Rez Life: An Indian's Journey Through Reservation Life (27 page)

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In late 1971 Helen and Russell Bryan
made an $800 down payment on a small, two-bedroom trailer in the small frozen village of Squaw Lake on Leech Lake Reservation, Minnesota. Helen’s younger brother had been killed just after he got out of the armed forces, and Helen’s mother gave Helen some of the money they received from her brother’s GI insurance to make the down payment. The Bryans put the trailer on Helen’s ancestral land in the village of Squaw Lake, on the north side of Leech Lake Reservation, where she had spent her entire life. Russell was also Ojibwe, from White Earth Reservation, fifty miles to the southwest. Their mortgage payment for the trailer was ninety-seven dollars a month. These were tough times for Helen. She was thirty-one years old. She had a job with the Leech Lake Head Start Program, but Russell was unemployed. Together they were raising six kids in their new trailer—eight people in two bedrooms. “It was a little crowded,” remembers Helen. “The girls slept in the bedroom and the boys slept in the living room.” But they had running water, electricity, and heat.

Early in the spring of 1972 Helen and Russell were drinking coffee at their kitchen table when they saw a pickup truck pull into their yard. “This guy from the county came. Parked his truck on the road there and walked up and measured the trailer house. He didn’t come in. He didn’t knock on the door or nothing. He just come out there and measured the trailer house and we were sitting there wondering what he’d say. He didn’t say anything about what he was doing. We didn’t know what he was up to. We didn’t think it would be tax.” A short while later the Bryans received a bill for $29.85 for the last two months of 1971. “It wasn’t very much,” says Helen. “But I told my husband: this is wrong. But it seemed like he didn’t care. His attitude was like, so what? He wasn’t mad like I was. I said it was wrong, it’s got to be wrong. And how was I going to pay for taxes and feed my kids and make house payments? Good thing electricity was low. It was a big deal to me because I was the one working. He wasn’t.” She ignored the tax notice for a while. The first bill was followed by a second in July 1972. The entire tax bill for 1972 was $118.10. “And then I remembered they had a legal services department, it was new. Legal services for Indians. So I called them up and talked to someone.”

The staff of Anishinaabe Legal Services told her that it sounded like a good case. They got all of Helen’s information, and then she didn’t hear anything. “We didn’t know what they were doing. I mailed them the tax notice and they said they’d handle it.” Once in a while the lawyers at legal services would call. “But I was busy working. It didn’t really mean anything to me. I just thought they’d take care of it. I didn’t know what I thought.” So the case was in the back of Helen’s mind. Jerry Seck, the lead lawyer, called her and said they were going to court with her case. “I told him if we win I’ll buy you a beer.”

Helen Bryan’s case could be argued in one of two ways. First, since tribal land, held in trust, cannot be taxed, the lawyers could have made an easy argument: the trailer was annexed to the tribal land; was therefore, like a house, to be considered tribal property; and was thereby exempt from tax (just as county and state buildings are not taxed by the feds). Second, they could make a harder argument: that the state could not assess a personal property tax on Indians living on Indian lands. The young go-getting attorneys for the Bryans chose the hard way.

The U.S. Constitution grants the nation, not the states, plenary power over Indian tribes. Without express congressional assent written into law, states have no power over tribes. But Public Law (PL) 280, enacted in 1953, transferred criminal and limited civil law enforcement authority from the federal government to state governments. The problem was that the federal government’s law enforcement programs were “neither well financed [nor] vigorous, and that tribal courts often lacked the resources and skills to be effective.” The result was, largely, “the absence of law enforcement on reservations.” PL 280 was enacted to deal with a public problem: “the complete breakdown of law and order on many Indian reservations.”

Even though PL 280 was passed to combat “lawlessness” it was, as laws go, fairly vague. It was vague because in the 1950s, when it was passed, the federal government was less interested in the ins and outs of jurisdiction than in washing its hands of the Indian problem once and for all. Rather than try to terminate Indian bands, an effort that cost a lot in litigation and time, the government wanted to pass the buck. It was getting out of the Indian business. This was not because it wanted Indians dead—by that time, it just didn’t care. What it did want was cheaper federal administration. The first section, which addressed criminal jurisdiction, was clear:
“Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory.” But the section pertaining to civil offenses was not clear: “Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed opposite the name of the State to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State.” What was intended as a remedy for “lawlessness” was taken by most states and counties as a mandate that gave them power over all civil and criminal offenses on reservations. In effect, tribal sovereignty, as outlined and strengthened by John Marshall and strengthened again by the Indian Reorganization Act of 1934, was being done away with. Reservations were in danger of becoming nothing more than vast neighborhoods controlled by tribal councils with no more power than chambers of commerce or the Rotary Club.

