By Harold Henderson
Early in 2002 the Pokagon Band of Potawatomi Indians plans to open the
second-largest casino in the midwest. It would occupy a square mile of land outside of New Buffalo, Michigan, just 90 minutes from Chicago. Opponents, organized as Taxpayers of Michigan Against Casinos (TOMAC), fear the casino will "change forever the quality of life, natural beauty and serenity of our beloved Lake Michigan community."
The disagreement might seem like an ordinary squabble in which those who like the status quo berate developers for disturbing it. But it's more than that. First, the opponents--many of whom are in the tourist business themselves--are white, and the developers are people of color.
More curious, there's no forum in which the squabble can take place. Local opponents have almost as little control over the casino plans as the Potawatomi had over the terms of the 19th-century treaties that cost them their land. If the U.S. secretary of the interior gives his OK, the Pokagons' square mile outside New Buffalo will become a reservation held in trust for them by the federal government. The Pokagons will govern, tax, and zone it, limited only by federal law and by the agreements they've negotiated with state and local authorities--agreements casino critics denounce as feeble and coerced.
Finally, the developers see the casino primarily as a way to raise money to buy back a bit of their ancestral acreage--the secretary of the interior has already authorized the purchase of 4,700 acres in four separate parcels.
This situation, with all its ironies, has roots as deep as anything in the midwest. For centuries European settlers and Native Americans have confronted each other--in war, then in diplomacy, and now in the courts. The Indians lost the war but for the most part have resisted full assimilation. The twisted tale of the New Buffalo casino highlights the unique position they've gained--if that's the right word--in the American legal system.
"The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence," Supreme Court chief justice John Marshall wrote in 1831, and the fog has only grown thicker since then. On the one hand, Indian tribes are sovereign nations: they run their own internal affairs, operate their own legal systems, and enjoy the power to tax. On the other hand, they're also dependent nations: they can't wage war, conduct their own foreign policy, or even sell their land without federal approval. The confusion deepened when tribal members became citizens (in 1924) and when the last state repealed its laws barring Indian voting (Utah, in 1957). Today Native Americans cast votes and can contribute money to local, state, and federal elections, but they aren't always bound by the laws enacted as a result. Indian casinos, for instance, aren't subject to state laws dealing with workers' compensation, unemployment insurance, minimum wage, or overtime.
If logic ruled instead of history, Indian tribes would be either separate foreign nations like Mexico or nonprofit mutual-aid membership organizations like the AARP. Instead, as things have developed, they are intractably, incredibly both. Tribes and states alike answer to the federal government, but in different ways--and they're constantly in court arguing over whose authority takes precedence.
In the midst of this legal fog, almost 200 Indian tribes now operate casinos, generating more than $8 billion in revenue a year. That's only 10 percent of all U.S. gambling revenue (and more than half of that goes to just 22 operations), but it's still a windfall for what has long been the poorest ethnic group in the country. For the first time since the end of the fur trade, the 2,500-member Pokagon Band--which never left the midwest--has a chance to make real money and control its own destiny.
How did they get that chance? The story is little known and doesn't fit any of the stock notions about Indians. The Pokagons aren't saints, they aren't devils, they aren't passive victims, they aren't militants, and they aren't European-Americans with darker skin. As portrayed by sympathetic outsiders, most notably historian James Clifton in The Pokagons, 1683-1983, they are resourceful people whose stubbornness, ingenuity, togetherness, and luck have got them out of many a tight spot, from the Treaty of Chicago in 1833 to the passage of the Restoration of Federal Services Act in 1994. "Our surrender [in 1833] was not an unconditional surrender like Japan's," says tribal council member Jefferson Ballew III. "It was a conditional surrender."
Today's Pokagons are part of a mobile and adaptable tribe known to outsiders as the Potawatomi. Before their history was written, perhaps sometime around 1500, they moved into what is now western Michigan. In the "beaver wars" of the mid-1600s, the Iroquois drove them out of Michigan and all the way to Green Bay before being defeated. After the war, the Potawatomi gradually moved back south and east and settled around the southern end of Lake Michigan, from Milwaukee to Detroit. There they hunted, fished, gathered berries and maple sap, and grew small crops of corn, beans, and pumpkins. Their mastery of the birchbark canoe gave them a technological edge over their neighbors. During the 1700s, in alliance with the French, they prospered in the fur trade and expanded their territory at the expense of other tribes.
American independence, when it came in 1783, proved to be bad news for Indians, because it freed white settlers on the Atlantic coast to move west. In 1794 General Anthony Wayne's army defeated the Potawatomi and allied tribes at the Battle of Fallen Timbers in present-day Ohio. The Potawatomi didn't lose any of their land in the resulting 1795 Treaty of Greenville, but it was clear that they soon would. The oncoming settlers were more numerous and more implacable than the Iroquois had ever been.
