American Indian Education: Counternarratives in Racism, Struggle, and the Law (The Critical Educator)

American Indian Education “This is a brilliantly conceived, penetrating and damning portrayal of the myriad failures an...

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American Indian Education “This is a brilliantly conceived, penetrating and damning portrayal of the myriad failures and general ignorance displayed throughout the American educational system when it comes to American Indians. Matthew Fletcher’s “counternarratives” give voice and vision to one of the most important human rights struggles confronting indigenous peoples in the United States and the world.” Robert A. Williams, Jr., E. Thomas Sullivan Professor of Law and American Indian Studies, The University of Arizona Rogers College of Law “A compelling use of narrative to teach about the experience of American Indians in the U.S. education system. From history lessons that erase or distort the Indian experience, to legal challenges to Indian schools that seek to teach Indians their own culture and history, Fletcher invites us to experience a world that may be unknown to many non-Indians, enriching our understanding of the native nations in our midst.” Joseph William Singer, Bussey Professor of Law, Harvard Law School American Indian culture and traditions have survived an unusual amount of oppressive federal and state educational policies intended to assimilate Indian people and destroy their cultures and languages. Yet, Indian culture, traditions, and people often continue to be treated as objects in the classroom and in the curriculum. Using a critical race theory framework and a unique “counternarrative” methodology, American Indian Education explores a host of modern educational issues facing American Indian peoples—from the impact of Indian sports mascots on students and communities, to the uses and abuses of law that often never reach a courtroom, and the intergenerational impacts of American Indian education policy on Indian children today. By interweaving empirical research with accessible composite narratives, Matthew Fletcher breaches the gap between solid educational policy and the on-theground reality of Indian students, highlighting the challenges faced by American Indian students and paving the way for an honest discussion about solutions.

Matthew L.M. Fletcher is Assistant Professor at Michigan State University College of Law and Director of the Indigenous Law and Policy Center.

The Critical Educator Edited by Richard Delgado and Jean Stefancic American Indian Education: Counternarratives in Racism, Struggle, and the Law Matthew L.M. Fletcher

American Indian Education Counternarratives in Racism, Struggle, and the Law

Matthew L.M. Fletcher

First published 2008 by Routledge 270 Madison Ave, New York, NY 10016 Simultaneously published in the UK by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business This edition published in the Taylor & Francis e-Library, 2008. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”

© 2008 Taylor & Francis All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging in Publication Data Fletcher, Matthew L.M. American Indian education : counternarratives in racism, struggle, and the law / Matthew L.M. Fletcher. p. cm.—(The critical educator) Includes bibliographical references and index. 1. Indians of North America—Education. 2. Indians of North America—Cultural assimilation. 3. Indians of North America—Ethnic identity. 4. Multicultural education— United States. 5. Education—United States. 6. Acculturation— United States. 7. United States—Ethnic relations. I. Title. E97.F55 2008 371.829′97—dc22 2007048815 ISBN 0-203-89564-9 Master e-book ISBN

ISBN10: 0–415–95734–6 (hbk) ISBN10: 0–415–95735–4 (pbk) ISBN10: 0–203–89564–9 (ebk) ISBN13: 978–0–415–95734–2 (hbk) ISBN13: 978–0–415–95735–9 (pbk) ISBN13: 978–0–203–89564–1 (ebk)

For my mother and her mother before her.

Contents

Series Editors’ Introduction

ix

Acknowledgments

xi

Introduction

1

1

Commodifying Indian Students and Sport Mascots: The Lake Matchimanitou Warriors

11

Burying Indian Histories in the Curriculum: The American History Teacher

31

Criminal Injustice and Demonizing Indian Students: The American Indian Student

51

Intergenerational Character of Indian Experiences in Education: Niko Roberts on the Ice

77

5

Indian Academic Fraud: The Terrible Tribe

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Indian Literary Fraud: Vann Logan’s Novel

125

7

Indian Cultural Restoration: Toledo Marks’ Return

145

8

Indian Political Resurgence and Affirmative Action: The Lake Matchimanitou Indian School

161

2

3

4

vii

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Contents

Notes

189

Index

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This book inaugurates The Critical Educator, a series on critical race theory in education. As the reader may know, critical race theory first took root in law about twenty years ago when lawyers and scholars realized that the heady civil rights gains of the 1960s and 1970s had stalled and were, indeed, being rolled back. New concepts and approaches were necessary to cope with the subtle, institutional forms of discrimination that were springing up and a public that seemed tired of hearing about race. Derrick Bell, Kimberlé Crenshaw, Mari Matsuda, Charles Lawrence, and Richard Delgado developed such concepts as interest convergence, intersectionality, hate speech, and unconscious racism. The movement grew rapidly and now counts one to two hundred core adherents and scores of books. Recently, critical race analysis has spread to other disciplines, most notably education, where it has generated a great deal of attention, with conferences, symposium issues of major journals, and a growing book list. In this country, it includes figures such as Dolores Delgado Bernal, Gloria Ladson-Billings, Larry Parker, Daniel Solorzano, William Tate, Tara Yosso, and Matthew Fletcher. In England, a leading figure, David Gillborn of University College London, is chair of his department and editor of a major education journal. Many of these scholars will play a role in this series. Critical race education scholars examine such issues as hierarchy in schools, as well as discipline, tracking, high-stakes testing, and migrant and bilingual education. They have addressed school funding, institutional racism, the Western canon, affirmative action, and “acting white.” Authors ix

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use critical tools such as storytelling—deployed to impressive effect in the present volume—voice, white normativity, and critiques of colorblindness to explore how seemingly neutral constructs such as merit shape vital educational decisions including college admissions, where they function in a manner that is not neutral at all. The book you are about to read, by American Indian law scholar and storyteller Matthew Fletcher, brings an accomplished fiction writer’s trained eye—and a legal scholar’s well-honed mind—to the exploration of American Indian issues. Among the topics he touches on in this series of narratives, loosely joined by threads of plot and character, are Indian boarding schools, the fate of Indian children in contemporary public schools, and school sports. He writes about degrading tribal mascots that prance up and down the sidelines at football games at white-dominated high schools, broken treaties, and an Indian school that flourishes against all odds. The reader will enjoy making the acquaintance of some memorable characters, including Parker and the tribal lawyer who does his best in the face of an uncomprehending establishment. When the Lake Matchimanitou Indian School starts a long, slow comeback the reader, if he or she is at all like the two of us, will quietly cheer it on. Richard Delgado University of Pittsburgh School of Law University Distinguished Professor of Law and Derrick Bell Fellow Jean Stefancic University of Pittsburgh School of Law Research Professor and Derrick Bell Scholar

Acknowledgments

While there are more people to thank than I can remember, I would like to say chi-miigwetch to Wenona Singel, Owen Singel-Fletcher, June Mamagona Fletcher, Richard Fletcher, Zeke Fletcher, John Petoskey, and Eva Petoskey who have supported and inspired me. Richard Delgado and Jean Stefancic have been wonderful supporters of this project from the beginning stages. Kristen Carpenter, Richard Delgado, June Mamagona Fletcher, Zeke Fletcher, Kate Fort, Myriam Jaïdi, Sonia Katyal, John Petoskey, and Angela Riley have been outstanding and gracious readers of prior drafts.

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The kind of human being that each infant becomes—who they are, what they are, how they react to the world—depends on the people who care for that infant from the beginning. As Raymond Kiogima, an Odawa elder from Indiantown in Harbor Springs, Michigan, has stated, the first language a child hears is the language they will speak.1 Prior to contact and the various stages of assimilation policies, American Indian people raised and educated their children in a manner unique to their peoples, consistent with their customs and traditions, and adapted to their specific surroundings. Indian children knew who they were, where they came from, and how to live. They knew how to survive and maintain their cultures, languages, stories, and rules of order.2 While there may have been no such thing as a utopian Indian community and while some Indian communities imposed their wills on others or even disappeared over time, change was incremental and slow. Contact with European nations and people—and later the United States—had a shocking and devastating impact on the North American Indigenous cultures and people.3 What Indian people had—land, natural resources, food, labor, knowledge—these newcomers wanted and they would not stop until they had it. Europeans and Americans benefited from a wide variety of factors, including their superiority in military technology and resistance to certain kinds of disease, as well as a will to destroy, terrorize, mutilate, and conquer that most Indian communities found foreign and even incredible.4 And yet, in general, it appears that these Europeans and Americans, despite some very threatening and grandiose 1

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rhetoric, chose to assimilate Indian people rather than exterminate them.5 Campaigns of extermination and subjugation are very expensive and difficult to maintain, whereas a long-term program of incorporating Indigenous peoples into the “superior” polity over generations would have two benefits. First, it was cheaper and involved the loss of fewer lives and property. Indian language and cultures would disappear by incorporation into Euro-American language and culture and the Indian race would be bred out through intermarriage or even disease.6 Second, it would allow the Europeans and especially the Americans a little wiggle room in the court of morality. Euro-American religions and philosophies could be arrayed to justify mass extermination of entire peoples, but no religion or philosophy can survive for very long on this basis. Popular groups of the 19th century like the “Friends of the Indian” and the Indian Rights Association arose out of these unanswerable questions, generating and supporting proposals to assimilate Indian people as a means of saving them.7 The major prong of assimilation offered by the United States was through the education of American Indian people. American and Indian treaty negotiators often included provisions in these sacred treaties requiring the American government to take up the cause of educating American Indian children.8 The wide majority of Indian treaty negotiators did what they could to preserve the existence of their peoples’ cultures and communities even while faced with military extermination, starvation, murder threats, and the unconscionable bad faith of American treaty negotiators, who engaged in tactics featuring trickery, coercion, duress, and bribery to achieve their goals.9 This is consistent with the worldviews of many North American Indigenous peoples—to make decisions with the view toward the impact of those decisions seven generations ahead. Typically, in exchange for Indian lands, one of the treaty rights Indian people acquired was the promise of the American government to educate Indian children. It is true that many Indian treaty negotiators sought these provisions expressly to smooth the integration of their children into American children,10 but they could not have anticipated the problems created. American policymakers were only too pleased to send educators, bolstered by the Christian Protestant and Catholic priests and nuns who would conduct much of the education, to Indian Country. It was, after all, the children where the United States would best be able to carve out the heart of Indian cultures, traditions, and religions. And, for those Indian tribes that hadn’t signed a treaty or a treaty with an educational component, Congress and the President provided for American educational programs to reach Indian Country anyway.11 As recognized by American judges and policymakers, the very notion of an Indian reservation itself was a metaphor for a school.12 American policymakers theorized that, over generations, the

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cultures and traditions of Indian people would disappear and the need for Indian reservations and separateness would dissipate. But assimilation failed to complete its task of completely destroying Indian people and cultures. Indian people now have begun the long process of restoring what can be restored of their populations, languages, beliefs, property, and cultures. The generally horrendous “system” of American Indian education created by the treaty provisions and federal statutes and regulations existed from the early treaty times all the way through the 1970s. This system of education included boarding schools operated and funded by both secular and religious organizations; some invited into Indian Country and others not. The theory of an Indian boarding school, in short, was to separate Indian children from the people and communities that would teach them the Indian ways of living and communicating in favor of “civilization.” Indian boarding school experiences are some of the most horrific examples of the attempt to assimilate Indian people into the melting pot of American society. Some components of the Indian education system still exist, such as the Haskell Indian boarding school, but they are now operated by Indian people and organizations, with the Haskell Indian Nations University as a flagship institution. These histories have been well documented elsewhere for well over a century in hundreds of academic and literary writings and studies. The intergenerational impact of the failures of the American Indian educational structure also has been documented. American Indian education continues to be in crisis and perhaps always will be until American Indian people have the necessary resources and take the full responsibility for educating their own. The concerns, problems, and successes in the education of modern American Indian people have not often been treated or discussed through the tool of narrative or storytelling. Based on the characters and stories I have created revolving around a fictional Michigan Indian tribe, the Lake Matchimanitou Band of Ottawa Indians, the book will use narrative—the storytelling approach pioneered by Derrick Bell, Richard Delgado, Patricia Williams, and others in the Critical Race Theory movement13—to explore educational issues faced by American Indians in grade schools, colleges, and professional schools. My work will also parallel the work of scholars who have also used narratives and stories about minority peoples in the education context.14 This book explores a host of the modern educational issues facing American Indian people, people who have faced an unusual amount of oppressive federal and state educational policies intending to assimilate Indian people and destroy their cultures and languages. Indian culture and traditions have survived to a considerable extent, but the non-Indian

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educators and policymakers continue to treat Indian culture, traditions, and people as objects.

American Indian Law and Policy American Indian law and policy has gone through numerous contradictory changes throughout American history. The federal government first went through a stage of “measured separatism,” where American officials negotiated treaties with Indian tribes, creating Indian reservation lands, dealing with tribes as foreign nations, and staying out of internal reservation policy and governance.15 Many of these early treaties were treaties of military alliance where the United States sought to secure tribal allegiance to the U.S., the rights of passage through Indian lands during and after the Revolutionary War, and continuing friendly trade relationships. In the decades after the Revolution, American Indian policy turned increasingly to Indian removal westward, first beyond the Appalachian mountain range and then later west of the Mississippi River. These treaties, mostly negotiated in the 1830s through the 1850s, resulted from some military conflict in the southeast as American armies marched against Indian tribes with significant military capacities.16 As the United States expanded west, the next generation of American treaty negotiators sought larger and larger land concessions from Indian tribes. At first, these treaties created larger Indian reservations, but the United States forced additional land concessions either through treaty or agreement with Indian tribes or through unilateral Acts of Congress. In 1871, Congress ended the official federal practice of negotiating treaties, preferring instead to deal with Indian tribes through simple agreements implemented through Congressional legislation and federal regulations.17 Over time, American territories began to engulf Indian reservations west of the Mississippi. In the latter half of the 19th century and early half of the 20th century, the United States moved toward a policy of assimilation, a tool used to acquire even more Indian land. A key portion of the federal assimilation policy was the “allotment” of tribal lands, whereby federal agents divided communally owned Indian reservations into “allotments,” private property parcels assigned to individual Indian families that would, after a “trust” period, become taxable under state laws. The federal government sold excess lands, called “surplus” lands, to non-Indians. After the loss of these surplus lands and the loss of Indian allotments to state tax foreclosures and other forms of legal and illegal dispossession, more than two-thirds of all Indian lands were lost.18 Very little of these lands, percentage-wise, has been recovered. In 1934, Congress reversed this course and ended many

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official assimilation programs, including allotment, although the federal bureaucracy continued many of these programs in practice through the 1970s.19 Congress adopted strong law and policy favoring tribal governance and tribal economic development in the Indian Reorganization Act.20 In the Johnson-O’Malley Acts of 1934 and 1936, Congress changed the landscape of Indian education policies and law.21 Official United States policy toward Indian tribes now favors tribal selfdetermination and self-governance. In the 1970s, Congress embarked on a legislative scheme proposed by President Nixon in 1970 that included the Indian Self-Determination and Educational Assistance Act in 1975, the Indian Child Welfare Act of 1978, and numerous other statutes designed to benefit Indian people and bolster tribal governments.22

American Indian People and Education The twists and turns of American Indian law and policy affected the education of American Indian people in significant ways. Much of the assimilation period focused on the notion that the United States was charged with “civilizing” American Indian people. As a result, American policymakers granted broad license to missionaries and boarding schools to “kill the Indian to save the man.” American Indian languages, stories, and lifestyles faded under the onslaught of the missionaries and boarding schools. The federal education policies affecting American Indian people undermined Indian cultures in a fundamental manner that military conquest, fraudulent land transactions, and poverty could not.23 Modern American Indian education involves a much different context, but with many of the same results as the era where assimilation ruled the day. Modern Indian education policy’s stated purpose is to do a better job educating Indian students, allowing Indian people and Indian tribes more access and participation in the process. But the success simply is not happening, with the barriers to a successful Indian education policy remaining ever elusive and dispositive. American Indian Storytelling Central to American Indian law and culture was storytelling. Since many North American Indian cultures were based on oral communication, the language contained everything that Indian people needed to learn in order to survive and thrive. Behavioral and social norms were coded within the stories told in the language, often tied to landmarks in the Indian communities’ traditional territories.24 Even in the modern era, when most American Indian people have not learned their own language, storytelling

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is central to tribal customs and traditions. The past few decades—due in no small part to the increasing numbers of Indians graduating with higher education degrees—have seen a strong move toward recovering and restoring tribal languages, stories, and lifestyles.25

Critical Race Theory Narratives and Counternarratives Critical Race Theory (CRT) serves as counterpoint to the dominant legal culture’s staid view of minority groups—a voice from the bottom. One method used by Critical Race Theory scholars is narrative, where stories of experience are used to generate nuanced argument. When employed by CRT scholars as a response to prevailing understandings about the experiences of minority people, this narrative often is referred to as counternarrative. American Indian Law is ripe for counternarratives. Unlike civil rights litigation regarding criminal procedure, election rights, employment discrimination, and other claims where CRT scholars focus and have been successful in some regards in telling their stories, courts continue to decide Indian law cases with reference to stereotypes and false or misleading histories. One classic Indian law case, Tee-Hit-Ton Indians v. United States,26 decided only one term after Brown v. Board of Education,27 relied upon what “[e]very American schoolboy knows,” rather than the facts.28 Even now, Supreme Court cases appear to be decided in accordance with the visceral reaction of the Justices, rather than law or policy.29 The counternarratives of American Indian people often are missing from these analyses.30 The Fictional Lake Matchimanitou Band of Ottawa Indians The Lake Matchimanitou Band of Ottawa Indians is a fictional tribe, but the tribe itself and the people that constitute the Lake Matchimanitou Indian community are loosely based on my own community—the Grand Traverse Band of Ottawa and Chippewa Indians. We refer to the Band as GTB, just as we refer to neighboring communities like the Little Traverse Bay Bands of Odawa Indians as LTBB or the Little River Band of Ottawa Indians as LRB. As such, I will often refer to the fictional Lake Matchimanitou Band as LMB. The Lake Matchimanitou Band is located within the fictional Lake Matchimanitou County, located in the State of Michigan. This county will stand in for the home of the Grand Traverse Band, which is located in Leelanau County, Michigan. Peshawbestown, the seat of the Grand Traverse Band’s government and the site of the last remnants of the Band’s treaty lands, is represented in this book by a town called “Eagletown.”

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Peshawbestown, named after a gentleman named Ben Peshaba, was once known as Eagletown.31 The long, narrow, crooked lake traversing much of the real Leelanau County—Lake Leelanau—is represented here as “Lake Matchimanitou.”32 The state highway bisecting Leelanau County is renamed “Lake Matchimanitou Road.” The closest village to Peshawbestown, Sutton’s Bay, is represented as “Madison Bay,” named after a fictional prominent family that features in many of the narratives contained within these pages. I introduced many of the lead characters in these stories in my long narratives, “Stick Houses in Peshawbestown,” originally published in the Cardozo Public Law, Policy, and Ethics Journal; “The Legal Fiction of the Lake Matchimanitou Indian School,” published in the American University Journal of Gender, Social Policy & the Law; and “The Legal Fiction of Gridiron Cowboys and Indians,” published in the UCLA School of Law’s Indigenous Peoples’ Journal of Law, Culture & Resistance. These characters have also played roles in narratives included in my paper, “Sawnawgezewog: ‘The Indian Problem’ and the Lost Art of Survival,” published in the American Indian Law Review. Some of these characters are based loosely on family members and others who have played important roles in my own life and education, especially my grandmother Laura Pokagon Stevens Mamagona (a member of the Pokagon Band of Potawatomi Indians), my mother June Mamagona Fletcher (a GTB member), my father Richard Fletcher, my brother Zeke Fletcher (a GTB member), and my partner and colleague Wenona Singel (an LTBB member). Like any Indian person who has completed one or more degrees in higher education, I could not conceive of doing anything without the support and love of these people, as well as a much broader network of extended family and friends who have been a constant source of encouragement and inspiration. The fictional Lake Matchimanitou Ottawa Indian community is nestled in a region of the northern lower peninsula of Michigan that attracts millions of tourists each summer, referred to by many of the locals as “summer people” or “fudgies.” The region centers around Traverse City (a real city), located at the base of the Bay. The Lake Matchimanitou community is located on a peninsula between the Bay and the Lake, or the Big Lake. The vast majority of the local, year-round population in the region is non-Indian, with relatively few persons of color. A substantial percentage of the people in the region are very wealthy, but very few, if any, Indians could be considered rich. Indian children from the Lake Matchimanitou community usually attend the schools in the Lake Matchimanitou school district, although a few students living closer to the northern tip of the peninsula attend school in the Colonial Point school district. The narratives of this book

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will focus on the students who attend Lake Matchimanitou schools, whose school sports name and mascot are known as the “Warriors.” The “Warriors” in question are based on American Indian stereotypes. It is uncertain whether the origins of the name and mascot are based on the fact of the presence of American Indian people in the peninsula or the region, given that, until the 1980s, the non-Indian people in the area had been successful in forgetting about or ignoring the Indians. Like the other lower peninsula Ottawa and Potawatomi bands in Michigan, the Lake Matchimanitou Band of Ottawa Indians had been administratively terminated by the federal government. “Administrative termination” meant that the Secretary of Interior had intentionally misinterpreted an 1855 treaty provision to mean that the Michigan Ottawa tribes had agreed to disband, or abandon, their tribal status as a consequence of the treaty. Of course, this interpretation was utterly untrue, but the federal government refused to recognize these tribes for over a hundred years, mostly as a means of reducing federal budgetary burdens.33

Outline of the Book The book features eight chapters, including seven narratives and a sort of interlude, each focusing on a particular American Indian character who is a member of the Lake Matchimanitou Band. With the exception of the interlude (Chapter 4), each chapter includes at its heart the transcript of a legal or quasi-legal proceeding involving the disposition of a legal dispute arising out of the educational environment. The first narrative (Chapter 1) begins with the story of the Lake Matchimanitou peewee football team, composed entirely of American Indian players. In this narrative, they win every game they play against the local community teams that are all better funded, better coached, and consist of non-Indian players. This narrative also introduces Parker Roberts as a community activist seeking to change the name, logo, and mascot of the local public high school—for example, the Warriors or the Indians. Colleges, universities, and grade schools continue to face these issues, but few scholars investigate the educational and social consequences of the political struggles that ensue. Parker must appear before the Lake Matchimanitou school board to argue the case in favor of retiring the Warrior name, logo, and mascot. The second narrative (Chapter 2) takes place a few years later when Parker is hired as a history teacher at the school after completing her college degree. She would teach history like the curriculum says, but interject things she knows from her own studies and family histories about the local American–Indian relations into her teaching. She proposes to amend

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the school’s history curriculum and must convince the Lake Matchimanitou school board to accede to her ideas. The third narrative (Chapter 3) focuses on Ben Wilson and Anthony “Beercan” Mark, who are American Indian high school students wrongfully accused of starting a fight with a non-Indian student. Ben Wilson is threatened with expulsion from the school and must appear before the Lake Matchimanitou school board to defend himself. The third interlude introduces Niko Roberts, Parker’s son, as a high school student who is a friend to Ben and Anthony. The next chapter (Chapter 4) is an interlude focusing on Niko Roberts and the social, political, and familial motivations for attaining an education as an American Indian. The narrative does not involve a legal dispute involving education but instead provides important context for the learning environment which Indian university students must learn to navigate. The interlude involves flashbacks to Niko’s childhood while telling the broader story of Niko’s struggles to complete a university degree. The fourth narrative (Chapter 5) focuses on the conflict between Niko and his cousin, Gil Ogema. Gil has been asked to join a secret society on the campus of the University known as “The Terrible Tribe.” Gil has been “tapped” to join the secret society because he is a standout college football player. The underlying problem for Gil and Niko is that The Terrible Tribe is a mockery of American Indian cultures. While Gil accepts the invitation to join, Niko petitions the University to stop supporting the society. The fifth narrative (Chapter 6) is the story capturing the emerging problem of Indian identity and academia. Here, Niko is a college student who becomes aware of a writer, Vann Logan, who is an academic fraud in that he writes scholarship and fiction from the perspective of Indian people when he is not Indian in any meaningful way. Logan is contrasted with two characters, Niko’s English literature professor, who is white but writes compelling scholarship critiquing Logan for his deception, and Niko’s grandfather, Toledo Marks, who is a full-blood Indian who lives far from his family as a means of escaping his Indian identity. In the sixth narrative (Chapter 7), Niko Roberts is a lawyer hired by his tribe to represent the interests of his grandfather, Toledo Marks, who has returned to the Lake Matchimanitou community as one of the last of the traditional pipe carriers. After a presentation of the pipe in a public school classroom, opponents of the tribe sue Toledo and the Lake Matchimanitou school district for violations of the First Amendment. The seventh and final narrative (Chapter 8) is the epic story of the Lake Matchimanitou Indian School founded by the Lake Matchimanitou Band as a private school that admits only American Indians and Indigenous peoples from around the world. The narrative is an allegory for the

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“discovery” and “conquest” of American Indian people, told by the rise and fall and rise again of the Indian school over three decades. The Indian school is a resounding success in its early years, but the narrative turns tragic as the Indian students in the Indian school are slowly and insidiously replaced by non-Indian students. Eventually, Indians begin to return to the school, forcing a major United States Supreme Court case over whether Indian preference in education is constitutional.

CHAPTER

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Commodifying Indian Students and Sport Mascots The Lake Matchimanitou Warriors Parker saw the black van drive by on Lake Matchimanitou Road while she ate lunch with her mother, Emma. The blazing markings on the side of the van said, “Scalp the Cowboys! Go Warriors!”1 Parker recognized the van as belonging to Dave and Sandi Thompson. She had seen it parked outside of the high school during school board meetings at Lake Matchimanitou High many times. Parker attended school board meetings on a regular basis to contest many of the decisions made by Dave Thompson, Robin Jeffries, and Jefferson Madison, the long-standing members of the school board. Her voice, as a member of the Lake Matchimanitou Band of Ottawa Indians, was in the minority more often than not and she tended to resent people like the Thompson family. “Go Warriors,” she muttered under her breath, tossing down a used fork onto the table. “What a load of crap.” Parker Roberts was in her early twenties and taking classes at the Michigan State University extension at Northwestern Michigan College. She had long, straight black hair that she wore in a long braid down the center of her back. She had intense dark eyes, what her grandmother called a moon face, and ran four miles every other day. She considered herself an activist, but she was frustrated by the difficulties in getting her ideas heard by the town’s great white fathers. The large majority of the population of the village of Lake Matchimanitou was non-Indian. That made it very easy for the village council, the school board, and all the other governmental or legal entities to ignore Ottawas like Parker. Emma and Parker ate lunch together every chance they could get. 11

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During the summer and fall, they would meet at Kejara’s Bridge, the only restaurant in Matchimanitou County that served a tasty breakfast and lunch menu that involved no deep-frying. In fact, much of the food served at the restaurant was grown using organic methods in a garden on the side of the building. The founders of Kejara’s were sisters just older than Parker who graduated, like Parker, from Lake Matchimanitou High. And the Lake Matchimanitou Band had just purchased the restaurant from the sisters. A two-lane highway snaked through the village, which rested on the lake narrows, and linked the ten miles of road between Madison Bay and Collier. From the four tables on the patio in the front of the restaurant, one could see the traffic go by. In the summer time, when the tourists from downstate flocked to the area to visit the sand dunes and vineyards, to sample the carnival atmosphere of the cherry festival, and to get away from their busy Detroit, Chicago, and Grand Rapids lives, the traffic was constant and brutal. But after the tourist season melted away with the last of the summer after Labor Day, the traffic was all local and relaxed. The small village of Lake Matchimanitou didn’t have much more than a gas station, a bar, a small grocery, and a few antique shops in addition to Kejara’s. Emma was reading an old copy of The Sun from the collection of magazines that patrons of Kejara’s Bridge would share with the restaurant. She didn’t look up from the article, but said, “Parker, what’s the trouble, dear?” She knew her daughter would complain every now and again about the name, logo, and mascot of the high school’s sports teams. She knew her daughter would get around to doing something about it one of these days. It was late summer and the school year had begun. There were school board meetings to attend. Emma Roberts was the Vice-Chair of the Lake Matchimanitou Band tribal council. She had been a council member since 1983, the year the federal government extended federal recognition to the Band for the first time since treaty times. The Band’s electorate sent her back to the council every four years for reasons she didn’t really understand. Emma had been instrumental in petitioning and lobbying and cajoling federal officials and Congressmen to recognize the Band’s government, working for a decade behind the scenes, sometimes alone. She wasn’t a firebrand leader or great public speaker at the council meetings; she didn’t believe herself to be wellsuited to the task of wading through the legalese and technical writing of the business of the council every week; she didn’t consider herself too wise or stoic, especially in comparison to her own mother, Louise; and the Roberts family wasn’t very numerous, not a helpful demographic attribute when it came to tribal elections—but they kept sending her back to the council every four years. Parker and Emma could have been sisters, people often said. Emma had


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the same long, straight hair and moon face. And they said Emma looked like her own mother, Louise. “What a load of crap,” Niko said without looking up, copycatting his mother while working on his coloring book. He was coloring a cat purple and wasn’t staying in the lines. Emma and Parker looked up at each other. “See how you are,” Emma said. “If that boy comes over to my house with a potty mouth, I’ll wash your mouth out with soap.” The women laughed. Since Parker set her class schedule for the afternoon, Emma watched Niko in the afternoons during the summers. Being Vice-Chair for LMB wasn’t all that lucrative. She received a monthly stipend that covered her property taxes for her house on the reservation, but not much else. Parker could have lived with her mother, but she was an independent type and opted for renting a small house in Sutton’s Bay. Parker’s husband, Strickland, had been called to active duty in Afghanistan. Other than the occasional vague email from Strick mentioning the bad food and crabby co-workers, they were out of contact. “Your cousin Frank is coaching the peewee football or whatever it is,” Emma said. “I think it’s good for him to be doing something. He loved to play so much.” “Oh, the Bears?” Parker asked. “That’s great. I know how awful it was for him when they told him he couldn’t play anymore after he hurt his knee.” No one expected the Matchimanitou Bears to compete in the Matchimanitou County 78’er Football League. They never did. Maybe they’d win a couple games a year but they never qualified for the playoffs, where the top four teams advanced, in the ten years the eight-team league had existed. Maybe it was because the team consisted of Indians—citizens of the Lake Matchimanitou Band of Ottawa Indians. It was well documented that few of the LMB members had any money. The Band contributed a few hundred bucks a year to the team, but the tribe had no money to pay for new helmets and shoulder pads, or uniforms. In fact, only a handful of the Matchimanitou Bears had anything that resembled uniforms. The helmets and equipment, much of it 1970s vintage, had been handed down from generation to generation of Matchimanitou teams. When the team hit the field—many of them wearing their grandfathers’ old sweatshirts over their cracked shoulder pads—they all looked like they played for separate teams. Because few of the Bears’ parents could afford to take time from work to coach the team, the Bears didn’t know who would show up at games and practices to run them through their

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drills or to call their plays. Every game played by the Bears was an away game; they had no field to call their own. In contrast, the other teams of the Matchimanitou County league had new uniforms every couple of years, stark and blazing reds and blues and violets, matched by clever decals on their state-of-the-art helmets. The parents that organized these players into football teams lived on Lake Matchimanitou, the forty-mile-long body of water that dominated the county, and on the Great Lake that bordered the western edge of the county. Property values on both lakefronts were extravagant and it was not unheard of for a summer cottage to sell for seven figures. Each team was organized through a parents’ booster group, funded through private donations, and coached by a former high school or college football standout. Few of the residents of the area knew that Matchimanitou County exactly matched the borders of the reservation created by the Treaty of Lake Matchimanitou, signed in 1855 by the Lake Matchimanitou Band ogemuk (tribal leaders, or headmen) and the Michigan Indian agent. Shortly after the ogemuk signed the treaty, non-Indian speculators rushed in to stake out the best lands on the lakeshore, believing that the treaty signing meant that the land in Matchimanitou County was open for public sale. By the time the Matchimanitou Band relocated from their homelands a few hundred miles away in southwestern lower Michigan, all the best land in their reservation had been taken by non-Indians. For the next 150 years, LMB members lived in the stony, sandy, and almost worthless land between the Great Lake and Lake Matchimanitou, away from the lakefront homes and off the main roads, virtually forgotten by the nonIndians living in the Band’s own reservation. By the time of the Indian New Deal in 1934,2 even the Band’s trustee—the federal government—had forgotten them. Their lawyers named that pitiful state of existence “administrative termination.” In 1983, the federal government re-affirmed its recognition of the Lake Matchimanitou Band and began to fund some of the tribe’s government programs.3 However, the influx of government funds was never enough and most of the Band’s members remained in poverty. Gaming was not an option for the Band, with the membership voting it down year after year. But something was better than nothing. In 1990, LMB families got together and petitioned the Matchimanitou County 78’er League for a football franchise to call their own. Parker’s cousin, Frank, a Lake Matchimanitou High honors student, had been the back-up quarterback with the varsity team until he had been injured in a pick-up game in the spring. He’d never play competitive football again, the doctors said. So in the fall he directed his attention to


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the twelve- and thirteen-year-olds in the dirty gray pajamas. Frank had been obsessed with football since he was five and, as a former high school quarterback, knew enough about offensive and defensive schemes to put amateur coaches, such as those he’d be opposing in the 78’er league, to shame. In his time, he had played two seasons at quarterback and safety for the Bears team; his teams won a total of five games in two years but were still considered to be the best Bears teams ever fielded. In the three weeks of practice before the season started in September, he realized his three best players were the girls on the team. In a decision that surprised even himself, he informed the team that the three young women would start at quarterback and both running back positions on offense and would be his three linebackers on defense. At the pre-season league meeting in August, Frank attended on behalf of the Bears. The league drew up a schedule and went over rules changes. Several of the other representatives knew Frank from his days as back-up quarterback of the varsity and some even remembered him from the 78’er games years earlier. The Bears played the Wayland Razorbacks in their first game. Wayland was located at the southern tip of Lake Matchimanitou, and the Razorbacks were the defending league champions. The book on them was that all their best players had moved on to high school, so they would be weaker that year. The Bears’ quarterback, Leelu Smallings, scored on the Bears first play from scrimmage. On the Razorbacks’ first play, the Bears’ middle linebacker, Tina Wilson, knocked the quarterback on his duff before he could hand the ball off to his halfback. On second down, Leelu stripped the ball from the halfback, Tina recovered the fumble, and Reggie Manitou, the Bears’ undersized nose tackle, picked it up and rumbled in for the score. During the course of the game, the third Indian girl, Mary LaPorte, scored three times on fullback dives. The Bears won 56–0, by far their biggest win in the fifteen years they’d played in the league. By the end of September, the Bears were 5–0 and had given up only one touchdown, winning each game by an average of forty points. It was clear from even the casual observer that the Bears team was the class of the league and would win the championship going away. The number of Bears’ supporters after the first big win had steadily increased to the point that, in the fifth game, the number of Indians in the bleachers outnumbered the non-Indians by a ratio of two to one. However, the fifth game featured, for the first time, the use of plastic tomahawks by the supporters of the Bears’ opponents, the Cleland Braves. The Braves’ supporters also played the Florida State University Indian-themed fight song on big boomboxes behind the stands. One younger supporter brought a large poster with a drawing of stylized Indians, rich with stereotypical headdresses and war

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paint, slaying a bear. During the game, Braves’ supporters loudly generated stereotypical Indian war cries and chants. Frank’s team played through it and won anyway. Parker and Emma were present at the game and promised to complain at the league’s monthly meeting, scheduled for the next Wednesday. The day before the meeting, the league president, Jefferson Madison, a retired lawyer, left a message with Kathy Paul. Kathy, a LMB council member, was away on official business and did not receive the message in time for the Wednesday meeting. She had been the representative for the Bears’ 78’er team when her son played a few years earlier, but was no longer involved in the program. Because the Bears had never given official notice that they had replaced Kathy as team representative, Jefferson called her with the official notification that the Lake Matchimanitou County 78’er League intended to suspend the Bears from post-season play due to several rules violations. Emma and Parker accompanied Frank to the Wednesday meeting. The meeting was held in the same room at the high school as the school board meetings. Parker knew it well, but many of the faces were different. There was a football coach with a stern and gruff face for every one of the other seven teams. There were interested parents of players from the other teams as well. Parker recognized some of these faces, too, including Dave and Sandi Thompson. Their boy played for the Wayland Razorbacks, a team the Bears had already beaten. There was a quiet murmur as the representatives from the Bears walked in. No one looked at them. “They’ve already made their decision,” Emma said, looking around, “whatever it is.” They took their seats as Jefferson Madison made his way to the front of the room. Madison took attendance, asking each of the representatives from each of the teams to identify themselves. Frank said, “Here,” for the Bears. He looked more nervous as each minute went on. Emma touched him on the shoulder in support. “We’ll do the talking,” she said. “Don’t worry. Parker and I were born complainers.” She smiled. Madison went down the list on his agenda. After the roll call, he discussed some old business involving the payment of referees and linesmen, plus an electricity bill for last year’s championship game played under the lights at Lake Matchimanitou High. No one said anything. There wasn’t any controversy over those issues. But no one looked over at the Bears’ representatives, either. They all knew why Parker and Emma were there. They should have had a look of dread on their faces, especially the representatives from the Braves, but Parker could have sworn they looked a bit smug. She had a sinking feeling in her stomach.


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Before the Lake Matchimanitou County 78’er Football League Jefferson Madison: Now that we’ve handled the old business, we have one item on the new business. Parker Roberts: We have an item we’d like added to the new business list, please. Jefferson Madison: I’m sorry, but didn’t you read the rules of the league. You must phone in any new business agenda items at least twenty-four hours before the next meeting. I’d be happy to talk to you after the meeting to have the item added to the next agenda. Parker Roberts: But that’s next month. And where are these rules? I need to read them. Jefferson Madison: Oh, may I ask who you are? Only official team representatives may add items to the agenda. And I only hand out the league rules to official representatives. Frank Roberts: I’m the team rep. I’ll add it after the meeting. Thanks. Jefferson Madison: You’re . . . [checking his papers] Kathy Paul? Frank Roberts: No. What do you mean, Kathy Paul? Emma Roberts: Kathy’s son is too old to play now, so she doesn’t serve as team rep. Frank is our team rep. He’s the coach. He’s very responsible. Jefferson Madison: No, I’m sorry. My information says that Kathy Paul is the official team representative. Unless we get official notice that she is no longer the team rep, then she’s the person I talk to. I won’t hear any more from you. Parker Roberts: Wait a minute, pal. Why did you wait until now to tell us that? I need to see those rules! Jefferson Madison: I did attempt to contact Kathy Paul by phone over the last two days, exactly as the rules prescribe. She did not return my calls. I’m sorry. We’ll have to continue down the agenda items. Oh, and by the way, just a friendly note, team reps must be at least eighteen years of age. I suspect young Master Roberts is not of age. He cannot be the team rep. Parker Roberts: I’m no lawyer, Mr. Madison, but you treated him as the team rep in the August meeting and said nothing. You allowed this league to treat him as the team rep for the whole season. It’s not fair that you’re deciding today that he can’t be the team rep. Jefferson Madison: Enough please. We need to move on to the next

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Parker Roberts: Jefferson Madison:


Emma Roberts: Jefferson Madison:

agenda item. One more word and I’ll consider you out of order. My God! What are you? A dictator? Out of order. Now, moving on to the next item— league rules violations and the playoff eligibility of the Matchimanitou Bears. What!?!? Again, Bears team, out of order! Now quiet! I will not hear any more from the Bears unless their official team rep makes a statement. And then only in turn! Now, I’ve prepared a list of league rules violations. . . . I know enough about parliamentary procedure and legalese. You mean “alleged rules violations.” That’s three times the Bears team is out of order. One more time and I’ll have to ask the Bears team to leave the room. You have had your chance to comply with the league’s procedures and you have repeatedly violated them. If there are no questions from any of the other team reps, I will read off the list of rules violations by the Bears team. [pause] Then I will begin. Count number one. Failure to provide linesmen for home games. The Bears have failed to provide two linesmen for each home game and one linesmen for each away game. Count number two. Failure to attend monthly meetings by an appropriate team representative. No appropriate representative for the Bears has appeared in approximately two seasons. Count number three. Failure to keep an updated contact information card with the league president. Count number four. Failure to provide Bears’ players with adequate safety equipment, including proper shoulder and knee pads. Count number five. Failure to dress Bears’ players in appropriate attire and numbers. And it goes on. I’m not going to read the whole list. It’s all there. Questions? [pause] I think it’s obvious what needs to be done here. The Bears team has been in violation of so many rules for so many years that we—the rest of the



Emma Roberts:

Jefferson Madison:

Parker Roberts:

Jefferson Madison: Parker Roberts:

Jefferson Madison:

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league—has given up trying to enforce these rules. I personally think that’s a serious mistake. The safety of the players and the integrity of the league is at stake. It is time to force the Bears team to comply with the basic rules that the rest of the league has followed. Before we act on these very serious and extensive rules violations, are there any comments? I have something to say. The chair does not recognize Ms. Roberts. She is not the proper team representative. Any questions from a duly appointed and recognized team rep? I think as a matter of fairness you should at least listen to what we have to say. Hiding behind your so-called rules is a miserable excuse. I shouldn’t have to remind you, Ms. Roberts, about the importance of rules. What are we teaching our children if we let people speak out of turn and otherwise flaunt the rules? I think what you’re teaching our children is that Indian people can always expect the so-called dominant culture to manipulate and exploit legal processes in order to oppress our people. Remember, in your dark pit of a heart, Mr. Madison, that you are doing this to children. They may only be poor Indian children, but they are still children. You’re working the system you set up in your advantage so that these Indian children—who have never had a winning season before—cannot finish the year as champions. That’s quite enough, Ms. Roberts, with your pathetic conspiracy theories. Are they really that pathetic, Mr. Madison? There’s no theory here, there’s just the truth. Everyone in this room knows what’s going on. But none of you have the guts to speak out against racism and abuse of power. And you’re not just teaching Indian families that they’re second-class citizens, you’re teaching your own children that they can use power and process and arbitrary rules to snatch victory from defeat. Enough! You keep our children out of this! They’ve done nothing wrong!

