Third Commentary on TNToT: Chapter 2 — “Indians are Saudi Arabia, Not Israel (Oh, and Crying Toddlers)”

Written by: Matthew Fletcher

Primary Source : Turtle Talk, September 12, 2016

This is the third full commentary on “The New Trail of Tears” (TNToT), written by Naomi Schaefer Riley (NSR or the author). The announcement post is here.

  • The first commentary, “Framed by a Friend,” is here.
  • The second commentary, “Turning Indian History against Indians,” is here.

Chapter 2 of TNToT focuses on the Seneca Nation of Indians of New York and the Lumbee Tribe of North Carolina. Chapter 2 is a continuation on the attacks on specific tribes for NSR’s perception that they have failed economically, though in the case of the Seneca Nation, which is pretty successful financially, TNToT resorts to name-calling to make the point. Chapter 2 also centers TNToT as part of the direct attack on Indian tribes and Indian people as having an inferior character generally, again using the tactic of quoting from other Indians to make these points. 

The Attack on the Seneca Nation of Indians

Seneca did not vote to commence gaming operations until 2002 (hey, they actually voted on this like a democracy), but they have been insanely successful in generating revenue since then, with casinos on the Allegheny Reservation, in Buffalo, and in Niagara. Recall in Chapter 1 how NSR criticizes Crow, Northern Cheyenne, and Indians in general for not trying hard enough to be rich?

Weirdly, NSR attacks the Seneca Nation and its people for being rich in the wrong way. TNToT calls gaming revenue per capita payments “annuities.” [at 48] And further argues that gaming payments to tribal citizens stunt their “entrepreneurial spirit”: “Truth be told, though, there’s not a lot of entrepreneurial spirit on the Alleghany [sic?] and neighboring Cattaraugus territories.” [at 48] More, NSR acknowledges that there are better opportunities for economic growth in western New York, with its proximity to Buffalo and Niagara, than there are in other areas of Indian country like the Dakotas [at 55]. So, the gist is, Seneca is rich, but not because of their “entrepreneurial spirit,” but because of their market location, and tribes in the Dakotas who do not enjoy a positive market location are just poor because of their similar lack of entrepreneurial spirit. Throughout TNToT, we see again and again that, for NSR, no Indians have “entrepreneurial spirit.” Remember NSR’s attack on a Northern Cheyenne official at page 21 for not caring enough about free enterprise? These allegations come again and again.

It gets worse. It turns out NSR is wrong about Indians’ character flaw of a lack of “entrepreneurial spirit” — in fact, as NSR points out, there’s a “loophole economy” at places like Seneca. [at 50, also identifying marijuana as the next stage of the loophole economy]. For NSR, the “loophole economy” appears to be everything Indian tribes and Indian people have done for the past half-century or more to make money is not a product of “entrepreneurial spirit” but instead is a product of a “loophole economy” that Indians (with their character flaws) have just accidentally stumbled upon. What a load of hooey!!!! Regardless of the billions generated for tribal government purposes by gaming, smokeshops, 8(a) corporations, sovereign lending (and apparently marijuana?!?!?), for NSR it’s just not “entrepreneurial spirit,” it’s just looking out for the “next sovereign advantage.” [at 60] Can’t wait to talk about this at the next ASU e-Commerce conference!

NSR also criticizes the Seneca Nation for not caring enough about the education of its children, too. In what we could call gaming per capita tribes (and small percentage of tribes overall), there is a perception that the children get money for free and don’t go to school and sit around a do drugs. This is more dog whistle politics from NSR. There are other ways to talk about the positives and negatives of gaming per capita payments, such as the critically important working paper from the Native Nations Institute on the subject. Instead, NSR makes fun of the “financial literacy program” at local schools around Seneca [at 50], and states, “Store owners report that young people will come in to buy candy and hand over $50 or $100 without expecting any change.” [at 49]

Like the people at Crow and Northern Cheyenne who are slowly shaking their heads (okay, maybe it’s just the one guy, Ivan Small), Senecas “simply feel beaten by the system.” [at 61] Maybe that’s what the candy’s for. NSR thinks that’s why there is a drug abuse problem, which TNToT alleges is caused by all the new gaming money, coupled with dispair. TNToT’s allegations of drug abuse at Seneca might be true, but NSR’s evidence for this problem doesn’t come from law enforcement or hospitals, it comes from a rumor about tennis shoes hanging from telephone wires debunked long ago in Snopes

Sprinkled throughout chapter 2 is the grudging admission from NSR that Seneca is actually doing okay. On page 62, TNToT suggests that Seneca has the political and economic power now to prevent another catastrophic event like the flooding of their Alleghany reservation by the feds to create the Kinzua Dam. NSR’s attacks on Seneca fall flat.