Over the next 40 years the Potawatomi were party to more than two dozen treaties with the U.S., including the 1805 Treaty of Grouseland, the 1815 Treaty of Spring Wells, the 1817 Treaty of the Rapids of the Miami of Lake Erie, the 1821 Treaty of Chicago, the 1826 Treaty of the Mississinewa on the Wabash, the 1827 and 1828 Treaties of Saint Joseph, the 1832 Treaty of Tippecanoe River, and the climactic 1833 Treaty of Chicago. Most followed a pattern. The Indians gave up a certain amount of land and acknowledged that they were under the "protection" of the United States. In return they got money, other land, and promises of respect for their rights to self-government, water, hunting, fishing, and gathering. Usually some money was paid at once to named individuals--sometimes Indians, though more often mixed-race traders and interpreters in the "Indian business." Other money was promised in the form of annual payments to tribal members at designated locations.
These treaties moved the Potawatomi from dominating the midwest to barely hanging on or even starving in the space of one generation. The more land they ceded, the more the whites demanded of them--and the harder it became to find enough food on what they had left. By the 1820s they were under intolerable pressure. Some Potawatomi left for the west or Mexico. Some yielded to despair and drank themselves to death. Some tried to become like their new neighbors.
At this unpromising time, an Indian agent in Fort Wayne, Indiana, first noted with approval the frugal and dignified behavior of a small group of Potawatomi led by a man known as Pokagon. When they came to Fort Wayne for their treaty payments they didn't hang around and spend all their money. Instead, they left for their winter hunt or spring planting.
Pokagon spoke well and made wise alliances. Within the Potawatomi tribe he joined the powerful Great Lakes clan and married into the family of a leader, Topenibe. Outside the tribe he worked closely with the influential trader Joseph Bertrand. He used his leadership position to encourage his people to adopt new ways to maximize their chances of remaining in the midwest when the final squeeze came, as it surely would.
The settlers now surrounding them frowned on drinking, at least by Indians; Pokagon abstained from alcohol and urged his followers to do so. The settlers said they wanted Indians to settle down and live in a "civilized" fashion; Pokagon encouraged more emphasis on farming than had been traditional among the Potawatomi. The settlers wanted the Indians to become Christians; in 1830 Pokagon led his people into the Catholic church, accepting baptism as "Leopold" and persuading the Detroit diocese to send them a priest. Until then, French missionaries hadn't had much success bringing Indians into the church and had had to content themselves with "conversions" of dying elders and tiny babies. The Pokagons' conversion was something different. Leopold Pokagon fasted longer than was required of him, and, as Clifton writes, "In his later years he was unmistakably a deeply religious man, a seeker after fresh and more powerful truths."
Pokagon's leadership role was informal by European-American standards. The Potawatomi had no chief. Local leaders were chosen by performance and by age, not by heredity, and those who acted in secret or without authorization were repudiated. Pokagon's strategy of surviving through assimilation came with no guarantee--quite the opposite. The Cherokee had followed much the same path in Georgia and were nevertheless brutally and unconstitutionally removed from their land when gold was discovered on it. Chief Justice Marshall's 1832 ruling that the state of Georgia had no lawful authority over Cherokee territory helped them not at all, and they suffered exile and death on the Trail of Tears.
In 1830 President Andrew Jackson pushed the Indian Removal Act through a closely divided Congress. As its title suggests, the law systematized the process of moving Indians out of the existing states and into the unorganized U.S. territories west of the Mississippi River. Some European-Americans saw removal as a way to preserve Indian life and culture from the contamination of white settlement. (Robert Remini, a historian at the University of Illinois at Chicago who's written a biography of Jackson, tries to impute this comparatively benign motive to Old Hickory.) But in the midwest as in Georgia, removal ultimately expressed white settlers' desire for cheap land and their racist hostility toward even those Indians who were willing to live like them. In legal terms, removal also expressed a more defensible but rather abstract concern: President Jackson believed that no state should contain people who weren't fully subject to its laws, including Indians in organized tribes.
Whatever its reasons, the federal government moved fast. The ink on the 1832 Tippecanoe treaty was barely dry when Congress set in motion plans for another treaty gathering in September 1833 in Chicago.
It was a meeting the Potawatomi could have done without. Squash and corn were ripening in the late-summer sun; the brambles bent low with berries; winter was in the air. But they didn't dare stay away. The U.S. treaty commissioners might assume that those leaders who did show up had the authority to dispose of all Potawatomi lands. Besides, the Potawatomi had come to depend on the regular disbursal of money and provisions guaranteed in treaties--they had to stay on the government's good side.
The Potawatomi couldn't present a united front. The majority, now living in Wisconsin and Illinois, were willing to sell their last five million acres and move on across the Mississippi, according to historian James Clifton. They'd long been accustomed to migration, either as a result of warfare with other tribes or as a way of settling disagreements within their own. But a minority living on smaller reservations in Michigan and Indiana wanted to stay. Leopold Pokagon's group went so far as to appoint a committee to watch over the Chicago treaty proceedings. If any misguided Potawatomi signed away their villages, they were to kill him on the spot.