Madison passed out seven pieces of paper to each of the other team

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representatives, skipping Frank. He was not allowed to vote. The league then voted seven to nothing to bar the Bears from the playoffs. They could finish the season, but they could not be crowned champions. Frank, Parker, and Emma later received a copy of the list of charges against the Bears. The first violation seemed silly. Though Frank’s father voluntarily acted as a linesman marking the line of scrimmage at every game he could attend (three of the five so far), little did Frank know that the Bears were obligated under league rules to bring a linesman with them on the road. In the two games Frank’s father didn’t make it, someone from the stands had stood up and done the duty. The second violation seemed even ridiculous. By rule, an adult representative was required to attend each monthly meeting of the league. In the pre-season meeting, only Frank attended on behalf of the Bears. Unfortunately for the Bears, Frank was nine months shy of eighteen years and did not qualify as an adult. As a corollary, the Bears’ failure to update the name and contact information of their team representative violated the rules as well. Frank and the two council members reviewed the rest of the list to learn about a dozen more rules violations, ranging from uniform and equipment violations to the fact that the Bears had no home field. For probably the first time in competitive sports, several team representatives had complained that they had too many home games. No one had ever voiced these complaints to the Bears before, one parent from another team acknowledged in the parking lot. He explained that they had not done so because, in spite of the pathetic organization the Bears brought to the league, they had remained silent in order to give the team a chance. Several other team reps approached Frank after the meeting to apologize, saying that they didn’t want to do it but that they had no choice. Frank was overwhelmed. As a senior in high school, Frank couldn’t debate against a seasoned lawyer like Jefferson. He felt more helpless than he had in the hospital after his knee surgery. Emma learned that Jefferson had met with the rest of league separately for an hour before the scheduled time, counseling the other team representatives to remain silent when the Bears’ representatives become angry. The other team reps had done as their lawyer instructed: those feeling righteous staring back with stone faces at the three Indians; those feeling ambivalent looking away. The next day, Frank and Parker read the league rules for the first time. Frank had read the last forty pages of the league rulebook, the rules of the games, but not the first ten, thinking that, as merely a coach, he wouldn’t need to know those. They read that the Bears could appeal the vote by filing a petition with the league, but that if they lost their appeal, they would be suspended for this year’s playoffs and next year’s playoffs. Frank and Parker met with the Bears players’ parents on Thursday evening to ask


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what they wanted to do. Of course they wanted to appeal, but they were concerned about losing next year’s playoffs, too. At Emma’s request to the LMB Tribal Council, the tribe’s General Counsel Bryan Montana attended the parents meeting. He had read over the rules before the meeting and it was clear to him that the Bears had little maneuvering room. He offered to prepare an appeal to the league for the Bears, but said that an appeal to the same people who denied them in the first instance was probably futile. Some parents said they wanted to go to the courts and file a civil rights claim, but Bryan advised them that they had very little chance to win because the league was a local, private organization with no funding from state or federal government sources. Others argued that the only way the Band had ever gotten anything was through the federal courts. The meeting was heated, but the feeling in the room was gloomy. In the end, the parents voted to proceed with an appeal to the league and not file a federal suit. Bryan believed he could talk to Madison lawyer to lawyer about the equitable aspects of the Bears’ situation. Many of the parents knew many of the other parents well enough to appeal to them over the weekend at the games to change their vote. Bryan drafted a letter officially designating Parker as the team representative and then another letter for Parker’s signature asking for an emergency league meeting to discuss the Bears’ appeal. On Saturday, Frank’s listless and dejected team took the field against the Shelbyville Rockets, their field located the furthest from where the Bears’ players lived. Demoralized, a dozen of the players didn’t show up and, when Mary LaPorte banged up her knee on a quarterback sweep, they had to finish the first half with ten players. Rockets supporters brought out the anti-Indian chants and posters in force, taunting the Bears players the whole game. More than one poster appeared depicting a swarm of exploding rockets burning Indians riding on horseback and destroying Indian villages. A couple of teenagers dressed in team colors from collegiate and professional teams with Indian names and logos acted out a gruesome scene of slaughter, shades of Wounded Knee or Sand Creek, as a halftime show. More than one Rockets’ parent chided Frank for fielding three girls and, when Mary was injured, they changed their loud criticisms to moral objections to putting the girls in danger. Despite the raucous crowd, the Bears, led by a rested Mary LaPorte, scored two touchdowns in the last few minutes of the game to defeat the Rockets. On Wednesday, Bryan, Frank, Emma, Parker, and a dozen or so Bears’ family members met outside Jefferson’s law office where they would present their case. A few of the family members said they didn’t want to risk next year’s season. Mary, Leelu, and Tina would all return for a second

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season. With any luck, they’d be just as good or better. Also, they’d talked to the parents from the other teams and they could already tell that no one would budge from their earlier vote. Since Frank would graduate in the spring and planned to attend college, he wouldn’t coach the team the next year. Several parents agreed to learn the rules forward and backward and make sure next year’s team wouldn’t be suspended again. The team would petition the LMB Tribal Council to clear some land and try to make a football field out of it. After this discussion, Bryan and Frank agreed to drop the appeal and notified Jefferson. In the Bears’ last game the next weekend, Leelu and Tina scored two touchdowns each. Mary recovered a fumble and recorded four sacks. The Bears won 36–0. Two weeks later, in the league’s championship game, played at a local high school field located within sight of a sacred cluster of trees where the ogemuk had met before agreeing to sign the 1855 treaty, the Wayland Razorbacks defeated the Shelbyville Rockets 14–6 in a rainsoaked, penalty-filled, fumble-fest featuring no Indian players at the high school football field at Lake Matchimanitou High. Frank Roberts waited until after the championship game was over to visit his great-aunt Louise. She lived in an apartment on Adams Street in Madison Bay and was pushing eighty. Louise had been a nanny to Frank when he was growing up and he thought of her more as a grandmother than an aunt. He had visited her early that spring when he learned from his knee doctor that he didn’t have enough cartilage in his knee to ever play competitive contact sports again. Even as a child, Frank wouldn’t cry in front of anyone except his nana Louise. While the Matchimanitou Bears were having their best season on the field (and the worst off the field), the Lake Matchimanitou Warriors high school football team was having its best year since the 1950s. In general, most of the best players in the Lake Matchimanitou County 78’er league would move on to play for the Warriors, but few of the Indian children playing for the Bears had ever made the team. Frank Roberts had been perhaps the best player the Bears ever had and he made the high school team only as a back-up. While Parker had given most of her political attention that fall to the Bears, she didn’t forget about the Warriors. She saw first-hand the kind of idiocy that football fans could bring to a game involving a team of Indians, even a team of children like the Bears, especially since they had learned so well from watching the Florida State Seminoles,4 the Washington Redskins,5 and the North Dakota Fighting Sioux6 on television. The games that Parker attended cheering for the Bears had been polluted with the


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taunts from the other teams, cheers and jeers they had learned while watching their own home team—the Warriors. After the Bears’ last game, Parker attended the next Warriors’ game. If she couldn’t do anything to help the children of her community, she reasoned, it was time to take on the big game for her entire community. Like many Indian fans before her, as she sat down in the family section of the football stadium on a cold and windy Friday night, someone asked her what she was doing there. It was a kind-looking woman who probably had a grandchild on the football field playing for Lake Matchimanitou High. Parker thought she had seen the woman around town, probably many times, without them ever speaking. “Excuse me?” Parker said. The woman frowned. “What are you doing here?” She did not ask the question with any hostility. She was just curious. Parker had expected this. In fact, she had hoped for it. She wanted to experience it for herself. She steeled her nerves for the ensuing conversation. “I’m here to watch the game. That’s all.” The woman looked confused. “We just don’t see too many of you people around at the games. You know.” Parker did know, but she wanted to hear it out of this woman’s mouth. “Uh, I guess, I don’t understand.” The woman shook her head, giving up on Parker. “Suit yourself.” What was, for a brief period of time, an innocent inquiry, turned a little ugly with her impatient dismissal of Parker. Parker knew for years that these kinds of conversations happened to just about every Indian who attended Lake Matchimanitou High football and basketball games. The questions would start out as innocent, almost surprised to see an Indian. For example, “My goodness, what are you doing here?” The unstated assumption behind this question had everything to do with the spectacle on the field. A white female cheerleader wearing a faux pan-Indian costume much like the Chief Illiniwek costume worn at University of Illinois football and basketball games—only much more feminine and sexualized—would prance around the field leading cheers. Friends and family of the home team football players would carry and display homemade signs emblazoned with the high school’s name and logo, alongside phrases such as “Scalp ’em # 55” or “Massacre the Lions!” Many fans brought plastic tomahawks and even spears to wave around in order to inspire terror in the opposing team and supporters. The logo of the high school teams was a caricature of a caricature—a bastardized version of the Cleveland Indians’ logo that had been shown to be a spot-on, copycat image of racist blackface caricatures of African-Americans.7 One could say, and Parker intended to do so, that the Lake Matchimanitou

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High School’s sports logo had its roots and origins in America’s racist oppression of people of color. Parker left the game after the first quarter ended. She had seen enough and taken notes throughout. It was just a refresher course for what she already knew; what every Indian who attended Lake Matchimanitou High or grew up near Lake Matchimanitou knew. She took a last cursory look around at the few hundred local people in the stands. Not a single Indian student, fan, or community member in her view. There might be a small pocket of ‘Nishnaabes or an individual Indian in attendance, but she doubted it. It was an unspoken community rule that Indians would stay away from the non-Indians on football Fridays and basketball Saturdays. She saw white people from around town that she had known since she was a small child and adults her age with whom she had gone to public school for over a decade. She knew these people, their strengths and weaknesses. She knew that in their hearts they were kind and morally upright. And she knew her chances of convincing them to abandon their beloved racist and bigoted sports logos, mascot, and name were all but nil. Parker contacted the Lake Matchimanitou Band’s tribal council’s representative on the Lake Matchimanitou school board about adding an item on the agenda. As a courtesy and because a sizable proportion of the school district’s children were members of the Lake Matchimanitou Band, the school board allowed one of the tribal council members to sit on the school board as a non-voting member. The tribal council and the Indian community had fought for years to convince the board to grant a vote to the Indian representative, to no avail. Their response, based in a not so unreasonable interpretation of state law, was that any adult member of the Lake Matchimanitou Band who lived in the school district and was registered to vote could run for school board. And most years, at least one member did so, but in the long history of the school board elections, no Indian had ever come close to winning a seat. There was always talk of suing the school district for discrimination or election irregularities, but nothing much came of it.8 Everyone knew that when it came to it, the Indian school members would be voted down on controversial questions every time. The courtesy representative offered a little something to the community, but not much. Parker took advantage of one of the small perks of having a non-voting member on the school board—adding items to the agenda. The item to the agenda she added was captioned, “Retiring the ‘Warrior’ as Name, Logo, and Mascot.” Shirley Adams, the tribal council member who sat on the school board, shook her head when Parker told her. “This is going to be trouble. You know you’re going to have to deal with Jefferson Madison again.”


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Parker nodded and smiled. “I know.” “And Sandi Thompson.” Parker furrowed her brow. “Yes. I know that, too.” As the board meeting began to get organized, Parker began to set up the visual presentation she had prepared for projection on the wall behind the school board table. She had borrowed many of the images from other presentations and scholarship prepared by Kevin Gover, Melissa Tatum, and others, as well as materials she found online relating to the Lake Matchimanitou Warriors. Shirley had informed the school board chairman, Robin Jeffries that Parker’s presentation would take about twenty minutes. As the meeting began, Jefferson Madison objected to the inclusion of the high school’s name, logo, and mascot on the agenda, but no one on the board seconded his objection or moved to exclude the item from the New Business list. Parker looked around and saw the regular cast of characters, including Dave Thompson, a long-time member of the school board who was accompanied by his wife, Sandi. Sandi had been Parker’s Girl Scouts leader what seemed like a hundred years earlier. Parker was terrified of Sandi’s bright and chipper personality, one that could turn serious and stern if she was disappointed. Parker had often disappointed Sandi by speaking out in public on numerous topics—Indian gaming,9 Indian land claims, and the many school board-related disputes involving Indian families. Parker had come alone. She didn’t want anyone from the tribal community other than Shirley to be present. Parker expected retribution from the members of the school board. She wasn’t sure what the exact reaction would be, but she knew it would negative and hostile. She knew she could not win, but to not try was beyond her ken. As the school board meeting progressed toward her agenda item, she twiddled her thumbs and attempted to strategize a legitimate and compelling response to every objection to her proposal to retire the Warrior name, logo, and mascot. Eventually, the chairman called Parker’s name.

Before the Lake Matchimanitou Area Public School District Board Robin Jeffries: The next item on the agenda is from Shirley Adams. You’ve asked Parker Roberts to say a few words? Shirley Adams: Yes. Parker? Parker Roberts: Thank you. I’d like the school board to consider the following bits of evidence. Robin Jeffries: For the record, please, introduce yourself and your topic. Parker Roberts: Oh, sorry. My name is Parker Roberts. I’m a member

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Robin Jeffries:


Parker Roberts:


Robin Jeffries: Parker Roberts:


of the Lake Matchimanitou Band of Ottawa Indians, right here in the Lake Matchimanitou school district. I have a son named Niko who is in the third grade. I am here to ask the school board to reconsider the name, logo, and mascot of the Lake Matchimanitou sports teams. The Warriors. I don’t see the point, but we are bound, I suppose, by freedom of speech to hear you. At least for a few moments. Thank you, I guess. Well, I’d like to start first with a short history of the Lake Matchimanitou Band. I’m sorry. We don’t have time for this. I don’t see the point in rehashing ancient history. Everyone in this room knows the history of your community. Well, it’ll just take a minute. And, Mr. Madison, it is important and relevant to what I have to say. Okay. First, recall that this community of Indians is mostly Ottawa, part of the Three Fires Confederacy of Michigan—the Ottawa, the Potawatomi, and the Chippewa. We are typically classified as woodlands Indians. We hunted wild game in the woods. We fished on the lakes, rivers, and the Big Lake. We harvested maple sugar and some wild rice. We farmed the Three Sisters—squash, corn, and beans. What’s the point? Here’s the point. We didn’t do any of the things that the so-called “Warriors” do. We didn’t hunt buffalo or wear big headdresses. We didn’t ride horses. We didn’t fight over territory, unless pressed to the breaking point. In short, we were not plains Indians or from a horse culture or engage in warfare as a part of our culture. That’s my first point. You have fifteen minutes left. Okay. My next point is this. And I will cut right to the chase. Your name, logo, mascots, and the paraphernalia associated with the “Warriors” is a racist caricature of Indian people, including the people of this community. Wait a minute. You just said the “Warriors” were nothing like your people. Please let me have my say. You’ve interrupted me two, three times now. In our community, people


Jefferson Madison: Robin Jeffries: Parker Roberts:


Robin Jeffries: Parker Roberts:

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who have the floor may speak until they are done. It’s disrespectful to interrupt. Extremely disrespectful. I know that disrespect is part of your legal culture, Mr. Madison, but please leave me out of it. You came to us, asked us for our time, and then insult us. Is that respectful? Enough, Jeff. Thank you. One thing lawyers are really good at is taking people out of their comfort level. I’m already uncomfortable coming in here. And, yes, I am asking you to change your ways. That is always uncomfortable for everyone. It presumes that one party believes that the other party is doing something wrong. And another thing lawyers are good at is taking facts out of context and re-characterizing them in a negative light. Mr. Madison’s outburst highlights the reason I’m here. That reason is that this community is split in two by the “Warriors.” I attended last week’s football game. None of us ‘Nishanaabes10 attend, usually. Why is that? We account for a third of the school population and twenty percent of the local population. Maybe a couple of us, if any, attend the football and basketball games. Why should that be our fault? Exactly. Mr. Madison’s confusion is what I’m talking about. We have a socially segregated community for reasons that are not readily apparent to a coldblooded lawyer like Mr. Madison. That’s enough of that, Ms. Roberts. Jeff is a respected member of the community. I know and I apologize. What I’m trying to say is that there should be outrage in this room that more Indian people from this community do not participate in the local sporting events. We are one community. We should help and include each other in the community’s activities. The football and basketball teams are important parts of this community. Hundreds of people from this small town attend almost every game. Hundreds or thousands of people from other towns travel here to watch our respective teams play. Indian people are members of this community and should be made to feel welcome to watch these sporting events.

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Jefferson Madison:

Parker Roberts:


Jefferson Madison: Sandi Thompson: Robin Jeffries: Sandi Thompson:

There’s nothing whatsoever stopping Native Americans from attending the games. There’s no Jim Crow laws or anything else. It sounds to me like maybe Native Americans just don’t like football or basketball. I don’t see any of their kids on the teams. Maybe that’s why they don’t come to games. And that brings me to my next point. In spite of Mr. Madison’s strange reasoning, there are a bunch of extremely gifted Indian kids who play football and basketball. I know not many of you have been there, but the tribe’s gym is full of good basketball players. We host All-Indian tournaments a couple times a year and our kids do pretty well. And, as you well know, the 78’ers kicked some serious butt this year in football. They have a bunch of good players on their way up. I believe that if this community continues using the “Warriors” name, logo, and mascot, it will drive Indian kids away from trying out and playing football and basketball. And you know that these Indian kids could make a difference in the state tournament. Doubtful. Lake Matchimanitou High School teams are already good, but these teams are like pre-Jackie Robinson baseball—good, but not all the very best players are out there. That’s enough! I’m sick of this town being accused ad hominem of racism by this loudmouth. May I say something? Please. Parker, I’m really surprised at you. This isn’t how our community is and you know it. We don’t mean anything bad by calling our teams the “Warriors.” They’re called that because they’re strong and tough to defeat. We all know sports are like war. So many teams have names like Savages or Warriors or Bears. Animal names or strong, powerful names. That’s the whole point. I don’t think it’s fair to this community to undermine school spirit with your complaints, Parker. I’m disappointed. I wish we could get along and I think we would if you would let this go. There’s nothing wrong here. We obviously don’t mean to insult the Native Americans in this community. I


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don’t—no, I can’t—believe anyone thinks that here. This is a good, strong community of nice people who care about each other. We don’t have discrimination like in the Deep South. We never have. We treat everyone equally. It’s the law anyway. And the nickname “Warriors.” There’s nothing negative about that. If we borrow Native American imagery to celebrate our teams and our players, then we are honoring your community for your strength and vigilance. Native Americans must be tough to have survived colonialism. Why can’t we respect your community by celebrating your strength and power? Parker paused for just one moment before responding. She had been anticipating Sandi’s plea for peace in the community, a plea that presumed that everyone already got along. And that pause was just long enough for Sandi to have the last word. The people in the room began to applaud Sandi for her emotional appeal and Robin Jeffries allowed the applause to crescendo before she gaveled the audience to silence. By then, there was no more time for Parker to respond. The meeting was over. Parker was silenced. She had made her case, albeit truncated, and had been denied. The school board moved on without even asking Parker if she was through. Parker began to sort through her materials, slides, and photos she had brought to show the school board how the “Warriors” name, logo, and mascot were offensive. They would not allow her to show these materials and, frankly, she knew they would not be persuaded. But she knew there would be another time. This group of people and this organization was on notice that what they supported was wrong. She knew that Indian children would go to Lake Matchimanitou schools and see their culture and even their religions (for some of them) exploited for the amusement of the white community for years to come. But Parker planned to make them aware, over time, of the problems they caused. The non-Indian community members often had little awareness of how hard it was to grow up Indian in Lake Matchimanitou County in that environment.

CHAPTER

2

Burying Indian Histories in the Curriculum

The American History Teacher Niko Roberts had learned to read a little by the time he was five years old. Everywhere he went, he carried a book. His Gramma Emma, who took care of him every other day, had been reading to him since he was two weeks old. He had picked it up very quickly. He read all the time and had no problem asking questions for the words he didn’t understand. He read everything he could get his hands on and the questions would not cease. He often grated on his mother’s nerves. In his mother Parker’s mind, seven-year-old boys should not ask about tribal per capita payments,1 the children’s trust fund,2 the relationship between tobacco smoke, pregnant women, and birth defects, and a host of questions on religion, ethics, and molecular biology. “Who gets per cap money, mom?” “What’s a trust fund?” “Does not having hair when you’re born count as a birth defect?” “Does God live on a mountain with Hercules?” “Why is it bad when I take Twinkies out of the cupboard and put them in my pocket?” “What is gas made of?” Parker had just picked up Niko from kindergarten during her lunch and drove over to meet Gramma Emma at Eddie’s Diner in Madison Bay. Eddie’s was where all the Indians ate lunch during the week. Parker and Niko knew everyone in the restaurant—they had known most of them their whole lives. Gramma was already there, talking with the housing director, a woman she had gone to school with fifty years earlier in Colonial 31

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Point. The diner was one of those places where Indians weren’t allowed to eat as late as the early 1980s.3 When the federal government extended federal recognition to the Lake Matchimanitou Band in 1983, a little federal grant money started coming in.4 Most people stopped seeing the Ottawas as poor, uneducated, and dirty, and started viewing them as a government with rights and the need for revenue. Most people.5 Niko ran ahead of Parker to sit down at Gramma’s table while Parker hung back and talked with a girl she had gone to college with in Traverse, before finishing up with her degree that summer. She had just started teaching history and social studies at Lake Matchimanitou High. The server came over and talked to Gramma and Niko like they were old friends. Emma had just retired from the LMB Tribal Council and knew everyone in the whole county, it seemed. The server talked to Niko because the Roberts family went to eat at Eddie’s at least once a week. She smiled at him, listening to his questions as she wiped the table with a washrag before pouring water into glasses. Then, she handed out a couple of menus. “Make sure you give an adult menu to Niko,” Gramma said, always looking out for his interests. He’d eat the grilled cheese but he liked to read the menus at restaurants from top to bottom. Niko put down his book, picked up the menu, and began to sound out the words. Gramma looked at him fondly and smiled. She’d been teaching him to play word games and he was a fast learner—it was almost scary. Parker finally tore away from her old friend and sat down. She looked tired and beat, Gramma noticed. Parker worked a second job at Eagletown Market from 8 p.m. until closing and often worked more than sixty hours a week—and would until her job at the high school started later in the summer. Parker’s other job—working as a liaison between the Tribal Council and the community—had her running around talking with elders and staff at the Medicine Lodge, the Head Start teachers and parents at the Benodjehn Center, and eating lunch at the Strongheart Center (called the “Turtle” because of its shape) with tribal government staff. Niko examined the broadsheet laminated in plastic from the appetizers and entrée sections very seriously. He then scrutinized the breakfast section on the back like a serious newspaper reader or policy analyst. When the server returned with a pen and pad to take their order, he read his order off the menu, selecting a grilled cheese sandwich, French fries, and a pop. Later, he interrupted his family a couple of times to ask what was so English about the muffins and to ask how to say quesadilla. He had kept the menu to keep reading it. He read every line and when he reached the end of the menu he placed it down, intending to return to his other book, the one about Ben Gizzard, the crow, the upside-down mountain, and the Indian mystic.6 However, he noticed that there was a large amount of exciting,


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unread text on the front cover covering the founding of the village of Madison Bay, the story of the original owner of the diner, and the history of Lake Matchimanitou County. He began to sort through that text. It read: When in 1854, Leland Madison settled with his crew of woodsmen, he established a camp for supplying fuel to wood-burning steamboats. Other than the changes time visits on a community, little has changed in Madison Bay. Our village still exists to serve the boats and ships that dock in our “safe harbor.” Before the first road was cut through between Traverse City and Madison Bay in 1862, mail was delivered once in two weeks. Most travel was by boat, the settlers coming from the East on Lake Huron, and from the West across Lake Michigan. The wood-burning steamboats and the sailing vessels carried freight and cordwood. Steamboats carried wood for their own use, and tan bark to be used for leather tanning, and after the saw mills were built, they carried lumber. According to early record, “by 1880 the village had grown to be a lively place of about 250 inhabitants and contained four stores, three docks, two hotels, a brick schoolhouse, a saw-mill, printing office and a new Catholic Church.” Today, whether traveling by car, bus, bicycle, or on foot up M-22 to our village, you will suddenly find yourself not on a state highway, but on St. Joseph’s Avenue, our main street. We hope you will savor the transformation of “slowing down” just a bit. We invite you to stay awhile and let us continue doing what we have done since 1854—serving our visitors through our many fine services, restaurants, and shops. So, please, come and shop in our stores and stay for the day, a weekend, the summer—or the “rest of your life!”7 Niko stopped reading long enough to eat his grilled cheese sandwich. He had encountered several words he did not know and worked through their meaning with context clues. The history of Madison Bay confused him a great deal. His Gramma had told him the Ottawas had been living on Lake Matchimanitou for a lot longer than the white people. Why weren’t they mentioned on the menu? Niko paused to eat his lunch, digging through his grilled cheese and French fries, both soaking with ketchup the way he liked them. He listened to his family drone on about boring adult things. He heard Gramma say something about the reservation, about a woman she knew that claimed to be from the reservation but really wasn’t. She was an attorney trying to get a job with the Band but she didn’t really know anything about the area. She didn’t know any of the people because she didn’t grow up there. Niko heard a lot of stories like that from his mom and Gramma. He knew they gossiped a lot.

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The boy knew about the reservation. He’d seen the reservation on television a few times.8 It was very flat and dry—usually in the desert, but sometimes in the grassy lands where the buffalo lived. And real Indians lived there, the ones that rode on horses and carried shotguns and wore war paint. Sometimes, he worried that he’d have to go to war like his dad in Iraq and shoot the Seventh Cavalry. He didn’t really like horses. They smelled bad and had big teeth. Plus, his uncle once told a story about a girl cousin that got kicked in the head by a horse. He said, “She was never quite right after that horse kicked her in the head.” The boy didn’t know what “never quite right” meant, but he sure didn’t want a horse to kick him in the head. Still, even with all that, he knew he was Indian and he wanted to see the reservation some day. Maybe they could go there on vacation. “Gramma,” Niko said, interrupting a series of complaints from his mother about the supervisor at Eagletown, the woman with really bad gas. The boy thought it was funny when Parker talked about Gassy Melinda, but he had heard all those jokes before. “Yes, boy?” Gramma said. Everyone always called him boy. He liked it. It was his nickname and his alone. “Where’s the reservation?” Gramma smiled. “Yer sittin’ on it, boy.” That really confused Niko. “I thought the reservation was out west. Canifornia. Or Air-zona.” Gramma laughed. Niko was her first grandchild, but she had been answering questions from children her whole life. When she was young, her father had moved away and her mother moved the family back to Eagletown. Since her mother Louise worked at night, she had her days open to take care of kids. She was so good at it that aunts and uncles and cousins starting dropping off their kids at their house. Emma helped teach several Indian kids to read over the course of time. Probably a dozen still called her mom “Nana” years after they had grown up. “It’s complicated. There are many different reservations. The Apaches and the O’odhams have reservations in Arizona. The Navajos, too. And the Hupas have a reservation in California. There are over a hundred Tribes in California.” Niko was impressed with the Gramma’s knowledge. “The Ottawas have reservations in Michigan, Oklahoma, I think Kansas, and in Ontario, Canada. Except in Canada reservations are called reserves.” Niko chipped in. “Like jam!” It was about time for Parker to leave for the high school so she finished the last bite of her lunch. Gramma said, “Well, no. Reserves, not preserves.” “Oh.”


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“And us Lake Matchimanitou Ottawas? Well, this whole place is our reservation. It’s called the Lake Matchimanitou Reservation. You know the lake, Lake Matchimanitou? Well, there’s reservation land on both sides of it. The Little Traverse Ottawas have a reservation over by Petoskey and Harbor Springs and the Little River Ottawas have a reservation over by Manistee.” Niko was still confused and a little dubious. It wouldn’t be the first time that Gramma had pulled his leg. There were no Indians riding around on horseback in Madison Bay or Lake Matchimanitou where Parker worked. “Are you sure? This doesn’t look like the reservation.” “It’s very complicated. I’ll explain after your mom leaves for work.” Parker gathered her things and announced that she was about to be late. She kissed her boy and her mom and left. Niko watched Parker go and then asked, “Gramma, does Parker know we’re on the reservation?” “Of course she does, boy. The reservation, as I understand it, starts right around Colonial Point on the tip of the peninsula and includes Lake Matchimanitou, Omena, Madison Bay, Collier, Aghosatown. . . .” “Lake Matchimanitou? The whole thing?” Niko was getting excited. Parker drove him all around the lake one day just to show him how big it was. “Almost all of it. The reservation goes down a few miles past that gas station south of here on the way to Traverse City, the one that Parker always goes to when she’s running out of gas.” The grandson and grandmother laughed about that reference. Parker was always running on E and frantic about it. They settled down and the server came to retrieve the remains of their lunches. Niko noticed that none of the workers in the restaurant were Indians. It generated another question in Niko’s mind, especially since it appeared that there were more non-Indians than Indians living in Madison Bay. “Did Indians discover Lake Matchimanitou and Madison Bay?” Niko asked. Gramma laughed. “Like Columbus?” Niko knew about Columbus and nodded with sage importance, glad to have made a logical, parallel conclusion. Gramma continued. “Well, yes and no. The old Indians don’t say ‘discovered.’ The Anishinaabek have been around here for a very, very long time. Lots and lots longer than the white men.”9 “We’re ‘Nishanabes’, right? When did the white men get here?” Gramma answered with a question of her own. “Well, when was Madison Bay founded?” Niko shrugged. He didn’t know the answer to that question.

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“Boy, you read it out loud every time we drive in from Traverse!” Niko thought about it for a second and then realized—the sign at the edge of town, across from the deli and the post office. “1854!” “Exactly!” Gramma said and patted Niko on the hand, making him feel like the brightest kid on the reservation. Niko thought about it a little more and made the connection to the front of the menu. “Just like the menu, right Gramma?” he said, pointing it out to Gramma. Gramma read the cover and her face took on a sour look. She shook her head and Niko could see she was disappointed. The boy worried he had done or said something wrong. She gathered her things. “Let’s go outside and I’ll tell you the story about how we Ottawas lost the land.” She paid for lunch and they left the diner. It was bright and sunny and there were many tourists strolling around Madison Bay. “My grandfather told me about all of it when I was a little girl, not much older than you. And I told Parker about it, too. In 1836, when the tribe signed the big treaty,10 there weren’t many white people around Lake Matchimanitou.11 There were some—not very many—but we knew there would be a lot more coming and soon. You see, what the old, old Indians did in the winter was live mostly on the other side of Grand Traverse Bay. You know, by Kewadin where we go to church sometimes. Elk Rapids. Acme Township where the Grand Traverse Resort is.12 That’s where the old, old reservation was.13 In the summer, we’d live all over the place. We’d walk to Detroit or Chicago or take canoes over to the Upper Peninsula and Manitoulin Island. We would take canoes all the time—across the Bay, out to the Fox Islands, the Manitou Islands, Beaver Island, Garden and High Islands, Hog Island—all those islands out there in Lake Michigan. Now you can’t even go out to the cemetery on South Fox Island because some developer owns all the land out there.”14 That seemed like a large distance to Niko, who often had to be reminded not to delve very far out when swimming at the little beaches in Madison Bay or Colonial Point. “And in the winter—every year, not just every few years—the lake would freeze over and my grandfather would walk over fifty, sixty miles across the ice to Beaver Island to visit his relatives.” Niko was awed. “Indians walked everywhere in those days. And anywhere you couldn’t walk, you could take a canoe. Your grandfather told me that one of his brothers, George Manitou, fell in love with a girl that lived in Aghosatown back when our family lived in Kewadin, over in Antrim County.15 Every day, he would work ten or twelve hours, walk six miles to the Bay, take a canoe all the way across the Bay—about fifteen miles—walk another ten miles to the girl’s house, visit with her, and then go back. He did this every


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night. But that was after the treaties established the reservation. They took the land from almost all of us eventually.” Gramma and Niko took a left and headed for the park with the little waterwheel where people were playing basketball and tennis. “Our relatives wanted to live on the east shore of the Bay. That’s where the maple trees were and the cattails and everything we needed to eat—things for medicine and clothes and houses. But eventually the Indian agents told us we had to live on the west shore. There were too many white settlers already on the eastern shore. We agreed to move but only if they gave us a place on Elk Lake to hunt and fish and gather the things we needed. They agreed because that area was swampy and white settlers couldn’t raise animals or farm on swamplands. It seemed like a good fit even though no one wanted to give up the rest of the land.”16 Gramma and Niko sat down on the grass at the park. Gramma hadn’t ever told the story about how the Indians lost the land to someone so young. She wasn’t sure if Niko would understand what she had to say or, if he did, if it would wound him too deeply. But she continued because being Indian is painful sometimes. “But the white settlers wouldn’t stay on the east shore. They wanted the whole bay for themselves. They moved up to Colonial Point and that’s the first part of the 1855 reservation we lost. Congress took it away without asking us. In the 1855 treaty, every Indian family could choose eighty acres of land anywhere they wanted on the reservation.17 The oldest boy would get forty more acres when he turned eighteen.18 But when our relatives selected the land and moved in, sometimes the Indian agent would forget to write it down. And after they forgot, they’d give the land to a white man who wasn’t even living here yet. And when the Indian agent forgot to write it down, they usually forgot on purpose.” “When the Indian agent did his job and wrote everything down correctly, the white men would do other things to steal the land. For example, every winter and spring we traveled to Elk Lake to hunt and make sugar and so on.19 The white men would come into our homes and tear everything down while we were gone. Then they’d tell the Indian agent or the court in Traverse City that we’d broken the treaty, abandoned the land, and moved away for good. And when that happened, the government wrote everything down. When the white men asked for help from the Indian agents, they never, ever forgot to write it down. And when our relatives would come back to their homes over here, the white men that moved in would make us leave.20 Sometimes the white men weren’t so sneaky. Sometimes they came with guns and just took the land from us. Eventually, we lost all the land but a few acres.”21

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Gramma paused for effect and looked at her grandchild. She remembered the time she told Parker this story the first time, when Parker was ten. The girl didn’t understand it then, but after she had some time to think about it, she began to figure it out. Niko didn’t understand much, but he wanted to hear all of it. He understood enough. Some people do not keep their promises. Gramma leaned back and started talking again. “And then there were the state property taxes.22 The land we received under the treaty was not supposed to be taxed, but it was anyway.23 Oh, and the white men would force the Indians to sell the land when they weren’t supposed to. And a lot of the Indians didn’t even know it had been taxed or sold until the state officials showed up to kick them off their own land or until the white men who bought it came to drive them away.”24 “What does ‘taxed’ mean, Gramma?” Gramma explained the state property tax system to her grandchild the best she could, but none of it made sense to him. She remembered the day her mom tried to explain property taxes to her. “I still don’t get it, Gramma,” Niko said. “Don’t worry about it, boy,” Gramma said. “You will some day. And don’t feel too bad—property tax doesn’t make sense to most Indians. That’s why they need lawyers, even if lawyers are good for nothing.” Gramma continued with the story. “Eventually, some Indians asked the federal government to help them.25 After all, they had signed a treaty and that was a very sacred thing. The Indians would follow the treaty. We had no choice. They would have killed us all if we didn’t. Killed us or make us move far, far away—maybe to Kansas or Oklahoma like the other Ottawas. But the white settlers didn’t care about the treaty. We were just in their way. There were a few good federal agents, but usually they were no good at all. It got so bad that even Congress tried to help, I’m told.26 But the bad federal agents lied to us and told us to follow the treaty and shut up. All they did was hide behind their laws and trick us, interpreting the law against our relatives when they should have been helping us.27 When the treaty said one thing, the federal government would say it means another thing. One of the things they did was to say that all the Tribes that signed the treaty—the Lake Matchimanitou Band, the other Ottawa and Chippewa bands—had all agreed to disband.28 That was a lie, but they did it anyway because it made it easier for them to allow the white men to take our land.29 They used to say that the 1836 treaty was the end of us,30 but we’re still here. “There were whites that would come around to the poorest Indians and trick them into selling their land for nothing. What they would do is say, ‘We hear you need money. You got land here and we’ll help you sell it. Just


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give us some seed money to start up a business and we’ll sell the land for more money that you can count.’ They pretended to be friendly. They acted like they wanted to help us. Our relatives weren’t so good with money. They weren’t used to handling money, not like we are today. We paid for lunch at the restaurant, right? Using little pieces of green paper to buy things was very new to our relatives back then. And when the white people came around and promised us easy money, we believed them. Turns out, they were just big scams. That happened to my mom’s cousin Laverne. They would sell us cheap crap and then use their laws to steal the land. All sorts of land scams.31 Man, lawyers are bad news. That doesn’t mean you shouldn’t be one, Niko, but be a good lawyer.” She smiled at the boy. “And sometimes they weren’t so nice when they cheated us. Sometimes the whites would even wreck our churches to try and drive us out. That happened in Colonial Point with the church up there.32 You know how we used to go to camp meetings up there in the summer? Well, you probably don’t remember. Anyway, Indians love camp meetings and there’s a great big one every summer in Colonial Point. Before your mom was born, somebody burned it all down to try and scare us off. There’re good people around in Lake Matchimanitou County and everything turned out okay. They still have camp meetings up there. I used to go there with my grandmother every summer. There are so many stories like that. Everyone who is from here has stories. I can’t begin to think of them all.” Niko furrowed his brow and yawned at the same time. It was nearly naptime for the young boy, but he wanted to know more. “You know, my Uncle Joshua had an allotment on South Fox Island,” Gramma said. “I went out there a few years ago with a big group of Indians to look around. They said some rich guy wanted to build a golf course on it and the Indians were joining up with the local environmental groups to oppose it. Someone told me that Uncle Joshua is buried out there.33 I remember my mother—she was Uncle Joshua’s niece—receiving a letter in the mail from the Secretary of the Interior saying that they wanted us to sell Uncle Joshua’s land when I was about ten or twelve. He was dead by then. They wanted us to sign on the dotted line so they could sell it to some timber company or something. I remember my mom saying, ‘Hell, no!’ and throwing the letter away.34 We never heard from them again until a year or two later when we got a check in the mail for five bucks or so.35 I know Uncle Joshua’s land was worth a lot more than five bucks because that golf course developer guy spent a ton of money trying to get a foothold over there. I know the tribe might file lands claims over there some day.36 I hope they do. Sometimes the white people around here talk about land claims. They’re afraid the tribe is gonna take all the land back. Maybe

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they should be. I don’t know. All I know is that so many of our relatives were cheated because they didn’t understand, because there were some truly evil people that took the land from them. It makes me so sad sometimes.” Niko just listened. He wanted to remember everything his Gramma told him, but he was so small and it was so much. He had never seen his Gramma so sad and he wanted it to stop, but he wanted to know more. He wanted to do something about it. Gramma said, “When I would visit my aunts and cousins in Lake Matchimanitou, sometimes we’d hear the fire trucks roaring up from Madison Bay. It seemed like every now and then somebody’s house burned down. We lived in a county that should have been our home territory but, instead, we were surrounded by houses that were sold from white owner to white owner on the land that been stolen from us. My Lake Matchimanitou cousins didn’t even have electricity until the 1950s or running water until the 1970s.37 That means toilets that were outside, boy, and no video games. Understand?” Niko nodded. No video games. Gramma paused a long while before she continued. “My greatgrandfather was a very strong man. He worked his whole life and lived to be over a hundred years old, though nobody knew for sure how old he was. He lived a long time and he took care of my mother when her daddy died in a car accident on Setterbo Road when she was just a little baby. My great-grandfather died when I was six. He used to speak Indian to me all the time but he could talk English, too. One day, he took me out in his car. He drove until he died, too. We were living in Kewadin back then, a few miles from the church, right near Elk Lake. He drove me around and showed me all the places where his relatives and friends used to live. This was back in the late 1950s. It was all summer tourist homes and gas stations. The land is worth so much money now—millions and millions of dollars—but even then the Indians couldn’t afford to live there. He took me to Traverse City and showed me the places where his grandfather took him to fish off Old Mission Peninsula. That land is worth ten times what the land is worth on Elk Lake. There are mansions there now. The land on our two reservations is exceptionally beautiful land. When he finished driving me around the lake, he pulled the car over and he cried for twenty minutes. I didn’t know what to say, so I cried with him. We cried together for a long, long time. There just wasn’t anything else to do.38 It wasn’t like it is today. Now we have lawyers and smart people helping us. And young people like you who will have vision and college degrees. You will help us through all of this. You know, I’ve never forgotten that day with my greatgrandfather. I don’t think the people that moved into this area ever really paid attention to how important this land was to the Ottawas. The people


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that moved here and took over the land were here to make profits and look after themselves.” Niko didn’t know what to say either. He wondered if the land where the park they were sitting on used to belong to an Anishinaabe who lost it somehow. He wondered if the apartment complex south of Madison Bay where he lived with Parker was on land an Anishinaabe had for a while until a white man came and took it away from him. He wondered if the land where Parker worked in the Eagletown Market would be taken away again some day. He would think about these things every time he passed an expensive home in Lake Matchimanitou County or a ramshackle Indian home on any Indian reservation he would ever visit for the rest of his life. Gramma stretched and concluded the story. “So that’s why the menu is wrong, why it is deceptive and tricky. The people round here who now own the land sometimes don’t really know how they got it way back when, but sometimes they do. And they tell stories to try and change history. They try to pretend there were no Indians here or that we didn’t care about the land. But we’re still here. We almost didn’t make it. In the 1970s, there were only a few families left in Eagletown. Now we’re getting bigger, like you are. We’re alive. You’re proof of that, my grandchild.” Niko smiled. He liked being the proof, whatever that was. “That’s why it’s wonderful you’re learning to read. When Indians signed the treaties, they usually didn’t know how to read English. We had to have white guys write our letters for us.” Niko wanted to know why the Indians didn’t fight back. Signing the treaties seemed like a very bad idea to him. “Gramma, why did we sign the treaties?” Gramma laughed. “Maybe we should ask ourselves that all the time. The federal government gave us thirteen cents for every acre we sold to them in the treaties. It wasn’t a good deal. But we did it because we had no choice. Plus, I suppose some of the ogemas probably thought we would be safe, that the feds would actually protect us from the white settlers. But that was about as likely as your mother being on time for anything.” Niko laughed, but it was a bitter Indian humor kind of laugh, probably the first time in his young life he would ever laugh like that but it wouldn’t be the last. Gramma joined him. It had already been a long day and the boy yawned again. His Gramma noticed and said, “One of these days I’ll tell you about the Pokagon Potawatomis. My grandfather was a Pokagon, you know, so you’re a little bit Pokagon, too. But not today. You look like you’re ready for your nap.” “Yeah, but I’m not tired.” “No ‘yeah, buts’, boy. You’re tired and you know it.” The two stood up and walked back to Gramma’s car parked on the street. Niko could see the boats crossing the water on Madison Bay, the

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inlet attached to the western shore of the Grand Traverse Bay, from where they were walking. Niko and his Gramma walked back to her car. He fell asleep on the way to her house in Lake Matchimanitou, listening for the umpteenth time to his Gramma tell him how important it is to get a good education.39 Parker’s new job as the high school’s new history teacher was the most fun she ever had working. She figured it had been a long time coming for the Lake Matchimanitou school district to hire a local American Indian person to teach history to the people who resided on land alienated—often illegally—from Anishinaabe people to non-Indians. As she had progressed through the Lake Matchimanitou school system, she had never heard the perspective of Indian people on the history of the region, or Michigan, or any part of the United States. Most of her classmates were confused by the curriculum taught to them—a curriculum that presupposed the “vanishing” of all American Indian people;40 a curriculum that did nothing to explain the presence of Indian people right there in the school.41 And, of course, the curriculum taught to Parker as she grew up Parker knew to be patently false. The Indians had not vanished and there was more to American Indian history than the meager references to the Navajo, Cherokee, Apache, and Sioux tribes. These Indians were living throughout the United States. They hadn’t disappeared or assimilated. Luckily, Parker’s mother had given her the lecture about the menu more than a few times. It helped Parker keep her composure as her various teachers taught her the “Ten Little Indians” song and various children’s stories about Indian princesses.42 Parker knew as a new high school teacher she would not be able to develop her own curriculum at first. But she knew she wanted to change the curriculum over time, even if it took years. Some progress had been made as the occasional teacher would invite a tribal elder or leader to visit a class to talk about American Indians. But it was hodgepodge. No one person could expound much detail about Indian people or the Lake Matchimanitou Band in forty-five minutes. And the invites came in a sporadic manner, if at all some years. Parker’s mother Emma had been invited more than once, but had not been invited for several years, not since she told the story about Henry Schoolcraft’s bleak and racist take on Michigan Indians,43 only to find that one of the students in Parker’s fourth grade class was a Schoolcraft descendant.44 It was clear even then to Parker that the non-Indian families in the Lake Matchimanitou area never wanted to hear the truth about how their great-grandfathers and uncles had come to acquire such beautiful lands. These families believed that they were tied


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to this land around Lake Matchimanitou—that they had fought, sweat, and even died for the land. Any alternative story, especially one involving the original inhabitants, would be rejected outright. But Parker would try. She had a two-pronged approach. The first part she thought she could get done sooner. And that could make the second part easier. She planned to comb through the history texts for discussions of American Indians. The high school taught both American history and Michigan history, the first being mandatory. Parker remembered her own mother marking up every single page of a 300-page tome on American Indian history she had checked out of the school library in third grade. Emma circled every use of the word “savage” and circled every other discussion of Indian people that asserted their inferiority. Every page had a mark on it when Parker returned it. Emma drafted a ten-page handwritten note explaining the problems with the book and tucked that into the sleeve. The librarian sent Parker home with a $100 bill to pay for the purchase of a replacement book, though a year or so later the library quietly took the book out of circulation. Parker always wondered what happened to that book. For the second portion of her plan, Parker had collected primary documents and related scholarly articles concerning the history of the Lake Matchimanitou Band. She collected copies of treaties negotiated and signed by members of the community in the 18th and 19th centuries. She collected copies of letters sent to politicians and Bureau of Indian Affairs employees in the 19th and 20th centuries demanding that the government comply with the treaties. Her final collection included copies of the original government land patents issued by the federal government to the original homesteaders of Lake Matchimanitou County. She had eight of them, including the one issued to Jefferson Madison’s ancestor, Leland Madison, the founder of Madison. She knew from the names on the patent that Leland Madison had acquired the rights to the land from an Indian named Elmer George. Elmer George had been a shill for land speculators in Lake Matchimanitou County in the 1850s, signing any document put before him transferring land rights from Indians to non-Indians. Who knows how much or little he had been paid to illegally sign away huge swaths of what should have been land owned by LMB members? There were still a few descendants of Elmer George in the community so no one talked about it. It was important to Parker because of the way she read her Band’s treaty—an Indian had a legal right to only one parcel of land, not the dozens claimed by Elmer George and his handlers. In short, all of the parcels owned by people (even some Indians) who claimed title back to documents signed by Elmer George had a flaw in their title—perhaps a fatal flaw. Anyone with an interest in land titles going back to the treaty

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times could discover the problem.45 Parker thought it would be good practical teaching material one day, assuming the school board—with Jefferson Madison as a prominent and powerful member—would ever let that day come. Parker spent her limited spare time during her first semester as a high school teacher reviewing the materials on the history textbooks and prepared a detailed memo outlining the concerns she found in the books. She identified a plethora of problems in the less than five pages or so of material discussing the “Indian problem” in the American history text. Notwithstanding the problem of too little discussion of American Indian history in the text, she found instances where the text misrepresented Indian culture and simply got established history wrong. These, she figured, would be easy enough to correct if necessary, even without changing texts (an argument she anticipated from the school’s decision makers). But what was harder to both identify and correct were instances where the very language of the text discounted or even disparaged Indian claims and ideas. For instance, the book asserted that Indian removal to the west was a mixed-bag of plusses and minuses, relying upon the bare fact that some Indian communities and people chose to move west.46 While true on the surface, the text made it seem as though Indian people were resigned to their fate, recognizing their inherent inferiority to American people and to the American policy and law. The general and unspoken assumption that the dispossession of Indian lands and the decline of American Indian populations was an inevitable and necessary precursor to American power and prestige was pervasive throughout the text. And though Parker knew these underlying assumptions evidenced a kind of racism, she suspected that the racism was unconscious for the most part.47 She detected the same kind of underlying assumption in relation to the discussions of African-American slavery and Asian and Latino/a immigration, as well as in virtually all other discussions of American race relations.48 And when she reviewed the materials used in the Michigan history class, she was dismayed to find less than a page of discussion of Michigan Indians. Silence meant disappearance, she knew, and it would take even more to combat that issue. In her attack on the Michigan history text and class, she would have to all but start from scratch. In some ways that was better, but it meant that much more work to convince the decision makers. The hierarchy of decision making on the school curriculum started with her immediate supervisor, Bob Higgins, chair of the history department, which included Bob and Parker. Bob had been Parker’s middle school history teacher years earlier. To Parker’s generation of students—and to several generations previous to Parker and to each generation after—Bob’s teaching was a literal joke. At some point after he achieved a form of tenure,


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he stopped trying to teach. Instead, his classes consisted of a forty-minute documentary film on the subject matter of the day, followed by a short, multiple-choice quiz. He assigned reading from the textbook, but none of that reading was necessary to passing the course or even receiving an A in the class. His daily activity in class included shouting at the less wellbehaved students to be quiet and pay attention and ordering the betterbehaved students to distribute (and later grade) the quizzes. No critical thinking ever occurred in Bob’s classes. Parker was aware that there was an almost annual petition by some parents to fire Bob, but the school board never did it. In fact, Bob had somehow finagled a promotion of sorts to the high school and became chair of the high school history department. His teaching strategy retained the same passive structure. Parker knew from experience that Bob had a serious problem with racial stereotyping and harbored a significant lack of sympathy for minority groups. On occasion, he would discipline Indian students with reference, for example, to their so-called drunken grandfathers, leading to their lack of brain capacity. When confronted on these questions, he would refer to “factual” sources on infant and fetal alcohol and drug syndrome and its prevalence among Indian people. Bob belittled Indian students who asked about Indian history or modern affairs, asserting that none of it mattered because Indian people now had the benefit of gaming revenues and were therefore “all rich.” Little stopped Bob from perpetuating these microaggressions against Indian students, leading to multi-generation animus directed against Bob from Indian families. Parker and her relatives who were Bob’s students had little respect or esteem for Bob. Few students or parents or even fellow faculty members respected Bob. Ironically, Parker believed that she would get no resistance from Bob about her recommendations to change the curriculum. She suspected that Bob cared very little about history and would make the choice that incurred the least amount of effort on his part. “What do you think you’re doing?” Bob asked Parker in his dry, humorless voice. He didn’t even look at Parker as she explained her proposal, preferring to read the Traverse City Record-Eagle while she spoke. “What do you mean?” Parker had no idea what to expect from Bob. “You’re going to get yourself fired and we never even got to know each other,” Bob said, still focusing on the newspaper. “Maybe, maybe not,” Parker said. “I believe in doing the right thing.” Now Bob looked up. “Oh, really, little miss thing? And what’s so right about upsetting the principal and the school board over this insignificant question. You must know they’re waiting for one little slip-up from you. Do you think they hired you do question their curriculum? Do you think they hired you to be a good teacher? No. Everyone knows why you’re

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here instead of a better qualified teacher. They hired you to placate the tribe. They hired you as a token, an affirmative action baby. For all I know, you don’t have half the qualifications needed to teach high school history.” Parker was furious and couldn’t hold her tongue. “Well, I got an A in your sorry little class back in eighth grade.” Bob harrumphed. “So what?” “So what do you mean, ‘So what?’ Are you going to sign my proposal, or what?” Bob had already returned to his newspaper. “Whatever. It’s your ass.” He signed her proposal without even looking at it. Parker did not need Bob’s approval of her recommendation, but she was still shocked he signed the proposal. That meant when she went to the principal and then the school board, she had his recommendation. Of course, given that it was from Bob Higgins, it meant little. But it was something. Parker’s next stop was the principal, Edie Franklin. Edie was a strong supporter of the superintendent’s decision to hire Parker. Edie knew that the history curriculum made little sense in the context of Lake Matchimanitou High’s population, which was about twenty-five percent American Indian. Edie was receptive to Parker’s proposal, but skeptical that it be approved by the all-white school board. Parker was not surprised. Edie said she would review Parker’s written proposal, make comments, and get it back to her before she sent it on to the superintendent, William Andrews, and the school board. Within two weeks, Parker’s proposal had been placed on the agenda. She again prepared to face the Lake Matchimanitou school board.