TNToT’s “Attack” on the Lumbee Tribe

I have to put attack in scare quotes because I’m not really sure what’s going on here. NSR rips into the poverty of the Lumbee Tribe like she did with Crow and Northern Cheyenne, and then seems to have learned that Lumbee doesn’t enjoy federal recognition, and she use switches gears midstream to find Lumbee tribal members who have some really very disturbing, if not downright bigoted, things to say about other Lumbees and other Indians.

The sections on Lumbee start off with the race baiting and then devolve. NSR begins with Fergus Bordewich again, this time for the proposition that “Lumbees do not have any distinct racial characteristics.” [at 68] NSR could be channeling Donald (“They don’t look like Indians to me“) Trump, but this is actually much worse. More Fergus: “They run the physical gamut from blond hair and blue eyes to the nearly Negroid.”; no”memory” no “language” and are “Baptist.” [at 68] So, TNToT seems to be making the case that Lumbees aren’t Indians, and that’s good because, for NSR, being Indian is awful.

NSR uses quotes from Lumbee people to attack other tribes, for example, Cheryl Beasley: “[Rosebud Sioux] just say to the federal government: ‘Give us our check and tell us what to do.’” [at 69]. [It gets worse in Chapter 4.] NSR’s sources go after other Lumbees too: (1) Ben Chavis: “At one Oxendine stone just off the road, it says, ‘He was a quiet Indian leader who gave fiercely of his love, time, counsel and wealth to others.’ Chavis laughs: ‘Translation: He never had a job.’” [at 70]; (2) Dobbs Oxendine; “Between food stamps and housing assistance, Oxendine believes no one has an incentive to work anymore.” [at 72]; (3) More Dobbs Oxendine: “If we get more checks, we will have more alcohol.” [at 75]

TNToT appears to be making the argument that the Lumbees are better off without federal recognition, and that the Lumbees seeking federal recognition are wrong. NSR’s primary evidence is that Lumbees in Robeson County are doing okay: “[T]here’s a Super Wal-Mart. In other words, there’s plenty of poverty, but there’s also economic activity and opportunity.” [at 70] But two pages later, TNToT makes the case that there are too many people on government assistance (see Dobbs Oexendine above), and that’s bad. Maybe it’s because Wal-Mart-type jobs will never pay a living wage

So the reason to deny the Lumbees federal recognition (or to mock them for seeking it) can’t be that Robeson County is just thriving economically. So, here’s the reason: “[T]here doesn’t seem to be any evidence that Indians in Robeson County are worse off than, say, blacks in Robeson County, and there are plenty of whites and Hispanics living far below the poverty line, too.” [at 74] Maybe a comparison of the Lumbees to the Eastern Band of Cherokee Indians in the same great state of North Carolina is in order. Take a look at that impressive tribal justice system complex they have; you can see it in Samantha Bee’s profile on the Dollar General case. Empirical research has actually been done on gaming (forbidden at Lumbee) at EBCI. Young children benefitIndians receiving checks actually abuse drugs less at EBCI. Under self-determination compacting barred to Lumbee, health care improves, too. So does environmental stewardship. Education, too. NSR wants to deny all that to Lumbee.

NSR’s argument depends on the views of people like Ronald Hammonds: “Divide everything up and give it to the Native American family and let them disburse it, spend it, keep it, whatever. I don’t need no government taking care of me.” [at 76] A core theme of this series of commentaries on TNToT is that NSR is willing and is encouraging the confiscation and dispossession of tribal resources, not based on serious empirical research, but on the views of a guy who (assuming he is being quoted correctly) is an anarchist.

General Notes:

Seneca = Saudi Arabia and China and Israel

NSR compares the Seneca Nation to Israel and Saudi Arabia, and China too [at 62-63]. NSR quotes a Seneca employee, David Kimelberg, who compares Seneca to Israel: “People want to bomb you out of existence, and you need to make sure that doesn’t happen.” [at 62] NSR either sees an opportunity to attack Seneca for being facist, or is overrreacting a wee bit to the comparison of an Indian tribe to Israel, another politically powerful nation that depends in no small part on the United States. NSR says Israel is successful because of the strength of its people, but Seneca is successful because of a “top down” mentality. [at 62] NSR argues that Seneca’s tribal government enterprises are communist (?!?): “You don’t need to travel to Beijing to see central planning at work. It’s everywhere on reservations.” [at 63] For NSR, Seneca is Saudi Arabia, a state with wealth that violates human rights routinely: “Indeed, rather than turning into Israel, Senecas have created in upstate New York a kind of oil-rich sheikhdom like Saudi Arabia.” [at 63] Well, according to Human Rights Watch, there are serious human rights concerns about both Israel and Saudi Arabia (and China and lots about the US). No reports from HRW about Seneca (just Lower Brule Sioux). If anything, Seneca is a lot better than all of these nations.