Chicago had just been incorporated as a village with a population of 150. In September 1833 it was for the first time overwhelmed by conventioneers--several thousand Indians and hangers-on. "They camped along the lakeshore and at the [Wolf] Point and enlarged their already mammoth debts to the local white traders," writes Jacqueline Peterson in her essay in Ethnic Chicago. "The bulk of the traffic was in liquor--alcohol enough to put them all in a drunken stupor for a week. Tipsy families wept together beside their tents, and in the sober morning there was still the wailing."
Pokagon's band camped away from the chaotic treaty grounds "to avoid being taken advantage of," Clifton primly notes. After many days of hard bargaining, on September 26 the Treaty of Chicago was signed by 77 Indian leaders. For their approximately five million acres in Illinois and Wisconsin, the Potawatomi got five million acres in Missouri and between $500,000 and $1 million, which was earmarked for a variety of purposes. Much of it went to pay off debts to traders, but it also included 20-year annuities of $14,000 a year to the Potawatomi as a whole and $2,000 a year to the smaller group of Michigan Potawatomi.
On September 27, the following day, 47 leaders signed a supplement to the treaty--the piece of paper that saved the Pokagons. It stated that "a part of the band residing on the reservations in the Territory of Michigan" would be allowed, "on account of their religious creed...to remove to the northern part of the peninsula of Michigan." With maddening carelessness, it didn't specify which religious creed, or which Indians, or even which part of northern Michigan. Yet the treaty made one thing perfectly clear. Whether headed west or north, the Potawatomi were to be gone in three years, by September 27, 1836.
No one was killed for agreeing to this. It was the best deal Pokagon's people could get. They did have to sign away their villages and agree to move north, presumably to near where the Catholic Ottawa lived. But they would not be sentenced to exile on the Great Plains. Pokagon himself received $2,000, which he set aside for a rainy day. It soon arrived.
Today the Pokagons don't live in northern Michigan. Their ancestors never got there. First the U.S. government designated no specific place for them to move to. Then it refused to pay their moving expenses and first year's subsistence in their new home, even though the Indian Removal Act required it and the westering majority of Potawatomi were paid. And then in March 1836 the Pokagons' would-be northern neighbors, the Ottawa, yielded to government pressure to sell their lands. By the time the Pokagons were supposed to be gone, they had nowhere to go and no way to get there.
Caught between a rock and no place, Leopold Pokagon took his $2,000 to the public land office in Kalamazoo and bought 847 acres under his own name. This land--near present-day Dowagiac, about 40 miles northeast of New Buffalo--wasn't a reservation in law, though many of Pokagon's people lived on it. It was land bought by someone with ready cash who happened to be a Potawatomi.
Pokagon was then an old man. By treaty, he and his people had the right to stay in Michigan. By law, he was a property owner just like any Yankee farmer. By choice, he and his people adhered to a European-American religious creed--when Father Benjamin Petit visited the new village shortly before Christmas 1837 he spent a day hearing confessions. By personal reputation, Pokagon was esteemed. "I saw an American," wrote Petit in May 1838, "who, knowing Pokagon was departing for Bertrand [a trading post], handed him some money to pay his debts there without taking a receipt."
But this was still the frontier. Neither church nor state nor good character could prevent the Pokagons from being hauled off across the Mississippi at a moment's notice by uniformed representatives of the federal government. That's exactly what happened in 1838 to some 800 Catholic Potawatomi living in central Indiana and led by Menomini. In 1840 the secretary of war ordered General Hugh Brady, commander of the Seventh Military District in Detroit, to finish the job of removing all of the remaining Potawatomi from Michigan.
Other Potawatomi faced with this prospect, and not covered under the Chicago treaty, understandably headed for the hills or swamps or Canada. In what was to become a characteristic move, the Pokagons headed instead for the halls of justice. They traveled to Detroit and met with Epaphroditus Ranson, an associate justice of the Michigan supreme court. After reviewing the Treaty of Chicago, Ranson explained the law to General Brady: the Pokagons had the right to remain in Michigan, and if Brady tried to remove them, Ranson would free them on a writ of habeas corpus. The general backed down and told the approximately 200 Pokagons that they could stay unless President Martin Van Buren himself ordered otherwise.
Given the Cherokee precedent, it's fair to say that on this occasion the Pokagons survived by luck as much as by law. If they'd been more numerous and prominent, if gold had been discovered underneath their homes, or if Jackson had still been president, a state supreme court justice could not have saved them any more than John Marshall had been able to save the Cherokee.