Before the Lake Matchimanitou Area Public School District Board William Andrews: Ah, Parker Roberts! How is your first year going? Parker Roberts: It’s going well, sir. There’s nothing like teaching history in your own community. Robin Jeffries: Well, let’s get to business, shall we? Ms. Roberts. I believe you have a proposal to amend the high school’s history curriculum, as if you didn’t already have enough to do. How many classes are you teaching this year? Parker Roberts: I have a full load, ma’am. Robin Jeffries: I’m sure you do. Teaching in the first year is a real chore. How on earth did you fit in the time to draft this proposal?


Parker Roberts: Robin Jeffries:

Dave Thompson: Jefferson Madison: Robin Jeffries: Parker Roberts: Shirley Adams: Robin Jeffries: Shirley Adams: Robin Jeffries: Parker Roberts:

Jefferson Madison: Parker Roberts: Jefferson Madison:

Parker Roberts:

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I quit my night job at Eagletown Market. (laughter) Charmed. Well, we’ve had a chance to review this proposal. I think I speak for the entire board when I say that it’s really not a high priority for the school board to be changing the way we teach at this point. We have bigger fish to fry. Do we have a motion to table? So moved. Seconded. Discussion? None. Okay. All in favor? Wait! You’re not even allowing me speak? What is this? Communist Russia? Parker, please. That’s not helping. Madam Chairman, I’d like some time for discussion. Say, fifteen minutes? So be it. I suppose you want Miss Parker here to do your talking? I do. Ms. Roberts. You have fifteen minutes. Chi-miigwetch. And boozhoo to you, ladies and gentlemen of the school board. I have a proposal to amend the high school history curriculum to incorporate more teaching and more accurate information about American Indian people, nations, and law and policy. A critical and second portion of the proposal would require that teachers discuss the lives and histories of Michigan Indians, especially the people of the Lake Matchimanitou Band. Indoctrination. Excuse me? What do you mean, indoctrination? Indoctrination. It’s a simple word. You should know the meaning. It’s what the purveyors of a politically correct, revisionist history seek to teach our children. It’s happening all over the country. First, in colleges and universities, and now it’s trickling down to high schools and grammar schools. It’s fake history, based on the demands of powerful special interests groups, like blacks, immigrants . . . and Indians. We don’t need it here, Ms. Roberts. I appreciate your concerns. This is not part of a larger agenda, at all. Look, all I did was look at the history books carefully to see how the teaching of our children

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Dave Thompson: Parker Roberts:

Jefferson Madison:

Parker Roberts:

Jefferson Madison: Dave Thompson:

Robin Jeffries:

Jefferson Madison:

can be improved. In general, the history books are excellent and well-written. I’m proud to be able to use these books. But I see a very rich history, a critical and indelible part of American history that is a bit underrepresented in the materials. The history of the interactions between the Europeans and the Americans and American Indians is one of the most exciting and critical portions of American history. Some of the most interesting historical events occurred here in Michigan, involving ancestors of some your students. I think the Pontiac war is covered in the textbook . . . . Yes, it is to some extent, but much more history took place here in Michigan that did not involve Indian wars. Like what? Well, the story of how the Pokagon Band Potawatomis avoided removal through crafty treaty negotiations. Or the story of how the Michigan Ottawa and Chippewa tribes were able to preserve their hunting and fishing rights in United States v. Michigan . . . . Now that’s what I call revisionist history, right there. There are no real treaty rights, at least no hunting and fishing rights, anywhere in those treaties. I’ve read them. There’s nothing in there about gillnetting or controlling the entire Lake Michigan fishery. That case and everything else with the Indian tribes is based on the liberal federal courts of the 1960s, where all the political correctness came from in the first place. Perhaps, but the mere fact that we can disagree with such vehemence suggests that the topic is worthy of discussion in our history classes. No. I’ll state my objection again—indoctrination. I tend to agree with Jeff. I worry that we’d be turning our schools into a vicious debating society where the Indians gang up on the non-Indians about casinos and fishing and treaties. Where does it end? Yes, all sides of the debate should be heard and, frankly, Ms. Roberts, with you teaching Indian history . . . I don’t think the students would get a fair shake. Besides, the proposal makes no sense. I can’t even figure out what you’re trying to propose. Do you want to stop teaching something else and replace it with


Robin Jeffries:

Jefferson Madison: Robin Jeffries: Jefferson Madison: Dave Thompson: Robin Jeffries:

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Indian history? I don’t see how else to do it. Will we cut out all discussion of the Civil War so we can fit a month in of Native Americans? With the limited time we have to teach these students, you must remember that it’s a zero-sum game. Whatever the students gain—and I use that term loosely—comes at a cost to a piece of American or Michigan history. I see nothing in the proposal dealing with that very serious concern. I hesitate to add one final objection, Ms. Roberts. We are in a time of war. It’s imperative that we don’t undermine that effort. I am concerned that if we just start teaching American Indian history, we might do just that. Think about it. I admit that the United States has not always been the good guy when it comes to Native Americans. There is some ugly history out there—on both sides, mind you. The Indians could be pretty evil, too, but I fear that if we start teaching a subject that tends to place the American government in some sort of disrepute, then we’re hurting the war effort in some small way. I mean, I read somewhere that the continuation of Jim Crow laws actually hurt us during the Cold War, politically. We shouldn’t bring up all this old history right now when it could make our nation look bad. It’s over, Parker. There’s plenty of material in your assigned textbooks. Teach it. I think your time is up, Parker. If there’s no further discussion, is the motion to table approved? Aye. Yes. The motion is approved and the proposal to amend the history curriculum is tabled.

And like that, Parker’s proposal died on the vine. Parker remembered reading an essay by James Boyd White about Plato’s Crito, about how Socrates engaged in a drawn-out dialogue with his friend Crito about the merits of escaping from prison before he is to be executed. Crito had come early the day of Socrates’ scheduled execution to convince him to escape— Crito had the means. But Socrates wasn’t interested in escaping. He wanted to teach Crito one final lesson through their dialogue together. Socrates first made a simple argument as to why it would be wrong for Socrates to escape. Crito, easily persuaded, agreed to the argument, but Socrates said

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the argument was flawed and unconvincing. So he offered a second, more thorough argument, one that again persuaded Crito, but Socrates dismissed that argument as well. They went through this process four times, with each time Socrates developing a better argument until the final effort was well-nigh perfect—and Crito would step back and allow Socrates to be executed. Parker knew that she would never have the chance to engage the school board in enough discussion to articulate her position well enough to convince them. Fifteen minutes would never be enough. It was a case where the procedural rules, while seeming to be neutral, effectively eliminated the speech rights of the petitioner.

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Criminal Injustice and Demonizing Indian Students The American Indian Student Lake Matchimanitou High School’s finest American Indian students in some time were Niko Roberts and his friends Tahsanchat George, Ben Wilson, and Anthony Mark, whom everyone in Eagletown called Beercan because of his predilection for collecting bottles and cans for the Michigan bottle deposit. In their senior year in high school, they had been the exception to the rule at Lake Matchimanitou High—American Indian students in line to graduate. Only perhaps a quarter of Indian students that started kindergarten in the school district would make it all the way through to graduate on time. And Niko’s group was even more exceptional because all of them (with the exception of Beercan) were on the honor roll with a 3.0 GPA or better. Tahsanchat had a four-oh grade point average.1 Tahsanchat was an import of sorts from the west coast. Her mother was from Eagletown, but her father was from the west coast Yurok Tribe. She had grown up out there, but her father had died when she was in middle school. Her mother packed their things and moved back to Eagletown. She was a very pretty girl, from California to boot, and had transitioned to a new school very well. She played basketball and golf on the side, but was a very hard-working student. The summer she had moved back, right before ninth grade, Tahsanchat had taught Niko to play golf. Their grandmothers had grown up together and saw a good match. It was never to be a romantic relationship, but Niko and Tahsanchat became close friends. Niko joined the Lake Matchimanitou golf team in the fall of his freshman year, as did Tahsanchat. They were both the best players on their respective teams within a year or two. 51

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Criminal Injustice and Indian Students

Ben and Beercan, who were close friends, had been Niko’s acquaintances since they were all little kids. They had seen each around for years at school, powwows, camp meetings, everywhere, but Ben and Beercan weren’t real close to Niko. They were a little rougher than Niko, who came from a family that had a little more history of success in education and business. Niko’s Gramma Emma was a long-time tribal council member and who had pushed Niko hard throughout grade school to be a serious student and to stay out of trouble. Ben and Beercan hadn’t had the same guidance, both from broken homes, but they were intelligent and laid-back fellows. Some would say they were too laid-back, granted the privilege of being known as “stoners” ever since middle school. Niko had never known either of them to smoke, drink, or take drugs, but he could never be sure. They laughed too loud in the school hallways and always seemed a little high in shop class. But they were above-average students, with Ben getting mostly As and Bs and Beercan perennially coming in with a 2.9 average, just outside the honor roll. And since the three guys and Tahsanchat appeared to be the only four American Indian students of their class year to be in line to graduate by the mid-point of their senior year, they had bonded even more. They were survivors. “How many ‘Nishnaabes do you think dropped out over the years?” Niko asked Ben and Beercan over lunch on a fine fall day in early October. Niko, Ben, and Beercan sat together during lunch period, along with the three other non-white guys they knew in Lake Matchimanitou, Ruben Reina, the lone Latino kid, Charles Dickson, the lone African-American kid, and Yong Lee, the lone Asian American kid. As was their custom, four of the guys would combine their spare change into a few bucks to give to Beercan or Ben on one silly condition—that he would mix together a concoction of their lunch leftovers (ketchup, mustard, French fries, hamburger bun, pizza sauce, onion, cookie crumbs, orange juice, and so on) into a soupy mess and take a bite. Ben and Beercan relished the chance to make fools of themselves for a couple bucks in odd change. That day it was Beercan who took the challenge. “I don’t even know anymore,” Ben said. “What a depressing question. I think Johnny will graduate, assuming he doesn’t fail practical math. He went to summer school last year, you know. He really wants to graduate.” Beercan, who had made a mess of his plate, took a bite of their leftovers to the collective gasp of the group. But Niko and Ben didn’t even notice. “Think of all the Indian guys in juvie right now,” Niko said. “Al, Mark, Stevie, David, Rick, the other Rick. They’d be a helluva basketball team if they could keep in school. Didn’t Al used to start on the ninth grade team, way back when?” Charles had played on that team. “Yeah. He was good, but the coaches


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were always benching him and making him run laps. What happened to him? He just sorta disappeared.” Beercan was Al’s cousin. “Well, it started when he beat up some white kid on the football team. I don’t remember the other kid’s name. I think he moved away. What I heard is that the other kid called Al a timber nigger, whatever that is. I think they might have been fighting over a girl.” “So the white kid is jealous over Al’s girlfriend, calls Al a racial epithet, and now Al’s in juvie,” Niko said, recalling the story from three years earlier. “Well, to be fair, Al was pretty violent,” Beercan said. “It wasn’t just that. He got into lots of fights after that. I think he’s in juvie this time because he stole a car or something. He’s supposed to be getting out next month but I doubt he’ll come back to school.” “The white kid went unpunished, of course,” Ben added. Charles said, “That doesn’t seem fair.” Charles had quit the basketball team after ninth grade because of the nigger jokes and drunken Indian jokes he kept hearing in the locker room. He was the only AfricanAmerican kid in his grade, one of only six black kids in the entire high school, and the basketball coaches kept nagging him about rejoining the team. Al’s was a familiar story. They had all knew how the school’s vice principal, Jim Niles, who was in charge of disciplining students, had an arrangement with the city police department. If a serious fight broke out on the school’s campus, the “Veep” would bring the students in and interrogate them. He apparently fancied himself a serious crimes investigator and knew exactly where he stood in the criminal justice system. His interrogations were quick and always ended with a student signing one of his famous “affidavits,” where the student would admit to starting fights and breaking both school regulations and state criminal laws. The Veep wouldn’t let the student leave the room until he signed the confession, always drafted and then notarized by the Veep himself. Once the affidavit was signed and notarized, the Veep called the police. Once the police arrived and had the confession in hand, they’d almost never conduct their own investigation. The cops would arrest the kid on the strength of the confession and, before the kid knew it, he had a criminal record.2 It was a badly kept secret that almost all, if not all, of the kids that the Veep brought into his interrogation room to sign affidavits were Indian kids. Everyone in the school knew that if a white kid and an Indian kid got into a fight, the Indian kid would be forced into signing an affidavit and hauled away. The white kids would be suspended for a day for fighting, but the Veep never made them sign an affidavit or asked the police to investigate their actions.

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“I wonder how many of the Veep’s affidavits Al signed before they expelled him from school,” Ben said. “Who knows?” Niko said. “Everyone who signs one gets kicked out sooner or later. Once you have a criminal record, even if it’s just a misdemeanor for disrupting school, you’re screwed forever. It just gets worse. You’re automatically guilty if anything else happens because of your record.” “I bet about twenty Indian kids started with us in kindergarten,” Beercan said. “I’ll have to go back and look at our elementary school pictures. And now there’s us three and Johnny. Plus, a couple girls I don’t know real well.” “Melissa and Erica,” Ben said. “And Tahsanchat,” Niko said. “But she didn’t start with us in the beginning.” “So six out of twenty are going to graduate,” Beercan mused. “Assuming no one else gets in trouble or flunks out. Remember, Johnny’s already been in trouble once.” “Jesus, don’t jinx him!” Niko said. They were silent. Only about a half-minute remained before the bell would ring and they would have to go off to their next classes. Ruben broke the silence. “Is there any way to prove that the school is discriminating against Indian students? This is so frustrating. There’s got to be a way to prove it.” It got Niko thinking. The Lake Matchimanitou Band’s representative to the school board that year was Tina Adderly. Niko had asked his gramma Emma to ask Tina for the school district’s annual report, especially the discipline statistics. In the 1970s, because the school district started receiving federal funds under the Johnson-O’Malley Act,3 they began reporting statistics by breaking them down by race. The breakdown included separate categories for American Indians and other races, but the American Indian category was the only one that was statistically significant. In the 1970s, the statistics confirmed what everyone knew—that an education crisis had arrived at the school regarding American Indians and something needed to be done. Indian students usually began kindergarten comprising about twenty percent of the student body, but, by high school graduation time, they were less than two percent. In addition to the alarming dropout rates, American Indian students had the worst test scores and highest incidences of disciplinary action. Despite the influx of federal funds in the 1970s, gradually replaced by federal grants, tribal money, and, even later, tribal


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gaming revenue sharing with local units of government, the statistics never improved. The negative statistics regarding American Indian students stopped being a call to action over the decades and instead became a self-fulfilling prophesy, from the point of view of the all-white school administration. In fact, during the period of Vice Principal Niles’s tenure beginning in the mid-1980s, the high school discipline rates had increased significantly. When Niko reviewed the statistics, he saw the amazing discrepancies of discipline rates between American Indian students and white students. Every year, about one-third of all of the American Indian students in middle and high school would be disciplined, whereas less than five percent of white students would be disciplined. Many of those Indian students would sign one of the Jim Niles’ affidavits, which had become extremely popular with the school board and had spread to the middle school as well. Twelve-year-old Indian students in seventh and eighth grades were being hauled away by local police. In the last year, Niko’s eleventh grade year, eleven percent of the American Indian students in Lake Matchimanitou junior and high schools had been arrested for crimes on the schools’ campuses—a total of fourteen students. Only one white student had been arrested and Niko knew from personal knowledge that the charges against that student had been dropped. Niko further saw how the absolute numbers of Indian students declined grade by grade as Indian students dropped out, or were expelled, or transferred to other school districts like Colonial Point, about twenty miles north. As he and his friends speculated, less than a third of students who started in the school district as five-year-old children made it through to become eighteen-year-old seniors in high school. The numbers in high school told a stark tale. The year before, there were nineteen American Indian freshmen, fifteen sophomores, nine juniors (including Niko and his friends), and only four seniors. Only one of the four seniors graduated. Niko knew that only seven of the nine from his class had bothered to come back for their senior year and speculated that some of them might drop out before graduating—and Niko’s classmates counted as a banner year for American Indian graduation at Lake Matchimanitou high. Emma Roberts, who sat as the liaison between the school board and the tribal council, began to discuss with the rest of the LMB tribal council the problem of the Lake Matchimanitou school district, but it was an old story with no realistic solutions. No one knew what to do about it, but it did begin the discussion about founding a separate Indian school someday. Emma reviewed the statistics with her grandson Niko and then took them to the tribal attorney Bryan Montana. “Well, I’ve seen these stats before,” he said. “They’re not good. I guess we

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could make a claim that the stats prove there’s a racially hostile educational environment, but I’m sure it would get dismissed. Probably all but a few schools with a significant American Indian student population had similar stats. In reality, a federal district judge would be swayed by the fact that every one of these school districts would be subject to suit on stats alone. I think they should be, but we have to face the fact that the law reform federal judiciary is gone. The federal district court judges in our district, the Western District of Michigan, would be extremely hostile to this kind of claim. We need more proof.” “What about the increase in disciplinary actions since Jim Niles became the VP in charge of discipline?” “That is interesting, but we need more.” “What about his affidavits?” “Excuse me?” Emma told Bryan about the affidavits. Bryan immediately prepared a litigation strategy for the tribal council, and they began work. But legal disputes do not arise in a vacuum. A month later, as the fall football season began to wind down, the Lake Matchimanitou High varsity football team lost an important game to a local rival in Traverse City. The loss dropped the team from the playoffs for the first time in over a decade. The mood in the school turned dark. Many of the senior football players expected to make a deep run into the state playoffs and even make a strong challenge for the state title game to be played in Detroit. A season that had started promising turned sour. The first incident that could be traced to the football team’s frustration involved Beercan and Ben about a week after the season ended. The boys had lockers next to each other, and during off times in school they would talk about the events of the day. That day, Beercan made an offhand remark about the lousy play of the football team in a joking manner, implying that he had little sympathy for the seniors who had ruined their chance to win the state championship. A senior defensive back, who was white, as was every member of the football team, overheard Beercan’s remark as he passed in the hallway. Within seconds, the defensive back, Fred Hendricks, had grabbed the front of Beercan’s shirt. “What did you just say, timber nigger?” Fred asked Beercan. Beercan, who could by no stretch of the imagination be considered an athlete but was as big or bigger than the wiry defensive back, said nothing. He was surprised by the attack, not having been bullied since before eighth grade. Ben responded. “Let him go, you ignorant loser.”


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Fred did as instructed, only to give Ben a good hard shove into the locker. The sharp crash filled the hallway with noise. The few people around to witness the first few seconds of the incident swelled to several dozen. Ben was several inches shorter than Fred and, like Beercan, no athlete. But he was not one to back down from an obvious affront and punched Fred in the nose. Fred shrugged it off and tackled Ben like he was taught by the football coaching staff, rising to pummel Ben’s midsection with wild body blows. Many of the student onlookers began to chant “Fight! Fight! Fight!” Ben had no defense and was receiving a beating like he had never experienced before until Beercan pushed Fred away from his friend. At that moment, two male math teachers—one of them an assistant coach on the football team—appeared to separate the fighters. All three were hauled down to see The Veep. Tahsanchat George was about twenty feet away when it happened. No one ever asked her what she saw. After conferring with the two teachers who broke up the fight, the Veep brought the students separately, one by one, Fred, Ben, and Beercan—in that order—into his office.

Before the Vice-principal for Discipline Jim Niles Jim Niles: So what happened, Fred? Fred Hendricks: Beercan called me out and met him. It was a challenge. Jim Niles: What do you mean? Fred Hendricks: He insulted me and my teammates. He insulted this whole school by bad-mouthing the football team. The guy has no class. Jim Niles: I know the Native American students here don’t care much for football, but that doesn’t mean you can attack every one who bad-mouths the football team. I know the hurt is still recent, but you have to move on. Isn’t basketball season coming up? Fred Hendricks: Yeah, we already started practice. Jim Niles: Okay. So, what happened exactly? Fred Hendricks: I heard Beercan say that the football team was a bunch of losers, or something like that. I confronted him like a man. I asked him what he said. I wanted him to back him up. I was mad, I admit. Jim Niles: Who was the instigator? Was it Beercan? Fred Hendricks: Uh, no. Well, yeah. I dunno. I just know that I was looking at Beercan, talking to him, and all of a sudden, I got

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Jim Niles: Fred Hendricks:

Jim Niles:

Fred Hendricks:

Jim Niles: Fred Hendricks: Jim Niles:

Fred Hendricks:

Jim Niles:

punched. I don’t know if it was him or that asshole Ben Wilson. Watch your language. Sorry. But you know there’s a problem with those Indians and discipline. That’s why none of them are on the football team. They don’t work hard enough. They’re lazy and they get drunk all the time. They come from generations of drunks. They can’t help it. Okay, that’s enough. I just want to know what happened today, not what happened yesterday. So, to repeat my question, who punched first? I think it was Ben Wilson. He jumped in on us. He could’ve just left me and Beercan alone. Nothing would have happened if Wilson would’ve just let me talk some sense into Beercan. You willing to testify to that effect? You mean sign one of those affidavits? Yeah. Okay, that’s good. Now you know I have to suspend you for two days for fighting. That’s school policy. No exceptions. I got two teachers saying you were punching Ben Wilson in the torso. And you’ll get one day off for good behavior. What?!?! He started it! What am I supposed to do, just turn the other cheek when some Indian blindsides me? You’re excused. Go home for the rest of the day and think it over. Relax. I’ll make sure you’re not given any unexcused absences.

Before the Vice-principal for Discipline Jim Niles Jim Niles: Anthony Mark, also known as Beercan. Why do they call you Beercan? Do you drink? Anthony Mark: Nope. Never touch the stuff. I know where you can get all the booze you want. Ask Fred Hendricks. He’s drunk every weekend. Jim Niles: That’s enough, Mr. Mark! This isn’t about Fred and you know it. All I want to know is who started that fight. You or Ben Wilson. Who was it? Anthony Mark: Neither of us. It was Fred. Jim Niles: Don’t insult my intelligence. I have two teachers telling that they saw you pushing and punching Fred. It looked


Anthony Mark: Jim Niles:

Anthony Mark: Jim Niles: Anthony Mark: Jim Niles: Anthony Mark: Jim Niles: Anthony Mark:

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to them and to me that you and Ben Wilson ganged up on Fred and starting beating him up. Wow. You’re crazy, aren’t you? You have it so wrong. He called me a “timber nigger.” I doubt that very much. I’ve known Fred since he was a little kid. I know that he’d never use such an obnoxious racial epithet. And no one in this school would ever even hear that phrase if it weren’t for the Native American kids using it all the time. Well, whatever. I’m just telling you what happened. I already know what happened. Here. I want you to read this affidavit and sign it. This says Ben started the fight and I joined in. It’s not true. As far as I’m concerned, it is. But he really called me a “timber nigger.” I don’t want to hear it. You want to graduate, don’t you? Now sign the affidavit. Okay, whatever.

Before the Vice-principal for Discipline Jim Niles Jim Niles: Ben Wilson. I’m so deeply disappointed in all this. Beercan, I guess, I expected, given his reputation. But Ben, I thought you’d go to college and make something of yourself. I thought you’d get out of here and escape the rez. Ben Wilson: I don’t have anything to say to you. Jim Niles: Fine. Fred and Anthony said it all. It’s all right here on the affidavit. You must know the drill from all your friends. So, take a look and sign it. Then you can go home. Ben Wilson: Yeah, I know the drill. But I’m not signing no confession. Jim Niles: It’s not a confession. It’s an affidavit. It’s just a document I need for my report. I need the truth. You haven’t even looked at it. Ben Wilson: Fred Hendricks called us “timber niggers.” Then he jumped Beercan. I tried to defend my friend. End of story. Jim Niles: You just confessed to fighting. That’s two days’ automatic suspension. Ben Wilson: You said this wasn’t a confession. Jim Niles: Enough of the smart mouth. I’ll lay it on the line for you— you’re not leaving until you sign the affidavit. If you don’t sign the affidavit, you don’t graduate.

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Ben Wilson: Wait a minute. It says I started the fight. That’s not true. Jim Niles: It’s what Beercan told me. And Fred, too. Their stories are consistent. They signed the affidavit. Ben Wilson: Bullshit. Jim Niles: That’s another day of automatic suspension. Swearing. Ben Wilson: Jesus, what’s wrong with you? Jim Niles: Look, just sign the paper and we can go. I’ll let you go home for the rest of the day. No unexcused absences. Ben Wilson: I’m not stupid. I know what happens around here. I sign that thing and you call the police. They haul me and Beercan away. Fred gets away scot-free. Jim Niles: Fred didn’t do anything. Beercan started it, right? Everyone said that Beercan was talking trash to Fred. You, too. What did you guys expect? They’re the pride of this school, this whole township, and you kick them while they’re down. Ben Wilson: What are you talking about? Even assuming we were talking trash to anyone, does that mean we have to go to jail? Jim Niles: No one said anything about jail except you. All I want is this information for my records, so when I mete out punishment, I have documentation to support my decision. Moreover, you’re the only one who disputes what happened. That makes you a liar in my book. Lying to a school administrator is cause for discipline as well. Sign the paper and I’ll forget you were lying to me. Ben Wilson: I’m not signing it. I know it’ll be used against me in court. Don’t I have a right to a lawyer? Jim Niles: I suppose, if I were the police. But I’m not. Ben Wilson: Look. You let me write my own affidavit and I’ll consider signing it. Jim Niles: Why? The truth is already on that paper and that’s all I need to know. I’m not going to waste my time waiting for you to write a bunch of lies on paper. The facts are clear. Let’s just get this thing done. Ben Wilson: No. Jim Niles: You don’t sign it, I expel you from school and I call the police. You won’t graduate and you’ll probably spend the rest of your life walking around with a criminal record like all the rest of your friends. Ben Wilson: You don’t even know how racist you are, do you? Jim Niles: That’s it. You’re expelled for gross misconduct. Get out of here. Wait in the front office until the police come.


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Two officers from the Madison Bay police department arrived thirty minutes later. They took the affidavit that Beercan signed and another affidavit that Jim Niles signed, the same one that Ben refused to sign. They read them both and then arrested Beercan and Ben on suspicion of disrupting school activities and simple assault. Ben and Beercan were taken to the Madison Bay lockup and held there for four hours, until school was out for the day. Only then were they allowed to make a call home. No one ever asked them any questions. No police ever conducted an investigation at the school. Fred Hendricks went home and never received any contact from the Madison Bay police. Fred never showed up for his in-house suspension. No one punished him further. Ben had been suspended for an entire week or until the school board could decide whether or not to adopt the recommendation from Jim Niles to expel him. Beercan had also been given in-house suspension for an entire week for fighting and lying to Jim Niles. During this time, tensions between Lake Matchimanitou varsity athletes, especially the football and basketball players, and the dozen or so American Indian students increased. In the second incident, several members of the Lake Matchimanitou football team cornered Johnny Raider. No one really knew what happened, who started the fight, or why, but both Johnny and a white kid named Eli Hall ended up with black eyes and bloody noses. And it was the same old story with the Veep. Eli Hall was sent home for the day without punishment while the Madison Bay police picked up Johnny during last period. He was cuffed and walked out right in front of the school, much like the major corporate criminals are sometimes arrested at work and walked out by federal prosecutors and FBI agents. Johnny already had a record from a previous encounter with the Veep. No one expected him to ever come back in time to graduate from high school. Students speculated he’d spend at least six months in jail because he was eighteen and would be prosecuted as an adult. The day Beercan returned to his classes was the day his government teacher, Hal Banks, brought up Indian tribes. Mr. Banks felt he had little choice but to acknowledge the existence of a third sovereign in the United States if for no other reason that one, right down the road, operated government services such as a police department, small fire station, health clinic, education and employment office, public housing, and roads maintenance crew. His students wanted to know why they did these things, why they supposedly didn’t have to pay taxes, and why they could fish on the bay and the big lake without state permits. Over the years, Mr. Banks dedicated one half of one class period to Indian tribes, trying to keep it pared down to twenty minutes and also trying not to discuss Indian religion, language, customs, or anything else. All he wanted to do was

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answer the questions as fast as possible and avoid talking much about it at all costs. Some years, none of his students paid any attention and allowed him to move on without discussion. On the odd occasional year, one or more students really wanted to know more because of an unexplained intellectual curiosity. And on some years, one or more students just wanted to vent about the dirty Indians down the road. The year that Ben Wilson and Beercan Mark fought Fred Hendricks, almost every student in class wanted to vent about the dirty Indians down the road and, indeed, right there in class with them. Mr. Banks should have seen it coming, but he was tricked by the first fifteen minutes of his lecture, which went by without so much as a peep from the students. After he mentioned that some tribes (not the Indians down the road, however) had legal casinos and some of those tribes made their members wealthy, the floodgates opened. “Why do they get casinos? Why not white people?” And, as an afterthought, “Or Blacks or Hispanics or Chinese?” “My father lost his livelihood to those Indians taking up all the whitefish with gillnets. It’s not fair.” “I heard they worship the devil. That’s what Lake Matchimanitou really means. I betcha you didn’t know that.” “They don’t fit in. They never talk to us or go the games. We’re honoring them by calling our teams the Warriors and they dis us.” “Indians lost the land fair and square, so why did we give it all back?” “Indians are always talking about a lost language and culture. Whatever. All they need is English and church. If they had that in the first place, they’d be fine, instead of all poor. And drunk. Right, Beercan?” Mr. Banks, given the year, expected one of these lines of questions, but he had no chance when confronted with that year’s hostile barrage. He looked over at Beercan, sitting in the back row, and shook his head. “Okay, that’s enough. We don’t have time to go through all of this. Suffice it to say that Indians have casinos and that’s how they have governments and money to pay for government services. Okay? Great!” It didn’t satisfy the class at all, but those who had asked the questions and made the comments didn’t need answers or responses. Rhetorical questions and inflammatory comments never do. From Beercan’s perspective, it looked like his teacher had saved his own skin by sacrificing his sole Indian student. Other Indian students suffered similar indignities. A ninth grader stopped coming to school when the phys ed teacher laughed a little too loud at an overheard joke about drunken Indians. Two tenth grade Indian girls began crying when their geography teacher explained that nothing derogatory inhered in the word “squaw” in places like “Squaw Peak” or


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“Squaw Lake” because that’s just what Indian women were called. The most popular joke around school was the one about whenever Indian people complained about something—sports mascots, or racism in the movies, or anything—they’d just make it start raining outside. All around school, the old grievances about treaty fishing and tax immunities served as flashpoints for arguments and snide commentary. No Indian student felt welcome. On the eve of the special hearing before the Lake Matchimanitou school board to decide whether or not to expel Ben Wilson from high school, Johnny Raider, facing several months in jail, committed suicide. Because of the traditional four-day grieving process, few LMB members could attend Ben’s hearing. While Bryan Montana attempted to reschedule the hearing, the school board chairman Steve Madison refused to allow it. Tina Adderly, Johnny’s aunt, and Beercan did not attend the hearing because of their responsibilities in the grieving process. However, Ben and Beercan’s friends Niko, Tahsanchat, Ruben, and Charles sat with Ben at the hearing.

Before the Lake Matchimanitou School Board Steve Madison: I call this meeting to order. My name is Steve Madison and I am the chair of the Lake Matchimanitou School Board. Will the other members of the school board introduce themselves? Lori Burke: Lori Burke. Jefferson Madison: You all know me. Jeff Madison. Dave Thompson: Same here. Dave Thompson. We’ve been on this board for a long time, right, Jeff? In your case, since caveman times. [laughter] Helen Katz: Helen Katz. I just got elected. [laughter] Steve Madison: All righty then. [laughter] Well, we are here to discuss the possible expulsion of a student from the high school. His name is Ben Wilson. And it appears the grounds for expulsion are fighting and insubordination? Vice-principal Niles, is that correct? Jim Niles: Yes, it is. Steve Madison: I understand that Ben Wilson is being represented by counsel. Is that correct?

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Bryan Montana:

Steve Madison:

Jefferson Madison:

Bryan Montana:

Jefferson Madison: Steve Madison: Jefferson Madison: Bryan Montana:

Steve Madison:

Jim Niles:

Bryan Montana: Jim Niles: Bryan Montana: Steve Madison:

Yes, Mr. Chairman. My name is Bryan Montana, and I am the general counsel for the Lake Matchimanitou Band of Ottawa Indians. I will be representing Ben Wilson, who is a member of the tribe, in this important matter. Well, ordinarily, we don’t allow attorneys in here. This is not a court proceeding. Where are the parents? Did they ask you to come in here? Jeff, help me out. Yes, this is not a courtroom. No legal representation is necessary. The school district is unrepresented. I don’t see why the student should be. Excuse me, Mr. Jefferson. As everyone in this room knows, you have been informally acting as legal counsel for the school district for at least the last thirty years. Didn’t the Chairman just seek your counsel just now? Objection. Huh? You’re supposed to tell Mr. Montana that he can sit down now. I will represent Ben Wilson this evening. You are about to railroad yet another Indian kid out of this school district, and I am charged with making that as difficult as possible. And I have been instructed to appear before the school board each and every time in the future that an Indian student is charged with expulsion or suspension or anything. Even I know that this is not a legal proceeding. We’re here to see if we can help this student. I guess I can’t stop you from speaking today, Mr. Montana, but it is unfortunate that we have to muddy these proceedings with legal counsel. Mr. Niles? Do you want to begin? Sure. The facts are simple. I have here three signed statements. The first statement is signed by Fred Hendricks. Is he here tonight? I don’t believe so. Well, how am I supposed to ascertain the veracity of this statement? See what I mean? Mr. Montana, this is not a courtroom, as Jeff said.


Bryan Montana: Jim Niles:

Dave Thompson: Jim Niles:

Lori Burke: Jim Niles: Lori Burke:

Jim Niles:

Lori Burke: Jim Niles:

Helen Katz: Jim Niles:

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Well, it’s on the record, right? You’re recording it and there’s a person taking minutes. Well, this statement was made and signed before me. I signed the affidavit as the witness. Fred is a good student and I could tell he wasn’t lying. So what happened? The statement makes clear that Anthony “Beercan” Mark saw Fred in the hallway between classes. Beercan called him out by saying something about the football team. Fred, unfortunately, felt the need to defend himself and his teammates from this verbal assault and slander. He approached Beercan and spoke to him. Ben Wilson, Beercan’s friend, was nearby. As the discussion between Beercan and Fred became louder, Ben pushed Fred hard, knocking him over. What did he say about the football team? I think he called them losers or something. Hmmmf. What have any of the Indians done to help the football team, except Gil Ogema? They never even go to the games. Well, it is true that Fred was a bit sensitive to the remarks. The timing of the fight was bad, right after the big game. Anyway, after Ben pushed Fred, both Ben and Beercan began punching Fred. Fred, again unfortunately, began fighting back. Two teachers restrained them and stopped the fight before any serious damage could be done. Was anyone injured? Not seriously. Just minor scrapes and abrasions. Okay, the second affidavit was signed by Beercan Mark. It confirms what Fred stated. Ben started the fight by pushing Fred. Beercan joined in with punches. Under state law and our school’s policy, Beercan was the initial instigator of this incident. And Ben’s attack on Fred is assault, plain and simple. After the fight and the execution of these affidavits, Madison Bay police arrested Beercan and Ben. Why isn’t Anthony Mark here, too? Shouldn’t we be discussing his possible expulsion as well? Simple leniency. Beercan cooperated with the investigation by talking to me and signing the affidavit. He faces serious criminal charges, but at this time we are

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Steve Madison:

Bryan Montana: Steve Madison: Bryan Montana: Jefferson Madison: Steve Madison: Jefferson Madison: Lori Burke: Jim Niles:

Bryan Montana: Jim Niles: Bryan Montana:

Steve Madison: Bryan Montana:

Jim Niles:


Bryan Montana:

not seeking his expulsion. He was suspended for a week and served that time. We’ll reassess once the criminal case concludes. Seems pretty open and shut to me. We’ve seen a lot of these cases, very similar to this. If I may, I would have to opine that there seems to be a very serious problem with discipline of these Indian children. After all we’ve done, all the federal government has done, to grant Indian tribes their lands and privileges, their children still engage in this horrific behavior. Mr. Chairman, that’s enough editorializing. I’d like to ask a few questions of Mr. Niles. What, you mean like a cross-examination? No, not at all, I just want to clarify a few things. Sounds like a cross-examination to me. Jeff, should I not allow it? Harumph. It’s too late now, nephew of mine. But didn’t Mr. Niles say there was a third affidavit? Yes, I signed the third affidavit. I spoke with Ben Wilson and, while he didn’t cooperate by signing the affidavit, he confirmed what I already knew. That Beercan instigated the fight with Fred and Ben started the fight by throwing the first punch. So, you signed your own affidavit? Yes. I’m not a criminal defense attorney, but you better revisit your practices, Mr. Niles. Can I ask a few questions now? Sure. Go ahead. Don’t take too long. Oh, it won’t take long at all. Mr. Niles, is it your common practice to ask the students in trouble for fighting to sign affidavits admitting guilt? Well, they simply write down what happened and then they sign it. I never ask about guilt or innocence. That’s for the police and prosecutors to determine. Do you conduct your own separate investigation? Well, this is an investigation. I talk to all the concerned parties and get their story. It’s usually very simple. Do you ever ask any witnesses for their version?


Jim Niles:

Steve Madison:

Bryan Montana:

Jim Niles:

Bryan Montana: Jim Niles: Bryan Montana: Jim Niles:


Bryan Montana: Jim Niles: Bryan Montana: Jim Niles: Bryan Montana:

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Well, no, it’s too burdensome. Everyone’s got their own story. I’m a little worried that students who weren’t there will change facts or confabulate things. It’s high school, you know. I just keep it simple by asking the direct participants what happened. In this case, there were three people who all agreed upon what happened. Almost all cases are like that. It’s like that movie, Memento. The main character says that police officers prefer confessions because eyewitness reports are so unreliable. I think he said, “The police don’t solve crimes by sitting around and remembering stuff.” [laughter] Mr. Chairman, I don’t regard this case lightly. Remember that in a similar case, Mr. Niles suspended an Indian kid and had him arrested. His name is Johnny Raider and he committed suicide last night. Mr. Niles, do you know if the police conduct an investigation after you call them? Do they ask to talk to students? I usually don’t call them until after school is over and the students are gone, so I don’t know one way or the other if they conduct an investigation. Mr. Niles, do any of your students ever ask for an attorney or for their parents to be present? Why would they need to? I’m not the police. But do they? Well, yeah, students always ask for an attorney. It’s what they learn by watching cop shows or something. It’s a joke. What about their parents? Sometimes. Mostly, they would rather have their lawyer. I think I remember hearing Bob Eggerson down at the middle school say the younger ones are more likely to ask for their parents. Did either Ben or Beercan ask for a lawyer? Well, I don’t recall. Maybe. So, who writes the affidavits? These are typed and look almost professionally done. Well, I usually type them. But the text comes from what the students tell me. What also strikes me about these three affidavits is

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Jim Niles: Bryan Montana:


Jim Niles: Bryan Montana: Jim Niles:

Bryan Montana:

Jefferson Madison:

Steve Madison: Bryan Montana: Steve Madison: Bryan Montana:

Jim Niles: Bryan Montana: Jim Niles: Bryan Montana:

Jim Niles: Bryan Montana: Steve Madison: Jefferson Madison:

that they are identical. Did you have them typed after you interviewed all three? Well, no, I don’t remember. Ben told me that after you interviewed Fred he left. So he must have signed the affidavit before you interviewed Ben and Beercan. Maybe, but I got the story from Fred, and the other two confirmed it. So did you type it while Fred was in your office or did you have it prepared even before you met with Fred? Uh . . . . You don’t type do you? I don’t remember if I had it prepared before or not. I might have. And if so, the students confirmed what I suspected. Or maybe Fred confirmed what you wanted to hear and then you imposed that version of the facts on Ben and Beercan. That’s not necessarily what happened, Mr. Montana. You’re badgering the Vice-Principal and I think your questioning is over. Agreed. I apologize. I do have two more questions for Mr. Niles. I promise to behave. Make it quick. When you ask students to sign the affidavit you’ve prepared, do you threaten them with suspension or expulsion? Well, not really. It depends. Did you tell Beercan that he would be expelled and would not graduate if he didn’t sign the affidavit? Yes. One last question. Did you tell either Ben or Beercan that you were going to call the police and give them these affidavits? I don’t remember. Maybe. They must have known that I would. Thanks. Okay, I have a few statements from students that I’d like to present. Jeff? Well, once again we have to remind Mr. Montana that


Bryan Montana:

Jefferson Madison: Lori Burke: Bryan Montana:

Lori Burke: Jefferson Madison:


Jim Niles: Steve Madison: Jefferson Madison: Steve Madison:

Bryan Montana: Steve Madison: Bryan Montana:

Jefferson Madison: Bryan Montana:

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this isn’t a courtroom and this isn’t an adversarial proceeding. Ben Wilson, it would seem, should be able to say a few words to the school board, but that’s it. Are your statements written? Well, Ben will be making a statement, as will several other students, Niko Roberts, Tahsanchat George, Ruben Reyna, Charles Dixon, and Yong Lee. That’s highly irregular. We don’t have all night. I find it telling that Beercan Mark isn’t here. Beercan is a member of Johnny’s lodge and will be helping to maintain his fire for the next four days. And since the school board would not reschedule this meeting, he could not be present. Well, they’re not related, are they? I don’t see the problem. Steve, I recommend against turning this proceeding into a fiasco by letting Mr. Montana call the entire Lake Matchimanitou tribe. Well, Mr. Montana, were any of these students present at the fight? Yes, Tahsanchat George. But each of them has important and compelling stories to tell about the racially hostile educational environment at the high school, an environment caused by and exploited by the Vice-Principal. Outrageous! What a load . . . . Well, that’s easy. That goes way beyond the scope of this meeting. Deny it, Steven. Okay, denied. I have to let Ben speak because it’s his hearing, but the rest of the witnesses will have to sit this one out. Is that the view of the entire school board? Shall we have a vote? Anyone in favor of allowing more witnesses? No? Okay, then, that settles it. I urge you to reconsider. Basic notions of due process require that a person with an important liberty or property interest has the right to a fair hearing before he is deprived of the right. This is not such a hearing. This is not a courtroom. So be it. Before we begin, I’d like to make a few remarks.

