prisoner during the war. A British officer commanded the fourteen-year-old Jackson to shine his boots; Jackson refused; the officer attacked him with a sword, cutting his hand and head badly, and instilling in Jackson a violent hatred of the British. After an early career in politics and in business as a landowner (and slaveholder) he found success in the military. He was instrumental in putting down Tecumseh’s rebellion during 1812 and 1813, when the Red Stick Creeks rose up and killed 400 settlers. During the ensuing battles more than 800 Red Sticks were killed by Jackson and the Tennessee militia. Cherokee, Southern Creek, and Choctaw soldiers were under his command—the very Indians he would remove to the Oklahoma Territories twenty years later. The war effectively ended at the Battle of Horseshoe Bend in 1814. Jackson went on to fight more British (at the Battle of New Orleans) and more Indians (during the Seminole Wars). While engaged in fighting the Seminole he succeeded by dint of his ruthlessness in getting Spain to relinquish its title to Florida. While Seminole warriors were fighting, Jackson attacked Seminole villages, burned them to the ground, and destroyed the crops. He executed British traders who were supplying the Indians. Spain could not afford to battle against such a ruthless adversary. It was largely as a result of military service and military victories that Jackson became president.

This was the man, the president, against whom the Cherokee were fighting, but this time with briefs rather than bows. The Cherokee went back to court in 1832 with their third appeal, in
Worcester v. Georgia.
John Marshall, dismayed by a bully for a president and a brat for the state of Georgia, ruled in favor of the Cherokee. He declared that the Cherokee tribe constituted a nation. But instead of claiming that neither Georgia nor the United States had jurisdiction over other sovereign nations, he softened his tone. In
Worcester
he ruled that “domestic dependent nations” such as the Cherokee were entitled to federal protection against the actions of individual states. This did not deter the Indian-fighter and Indian-hater Andrew Jackson or soften his support of states’ rights. Jackson is alleged to have said after the ruling in favor of the Cherokee: “John Marshall has made his decision; now let him try and enforce it!”

On May 26, 1838, General Winfield Scott in command of 7,000 troops began rounding up Cherokee at gunpoint. Ten days later Cherokee and other members of the Civilized Tribes were forced into camps in Tennessee, North Carolina, and Alabama; 17,000 Cherokee and 2,000 of their black slaves were herded together and sent to departure points at Ross’s Landing and Fort Cass in Tennessee and Gunter’s Landing in Alabama. From there they variously walked, rowed, and rode wagons out to Indian Territory over a total distance of 1,200 miles. More than 4,000 Cherokee died on the way.

But even though the Cherokee (most, but not all) and their allies were removed to Indian Territory, the legal precedent, the language, and the sense of the three cases decided by the U.S. Supreme Court remained: these concerned domestic dependent nations, sovereignty, and the notion that tribes need not negotiate with the state but exist on a government-to-government relationship with the federal government.

It was this tension—between tribal rights, federal law, and state law—that created both the
possibility
and the
difficulty
of Indian gaming. This was the political and legal landscape in which small tribes began to open gaming operations in the deserts, swamps, and cornfields of America in the mid-twentieth century—that they were sovereign (sort of) and that as domestic dependent nations they could not, say, raise an army, issue passports, invade, secede, or have representation at the United Nations. The Iroquois Confederacy (made up of the Mohawk, Seneca, Onondaga, Oneida, Cayuga, and Tuscarora), never a tribe to accept what limits others might impose on it, declared war on Germany in 1917. The Iroquois Confederacy was joined by the Dakota and Ojibwe in declarations of war against the Axis Powers during World War II. Members of the Iroquois Confederacy still travel on their own passports, much to the chagrin of the U.S. government. So while there are limits imposed on sovereignty, the courts ruled that Indians could sell cigarettes and operate gaming halls without interference from the state.

The Cabazon Mission Band near Palm Springs did just that. The band members made a lot of money selling tax-free cigarettes on their reservation during the 1970s. Sometimes they netted more than $4,000 a day. Annual gross receipts came in at just under $500,000. But the state of California and other states as well were getting envious. Cigarette taxes typically benefit the states in which the cigarettes are sold, and that wasn’t happening. A cover story appeared in the
National Enquirer
(the same tabloid where the Cabazon advertised their mail-order cigarette business)—Indians making $10,000 a day! As this was going on, another legal wrangle ensued: the Colville tribe in Washington state had a case at the state supreme court. The Colville, too, had a cigarette business, and the state supreme court ruled against them: they could sell tax-free cigarettes but not to non–tribal members, and not through the mail. The tribe lost when the court decided that cigarettes sold to non–band members were subject to state tax. This became a precedent nationwide. When the ruling came down in 1980, the cigarette boom seemed to be over, although some tribes still operate tax-free cigarette businesses.

The Cabazon Band had been wise to take its profits from cigarette sales while these still lasted and invest the money in embryonic forms of gaming: high-stakes bingo and a card hall in particular. The Cabazon opened a poker room on the reservation in 1980. Two weeks after it opened the Indio police raided it and arrested the tribal employees, the managers, and all the gamblers. The case went to state court, then a federal court, and finally the U.S. Supreme Court. A similar case from Seminole country in Florida also reached the U.S. Supreme Court. The Cabazon case wouldn’t be resolved until 1987, at which point the final legal roadblocks to Indian gaming crumbled. The Cabazon (along with other tribes from California to Washington to Florida) claimed the right to own and operate casinos on Indian land.

On our first day at Morongo, I lost sixty dollars at Lobstermania. Somehow, I didn’t feel very bad. And maybe that old Indian chestnut is true: we are all related. What I felt on the floor and later when I played poker (sandwiched between a pale man with a goatee who looked like a mortician and spoke in funereal tones about “the river” and an African-American cement contractor) was that Indian gaming has brought together a lot of people from different classes, ethnicities, and walks of life. And all of us together keep on giving and giving and giving, even though not all of us win. As I reveled in the luxury and noticed the tan cocktail waitresses and the other happy gamblers and the angular tower seventeen stories high, it was strange to remember that Indian gaming began far away from the sun, palm trees, and luxury of places like Morongo. Gaming began with the Cherokee in the nineteenth century, formalizing the relationship between sovereign tribes and the federal government. And it began again in 1971 with a $147 tax bill on a trailer.