Leopold Pokagon had spent more than a decade obtaining and confirming permission from the federal government to stay in Michigan. After he died in 1841, his successors spent more than a century trying to collect from the same outfit. The problem started out simply enough: the government wasn't paying the Pokagons any of the annuities it had promised them in the 1833 Treaty of Chicago and its several predecessors. In 1843 Pokagon complaints persuaded Indian commissioner T. Hartley Crawford to act, after a fashion. He got some money flowing again--roughly $5 per person per year. But he confused matters enormously by denying the Pokagons the payments due them under the Treaty of Chicago and instead paying them under the provisions of the 1829 Treaty of Prairie du Chien, which the Potawatomi had had nothing to do with.
Of course it wasn't clear exactly who should be paid under the vague supplement to the Chicago treaty. In later years the Pokagons had to defend themselves against claims from other Potawatomi--those who'd gone west and those who'd managed to hide out locally and avoid removal--as well as against the negligence of the feds themselves. To do so they lobbied their congressmen and periodically sent delegations to Washington, D.C.
After Leopold Pokagon's death, the band's leadership was in turmoil for years. Beginning around 1866, the Pokagons started formally nominating and electing their leaders--as they still do--including a chairman and members of a business committee. Since the Civil War they've also usually hired lawyers to represent them, in part to handle the increasingly technical and time-consuming process of lobbying the federal government and in part simply to enhance their clout. Congress ended treaty making in 1871, but the "Indian business" continued to prove lucrative to middlemen. As James Clifton explains, "There was little chance that [the Pokagons] would receive a positive hearing unless someone else other than Indians stood to benefit from Congressional action."
The lobbying eventually paid off for both the Indians and their lawyers. In 1866 the Pokagons got another settlement (about $170 per person), which Congress described as payment in full of all its treaty obligations. The Pokagons didn't agree and continued to petition. In 1892 the U.S. Court of Claims found that the Pokagons had received none of the payments called for in seven treaties stretching from 1795 to 1832. Federal agents established the names of the Pokagon Band's 273 members as of 1896, and an award of $105,025.67 was divided among them.
The lobbying also paid off in unexpected but valuable ways. It encouraged the Pokagons to maintain a tribal organization, creating a governmental paper trail that documented their continuing existence; this was important because later government rules have made tribal continuity one of the keys to obtaining federal recognition. And the government-approved 1896 list of members became the basis of Pokagon Band membership--anyone who can prove descent from someone on it can be a member.
Being disrespected and dispossessed didn't make the Pokagons saints. In 1864 they traveled to Washington using funds from France intended for a chapel and a school. Their internal power struggles could get messy. And their partial assimilation into Gilded Age America led them into some quirky dead ends.
Leopold Pokagon's youngest son, Simon, served for a time as tribal chairman, but according to Clifton, he got involved in dissension and questionable financial dealings. By the time he spoke at the 1893 World's Columbian Exposition in Chicago, his credibility among white people was greater than among his own.
During the 1890s, articles under Simon Pokagon's name appeared in several prestigious magazines. In them he went beyond the adaptive assimilation practiced by his father and endorsed a notion then fashionable among whites: solve the "Indian problem" by eradicating Indian culture. At the time Congress was already requiring many tribes to "allot" or divide their reservations into individually owned parcels. "Break up as soon as possible the last vestige of tribal relations," Simon Pokagon urged in the December 1895 American Monthly Review of Reviews. "When the reservations are broken up and the people scattered in houses of their own...then and not until then will the great Indian problem be solved."
The Pokagons, who had no reservation of their own, were arguably partway to Simon Pokagon's solution. But they'd just won a 63-year legal battle with the feds, and they weren't about to dissolve into individual molecules in the melting pot. Instead they turned their attention across Lake Michigan and laid claim to Chicago's lakefront--to all of its parks, museums, businesses, industries, wharves, warehouses, and railroads built on fill or "made land" where Lake Michigan had been before. The Pokagons argued that when they ceded their land they hadn't ceded the lake bottom. Though farfetched, this "Sand Bar Claim" was irresistible--even a small cloud on the title to so much prime real estate could be worth a lot of money.
It's not clear when the idea of making the claim originated, but Simon Pokagon gained himself little credit by selling the band's claim to a Chicago speculator in 1897, apparently with neither the knowledge nor the approval of the elected Pokagon leadership. In 1901 Simon's son Charles publicized the claim with a dramatic scheme to "invade" Chicago. The Pokagons were to travel to Saint Joseph, Michigan, board a charter steamer across the lake, and take up residence in Grant Park, which was part of their claim.
The invasion didn't go anywhere, and neither did the Sand Bar Claim. By 1914 the Pokagons' business committee had cleared up the confusion Simon Pokagon had created, and their attorneys sued. They asked the court to kick the city of Chicago, the Illinois Central Railroad, the South Park Commissioners, the Lincoln Park Commissioners, the Illinois Steel Company, the Michigan Central Railroad, and other parties off the new lakefront lands. The Pokagons lost, appealed, and finally received a quick dismissal from the U.S. Supreme Court in January 1917.