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Jefferson Madison: Bryan Montana:

Ben Wilson: Jefferson Madison: Bryan Montana: Ben Wilson: Jefferson Madison: Ben Wilson:

Jefferson Madison: Bryan Montana: Ben Wilson:

Make it short. This is Ben Wilson’s time to speak, not yours. Okay then. Recall that a few moments ago, Jim Niles admitted that his pattern and practice when it comes to school fighting is to have the participants sign an affidavit, without the presence of legal counsel and without the presence of the students’ parents. That document is then given to the police and, based on that document, students are prosecuted. As far as we know, the only investigation conducted of these incidents is the interrogation by Mr. Niles of the students. I object to that characterization. Mr. Niles’ interviews are not interrogations. Thank you, Mr. Madison, for that reminder. But let’s leave that judgment to the school board as a whole after Ben’s statement. Ben? Thank you, Bryan. You know it’s illegal to prepare witnesses for trial by telling them what to say. I assure you . . . . These are my own words, Mr. Madison. The only person in this room making up stories is The Veep. Harumph. We’ll see. Here’s what happened and why I wouldn’t sign that affidavit. I didn’t start that fight and neither did Beercan. I think Beercan and I were talking about the football team. You have to remember that us Indians and the football team have a weird relationship. We like football just like any others, but none of us like to go to the games. Niko can tell you about his mom trying to get the school board to change the name of the sports teams from the Warriors to something less offensive. Wait a minute! What is this all about? Mr. Madison, please do not interrupt my client again! He has a right to speak. Like I said, Niko’s mom used to go to the football games and people would ask her what she was doing there. It was really hostile and it still is. So, when me and Beercan talk about the football team, we don’t


Lori Burke: Bryan Montana:

Lori Burke: Ben Wilson:

Steve Madison: Ben Wilson:

Jim Niles: Ben Wilson: Steve Madison:

Ben Wilson:

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have the same school spirit as the rest of you. We don’t always actively wish they would lose, but we don’t feel any pain when they do. Keep in mind that we would go to the games and root like the rest of you, but you have that dancing Indian down there and all the painted faces and fake Indian songs. We can’t go even if we want to. And don’t think that guys like Fred Hendricks don’t know that. He knows why we don’t go. And they give us crap for it all the time. These students don’t think it’s offensive to use Indian heads and face paint and all that crap that makes fun of Indians. And they give us all sorts of crap for it. I’m sorry to interrupt, but my son plays football and I never see anything offensive at the games. Ms. Burke, please let Ben speak. This fight occurred because of a great sense of hostility in the school. Ben is establishing that his feelings and the feelings of many other Indian students are injured by the use of this name and logo. Well, I don’t see it, I’m sorry. Well, that day, me and Beercan were talking about the football team and the use of the name “Warriors.” I’m not sure what Fred thought he heard when he passed by, but he must have been pretty angry. He called us “timber niggers” before we even knew he was there. Did anyone else hear him say that? Jim Niles says nothing like that happened. Everyone in the hallway must have heard it. He shouted it at us. He’s done it before. It’s his favorite racial epithet. His second favorite is just plain “nigger.” All the football players tell “nigger” jokes and that’s what he and his friends call Charles Dixon behind his back. They call Ruben Reina “Sandinista” to his face. I doubt that very, very much! I’m sure you do, Mr. Niles, but what you don’t know fits into the gym and the football field combined. Enough of this, Ben. Say your piece and sit down. And it better be about that fight, or else I’m going to shut this down. Okay. He called us “timber niggers” and then he

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Bryan Montana: Ben Wilson:

Bryan Montana: Ben Wilson:

came all into Beercan’s grill. He actually grabbed Beercan’s shirt and was screaming obscenities at him. I’m no hero but I could see that my friend was in big trouble. His eyes were all big. It looked like Fred was about to beat the crap out of Beercan, so I tried to get in between them. I told Fred to let him go. Fred turned his attention to me and he shoved me hard against the locker. I hit my head and saw stars. That’s when I took a swing at Fred. I shouldn’t have done that, I know, but I was scared and I was in pain. I didn’t know what else to do. At that point, Fred starting beating the hell out of me. All I remember at that point was covering up and hearing kids shout “Fight! Fight! Fight!” I’ve gone my whole life trying to avoid being a part of some stupid fight like in the movies and it took this ignorant football player to put me right in the middle of it. Beercan, who is a little bigger, was able to get Fred off me and then I think the teachers arrived. I don’t think Beercan ever threw a single punch or even shoved Fred at all. Fred hit me about twenty times in the ribs. They’re still sore. [At this point, Ben Wilson pulled his shirt up and revealed that his ribs were covered in black and blue bruises.] How many students do you think witnessed this fight? Geez, I don’t know. The hallway was crowded right then. It was between classes and people were moving all around. They cleared a nice circle for Fred to operate and began shouting at us to fight. I’d guess at least ten to fifteen people would have heard Fred call us “timber niggers” and a bunch more watched him beat me up. What happened in the Vice-Principal’s office? Exactly what the Veep said. He brought in Fred for interrogation and Fred came out a few minutes later and went home. Then he brought in Beercan and a few minutes later Beercan came out and sat down with me. Before I could talk with Beercan, the Veep brought me in. He told me that Fred and Beercan had signed the affidavit and that if I didn’t, he’d kick me out of school and I’d never graduate. He said he’d


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call the cops if I didn’t sign it. It was pretty intimidating. I mean, I knew lots of other Indian students got the same treatment, but I was a good student. I never expected to have it happen to me. It was almost comical how bad it was. I’ve heard about these things before, these affidavits, from some of my friends, but all the stories were true. Every one of them. And it was an atrocity. Bryan Montana: So the affidavit isn’t accurate? Jefferson Madison: Leading question . . . . Ben Wilson: Absolutely not. It happened the way I said and Tahsanchat can back me up. She was there. Bryan Montana: Thank you, Ben. That took courage. Mr. Chairman, I’d like to bring up Tahsanchat George next. She’s an eyewitness. Jefferson Madison: I don’t see the point. These people are just going to back each other up. It doesn’t prove anything. Bryan Montana: She prepared a signed statement in anticipation of this meeting without my participation. I have not seen this document at all and am willing to swear to that under oath. Steve Madison: Is Ben done then? We’re done here. Dave Thompson: Wait a minute. We have an eyewitness here. I’d like to hear what she says. Helen Katz: I would, too. Lori Burke: Me, too. I bet she’ll come up with some other crazy story. Steve Madison: Okay, then. Bring her up. Bryan Montana: Ms. George, can you introduce yourself for the record? Tahsanchat George: Tahsanchat George. I am a senior at Lake Matchimanitou high and a member of the Yurok Tribe in northern California. My mother is Lake Matchimanitou Band Ottawa. I am captain of the girls’ golf team and I have a four-point-oh GPA. Bryan Montana: So, what did you see that day? Tahsanchat George: I was a little ways down the hall from Ben and Anthony. I saw Fred Hendricks call them a racial epithet. I hate to say it, but it was “timber niggers.” I moved closer, like everyone else, and saw that Fred had grabbed Beercan’s shirt and was threatening him, bullying him. Ben shouted at Fred to stop and

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Bryan Montana: Tahsanchat George: Bryan Montana: Tahsanchat George:

Dave Thompson: Tahsanchat George:

Jim Niles:

Bryan Montana: Tahsanchat George:

Bryan Montana:

Jim Niles:

so Fred shoved Ben into the locker, hard. Ben took a swing at Fred, but I don’t know if he hit him. But then Fred jumped on Ben, began to punch him in the sides like a wild man. Beercan pulled Fred off of Ben and then it was over because the math teachers were there. It started and ended so fast. How many other people saw the fight? I’d say twenty or thirty. The hallway was packed. Did school administrators or the police ever question you about this incident? No. That’s the way it always happens. We all know it. An Indian kid and a white kid get into a fight. The Veep sends the Indian kid off to jail and the white kid gets nothing. What do you mean by that? Well, it seems like the police are called to the school once a month or so. Sometimes more, especially during football season. I think it has to do with testosterone. [laughter] Anyway, all my friends and I know that they’re almost always coming for some Indian kid. Usually, the kid didn’t even do anything. Most times, it was some white kid starting a fight or being a bully. It’s awful. You people should do something about it. Obviously, that’s just a point of view about the real problem of Indian student discipline, an answer coached by Mr. Montana. I wish I were that prescient, Mr. Niles. I assure you, Mr. Niles, nobody coached me. This is the truth. I wrote it all down last night after I heard Johnny committed suicide. Mr. Thompson, consider these facts. And these facts come from the school’s own reporting. Last year, the police arrested nine kids at the high school. Eight of those kids was a member of the Lake Matchimanitou Band or descendants. All of those kids spent some time in jail or juvenile detention, sometimes as much as a month. The one Caucasian student to be arrested was never charged and only spent a few minutes at the police station. Statistics can mislead. You, as a lawyer, know that.


Bryan Montana:


Jim Niles: Dave Thompson:

Jim Niles: Dave Thompson: Jim Niles:

Steve Madison:

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Consider then that in the eight instances where an Indian student was arrested, in six of those incidents, a fight broke out between an Indian and a white kid. In all of those instances, you coerced the students into signing an affidavit that the Indian kid started the fight. Because they did! Just like in this case? Mr. Niles, everyone in the room knows what happened now. Fred Hendricks started a fight by using a racial epithet and then jumping an Indian kid. The only eyewitness testimony that disputes this, as far as we know because you didn’t conduct an investigation, not even a cursory one, is the self-serving testimony of the kid that probably started the fight. And, like you always do, you believed the white kid over the Indian kid. That, Mr. Niles, is hypocrisy. That is racism. There’s no proof. Mr. Niles, do you ever conduct an investigation? Or do you just put the pieces together about these fights from the kids’ stories? I’m not a cop. I wasn’t trained to do CSI stuff. Did any teachers see anything? I told you! They confessed! They started this fight with poor Fred Hendricks! Why doesn’t anyone believe it!?!? That’s enough, Jim. Settle down. We’ll get to the bottom of this, but we might have to let Ben Wilson back into school for the time being. And I don’t think we need to hear from any more witnesses, Mr. Montana. We’ll schedule a proper hearing for a later date. I move that we table the question of whether to expel Ben Wilson and allow him to return to school pending an investigation into these matters. Any objections? If none, then we are adjourned.

Ben returned to school the next week. A sullen mood had descended upon the school. More fights broke out between Indian kids and white kids, but Jim Niles stopped calling the police. Suspensions were handed out evenly, with white kids and Indian kids spending equal time in detention. At Ben and Beercan’s arraignment, Bryan Montana introduced the tape

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and transcript of the school board hearing over the objections of the county prosecutor. He played snippets of the tape where Jim Niles described his interrogation techniques. The Madison Bay police officers who responded to Niles’ call that day admitted they conducted no independent investigation. Other than Fred Hendricks’ unverified statement that Jim Niles admitted drafting, no evidence suggested that Ben or Beercan started the fight. The judge had little choice but to dismiss the charges against Ben and Beercan. No school board hearing was called to restart Ben’s expulsion proceedings.

CHAPTER

4

Intergenerational Character of Indian Experiences in Education Niko Roberts on the Ice

M-22, Matchimanitou County, Fall 1990, 10 a.m. Parker Roberts turned her head to the left for just a moment and crossed the yellow line. Our Honda sideswiped an oncoming Explorer and knocked it into the ditch. We spun out, sliding off the road and over the snow bank, between scraggly trees and then onto the Grand Traverse Bay, which was coated in ice. We stayed there for four hours. Parker liked to drive fast, like her own grandmother, a traveling Powder Puff driver back in the thirties and forties. She didn’t fly past other drivers or routinely collect speeding tickets, but on the highway she would set the cruise about fifteen over the limit. She drove fast enough to make a cop think about pulling her over, but not fast enough to make the cop’s decision an easy one. She drove with enough latent talent to relax her passengers even as she pushed the envelope into legal recklessness. She was good enough to make us feel as though she drove defensively. She was smooth. The ice cracked underneath us. Not right away because the west bay had been frozen for several weeks, but it was March and over forty degrees for the second day in a row. The mist over the bay was impenetrable and there was about two inches of water on top of the ice. We slid and slid over the bay, pushing a wave of water ahead of us as we spun out. I remember clenching my body, afraid that if I moved while we slid that our horizontal inertia would fail and we would sink. I knew cars should not be riding on the ice. We did stop after a few seconds, leaving us in a blinding white room, our car surrounded by the curtain of fog. I couldn’t see the road, the shore, the 77

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trees, or even the sun’s outline through the glass in the sunroof. The trail left by the car instantly faded as the water lapped up against the tires. I looked all around, trying to remember the stories my father told me about the North Star, the Northern Lights, or which direction the sun rose, but I could not see any of those signs that morning through the mist rising out of the ice. I don’t remember my father’s face except through pictures now. Someone had to die in the second Gulf War and he was one of the unlucky Americans. My mother, an undergraduate student at Central Michigan, vigorously protested the war before Strickland’s call-up, mostly complaining about American imperialism and Iraqi civilian casualties. Though she did not express it in her letters to the local Members of Congress, she wrote in her diary that she feared being a war widow. She feared her son would be a half-orphan and that she would be a single mother. She would feel responsible for actions taken by her government in retaliation for her family’s loss. After Strickland accepted orders to travel to the war zone in Iraq, Parker dropped out of college and came home to Peshawbestown. Gramma raised me, her duty as a grandmother according to the old Indians, while Parker took a job at Matchimanitou Sands and then at Eagletown Market when a cashier position opened. She rented a small apartment across the street from a pizza place in Suttons Bay and bought a used Civic from her cousin. Parker hated American cars as much as she hated American wars. She explained her foreign car purchase to the local patriots on the basis that the Civic got better gas mileage. She worried about greenhouse gases, too, and the fact that the bay never really froze over anymore.1 But in February and March, the bay froze and the ice both saved and doomed us at the same time. They explained to me later that Parker probably hit her head on the steering wheel either at the time we hit the SUV or when we hit the ice. I remember her leaning backward in her seat, sleeping as peaceful as if she were at home in her bed, while we sat on the ice. She talked in her sleep. That day, she said Strickland’s name several times, pronouncing every syllable, every consonant, with care, as though lecturing him from her dreams. I closed my eyes to mimic her. I wanted to sleep, too. I thought we were already in heaven. I may have even nodded off—it is so easy for the young to drift off—but Parker moaned in agony from the depths of her trance and woke me. Parker loved to sleep. She worked the afternoon shift at Eagletown Market so she wouldn’t have to get out of bed until after ten or eleven. I woke early and snuck into her room to watch her sleep. After we left Mt. Pleasant to move back home, Parker slept more and more, going to bed earlier and waking later. I watched over her during that sad time because


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she was my mother and because she named me after the eagle (migizi). Gramma explained that I was supposed to watch over Parker, because that’s what eagle does.2 In the mornings, I would stay as quiet as I could for a long time and watch her eyes for signs she might wake. Sometimes, she woke with sudden intensity and I would run from the room, startled, while she laughed at my escape. We spent the most time together as a family in her bedroom while she slept. She worked during the days and I’d be sleeping when she came to pick me up from Gramma’s at night. From my side of the car, I tapped Parker’s shoulder, but she didn’t stir. I pushed the parka she wore until I felt her bony shoulder, but she still did not stir. I kept the seatbelt on and reached for the radio. I knew we rested on ice, a precarious place to be, so I moved slowly and deliberately, lest my sudden movements send us crashing to the bottom of the freezing bay. The car had stalled in the accident, but I thought the radio would still work. It did. The morning talk deejays had left for the day and the news was on. A couple of snowmobilers drowned in Long Lake a few weeks before and the police had called off the search for the bodies until the ice melted. They said it wouldn’t be long—a few more days maybe. “Mom, wake up,” I said. I heard sirens and cars approaching. I heard adults talking with urgency, sounding more worried than I liked to hear, and I listened for someone calling for the Jaws of Life, whatever that was. I imagined that the fire engines and ambulances that sometimes raced under our windows at home had stopped to help us, but I wondered how they would be able to drive out over the ice to collect our little car. I shut off the radio and rolled the window down (ever so gently) to hear them better. It was very cold on the ice and I at once felt chills. “Mom, wake up,” I said again. I pushed her as hard as I felt the ice could stand. “Listen.” Parker did not move. I listened to the authorities deal with the Explorer and its occupant, who suffered a strained neck and concussion caused by his stubborn refusal to buckle his seat belt. I would find out later that there was little injury to his vehicle, just a large scrape of red paint down the side and the alignment problems caused by going into the ditch. I learned that the police at first had treated the accident as routine. I remember thinking the impossible— that the police would forget about us. “Parker,” I said, repeating a mantra I heard from Gramma, “you sleep too much.” It was too cold so I rolled the window back up and to wait for rescue. I turned the radio back on. I don’t listen to the radio anymore. It reminds me of that day, how

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people can be so close but still too far. Sound creates the illusion of proximity. It lies. I remembered something then. I reached over and gently pushed the orange triangle button on the dash, the button Parker told me signified emergency. I relaxed, knowing that the emergency lights would assure our rescue. I began to worry about how much it would cost to fix the car once they towed it off the ice—if they could tow it off the ice. West Quadrangle, Ann Arbor, Fall 2000 Lucas Llewellyn owned a silver flask and he had filled it with some sort of brown ruin, cheap swill he acquired from a senior. The newbie freshmen I called my friends of the moment all sat around him like acolytes because he had the booze, the good looks, and the connections. “My dad argued twenty-three times before the Supreme Court,” Lucas noted with casual assurance. Of course, being part of the cauldron of competition,3 someone from our group had to ask how many he won. “Seventeen.” It was those few days before the first classes of our freshman year started, where we all felt each other out to see where the friendships would form. The bearded, swarthy element wearing tie-dyed, armpit-stained shirts swarmed around the young women showing off unshaved legs. The African-American students found each other with ease, as did the Latino/a and Asian students. The white students, the vast majority of the incoming class, peppered with a few students of color here and there, flooded the school, looking for connections. I found eight or so white students right away because they lived on my hallway. I didn’t see any American Indian students yet. I knew my cousin Gil Ogema, the famous University football player, lived off campus and I heard of a few other Indians living at MoJo or Bursley. I figured I’d see more of my relatives at our first Native American Students Association meeting, whenever that was. Lucas Llewellyn was not my cousin and never would be. He was my roommate, but our connections ended there. Several generations of his family had attended the school. The core of the Llewellyn School of Architectural Science’s endowment came from his great-grandfather’s fortune. Lucas himself could have been classified a legacy and admitted under that form of affirmative action, but he was an outstanding high school student who could have chosen any school in the country, or the world. He attended the very best private schools in suburban Detroit, traveled the world three times, and earned every award his high school granted. And his mother was brown-skinned from Tobago, so the university could also classify him as a minority student, an African-American.


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Lucas bragged about receiving a check from the university financial aid office for a scholarship. “I’m from old money,” he said, laughing at what he considered the stupidity of affirmative action. “And I get a scholarship.” He would tell his listeners that he returned the check, of course, but I knew he spent it on a trip to the Mediterranean. We spent a great deal of time together those first few days. He had business to conduct and I wanted to get a feel for my intimate surroundings. I wanted to know more about the curly-haired rich boy from everywhere. Lucas’s business had been handed to him by his uncle, a venture capitalist with more money than he knew what to do with. It was a municipal maintenance supply company of sorts. Lucas was a middleman, taking orders from local units of government that needed parts for their snowplows, school buses, garbage trucks, and other pieces of heavy machinery. Lucas, of course, did not manufacture these parts. The genius of his business was that he had little or no overhead. He owned a fax machine and a nice computer setup, a gift from his uncle. All Lucas did (and I admit it was no small thing) was take the orders to parts suppliers and bid them out. His angle was that local units of government had to bid everything under their rules for contracting. To reduce their transaction costs, some municipalities decided to bid out the bidding process itself. That’s where Lucas stepped in—and received hefty sums for work that he could do over the phone or on the internet, leaving plenty of time for studying in his boring, real life. We didn’t get along. “How did you get in?” Lucas asked me from the outset. “What do you mean?” I had been admitted early, a product of decent grades and a good test score. “I just want to know if you’re one of those affirmative action babies,” he said, matter of fact. “That way I’ll know whether to study with you or not. How am I supposed to make sure you’re smart?” It was over for us from there. I never told him my grades or test scores or any of my accomplishments. I wanted him to assume the worst about me. It would be easier to hate him. We had friction all year. Lucas swore he was going to transfer to another room at the semester break but he never did. I was stubborn enough not to apply for a new room myself and we were stuck together for our second semester as well. Meanwhile, Lucas made friends with all the Brother Rice, Country Day, and Cranbrook kids. He never joined a fraternity because he decided it was better to float from frat to frat, welcomed everywhere he wanted to be. He had women, he had money, and he had good looks—thanks to his mom’s side. He was the most arrogant, elitist sonofabitch I ever met and he intimidated the hell out of me. Lucas’s friends made constant reference to my existence as an

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affirmative action baby, a beneficiary of my American Indian blood quantum. They talked about the rich and famous of Detroit, New York, and Chicago as though they were friends, as if there was nothing special about their relationships. They probably got the SAT questions about the regatta correct.4 West Grand Traverse Bay, Matchimanitou County, 11 a.m. I dozed then, I think. The excitement of the car wreck had worn me down and fatigue hit me, as it does with small children, without warning. I took comfort in the presence of the authorities. I took comfort that Parker slept with apparent comfort, like she did at home. The deejay woke me announcing the eleven o’clock trivia question. I listened with care, hoping the question would be about the Lord of the Rings or Star Wars, Parker’s favorite collections of films. I knew some of those answers about those movies, but instead the deejay asked her listeners about a celebrity’s birthday. I tired of the subject and shut the radio off. It took me another second to realize where we were, that we were in a car, sitting on a delicate, thin layer of ice, surrounded by white. I rolled the window down and listened. I heard adults talking but they seemed to be saying their good-byes to each other. I wanted to hear about their progress in reaching our car, but I didn’t hear anything. “Hello?” I said. As in a dream, nothing would come out of my lungs but a thin whisper of air. I tried again, but still the same. I took a deep breath and felt an intense pressure on my chest. I could not take in the air I needed to be heard. I prodded my chest and felt actual pain that time. I began crying, too tired to care anymore. “Parker,” I said, realizing that I could barely whisper. “Parker. Mom. Wake up.” I sat there for a long time trying to think about what to do. Men in movies acted swiftly, without caution, and with extraordinary wisdom and knowledge. I was little and didn’t even know where in the world the Army took my dad. I thought that maybe the operator’s manual would help. Parker carefully examined it when she added anti-freeze to the engine block. I reached for the glove compartment, but my arms were too short. I let myself out of the seat belt as slow as I could. Parker said that the seat belt would save my life. She had seen the horrible consequences first hand when kids didn’t wear their seat belt. I fought through her warnings and peeked over to make sure she didn’t see me cheat. I felt a twinge in my chest as I helped myself to the floor of the car, but it didn’t seem serious. Parker traveled to Barcelona and Amsterdam in college the year before she had me. She loved French fries and relied upon them to survive without much money in Europe, but grew to resent the fact that European fast


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food joints charged her for ketchup packets. She felt condiments should be free, of course. To ensure that she never had that problem again, she decided to start saving ketchup packets from fast food franchises in her glove compartment. The packets built up in large quantity and she stopped collecting them, thinking she had enough for her next trip, but she left them in the glove compartment. I suspect she kept them in the car as a reminder of Old Europe and the packets would compel her to go back some day. I rifled through the ketchup, a tire gauge, and scratched sunglasses to get to the operator’s manual. When I found it, I leaned back onto the seat and replaced the seat belt. I could read, but not the grownup books. Parker read to me from Judy Blume, Dr. Seuss, and Emma Goldman, so I thought I could read anything. The car manual had many pictures but none of them showed how to wave down the police. There were no pictures of police anywhere. The only useful information involved the orange triangle button, but I already knew what that did. I leaned back and tried to think through the problem. Parker sleeping, without any sound at all. Police a few feet away but leaving. I couldn’t yell to get their attention. Trapped on ice. Cold air outside. I could feel the cold in the car then. The engine stopped and the heat stopped, too. I flicked the heat switch but nothing happened. At least the radio worked. The radio. I got excited and turned it on high. I rolled the window down as quickly as I could. My chest hurt more than ever before and I had to stop and rest a moment. I thought Parker would wake up when I turned the radio up so loud, but she wouldn’t. I couldn’t believe it. How many times had I sat with Parker complaining about the radio being up too high while waiting for Gramma to walk out of Hansen’s with ice cream and coffee cake? I couldn’t understand. I croaked out her name. “Parker,” I said, but my chest constricted and nothing happened. I began to think that we would not be discovered and that we would have to leave the car and travel across the ice and save ourselves. The authorities had failed. Maybe they were afraid of falling through. Or maybe they didn’t care. Or maybe they didn’t know. I developed a plan—my first plan to save a life—in those few seconds before the radio station break ended and started blasting an advertisement for the Victories Casino in Petoskey, that ad with the singers screaming out “Victories!” with several seconds of sustain. The ambulance had taken away the driver of the SUV. The fire truck from Peshawbestown had driven off when the police determined that the Jaws of Life were not needed and no gasoline had been spilled. Most of the

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tribal police had returned to their patrols. Only two officers remained, waiting for the tow truck that would take the damaged SUV to a body shop. They probably stood on the roadside drinking coffee and talking about what they would do to the person in the red car who had violated the law by leaving the scene of the accident. To this day, no one has explained to me how the collected group of police and rescue personnel, as well as a few gawkers, had missed the tire tracks that marked our sudden entrance onto the bay. Parker complained about the police in general a great deal, but always defended the tribal officers. Digging through her school materials, I read about her police practices class, about how the criminal justice professor explained that cops ate too many donuts and got fat and lazy. She drew little pictures in her notebooks of obese police officers surrounding a suspect, guts uniting in one large jailhouse wall, saying that the suspect was free to leave at any time, but that it would be better for everyone involved if he explained how the marijuana got on the bus. I learned to be suspicious of police officers from Parker’s outbursts while watching cop shows. After Strickland left, Parker rarely expressed much emotion except when ridiculing the writers of crime dramas and cop-based reality shows for brainwashing the public into trusting the police. I enjoyed her animation and joined in with her, glad to see her move, to live. But with tribal officers, Parker said nothing bad. She felt they did a good job. I don’t know how the local police were better than the cops on TV, but I took her word for it. “Parker,” I said. Maybe she couldn’t hear me over the radio. I turned it back down. “Wake up, mom,” I said again. “The police are coming.” I hoped the reference to the police would stir her. She said nothing but I could see the faintest outline of her breath. The cold had invaded and I shuddered, suddenly awake with chills. The two officers had heard the radio. The sound shot through the moist, cold air, but it was also devious. “Who’s there?” I heard from the male officer on the road. He spoke with authority, the kind of authority that pre-school teachers and day care attendants would never use with a child my age. He spoke with the kind of authority that made me quiet, lest the police bust down the door and arrest me and my mom. I stiffened and listened. The other officer, a woman, spoke to her partner about hearing a radio and that there might be another vehicle in the fog. She spoke up and said loudly, “Is there anyone there?” It sounded more like a teacher and I felt compelled to answer, but nothing came from my mouth but a weak croak.


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The officers must have conferred about the sound of the radio and decided to call it in, but Parker did not react to the very loud noise of the deejay cackling or to my warnings about the police. She remained still. Central Campus Recreational Building, Ann Arbor, Spring 2001 I stood in my shorts and tee shirt with a couple of my friends, Lester, Victor, and Hero, waiting for the next pick-up basketball game. The gym is huge, with seven or eight courts, all filled with players. Some of them are exceptional, good enough to play at Division II or Division III schools, but they would rather receive an education at our university. Lucas was one of the players on the court where we stood. He was short and not a real good player, but he had surrounded himself with taller, quicker, and more skilled players. I recognized a couple of them from West Quad but I didn’t know their names. I thought he put that team together to elevate himself, kind of like his business. What did he really add to the equation? I asked him once, prompting him to stomp out of the dorm room yelling about my ignorance. My friends and I stood and watched their five-on-five, full-court pick-up game, waiting for the next. Lucas’s team consisted of four Caucasian players and himself, while the other team was all Black. I wondered how that match-up came about. Charlie, a guy from Kansas who almost went to Haskell, said, “These guys look good. Musta played in high school.” Lester, who was an Ojibwe guy from Mt. Pleasant, disagreed. “No, these guys look good on paper. Their whole game is paper. One good tug and they rip apart.” “We’d tear ’em up at the tribal gym where I come from in Lake Matchimanitou,” I said, hoping Lucas would notice my trash talk. “Man, we play every single day at lunch, after work, after school. They’re crazy ballers, shooters, passers. This high school game is okay, but they don’t have the kind of fun we have up at home.” Lucas’s team won and two of his white male friends from West Quad, both looking like good basketball players, approached our group with cheesy smiles on their faces. “You losers got next,” Lucas asked. With his body language, he seemed to be taking more credit for the team’s success than he deserved, but his friends didn’t seem to care. “Hope you’re more of a team than the brothers over there,” he added, waving vaguely at the other team as they walked away. “Team over individual performance, I always say.” “This the dude you’ve been talking about?” Hero asked, whispering to me. “What an asshole.” I nodded. “Yeah, we got next, Lukie-baby.” He hated that. I knew I was in for a bad day if I used that nickname on him, but I couldn’t resist.

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One of Lucas’s friends, Will, piped up. “Hey, I’ve seen you guys around the dorm. You live down the hall from us,” he said, pointing at me. Tim, the other guy, said, “You guys go to school here?” “Or do you work here?” Will said. They all had a good laugh over that one. “We’re on scholarship,” Hero said, thinking he was being funny. We all were, to some extent. We all had the benefit of Michigan’s Indian tuition waiver5 and a little scholarship money from our respective tribes. Tim said, “Sure as shit wouldn’t study with you guys. How am I supposed to know if you’re smart enough?” I had heard this all before. The three boys laughed, walked a short distance away, and commenced their warm-up exercises. They start talking to each other loud enough for us to hear. Will said, “You know, a good friend of mine from Brother Rice applied to Michigan. He didn’t get in. He was a pretty good student, too.” Lucas agreed. “You know, that’s the hidden disadvantage of affirmative action, I think. There’re only so many spaces and the administration has to meet that quota, you know. Even though they say they don’t use quotas anymore, I’m not buying it.” “I hate quotas, man,” Tim said. “What about merit? It’s hard to be a white man in this day and age.” “Hard work doesn’t mean anything to minorities,” Will observed. “They get away with everything. Minorities get in just by being born and people like us are lucky if we get in with a perfect score on the SAT.” We could hear them just fine. My friends stared at Lucas and his friends, extraordinarily angry. I could see a fight brewing, so I gave my speech. I had been rehearsing it. “One, either Brother Rice must be a lousy school or your friend probably is dumb as a rock considering his family could afford to pay for an elite suburban Detroit private school and he still couldn’t be admitted with all those advantages. Two, the affirmative action wars are over and you sad suckers won with Prop. 2. Three, there was neither a quota, nor is there any legitimate objective indicator of merit, except in your tiny little minds. Four, minorities never get away with a damn thing, the evidence being that both my uncles are in jail for crimes they probably did not commit. Five, there is no way in hell you flat-footed, no-jump chumukmon6 can play on my team with my boys so go find yourselves another court, kiddies.” I could see Lucas wanted to fight us, but he saw the anger in my eyes and that we would pair off. I’d knock his block off. His friends looked at my friends and we sized each other up for a good long minute. I’d like to say that Lucas and his friends backed off and we parted, but the reality was that


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I turned my back and walked away, my friends trailing. As we left, I heard one of Lucas’s friends ask, “What’s a timber nigger?” Giggling followed. Did we win that fight? West Grand Traverse Bay, Matchimanitou County, Noon The ice first began cracking at noon. I heard a noise from the front of the car that reminded me of my Uncle Frank popping ice cubes out of the freezer for his Sunday football scotch. It did not concern me until I heard the female officer shout that she heard the ice crack and they had better hurry. The female officer, whose name was Lola Ilaria, talked to me from the shore for ten or fifteen minutes. She couldn’t see me or even tell my age. She asked me all sorts of questions that I tried to answer, but my lungs kept me from talking. She asked me my name. She asked me if I had a cell phone they could call. She asked me if we had accidentally collided with a Ford Explorer. She asked me if I was injured. She asked me so many questions that I could not answer and I became exhausted and frustrated in my efforts to talk. Eventually, Lola asked me to honk the horn if I understood her. I recalled enjoying the sound of a car horn very much until Parker rebuked me sharply several weeks earlier for using it at inopportune moments. She explained that a car horn had the same importance as seat belts and they could save lives. However, unlike seat belts, car horns were not to be used except under dire circumstances. I looked at Parker as I thought about the request to sound the horn, considered Parker’s distrust of the police and her warnings about using the horn, and decided I wanted to honk the horn anyway. And besides, maybe she would wake up, the lazy bum. Parker did not stir even as I held my hand on the horn for a long, long time. I began to cry and cry and cry and cry. I wept for a long time and refused to answer the calls of the police, even the mean male officer who tried to use his authority to scare me into submission. I cried until I shook. I cried until my eyes and nose felt as though a very angry person had rubbed them with sandpaper and acid. I cried until I could cry no more. I cried until I felt the car jerk a few inches forward with a sudden movement and I heard water begin to trickle into a sink somewhere. I stopped crying when I heard the ominous sound of Uncle Frank’s ice cubes clink in his scotch glass. I heard more and more activity on the shore, but the mist continued to keep us hidden from them. They asked me to honk the horn a few more times so they could triangulate the distance and direction, but the mist tricked them again and again. I could not understand exactly what they

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were trying to do, but I took comfort in the fact that they were finally trying. I realized I felt a terrible hunger and that I would miss lunch with Gramma. She had asked us over for Spanish rice and fry bread over two hours ago. The hunger, the crying, and the attempts to talk had exhausted me again. I dozed. West Quadrangle Mail Room, Ann Arbor, Last Day of Exams, December 2003, Noon Lucas dropped by to pick up a package from his uncle, the venture capitalist. I had been working in the front desk of West Quad for spending money for three semesters. The money wasn’t good but it was a good place to study when it was quiet. One of my tasks was to work the mail room, putting everyone’s mail in their mail slot and cataloging packages that wouldn’t fit. Lucas had moved out of the dorm long ago, but retained a room on the top floor of the dorm, an area called Cambridge House. Mostly graduate students lived up there. They were bigger, nicer rooms. I knew Lucas was playing the system by living off campus off the books, but holding an address at the dorm. I knew he sometimes went up there to get away from it all and I envied that. We all needed spaces for that. I also knew that he used his Cambridge House address as his official business address. I knew this, of course, because I handled all his mail. I guess I could have ratted him out to the dorm police or whoever, but I never did. We never had much contact after that first year in college, but he always stopped to talk to me when he saw me. He tended to talk about how well his business was doing, what spectacular vacations he was planning, and money in general. He also complained about affirmative action to me again and again, like I was the poster child, his whipping boy. Since I worked in the front desk, I often was a captive audience. I tried not to respond to his commentaries, but it was hard not to get angry. I knew that he enjoyed our engagements. The last time I had seen Lucas in person was about a month or so earlier. I had just turned in my application for admission to the university’s law school, an elite law school or, as I had heard, one of the twenty-five schools in the top ten. I hoped to get in because I could use my tuition waiver to pay for the exorbitant costs of the school. If I didn’t get in, I’d be looking at going out of state to another expensive school or to the other state-funded law school in Michigan without the elite credentials. It was okay, but that school didn’t have anything like the American Indian community that my current university had. I wanted to stay near what I knew. Lucas had laughed. “You’ll never get in,” he said, matter of fact. “And if you do, it’ll be because of quotas or a preference and you’ll probably flunk out.”


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I really did not enjoy Lucas’s visits. The month or so had passed very slowly. I applied to several other law schools, often based on whether their application fee was less than twenty-five dollars. I didn’t have much money with which to apply. I never thought about asking for application fee waivers. I tried to focus on school, but I worried about my uncertain future. I thought a lot about my mother, Parker, and her struggles in college. She never got a chance to go to law school or graduate school. Lucas wanted to know when I would be done with the packages. I had seen Lucas’s name on a couple of packages, but I pretended ignorance. “I’ll get it done when I get it done,” I said. “Be patient, Lucas.” “What do you do back there anyway?” He peered into my small room, looking for evidence that I was lying about his package. “This is the biggest deal I’ve ever bid and I want to know if I got it. For some reason, they’re sending it via snail mail. I’ll know I won the bid if the package is large, or that I lost the bid if it’s just an envelope.” I shrugged. “Take a look. There are just piles and piles of mail. I’ll get to it when I get to it. Come back at two or so.” “Damn right I will,” Lucas said as if I were some sort of pathetic servant. He walked away. I knew that Lucas’s uncle expected him to make the business very profitable, putting a lot of pressure on the kid, especially after 9/11. He was only twenty-one after all and his business was starting to fail with the downturn in the economy. He even had begun to lose his hair, although perhaps that was genetic. He had changed in three years. I wanted to feel bad for him. But at the same time, I knew none of my relatives would hand me an undeserved money-making scheme and guarantee me a safety net of inherited wealth. West Grand Traverse Bay, Matchimanitou County, 1 p.m. In my dream, Parker tossed a Frisbee to me and I caught it easily, my bare feet cradled by the sand at the public beach in Suttons Bay. I was about six feet tall in my dream, all grown and smiling. Parker took off running toward the water and I led her with a perfect flick of the wrist and she caught the disc as she dove into the waves of the bay. I laughed as she stood there, drenched. I realized that she hadn’t aged at all, that she would forever be twenty-five. We all would. Strickland walked over to the edge of the water and helped her dry off with a large beach towel. The water in the bay would always be cold, even in the warm sun of summer. Strickland kissed her in the way he always did, his hands buried in her black hair. I watched them and envied them. “Hey, kid!” the male officer roared. “Honk the horn again!” The order shocked me into clenching my body. My chest hurt and I

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forgot why. I looked up through the sunroof and I could see the blurry outline of the sun through the fog. I imagined what the world would be like without ice. I rubbed my eyes and looked at Parker. She had not moved. With the window down, the car had become freezing cold and I could see my own breath before me. I reached over, surprised at how difficult and painful moving had become, and touched the horn. A short squeak followed. “Over there!” the male officer shouted. He seemed further away than before. I looked at Parker. I could see her breath, but she appeared to have no life in her. I hadn’t realized it before, but I could hear a bathtub filling with water. I looked out my window and realized that we had fallen further into the bay. The whole front end of the car up to the grill was level with the surface of the ice. The sun seemed to warm my arm. Perhaps the mist would burn off. The water covering the ice reflected the emergency lights back to me. I hoped the Civic could navigate the water like a submarine, that all I would have to do was roll up the windows if we sank and wait for rescue, safe in our little red car. I clenched my fingers into a fist to test my strength. They were cold and numb, but I calculated that I had enough energy left to roll the window up. It took me so much time. I listened to the efforts of our rescuers fade as I forced the window up. I could still hear them work toward us after I closed the window, but they seemed far away, their exertion dulled by distance and glass. “Wake up, mother,” I said. “Please.” Parker would not move. She was stubborn and would not move even when I would shake her in the morning to let her know I was hungry, that I wanted oatmeal with raisins and brown sugar and not that horrible granola cereal. I had let her sleep long enough. I reached over and grabbed her parka with all my remaining strength. I shook her as hard as I could. She was heavy as a bear and I had no energy left to move her, but I did everything I could to wake her. I held her nose and her mouth opened to breathe in. I pinched her cheeks. I pulled her hair. At that point, I saw that Parker had been bleeding. Just a little, just a thin line out of her right ear, but I knew that couldn’t be good. My chest hurt me then, more than I could bear. I slid off Parker and back to my own seat. “Niko,” Strickland said the evening before he left us, “be nice to your mom.” Wasn’t I always nice? What was he trying to say?


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“Pick up your dirty clothes and your toys when she asks,” Strickland said. He sat down on the couch and pulled me to his lap. “You’re getting big. Big enough to help out around the house.” “Maybe,” I said, dubious. I wasn’t that big. I remember hearing Parker make dinner in the kitchen. She made lasagne for Strickland that night. It was the only real meal she knew how to make but she still struggled with it. She cursed and spilled and burned ingredients that night, but it was the best lasagne I’ve ever eaten. And it was Strickland’s favorite dish. He could have cooked it better, but it tasted so good because Parker cooked it and we three ate it together. Parker made a huge casserole plate full of lasagne, enough for ten Indians, but we ate it all. We never wanted that dinner to end. Strickland left at four o’clock in the morning. Parker made me get out of bed to kiss Strickland good-bye. He told me to be good. I held my hands to my mouth and breathed warm air into them. It didn’t make a difference. I remembered Strickland joking that we should all stop breathing until the car warmed up or else the windows would fog up. We would laugh and try to hold our breaths. Parker could always hold her breath the longest, but the windows would still fog up. I looked up at the sun and it seemed much brighter. I realized that my breathing had fogged up the windows. I rolled down my window a little to look out and I could see that the sun had finally burned most of the mist away. I could see the shore and, forty yards away, two women wearing bright yellow approaching the car. I waved, but they weren’t looking at me. I could still hear the bathtub filling but I ignored it until the floor of the car became wet with water from the bay. It smelled like the beach. I knew it was time to move, but I didn’t know what to do. I reached over and tried to shake Parker. “Get up!” I ordered her. “You’ll be late for work, dummy!” I pulled her hair again, much harder that time, and she screamed. She screamed so loud I thought my head would explode. “Stop that, boy!” Parker said, angrier than I had ever seen her. “Goddammit! That hurts like fucking hell!” I fell back into my seat, my chest heaving and crying out in pain. I began to cry. Parker leaned over to me and pointed her finger at me. She was no longer angry but would lecture me. “Don’t pull my hair,” she said, her voice soft and wavering. “My head hurts.” Her eyes rolled back into her head and her head drooped. She used her hands to hold her neck steady. Her skin went gray. “Where are we?” She seemed breathless. “In the bay,” I said, making no sound above a whisper. Parker blinked and looked around. She saw the fogged up windshield

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and said, “You’ve been breathing too much, Niko.” She looked at me and smiled. Then the front of the Civic collapsed completely into the bay. Parker screamed again. I loved that sound and hated it. It meant she was awake and could save me. It also meant she was terrified that we might die. The water moved inexorably up the hood. She must have grasped our predicament right away and she reached for the sunroof controls. With an aching slowness, the sunroof receded. “Go up there, boy,” Parker said without fear, as though she had not just screamed to wake the dead, as though she had not lain silent in a concussive coma for the last four hours. She hoisted me up. I could hear the rescue people outside, struggling to reach us, the ice cracking underneath them as the Civic sank. The water had reached the level of the seat cushions before the sunroof had opened enough for me to fit through. I squeezed my way through, more than once bumping my cracked ribs and sternum, forcing me to make a soundless cry in agony. I pushed my butt through the tiny opening and sat on the drooping roof. By then, the sun shone with indigenous brilliance over the bay and I could see both the Matchimanitou shore and Old Mission Peninsula. The two rescue people, Lola Ilaria one of them, shouted at me to Move! Move! Move! Move! and I stood. I looked down and saw that the water had already reached my mother’s waist, that the sunroof would open no further, that she could not break through the strong glass in time to escape, that she would be sunk with the car and drown in the icy bay. I took a running leap like the cartoon coyote, hoping that by reducing the weight on the car, it would somehow bob back to the surface and allow these professionals to save my mother. I landed right in the arms of the two women in yellow. I turned back to look and I saw my mother look me in the eyes and smile before she sank with our car into the water. West Quadrangle Mail Room, Ann Arbor, 2 p.m. I finished the mail well ahead of the schedule I set for myself. Lucas had received his large package from some town planner in western Massachusetts—two of them actually. And I had received mail from the university’s law school. It was a hefty envelope. I had reason to believe I had been accepted for the same reason a large package meant that Lucas had won his bid. A rejection letter would come in a regular envelope. I ate my lunch and waited for Lucas to arrive with his righteous indignation. I decided to open my envelope right in front of him. I wanted him to savor my moment. It would be the only time that I would feel comfortable around this kid. It was a small, petty thing, but I would savor it. It was all I had.

CHAPTER

5

Indian Academic Fraud

The Terrible Tribe

Twelve white male students and an older white male drank and sang late at night, consumed by their drunkenness. Their faces were covered in war paint, styled like caricatured and generic Native American warrior designs. Many of the men wore eagle-feather headdresses, buckskin leather jerseys and pants, and beaded moccasins, all of which once belonged to an Indian person, perhaps long dead, from somewhere in Indian Country. Some of these white men carried peace pipes, small drums, or tomahawks; some of which were real while others were fake plastic and made in Taiwan. Other white men beat upon a large drum and sing in caricatured Native American musical styles as in a racist 1940s cartoon or at an Atlanta or Cleveland baseball game. The room was small, but looked larger, decorated with modern Native American paintings, old baskets, photographs of old Indian chiefs, and death masks. These, too, were real, made by Indians from all over. Near the ceilings, scattered all over the walls, are framed black-and-white photographs of previous members of this club. Included with nameplates underneath were current university president Al Killingsworth, 1920s-era Supreme Court Justice Joshua Frieder, and famous 1930s-era publisher Abe Markinson. Underneath the photos were small plaques with the pseudonyms of some of these the members, such as Chief Buffalo Butt, Squaw Master, Chief Hollow Leg, and Me Northern Elk.1 Gil Ogema, whose grandmother was Emma Roberts’ sister, sat in a living room in front of a huge television playing video game football with three 93

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other guys, all large, well-built white men who were football players on the university varsity. These large men yelled and screamed at the TV, enjoying their game, and sometimes pushed and shoved each other forcefully in the heat and amusement of their mock battles. Pizza boxes, scattered potato chips, and empty beer bottles littered the room. A fourth man, sitting on the couch but not playing the game, was Lincoln Grail, tall, skinny, and nerdy. He was reading the Wall Street Journal and starting to fall asleep. Two of the four men playing the game scored a touchdown and celebrated, yelling and crashing into Lincoln, waking him. “Goddamit, you stupid fools!” he shouted at them. Lincoln threw his paper down and pushed some pizza boxes onto the floor. All four players immediately shut up and looked at Lincoln with apologies at the tips of their tongues, deferring to the smaller man. “Sorry, dude,” said one of them. “We’re just having a good time.” “You freak. Just because you win some genetic lottery and get to play football and go to college for free.” Lincoln cleaned himself off, continuing to mutter, and left the room with his newspaper. “What’s up with that dude, Ogema?” one of the football players asked Gil. “Don’t worry about him,” Gil answered. “Let’s play. We still got a three-touchdown lead on your sorry butts.” “This is so cool, you got the new NFL game six weeks before it came out. Who gave it to you?” “Lincoln. He’s in the B-School,” Gil said. “They’re always trying to get us to sign up with some agent. They give us stuff sometimes. Coaches say it’s okay to take it, as long as we don’t sign anything. If I go pro, I’ll sign with Lincoln. I can trust him.” “You going pro, Ogema?” “Not this year. I still gotta graduate. My family would kill me if I dropped out.” The four men played another quarter of video game football without speaking more than guttural English until one of them announced that he needed a bathroom break. While he was gone, another of the men asked Gil, “So what’s The Terrible Tribe like, dude?” “Can’t talk about it.” “We won’t say anything. Do they do real Indian stuff up there? I mean, are you in charge because you’re Indian and everything? What are you exactly?” “Lake Matchimanitou Band.” “What’s that? Apache? Sioux? Cherokee?” The football player who asked that question had taken an American Studies class on the recommendation


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of a student manager because of its reputation for being an easy class. It wasn’t true and the player had dropped out, but not before learning the names of several Indian tribes. “Ottawa and Chippewa,” Gil said, not wanting to talk about it. “I’m Ottawa.” “What the hell is Ottawa? Isn’t that the capital of Ontario or something?” “Did the Sioux kick the Ottawas’ asses?” another player asked. “That’s what I want to know. At least there’s the Fighting Sioux. I never heard of no Fighting Ottawas.” “Is that what Ogema is?” the player who took the American Studies class. “Some Ottawa name? A famous war chief or something? A cook? A barber?” “Just shut up and play the game, you freaks.” Niko Roberts was in the middle of the winter semester as a second-year student at the university. He had decided to attend the same university several of his relatives had over the last hundred years, including his cousin Gil, who was a star football player. In his fourth year as a university student, Gil had told Niko that he would look out for him if he went to the same school. They were not particularly close growing up, but Niko trusted Gil, as he tended to trust people from his own community, especially in foreign settings like Ann Arbor, Michigan. Walking at night on the sidewalk in a darker, more residential neighborhood than the university campus areas, Niko saw two men shaded from the light approach from the opposite direction, talking in loud, aggressive tones. “Did you see that game against State? Reingold was so on. He threw four TDs, two of them to Ogema. No picks.” “He’s going pro this year. No doubt.” “Did you hear about the protests by those Indian AIM guys at the game?” “What? The Indian mascots thing again?” “What a joke. Those Indians have no sense of humor.” “Well, it’s a real problem.” “What?” “Yeah. Every time they’re out there protesting, doing their dances, they could bring rain.” The men laughed hard just as Niko passed them. Niko not-soaccidentally bumped one of them on the arm as he passed them on the

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sidewalk. The men turned and give him the eagle eye, but Niko kept walking and did not look back. Niko’s best friend in college was not his cousin Gil but a Canadian Indian woman who also was from an Ojibwe First Nation. Her name was Bug Irvine and they studied together, ate together, and maybe were on their way to a long-term romantic relationship. Bug and Niko had heard about a secretive private student organization sometimes called “Devil Water” but more often referred to as “The Terrible Tribe.” They did not know the real name of the organization. “The Terrible Tribe” was a secret society consisting of current University students from all around campus. Any student was eligible, but nearly all members were white, wealthy, and privileged. A healthy percentage of football players and other elite athletes were invited to become members, but rarely, if ever, were any of the athletes persons of color. The graduating students who were members chose, with the groups’ approval, the next generation of members. Technically, the group did not have a University Student Senate charter and was not bound by the rules of the regular student organizations. Alumni, who tended to be extraordinarily wealthy, funded The Terrible Tribe well. No student member ever had to pay tuition, costs, or living expenses out of their own pocket—once they became a member, their entire college experience was free. For most members, this meant very little as they were already wealthy. Post-college, no graduating member of The Terrible Tribe ever had difficulty finding an excellent job or admission to a highly-ranked graduate or professional school. During college, members of The Terrible Tribe hosted lavish parties at private residences off campus or at their headquarters, a small room on the top floor of the University law library. The founders of The Terrible Tribe, over a century earlier, had been the children of wealthy and powerful members of the Great Lakes shipping elite, with their families originating from Chicago, New York, and Detroit. They had grasped onto American Indian imagery from the very beginning, as they considered American Indians to be savage and noble at the same time. They acquired eagle feather headdresses, hunting tools and weapons, and carved death masks from black-market dealers. They gave themselves American Indian-sounding nicknames and would refer to themselves only in their secret “Indian” name while in their rooms. They held secret proceedings and meetings, wearing leather, Indian-style chaps, and headdresses. They spoke in faux Indian, pidgin English. And they drank, took exotic drugs, and performed strange ceremonies mimicking American Indian cultures. They admitted their first


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African-American member in the 1970s and their first female member in the early 1990s. The Terrible Tribe was remarkably successful in hiding their existence from the regular student body. Any member who spoke in public about The Terrible Tribe was banished and exorcised from the secret society community. Social ostracism followed, often causing the denial of important jobs and connections to members who needed them for advancement into the commercial and political world. Rumors of The Terrible Tribe often traveled throughout campus, but the society was never outed. In 1987, by accident, a member of the University’s Native American Student Association discovered the continuing existence of The Terrible Tribe. He worked at the law library as a student intern. Working late, he followed a drunken Tribe member entering the room at the top of law library. He witnessed as several Tribe members engaged in a ritual ceremony mocking American Indian culture and saw that the society possessed dozens of pieces of Indian artwork and religious artifacts from all over the country. With several student activist friends, the law library intern later broke into The Terrible Tribe’s headquarters and took pictures of the contents. Many of the religious artifacts had been stolen from Indian graves and from Indian people. Local police arrested the students three days after the students occupied the room. All of them were expelled. Some local activists jumped on the side of the students, but their actions lost momentum as the University responded through law school dean Al Killingsworth, who argued that the First Amendment prohibited the University from shutting down The Terrible Tribe.2 Outed for the first time, the Terrible Tribe continued to meet, but made minor and feeble attempts to become part of the community, including deciding to admit women. But they changed nothing of substance. The day after hearing the nasty joke about Indians from the men on the street, Niko and Bug walked along State Street between classes. Niko remained frustrated about the environment on campus. “I’m sick of The Terrible Tribe. We have to do something about those people. It’s so offensive. I can’t believe a nice progressive university like this one would harbor these people.” “We should find their headquarters and trash the place. Or start a riot at the law school.” Bug always made Niko laugh. “You’re awful violent for an Anishinaabekwe.”3 “I’m bear clan. What can I say?” Playing along, Niko said, “We could get the keys from Gil, maybe. He’ll tell us how to get in.”