The Bryans lost in Itasca County Court. Their lawyers appealed to the Minnesota state supreme court, but they lost there, too. Finally the case went to the U.S. Supreme Court. By this time the underpaid legal services lawyers who had begun working on the case had moved on—some to other states, one as far away as Micronesia. The case was now in the hands of a lawyer from New York, Bernie Becker. Huge, articulate, personable, Becker masterfully guided the Supreme Court through the ins and outs of PL 280. He was far more expert than the justices on this relatively obscure and poorly worded law, which had, since its passage, been amended more than thirty times.

The heart of Becker’s argument was that PL 280 had been passed to combat lawlessness, not to regulate or tax Indians. Dan Israel, one of the lawyers working for Leech Lake and the Bryans, wrote, “Congress intended the civil portion [the part that could be construed to speak to the issue of taxation] of Public Law 280 to govern the where and how of disputes and not to grant general regulatory power.” A lot hinged on the distinction that Becker made in his oral argument: if PL 280 were conceived of as regulatory, imposing state and federal law across the affected reservations, it could be seen as a “termination law”—a law designed to terminate the special standing that sovereign Indian nations enjoyed, a standing that went back to treaty times and had been affirmed in case law and the U.S. Constitution. However, if, as Becker argued, PL 280 was a measure to fix the problem of lawlessness on Indian reservations, the civil section of PL 280 was simply a forum for addressing civil disputes where there was no forum before. Rather than terminating Indian rights, PL 280 was supposed to give Indians better access to justice.

Just before the lunch break during the oral argument, Becker claimed that Indian tribes had asked for PL 280, that they had lobbied for and consented to the law precisely because they wanted, and needed, to retain their rights and also to fix the problem of lawlessness on the reservation. “This statute was not imposed upon the Indians. The Indians came looking for the statute.” Becker’s logic was simple: if the law had been designed to do away with tribal sovereignty and self-determination, the Indians would never have consented to it, much less asked for it. But that logic was potentially flawed: if Indians had consented to the law, then they had no real standing if the law wasn’t applied in a manner to their liking. With that, the court broke for lunch.

A thirty-three-year-old, almond-eyed Indian woman had been watching the oral arguments from the gallery. She was living in Washington, D.C., and attending Catholic University Law School. On that day in April 1976—100 years since the Battle of the Little Bighorn, 200 years since the founding of the United States—she had gotten up early, ushered her two children out the door and off to school, and made her way to the Supreme Court, where she waited in line for over an hour so she could watch the oral arguments. She was a Leech Lake Indian who had grown up less than fifteen miles from Squaw Lake in a village where trailers like the Bryans’ were an unknown luxury. She had grown up in a ramshackle cabin with no plumbing and no heat except for a barrel stove. To get water she had to fill buckets from a hand pump in the yard and carry them inside. She was my mother, Margaret Seelye Treuer.

She made her way to the cafeteria, ordered a sandwich, and saw Bernie Becker sitting by himself eating his lunch and preparing for the afternoon session. With the combination of steely nerve and nervousness that always compelled her to do not just
a
thing but the
hardest
thing, she approached Becker, introduced herself, thanked him for his work, and asked if she could sit down. He said yes. And then he asked her what she thought of the case so far.

She had been listening all morning with half her mind on her childhood and upbringing and half on case law and legislative history. The idea of “lawlessness” did not have the same meaning for her and her family that it might have had for the legislators. For her and her family and the other Indians from villages on reservations around the county, lawlessness was often more a problem with the law enforcers than with the Indians. Being poor, being from a community where everyone was poor, was different from being broke in a community that was not. Game wardens took their rice. They were denied loans. Their houses were searched for game such as venison and ducks. Whatever the sheriff, the social worker, and the cops wanted, they got.

So she told him what she thought: that Indian tribes had not “consented” to, much less asked for, PL 280. Rather, PL 280 had been imposed on them. She reminded Becker that tribes had long complained that PL 280 had been passed without their consent or input. The only reason Red Lake was exempt from PL 280 was that Roger Jourdain had fought it tooth and nail with every means at his disposal. If the federal government had wanted to terminate Indian rights, as it had in the past, going so far as to terminate the legal standing of whole tribes—such as the Menominee in Wisconsin—it would have done so. PL 280 was not meant to terminate rights, but it had been used to further erode Indian autonomy.

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.