By the 1930s the federal policy pendulum had swung back toward affirming Indian tribes rather than breaking them up. The 1934 Indian Reorganization Act formalized the business of recognizing tribes, who then became eligible for various kinds of government help. The Pokagons sought recognition under this act from 1934 to 1942 but were consistently rebuffed. They weren't like the reservation Indians of the southwest, so it was easy for the feds to let them drop from sight when it turned out that there wasn't enough money to go around. "One thing is clear from the extensive records of the Bureau [of Indian Affairs] in this matter," writes Clifton. "No one in Washington or the Bureau's field offices had more than the vaguest idea of the organization and circumstances of the Catholic Potawatomi."
Meanwhile Pokagons were moving away from traditional subsistence activities such as hunting, fishing, picking huckleberries, tapping maple trees, and growing their own food. "They worked on the farms, they logged, they cut wood," tribal historian Richard Daugherty told the Senate Select Committee on Indian Affairs in 1994. "They worked in construction, they worked in the factories when the factories were running. A lot of them worked in the basket factory." Many endured hard times and what we would now call homelessness. In a 1940 letter to the government, Pokagon John Williams wrote, "Winter is coming again and it is hard for an Indian to rent a house, no work no money, all they can get is the berry shanties to live in for the winter and sometimes they live in tents all winter."
With or without money, 20th-century Pokagons often downplayed their traditions. After the mid-1930s they no longer visited the University of Notre Dame for the traditional exchange of woven black-ash wastebaskets, laundry baskets, and grocery baskets for food. "When I was growing up [in the 1940s and 1950s], nothing really was happening to link me with the Potawatomi ways," businessman Philip Alexis says in Always a People: Oral Histories of Contemporary Woodland Indians. "We were all being encouraged not to speak our language, not to do certain things. So a lot of that went undercover....I can still speak our language because we spoke it at home. But we didn't speak it outside on the street." Those who kept up traditional practices often did so in secret. "We still have the sweat lodges," Daugherty told Congress. "What they did, they just did it after dark, to the extent that most people think that that's traditional, but it isn't, the people were just hiding."
Had the Pokagons at last inadvertently dissolved, as Simon Pokagon wanted? Not really. After World War II, Congress set up the Indian Claims Commission to adjudicate alleged broken promises and underpayment for land, and the still-organized Pokagons filed claims with it. The commission proceeded slowly--as the government almost always has since the initial dispossession--but in the end ordered that the Pokagons be paid a total of $1,900 per person in the mid-80s because they'd been unfairly dealt with. For instance, in 1821 and '22 the government had paid the Potawatomi only 4 cents an acre for land then worth 85 cents on the market.
In 1981 the band renewed its effort to gain formal federal recognition as a tribe (which led Clifton to write the Pokagons' history). Recognition wasn't just a status symbol. It could make a real difference in people's lives. James Keedy of Michigan Indian Legal Services testified before Congress in 1994 that a tribe member had recently asked for help "in obtaining custody of his nephews and niece. They were placed in non-Indian foster homes. They will likely lose contact with their culture." But because the Pokagons weren't formally recognized, the Indian Child Welfare Act couldn't be invoked to help him.
As a tribe without a reservation, the Pokagons had to laboriously prove all over again what they'd proved to generation after generation of bureaucrats, going back to 1833 in Chicago. Joseph Winchester, who'd attended Indian Claims Commission hearings in 1963, didn't miss the irony. He told Congress, "We have been told by various officials that even though the Indian Claims Commission agreed at that time, yes, we were Potawatomis, sure, we will pay you two different checks, but evidently that does not hold water, so to speak, in us applying for Federal recognition. Why, I do not know, but I would be interested to find out someday."
For ten years the Pokagons' application made little progress through the Bureau of Indian Affairs. Then in 1991 they persuaded two U.S. representatives--Fred Upton, a southwestern Michigan Republican, and Tim Roemer, a northern Indiana Democrat--to take up their cause. Upton and Roemer introduced a bill in Congress that eventually enabled the Pokagons to bypass the BIA.
"The federal government has arbitrarily excluded the Pokagon Band from federal recognition," Upton told the House on February 4, 1993, referring to the Depression-era rebuffs. "The Pokagon band meets all of the criteria and requirements, including tracing its roots to before the Europeans landed, inhabiting a distinct area, maintaining a continual tribal influence over its members, and documenting a history of federal government treatment of the tribe as a distinct entity." (Today it's clear that the Pokagons met these criteria better than some already recognized tribes. The pedigree of New England's Mashantucket Pequot tribe, now owners of Foxwoods, the world's largest casino, has been called into serious question by Jeff Benedict's new book, Without Reservation.)
Congress eventually agreed, and on September 21, 1994, President Clinton signed the bill that formally recognized the Pokagon Band. The bill established a Connecticut-size "service area" centered on South Bend, where the Pokagons have had close ties with Notre Dame since its founding. It included four counties in Michigan (Berrien, Cass, Allegan, and Van Buren) and six in Indiana (La Porte, Saint Joseph, Elkhart, Starke, Marshall, and Kosciusko); Pokagons now make up just one-tenth of one percent of that area's population. The 1,200 members who lived in the service area--another 1,300 members live elsewhere--became eligible for federal programs in housing, health care, child welfare, and education that would be administered by the band.