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“Can you believe that Gil is actually thinking about joining The Terrible Tribe? He’s your damn cousin, right?” “Not anymore. Wait until I tell his auntie Emma. She’s gonna kick his football-playing butt.” “Isn’t it weird for them to actually have a real Indian in there with them, playing tom-toms and all that weirdo crap? Don’t they see the irony?” “Irony? What’s that?” “Oh, you know. Indians know all there is to know about irony. Maybe that’s why Gil’s joining that ludicrous bunch. Hey, if it’s so secret, why do we know about it? I thought that only Ivy League schools have secret societies. If Gil can join, why can’t we?” “We can’t join because we don’t start at tight end and lead the team in touchdown receptions.” “I hate sports.” “It’s a weird world. Gil told me he gets a certain amount of money from the boosters every time he makes a catch and every time the team wins.” “No way! That’s cheating right?” “I guess. The football team’s head coach used to coach in the NFL and they say that this is the first time he hasn’t had to deal with a salary cap.” “Funny.” “I bet the same people that pay for Gil’s touchdowns pay for that room at the top of the law school library where they do that Tribe stuff.” Gil had heard a year or so earlier that his long-lost great-uncle Toledo lived in Detroit in Cass Corridor. He looked up the old man when he had some free time as a freshman, though he had never met him, and they had become close friends. Toledo had moved away from Lake Matchimanitou and away from his family decades ago. He lived a simple life in an old welfare hotel on Henry Street. He had spent some time as a sports bookie and still made a little spending money by selling hot goods on the street. And that was what Gil knew about. Toledo was glad to see Gil and would buy him drinks down at the Park Henry, his local neighborhood bar. Gil wondered how his coaches would react if they knew he was hanging around a dirty old uncle who was a known gambler, but every time he thought about Toledo he would laugh. While the man could only charitably be called something as nice as a scoundrel, he wouldn’t do anything to hurt Gil. The big black mark on Toledo’s head—and he knew it—was that he had just disappeared a few decades ago, leaving Gil’s great-aunt Emma and cousin Parker all alone. Niko was Toledo’s grandson, yet they barely knew each other.


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“You ever heard of a secret society at the University called ‘The Terrible Tribe?’ ” Gil asked Toledo on his next visit. Toledo surprised Gil by laughing out loud. “Yeah,” he said. “I know it. I helped start it!” Gil knew that couldn’t be true. The Terrible Tribe had been around for over a century. “How do you figure?” “Well, I went to the University for a year or so when I was a kid. You know, I’m a lot older than I look. I’m almost a hundred years old.” Gil was aghast. “What?!? Auntie Louise is only about fifty or sixty.” “Yeah, she’s a young one. Maybe I’m only about ninety. I was born in 1923.” “Make that closer to eighty, uncle.” “Yeah, I know The Terrible Tribe. They asked me to join. They wanted an Indian to show them how we did it back in the old days. Hell, I didn’t know what they wanted. They wanted me to be like the Indians in the movies, like the old war chiefs. If they knew I grew up on a farm in Antrim County, raising cows and picking apples, they’d have kicked me out for being a fake Indian. We had a good time. They called me Chief. Anyway, I was only there a few months before I met Emma and quit school.” Gil sighed. “They asked me to join, too. I don’t think I should, but they say they can guarantee me a future after football. It’s tempting to have that kind of security. I’ve met some of the old football alumni that went on to the pros. They’re messed up for life physically and mentally—and they’re flat broke.” “Well, I hear that. One thing you have to realize in the outside world is that no one is going to take care of you unless you take care of yourself. Maybe back in Lake Matchimanitou or Antrim County you could stay with your relatives, but out here it’s different. Out here, you can make a life for yourself. I enjoy this life. But I couldn’t handle it, seeing my relatives every day. I have to move, to see things, to do things.” Gil wanted to ask Toledo why he left. Everyone in Lake Matchimanitou wanted to know the answer to that question. He let it drift. What he had just heard was probably the most profound statement he’d ever hear out of Toledo. The local public radio station asked University President Al Killingsworth to appear to discuss the apparent problem on campus regarding racial and ethnic hostility. That year, state voters had enacted an amendment to the state constitution that banned affirmative action in a manner similar to amendments enacted by California in 1997 and Washington state in 2000.4

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The number of race-related incidents of violence and harassment had increased twofold over the previous years. While nothing happened that could be considered a flashpoint, everyone expected something big to happen. “Well, every great and large university goes through these things,” President Killingsworth said on the radio. “It’s unfortunate, but we’ve made a serious commitment to having students of all races, ethnicities, socio-economic backgrounds, and other indicators of diversity on campus. It’s no longer the University of the 1950s and before, where white male students were almost the exclusive demographic on campus. Different viewpoints and experiences are an absolute must at this campus and any other that takes itself seriously. When I attended the University, it was a different place. It’s a much stronger educational experience for this generation than mine. And, frankly, it’s a better experience than any generation before it. Each generation of diversity builds upon itself to create a more enriching scholarly environment. We had growing pains and are working toward solving those problems. No educational experience is successful where some students—no matter how many or how few—do not feel welcome.” The radio interviewer asked, “How does the amendment banning affirmative action affect you.” President Killingsworth sighed. “It’s not helpful. The faculty here are firm believers that the University’s choice to adopt affirmative action plans to increase student diversity was absolutely necessary for the reasons I stated. We believed it was a question of academic freedom as well, one of the reasons the law school’s affirmative action policy was upheld by the Supreme Court. It appears that the state ban on affirmative action has actually made things much worse. One argument against affirmative action was that it placed a badge of inferiority on students of color. I never bought that argument personally, but I do believe that the ban on affirmative action has given an excuse and a cover for racially intolerant individuals to harass or otherwise victimize some students of color.” “Powerful words. Thank you for your time.” Niko participated in the university’s Native American Student Association, which met about once a month. The Association, sometimes called NASA, was the lead planner and organizer of the annual university powwow, one of the biggest indoor powwows in the country. Niko was more interested in the social aspects of the group, sitting and talking with other Indian people who were students. They would discuss ongoing concerns over the racial environment of the university, what classes would be good to take or to


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avoid, and so on. NASA had been following the ongoing question of The Terrible Tribe, the only student organization on campus that opposed its existence. Many years earlier, members of NASA had been part of a militant group that had physically occupied the space loaned by the university to The Terrible Tribe. While the action brought attention to the existence of the secret society, the university did nothing to alleviate the harm caused by the existence of The Terrible Tribe to the American Indian students on campus or to the Indian community in general. The university instead expelled several of the NASA students who participated in the occupation. The one major change in the situation was that The Terrible Tribe began to take pains to justify itself as a charitable and useful student group, one that “honored” Indian people. Generations of NASA students had passed through the university since that time, but none of them bought into the new justifications for the existence of The Terrible Tribe. The group met in the basement of East Quad, a dorm near to where many of the NASA students lived off campus. Nine Indians in addition to Niko and Bug sat around the room talking and looking serious. They ate fry bread and Indian tacos prepared by some of the NASA members that lived off campus. The meeting was one of the last planning meetings before the annual powwow, and most of the discussion would focus on the last-minute issues that had arisen. Bernie Garrison, the president of NASA and an engineering student, called the meeting to order after everyone had a bite to eat. “As many of you know, the powwow was relatively successful last year in terms of hard dollars. We actually made a tidy profit. I wish we could invest the proceeds productively.” “Let’s do something else,” Niko said, interjecting his opinion for the first time since he had begun attending the meetings. “I’ve been here three years now and we always do powwow stuff. It’s like NASA is known for nothing but powwows, like it’s a business.” Bernie looked at Niko with something approaching contempt. But Niko continued: “We should do some activist stuff. Direct action. Floating somewhere around here on campus is that stupid secret society, The Terrible Tribe. We should protest them and use the powwow to highlight what they’re doing. Let’s print some leaflets about what a stinking fraud they are. Maybe have a bonfire outside the law school library. We know they still have their office up there.” Bernie, not used to a dissenting voice in the group, snorted. “Well, Niko, the funds are low and I doubt that the law school would let us set fire to their precious courtyard. Let’s try to think of something legal, shall we?” “What about inviting some speakers to the powwow? Holding a talk

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somewhere. That would be cheap and it shouldn’t be any problem.” Niko appealed to the group with his hands and his eyes, but no one said anything. “What about a fundraiser-type thing? A casino night maybe? They do it in the dorms all the time. If we get some money, maybe we can get John Trudell or somebody to come and talk.” Niko looked around, again appealing to the other NASA members, but none of them stepped up to support his ideas. Most of them looked downright bored and uninterested. It was too close to the powwow to change gears. The next day, Bug and Niko sat in a coffee shop near campus, drinking coffee and studying. Bug, reading the student paper, saw something interesting and tapped Niko on the arm to get his attention. It was an article about The Terrible Tribe. “Niko, listen to this. It says here that, in 1997, a bunch of Native American students broke into and occupied the floor in the student services building where The Terrible Tribe used to meet. They occupied the floor for two weeks and received a lot of positive press attention, but, ultimately, they were arrested and kicked out the school.” “Yeah, I heard about that.” “Apparently, the dean of the law school back then was a former member of The Terrible Tribe. He defended them in the press and everything, arguing that they had a First Amendment right. That’s the guy who’s president of the University now.” “Killingsworth?” “He and some other law professors wrote articles and letters to the editors to the student newspaper back then talking about how the people that belonged to the secret societies gave a ton of money to the university and they were entitled to certain benefits of gift-giving. They said they were protected by the freedom of speech and freedom of association. Funding a secret society and giving public space to them was a small price to pay for the big bucks that the prestigious alumni bring to the school.” “They’re paying for the right to act like racist schoolchildren in our spaces, using our money and our school.” Talking in public, Bug and Niko didn’t notice the young woman listening to them. After the last comment Bug made, she interrupted them. “Excuse me, but you two don’t have any idea what you’re talking about. There’s absolutely nothing wrong with The Terrible Tribe. I’m a member. Lindsay King. And that whole occupation thing was just some people trying to get attention. They weren’t even Native Americans, just some lazy students who were failing out of their classes. Some of them weren’t even Michigan students. You Indians don’t have a clue about your own culture, so you bad-mouth a legitimate organization.”


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Bug responded with gravity that Niko rarely saw from his friend. “I don’t think you know what you’re talking about.” “The fact is that we at The Terrible Tribe have a very hard job. We have so many responsibilities to charities and to our schoolwork, to the alumni, to the school. Really, we’re the hardest-working students in the whole university. And we have nothing but total deference and respect to Native American traditions and customs. Our respect for those traditions and for Native heritage is the reason the society exists, it’s the reason we chose to follow the teachings of all Native nations. And we follow Native teachings very carefully. In fact, we adhere more closely to true Native traditions than most Native Americans on the reservation. They’re all about hip-hop and rap music and gang culture now anyway. We’re the last real Native Americans.” Bug could see that the conversation would go nowhere. “I’m afraid we’ll have to walk away from this conversation right about now.” Niko couldn’t resist one last comment. “Well, you’re probably the most ignorant person I’ve ever met and I’ve been to more than a few professional wrestling matches and tractor pulls.” “See?” Lindsay said. “You prove my point. You’re Native right?” “I’m Lake Matchimanitou Band Ottawa,” Niko said. “See? What is that? It’s a federally created, artificial tribe. It doesn’t mean anything. You’re assimilated. You go to redneck tractor pulls and watch wrestling. I spend more time cherishing tribal traditions and heritage in a week than you do all year.” Niko tried to interrupt. “Listen, lady . . . .” “No, you listen, pal. You attack my group, the group that I worked for, the group I treasure, because of some vague feeling that your culture is being trashed. First of all, that’s not true. Second, you probably don’t even know your own culture as well as I do. Face it, you’re not even real Indians.” With that, Lindsay King stood up and left the coffee shop. “What just happened?” Bug said. Niko frowned. “I think it was a declaration of war.” Gil and Lincoln were at a loud and drunken frat house party with dozens of football players, other assorted athletes, many beautiful women, and preppie fraternity and sorority members, topped by overwhelming, screeching pop music, dancing, bright lights, and trash everywhere. Lincoln approached Gil through the bedlam. “Have you made your decision yet, my friend?” he yelled into Gil’s ear. “Not yet,” Gil yelled back.

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Lincoln led Gil outside to the porch where they can speak at a normal volume. “What?” “Still thinking about it, Lincoln.” Gil had been dreading the conversation. He had never been so conflicted in his life. Every person in the house they just left would advise him to join The Terrible Tribe, just as they’d do the same if given the chance. Gil believed that his membership in The Terrible Tribe would be the best thing for his football career and, later, his professional career. But he wondered about his soul, his personhood as an Indian, an Anishinaabe. Lincoln pressed him. “Well, one of our members is leaving and we have a spot open, but for only a short period of time. Others will step up to fill the void if you do not, Ogema.” Gil sighed. He had already had too much to drink and knew he shouldn’t be making decisions right then. “I know, but it’s a big commitment. The responsibilities are enormous.” He wasn’t worried about responsibilities. He was trying to delay. Lincoln smiled. “You sound like a true Tribal Member, my friend. The responsibilities are indeed enormous, but the advantages are colossal.” Gil nodded, hoping Lincoln would leave him alone. “Ogema, I think you are definitely one of the top twenty-five people in this whole university. We all do. It’s unanimous. Join us.” “Lincoln, I’m not really sure I want to do this. Some people would say I’m an apple, red on the outside and white on the inside.” “That, my friend, is pure racist crap. It doesn’t matter how much blood Indian you are, it only matters that you are with us.” “Some people say I’d just be a token Indian. A house Indian. An apple.” Gil knew he was repeating himself, even whining. “Be a man, goddammit! When are you going to stop talking crap? Join us!” Gil was beaten. “What if I just think your little parties are stupid?” He was slurring his speech now. Lincoln knew he had won. He laughed with good cheer. “Well, they are. So what? We have fun and we do good work. These are old arguments, my friend. We all go through this thought process.” It sounded good to Gil by that time. “Okay. I’m in. I’ll do it.” “You have just made the most important decision of your entire life. It is a decision you will never regret, not for a moment. Welcome to The Terrible Tribe, Number 25. Welcome.” “Thank you, Lincoln.” Bug worked at the front desk at one of the university dorms on central


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campus for extra money. During weekend days, she’d be reading a novel for class, hunched over the desk, eyes glued to the book. There would be very little student body traffic in the lobby area and it would be quiet. On one of these days, she thought she heard a slight scraping sound and looked up, but then realized it was nothing and returned to her book. Niko had been sneaking around the desk, crouching low in front of the counter. He leapt up and screamed bloody murder. “You bastard, Niko!” Bug screamed. Niko laughed from down deep. There weren’t enough laughs going around at that time. It was a dark time for the American Indian students on campus. As The Terrible Tribe began to become better known on campus and less of a secret society, students and some faculty applauded their actions as citizens and as “Indians.” On the other hand, the American Indian students knew the organization was a complete fraud. “You scared the hell out of me. What are you trying to do? Kill me?” “Maybe. Listen to this one. I talked to Gil the other day. He’s accepted an invitation to join The Terrible Tribe.” “He actually did it. I don’t believe it.” Nike sighed. “Yeah. I don’t, either. He’s always been sort of a punk. He never hung out with the skins in Lake Matchimanitou High. Everyone always said he was stuck up and acted like he was better. I told them off, but now I’m not so sure. I mean, you look at the guy now and, apart from the last name, you wouldn’t know. I think we should do something. Maybe expose The Terrible Tribe for what they are.” “Well, if it’s true, it will humiliate Gil, don’t you think? Whatever we do?” “What I think is that he’s already humiliated our whole family and even our tribe by lining up with the bad guys. People are going to think he’s a Benedict Arnold Custer now.” “I can’t believe what’s going on. I just thought it was funny when he said they were recruiting him. I hoped he was joking.” “Well, it’s not funny anymore. Not to me.” Bug seemed thoughtful for a moment. “You know what I’ve been seeing on campus lately? A division between us, us Indians. I mean, there’s the socalled ‘real Indians,’ the Indians who participate in NASA, work on the powwow planning committee, enroll in the classes on American Indian history, literature, religion, and so on. We all know who we are. And then there are the Indian students who don’t really do much of that. Maybe a little bit here and there. They do their own thing, away from the rest of us for whatever reason. Maybe we didn’t reach out to them.” “You mean boxcheckers?”

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“No, that’s a whole separate category and I don’t even want to go there. I guess I’m thinking about Gil. He just does the football player thing. And then there are some people in ROTC I know of. They don’t hang out with us.” Niko felt a little defensive. He didn’t like where Bug was headed. “Well, Gil is busy, too busy to do the NASA stuff.” “Exactly, Niko. That’s part of my point. It doesn’t make him any less of an Indian to play football or to do ROTC or whatever. They’ve made that choice. My point is that I’m worried about this division that has sprung up or is springing up between ‘us and them.’ ” Niko nodded. “With my cousin Gil as the embodiment of ‘them?’ ” “Yeah. We’re splitting down the middle and I don’t like it.” They were silent for a bit, thinking over their dilemmas. Finally, Niko spoke. “I talked to Bryan Montana,” he said. “About helping us with The Terrible Tribe. He’s going to ask the LMB tribal council for permission to represent us in our case against The Terrible Tribe. He says we shouldn’t sue right away in federal court. There’s a way to get The Terrible Tribe decertified or derecognized or something by the regents. That would shut them down. If nothing else, Bryan says the testimony and evidence we use will discredit The Terrible Tribe forever.” Bug nodded. “That’s going to hurt,” she said. Niko knew it, too. The backlash against the American Indian students would be fierce. He remembered bumping into student sports fans on the street a few months earlier. It would get a lot worse than that. “You still want to be my co-plaintiff? There’s a Board of Regents meeting next month.” “Why the Board of Regents? Can’t we just complain to the University Student Senate? Don’t they have to certify or recognize every student organization?” “Bryan asked that, too. The problem is that The Terrible Tribe isn’t a recognized student organization. They have special, long-standing permission to exist and use University facilities. So, can you stand up to the regents?” “Count me in.” Niko decided to visit Gil to try to talk him out of joining The Terrible Tribe. Gil played video games, ignoring his cousin. Niko pestered him like he always did. “What would your Gram say?” “Nothing. She don’t need to know nothing about it.” “What about Mariana? What about your mom, huh?”


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Gil grunted in the way he used to threaten his cousin. “Don’t talk about my mom.” “Sorry, man. I shouldn’t have said anything.” Gil knew it was a sore subject. Mariana had left Lake Matchimanitou right after Gil had been born. “I wonder where she is now. She could be anywhere. She could be dead.” “No way, Gillie. She’s not dead. We’d know it. She’s out there, making it, raising hell when she has to.” “She’s been gone a long time, almost seventeen years. What if I see her and I don’t recognize her?” Niko looked down and nodded. There was nothing he could say. A Detroit radio show personality, Eddie Smith, interviewed former Michigan attorney general James Stone. “Last question. Mr. Stone, in the past you’ve taken a hard stand against the University’s affirmative action program. You’ve called the liberal arts curriculum ‘weak’ and you’ve also argued that the university has given tenure to too many radical academics. In short, you’ve argued that the university creates graduates that are a ‘menace’ to democracy.” “Well, Eddie, I have made those arguments and the current situation clearly backs up my contentions. The legislature threatened to withhold funds from the University if it didn’t clean up its act. Fortunately, we have a much stronger university president in Al Killingsworth. He’s not going to stand for the wishywashiness of the university of the 1990s. It’s a new century, a new golden age.” “Thanks for speaking with our listeners, Mr. Stone, and good luck in the election. We’re all right there with you.” “No, thank you for having me.” The attorney general left the room as the show ended, but Eddie continued to talk. “We have a few more minutes before Sex Talk with Jo-Jo Madigan and I’d like to make a few comments. Why doesn’t anyone see it but me and Attorney General Stone? The FBI and ATF agents are right there at our door. They’re going to bust in and when they do, they’re going to face my illegally obtained AK-47 and my illegally obtained MPK3. You wanna know why they’re illegally obtained? Because those pansy idiots in Congress give in to the special interests. Those gun-control laws are robbing us of our freedom, our protection. There’s nothing scarier these days than living in 21st-century America and being unarmed. There’s terrorists out there. Every stinking little punk is armed. Armed to the teeth. They got guns and they aren’t afraid to use them. They run the streets. They provide law and order. You think the police have control? Guess again. They’ve

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been weak ever since Miranda was handed down, forced down our throats by nine old men in Washington D.C. Nine old men who make rules we shouldn’t have to deal with but are forced to. Okay, now seven old men and two old ladies. Might as well be an afternoon tea party for the Daughters of the American Revolution or the League of Women Voters or, worse, the Suffragettes’ Club. Pathetic. Congress does nothing. The President is a weakling. And the Supreme Court and the United Nations are left to run the country as they see fit. I don’t know what to do anymore. The Second Amendment is basically gone. We don’t have the right to protect ourselves. The gangs have ’em. The feds have ’em. The cops have ’em. But I’m not allowed. It’s like we’re playing a game and everyone else has all the cards. Life isn’t a game for us Americans, but we’re being played hard, like suckers. “Well, that’s it for the Second Amendment. Ever heard of the First Amendment? Well, that’s going by the wayside, too. I’m not a religious freak, a Jesus freak, but I believe in God. I’m a Christian man. Why is it that my children can’t pray in school? Why is it that my children have to watch while some fascist punk burns the flag? Why can’t my children say the Pledge of Allegiance? Why is that people like that feminazi from the University of Michigan run this country, telling us taxpayers that we should be forbidden to purchase pornographic magazines? I’m not for porn, believe me, but I’m not for censorship, either. Sometimes, I wanna just throttle those women that decide my taste for me. People like Hillary Clinton and Tipper Gore make me sick. “And another thing. I used to be proud of the university. I grew up in Ann Arbor, listening to football games, going to the hockey games when hockey wasn’t so big, sitting in the bleachers like a true fan, not some bandwagon fan. Now I look at the university and all I see is liberal bullcrap. It’s common knowledge the U discriminates against whites. It’s legal because they call it affirmative action. I know white students are sick of taking classes with affirmative action babies. They only got in because they’re Black or something. White students worked hard to get in. They didn’t have it handed to them. “Well, I better sign off before the Man shuts me down again. See you next week right here, same time, same station. Sex Talk with Jo-Jo coming right up after these messages.” The Terrible Tribe admitted Gil into their membership on a Sunday. Gil stood in the center of the room at the top of the law school decorated with Indian art and Indian artifacts where The Tribe gathered. Several others were present, including university President Killingsworth, Federal District


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Court Judge James Frieder, Michigan Attorney General James Stone, Lincoln Grail, and the other current members of The Terrible Tribe. Gil felt uncomfortable and wanted someone to tell him it was all a mistake, it would be okay if he walked out right then, and no one would judge him. He noticed when he entered the room that every member of The Terrible Tribe was white and that Lindsay King was the only woman in the room. Instead, Lincoln approached him and shook his hand with what Gil felt was like a death grip. “Number 25, meet Chief Longfellow,” Lincoln said with exaggerated gravity. Judge Frieder was the man known as Chief Longfellow. He was short and balding, with white hair, wearing an expensive suit. He chuckled as his “Indian” name was spoken. “Hello there, young man. Welcome to The Terrible Tribe. We’ve been watching you. We usually pick from the incoming freshman and first-year graduate students, but you’ve grown as a person in ways we never expected. It doesn’t hurt that you’re the best tight end in the Big Ten. Maybe the country.” Gil mumbled, “Thank you, sir.” “No, don’t thank me. We’re all equals here. Just call me Longfellow.” He chuckled again. “I still love that name.” Lincoln led Gil toward the attorney general, James Stone. “Meet Giant Buffalo.” “Nice to meetcha.” Stone laughed out loud. He had been drinking for an hour. “Why don’t you relax, Number 25? This is a fun gathering. We’re your people now. You’re one of us, so settle down.” Gil nodded. Lincoln introduced him to each person in the group while Gil felt a large stone sink inside his belly, going deeper and deeper into his inner being. He was sick in every way. Eventually, Lincoln walked to the center of the room and clapped his hands for attention. “Okay. Attention Tribe Members. We have a special inductee today and he’s due for a naming ceremony. You all know Number 25 already, so let’s begin. As you know, the rules state that only alumni and top five current Tribe Members may participate in the naming ceremony. Let’s begin. Number 2?” Number 2 was a member of the varsity swimming team, tall and skinny. “Thanks, Number 1. I looked up Ogema in the Ojibwe dictionary and it means chief, so if we called him Chief Ogema, we’d look pretty foolish. Besides, we have enough chiefs already, right Longfellow? So, how about Strong Thigh?” The rest of the room grunted like savage Indians. It was unanimous and no one else had any other suggestions. Gil hated his new Indian name, but

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he stayed for the remainder of the party. By the end, after several cocktails, Gil felt comfortable. He felt like he knew these people. They seemed to be the kind of people that would take care of him.

Before the University Board of Regents Student Affairs Committee Al Killingsworth: Attention! The University Board of Regents Student Affairs Committee is now in session. I am Al Killingsworth, President of the University and ex officio member of the Committee. I will be presiding over this meeting. Will the other Committee members introduce themselves? Linda Fisher Dietrich: Regent Linda Fisher Dietrich, chair of the Student Affairs Committee. Democratic Party. Elton Maynard: Regent Elton Maynard, vice-chair. Republican from Grand Rapids, Michigan. Anthony Patriarche: Regent Anthony Patriarche, Democrat. Al Killingsworth: Thank you. We have scheduled a special session of the Student Affairs Committee to address the concerns of two students and one Indian tribe about a student club known as “The Terrible Tribe.” The proper, secret name of the club will not be spoken at this meeting. For purposes of full disclosure, I announce that I am an alumnus of this esteemed club. While a student here in my youth, I was a leader in this club. Since I am not a voting member of this Committee, I will continue to preside over the Committee while these proceedings are ongoing. Further, given that these proceedings involve current students, this meeting is closed to the public and the records will be kept confidential under state law. Let’s proceed to the sole agenda item. Will Mr. Niko Roberts and Ms. Bug Irvine please rise and introduce themselves? Niko Roberts: I am Niko Roberts. I also have an Indian name that I dare not utter in these proceedings, one given to me by my great-grandmother Louise Roberts. I am a member of the Lake Matchimanitou Band of Ottawa Indians and I denounce this secret society. President Killingsworth, you should be ashamed of yourself.


Al Killingsworth: Bug Irvine: Bryan Montana:

Al Killingsworth:

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That’s enough of that. One more outburst and this meeting is over. Next? My name is Eliza Irvine. My name is Bryan Montana. I am General Counsel to the Lake Matchimanitou Band of Ottawa Indians Tribal Council. The Tribal Council has asked me to appear on behalf of Mr. Roberts and Ms. Irvine in this proceeding. Also, I am a graduate of this University’s law school and a proud alumnus. I first would like to request that these proceedings not be kept confidential. Neither of the two students petitioned to keep the proceedings confidential. No individual student members of the student organization have sought confidentiality. In fact, as far as I can tell, none of them is present here today. I believe that under the Michigan Open Meetings Act that meetings of this Committee must be open to the public. Moreover, given that the presiding member of this Committee carries with him, as a member of The Terrible Tribe, a conflict of interest, not to excuse him at this point amounts to turning this entire meeting into a sham. The student petitions cannot hope to have any semblance of neutrality from this body with such an obvious conflict. We move to excuse President Killingsworth. Unless the Committee votes to open the meeting, I am going to deny those requests, Mr. Montana. I have already spoken about my former membership in the club. None of the Committee members appear to have a problem with it. So we will continue as planned. I believe that the accusations made in the petition from Mr. Roberts and Ms. Irvine, which I assume you drafted, Mr. Montana, include sufficiently private and confidential information about a large number of students. In fact, one could argue that the very assertion that a student is a member of The Terrible Tribe is sufficient to render these proceedings exempt from the Open Meetings Act. Any comments from the Committee?

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Linda Fisher Dietrich: I would vote to open the meeting and to excuse the President. These proceedings are very important as a public matter. Mr. Montana’s objections are well taken. Al Killingsworth: Any other comments? No? Then the proceedings shall remain confidential and I will continue to act as the presiding officer. We are therefore in executive session. I understand that The Terrible Tribe will be informally represented by Mr. James Stone, the attorney general of our fine State. Mr. Stone? James Stone: Thank you, President Killingsworth, members of the Committee. You are correct when you say, “informally.” I am appearing as a fellow alumnus of the club. There are no resources for this particular club to hire counsel to defend itself from these baseless accusations. I have agreed to donate some of my time to stand in their defense. Al Killingsworth: Very well, Your Honor. Well, Mr. Montana, do you have a presentation to make? Bryan Montana: Yes, Mr. President and members of the Committee. Thank you. Upon information and belief, The Terrible Tribe is a secret society housed at the University law school on the top floor of the law library. The members of this secret society include twenty-five of the so-called top students currently enrolled at the University. Alumni of this secret society retain certain privileges, as you well know President Killingsworth. I’m sure that Mr. Stone can also elaborate. The Terrible Tribe has a long, documented history of “playing Indian.” Members dress up as they stereotypically believed Indians dressed, with eagle-feather headdresses, face paint, and the like. Members act like they stereotypically believed Indians acted, what with the “whooping” and “hey-ya” and other phrasing and way of speaking. Members perform rituals and act out scenes as they stereotypically assumed Indians behaved. It bears noting that none of these behaviors was an accurate representation of any Indian community that ever existed, and in fact The Terrible Tribe’s actions appeared to be sad mimicry of television


James Stone: Al Killingsworth: Bryan Montana:

Al Killingsworth:

Bryan Montana:

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or movie Indians. It also bears noting that nothing The Terrible Tribe offered and continues to offer serves any value to the community whatsoever. Not to the student body, not to the faculty, not the University community at large, not to the local community, not to the State, and, certainly, most certainly, not to any Indian person or tribal community. Never. Objection. I can’t stand by and listen to this flatout slander. Agreed, but we have to listen to Mr. Montana anyway. On that note, I urge this Committee to reconsider its ongoing decision to allow President Killingsworth to preside over this meeting. Save your speeches, Mr. Montana. I’ll repeat that I am not a voting member and your clients haven’t been prejudiced in any way by my presence. The Committee can make up its own mind. I’m here merely to facilitate this meeting. So be it. The Terrible Tribe’s existence as a secret society on campus has largely been ignored throughout its history. The oaths of anonymity to which each member swears have been effective in preventing its discovery, for the most part. But The Terrible Tribe occupies space on campus that is extraordinarily generous. I’m speaking, of course, to the space on the top floor of the law library. The law library itself is a valuable property, one of the oldest buildings on campus, surrounded by beautiful trees, foliage, and history. It is haunted by the ghosts of several United States and Michigan Supreme Court Justices, not to mention the dozens of famous and influential law professors that have made their careers inside the building. And, presiding over all of that, ironically perhaps, is The Terrible Tribe. Upon information and belief, most of the white, male law professors who were themselves University law school graduates were members of The Terrible Tribe. Football and hockey coaches and

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James Stone:

players, overwhelmingly if not exclusively white, were and are members. People in this room were and are members. One former President of the United States was a member. And to think that, for fun, for no useful purpose whatsoever, these respected and influential men, almost all of whom were and are white, would meet in secret to dress up and act like Indians. Imagine. I will turn next to the pressing concerns of my clients at this time. The mere existence of The Terrible Tribe is offensive enough. But let us focus on more objective factors that compelled my clients to petition this Committee. There exists on campus a serious problem that The Terrible Tribe contributes to every single day. For American Indian students, it is all but impossible to succeed at this University. The climate of hostility against and ignorance of American Indian people has rendered this campus a hostile educational environment. We have two courageous American Indian students that have experienced incredible oppression and hostility from scores of non-Indian students. We contend that the presence of The Terrible Tribe is a powerful and perhaps exclusive source of this ongoing hostility. Niko Roberts is ready to testify about the verbal taunts and physical intimidation he regularly experiences from non-Indian students. He will testify that the intimidation he experiences is laced with references by these non-Indian students. Of course, he cannot testify that the students who engage in this behavior are actually members of The Terrible Tribe, but, on at least one occasion, the student who engaged in this act represented herself as a member of that group. Wait one minute. We never discussed taking testimony. I am certainly not prepared to hear actual testimony. We’ve done no discovery to this point and I had no idea until this moment what the witnesses, if any, would testify to. Moreover, there are no opposing witnesses, nor time to prepare any.


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Not that I would want to subject any of the students to the sure-to-be savage cross-examination of Mr. Montana. Bryan Montana: I strenuously object to your characterization, sir! Al Killingsworth: Enough! I agree with Mr. Stone. Mr. Montana, the Committee isn’t here to take testimony at this time. My understanding is that the Committee will hear the basic arguments of the parties and then deliberate as to how to proceed. This is, after all, a unique situation. The Committee could, for example, agree to include the entire Board of Regents in a full evidentiary hearing. It could be wasteful to everyone’s time to conduct a hearing here. Plus, we don’t even have a court reporter. Committee members? Anthony Patriarche: I’m unwilling to hear testimony at this time. Elton Maynard: Same here, for the reasons suggested by Mr. Stone and President Killingsworth. Linda Fisher Dietrich: I disagree completely. These students have a right to be heard. In fact, I believed going into this meeting that was the whole purpose. James Stone: Well, Madam Chairman, begging your pardon, but they are represented by counsel. Linda Fisher Dietrich: Well, I’m one for hearing it from the horse’s mouth. Bryan Montana: I understand that this Committee has often heard testimony from students and many others in disputes in which this Committee has jurisdiction. I don’t see why this situation is different, other than the apparent need for Mr. Stone and The Terrible Tribe to silence any opposing viewpoints. Linda Fisher Dietrich: I completely agree Mr. Montana. I would vote to allow these students to testify. But, seeing as I’m being voted down two to one on everything here, I see there’s no point. Al Killingsworth: Mr. Montana, please proceed. Bryan Montana: Okay, then. To continue. Ms. Irvine would testify —if this Committee would allow it—as to several incidents she has witnessed as well as the general mood of American Indian students here on campus. In short, their testimony is powerful but, as of yet, silenced.

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To conclude, there is a disease on this campus that infects the air around all American Indian students on campus. Each of them must deal with the very fact of The Terrible Tribe, that students they see on campus could be members of The Tribe who play Indian and mock their culture and ancestors. Each of them must then deal with other students that mock them for being mocked by The Terrible Tribe, or, perversely, mock them for speaking out against The Terrible Tribe. A cancer spreads on this campus and it is The Terrible Tribe. My clients respectfully ask that this Committee take action to force the University to stop supporting and subsidizing this deeply offensive, racially hurtful, and disgusting student organization. Okay, Mr. Stone? Imagine, if you will, a small organization of University students that meets every week to discuss the means of converting other students to their ways of worshipping God. They accept no University funding, they have no attachment to the University at all other than the fact that they meet on campus at East Quad and are students. If President Killingsworth, or this Committee, or the Regents order the East Quad administrator to refuse to allow this group to meet, what would we have? Well, there would be a clear First Amendment violation because the University would be rejecting the group because of its religion. Sure, it’s possible the group offends other students, especially if they keep attempting to convert other students to their religion. But the University cannot do anything to stop them, unless they violate University rules. What if the group wasn’t religious, but merely political? I know East Quad allows members of a student Trotskyist group to meet periodically. I find that offensive, personally, but I do not even try to advocate against their meetings because I respect the First Amendment freedom of speech and freedom of association. What if the group were white supremacists? Maybe that’s a closer


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question, but the First Amendment is the First Amendment. I’m not an absolutist, but I don’t believe this is the place to draw that particular line. If we merely object to a certain point of view, we cannot crush that point of view through the actions of government and this University. So you see, easily, why The Terrible Tribe is protected by the First Amendment, as President Killingsworth so ably argued years ago as Dean of the law school. Frankly, it’s not even a close question. Even if Mr. Montana and his clients could prove by a preponderance of the evidence that The Terrible Tribe is contributing to a hostile educational environment or even that there is a hostile educational environment—and I most sincerely doubt that they can garner much evidence other than their own subjective and irresponsible testimony—there is still the question of the First Amendment. Above all else, this Committee must respect the First Amendment. I would offer one last point. You have before you two students who allege that they speak for the entire American Indian student community. As you know, the University’s founding was predicated, in part, on a continuing moral obligation of the State and the University to educate Michigan Indians on an equal basis as white students. As Mr. Roberts no doubt is aware, he is the most recent of several generations of American Indian students from his own family to have attended the University, dating back at least to the first decade of the 20th century. That’s an impressive achievement and shows without a doubt that the University is and always has been a place for American Indian students to succeed. What would Mr. Roberts’ family say about these allegations? Eh? Objection! There’s no reason to taunt the students who are appearing before this Committee, Mr. Stone. You’re the Attorney General of the State of Michigan and I’ve never seen such ridiculous conduct. First you imply these students are savages

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Al Killingsworth: James Stone:

and now you attack their credibility without even hearing testimony from them. Disgraceful, sir. That’s enough, Mr. Montana! Anything further, Mr. Stone? I was about to rest, until Mr. Montana’s outburst compels me to raise one final point. I did research about the history of Michigan Indians in preparing for this meeting. The history is remarkable. Michigan Indian tribes were some of the first communities exposed to something known in Indian law and policy as “allotment.” Allotment, if you’re unaware, is the federal process of splitting up tribal reservation communities by forcing Native Americans to give up their tribal land ownership and land use patterns and instead adopt Anglo ownership rules. The United States imposed this policy on most tribal communities after 1887, but the 1855 treaties in Michigan had allotment written into them. Going back even further, many Michigan Indians were granted citizenship in 1836, almost a century before most Native Americans outside of Michigan. All of this was done, of course, for purposes of destroying tribal cultures and assimilating Indians into the greater body politic. It’s a terrible legacy, I suppose. At least, that’s what the academy would have us believe. But I see these Native American tribes up north doing pretty well for themselves. They have greater fishing rights than regular Michigan citizens, they have greater rights to casino income, and they have tax immunities. And they have the Michigan Indian Tuition Waiver, so they don’t even pay for college like regular citizens. The fact that they have highly qualified legal counsel to stand up for them is a testament to the fact that discrimination against Indian people is a thing of the past. My point is this. These students assert that they are being injured by the mere existence of The Terrible Tribe. Frankly, I don’t see it. The cryptofascist political correctness movement forced The Terrible Tribe underground decades ago. If anyone’s being persecuted, it’s the twenty-five best


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students on campus! Think about what it is exactly that these Native American students are missing or losing. It’s already been lost! Generations ago! They don’t speak the language of their ancestors and they don’t like the way their ancestors did. The Terrible Tribe cannot take away what isn’t there. These students are just free-riders, pure and simple. Their sad reliance on ancient treaties and old laws is a joke. With any luck, there won’t be Indian tribes in the next twenty-five years. I rest. Mr. Montana? You have a couple minutes for rebuttal, I suppose. Thank you. I’d like to begin by reminding the Committee that Indian people have been hearing these same, tired arguments from all quarters for hundreds of years now. Assimilation and even extinction had long been the policy of the United States from the 18th century on. The Framers of the Republic wrote it all down in their journals and public papers, papers we now use to interpret the Constitution. In fact, Mr. Stone and conservative commentators use these same papers to argue that affirmative action and anything benefiting minority people was unconstitutional. It’s called “originalism,” a theory that the U.S. Constitution should only be interpreted the way that the people of the United States in 1789 would have understood its provisions. The way one finds the original meaning is to meander through the public papers of the Framers to see what they meant. Old papers and letters and drafts and other documents that probably were never meant to see the light of day. Mr. Stone is a huge proponent of this view, relying upon old papers and ancient law-makers. And yet he makes the argument that the old papers and ancient laws relating to American Indians and tribes shouldn’t apply any more. What hypocrisy. You see, what happened is this. Congress decided to stop actively trying to assimilate and exterminate tribe political structures in the 1970s. They might go back to it some day or not. But right

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now, Congress and even the President support the ongoing development of tribal governments and programs for Indian people. Mr. Stone’s views are as archaic as they are injurious to Indian people. Mr. Stone’s badly developed “history” of Michigan Indians ignores the ongoing oppression of Indian people here and elsewhere. Along with perhaps Muslims, American Indian people are among the last racial groups for whom it’s okay to make fun of in the form of sports mascots, names, and logos. It’s okay to stereotype American Indian people and culture on TV and in the movies and even high-brow literature. No “crypto-fascist political correctness movement,” to borrow Mr. Stone’s pithy phrase, steps up to support American Indian people. Go ahead and mock Indian people for being drunk. Go ahead and mock Indian people for selling out their culture for gaming money. Go ahead and mock Indian people for speaking like Tonto. No American liberal movement will prevent it, or speak out against it, or remedy it. Indians are on their own. What’s truly horrifying about The Terrible Tribe is that their justification for existence is that they supposedly honor Indian people and culture. No. No. What The Terrible Tribe does is perpetuate stereotypes. The members of The Terrible Tribe don’t enroll in classes to learn more about Indian history or language, nor do they visit Indian reservations to learn more about the realities of reservation life. No member of The Terrible Tribe has ever graduated and worked for the betterment of Indian people. Playing Indian has no value to the community. It never has and it never will. Indian people suffer more social and political oppression than any other group in the United States. And this Committee must be aware that The Terrible Tribe will never do one thing to solve that problem. The only thing that The Terrible Tribe does is to injure Indian people. We’ll take a brief recess to deliberate. [recess]


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Thank for waiting. As you know, the Committee has two options available to it at this point. The Committee can decide to recommend that the entire Board of Regents hear this matter. The Committee can decide to decline to recommend that the entire Board hear this matter. I understand that the Committee will speak separately. Madam Chairman? Linda Fisher Dietrich: Thank you, President Killingsworth. I will first announce that the Committee has voted to decline to recommend that this matter be heard by the entire Board of Regents. The vote was split, two to one, with myself as the lone dissenter. I will speak first. I have followed the question of The Terrible Tribe with some interest for many years. The very notion of a secret society of elite students on the campus of a major public university in the modern era is deeply troubling to me. While I normally do not speak in such terms and I am no radical, I believe The Terrible Tribe and secret societies like it are vestiges of the white male supremacy that infects the Western world. It is troubling to me that so many influential alumni of this University are members. Indeed, they may have become so influential because of their membership in this group. As a Regent, I hear arguments that each individual student should be evaluated according to their individual merit, whatever that means. Membership in The Terrible Tribe is not based in merit at all, but instead on mere connections to persons with power. Hence, I believe that The Tribe thus perpetuates a white male supremacy that no longer reflects the sincere quest for merit in education or life that we now hold dear. I understand that the current ranks of the organization contain one white woman, two African-American men, one Latino man, and one American Indian male. Of course, that leaves twenty white men. Even in this Committee, we are not privy to the details of these individuals, but we understand from the representations made by

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Mr. Stone that the twenty white men and the lone woman are all children of wealthy families. Some of them could be classified, I suppose, as “legacy admits.” Of the men of color, each of them is a successful athlete, with families of modest means. I believe that the people of color and the lone woman who are members of The Terrible Tribe are probably tokens, weak attempts by the leadership of The Terrible Tribe to avoid claims of race and sex discrimination. I also believe, most especially, that the very recent offer of membership to an American Indian student is a patent and disgusting attempt to quell or dilute the claims of these courageous students that The Terrible Tribe contributes to a hostile educational environment. I do not speak these thoughts as a means to insult or degrade these students who are members. What little I know of the members of The Terrible Tribe is positive. These students are impressive individuals, especially the students of color. They would have to be, I suppose, to attract the attention of The Terrible Tribe’s white male leadership. But while these students have been invited to join, I am convinced by Mr. Montana’s argument that The Terrible Tribe is much, much less than the sum of its parts. The Committee members and the full Board of Regents are well aware of the ugly, racially hostile climate that pervades the University community at this time. We are aware, but it appears we are unwilling to do anything about it. This is an easy fix to a small part of a much larger problem. That we are unwilling to evict this ridiculous and horrible student group from University property is evidence that the Board of Regents is helpless and a little hopeless. It is clear to me that the members of this Committee voting to decline to send this matter for a full evidentiary hearing before the Board are contributing to even more hostility toward American Indian students and cultures. That The Terrible Tribe exists is bad enough. That we are condoning, even supporting, their actions,


Elton Maynard:

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is unbelievable. I say, if we are worried about a civil rights or freedom of speech claim from The Terrible Tribe, bring it on. If the membership of The Terrible Tribe has something to say, let them say it to the full Board of Regents or in court. While I tend to have a different opinion on many things from Chairman Dietrich, it is rare that I find myself so alarmed by her views as today. The notion of a “white male supremacy” running the world from secret societies is fantastical in this day and age. Let me start by noting that it is my understanding that The Terrible Tribe is not a so-called secret society. It is an anonymous student group, virtually unconnected to the University’s funding and support. And like any student group, it asks for and receives permission to meet on campus. I think this is an easy legal and political decision for the Committee, but one fraught with pointless emotion. There will always be students who feel hysterical anger at some perceived slight. Today, we gave up valuable time to hear the complaints of two students who perceived discrimination. All objective evidence indicates that the alleged discrimination neither exists nor has any impact whatsoever. I have nothing further to say about this matter. This is a much closer question for me than for my colleagues. On one hand, I am in firm agreement that The Terrible Tribe is offensive to American Indian students, American Indian cultures, and American Indian tribes. The Terrible Tribe, frankly, should not exist. But then again, neither should the Ku Klux Klan, or the John Birch Society, or any other racist or sexist organization. But we have to face the reality of freedom of speech. While I am no fan of Mr. Stone’s politics, his argument that the University owes The Terrible Tribe the right to peaceably assemble and associate is absolutely correct. This is a University community where multiple and often conflicting viewpoints should be aired and interrogated. I believe that these students who have appeared before us should be

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airing their grievances and asking the entire University community to think about The Terrible Tribe. Perhaps, over time, The Terrible Tribe will cease to be a force on the campus. If these students and local tribes continue to challenge The Terrible Tribe in the open and not in this semi-closed meeting, then I believe The Tribe will die out. That alone justifies ending this matter, but I raise an additional point for an interested group not present here. As the Committee knows, I am a strong advocate for academic freedom. I understand from the papers filed here and from the oral representations of the parties that one or more University faculty members holds membership in The Terrible Tribe. We as a political body should be wary of passing judgment on the political speech activities of our faculty. To conclude, we have heard today powerful and compelling arguments from many sides of this debate. I look forward to hearing more about this issue from students, rather than lawyers and politicians. Thank you.