Facts aside, TNToT still equates Seneca to the democracy haters at Saudi, alleging tribal government corruption of the same ilk as at other tribes (recall at page 22 TNToT points out corruption without evidence): “This is not to say that democracy doesn’t exist in Seneca territory, but there are both a lot of patronage jobs to be had and a seemingly great deal of dissatisfaction among the members.” [at 64] “Lots”? How many? “Dissatisfaction”? How so? Uh, well, NSR blames the Seneca governance structure for political corruption, where “the president can’t serve two consecutive terms” [at 65] and political power is shared by the two reservations, Alleghany and Cattaraugus. So, for NSR, Seneca hates democracy like Saudi does because they diffuse political power too much. Wow. Just wow.

Indians as Crying Toddlers

TNToT repeats the statement that all Indians want is a handout: “[I]ndians demand more autonomy but instead are offered more money – like candy to appease a crying toddler.” [at 66] And, “Indeed, the trust authority has created a relationship whereby Indians will forever be treated as children, incapable of standing on their own feet.” [at 66]

Okay, once again is missing out on the self-determination era. None of these claims about autonomy can be taken seriously without TNToT even mentioning what it means for tribes to administer federal programs under ISDEAA:  more than 50 percent of all federal Indian affairs services are administered by Indian tribes. That’s autonomy.

More on Phantom Tribal Government Corruption

Reading the broad generalizations made about corrupt tribal governments throughout [e.g., at 22], TNToT seems like it could be a catalog of tribal government corruption. But time and again, NSR gathers no evidence whatsoever. Chapter 2 is no different. NSR cites to the Peter McDonald story of corruption that involved Navajo in the late 1970s as evidence of corruption in 2016 (?), but admits “matters have improved somewhat since then.” [at 65-66] NSR did this in Chapter 1, too: “There were some reforms in the 1970s.” [at 22] Yep, tribal corruption, to the extent it existed decades ago, seems to be gone, or at least NSR can’t find any.

Tribal Border Signs

NSR is worried about tribal jurisdiction:

As you enter reservations across the country, you’ll find ominous signs warning that you’re subject to the laws of the tribe and the territory. Are you no longer then subject to the laws of the state? Are you no longer entitled to the protections you enjoy as a citizen of the United States? Maybe these seem like esoteric questions, but such issues are regularly tested in our courts, and no consistent answers have been arrived at. [at 66]

Ah hyperbole! Love it. I love reservation border signs. I would say this — if a lawyer (not a politically conservative journalist) advises you to turn around when you see these signs, you better do it.🙂

Mockery of Tribal Sovereignty

TNToT calls reservation border signs “ominous,” but mocks tribal leaders for claiming “tribes are nations apart”:

Tribal leaders can continue to claim that tribes are nations apart, but no legal authority takes seriously the idea that the relationship between any Indian community and Washington is the same as the one between Washington and Paris, for example. And if tribal authorities were serious about it, they’d stop accepting payments from the federal government, for one thing. As far as we know, the United States isn’t subsidizing housing in the south of France. [at 66]

I’ll take that last statement as true c. 2016, but less so say c. 1947, when the US undertook the Marshall Plan. France remained a sovereign then, just as Seneca is a sovereign now. True, Seneca has no vote in the United Nations, and they aren’t a state — they’re an Indian tribe, a kind of nation listed alongside foreign nations and states in the Commerce Clause. Go look it up — Article I, section 8, clause 3 of the Constitution.

Maybe this will persuade — Seneca could have enacted a law or taken an executive action to remove NSR from the reservation (if she was ever there), like some tribes do with drug dealers. That’s sovereignty. So is sovereign immunity, the power to prosecute, the power to make laws, the power to establish a government structure of a tribal peoples’ own choosing, the power to tax, and so on. Read chapter 2 of the draft restatement on Indian law — I’ll send you a snippet.

“Truth be told”

NSR can be read like a book. TNToT uses intensifiers in her writing in a way that highlights where her arguments are weakest. The phrase “trust be told” is a good example [at 48]. It’s like starting a sentence with “honestly” or “to be honest.” No one telling the truth would have to say that (though it might just be a discourse marker): “‘To be perfectly honest…’ is another phrase to strike from your speech, she says. It often prefaces negative comments, and can seem condescending. It signals a larger issue: If you are taking the trouble to announce your honesty now, maybe you aren’t always truthful.” Why Verbal Tee-Ups Like ‘To Be Honest’ Often Signal Insincerity, WSJ, Jan. 20, 2014.

“Short term”?

I wondered if I found a little typo on page 61, where NSR is criticizing the “loophole economy” — “The problem with the strategy is rent-seeking to achieve economic growth isn’t that it won’t work in the short term.” I think NSR means “long term” because it is working in the short term but NSR argues that over time it won’t. Anyway, I’m confused about this sentence.

Sore Necks

Dobbs Oxendine is another of those Indians that is always slowly shaking his head: Oxendine “can only shake his head” when he visited Rez out west.” [at 75] Recall Ivan Small on page 6.

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Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.