Being a recognized tribe put the Pokagons into a "government-to-government" relationship with the United States--an acknowledgment of their ambiguous but very real sovereignty. From then on, when the Pokagons bought land in the service area and got the federal government to hold it in trust for them, federal and tribal laws would preempt most state and local laws on that land. It would not be subject to local property taxes. Local zoning and planning codes would not apply. Nor would state gambling regulations.
Within weeks of gaining federal recognition, the Pokagon Band voted to set up a casino--seeing it as a way to pay for the land they wanted to buy. "We have to utilize this funding [from a casino] to reestablish our homeland," says current tribal chairman John Miller. "We might not be able to otherwise. Reestablishing our homeland might mean taking a 400-acre cornfield and planting trees, or a 400-acre wetland and planting native species. We want to get more acreage, see some trees again, and get away from the pavement. And we're going to have to develop a sense of community throughout our [scattered] pockets of population--perhaps by having computers in every home, funded by the tribe."
Representatives Upton and Roemer felt betrayed. In a joint statement quoted in the South Bend Tribune on November 15, 1994, they said Pokagon leaders had told them gambling wasn't in their plans. (Miller says, "There was a change in council membership and a change in opinion, much as the U.S. government changes from time to time.") "After working for three years to successfully gain federal recognition for the Pokagon Band of Potawatomi Indians," the two congressmen said, they would "work just as hard to make sure that Indian gaming does not take place."
But once a tribe is recognized, a mere U.S. representative has little power over it beyond lobbying the Bureau of Indian Affairs and passing along constituents' concerns. Roemer has done what he could; Upton has been very quiet. The two states' divergent policies on Indian gambling--Indiana being much more hostile than Michigan--are eerily reminiscent of their contrasting policies on Indian removal 160 years ago. Indiana has no Indian casinos, while Michigan has 17. Indiana has resisted Pokagon attempts to buy land more than Michigan. "Every single [Indiana] unit of government and chamber of commerce has gone on record" against a casino, says a Roemer aide.
Much of the resistance the Pokagons face has to do with gambling, though some of it no doubt has to do with race. A lot of people seem surprised that they even exist--non-Indians can live in the tribe's service area for years without hearing anything about them. That's understandable. For one thing, there aren't very many Pokagons. For another, as a group they're better-off than most Native Americans. In the Bureau of Indian Affairs' 1997 "Labor Market Information on the Indian Labor Force," Pokagon unemployment was estimated at 20 percent, comparable to the unemployment rate in predominantly African-American Benton Harbor and much less than the horrific 50 percent for Native Americans nationwide. Finally, the Pokagons' long-standing adaptive style--determination without militancy, even on issues that outrage some Native Americans--has kept them out of the media spotlight. Pokagon cultural coordinator and vice chairman John Warren has worked with Notre Dame archaeologists investigating the band's 1830s village near Niles, Michigan. And in 1990, as part of an agreement with the Dowagiac school system, a Pokagon Band member designed a logo that accurately depicts a Potawatomi chief for the Dowagiac "Chieftains."
Whatever the concerns of the surrounding community, this year the Pokagons bought a square mile of land southeast of New Buffalo, just off I-94, where they plan to build the casino. If the Department of the Interior approves the casino, the land will become part of their new reservation. The Interior Department has also agreed to put into trust as part of the reservation a total of 4,700 acres that the Pokagons can buy in four portions of their service area. So far they've purchased a 1,598-acre tract near Dowagiac, to be used for housing, health care, tribal government, natural preservation, and a bit of commercial development.
How Indian casinos became legally and economically possible is a tale almost as tangled as the Pokagons' own. It was nobody's master plan. Over the past 20 years, with little help from the feds and despite opposition from the states, Indians finally stumbled on a way to lift themselves out of poverty. In January 1984, Fred Dakota of the Keeweenaw Bay Indian Community in Michigan's Upper Penninsula became one of the industry's pioneers when he opened a casino consisting of a single blackjack table in his two-car garage. As the story goes, he dealt and his wife served drinks. Several other individuals and tribes followed suit, operating--as Central Michigan University's Clarke Historical Library puts it in its Web site presentation on Native American treaty rights--"in the shadow of state law."
That shadow was suddenly dispelled in 1987, when the U.S. Supreme Court decided the case California v. Cabazon Band of Mission Indians. If a state allowed any kind of gambling anywhere, the court ruled, then it had to allow any kind of gambling on Indian reservations. (Off-reservation land owned by individual Indians didn't count.) The state couldn't regulate reservation gambling, and if it permitted even a single charity to stage one low-stakes Las Vegas night once a year, then it could do nothing to stop or limit 24-hour Las Vegas-style gaming on a reservation. The federal government's interest in Indian self-determination and economic development simply outweighed any state concern.