CHAPTER

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Indian Literary Fraud Vann Logan’s Novel

Vann Logan, a white man about twenty-five years old, and Radica Smallings, a tall, white woman, sat across from each other at a table in a dingy coffee shop in downtown Tucson. Vann had been working at the café— editing his novel—when Radica approached him and sat down, scattering his notebooks, two coffee cups, and pens. “Vann, we need to talk,” Radica said. Vann all but ignored her demand. “Listen to this first.” Vann read aloud from a letter he had just received: Dear Mister Logan. We received your manuscript entitled “The Novel” a few weeks ago. As you know, the story concept of a male writer struggling with his art and somehow finding redemption is not new or original. Nevertheless, we read the first chapter of “The Novel.” Usually, we do not critique unsolicited manuscripts, but we believe your manuscript compels us to comment. We have four observations. First, one cannot lean against a Saguaro cactus without feeling sharp needles piercing into one’s shoulder and side. Second, anthropologists do not perform surgery on human feet. Third, not all women are bitches, whores, sluts, and otherwise evil progeny of the dark side. Finally, commas are to be used sparingly. No writer has ever been paid by the comma. This publishing house prides itself on giving attention to the outsiders, the experimental, the unique, the marginal, and the voiceless. However, those of us who have had the misfortune of reading all 125

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or portions of your 777-double-spaced-page novel urge you to drop the pretense of writing. Your work is bland, pointless, and falsely idealistic. It is not poetry. It is almost unintelligible and it is not romance. Have you ever been in love at all, even a little bit? It is not pornography. At least then we could defend it from someone. It is not obscene, which would be more interesting. It’s not compelling in any way. In sum, we will not publish “The Novel”. Sincerely, Access Publishing. Radica smiled inside because Vann really was one of the worst writers she had ever read. And he wasn’t a sparkling personality, either, but she just shrugged on the outside. “Yeah, so?” “Well, you’re my friend. Don’t you think this letter is a bit harsh?” “You know, I’d like to publish it in my ‘zine. How about that?” That got Vann’s attention. “Really? That would be great! You’d have to serialize it because it’s so long.” He reached down to his bag and pulled out his manuscript of “The Novel.” He smiled with an unconcealed greed. Radica shook her head. “Actually, Vann, I want to publish the letter. It’s pretty cool. I’ll leave your name out of it if you like.” Vann’s face dropped as the heavy manuscript thudded on the table. “What do you mean, just the letter? You’ll publish the book, too, right? Right?” “Well, no. That thing is a tome and it’s, well, not very good. I like the letter.” Vann crossed his arms. “So, you’ll publish my rejection letter, my humiliation, for all to see, but not a chapter of the work I have put two years into? Is that right?” “Yup.” Vann picked up his manuscript, his notebooks, and his pens and stuffed them into his bag, mumbling under his breath. Radica smoked her cigarette and drank more coffee. Vann walked to the door behind Radica, but turned and stared at her for one last moment. Radica continued to smoke her cigarette without looking back. Vann grunted and said, “So that’s how it is?” Vann staggered out of the café as if he had been beaten by bike chainwielding Hell’s Angels. He began walking home, feeling his body dehydrate in the heat. He walked for several blocks, before stopping in front of the public library several blocks away. He stared up at the building and a smile crept into Vann’s face. A brilliant story idea entered his mind. He produced a cell phone and dialed a friend. His friend didn’t answer so he left a voice mail message.


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“Prevo, I got a great idea for a new story. Listen. Utter hopelessness and despair. It’s perfect. I’ll expand the novel, flesh it out, and tie the unbound ends of the plot. There’re endless plot lines. The main character Titus dumps his girlfriend, quits his job, sells a novel, goes crazy but in a good way. Happy endings. They all love happy endings. That’s marketable. That’s what sells books. That’s what sells anything. I’ll get that six-figure advance. I just know it. Revenge. Titus would get a snippet of revenge, too. Revenge is marketable. Even good guys exacted awful, awful revenge. Audiences cheer it like the primal, frothing dogs they are. Revenge is a happy ending, all by itself. Just deserts.” Vann paused. “No, wait, Prevo! I got it! I got it! I’ll make it about Indians! Indian stories sell like crazy! You’re going to love it. Everyone’s going to love it. The book will sell five million copies and get over-analyzed by literature professors and students all over the world. The film rights would go for millions. It’s full of suspense and humor. Love and lust. Sports and philosophy. It’s religious with an R rating. Taoist and paranoid. Rich and poor. Married and divorced. Loyal and left for dead in Canada. Rest in peace. Live long and prosper. Free and kept. Something for everyone. It’s all about the Indians, like a universal philosophy that ties everything together. It makes so much perfect sense. I finally figured everything out. I don’t want to be arrogant, but it’s amazing! I need you to help me think of a title. Call me back, you rat bastard.” Hours later, Vann waited for his friend Prevo to show up at their shared favorite dive bar, DoubleZero. It was a weekday night and DoubleZero had only a few customers. Though Vann frequented the joint, none of the regulars liked him. Since he tipped in dimes, the bartender Sera didn’t like him either. “What else can I get you, Vann?” Sera asked. Vann was drunk and slurred his words. “You don’t know who I am. But soon you will.” Vann stood and motioned with his hand at the people in DoubleZero. He began shouting. “You’ll all claim to be my friend someday. I’m gonna wallow in fame and women, spending money like a fiend, maybe blowing everything on cars and booze. I’ll try everything I was too scared to try when I was poor and unsuccessful and anonymous. I’ll buy into the rock’n’roll lifestyle, just like Dylan Thomas. I’ll fall for a woman looking and dressing like Angie Dickinson circa 1966. I’ll carry illegal and unregistered firearms like Puffy or Tupac. I’ll make cameos in movies and join a star-laden punk band. Attend parties and get young women wearing short skirts to follow me back into someone’s room to show off my new silk underwear. I’ll smoke chiba on TV interviews and dare the Bush Administration to stop me. I’ll write a terrible, experimental second novel and pay some New York Times reviewer to claim the book was the second

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coming of William S. Burroughs. I’ll have an entourage of junkies and beatnik fakers. I’ll appear naked on magazine covers and date celebrity blondes. I’ll meet up with Radica at one of my book signings and she’ll want me back and maybe I’ll go with her for a time. For a quickie. For no reason at all. Not for a million dollars. I’ll secretly kill a man and use my influence to cover up the evidence. I’ll go to rehab. I’ll wear ugly clothes to awards shows. I’ll get drunk, visit the graves of famous dead people, and piss on them. I’ll be tough and mean, but always give money and time to charity. I’ll appear on talk shows and outsmart the hosts. I’ll die young. No, I’ll fake my death.” By the time Vann had finished his rant, a large man named Keith with a tattoo of the angel of death on his right arm had dragged Vann out of the bar and onto the street. Vann, unaware that he’d been dumped on the sidewalk, produced a $100 bill. “Yeah, there will be a bidding war and everything. Drinks on me, suckers.” Two years later, anthropologist June Alison sat across from talk-show host Linda Mattie. On a table between them were two cups of coffee and a copy of Vann Logan’s, The Unifying Native, his first book. Linda looked at June with all seriousness and asked, “So, what you’re saying, June, is Vann Logan’s book on Native culture is a truly remarkable achievement.” “Absolutely, Linda. I’ve been an anthropologist for thirty years and most of my studies have revolved around Native belief systems and their interaction with the pre-contact culture.”1 “And by pre-contact, you mean before Columbus discovered America.” “Exactly. As we’ve all learned in elementary school, Native Americans lived in a highly isolated world. They were living in an ideal Stone Age neighborhood. If we could look into that pre-Columbian age like a fly on the wall, we could see exactly what Native Americans were doing. That’s the whole point of anthropology.” With her body language, Linda made sure the audience knew she was very impressed. “Fascinating.” June continued. “Vann Logan has revolutionized how we study Native culture. He has written a book exactly how a pre-Columbian Native would have written it if he knew English. His book is an authentic message from a society that no longer exists in pure form. It’s the equivalent of finding the missing link on the evolutionary scale. We don’t have to rely on modern Native writings tainted by hundreds of years of assimilation and oppression from European society and religion. Now we have Native religion, culture, and history told as though by a Homer-like storyteller.”


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“Homer, as in the Homer that wrote the Odyssey, right?” “Correct.” Linda returned to the script the producers had put together for the interviewer. “But anthropologists aren’t the only scientists enthused about the book, are they.” “That’s absolutely true. Logan’s book touches on so many different topics. Religious scholars, legal scholars, physicists, medical doctors; so many different fields are implicated in the book. Logan describes how a simple longhouse society created a complex and almost perfect version of democracy and gender equality based on religion, astronomy, and division of labor and wealth. Nobody has seen everything in Native society put together so perfectly.” Linda was spot on. “And it’s amazing that Vann Logan, a member of a Native American tribe in upper Michigan, only recently discovered his heritage.”2 “It really is. It shows how Native peoples can survive through the worst of intergenerational subjugation and still maintain an almost collective unconscious history. The fact that a thinker like Vann Logan exists is truly remarkable. And to come from an oral tradition and place it all down on paper is an incredible achievement. It simply hadn’t been done before. Carlos Casteneda has nothing on Vann Logan!” Two years later, talk-show host Luke Noble sat behind a desk near a comfortable couch on a stage before a live audience. A sign he can see said, “On Air.” He drank coffee and smiled with a professional gleam. “Ladies and gentlemen, Vann Logan!” Luke, the seasoned talk-show host, was astonished by the enormous applause generated by the studio audience when he said Vann’s name. He looked over to his right and saw Vann standing on the end of the stage looking very well dressed, nervous, and drunk. The applause continued unabated, but Vann did not move, smiling with a vacancy in his eyes. Luke knew what to do. He stood while applauding and moved toward Vann, grabbing Vann’s hands, and leaned into him to whisper something. “I know you’re just a drunk flash in the pan, so keep smiling, loser.” Vann’s eyes widened, but he was energized by the insult. He disengaged from Luke and made a sweeping tour of the stage, waving and smiling, before taking his seat on the couch. “Thanks for having me, Luke. I’ve never seen your show but I’ve heard it’s improving.” The audience erupted in gales of unrehearsed laughter and Luke smiled, hating the man to his right. “The book is called, Sawnawgezewog: Tales of

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the Ogemuk. Made the New York Times bestseller list, I might add. So tell us about the book, Vann.” The audience applauded again. “I think it’s poetry. It’s an anthology of pop culture and mastaba madness. My own depersonalized political biography. I talk about my days spent in tiger traps set up by the Montana Luddites, the monotony of video games and talk shows hosted by impotent neophytes, and the enfeeblement of clandestine enigmas. It’s verse. It’s a love sonnet to a bird. It’s short and to the point. It’s . . . .” Luke had to interrupt. “Hold it. What did you say about talk-show hosts?” Vann ignored his host. “Unpretentious. Real. It goes directly to the inner soulful child in all of us, even those of us who can’t dance or speak in flowery rhyme. The book changes like an acid chameleon every time it’s read again. And it should be read over and over. My mom read it and it inspired her to start a new religion, a new philosophy of motherly goodness. I want to inspire the apathetic to drop their Laodicean immorality and rise up to insist on a new, vibrant M.O. A modicum, a snippet of self-determination. Love the book, forget the author.” The monologue brought the Luke Noble Late Night Show to a natural commercial break. “Well, with that to ponder, we’ll take a minute for our sponsors.” Niko Roberts received an email alert from his high school chum Tahsanchat George when Vann Logan’s newest book, Sawnawgezewog: Tales of the Ogemuk, hit the stores. Tahsanchat had been following Logan’s career since she began attending Harvard, where he taught Indian Studies and was a minor academic celebrity. “Vann Logan—Fraud!” the email’s subject line read. Tahsanchat had sent the email to dozens of people all over the country. It detailed how Vann Logan would be touring the nation’s elite colleges and universities promoting his new book, giving readings and signing autographs. When Tahsanchat called Niko about the Logan book, she was incensed. “He says he’s a Lake Matchimanitou Band member! I called my mom and she said there’s no Vann Logan on the membership list. There aren’t even any Logans or Vanns at all. He’s a total liar!” Niko already knew this. He’d asked his own mother about Vann Logan before. “Well, let’s find him and ask him.” It took some doing. Vann Logan’s website (Sawnawgezewog.com) had a million bits of information about the glory that was Vann Logan, but very little on how to get a hold of him. Niko tried emailing the address given on


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the website ([email protected]) but he kept receiving spam mail about Vann’s next live appearances and links to favorable book reviews. Niko’s University email account automatically blocked everything from Sawnawgezewog.com after that. Niko’s other option was to try to reach Vann’s agent in New York. He called in and the agency’s receptionist answered. “Hawthorne and Milton. Can I help you?” “I need to reach Vann Logan.” Niko knew that was the lamest opening, but he wasn’t sure what else to say. The receptionist seemed bored. “Booking?” “Huh? The receptionist then sounded annoyed. “Do you want to book Mr. Logan for an appearance?” “No.” Niko wasn’t sure what to say. He knew he couldn’t very well say, “I want to know the truth about Vann Logan’s Indianness.” He thought for a moment. “Does he have a way to contact him? I’m a fan.” Niko knew that wasn’t going to work either. The receptionist had a pat answer. “Why don’t you try to reach him on his blog?” Niko hadn’t thought of it. “Okay.” Niko and Tahsanchat began sending comments to entries that Vann put on the blog. On the appearance in Albuquerque, Niko asked, “Are you really a member of the Lake Matchimanitou Band? What’s your tribal ID number?” On the appearance in Seattle, Tahsanchat wrote, “I think you’re a fake Indian, like Jamake Highwater. My mother is LMB and you sure as hell don’t speak for me.” And so on. While Tahsanchat’s comments were more antagonistic than Niko’s, within a few days both of them were banned from the blog. Vann’s blog was about celebrating Vann and his work, not about answering tough (or obnoxious) questions from angry Indians. “What now?” Niko asked over email. “We start our own blog, I guess,” Tahsanchat answered. She had already done it, as a matter of fact. It was called, simply enough, “VANN LOGAN—FRAUD BLOG.” Tahsanchat posted several entries in the blog about Vann’s representations that he was a member of the Lake Matchimanitou Band and how it wasn’t true. Niko added other entries about how Vann had been given the chance to respond but explained how difficult it was to contact the author. He offered Vann a chance to personally respond to the allegations on the blog, even going so far as to suggest that Vann might be using a pseudonym

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instead of his real name. Niko hated bad-mouthing people he didn’t know and wanted Vann to be the real deal. Tahsanchat was tougher. She argued that Vann’s membership (or lack thereof) in the Band wasn’t relevant. She began a detailed critique of Vann’s two books. Tahsanchat and Niko knew that the representations made in the books about Ottawa and Anishinaabe people and culture were in wild variation from what they had been taught by their own parents, grandparents, and others. Tahsanchat attempted to document these discrepancies. A week after the blog started, the blog host cancelled the blog. Attempts by Tahsanchat to restart it under different names failed. They had been tagged. Tahsanchat continued the campaign to discredit Vann Logan through email and by posting comments on every blog she could find, but never seemed to get much attention. Radica Smallings, formerly of Tucson, Arizona, had begun her career as an English literature professor at the university where Niko Roberts attended school. While she was not an American Indian in any way, she specialized in writing about American Indian literature. Her dissertation on the poetry of Sherman Alexie, published by the University of Oklahoma Press, won an award for the best monograph on American Indian literature. She had known Vann Logan from his beginnings as a writer in Tucson—and she never liked him much. Because of her personal animus, she was reluctant to study and critique Vann’s work. But in her final two years before she would be up for tenure, her tenure advisory committee recommended that she begin to study Vann’s writings. His books and short fiction were all the rage in the field and Radica’s committee thought it would be a good fit for Radica. Radica was skeptical but she took up Vann’s first book, The Unifying Native. After just a few pages, she was hooked. Vann’s book horrified and enraged her. She couldn’t believe it. She had once read a portion of his unpublished manuscript, The Novel, and dismissed it. It had spelling errors and serious grammar problems, but those were correctable. What The Novel lacked was any sense of structure, narrative focus, morality, and anything appealing at all. The characters were shallow and unfocused and the plot was predictable. Radica suspected that Vann had taken about four or five chapters of his manuscript, added references to pan-Indian philosophy and spiritualism that could be found in books in grocery store checkout counters, and changed one of the characters into an Anishinaabe Indian—and then called it The Unifying Native. While Radica never professed to be an expert on specific American Indian cultures and especially about the Anishinaabek, she knew from reading the first few pages that


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Vann didn’t know anything either. He just made it up as he went along. What was clear to her after she finished the first book and started on the second (a rehash of the rest of The Novel, again changed into a book about Indians) was that Vann had created a literary career by exploiting an Indian identity that didn’t exist. Radica had informed her tenure advisory committee that she had known Vann Logan before he was famous. She described in great detail how he was a vilified man in her peer group. She told them that she never heard him talk about being an Indian, that he never mentioned anything about knowing any Indians, and that as far as she knew he hadn’t ever left the state of Arizona. Her committee recommended that she continue to study Vann’s work because it was so popular, but to stay away from using her personal knowledge of Vann to discredit him. “For all you know,” one of the committee members said, “he could have been hiding his identity for years. Maybe it was part of an intergenerational post-traumatic stress syndrome.” Radica couldn’t argue with logic like that. Radica did publish several short articles critiquing Vann Logan’s fiction. One article argued that Vann’s work appeared to associate pan-Indian spirituality with the Anishinaabe culture and traditions. Another argued that Vann’s characters who used peyote as a religious sacrament was culturally false because Michigan Indians never adopted the peyote religion en masse. Other articles just critiqued his work as bad fiction. Most academic articles on Vann’s work, on the other hand, hailed Vann Logan as one of the greatest writers of American Indian literature. As Radica entered her last year before her tenure review, she signed a book contract to write the first serious monograph-length critique of Vann Logan’s work. Since Radica worked at a university in Michigan where the regional Indian tribes—the Three Fires Confederacy of Ottawa, Potawatomi, and Chippewa tribes—referred to themselves as Anishinaabe, she had many Indian people upon which to rely to learn more about their culture and traditions. Few Indians she met on campus were big supporters of Vann Logan’s work. But the American Indian faculty members on campus were split down the middle. Of the ten American Indians who taught at the University, only two were Anishinaabe. Both of them taught in the American Indian Studies department and thought Vann’s work was lousy. Of the eight other American Indian faculty members, five favored Vann’s work. The American Indian faculty members had formed a small, informal study group as a means to get together, share experiences, and read and study recent works on American Indians. They asked Radica to give a talk to discuss her work on Vann Logan. They promised it would be informal and non-judgmental. Even the faculty members who liked Vann’s work had no problem with Radica’s critical papers.

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In her prior work, Radica had been careful to leave out the question of Vann Logan’s American Indian identity. She was fearful of being wrong about Vann’s tribal membership or Indianness—until recently. Moreover, because she herself was not Indian, she felt uncomfortable critiquing another’s Indianness. However, with the larger book project under way, she had been looking for new angles with which to study Vann’s work. As such, she had been one of the few people to find and read the VANN LOGAN— FRAUD BLOG published for a brief period of time by Tahsanchat and Niko. She was intrigued that persons from the community that Vann professed to be from had denied his authenticity as a member of their community. She had called the Lake Matchimanitou Band to confirm the assertions in the blog, but they did not release that kind of information to the public. She decided to craft an argument about Vann Logan’s Indian identity anyway, figuring that she could ask Vann or someone else to confirm or deny his identity. She believed it was a lead into a larger project— whether people who are Indian have more authority to speak on behalf of or about Indian people than people who are not Indian. And that question could lead into other questions—such as who is an Indian? What is American Indian literature? Radica had yet to flesh out her topic when she agreed to meet with the American Indian faculty at their informal workshop. She gave a fifteenminute presentation. The faculty members clapped politely. And then for the next ninety minutes, they proceeded to tear each other apart like hungry wolves. Radica’s work went all but untouched as the American Indian faculty members of the University split into at least three (and possibly more) conflicting groups. One group believed strongly that the only people competent to discuss American Indian art and culture were American Indians; and the way to prove one was an American Indian was to document American tribal or Canadian First Nation membership. The rest of the faculty, more splintered, argued that anyone could write about American Indians, so long as they were careful and respectful. This group, larger than the first hard-core group, split into two camps over the question of who was an Indian. Shouting, personal attacks, and weeping filled the air. Some of these professors who had always been cordial before would never speak to each other again in anything other than single syllable, polite conversation. Friendships ended that day, possibly forever. It appeared that these disputes were always present in this group of faculty members, but that Radica’s paper had brought these issues to a head. Radica had no idea what had just happened. They never even critiqued her paper.


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Niko Roberts and Hero Shenanoquet enrolled in Radica Smallings’ advanced American Indian Literature seminar without knowing about her relationship to Vann Logan. It was a small class of just nine students. Niko knew a few of the others from the University’s Native American Students Association, but not well. He had met Hero during the orientation session the summer before they started college. Hero was from Drummond Island, just north and east of the Mackinac Bridge in the Upper Peninsula. On the first day of class, Niko saw that they would be reading excerpts from Vann Logan’s two novels. He approached Professor Smallings. “Don’t you know who this guy is?” Radica had recognized Niko’s name from the VANN LOGAN—FRAUD BLOG. “I do. I’m writing a book about how awful he is.” Niko smiled. “Then I’m in the right place.” As with the American Indian faculty, Professor Smallings’ seminar exploded with arguments about Indian identity when they began reading The Unifying Native and Sawnawgezeowg: Tales of the Ogemuk. Professor Smallings began her class with the question, “Is Vann Logan an Indian? And does it matter?” A white woman named Catherine answered first. “Yes and no,” she said. “It says he is an Indian on the book jacket, from Lake Matchimanitou. If he says he’s an Indian, that’s good enough for me. He looks it, too. And second, it doesn’t matter. The literature stands up for itself.” Niko jumped in. “I have fairly serious doubts that he’s actually an Indian. He says he’s from Lake Matchimanitou. That’s where I’m from and I’ve asked around, friends and relatives, if anyone knows him. None of us do. Of course, he could have been adopted out or he could have been a part of a family that moved away decades ago. But he’s not on the enrollment list and no one claims to be his relative. That’s significant to me.” Catherine answered. “But assuming he’s not from your community, he looks like he’s an Indian of some sort.” Hero said, “Its one thing to be an ‘Indian,’ maybe even not knowing what kind of Indian you are or where your relatives are. There are Indians in my family that moved away a long time ago who didn’t know what tribe they were until we found them a few years ago. That’s understandable. But what’s very troubling here is Logan’s assertion that he’s from this specific community. He’s either lying or playing some sort of weird game. Maybe he changed his name.” Niko laughed. “That was my theory.” Professor Smallings wanted to redirect the class back to Catherine’s second point. “Let’s say he’s not an Indian at all. Forget about the representation or misrepresentation that he his. What if he’s Tony Hillerman and is just a white guy writing about Indians?”

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Niko said, “Still don’t like it. Tony Hillerman raises a whole new question. But I don’t think we can forget that Logan made this representation. We can’t discuss the second question in a vacuum.” A white student named Rick piped in. “I don’t see why non-Indians can’t write about Indians, or even like Indians. Women write from the perspective of men and vice versa all the time.” Another student, Else, who was Chinese and Korean, said, “Gender is different than race. I can’t explain why. I just know it.” Tina, an African-American student, said, “I agree. I’m not sure I can explain, either, but I think of it like this. Sexual orientation, while an immutable characteristic, isn’t black or white, excuse the pun. One can be somewhere on a continuum. I know there are theoreticians who believe that gender is on a spectrum as well. Some believe that there are far more than just two or even three genders. Race, on the other hand, isn’t the same. In this case, you’re either an Indian or you’re not.” Niko nodded, but he was a little troubled with the implications. “Well, coming into this class, I would have agreed. I’ve always believed you’re either an Indian or you’re not. Now that I think more about it, I can see how one could characterize Indianness on a continuum. Imagine an Indian who grew up and lived his or her whole life on reservation lands, speaking the language and maybe doesn’t even know much English. Compare that Indian to me or Hero. We grew up on our reservation, but we don’t speak the language well—even though we both get As in Anishinaabemowin class—and we’re here, off the reservation getting our degrees. There might be a few Indians in the first category who question our Indianness. Of course, the law treats us exactly the same because of our tribal membership, a political relationship between us and the tribe and the federal government. Okay, now I’m going off on a tangent, but I’m starting to see how there can be a continuum.” Hero offered a nuance. “But there are still limitations. I don’t buy the notion that a person with no blood connection to an Indian community or a person without any social connection to an Indian community can be an Indian.” “That brings me to another question,” Professor Smallings said. “What if Vann Logan isn’t Indian by blood, but became an Indian by living with Indians, writing with Indians, and just being Indian?” “Like Jamake Highwater!” Catherine exclaimed. “Exactly,” Niko said. “Well, sort of. We’re supposed to take his word for it. But he engaged in flat-out fraud because he knew all along he was no Indian.” “But you seem to be saying yourself that there’s a continuum. At one end are the reservation Indians, for lack of a better term, and at the other


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end are Indians who aren’t Indian, again, for lack of a better phrase. I don’t see why someone like Jamake Highwater can’t write as though he were an Indian. What if he knows more about being an Indian than many Indians, like Hero’s relatives?” Hero said, “Just can’t. Any more than I can say my name is Catherine, that I know about Catherine, I took a class with Catherine, and I’m going to write as Catherine. What would you do in that circumstance?” Catherine just shrugged. Another white student, Eliza, said, “What if being Indian is just a social construction? What if race or ethnicity had nothing to do with it? I don’t think Hero can reconstruct himself to become Catherine, but he could reconstruct himself to be a white writer.” “But I’d still be Indian,” Hero said. “Even if I wanted to stop being an Indian, have a blood transfusion or whatever, I couldn’t. But with enough make-up and the right clothes, I bet I could look just like Catherine.” Professor Smallings redirected the class again. “What about the real question here? Can Vann Logan write with any kind of authority on American Indian people and culture? While you consider that broad question, imagine this. What if Vann Logan’s first drafts of his novels had nothing in them about Indians, with no Indian characters or settings? And he couldn’t get those novels published, so he added Indians to the novel and that was the reason it was published?” Niko said, “Well, that assumes there’s a market for Indian writers and Indian novels, more so than, say, a white writer and novel market. Not sure I buy that premise, but, assuming I did, that’s the epitome of horribleness, excuse my French.” Hero said, “That’s exactly what we think happened. I read these excerpts thinking that the material about Indians were superfluous, unnecessary to the plot or to any of the characters. While some characters are Indians and some of the settings are in Indian Country, they easily could have been non-Indians in a non-Indian setting. Other than the weird monologues about how hard it is to be Indian in this day and age, there’s nothing in here that offers anything to me as an Indian.” Catherine was skeptical. “How do you mean?” Niko answered. “Well, when you go to a movie by Sherman Alexie and there are some Indians in attendance, they laugh at things that the nonIndians miss. It’s like there are two movies going on. One that works for non-Indians and one that works for Indians.3 When you go see Dances with Wolves, it might still work on the level that is marketed to nonIndians, but it doesn’t have the same meaning to Indians. It’s only one movie, a movie for non-Indians. Indians might still like Dances with Wolves, like my relatives, but they really liked The Business of Fancydancing

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and Christmas in the Clouds. And guess what? You never heard of those films because they, too, only worked on one level—the one for Indians. Non-Indians didn’t get it, so they didn’t go see it. I guess I can’t explain it better than that.” Catherine said, “I guess I don’t see it so well, either, but your description does make some sense to me. I guess you’re saying that a Tony Hillerman novel works on the level for non-Indians, but doesn’t necessarily work on the level for Indians, but that Indians might still like those novels.” Niko and Hero both laughed. “Sounds good,” Niko said. “I’ve never read much Tony Hillerman. My aunties like good mysteries, so they like him a lot.” After class, Niko and Hero walked over to the café for some strong fair trade brew. “I thought that went well,” Hero said. “They don’t get us and we don’t get them, either. But it’s okay. It’s cool.” “But Vann Logan, man,” Niko said. “It just makes me mad that he’s so popular and he’s so fake.” Hero paused while they sipped their hot coffee. “You know, for a minute there, I thought you were going to bring up your grampa. What’s his name? Toledo?” “Yeah, that’s a sore spot. Toledo Mark—the Indian who gave it all away to live in Cass Corridor.” “Can you stop being an Indian by moving away?” Hero asked without expecting much of an answer. “Like Standing Bear,” Niko muttered.4 “Who?” Hero asked. “Look it up.” Vince Cassetta didn’t have anywhere to go that day, so he put on his winter army coat and walked over to the Park Henry. It was about a four-block walk, over the Lodge, past Cass Tech High, and down Henry Street to the corner of Park. A nice day, really—the sun piercing through the stale pollution and the freezing clouds for once. As a kid, he would’ve been playing football or stickball on Henry Street on a day like that, but he weren’t no kid anymore and the street hadn’t been the same since the riots in ’67. The street turned into the toothless maw of an old man, a life-long smoker dying from everything. All of the buildings lining the west side of the street were burned out or demolished. It used to be a neighborhood, but the riots dragged it into decline and the highway system choked it off from downtown. Henry Street would not recover in Vince’s lifetime, if


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ever. The Henry Street neighborhood, the only place Vince had lived for over sixty years, weren’t no neighborhood no more. It was an abandoned building. Indian Ben was sitting at a bar when Vince stepped in. Ben usually started his day at the bar around noon with a couple shots and the Detroit Free Press. He’d check on the scores and the day’s pitching matchups before heading over to his bookie’s and then to the Polish vets club to spend the rest of the afternoon. Vince was glad to see his old friend. Indian Ben wasn’t his real name. It was just what everyone called him. Vince didn’t even know Indian Ben’s real name. They had once been very close, even part-time business associates in the eighties, but drifted apart after a dispute over a set of old golf clubs. Vince rarely made it over to the Park Henry before four and Ben split before two. They never really bumped into each other anymore. “Hey-hey!” Ben said, watching Vince out of the corner of his good eye. “Lemme buy you a drink, old man.” He signaled Sera, the bartender with a bandaged thumb, for a Budweiser. Vince hated Budweiser and Ben knew it, but Vince had never turned down a free drink and wouldn’t start that day. Still, thin gruel-like beer was hardly the way to start the day; not like a good stiff one. Sera deposited a cold can on the bar in front of Vince, placing it with care on a small bar napkin. She looked at him with her eagle eye and he shrugged. His bar tab was getting up there again. Vince adjusted his wide butt on the old wooden bar stool, the stool’s coverage too limited to be comfortable. His choneys always rode up and his ass cracked, just like it did when he worked highway jobs in the sixties. In his friendliest voice, Vince said, “How’re you and your bookies getting along, Ben?” Ben didn’t answer at first, intent on reading his newspaper. Vince had never seen Ben read anything but the sports page and failed to notice that Ben was studying the classified ads. “Pistons won last night, I hear,” Vince added. He thought he knew Ben’s habits and personality. “Yeah, well, I don’t like the Pistons anymore,” Ben said. “I’m more into a good deal these says.” Vince nodded. In his mind, Ben was always irritated about one thing or another and grouchier than a stubborn mule with arthritis. Vince just smiled and shook his head, giving up on his old friend, letting his buddy grow old and bitter. He looked up at the old Panasonic sitting up on the bar by the dusty ceiling. Same Iraq occupation coverage he’d seen at home, so he turned around on his stool to have a look around. Park Henry was dank. No matter the time of day or the weather outside, it looked like Sunday dollar pint night inside. Everyone who frequented the

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bar was a drunk—and a good number of them were urban Indians. People did not come in to the Park Henry to meet men or women or grab a bite to eat. A thin layer of bar dust always coated the pitted cement floor. The juke in the corner rarely played and, when it did, the only sounds were of classic country standards or Brat Pack crooners. No one played the video poker machine in the corner anymore, not after the novelty wore off and the big three casinos opened. Sera’s dad, Big Jim, the first owner, furnished the joint with tables and folding chairs he stole from the United Methodist Church over the years, a pair at a time. Vince saw Bob and Maggie in the corner, both reading worn paperback romance novels. Though Bob and Maggie were in their seventies (or was it eighties, already?), the Park Henry regulars considered them the newbies because they has just started coming around just five or six years earlier. Vince finished his can of beer and said their names. Bob said Vince’s name in return, nodding back at him. Looked like Maggie had her regular scotch and soda and Bob his Jim Beam neat. They sat alone at the same table every day. Bob smoked unfiltered Luckys. Maggie smoked Camels. They’d smoked the same brands since Dubya Dubya Two and neither could see fit to adjust their habits in their old age. On some days, Bob would wear his old flak jacket and tell stories about the bombing of western France and how he used to go out drinking with Howard Zinn. Vince recalled the day he met the happy couple. They rented the bar from Big Jim for their wedding reception. Vince arrived at the bar at his regular time unaware the Park Henry was on sabbatical for a day. The wedding party—the newlyweds, four grandchildren, and a truckload of mooching cousins—invited him to stick around for wedding cake and booze. Man, it had been five, six years already. Vince once asked them what kind of Indian they were. Bob answered, “Nish.” Vince never heard of it. John Carlson and Bert Widing walked in and sat down together. Sera brought them two longneck Molsons and the men huddled together like they always did. They were Navajos. Vince used to think they were criminals, but no one else responded when he complained so he quit mentioning it. Still, they always seemed to be plotting and scheming. Or maybe they just kept to themselves. Vince’s piles started screaming at him like an early morning infant. Sitting on the bar stool had just about given him the business but good. He stood and pushed the stool away, standing to fill the space beside Indian Ben. After the initial flurry of interaction, Ben and Vince settled down to ignoring each other in the manner of an old couple. Ben was never much for saying “hello” or “good-bye” or “excuse me” and he even apologized once for being rude. Where he came from pleasantries were implied, a


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waste of time, and usually when someone took the time to say “hello” they were probably trying to sell a piece of plastic garbage or steal land. It was only a few months after the riots that Indian Ben first moved into the second floor of 459 Henry, looking like he was running away from people or deeds, the only man actually moving into Cass Corridor and not away. Some years, Ben didn’t spend much time at all on Henry Street, but he always kept the place and he always came back. Vince had started calling him Indian Ben. The name stuck and Ben seemed to enjoy the handle. “Where you from?” Vince asked that first day. “Eagletown, Michigan,” Ben said. “A little north of Traverse City. I’ve lived all over the place, though. Hell, I even lived here off’n’on for ten years or so.” “Hell you have. I ain’t never seen you before, I been livin’ here my whole life.” “Yup. Lived mostly over by the Temple. Some time in Dearborn, too.” Vince understood. He never made it over by the Temple. He figured if he left them Blacks alone over there, they’d leave him alone right where he was situated. The logic mostly seemed to work for Vince until ’65 and then those people just went anywhere they damn well pleased. He didn’t care much. He weren’t prejudiced. Hell, wasn’t a goddam Indian damn near his best friend? “You got a family, pal?” Vince asked back then, trying not to be nosy but unable to help himself. Ben had a few in him by then. “Let me tell you what, mister. Don’t ever go marrying a woman that can drive a car faster than you can. Takes the co-jonies right out of a man.” He mumbled something that sounded like “Eagletown woman, goddammit.” Vince drank to that. He understood woman troubles. He put his large, calloused hand on Ben’s shoulder. Ben had tensed and stared hard at the bottles on the bar by the mirror. Vince pulled his hand back and said, “Well, it’s good to meetcha. I’ll buy you a drink to welcome you to Henry Street, but first you gotta tell me something.” Ben didn’t say anything. “What kind of Indian’re you, anyway?” Ben looked down at his drink and the sloppy bar top covered in cigarette ash and drops of water and booze. “What difference does it make? Indian is Indian.” They had both aged like bad cheese since that day they met in ’67 or ’68, neither could remember exactly when. Vince picked up a spare tire or four and two bad kidneys. Ben only had one bad kidney and one spare tire, but had also acquired a gray head of hair. Vince retained his red shock of hair, the hair that drove all the ladies wild after the war, though it faded some,

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like an old lampshade. Vince never learned what kinda Indian blood Ben had flowing through his brains, but it must’ve been smart Indian blood. Between the two of them, Ben knew all the answers, fixed all the cars, solved all the problems, and came up with all the ideas. Ben ordered another whiskey neat and Vince matched him with his regular JD rocks. Vince realized once and for all that, though they shared adjoining space at a near-empty bar, as close as lovers, they were not friends. Everyone in the bar knew them both and saw through Vince’s pretensions. All their debts to each other had either been forgiven or paid, but the friendship was kaput. It had been that way for over fifteen years, but still Vince stood there sharing space with his old compadre, his former business partner—the best friend he ever had—and pretended enough to fool himself for a little while. Ben studied his paper and Vince flirted with Sera. They drank without speaking, each doing their thing. The illusion ruptured when Ben’s grandson Niko stepped in the Park Henry. Ben’s eyes lit up and he moved off the stool with surprising dexterity. He proudly introduced Niko to everyone in the bar, embarrassing the young man as he dragged him around to shake everyone’s hand. Niko looked to be about twenty-five to Vince and he had a wild mane of dark brown hair. He looked alive, vibrant, hopeful. Vince doubted if he’d ever look as energetic as that kid ever again. Ben explained that Niko was a few months away from graduating from the University Law School in Ann Arbor and everyone was impressed. Ben spoke often of him in the last few years, the kid coming around to meet his grampa and having a drink with the old man now and again. Everyone met the kid and looked upon him as fresh blood—the good kind, not some stuck-up young punk trying to scam his gramps out of a pension check. That was how they looked at their own kin. Finally, Ben brought Niko back to the bar and introduced him to Vince. Vince shook his hand and said, “So, what kinda Indian’re you, anyway?” Without hesitating, Niko looked Vince in the eye and said, “Lake Matchimanitou Band Ottawa.” The revelation shook Vince a little and he let go of Niko’s hand. He wasn’t used to Indians looking him in the eye. Ben didn’t look him in the eye unless he was angry and, even then, only for a second before the punch came. It had always seemed to Vince that Ben had something to hide or, Vince suspected, Ben felt intimidated by whites. Maybe even inferior. Niko showed none of that. He looked like he belonged. Ben didn’t acknowledge Vince after that, talking to his grandson like an old friend, best friends even; just like Ben and Vince way back in the day. Niko drank a cup of coffee while Ben finished a special cocktail prepared special for him by Sera. They talked about Niko’s gramma Emma, about


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how she was thinking about going back to school to get her MBA. About Emma, Ben didn’t say much. He just nodded, staring at his drink. Eventually, they put on their jackets and turned to leave. Sera ducked underneath the bar top to give the old Indian a big hug, looking to Vince’s astonishment that she was on the verge of tears. “See ya later, Toledo,” she said. Vince had never heard Ben’s real name before and his jaw dropped. Bob and Maggie and John and Bert stood up to say farewell, Maggie dropping a big wet kiss on the old Indian man’s cheek. “Take ’er easy, old Ben,” Bob said. Sera couldn’t say anything. The meanest, cleverest bartender Vince ever knew, a woman that grew up in the Park Henry Bar, couldn’t say a damn word. She ducked back under the bar top and turned her back, wiping her eyes along with her damp pint glasses. They seemed to be telling Ben good-bye for the last time. Indian Ben was leaving Detroit, heading back home to Eagletown, they said, for good. Vince felt devastated. He remembered hanging out at Ben’s place on the second floor at 459 all those years. Ben kept everything forever, his small place cluttered with junk and possessions beyond any sense of reason. It must have been back in ’81 or maybe ’83 when Ben brought Vince upstairs to give him a birthday gift, six weeks late. It was one of those new Betamax players, complete with a couple of bootleg tapes. Back in those days Vince walked around trying to be tough, but it was his first birthday gift since before his wife took off with his two daughters. He wept like a fouryear-old. And now Ben was leaving for good. Vince had never given him anything. Ben finished his drink and turned to Vince for the last time. Ben put out his hand. He said, “See you around, Vinnie.” No one ever called Vince that pet name except Ben and only when Ben was in a good mood. Vince swallowed hard and took his old friend’s hand. “Where you headed?” Ben smiled and looked at his grandson, who was standing at the door lighting a cigarette to keep his lips warm in the cold Detroit air outside. “Out that door over there.” The men shook hands. Vince watched Ben leave. He stood without saying a word at the bar for ten minutes after Ben left. Then, after Bob Barker bid farewell to the viewers of The Price is Right for the last time, Vince pulled out a couple twenties he’d been saving for something special. He paid off his tab and bought the house a round. He and the rest of his companions spent the rest of the day talking about home.