Cabazon brought to life Andrew Jackson's 150-year-old nightmare--residents of a state not being subject to all of its laws. The following year, Congress tried to reconcile the competing interests of tribes and states in the 1988 Indian Gaming Regulatory Act, a compromise that satisfied neither party but gave states more input than the Supreme Court had allowed. A tribe seeking a casino had to negotiate a "compact" with the relevant state government to determine how gambling would be conducted. The state in turn had to negotiate with the tribe in good faith. Such a compact could include agreements on how the Indian casino would be regulated and how the tribe would reimburse the state for any regulatory or law-enforcement services.
But what exactly constitutes good faith negotiation? What happens if negotiations produce nothing? What if a court finds the compact invalid? The situation remains clear as mud--so much so that dozens of casinos, including two in Michigan, are now operating without state compacts. (Some states call this gambling illegal; the tribes call it "uncompacted.") Only the federal government can enforce the compact requirement, and sometimes it has chosen not to.
The Indian Gaming Regulatory Act also tried to plug a gaping hole left by the Supreme Court's 1987 decision. States regulate commercial casinos closely in order to keep organized crime out of them. But unless a compact says otherwise, the states can't regulate Indian casinos. So Congress established the National Indian Gaming Commission as an independent body within the Department of Interior to regulate Indian casinos. Its agonizingly slow and underfunded start didn't enhance public confidence that tribal casinos would indeed be well regulated.
The commission took ten years to adopt regulations governing basic procedures such as who should be in the room when the money's counted. That's not surprising--in 1998 it had just $5 million a year to regulate 285 gaming operations in 28 states. That same year its deputy general counsel, Penny Coleman, acknowledged that the budget was inadequate for the job. Budget, staffing, and enforcement activities have since been beefed up, but not enough to satisfy skeptics. And those who think the commission's challenge is to maintain the integrity of the casinos weren't reassured last March to see commission chairman Montie Deer quoted in Indian Gaming magazine: "The tough question for the agency is how to regulate sovereign nations while respecting tribal sovereignty."
Gambling is a service many Americans want. As the law stands, Indians can offer that service without the restrictions placed on non-Indian gambling (such as bingo having to be conducted by charities for low stakes and casinos having to pretend to be riverboats). Gambling also allows Indians to get around their perennial capital problems--few investors were willing to put a factory on a reservation, because if it failed they might not be able to repossess and sell it to recoup their money. As Allison Flatt of the federal National Gambling Impact Study Commission explains, "The system that ensured their cultural identity through preserving their land base also promoted poverty by limiting the use of that land."
The seemingly endless revenue stream promised by gambling has made investors more willing to send capital into Indian country than ever before. Indian casinos garnered $1.2 billion in 1992 and more than $8 billion last year. Of course the money to build casinos may come from sources that make some people uncomfortable--Foxwoods was backed by Malaysian investors. As Michigan casino opponent James Smyth says, "Indians are still the pawns."
Getting their casino off the ground has been slow work for the Pokagons. They've filed voluminous applications with the Bureau of Indian Affairs and the National Indian Gaming Commission, and they've negotiated compacts with the state of Michigan and with local governments. To manage the process they've hired some heavy hitters--casino contractor Lakes Gaming, a publicly traded company based in Minnesota; attorney Rob Gips, who has 17 years' experience helping Indians, including the Pequots in Connecticut, set up casinos; and political consultant Tom Shields, founder of the Marketing Resource Group in Lansing, Michigan, which describes itself as "a full-service political consulting company...involved in every significant Republican victory in Michigan during the last 20 years."
Most Michigan officeholders either support the Pokagon casino outright or are resigned to its inevitability. "My conscience says no," says New Buffalo township supervisor Agnes Conway, "but as supervisor I have to look at what's best to do if it comes."
Local governments and immediate neighbors of Indian casinos don't seem to have been on the radar screen when Congress passed the Indian Gaming Regulatory Act. Neither the act nor the regulations promulgated under it give them even an advisory role. "Our preference," says Bureau of Indian Affairs midwestern gaming specialist Dawn Selwyn, "would be that [neighbors] submit comments through their elected officials." In cases such as the Pokagons'--a casino proposed on newly acquired land--the secretary of the interior must consult local government officials and get the concurrence of the state governor. Beyond that, the decision whether to allow an Indian casino is his, based on whether the casino would be "in the best interest" of the tribe while not being "detrimental" to the surrounding community.
No law requires it, yet on March 13 the Pokagons concluded an agreement with New Buffalo Township and several other local governments. Under it, the governments will support the Pokagons' federal casino application and after the casino opens will divide up a 2 percent share of electronic-gaming revenues. Using conservative assumptions, that would double the township's current annual revenues of $516,000. The agreement remains controversial, and this fall Conway survived a stiff electoral challenge. "Our local governments have been coerced by Indians to sign these patronizing letters of support" for the casino, says James Smyth, who managed the anticasino candidates' unsuccessful campaigns for the township board.