CHAPTER

7

Indian Cultural Restoration

Toledo Marks’ Return

Toledo Marks unwrapped the pipe in public for the first time as a pipe carrier. Twenty-five expectant fourth graders watched without making a sound. “It is no small thing that I show you this pipe,” Toledo said. “Just a few decades ago, I could have been prosecuted in some places for showing you this pipe.”1 After decades of living away from his hometown, Eagletown, Toledo had come home after a pair of requests. The first, from his grandson Niko Roberts, was personal. Niko had just completed law school, passed the state bar exam, and would be moving back home to work as a staff attorney for the Lake Matchimanitou Band. He wanted his grandfather to be a part of his family again. The second came while Toledo pondered his grandson’s request. Until he received the second request, he was inclined to stay where he was and turn down his grandson. A difficult thing to do, but he was used to choosing the harder path. But the second request came from Ben Manitou, the grandson of the man that raised him many years earlier, also named Ben Manitou. Toledo hadn’t spoken to any members of the Manitou family in many years. They had drifted apart. Ben was barely twenty years old and he was dying of a rare form of cancer. “I’m the last person to carry this pipe. I can’t pass it down to just anyone. The old man didn’t think much of you, we all know that. But you know the ways of the old ones. You speak Anishinaabemowin. You know the meaning of this pipe and what to do with it.”2 Toledo knew that he would be condemning himself to a very special place in hell if he turned down these requests. He was a very old man, but 145

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he still had his health. And Ben was right. Toledo knew that a great many elders had walked on in the last years. And Ben was one of the few in the modern generation that had learned the old ways. Toledo decided to take on this final obligation. Within a month, Toledo had relocated from Detroit to Eagletown and took a job as a cultural advisor with the Band. Over that time, he had accepted the pipe from Ben Manitou, who was fading fast. Toledo Marks, who grew up in Eagletown with the Manitou family, was a runt castaway abandoned by his mother for good when he turned two. She was quits with him because he never cried. He never seemed to need anything. She moved out to South Fox Island to live with her grandmother, one of the last ’Nishinaabes out there. Later, Toledo’s mother moved to Chicago to join the Rosie Riveter Alliance and never returned. In her absence, Toledo took to reading right away. The Manitous being a strongly Methodist family, he read the Old and New Testaments, the Apocrypha, and all the hymns written by the Wesley brothers, founders of the church. By the age of eight, he tired of religion and turned to philosophy. He read Bertrand Russell’s History of Western Philosophy, a book left behind by George Manitou, who had attended the University before escaping to China. Before Toledo, George was the crazy Indian in the family. The Manitous were a penitent family. One of the few Lake Matchimanitou Indian families to succeed as farmers in accordance with the terms of the 1855 treaty, they also hoped to abandon their so-called savage ways. The Manitou farm thrived while other Indian families lost their allotments en masse, falling victim to land speculators, fraud, racism, and violence. Benjamin Manitou, the patriarch, funded the building of the Methodist church in Eagletown and often held popular Sunday dinner parties. Toledo distanced himself from the family and the local Indians as he grew older. He delved deeper into Bertrand Russell and even hitchhiked to Ann Arbor to meet the philosopher at a talk. After reading Russell’s Proposed Roads to Freedom, he intently read the local newspapers for political and international news. He felt disgusted by the political era—the McCarthyism, the crypto-fascism, and the lethargy and acquiescence of the American public. He saw amazing and intense poverty in Eagletown, the local Indians struggling to eat and find shelter after the logging industry died down and the Department of Natural Resources shut down sustenance fishing on the bay and the lake. Lack of status of a federally recognized tribe didn’t help. Toledo, always distant from his foster family, read as the Manitous farmed. He often sat in the upper levels of the attics with the flies and the


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bats, reading Joyce and Hobbes and Adam Smith. Reading Marx would have been unthinkable and Bakunin, Berkman, Goldman, and Kropotkin were inaccessible to him in the Lake Matchimanitou area libraries. In 1958, without Ben Manitou’s permission, he applied to enter college at Harvard. He scrounged for the application fee by doing odd jobs for older farmers in the area without enough sons and daughters needed for the manual labor. Harvard turned him down at first. Ben found the rejection letter in the mail and confronted the boy with it. “I know you’re not part of this family,” Ben said matter-of-factly, not intending to cut. He was only five-six, four inches shorter than Toledo, but towered over the young man. Ben used every minute of his sixty years to pound his point home. “I also know you’re not going to be a farmer. You’re too intelligent, too lazy, too weak, and too much a heathen.” Toledo had never heard such language from Ben, who rarely spoke to him or to anyone. Toledo sat down on a kitchen chair as though slapped, mouth open. “Don’t take it badly, boy,” Ben said. “I want you to be famous. I want you to be successful at whatever you do. Mostly, though, I want you to leave.” That evening, Toledo borrowed a typewriter from Nathan Jones down the road and typed a letter of recommendation from his foster father. Toledo spared no exclamation, no adjective, and no reference to Harvard’s legendary obligation to the eastern Indians, mostly scraped clean off the earth to clear the way for settlers and colonists and soldiers and business moguls and Ivy League colleges. Ben signed it without reading it. One month later, Harvard’s dean of admissions wrote to congratulate Toledo on becoming the very last member admitted to the Class of 1962. The same man became dean of the entire school in the spring of 1962. His first job was a half-hearted attempt in talking Toledo into finishing school. All the boy needed to graduate was one lousy term paper, but he just refused. Work called him, he argued with disingenuous perspicacity. Toledo would not speak of the incident again for decades. Emma Roberts’ mother Louise actually named her Angelique Emma Roberts, but it was the Emma that stuck. Emma had a hard time spelling her name at the age of four and asked her mother if she could write Emma on her finger paintings instead. Louise consented. Emma’s father Luke had liked the name Emma after hearing it used in infamy during a radio program in 1952 in which Richard Nixon and Joseph McCarthy condemned anti-Americans and Russian ingrates such as Emma Goldman. Luke had no idea who Emma Goldman was or what she did to deserve such antipathy, but he hoped and prayed that some day his daughter Emma would commit some glorious crime and be reviled by hard-core psychopaths like Nixon. In Luke’s mind, Emma Goldman must have done

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something extraordinary to provoke such a response. If his own daughter could replicate a similar feat, then it would mean than a native child had done good for her family, for her people. It might mean persecution for her, but he would be satisfied that she had lived fully, that she had accomplished things, things that would be remembered. He never mentioned this fantasy to his wife or anyone. The same year Toledo left Harvard to pursue who-knows-what, Luke and his one-year-old prognosticator, Emma, slid on the ice and crashed into a tree on Setterbo Road near Eagletown. The steering wheel impaled Luke just above the navel. He lived for almost an hour before he passed. Emma, wrapped in two very thick blankets, flew through the front window unharmed and landed on a soft, pure white snow bank. She remained there for an hour, looking at her father’s bloodied face as he told her Bearwalk3 and Old Testament stories. The police discovered her sitting triumphantly on the snow bank an hour after the accident. Luke had just passed away and the girl, no longer entranced by her daddy’s stories, escaped the tightly wrapped bundle. She tugged at her underthings, expecting to be changed at any moment. The officer, an Irish anarchist revolutionary in Spain in the 1930s and a keeper of the peace in Michigan in the 1950s, carried her away from the scene to her extreme dissatisfaction, holding her body as far away from him as he could without dropping her. After leaving Cambridge by train, Toledo found work at an aerospace facility in Dearborn after acing the mathematics exam given during the interview process. He lied about his age, he lied about his failure at Harvard, he lied about his family relations—he lied about absolutely everything. He had never taken math at Harvard, figuring knowledge in math only served the military-industrial complex, a phrase he enjoyed using around conservative, hawkish men in love with Eisenhower who never had a clue about what he was talking about. He especially enjoyed informing the same hawkish conservatives that Ike himself had coined the term, not some commie subversive. He applied at the aerospace facility because he actually wanted to prove Ike’s hypothesis false. If the world did revolve around the military-industrial complex, and if there really was such a thing, he would be very disturbed. Riddler-Knight hired Toledo on the spot. He had tested higher than any applicant ever before him on an exam written by the one and only Albert Einstein. They put him in the experimental physics lab with a crew of hard-drinking, college graduate, math wizards. Toledo began to drink and smoke and read pornographic magazines and gamble. Toledo’s very first drink was called Brown Ruin, a drink invented by alcoholic New York City newspapermen (friends of Sam Fuller) during Prohibition. It tasted like liquid horror and he drank three more before the night was over. He


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claimed to have visions. He woke up alone in a bar and meeting hall for Polish-American veterans of foreign wars. The proprietor treated him reasonably well and he would return regularly to that hall for some time. Toledo did well at his job. The men he worked with told him that he must be the exception to the rule about Indians being lazy and slovenly. Toledo quit the job at Riddler-Knight about nine months after he started. He helped to invent the formula that would later be used to develop the fuel-air explosive: D = 0.15 × (0.1 × mass × hc)/3 He developed the formula to help farmers living under the threat of dying of grain-elevator explosions, as well as workers in oil refineries and chemical companies. The formula helped to explain the dangers of accidental chemical vapor explosion. As soon as he completed his report and signed the final paper, he realized that it would be published by a top secret Pentagon research journal and used for military applications long before it could be declassified and used for civilian safety purposes. His supervisor estimated that it would be ten years before the military would allow the formula to be used for public safety. Toledo took the bus to the Polish beer hall and drowned his sorrows until the money ran out a month later. Economics took over and he started serving drinks in the beer hall, but his taste for glasses of Brown Ruin forced the management to make a change. Rather than hitchhike home to the Manitou farm, he took a job at the Ford plant in Willow Run near Ypsilanti. Over the next nineteen years, he worked off and on in the automotive assembly lines in the Detroit metropolis. Emma first saw Toledo at a Tiger game in 1979. The Mariners were in town for a twi-night doubleheader and Willie Horton, former baseball star and cultural hero of the Tigers in the sixties, was the star of the evening for the Seattle ball club. He had aged since his heyday with the Tigers in the 1960s, but that night he lit up the Tigers for a pair of homers in the second game to help Seattle salvage a split. Toledo, sitting two rows behind Emma and her cousin Lizzie, reached over and touched her on the shoulder without saying anything. She decided at that moment that this unusual Indian man would become her partner in life and love. Lizzie, very protective of her cousin, attacked poor Toledo with fists, fingernails, and a Polish sausage, but Emma told her to back down. She liked this one. Toledo spent the rest of the evening charming them both with his stories about the mascots at minor league baseball games in Ohio. A week later, Toledo returned to the Lake Matchimanitou area, bypassing his foster family and heading straight for Eagletown. He moved in with a distant cousin, living in the loft above a garage, and took work picking

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cherries for the season. A month later, he convinced Emma to take a boat out to South Manitou Island. On their first night together in a green, canvas tent on the crescent beach under the full moon and stars, Emma agreed to marry him. She didn’t really believe Toledo was the marrying kind and had no intention of exchanging vows, but he was the one. She knew that. Toledo talked Emma into moving to Detroit, where he claimed to have a job lined up at the new Dodge plant. He had no such job, but he was a convincing orator. He dearly missed his cronies—the drunks he met at the Polish beer hall, the people of color he placed his bets and drank with— and the flea markets and second-hand stores where he obsessively searched for the best bargain imaginable. Emma followed out of love and devotion and because she was already pregnant. Emma gave birth to a stillborn boy, Welch Thompson Marks, on a cold January morning at Henry Ford Hospital. Toledo missed the birth altogether. He had business in India for his most recent temporary employer, an oil refinery setting up shop for the first time that needed him to allay their concerns about chemical explosions. Toledo took the job, eager to use his formerly classified knowledge to prevent rather than cause harm for one time, at least. Toledo earned a large bundle of money that he then lost betting on the DePaul Blue Demons in the NCAA tournament. Humiliated, he moved the family to Kalamazoo, Michigan, to take a job teaching a physics lab to undergraduates at the invitation of a former colleague at Riddler-Knight, now a professor. Emma became pregnant again and gave birth to Parker in the mid1970s. During Emma’s pregnancy, Toledo quit the Western Michigan University position to take a job at Rhoda Tires in East St. Louis, Illinois. He quit that job at Emma’s insistence and took a job at an auto parts factory in the South Side of Chicago. Again, fearing for her family’s safety, she instructed Toledo to find another job. He left to find work and returned a month later with the promise of a job in Grand Rapids. He had no such job and in fact had just located an old drinking buddy at the Herkimer Hotel with an angle on a bookie. After Parker was born, Toledo left for the first time. He just did not come home at seven like he had promised. Emma waited until midnight to call the police. A few days later, she moved back home to Eagletown to live with her mother and took a job at a law firm in Traverse City, typing legal pleadings and letters for the lawyers. Toledo showed up in Eagletown a few months later, talking about how he had been offered a job with General Motors to work on their new airbags. They needed people with experience in chemical explosions. Toledo talked to Emma through the night, apologizing, explaining, and romancing. She cried. He cried. They walked and talked and joked and by


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the next morning, Emma agreed to move back to Detroit. It lasted a month. Toledo just stopped going to work and started tending bar at the Park Henry in Cass Corridor. Emma didn’t have any money to pay for the rent or for food, so she moved with her child back to Eagletown. One day tending bar at the Park Henry in the early 1980s, Toledo met a man who said he knew people who knew a few things about Vegas-style slot machines. The man said, “I imagine those Indian Tribes up north might be interested in knowing these people.”4 “Yeah,” Toledo said, wiping down the bar with an old, smelly rag. “They might.” The man kept talking. “You know, this is the perfect time for the Indians to do something about this situation. I’ve been doing a little reading—and this is between a drinker and his bartender—but I think I know what I’m talking about.” “Oh, yeah?” Toledo pretended to be uninterested. “The problem is still the federal government. They always defer to The Man, large landowners, corporate interests; all the non-Indian, anti-Indian people. Every time a Tribe or an individual Indian wants something, someone comes along and calls the government racist for helping out Indians. I read the papers. Indians spend so much time trying to get the government to fulfill its treaty and statutory obligations but the BIA won’t do it for fear of being sued. It used to be they wouldn’t do anything to help the Indians because they wanted resources in the land or the land itself, but now that they have almost all of the resources and land, they won’t do anything to avoid being racist. The non-Indians argue that all those laws passed for the benefit of Indian Tribes and individual Indians are racist and unconstitutional. Sad thing is, racism is not a thing of the past, nor is it even particularly well hidden. Am I wrong? They’re still calling you savages after all this time.” Toledo looked away. “I’ve been reading about the anarchist syndicates in Spain before the Spanish Civil War. They put the theory into practice about the locals owning the means of production, free from the intervention of the state. Government is what some would call a necessary evil, but what if it isn’t necessary? I know Indian Tribes are a long way from where they want to be, but think about them for once as anarchist syndicates. They could have local control of their means of production, if any. It could be fishing or agriculture or ranching or mining or something else. There are some federal regulations they have to follow but that they don’t really need; it’s just the fed’s way of trying to control the Indians’ own money. But if the Indians used their own capital, then the regulations don’t matter. The Tribes have their own leadership, their own bureaucracy, their own courts,

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their own ways of dealing with property and violence. There are definitely a few that could give it a shot right now. You know, go it alone, if it were legally possible, which of course it’s not. But if they could, I think you’d see something very close to the anarchist syndicates in Spain and elsewhere. And this isn’t some utopian community. The Tribe would work to make money and deal with others and each other like before, but it could be a model for how any indigenous community could do it in the United States, Canada, Mexico, Brazil, wherever.” “A few slot machines might help move that idea along.” “Pre-contact, there were Indian Tribes that survived without the welfare state, without a standing army, without an Internal Revenue Code, without zoning regulations. They just did what made sense. And, even in this world structure, even overrun by the ‘deadliest enemies,’ Indians have their enclaves of authority and self-determination. If the Tribe had an economy, they’d be there. Tribes would provide their own housing, their own health care and social services, pay for their children’s education. That’s the goal of all tribes. Of course, they’d probably never be given the chance. It has to do with the authority of the state over our lives. Don’t you see the irony? The term ‘anarchy’ is used to denote violence and chaos and a State of Nature. Look at all the texts. Well, to paraphrase Noam Chomsky, they jailed the socialists, but they executed the anarchists.” The man sipped his whiskey. Toledo put the man from Detroit in touch with an old friend of his from Eagletown who was on the Interim Tribal Council with Emma. He figured she’d never go along with it. She didn’t and neither did the rest of the council. But the leaders at the Lake Matchimanitou Band of Ottawa and Chippewa Indians, just down the road, wanted in. A few months later, Toledo, Toledo’s best friend Vinnie, and some guys from Chicago drove a couple trucks up from Chicago on the back roads of West Michigan in the fall before the snow fell. They brought a few dozen slot machines, a couple green-felted poker and blackjack tables, and a roulette wheel to the reservation. The Lake Matchimanitou Band started gaming operations in a pole barn behind the administration building. Everyone that worked for the tribal government tended bar or dealt blackjack at the casino after work. Within weeks, the gamblers were waiting all day in line to get in. Toledo moved back in with Emma and Parker. He went to work at the casino in the pole barn behind the administration building over at Peshawbestown, where the Lake Matchimanitou Band was located, dealing blackjack and running the makeshift craps table. He referred to himself as a croupier, a classy Midwestern casino dealer. He talked about making his kid legitimate and his woman honest, but never got around to buying a ring. Emma didn’t mind. She was glad he was around and working. Plus,


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her daughter adored her daddy. Emma hadn’t seen the girl smile and laugh so much since the last time he was in town. He laughed and joked and made friends the way he used to. Everyone thought he was the nicest guy, the funniest, and the smartest. Then, on a cold winter night in December, he left without saying good-bye. “I come home after all this time and I get repaid with a lawsuit,” Toledo complained with sincere bitterness in his voice. Niko sighed. His grandfather was high maintenance, a crotchety old man. “It’s not really a suit against you personally, you know.” Jefferson Madison, nearing his 90s, had heard about the new school program in which Lake Matchimanitou Band elders would appear at the school to talk about Indian history and religion. It was the history part he believed to be the serious problem,5 but he knew the law would have more to say about the religion part.6 He crafted his lawsuit to appeal to civil rights absolutists by stressing the separation of church and state aspects of the tribal program to visit the local schools talking about tribal customs, traditions, and history.7 The Lake Matchimanitou Band’s tribal council and education department convinced the Lake Matchimanitou school district to host several in-house training opportunities for staff and faculty on teaching American Indians, American Indian history, and other Indian-related themes. The Band also convinced the elementary school principal to host several talks by tribal leaders and cultural people, including Toledo Marks, who would talk about the importance of the pipe and the pipe ceremony. The agreement to hold these talks and trainings was the long culmination of a series of initiatives by parents of Indian students at Lake Matchimanitou public schools. Teachers and parents alike recalled the efforts of Parker Roberts many years earlier. But Jefferson Madison would not capitulate. After Toledo Marks made his first presentation, Madison served the principal, the school board (of which he had long been a member, since retired), and the Band with a lawsuit seeking a permanent injunction against further events with the Band on the basis that these events violated the First Amendment. Within days, the federal district court in Grand Rapids issued an order halting the events for the remainder of the school year, or until the judge could hear the arguments of both parties. Oral argument was set for two weeks later. Niko Roberts would represent both the Band and the school district, which had no funds to pay for outside counsel, since they usually relied upon Madison to represent them when any legal questions arose.

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Before the Federal District Court for the Western District of Michigan Senior District Court Judge Elijah Ellison: We are convened today to hear oral argument in the matter of Madison v. Lake Matchimanitou School District, the Office of the Principal of the Lake Matchimanitou High School, and the Tribal Council of the Lake Matchimanitou Band of Ottawa Indians. Who is here to represent the parties? Jefferson Madison: Jefferson Madison, Your Honor, on behalf of the plaintiffs. Judge Ellison: Representing yourself, today, are we Jeff? Jefferson Madison: Yes, Your Honor. It’s a pleasure to appear before you again. Judge Ellison: Likewise. And for the defendants? Niko Roberts: Niko Roberts, Your Honor, representing all the defendants. Judge Ellison: So, what have we here ? An exciting freedom of speech case? An establishment clause case? Let’s say ten minutes for each side and then time for questions and answers? Okay then. Jeff ? I mean, Mr. Madison. Jefferson Madison: Your Honor, I doubt I’ll take that long. This is an open-and-shut case, as you will see and probably already know. Three weeks ago, a tribal medicine man or holy man, as you please, appeared at the public high school in Lake Matchimanitou. He appeared at the request of the principal and the school board and the tribe. His name is Toledo Marks and he performed a religious ceremony involving a sacred pipe. I don’t pretend to know what the ceremony involved, but I do know religion when I see it. And since god-fearing Christians cannot voluntarily pray in our public schools, I am appalled to see other religions practiced in the hallways of my beloved schools. As you might know, Your Honor, I was a member of that school district’s board of education for over forty-five years until my retirement a mere four years ago. We have it on good knowledge—and without the denial of the defendants—that more of these kinds of events are forthcoming. These events include inhouse trainings for teachers and staff that will also


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involve these religious practices of some sort, as well as lectures and praying on the subject of Indian spirituality. Additional student functions are in the wings as well, similar to, as I understand it, the pipe ceremony performed by Mr. Marks. Most importantly, these practices are not voluntary. Teachers and staff are paid to be in attendance at these functions. And we all know that means they are required to attend. Students also have no option. They must go to these functions and they must help these Indians practice their religion. And, as you are well aware, Your Honor, even if these functions were voluntary—and they are not—they would be unconstitutional under the Constitution of the United States. Your Honor, the plaintiffs seek a permanent injunction that would put these religious ceremonies to a halt. The plaintiffs easily meet all of the requirements for an injunction. A violation of the First Amendment in this instance—with students being forced to participate in religious ceremonies to which only a small minority of them actually subscribe—is a classic example of an immediate and irreparable harm, as would be any violation of the Bill of Rights. And clear precedent states that violations of civil rights are not remediable by money damages. We don’t seek money damages anyway, because we don’t want to bankrupt our children’s school. Students, teachers, and staff can participate in the religious activities of the tribe down the road a few miles. It is utterly unnecessary for these religious practices to be conducted at the school. The balance of hardships favors the plaintiffs here. I doubt the defendants will argue these questions. The last factor is the question of who is likely to prevail at trial. Let me start with a story. I can tell you to a certainty, as a member of the school board for over four decades, that it is doubtful as to whether this tribe is really a tribe at all. Long ago, they signed a treaty in which they agreed to disband after the execution of that treaty. The plain language of the treaty is clear. And only through the gross errors of the federal government has this tribe been declared a reborn

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Indian tribe. I know, because I’ve lived in Lake Matchimanitou County my whole life. These Indians had disbanded, or as they say in federal Indian law, “abandoned their tribal relations,” and moved away to Milwaukee or Chicago or Grand Rapids or Canada. When I grew up, no Indians lived in my area. I would have known, because I explored every hill, every creek, every field. I never met a single Indian. All of sudden in the 1970s, Indians showed up again. But they were old and decrepit. And they lived in paper shacks and underground. We have no way of knowing that these Indians were descendants of the proud tribe that once lived in our area. I am dubious. What I am saying here is that I do not believe that these Indians that have arrived in Lake Matchimanitou County in the last few decades could still be called Indians. Some of them, maybe a majority, are descendants of the proud people that once lived here. But that does not make them Indians. Most are what some might call “bleached out,” meaning that they have intermarried with white folk to the point that there might not be any full-bloods there. If we took discovery on the blood quantum of the entire tribe, I bet that less than a third of the quantum of the entire tribe is Indian. Just a guess. You can look around at the spectators and draw your own conclusions. More importantly, I doubt many of these Indians speak their ancestral language. I have never heard a single Indian speak Indian in Lake Matchimanitou County. I understand that a culture is all but dead when the children do not speak their cultural language. I know that the school district doesn’t offer it—nor should we, any more than we should teach Sanskrit or Swahili. These so-called “Indian” children—and I use that term loosely—don’t need to know this language anyway. It probably would hurt them more to act more Indian in our highly specialized society and economy. Regardless, these Indian children that do no speak their language—I doubt they actually practice this religion. Consider these factors, then. First, this tribe long ago agreed to disband. Second, they fulfilled this


Judge Ellison: Niko Roberts:

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promise, at least until the so-called civil rights movement of the 1960s and 1970s convinced them that being Indian was a useful trick again. Third, few, if any, of their children speak their own language. Fourth, the language is dead and so, therefore, the culture and its religion are dead. Given these factors, it must be apparent to this Court that the defendants have little likelihood of prevailing on the merits. I rest for now and I am willing to answer questions. So be it, Jeff. Mr. Roberts? Thank you, Your Honor. Let me start by noting the need for a relationship between the Lake Matchimanitou Band and the School District. Mr. Madison’s opening remarks demonstrate the need. In 1836, and then again in 1855, the tribe executed treaties with the federal government that tribal leaders and federal agents believed would guarantee a homeland—a reservation of 20,000 acres—for the people of the Lake Matchimanitou Band. By the late 1970s, the people of the Lake Matchimanitou Band retained less than twenty acres of that land. What happened? Mr. Madison claims not to know. The non-Indian people of Lake Matchimanitou, many of whom live on land that once was promised to the Indian people of the Band, are just as ignorant, as are their children. And the curriculum of the public schools in Lake Matchimanitou does not even mention the history of the Band’s reservation lands and how they were lost. Many of the people who are members of the Band, educated in these public schools, don’t know their own history. Consider this evidence. First, excuse me, Your Honor, I ask a little leeway in my presentation. What I am about to offer might appear to be irrelevant at first glance, but I assure you, it will make perfect sense by the end of my ten minutes. This is a copy of the certificate and land sale contract executed by individuals who once lived on the land where Mr. Madison now lives. This individual was also named Madison, although I do not know if there is a relation. I assume Mr. Madison would know. The

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Jefferson Madison: Judge Ellison: Niko Roberts:

elder Madison acquired the land, it appears, from an individual named Robert Manitou. Robert Manitou, I can show, is one of the sons of a man who signed the 1855 treaty on behalf of the Lake Matchimanitou Band. He is also a distant relation of my own. I can see where this is going. You think you should be living on my land. Enough, Jeff. Mr. Roberts, where is this going? We’re here to talk about the establishment clause. One more minute, please. The land sale contract was executed in 1857, two years after the execution and ratification of the 1855 treaty. It purported to assign a certificate from Robert Manitou to the elder Madison, also named Jefferson. This certificate indicates that it was assigned to Robert Manitou for eighty acres in accordance with the 1855 treaty. Now consider the language of the 1855 treaty. I quote: “But such certificates shall not be assignable and shall contain a clause expressly prohibiting the sale or transfer by the holder of the land described therein.”8 Now, finally, one last piece of evidence. It’s from an opinion written by an Interior department official in 1885, thirty years after the execution of the treaty. I quote: On the 14th of March, 1877, my predecessor directed a suspension of action upon certain contested Indian homestead entries in Ionia and Traverse City districts, Michigan, subsequently consolidated at Reed City. This was upon complaint and representation that the contests, made by white persons, were instituted for the purpose of taking advantage of the Indians’ imperfect knowledge of the requirements of the land laws, and possibly meagre compliance, and thus after depriving them of their homes, such white persons and others in complicity with them were aiming to secure entries upon the land for their own benefit.9 Are these cases related? We might never know and


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persons like Mr. Madison would like these stories to remain hidden. Is there a cloud on Mr. Madison’s title? Probably not, even if the elder Madison acquired the land using fraud or coercion or other illegitimate means. The law, after all, favors the “settled expectations” of wealthy property owners.10 My point is that these stories are buried. The nonIndians who value the way the land ownership stories played out don’t really want to talk about it, while the Indians who value the land itself do want to talk about it. And that’s the underlying story behind this lawsuit. We held no religious ceremony at the school or demanded any involuntary exercise of religion. And there won’t be. Years ago, a tribal member named Ben Manitou, who was the holder of one of the few ceremonial pipes remaining, gave a presentation at the school. He asked those present to stand while he prayed. School officials, most have moved on to other communities, apologized for the mistake at that time. Tribal members that agree to present something about tribal culture do not ask people to participate in prayers anymore. And the clear language of the affidavits linked to this case from school district officials, teachers, and Mr. Toledo Marks indicates that no such prayer occurred here. Further, the affidavits indicate that tribal members or officials making any presentations at the school will refrain from asking participants to engage in any action that could be construed as a religious exercise. The plaintiffs’ affidavits come from no one who was an eyewitness to Mr. Marks’ presentation. They reference what happened over five years ago when Mr. Manitou made his presentation, assuming the same thing happened again. Finally, the attachments to the affidavits detail the kinds of activities contemplated by the in-house trainings and the student assemblies. None of them includes tribal religion in any form. In fact, these trainings and presentations are about tribal history almost exclusively. In sum, Mr. Madison might believe that the Indians of Lake Matchimanitou County are not really Indians,

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Jefferson Madison: Judge Ellison:

Jefferson Madison:

Judge Ellison: Jefferson Madison:

Niko Roberts:

Judge Ellison:

but his form of revisionist history belongs in the same category of those that deny the Holocaust. Outrageous! Your Honor? A few minutes’ rebuttal? Not necessary, Jeff. I think I’ve heard enough. I caution you, Mr. Roberts, about your rhetoric. I’d caution Mr. Madison as well, but I suspect he’s not up to taking advice at this late date. I have only one question and it’s for Mr. Madison. Is it true that none of your witnesses was present at the presentation by Mr. Marks? Yes, Your Honor, but the very presence of the ceremonial pipe in the classroom is a violation of the First Amendment. How is that different from the Ten Commandments monument that sat outside the courthouse in Texas?11 Obviously, the tribe and the school district brought this religious artifact into the school itself. Nothing could be more invasive. It would be as if the school district placed a Ten Commandments Monument right in the schoolhouse. Well, as Erwin Chemerinsky said, “Context is everything.”12 The pipe in question has been used for religious practices on occasion, it is true, but the affidavit of Mr. Marks indicates that there were political uses for the pipe as well. It was this pipe that Mr. Marks’ ancestor, a gentleman named Matchimanitou, used to execute the 1855 treaty. You see, an X appears on the treaty document, but for tribal purposes the treaty was executed when the parties to the treaty smoked from the pipe. This is what is being taught. Frankly, the religious aspect of the pipe is so complicated that non-Indians would have no idea what is going on. Thank you, Mr. Roberts. I’ll take this case into consideration.

The outcome of the suit was never in doubt, it appeared, as Judge Ellison overturned the temporary restraining order and denied Jefferson Madison’s motion for an injunction against the school district. Niko Roberts had won his first case—for his grandfather.

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Indian Political Resurgence and Affirmative Action The Lake Matchimanitou Indian School The Lake Matchimanitou Indian School accepted its first non-Indian student in the fall of 2010 when a Caucasian male named Charles Cabel enrolled in the ninth grade. His family had been petitioning the Lake Matchimanitou tribal council for three years, trying to convince them to let their son enroll. A charter school operated by the tribe under its own laws,1 the Indian school was funded by the tribe and its own revenues. The tribal council that created the school five years earlier had envisioned that the school would forever remain an option for Indian students to attend school with other Indian students, taught by Indian teachers. The tribe put up several million dollars, borrowed from neighboring tribes with adequate gaming revenues, and hired a dozen Indian Ph.D.s and professors2 (nobody knew there were even that many around) to teach sixth through twelfth grades at exceptional salaries. The tribal council promised that Lake Matchimanitou Ottawas could attend free of charge and that Indians from other tribes would pay hefty, “out-of-tribe” tuition akin to eastern private schools, but that no non-Indians could attend.3 The tribal council (also the tribe’s board of education) advertised in national education and Indian publications that they had the best collection of Indian teachers and intellectuals in the nation. Within weeks, the school begun to field requests from Indian families and tribes all over North America. Wealthy eastern and California gaming tribes4 sent their best and brightest, paying the premium tuition with the pride of knowing that their children would be taught by Indians with doctorates from schools like Harvard, Berkeley, 161

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Georgetown, and Michigan. The school started classes in four trailers located on the reservation next to the Pee Wee football field, and many of the out-of-tribe students lived with Lake Matchimanitou Ottawa families for the first year. And the first year was an outstanding success. The four seniors that graduated that first year all moved on to Ivy League schools. Five undergraduates won prestigious awards at the Inter-Lakes painting and writing competitions. The next year proved even more successful. The tribal council opened admission to all students who were eligible for membership in any American or Canadian tribe and indigenous peoples from all over the world. Flush with capital from the neighboring gaming tribes and from the improved tuition revenues, the school doubled in enrollment, moved into a brand-new building across the street from the football field, and hired a second group of Indian MBAs, lawyers, and Ph.D.s as instructors. The tribal council received its first petitions from the non-Indian residents of Lake Matchimanitou County, some of the same people that had voted to sanction the tribe’s Pee Wee football team a few years earlier. It was easy to turn them down. Of course, disappointed parents threatened to sue, but the tribe’s dedicated lawyer, Bryan Montana, quelled the controversy quickly by writing a letter to the non-Indian ringleaders informing them that the school received not a single federal or state dollar and that state and federal law would not restrict the school’s policies.5 The nine graduates of the school that year moved on to colleges and universities around the globe. The school started winning national awards the third year and received attention from the New York Times, CNN, and Indian Country Today. Commentators marveled at how the tribe could effectively run a private school of that magnitude and prestige, especially since it could barely run its own government.6 Some commentators noted some flaws, minor mostly. They whispered about the lax dress code of the students, the lack of published educational standards, and the lack of Asian, Black, Caucasian, and Latino students, but nothing could dampen the school’s success. The fourth year, the school started a few athletics programs like soccer, lacrosse, and field hockey. Since few other northern Michigan schools offered these sports, they had to play them all intramurally. It contributed to the isolation the school was beginning to feel, isolation from the Michigan educational system, isolation from the non-Indians of Lake Matchimanitou County, and isolation generally.7 In the fourth year, Charles Cabel’s parents petitioned the tribal council to allow their son into the school, offering to pay two or even three times the tuition of out-oftribe Indian students. Though the council was hard-pressed to reject the offer of the money—it would have helped to pay for the down payment on


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a new gymnasium—they politely rejected the offer. The Cabels moved on, but the tribal council’s denial of Charles’s enrollment ignited a debate within the school’s faculty, the tribal council, and the surrounding nonIndian community. Several members of the faculty had seen Charles’s grades and his written work from Lake Matchimanitou High and were very impressed. They argued that diversity would be good for both the Indian students8 and for the public relations of the school, which were starting to deteriorate.9 When Charles entered the school in 2010 for his ninth grade year, the local newspapers and television reporters followed him inside the school, trying to recreate the buzz surrounding the desegregation of the schools in the south, but, without the governor standing in the way and the National Guard pointing guns at people, the whole thing was a sham. Charles entered the school and the school welcomed him with open arms. Charles was a good kid, polite and respectful. But he was also ambitious and very competitive. When Charles enrolled, he was one of twenty-five ninth graders and one of about 175 students overall in the school. About twenty of the students were Lake Matchimanitou Ottawas, about fifty more were Michigan Indians from the various Ottawa, Chippewa, and Potawatomi tribes, about twenty-five were Canadian Indians, mostly Ottawa and Chippewa, about fifty were from out-of-state tribes, and the rest were indigenous peoples from Central and South America, New Zealand, Australia, and Scandinavia. Charles had his first fight with a tenth grade boy who was a member of the Saginaw Chippewa Tribe of Michigan. Charles usually went straight home after school and didn’t hang out with many of the Indian kids, who tended to live with local Indian families or in the dormitory with other Indian students.10 The Chippewa boy, Mark Sales, had spoken up in their sociology class about the Indian boarding school in Mount Pleasant, Michigan that had housed his great-grandparents in the early nineteenth century.11 He spoke ill of the Christian religion, drawing a conclusion that, since the school had been run under the Christian rubric, the beatings and abuse that took place at the school had been informed by or even mandated by the Christian faith.12 As a result, he decided that the Christian religion was patently unjust and borderline evil. Other kids spoke up, including a John Pack, whose grandfather had been beaten at a Catholic boarding school near the Little Traverse Bay Bands of Odawa Indians’ reservation in Petoskey and Harbor Springs.13 Charles, not an evangelical Christian but a believer in Christian benevolence, confronted Mark in the parking lot after school. Charles had been fuming since the class discussion, but felt surrounded by too many Indians to speak openly. He wanted to tell Mark that not all Christians were evil and, without provocation,

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ended up punching Mark in the face three times and kicking him in the stomach when Mark fell down. Charles, who had never been in a fight before, let alone started one, ran off, shocked at his own violence. The school principal decided not to expel Charles but warned him that future violent outbursts would not be tolerated. After a week’s forced vacation, Charles returned to complete the school year with an earnest determination. While Charles was gone, the school’s faculty discussed the incident, disturbed by the sudden violence in their midst. They argued over whether it was a good idea to admit Caucasian students, whether diversity was necessary in Indian education, and how to proceed with a white student in their midst—a white student surprisingly prone to violence. The teacher in Charles’s sociology class, a Ph.D. in sociology and a lawyer, held several classes where they negotiated a methodology for study and drew up a contract between himself, the Indian students, and Charles. The Indian students agreed to provide Charles a space within the class to study and reflect on his own when he desired to be alone. They also agreed to conduct a serious ceremony where they would incorporate Charles into the school, a formal institutional acknowledgment that their school had changed. Charles agreed to respect the Indian students’ sometimes painful family histories and their need to tell the stories of their communities.14 The instructor noted that long ago Indians and whites had negotiated treaties to clarify their rights and responsibilities, to preserve the peace and respect between their different cultures, and formalize relations.15 And since, as everyone in the room knew that the white man had broken every one of the treaties,16 this new treaty would be a step in the right direction. Perhaps, the instructor reasoned, they could get it right this time.17 Charles and the rest of the students got along well for the rest of the school year. A pretty Mohegan girl from Connecticut named Stacy Rogers developed a crush on Charles and they would hold hands in the hallways. Charles and Mark developed a strong friendship after a few weeks of looking at each other warily. Charles started playing soccer and led his team in goals that spring. The faculty praised the instructor who came up with the idea of the treaty, even those who mocked him for trying something so hokey, given the actual purposes of most Indian treaties.18 A few weeks before the end of the school year in May, Charles stopped coming to class. After a few days of not hearing from the family, the principal called Charles’s house to ask about the boy. Charles’s father, a lawyer, answered the phone and explained that Charles hadn’t been feeling well. He apologized for not calling to explain Charles’s absence. The principal gave his best wishes to Charles and offered to drop off some homework. Charles’s father declined, rather emphatically, and said he’d be by to pick up his son’s assignments at the front desk of the school. Charles’s


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mother and father had decided, upon reading up on autism and vaccinations, that the chances of their boy getting smallpox or polio or whooping cough or any of the classic childhood diseases and sicknesses was remote in comparison to the dangers. They never had Charles vaccinated. Out of the blue, he had apparently contracted something the local doctors hadn’t been able to identify. Charles’s parents were horrified they had somehow condemned Charles to an early death by not vaccinating the boy and were reluctant to admit their mistake to the school and the community. When their doctor informed them that Charles wasn’t contagious and couldn’t have spread the illness to anyone else, they decided to leave well alone and keep the school in the dark.19 It turned out Charles did have a strain of the measles and that he had spread it to other students before he came down with any symptoms. By the end of the school year, four Indian students—three of them who had barely survived the massacres in Guatemala; the fourth was Mark Sales— were dead of measles and a dozen others severely ill.20 Quickly, the school shut down and federal officials quarantined the whole reservation. For the community, it was a disaster. Charles recovered by the middle of the summer but he was not invited back for the fall semester. In the late summer of 2011, the tribal council learned that expected enrollment at the Indian school would decline by nearly fifty percent; some of the decline attributable to the students who had contracted measles, but most of it caused by the fear of more sickness and the impact on the school’s reputation. Without the tuition of seventy-five students, the school would have to close. The tribal council prepared to announce the closure when it received petitions from several local non-Indian families and other non-Indians from across the country eager to fill in the openings. They were attracted to the impressive collection of educational resources available at the school. It mattered little to them that all the instructors were Indians, only that they were all educated from the finest colleges and universities in the land. They were willing to come to the school, pay their own boarding, and pay three times the amount of tuition, subsidizing the school until it could attract more Indian students. Wary of adding twenty-five more white students, the all-Indian faculty nevertheless admitted that maybe this flood of white applicants was a blessing in disguise. After a week of intense debate and assurances that the school would never enroll more than twenty-five non-Indian students out of its 175 slots, the tribal council agreed to enroll the petitioners. If nothing else, it would save the school for future generations of Indians students.21 The first semester was successful and quiet, and a couple dozen Indian students who had disenrolled came back for the second semester, bringing the number of students back to 125. The twenty-five non-Indian students,

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all of them white, had not interacted much with the Indian students, instead forming their own cliques right after coming back from the winter break. The students from Manhattan, cast-offs from New York private schools, refused to even talk with any other white students. The locals, the kids from the Lake Matchimanitou area, retaliated by sneering and avoiding all the other white kids. A third Caucasian clique, the leftovers from other parts of the country, tried to act as peacemakers but failed. The Manhattan kids became known as the partiers and the local kids as the fighters. The third clique included the art house bunch. The Indian students almost faded from view as all the attention of the faculty and the staff focused on the conflicts among the Caucasian cliques.22 The all-Indian faculty and administration were not used to dealing with hyperactive, hypersensitive, and sometimes outrageously violent students. By the end of the school year, the school was in tatters. The tribal council started talking about giving up the school, closing it for good. “Too many chumukmon,”23 they could be heard saying under their breaths. The faculty and the families of the Indian students vigorously protested the closure. The students who had graduated from the school had gone on to excellent colleges, despite the statistical likelihood that they would drop out or flunk out.24 The school had created a great deal of pride in the community, even for those who did not have children in it. Dozens of formerly unemployed tribal members worked for the school in various capacities, many of them teaching Anishiinabemowin, the Ottawa, Chippewa, and Potawatomi language, and passing down cultural and traditional knowledge. The school provided much in the way of a reservation economy that hadn’t existed for the Lake Matchimanitou Ottawa community. The tribal council relented and began to plan for the next school year. One week before the end of the school year, several parents of the kids from Lake Matchimanitou—people who knew about the internal debate going on at the tribe’s council meetings—threatened to pull out their children if the tribal council didn’t hire a couple of non-Indian teachers. Many of the local kids didn’t care to learn Anishiinabemowin; their parents wanted to them to learn Latin, German, Japanese—languages that wouldn’t die out in a few decades.25 They wanted a few white teachers, just to make their children a little more comfortable, someone of the same race to talk to when being around all those Indians got a little too overwhelming. The parents reasoned, isn’t that why some colleges have Native American, African-American, Latino, and Asian American students associations? Isn’t that why they have affirmative action? Each year, the school had to replace a couple of faculty members who moved on, usually to faculty positions at university or professional schools,


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and that year was no exception. Of the twenty-five full-time faculty members on contract that year, three had moved on and the school was looking at three more Indians to replace them. The faculty hiring committee had already selected three applicants and went to the tribal council for final approval, but the non-Indian Lake Matchimanitou parents beat them to the punch. The parents had produced documents and figures showing how far in the red the school would operate if they pulled their kids out in the fall—and they would pull them out if the Indian school didn’t hire three non-Indian instructors. The tribal council relented and instructed the faculty to follow orders. The tribal council, on the advice of earnest tribal attorney Bryan Montana, required the non-Indian parents from Lake Matchimanitou to sign a document saying they would never again ask to alter the proportion of Indian instructors on the faculty. The parents signed. That fall, the non-Indian students’ parents began to complain that the school’s athletics program was poor, that a high-quality educational experience deserved a strong extracurricular activity base. Moreover, the parents argued, a strong basketball team would bring pride to the school, pride that it would never acquire with intramural lacrosse or soccer. Many of the Indian students agreed that a basketball team would be a great idea. The Lake Matchimanitou Ottawas were renowned for their basketball playing in the gym that had been built a few years earlier. There were a lot of informal pick-up games and a few adult leagues at the gym. These Indians were ready to play ball. The tribal council agreed, but with some reluctance because it would be an added expense to a school already on a tight budget. The tribal council hired a local coach. The team, composed of eleven Indians and one white kid, a real tall but clumsy boy from Manhattan, lost every game. The non-Indian students’ parents began another campaign in the spring. First, they wanted the local coach fired. Second, they wanted to do what other powerful private schools did all over the country—recruit good basketball players. The tribal council strongly objected over strenuous protests. No way would they populate an Indian school’s basketball team with non-Indians—and with a non-Indian coach. One of the more wealthy fathers from Lake Matchimanitou took aside one of the tribal council members, one with a passion for golf, basketball, and expense accounts. This father invited the council member to an exclusive basketball camp in North Carolina. He pointed out famous college basketball coaches sweettalking high school coaches and their players. He introduced the council member to college basketball broadcast personalities and retired pro basketball players. The kicker was that he explained how so many of these exceptional high school players getting all this attention actually played for

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exclusive private schools, many of them out in the middle of nowhere. The council member was hooked by all the excitement and possibilities. He went back to the tribal council and talked them into hiring a professional coach and allowing him to recruit good players from junior high schools. He said five or seven full scholarships would do the trick. If done right, the team would pay for itself. The faculty fought it, but without much heart. They knew where the money was. Besides, some of the faculty reasoned, diversity was good for the students. The council agreed and, once again, called in stalwart tribal attorney Bryan Montana to draft up an agreement for the basketball coach and rules for the team. The tribal council hired, for a substantial sum, a former Duke University standout guard as their coach. He quickly recruited seven African-American players—three from Detroit, and one each from Chicago, Brooklyn, Los Angeles, and Charlotte, North Carolina. The presence of twenty-five Caucasian students had changed the demographics of the Indian school. The presence of a nationally ranked high school basketball team, with the concomitant media attention, demand for tickets, and gambling, changed the school even more. To some, the school became a sort of gold mine.26 The white kids running with the Manhattan and Lake Matchimanitou cliques spent all their time pestering the seven black ballplayers for attention, autographs, and other favors. The other white kids retreated further away into their modern art and liberal arts concentrations. The Indian kids became the silent majority, quieter than even the year before, invisible like ghosts. Over the course of the year, the language arts wing on the east side of the school—about a quarter of the school—became the informal territory of the Caucasian and black kids. It was there that German and the Romance languages were taught, where the first-year white teachers had their classrooms, and where, by stroke of fate, all the white kids’ lockers were clustered. Of the five classrooms in that area, three were the headquarters of the white teachers. Indian students with classes in that wing walked those hallways with their heads down, stared at like museum pieces by the white kids. Few Indians attended the basketball games played in the name of their school. At the end of the school year, five Indian teachers announced their intention to leave. Before a shocked tribal council could breathe, the three white teachers, aided by a group of white parents, prepared a list of ten qualified white instructors they wanted the tribal council to consider. The tribal council thanked the group for the list and the implicit threat contained therein. After a fierce debate, they agreed to hire three more non-Indian teachers, but promised to themselves that they would not retain more than six non-Indian teachers at any one time. The two Indian teachers in the language arts wing asked to move their classes to another


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wing and, when the fall semester started, the white teachers dominated the whole wing and an adjacent classroom. The language arts wing was now effectively off-limits to Indian students and Indian teachers. During the fall semester, four of the white teachers became embroiled in a closed-doors argument with the principal over textbooks. The white teachers wanted to use their own selections—textbooks written by nonIndians—while the school had always mandated a strict compliance with its own rule: where possible, use a textbook authored in whole or part by an Indian writer; otherwise, use a text approved by the majority of the Indian faculty. The dispute was over Howard Zinn’s history text, The People’s History of the United States, which the school had mandated since its inception because of its accessibility and its coverage of American Indian history.27 The new history instructor disapproved of the text, arguing that it did not provide enough coverage of important events in American history. The principal argued that the text’s coverage was more than adequate and declared the discussion ended. The Indian-majority faculty stood behind the principal in a 19 to 6 vote, but it was clear the lines had been drawn. Within days of the argument and the subsequent vote, white students began to complain about unequal treatment by the principal and some of the older Indian instructors. Their parents joined in the chorus and the principal resigned as the semester ended, sick of the turmoil.28 The school then entered a crisis of a proportion it had not seen before. The white parents wanted a non-Indian principal, arguing that it was the only way to ensure fairness in the treatment of non-Indian students. Some of them brought back the old threat of taking their children out of the school and shutting it down for good. After consulting with several of the Indian faculty members, who reminded them that they would maintain a huge majority in any vote related to the school whoever might be the principal, the tribal council agreed to conduct a national search for a new principal without an emphasis on whether the candidates were Indian or not. The tribal council spent the spring semester searching and then announced it had hired a Caucasian to be its next principal. Four Indian instructors announced their intention to leave. With the slow trend toward a more and more non-Indian-oriented school came fewer applications for admission from qualified American Indian students. Other Indian schools sponsored by wealthier tribes sprang up in other parts of the country, and the Lake Matchimanitou Indian School no longer retained its exclusivity or its prestige. After the tribal council hired the new principal, Louis C. Banes, applications dropped substantially. Principal Banes was a veteran of Yale and a number of exclusive private schools and a real go-getter. He announced, without asking the tribal council qua tribal board of education, that teachers could select their

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own texts, that Anishiinabemowin was no longer mandatory for all students,29 and that his school would be nothing short of a meritocracy30— or else. There would be no quotas, he announced. If a student had good grades, test scores,31 and an interesting background, he was in. Indians wouldn’t get in just because they were Indian. He didn’t care if Indians started the school long ago; those days were gone. The tribal council was shocked to hear these declarations from their prized candidate—he had said no such thing during the interviews—but were cowed into silence by the mere idea of losing the revenue that the non-Indian students put into the school. That summer, the Indian school enrolled only a hundred Indian students and seventy-five non-Indian students. Most of the best Indian students left and were replaced by non-Indians. The basketball team’s scholarships were expanded to fourteen, doubling the size of the team. The new principal fired two Indian instructors for failure to earn adequate evaluations from students and parents and replaced those two and the four that had resigned earlier with six, all Caucasians. The Indian faculty now retained only a 13 to 12 majority. The “13”—as they began to call themselves—feared to miss even a single day of class lest the principal call an emergency meeting to change some rule or other. If only twelve Indian instructors were around, there would be a tie with the twelve non-Indian instructors, a tie that could only be broken by the principal. The Indian instructors knew how that tie would be broken. Their theory was tested early in the semester. One Indian instructor called in sick because her son had strep throat. Principal Banes called an emergency meeting of the faculty to discuss whether the cultural and traditional teachings of the Ottawa elders was really necessary, whether it was a waste of time at best or a freedom of religion problem at worst. Several Caucasian instructors complained that few of the Indian kids actually followed “the Indian religion” and that the false reverence for these teachings chilled his right to speak freely in class about other religions. Several Indian instructors argued that the teachings were more subtle than that characterization, but they were shouted down. In the fracas, Banes called for a vote of the faculty. After the ensuing tie, he voted to break the deadlock. The next day, he gave pink slips to all the Indian cultural instructors employed by the school. The tribal council condemned the decision in a fiercely worded resolution but did not act to reverse the decision. In December, a group of Ottawa students holding a kegger were busted by the neighboring tribe’s police department. Banes held another meeting three days before Christmas to discuss whether these students—who, he reminded the faculty, paid either no tuition or tuition at a fraction of the