More convoluted and still unfinished is the saga of the Pokagons' state compact. In 1997 four Michigan tribes--the Pokagons, the Huron Potawatomi in Fulton, the Little River Band of Ottawa Indians in Manistee, and the Little Traverse Bay Band of Odawa Indians in Petoskey--negotiated four identical compacts with Michigan governor John Engler (another of Tom Shields's clients). Each tribe agreed to pay $50,000 a year to the state to cover the cost of overseeing games, consultants, management, and records. In addition, 8 percent of their electronic-gaming and slot machine profits would go to the Michigan Strategic Fund for state economic development and 2 percent to local governments. The tribes also agreed to abide by Michigan employment-security and workers' compensation laws.
Michigan lawmakers narrowly approved all four compacts in December 1998, in the form of a joint resolution (which required only a majority vote of those present at the time) rather than as a bill (which would have required a majority of each house's full membership). Casino opponents sued, asking circuit court judge Peter Houk to declare the joint resolution unconstitutional. A year later, on January 18, 2000, he did just that, ruling that the legislature had acted unconstitutionally because the compacts were in fact laws and had to be passed as such. (For instance, they allowed 18-year-olds to engage in casino gambling, thereby amending another Michigan law.) Houk's decision has been appealed, the state appellate court is expected to take more than a year to decide, and its decision will in turn almost certainly be appealed to the Michigan Supreme Court.
Meanwhile, to the fury of casino opponents, Houk's ruling has made no visible difference. The two northern tribes have already opened their casinos, in Manistee and Petoskey, and the Pokagons' federal approval process grinds on. How can this be? "In our view," says Lance Boldrey, deputy legal counsel for Governor Engler, "the compacts went into effect when the secretary of the interior allowed the 45-day period to expire during which he could have vetoed them." (The BIA Web site lists the four compacts as "deemed approved 02/09/99.") "Absent a federal court ruling that they are invalid"--and such a ruling could come only after the Michigan Supreme Court rules--"our position is that they remain in force." By that time the Pokagons expect that their casino too will be fait accompli.
The Manistee and Petoskey casinos may be violating federal law and the Michigan constitution with every click of the wheel, but no one has made any move to shut them down. "Who," asks Pokagon adviser Tom Shields rhetorically, "is going to go to Manistee and put 500 people out of work?"
Who indeed? Does it matter? Is the legal status of Indians and their casinos just an arcane technicality? Few non-Indians cared until Indians began gaining money and power. Newly wealthy tribes have begun organizing politically in unprecedented ways. Several jointly bankrolled an effort to defeat their frequent antagonist, Washington's Senator Slade Gorton, a Republican they accuse of trying to undermine tribal authority. In central Michigan, the Saginaw Chippewa government (proprietors of the Soaring Eagle in Mount Pleasant, the midwest's largest casino) hosted a June fund-raising dinner for Democratic U.S. House candidate Dianne Byrum. On its Web site, the tribe urged visitors to contribute to her campaign "if you are a Michigan resident that wants to maintain the success she has helped gain for the Tribal communities, including ours." (These efforts enjoyed mixed success. In tight races, both Byrum and Gorton lost.)
Political writer David Plotz calls such activities by tribal governments "a sticky conflict of interest," because they are the only governments allowed to make contributions to American political campaigns. In California, Plotz writes in the September Washington Monthly, gambling tribes constitute "the most powerful interest group in the state."
Arizona-based attorney and casino opponent Alexis Johnson goes further. He sees a constitutional as well as a financial danger in the existence of powerful sovereign entities within the U.S. that can't readily be held accountable. "Are they in or are they out?" he asks. "If they're sovereign, then why are they receiving federal domestic funds and voting in elections when they're not bound by the results?" He also complains that the Freedom of Information Act isn't applied to tribal governments, making it almost impossible to monitor their membership policies. On the other side is Robert Williams Jr. of the University of Arizona, who argues in the Encyclopedia of North American Indians, published in 1996, that any federal power limiting Indian self-government "perpetuates and extends a thousand-year-old European-derived legacy of colonialism and racism toward them as indigenous tribal peoples."
The Pokagons didn't survive the treaty era by being ideological purists. They made a deal in 1833 against much worse odds and managed to make it stick. They remain pragmatic. In recent years they've gone out of their way to be conciliatory toward their neighbors, in part because getting a casino isn't their ultimate goal. Like prosecuting the Sand Bar Claim or gaining federal recognition, building a casino is a short-term avenue to long-term stability. "Gaming is a flash in the pan," says tribal chairman John Miller. "Five hundred years from now we will still be a community."
Art accompanying story in printed newspaper (not available in this archive): photos/courtesy of Pokagon Band/Jon Randolph/courtesy of the University of Notre Dame Archives.