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non-Indian students—should be expelled from the institution. The faculty voted 13 to 12 to expel the students,32 with fourth-year Indian history teacher Francis Alexis switching sides.33 Just an hour before the meeting to discuss the expulsion, Banes had brought Francis into his office to discuss his evaluation of Francis, which was “not good.” He implied that his vote in favor of his policies and decisions would likely influence his decision to recommend her appointment or discharge at year’s end. Francis agreed but hated himself for doing it. Many of the other Indian instructors ostracized him for the rest of the year. At the conclusion of the school year, Francis resigned. With the expulsion of the fifteen Indian students ticketed at the holiday house party and their replacement with fifteen non-Indian students, the Indian students found themselves in the minority for the first time. The semester following the mass expulsion was not a good one for the remainder of the Indian students. Banes located an ambiguous phrase in the articles of incorporation of the Indian school that suggested he had virtually unlimited authority34 to determine whether a student met “academic qualifications” that would allow him or her to return the next year. Armed with his interpretation of the articles, he informed twenty Indian students the next summer that they did not meet these qualifications and were not welcome back. He offered them each an opportunity to appeal for reinstatement, but limited their appeal rights to petitioning the faculty for reinstatement.35 With Francis out of the picture, the attritted Indian students’ appeals were voted down, with Banes breaking the tie in each of the votes. Barely ten Indian students successfully graduated and moved on to college. In the fall, only sixty-five Indian students arrived to start the school year, a clear minority to the 110 non-Indian students. Forty of the students were from one of the Michigan Ottawa tribes, each of whom was guaranteed slots by virtue of being original investors, and only four students from out of state enrolled. The Indian students’ lockers were clustered in the science and industrial shop wings of the school.36 In all the years of the school, for all the problems the students went through as so many teenagers do, no Indian student had ever dropped out of Lake Matchimanitou Indian School. But in the fall of 2016, ten Indian students did so, most of them under pressure from Banes or one of the Caucasian instructors. The remainder faced increasing verbal and physical hostility from some of the Caucasian cliques, particularly the Lake Matchimanitou and Manhattan kids.37 The tension in the hallways was tangible. At the conclusion of the fall semester, Banes held a meeting with the tribal council, the Indian instructors, and the fifty-five remaining Indian kids and their families. He suggested to them that they agree to divide the school into two separate

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areas. He said he had noticed a serious schism between the non-Indian students and the Indian students. He said he thought the threat of violence was real, but he could do little about it.38 He wanted to avoid that eventuality and proposed that the Indian kids with lockers in the science wing move their lockers to the industrial shop wing.39 He said that the classes with a predominantly Indian enrollment would move to that wing so the students there wouldn’t have to travel in “foreign land,” as he called the rest of the school.40 He said it was the best way to preserve the peace and that, if they did not agree to relocate, he could not guarantee their safety. The tribal council agreed, but another five Ottawa students dropped out, preferring to go to public school with their friends. The remaining Indian students crowded together in the industrial shop wing. Banes hired temp instructors to teach most of their courses. They took English literature right next to the power saws and algebra right next to the drafting tables. They felt unchallenged by the classes, and the tribal council complained about the lack of quality in their temp instructors.41 Moreover, they had to leave their classrooms and go to a run-down trailer with bad heating and ventilation outside when the non-Indian shop kids had class. Banes promised to make major changes in the summer. Banes’ changes included giving pink slips to nine of the twelve remaining Indian instructors and hiring nine non-Indians to replace them. He also changed the school’s letterhead, omitting the “Indian” from “Lake Matchimanitou Indian School.”42 Half the remaining Indian students dropped out. Not one Indian student graduated in the spring of 2017. The next year, Banes forced the three remaining Indian instructors into early retirement. For the next ten years, no more than twenty-five Indian students (often fewer) enrolled at Lake Matchimanitou School. They were often students who had been expelled from all the local public schools for fighting or other vices, enrolled only at the pleasure of Banes. The best ones could take classes with the white students on occasion, but only if they followed a pre-determined curriculum under Banes’ rigid guidelines. The only other Indians at the school were the four janitors and one part-time snowplow operator.43 In early 2028, Congress declared an end to the need for affirmative action in American schools, relying upon the dictum in the 2003 affirmative action cases.44 Though the decision did not apply to a tribally owned, privately funded school that had not practiced any real kind of affirmative action in over a decade, Banes declared the end of affirmative action at Lake Matchimanitou School as well. He also announced his retirement. He hand-picked his successor, Larissa Reyna, a Harvard-educated literature instructor with five years’ experience on the faculty—also the first Latina instructor at the school. She shadowed Banes for a full school year, learned


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everything she could about education, the school’s system and politics, and bade him a fond farewell with a huge going-away party. A month after Banes retired, Reyna approached the Lake Matchimanitou tribal council and asked for help in starting an affirmative action program at the school. As if no one knew it already, she detailed how the few Indian students in the school received the lowest-quality education of all the students, received punishment more than any other student demographic, and even received the worst food from the school cafeteria. She hadn’t realized the extent of the discrimination the Indian students faced every single day because, as a literature instructor, she never had to venture into the industrial shop wing of the school.45 She was shocked. Every bone in her body screamed out that she end the injustice.46 She said the school had once been the property and the province of the Indians of this country and the indigenous peoples of the world and it was a travesty that it had been so rudely and insidiously stolen by the local non-Indians, who had encroached and encroached on the Indians until nothing was left.47 The tribal council applauded Reyna and promised her whatever support they could muster. But, as long-time and able tribal counsel Bryan Montana informed her, the Supreme Court had long taken away the authority of Indian tribes to regulate non-Indians, even within their reservation.48 However, Reyna reminded the lawyer about the school’s original articles of incorporation, which provided broad authority to the tribe and (implicitly) the principal.49 Still, no one really believed that any court would pay any attention to those archaic articles.50 Reyna was disheartened by the tribal council meeting, but she unveiled her plan to the faculty and, by then, the entirely non-Indian board of education. The response was mixed. Reyna had expected to be fired, but a firing of the brand-new lead administrator of one of the most prestigious private schools in the world would look bad, and the school’s non-Indian parents knew it. They agreed to think about it. Meanwhile, Reyna went to work on the faculty. Several of the original non-Indians on the faculty were approaching retirement age, and she nudged them on with promises of extended benefits. She recruited several like-minded faculty candidates and began enlightening those that remained. She talked about the poor educations the Indian students relegated to the industrial shop wing received and the value of increased diversity in the student body. By the beginning of her first school year, she had changed the faculty’s outlook. Though loathe to make a premature move, she knew she had a bare majority of the faculty who would favor a limited affirmative action program to attract new Indian students and remediation program for existing Indian students. After her first school year was over, Reyna sprang her reorganization

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plan51 and affirmative action plan on the faculty. She argued with them for hours in the final meeting of the school year before their precious summer vacations, and they eventually voted to support the plans by a narrow margin. On the same day, the Lake Matchimanitou tribal council arose from its slumber and replaced the school’s board of education with a majority of Indians.52 The next day, before the papers could report anything or the sleepy non-Indian parents could mobilize, the new school board approved the plans. On cue, Reyna hit the road to recruit Indian students from all over the country. Once her plans had been advertised in the national educational newspapers and Indian papers, the applications from elite Indian students began to flow into the school’s office. However, of the 1,000 applications received for twenty-five sixth grade slots, only a hundred were from qualified Indian students. The remaining 900 applications were from Caucasian students, with a smattering of applications from students of other races and ethnicities. Reyna sifted through the applications and recommended the admission of ten Indians, four Asian Americans, four Latino/a Americans, four African-Americans, and three Caucasian applicants. Before releasing the figures, she issued a memorandum (drafted by trusted and loyal tribal attorney Bryan Montana) explaining that, first, the Supreme Court’s decision ending affirmative action did not apply to the Indian school; and, second, that even if it did the admission of the Indian students was based on a political status-based classification and not a race-based one.53 The uproar from the parents of several denied white applications was long and loud. Calls flooded the offices of Michigan Senators, the White House, and the tribal council threatening lawsuits and assorted mischief. But the real decision came from the Indian school’s board of directors who reviewed Reyna’s and Montana’s memorandum and adopted it without changes. The board based its decision on the articles of incorporation for the school, which had acquired treaty status for all practical purposes. Complaints—about reverse discrimination, quotas, and leveling the playing field,54 accompanied by the arguments that this generation of white students had never caused any injury whatsoever to Indians in the past or even the Indians of the school and that they were hostages to history55— came freely, but Reyna and the board stood firm. The school year proceeded with a new sixth grade. Reyna randomized the locker assignments and Indians suddenly could be seen all over the school. Anonymously posted signs on the school lawn read, “Save a student, flunk an Indian”56 and “Indians are stupid,” but the school went on with its business. After the first year, Reyna convinced four alumni of the school, Indians from the old days, to come back and teach at the school. She promised them they would be more than tokens57 and that they would enjoy a real


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say in the way the school moved forward. Their hire prompted a whole new barrage of qualified Indian applicants. In the next sixth grade class of twenty-five, Reyna and her admissions staff had to choose from 250 qualified Indian applicants. They selected fifteen Indians and ten other minority students—and no white students—to make up the next sixth grade at Lake Matchimanitou School. In the fall, she changed back the letterhead.58 The composition of the school had changed dramatically in two years. The ninety-five percent white eighth through twelfth grade classes shunned the Indians and other minorities worse than before. Fights and arguments were rife, and several white students were pulled out of school by their parents, replaced by Indian student transfers. Indians were a distinct minority at the school, but their numbers were growing rapidly. The school became a source of pride for the Lake Matchimanitou Ottawa community instead of a source of shame. The tribal council talked of starting a second elite school for early elementary school students. Federal law had changed to the benefit of Indian tribes and they were able to open schools on their own lands at will. The schools became cash cows for hundreds of tribes across the country, all patterning themselves after Lake Matchimanitou.59 With all the new schools starting up, the next summer’s batch of Indian applicants were not as likely to accept a bid to the Lake Matchimanitou school. Reyna had to recruit harder than before. She was doing more than convincing the possible candidates that the school had come back from the grave, she was forced to market the school, too. It was hard work, but it paid off in an excellent sixth grade class of ten Indians and a mixture of fifteen white, black, Asian, and Latino/a students. The school had re-acquired a racially diverse balance, with Indians students in a clear plurality. In the 2031–2032 school year, powerful lobbying interests argued that the Indianization of American education was unfair and unconstitutional, though every challenge to the political status doctrine had failed. They argued that anybody should be able to open a private school and put the anti-affirmative action “meritocracy” plan into effect. Conservative think tanks and investigative journalists reported that Indian schools indoctrinated Indians and non-Indians alike with some crazed form of hippie-Indianness—respect for the land and for all people, sustainable development, non-retributive punishments for convicted criminals, and economic, social, and environmental justice for all. They distributed anecdotal evidence that Indian schools treated white students with disdain60 and that tribes exploited the schools to bring in revenues that they often wasted or embezzled.61 The lobby was well funded and vigorous, but their efforts failed. Diversity had taken hold in Congress. African-American

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women educated in Indian schools chaired the two most powerful committees in the Senate. The Speaker of the House had graduated from Indian schools. The entire Michigan, Connecticut, North Dakota, and Massachusetts delegations had graduated from Indian schools. There were thirty-four Indians in the House and ten in the Senate. The legal challenge to the Lake Matchimanitou Indian School’s admission program had been proceeding through the lower federal courts since Larissa Reyna admitted her first class of sixth graders two years earlier. The Supreme Court granted certiorari to decide whether or not the admissions policy was constitutional. The Sixth Circuit, sitting en banc, had concluded that Section 1981—a federal civil rights statute prohibiting race discrimination by private entities62—did not apply to Indian tribes and Indian schools, nor offered a remedy to the white applicants who had been denied.63 While no trial had been held on the merits, the Court would decide whether or not to affirm the dismissal of the case for failure to state a claim. The Indian School hired Niko Roberts to argue the case.

Before the United States Supreme Court Chief Justice Violet : We will hear argument in John Doe v. Larissa Reyna and the Lake Matchimanitou Indian School. G. Robert Johns: Madam Chief Justice and may it please the Court. After a hard-fought, bloody, and incredibly divisive Civil War, Congress and the American people adopted the Thirteenth Amendment banning slavery. This Court has long interpreted the Thirteenth Amendment as prohibiting private forms of race discrimination as “badges of servitude.”64 As part of the enabling legislation, Congress adopted Section 1981 prohibiting private discrimination.65 The Lake Matchimanitou Indian School and its administrator Larissa Reyna have long engaged in a form of race discrimination by denying equal opportunity to citizens who are not American Indians to enroll in the school. John Doe, one of a class of Caucasian applicants to the school, was denied admission to Lake Matchimanitou Indian School in favor of American Indian students who were similarly situated. The only reason the Caucasian students were denied admission was because of their race. Concurrently, the only reason American Indian students were admitted was because of their race.


Justice Brown:

G. Robert Johns:

Justice Black:

G. Robert Johns: Justice Black: G. Robert Johns:

Justice Green: G. Robert Johns:

Justice Green: G. Robert Johns:

Justice White:

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If I recall my history, none of the Reconstruction Amendment applied to Indian people or Indian tribes. They weren’t present at the ratification and the Fourteenth Amendment specifically excluded American Indians from citizenship.66 In 1924, Congress extended citizenship to American Indians who hadn’t yet become citizens.67 At that point, the Reconstruction Amendments should apply to Indian people. But Indian tribes are not part of the federal system. And they cannot be considered private entities for purpose of Section 1981 because they are governments. This Court has never held that Section 1981 does not apply to Indian tribes. Nor have we held that Section 1981 does apply to Indian tribes. Now is the time for the Court to decide that the quasi-sovereign entities like Indian tribes should cease being constitutional outlaws. We have seen too many Indian tribes discriminating against people on the basis of their sex, their race, their religion, their physical handicaps. It has become a national disgrace. Indian tribes have been marketing their quasi-sovereign status since the 1980s, making billions upon billions in casino gambling, smoke shops, and other vices.68 Modern Indian tribes are not the Indian tribes of the 1860s and 1870s but are sophisticated business operations. Does the Lake Matchimanitou Band own a casino? No, they do not. But they received financial assistance from several Michigan tribes who do own lucrative casinos in order to start the Indian School. Many of their students are members of casino tribes throughout the United States who can afford to pay the tuition at the Indian School. Is the Indian School a large revenue source for the tribe? I do not know. They will not release financial records to the public. Kind of like a secret society. [laughter] I understand that Congress might have stripped away

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the sovereignty of Indian tribes in 1871 when it enacted legislation prohibiting the President from negotiating any more treaties with tribes.69 If an Indian tribe is not sovereign, or even quasi-sovereign, under this theory, wouldn’t they be mere private actors? And wouldn’t Section 1981 apply to them at that point? G. Robert Johns: Yes, Your Honor. My point about casino revenues is that Indian tribes no longer act or look like governments. They might have been legitimate sovereigns, legitimate governments, in 1871, but their traditional governments have died off and been replaced by these lucrative business operations. To continue to recognize immunity from the application of these important civil rights protections because of an ancient, irrelevant sovereignty is anomalous. Even state governments must comply with these civil rights protections. Justice Yellow: But these state governments were represented at the Constitutional Convention and every single day in Congress. Tribal governments do not get the same advantages. G. Robert Johns: As Justice Thomas wrote in 2004, nothing in the Constitution protects or preserves tribal sovereignty.70 Justice Yellow : But that was in dissent. We have well over 200 years of precedent to consider, precedent that holds clearly that Indian tribes retain elements of sovereignty unless Congress or this Court recognizes limits on that sovereignty. Couldn’t Congress just pass a law making Section 1981 applicable to Indian tribes? G. Robert Johns: Perhaps, Justice Yellow, but it shouldn’t have to. Serious discrimination is occurring right now and it’s not waiting for Congress to fix it. Regardless, Section 1981’s application to Indian tribes is clear. Several lower courts have studied the question and concluded that it should apply to Indian tribes.71 Chief Justice Violet : Why hasn’t this come up before? Why is Section 1981 an issue for Indian tribes now, after a century of civil rights litigation involving Indian tribes? G. Robert Johns: As this Court noted in the seminal case, Jones v. Alfred H. Mayer Co. in 1968,72 it doesn’t matter if a


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statute has lain dormant for decades. The statute says what it says and that should be the end of the matter. Justice Blue : I recall that Senator Trumbull, the Congressional champion of the 1866 Civil Rights Act, only intended the statute to apply to African-American persons. Back then, there was no discussion of Indians ever being citizens.73 G. Robert Johns: Ah, yes, but the legislative history is inconclusive. It is clear that the Warren Court and later cases expanded the application of Section 1981 to other races and even to illegal immigrants. Justice Blue: But not to American Indians. Chief Justice Violet : In fact, if Congress believed that Section 1981 applied to American Indians, it would make little sense to adopt the Indian Civil Rights Act in 1968 to extend civil rights protections to American Indians.74 G. Robert Johns: Well, as the Court knows, the Indian Civil Rights Act is a toothless statute after Santa Clara Pueblo v. Martinez,75 with no way for civil rights petitions to ever reach federal court to vindicate their rights. Chief Justice Violet : But that’s a non sequitir. Congress did pass the statute, one that would have been redundant if Section 1981 applied to Indian tribes. Moreover, Congress has never amended the Indian Civil Rights Act to authorize federal court review. It would appear that Justice Marshall’s opinion that a tribal forum is adequate to vindicate civil rights and enforce the statute was persuasive and continues to be so.76 G. Robert Johns: And yet Indian tribes continue to violate the civil rights of both Indians and non-Indians. Justice White: I guess that begs the question, doesn’t it? G. Robert Johns: What is clear is that the Indian School never denies that it is discriminating against non-Indians, especially Caucasian applicants. Caucasian applicants have little or no chance to be admitted to the Indian School, given this so-called Indian preference. Justice Gray : What entitlement do non-Indian students have to be admitted to this school? G. Robert Johns: Under Section 1981, they have the same entitlement as American Indian students. The Thirteenth Amendment, as implemented by Section 1981, guarantees that no private entity may discriminate on the

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basis of race. Since the Indian School’s application process is open to the public, they must comply with the Constitution. Justice Red: What if the Indian School declared all non-Indians ineligible to apply? G. Robert Johns: That would be the equivalent of a reverse-style Jim Crow law, one that applied only to disfavor a single race or to favor a single race. Justice Red: What if the Indian School only allowed members of the Lake Matchimanitou Band to apply? G. Robert Johns: Well, that would mean that they were like a private club, a country club with exclusive membership. There’s nothing wrong with that, but they’ve opened their doors to all persons of all races. Let’s not forget that the Lake Matchimanitou Band, Larissa Reyna, and the Indian School collectively argue that the Constitution of the United States does not apply to them. These entities are constitutional outlaws, capable of discriminating against American citizens on the basis of race, sex, creed, religion, ethnicity . . . . Chief Justice Violet : But doesn’t the Lake Matchimanitou Band’s own constitution prohibit that kind of discrimination? G. Robert Johns: Well, sure, but there’s no effective means of redress . . . . Chief Justice Violet : Mr. Johns, your time is up. You have reserved time for rebuttal, however. Mr. Roberts? Niko Roberts: Thank you, Madam Chief Justice. And may it please the Court. As John Dewey argued over a hundred years ago, education of our children is the most critical part of growing up and becoming important members of our societies.77 The headmen, or ogemuk, of the Michigan Anishinaabek knew that when they negotiated the various treaties in which the Michigan tribes ceded their lands to the United States starting in the late 18th century and into the late 19th century.78 In fact, the land upon which the state’s flagship university originally rested was specifically set aside for the purpose of educating American Indian people.79 In these treaties, the United States accepted responsibility—a trust responsibility—to educate American


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Indian students.80 While the federal government’s attempts to educate American Indian students took a turn for the worse as they instituted coercive and ethnocidal policies of assimilation, the United States transferred its trust responsibility to educate American Indians in Michigan to the State of Michigan in the 1930s.81 As had the U.S. before it, the State of Michigan’s educational policies in regard to American Indians was ineffective and negligent at best and ethnocidal at worst. Virtually every member of our community knows or is related to another member of the community who was thrown down the stairs at the federal boarding school in Mount Pleasant or the Catholic school at Indian Town, Harbor Springs because they spoke their language.82 Or they were beaten to within an inch of their lives for not speaking English or rebelling against the military, boot camp style of the schools. Whole generations of Ottawa and Anishinaabe children had been denied their culture and language. Much has been lost. More than any words that I can use in this limited time and in this place could explain. More than anyone in this room, including myself, can ever fully understand. The federal and state policy of assimilating Indian children, of making them speak and act like white America, came as close to destroying Michigan Indian people as you can get without being total. In the 1960s and 1970s, non-Indians living deep in the heart of Michigan Indian Country would not have known that there were ancient Indian communities and lands underneath their very feet. But some Indian people remained. And a few people is all it takes to stage a comeback. In the 1980s and 1990s, the federal government reaffirmed and recognized the tribal governments of the Michigan Ottawa tribes along the northwest coast of Lake Michigan, including the Lake Matchimanitou Band.83 Federal policy toward Indian tribes had moved toward self-governance and selfsufficiency by this time. While other Michigan tribes focused on raising governmental revenues through gaming operations, the Lake Matchimanitou Band

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Justice White:

Niko Roberts:

Justice White: Niko Roberts:

chose not to do so. Instead, the Band decided to focus their efforts at the education of their children—and those of the other Ottawa and Anishinaabe tribes in Michigan and the rest of the Great Lakes. The Lake Matchimanitou Indian School was such a success that . . . . I don’t see where this is going. It seems to me that you’re wasting your time on this history when you have a serious Section 1981 issue. My tribe, the Lake Matchimanitou Band, has never appeared before this Court and may never appear before it again. As with any deliberative body, we must tell you who we are. You might be able to read about the tribe or the school in books, but, unless a member of the community communicates to you our history, you can never know who we are. I know I have a mere thirty minutes. Those are the rules of this body and I will abide by them, but if nothing else happens here today, I will use my time to tell this Court who the Lake Matchimanitou Band is, where we come from, and why we founded the Lake Matchimanitou Indian School. So be it, Counselor. Consider that bands or tribes in the Great Lakes region had specialties, skills, or purposes that each community was known for. The Potawatomi were known as the Keepers of the Fire. The Ojibwe were known as Hunters. And the Ottawa were known as the Traders. Those times are long past now, but the Lake Matchimanitou Band leadership decided to make our community known for education and schooling. Other Michigan tribal communities, by investing their gaming revenues in our school, tacitly accepted the notion that LMB would focus on education. Other bands might focus on other issues or areas. That’s to be determined. But my community chose to start this school. However, we are not isolationist. We follow what Charles Wilkinson called “measured separatism,” where we are separate both geographically, politically, and socially to some limited extent sufficient to protect our culture and way of life, but we do


Justice Red: Niko Roberts:

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recognize the need to integrate to some extent into American society.84 Once we started the Indian School, we admitted only Michigan Anishinaabe students. But we expanded to include Indians from other communities all over the United States and Canada. And later we expanded our student body to include indigenous peoples from all over the world. Our biggest step, however, given the history of American Indian education, was to admit white students. This is a form of affirmative action, then? You could say it that way. I attended the University in Michigan, and their administrators often justified their admissions policies on the notion that the people who attend these elite universities and professional schools will become the leaders of the United States, political, legal, military, and economic. It was, for lack of a better word, a truly elitist justification for affirmative action and diversity. Ironically, it was this elitist justification for affirmative action that formed a major pillar of this Court’s acceptance of affirmative action in 2003. The Indian School’s purpose for admitting nonIndian students is far more fundamental than other forms of affirmative action. We do it, frankly, for survival. Consider that the tribe’s governmental and social institutions in the 1980s and 1990s were in complete tatters. Ever since the incorporation of the State of Michigan in 1837 and even before that, Michigan Indian communities had been under siege from all sides. Indian people were fighting an intense and losing battle to save their lands, taken from them, many times, in the most inglorious and fraudulent means possible, all backed by the military power of the United States and the police power of the State of Michigan. Indian social control, completely unlike the American and state governments that ruled through threat of force, through coercion, collapsed as the tribal land base and social structure collapsed. Indian communities could not recover from this loss of a land base as Indian children were forced to attend the government and religious schools that

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Justice White:

Niko Roberts:

took away their language and culture. By the time of federal recognition of the Band, no governmental structures and very little land was left. And even by the time of the establishment of the Indian School, very little had been restored and stabilized. Admitting non-Indian students at that point would have been—and was proven to be—counterproductive. The school suffered intense growing pains and, in one instance, these pains were fatal to four students. A form of isolation was necessary at first. In short, our community needed to get its own house in order before it began to incorporate the people of other communities into the school and elsewhere. The limited isolation that we imposed as a community, once the social, legal, and political structures were in place, can now be slowly lifted. Instead of non-Indians overwhelming every aspect of our culture and communities, we can integrate with Americans and others on our terms, to protect ourselves and our culture. That is where we are as a community, in a nutshell. And that is where the Indian School is. The school is ready to admit a limited number of nonIndian students, exceptional students, who will learn about Indian people and from whom Indian students can learn. In theory, if done right, it can be one of the best adaptations of the ideal of “measured separatism.” To throw open the doors to the Lake Matchimanitou Indian School to all applications on this Court’s notion of the legal fiction of “merit” is to destroy the school, just as the old American notions of “Manifest Destiny” and the “Melting Pot” came so very close to destroying all traces of Indian people and turning us into nothing more than museum exhibits. But this is America and that form of race discrimination is simply illegal, according to Section 1981. Indian tribes are still under the jurisdiction of the United States, are they not? Elementary federal Indian law states that Indian tribes retain an inherent sovereignty unless expressly limited by Congress or through treaty or other


Justice Gray:

Niko Roberts:

Justice White: Niko Roberts:

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validly negotiated agreement.85 The jurisdiction of the United States over Indian tribes is plenary, not absolute. Federal jurisdiction exists only as necessary to effectuate a compelling national interest. Isn’t the elimination of racism and discrimination a compelling national interest to pierce the veil of tribal sovereignty? Sure, so long as racism and discrimination are proved. That is far from the case here. As with all Indian tribes, if we make classifications, it is on the basis of political status. As you know, the United States has always dealt with Indian tribes on a government-to-government basis, perhaps not fairly every time. If this Court ever concluded that the United States’ actions in regards to Indian tribes were based on race, then all of those precious land cession treaties and land condemnation decisions would be racially discriminatory and invalid. In other words, Justice Gray, as you must well know, the United States would have to turn over billions upon billions of acres to hundreds of Indian tribes. Or, in the alternative, pay trillions and trillions of dollars in damages to the tribes and their members. The Indian School isn’t doing anything differently than the United States does with Indian tribes and Indian people. Think of it as an immigration rule. The tribe allows certain people to use its governmental services and other facilities and may even revoke that privilege at its pleasure, just as the United States can authorize immigration and deportation of non-American citizens. But these non-Indian applicants are American citizens, entitled to the equal protection of the laws. Surely, they are, Justice White. From the United States and all other American governments. But these American citizens are not citizens of the Lake Matchimanitou Band of Ottawa Indians. In other words, non-LMB members have no right to attend the Indian School. Where in the Constitution does it say that American citizens have the right to access tribal educational programs and services? Did the Founders ever believe that American citizens

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Chief Justice Violet:

Justice White:

Niko Roberts:

Chief Justice Violet: G. Robert Johns:

Justice Red:

would have access to such programs? Did the drafters of the Reconstruction Amendments? Normally, we don’t appreciate even rhetorical questions from counsel, but in this instance the answers to your questions appear self-evident. Hardly, Madam Chief Justice. Congress clearly eliminated all important aspects of tribal sovereignty in 1871 when it stopped authorizing the President to treat with Indian tribes. If Indian tribes have any sovereignty, it is over their own domestic relations, and nothing else. I doubt that was the intention of Congress in passing the 1871 statute, but Congress has continued to treat Indian tribes as sovereigns on almost a continual basis since then. Congress has long had the opportunity to cease to recognize tribal sovereignty, but it has chosen instead to recognize it at least since the so-called Termination Era, which ended in the 1960s. Since then, Congress has supported tribal law enforcement, tribal courts, tribal economic development, tribal–state cooperation, tribal environmental programs, and hundreds of other expressions of tribal sovereignty. The 1871 statute simply cannot bear the weight ascribed to it in Justice Thomas’ 2004 opinion.86 Moreover, whether or not Congress has ever divested Indian tribes of sovereignty is not at question here. Given the strong political, if not financial, support Congress has granted Indian schools and tribal education over the years, the tribal variety flourishes as the third sovereign in the United States. Mr. Roberts, your time is up. Mr. Johns, you have one minute. Respondent’s recitation of history further serves to prove their complete assimilation into the American polity. Regardless of the good or bad of it, the tribe’s members no longer speak the language or practice their traditional religion. They’re no longer tribal, frankly . . . . In one of your submissions, you cited a link to a website related to the school. I reviewed that website and on that site were several digital videos of Indian


Justice White: Justice Yellow: Justice White: G. Robert Johns: Chief Justice Violet:

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children, ostensibly Indian children educated at the Indian School, speaking fluently in the language known as Anishinaabemowin.87 Are you saying that this is not sufficient to prove the continuing viability of the Ottawa culture? It would seem to me that it’s no different than learning Latin or another dead language. It seems to me to be evidence of a remarkable recovery of this tribal community. None of this is relevant to the Section 1981 claim at hand. Thank you, Justice White. What is clear is that the respondent’s revisionist history is also irrelevant. Ah, but it does give meat to the bone of the basic elements of federal Indian law in a way I’ve never seen before. And maybe will never see again. Mr. Johns, your time is up. Thank you for that enlightening discussion. As always, we will take this case under advisement.

The Supreme Court that overturned affirmative action in 2028 had a couple of retirements before it heard the Section 1981 challenge to the affirmative action program at Lake Matchimanitou Indian School. The four new Justices—and the one dissenter from the 2028 case—voted as a block to dismiss the suit. In a companion case, the same Court block struck down the program started by a school known as the Louis C. Banes School of Merit on the basis that the race-neutral tests administered to determine the qualifications of applicants were, in fact, insidiously racist.88 Larissa Reyna resigned her position at the school a year after the Supreme Court decision upholding her affirmative action plan. A Michigan Ottawa woman named Mariana Roberts—with a doctorate and professional degree from a prestigious university—replaced her.

Notes

Introduction 1. Raymond Kiogima, Address, 4th Annual Indigenous Law Conference—“American Indian Law & Literature,” Michigan State University College of Law, October 20, 2007. 2. E.g., Edward Benton-Benai, The Mishomis Book: The Voice of the Ojibway (St. Paul: Indian Country Press, 1979); M. Inez Hilger, Chippewa Families: A Social Study of White Earth Reservation, 1938 (Washington, D.C.: Catholic University of America Press, 1939); M. Inez Hilger, Chippewa Child Life and Its Cultural Background (Washington, D.C.: United States Government Printing Office, 1951). 3. See generally Angie Debo, A History of the Indians of the United States (Norman: University of Oklahoma Press, 1970); David E. Stannard, American Holocaust: The Conquest of the New World (New York: Oxford University Press, 1992); Russell Thornton, American Indian Holocaust and Survival: A Population History Since 1492 (Norman: University of Oklahoma Press, 1987). 4. David E. Stannard, American Holocaust: The Conquest of the New World (New York: Oxford University Press, 1992). 5. Several scholars have argued recently that European and American governments and policymakers preferred to purchase Indian lands and properties rather than take them by force. E.g., Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge: Harvard University Press, 2005), 10, 40; Terry L. Anderson & Fred S. McChesney, “Raid or Trade? An Economic Model of Indian-White Relations,” Journal of Law and Economics 37 (1994): 39; Eric Kades, “The Dark Side of Efficiency: Johnson v. M’Intosh and the Expropriation of Indian Lands,” University of Pennsylvania Law Review 148 (2000): 1065, 1104. 6. Professor Kades’ 2000 paper offered this theory. See Eric Kades, “The Dark Side of Efficiency: Johnson v. M’Intosh and the Expropriation of Indian Lands,” University of Pennsylvania Law Review 148 (2000): 1065, 1104. For an argument disputing Kades’ theory, see Matthew L.M. Fletcher, “The Iron Cold of the Marshall Trilogy,” North Dakota Law Review 82 (2006): 627, 686–693. 7. See Americanizing the American Indians: Writings by the “Friends of the Indian” 1800–1900, ed. Francis Paul Prucha (Cambridge: Harvard University Press, 1973). 8. E.g., Treaty with the Chippewa et al., Sept. 26, 1833, art. III, 7 Stat. 431-448 (1848);

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9.

10.

11. 12.

13.

14.

15.

16.

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Notes

Treaty with the Chippewa, Aug. 5, 1826, art. VI, 7 Stat. 290-295 (1848); Treaty with the Creeks and Seminole, Jan. 4, 1845, art. IV, 9 Stat. 821-823 (1851); Treaty with the Osage, Sept. 29, 1865, art. VIII, 14 Stat. 687-693 (1868); Treaty with the Ottawa and Chippewa, July 31, 1855, art. II, 11 Stat. 621-628 (1859); Treaty with the Ottawas et al., March 18, 1836, art. IV, 7 Stat. 491-497 (1848); Treaty with the Potawatomies, Sept. 20, 1828, art. II, 7 Stat. 317-319 (1848); Treaty with the Ute, Mar. 2, 1868, art. VIII, 15 Stat. 619-627 (1869). Vine Deloria, Jr. & Clifford Lytle, American Indians, American Justice (Austin: University of Texas Press, 1983): 5; Brenda Jones-Quick, “Special Treatment is Fair Treatment for America’s Indigenous Peoples,” Detroit College of Law at Michigan State University Law Review 1997 (1997): 783, 785–786; John W. Ragsdale, “Indian Reservations and the Preservation of Tribal Culture: Beyond Wardship to Stewardship,” UMKC Law Review 59 (1991): 503, 534–535; Benjamin Ramirez-shkwegnaabi, “The Dynamics of Anishinaabe Diplomacy in the Great Lakes Region,” American Indian Culture and Research Journal 27 (2004): 53–77; Charles F. Wilkinson & John M. Vollman, “Judicial Review of Treaty Abrogation: As Long as Water Flows, or Grass Grows Upon the Earth—How Long a Time is That?”, California Law Review 63 (1975): 601, 610–611. The August 5, 1826 treaty with the Minnesota Chippewa Tribe included the provision, “With a view to the improvement of the Indian youths, it is also agreed, that an annual sum of one thousand dollars shall be appropriated to the support of an establishment for their education, to be located upon some part of the St. Mary’s river, and the money to be expended under the direction of the President; and for the accommodation of such school, a section of land is hereby granted.” Treaty with the Chippewa, Aug. 5, 1826, art. VI, 7 Stat. 290-295 (1848). Similarly, the 1865 treaty with the Osage contained this provision: “The Osage Indians being anxious that a school should be established in their new home, at their request it is agreed and provided that John Shoenmaker may select one section of land within their diminished reservation, and upon the approval of such selection by the Secretary of the Interior, such section of land shall be set apart to the said Shoenmaker and his successors, upon condition that the same shall be used, improved, and occupied for the support and education of the children of said Indians during the occupancy of said reservation by said tribe . . . .” Treaty with the Osage, Sept. 29, 1865, art. VIII, 14 Stat. 687-693 (1868). See Margaret Connell Szasz, Education and the American Indian: The Road to SelfDetermination Since 1928, 2nd ed. (Albuquerque: University of New Mexico Press, 1977): 8–15. United States v. Clapox, 35 F. 573, 577 (D. Or. 1888) (“[T]he reservation itself is in the nature of a school, and the Indians are gathered there, under the charge of an agent, for the purpose of acquiring the habits, ideas, and aspirations which distinguish the civilized from the uncivilized man.”). See Derrick Bell, And We are Not Saved: The Elusive Quest for Racial Justice (New York: Basic Books, Inc., 1987); Patricia J. Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge: Harvard University Press, 1991); Richard Delgado, “Rodrigo’s Chronicle,” Yale Law Journal 101 (1992): 1357–1383. See generally Dorothy A. Brown, Critical Race Theory: Cases, Materials and Problems, 2nd ed. (St. Paul: Thomson/West, 2007). E.g., Adrienne D. Dixon and Celia K. Rousseau, Critical Race Theory in Education: All God’s Children Got a Song (New York: Routledge, 2006); Daniel G. Solórzano and Tara J. Yosso, “Critical Race Methodology: Counter-Storytelling as an Analytical Framework for Education Research,” Qualitative Inquiry 8 (2002): 23–44. Charles Wilkinson coined the phrase “measured separatism” to describe the theory behind treaty negotiations between Indian tribes and the United States. Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (New Haven: Yale University Press, 1987): 14–19. See generally Francis Paul Prucha, American Indian Treaties: The History of a Political

Notes

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19. 20. 21.

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25. 26. 27. 28.

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Anomaly (Berkeley: University of California Press, 1994). See also Robert A. Williams, Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800 (Oxford: Oxford University Press, 1997). See George William Rice, “25 U.S.C. § 71: The End of Indian Sovereignty or a SelfLimitation of Contractual Ability?”, American Indian Law Review 5 (1977): 239–253. See generally Kenneth H. Bobroff, “Retelling Allotment: Indian Property Rights and the Myth of Common Ownership,” Vanderbilt Law Review 54 (2001): 1557–1623; Judith V. Royster, “The Legacy of Allotment,” Arizona State Law Journal 27 (1995): 1–78. E.g., Matthew L.M. Fletcher, “The Insidious Colonialism of the Conqueror: The Federal Government in Modern Tribal Affairs,” Washington Journal of Law & Policy 19 (2005): 273–311. For extensive discussion of the Indian Reorganization Act, see Vine Deloria, Jr. and Clifford Lytle, The Nations Within: The Past and Future of American Indian Sovereignty (New York: Pantheon Books, 1984). See Daniel M. Rosenfelt, “Indian Schools and Community Control,” Stanford Law Review 25 (1973): 489, 496–497; Harvard Law Review Association, “Privatization of Federal Indian Schools: A Legal Uncertainty,” Harvard Law Review 116 (2003): 1455, 1467. For extended discussion of the current era of federal support for tribal selfdetermination begun in the 1970s, see Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (London: W.W. Norton & Co., 2005). See also Kristen A. Carpenter, “Recovering Homelands, Governance, and Lifeways: a Book Review of Blood Struggle: The Rise of Modern Indian Nations,” Tulsa Law Review 41 (2005): 79–89. See generally Americanizing the American Indians: Writings by the “Friends of the Indian” 1800–1900, ed. Francis Paul Prucha (Cambridge: Harvard University Press, 1973): 191–292; William Dunlop, The Indians of Hungry Hollow (Ann Arbor: University of Michigan Press, 2004): 131–140; Amelia V. Katansky, Learning to Write “Indian”: The Boarding-School Experience and American Indian Literature (Norman: University of Oklahoma Press, 2005); K. Tsianina Lomawaima, They Called It Prairie Light: The Story of Chilocco Indian School (Lincoln: University of Nebraska Press, 1994). E.g., Keith Basso, Wisdom Sits in Places: Landscape and Language Among the Western Apache (Albuquerque: University of New Mexico Press, 1996); Living Our Language: Ojibwe Tales & Oral Histories, ed. Anton Treuer (St. Paul: Minnesota Historical Society, 2001); Ojibwa Narratives of Charles and Charlotte Kawbawgam and Jacques LePique, 1893–1895, ed. Arthur P. Bourgeois (Detroit: Wayne State University Press, 1994); The Tree That Never Dies: Oral History of the Michigan Indians, ed. Pamela J. Dobson (Grand Rapids: Grand Rapids Public Library, 1978); John C. Wright, The Crooked Tree: Indian Legends of Northern Michigan (Holt: Thunder Bay Press, 1996). See Genocide of the Mind: New Native American Writing, ed. MariJo Moore (New York: Thunder’s Bay Press/Nation Press): 105–184. 348 U.S. 272 (1955). 347 U.S. 483 (1954). In Justice Reed’s pithy words: “Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conquerors’ will that deprived them of their land.” Tee-Hit-Ton Indians, 348 U.S. at 289–90. In fact, the Tee-Hit-Ton Indians, natives of Alaska, have never been conquered by any European nation, including Russia, and the United States. See Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in Modern Constitutional Democracy (New Haven: Yale University Press, 1987): 43 (arguing that the Court decided at least one major Indian law case based on its “visceral reaction” to the facts, citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)).

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30. See Kristen A. Carpenter, “Contextualizing the Losses of Allotment through Literature,” North Dakota Law Review 82 (2006): 605–626; Matthew L.M. Fletcher, “Sawnawgezewog: The ‘Indian Problem’ and the Lost Art of Survival,” American Indian Law Review 28 (2003–2004): 35–105. 31. Helen Hornback Tanner, Atlas of Great Lakes Indian History (Norman: University of Oklahoma Press, 1987), 179; George Weeks, Mem-Ka-Weh: Dawning of the Grand Traverse Band of Ottawa and Chippewa Indians (Peshawbestown: Grand Traverse Band of Ottawa and Chippewa Indians, 1992), 13. 32. Incidentally, the name “Leelanau” (or “Lelanau”), while looking like an Indian word or a derivative, appears to be a word constructed out of whole cloth by Henry Schoolcraft in order to “sound” Indian, which Schoolcraft alleged meant “delight of life.” Patrick Russell LeBeau, Rethinking Michigan Indian History (East Lansing: Michigan State University Press, 2004), 185. “Matchimanitou,” on the other hand, is an Anishinaabemowin word intended to mean “bad spirit.” Frederic Baraga, A Dictionary of the Otchipwe Language—Part II (1880) (St. Paul: Minnesota Historical Society Press, 1992), 228; Virgil J. Vogel, Indian Names in Michigan (Ann Arbor: University of Michigan Press, 1986), 100. Louise Erdrich’s “Lake Matchimanito” from her novel Tracks is a similar usage of the word. See Louise Erdrich, Tracks (New York: Harper Collins, 1988). 33. See Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 369 F.3d 960, 962 & n. 2 (6th Cir. 2004); United States v. Michigan, 471 F. Supp. 192, 264-265 (W.D. Mich. 1979); Matthew L.M. Fletcher, “Politics, History, and Semantics: The Federal Recognition of Indian Tribes,” North Dakota Law Review 82 (2006): 487–518.

Chapter 1 1. For more commentary on the problem of the use of American Indian names, logos, images, and mascots in American sports programs, see Team Spirits: The Native American Mascots Controversy, ed. C. Richard King and Charles Fruehling Springwood (Lincoln: University of Nebraska Press, 2001); Lawrence R. Baca, “Native Images in Schools and the Racially Hostile Environment,” Journal of Sport & Social Issues 28 (2004): 71–78; C. Richard King et al., “Of Polls and Race Prejudice: Sport’s Illustrated Errant ‘Indian Wars,’ ” Journal of Sport & Social Issues 26 (2002): 381–402; Kimberly Roppolo, “Symbolic Racism, History, and Reality: The Real Problem with Indian Mascots,” in Genocide of the Mind: New Native American Writing, ed. MariJo Moore (New York: Thunder’s Mouth Press/Nation Books, 2003): 187–198; Steve Russell, “Invisible Emblems: Empty Words and Sacred Honor,” in Genocide of the Mind: New Native American Writing, ed. MariJo Moore (New York: Thunder’s Mouth Press/Nation Books, 2003): 211–227; Alfred Young Man, “Indians as Mascots: Perpetuating the Stereotype,” in Genocide of the Mind: New Native American Writing, ed. MariJo Moore (New York: Thunder’s Mouth Press/Nation Books, 2003): 199–209. 2. This is also known as the Indian Reorganization Act, or the Wheeler-Howard Act. See Cohen’s Handbook of Federal Indian Law, ed. Nell Jessup Newton et al. (Newark: LexisNexis, 2005): 84–89. 3. In 1994, Congress re-affirmed the sovereignty of several Michigan Indian tribes that had been ignored by the United States for over a century, making the tribes and their members eligible for federal services. See Little Traverse Bay Bands of Odawa Indians and the Little River Band of Ottawa Indians Act, Public Law 103-324, 108 Stat. 2156, codified at 25 U.S.C. § 1300k et seq; Pokagon Band of Potawatomi Indians Act, Public Law 103-323, 108 Stat. 2152, codified at 25 U.S.C. § 1300j et seq. In 1980, the Grand Traverse Band of Ottawa and Chippewa Indians become the first Indian tribe to be recognized by the federal government in accordance with a federal administration acknowledgment process. See Grand Traverse Band of Ottawa and Chippewa Indians v.

Notes

4.

5.

6.

7. 8. 9. 10.

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United States Attorney for the Western District of Michigan, 369 F.3d 960, 962 (6th Cir. 2004); Determination for Federal Acknowledgment of the Grand Traverse Band of Ottawa and Chippewa Indians as an Indian Tribe, 45 Fed. Reg. 19, 321 (Mar. 25, 1980). See C. Richard King and Charles Fruehling Springwood, “The Best Offense . . . : Dissociation, Desire, and the Defense of the Florida State University Seminoles,” in Team Spirits: The Native American Mascots Controversy, ed. C. Richard King and Charles Fruehling Springwood (Lincoln: University of Nebraska Press, 2001), 129–156. See Suzan Shown Harjo, “Fighting Name-Calling: Challenging ‘Redskins’ in Court,” in Team Spirits: The Native American Mascots Controversy, ed. C. Richard King and Charles Fruehling Springwood (Lincoln: University of Nebraska Press, 2001), 189–207. See Angela LaRocque, “Psychological Distress between American Indian and Majority Culture College Students Regarding the Use of the Fighting Sioux Nickname and Logo,” Ph.D. dissertation, University of North Dakota (Dec. 2004); “Tribal Councils Oppose North Dakota Athletic Nickname,” Diverse Issues in Higher Education, Sept. 22, 2005, 14. See Pauline Turner Strong, “The Mascot Slot: Cultural Citizenship, Political Correctness, and Pseudo-Indian Sports Symbols,” Journal of Sport & Social Issues 28 (2004): 79–87. Cf. Daniel M. McCool, Susan M. Olson, and Jennifer L. Robinson, Native Vote: American Indians, the Voting Rights Act, and the Right to Vote (Cambridge: Cambridge University Press, 2007). See generally Taxpayers of Michigan against Casinos v. State of Michigan, 685 N.W.2d 221 (Mich. 2004); Matthew L.M. Fletcher, “Bringing Balance to Indian Gaming,” Harvard Journal on Legislation 44 (2007): 39–95. Anishinaabek, or the “People of Good Intentions.” Basil Johnston, Ojibway Ceremonies (Lincoln: University of Nebraska Press, 1982). The Anishinaabeg are the People of the Three Fires—the Ojibwe, the Potawatomi, and the Ottawa. Edward Benton Benai, The Mishomis Book: The Voice of the Ojibway (St. Paul: Indian Country Press, 1979).

Chapter 2 1. E.g., Revenue Allocation Ordinance, 18 Grand Traverse Band Code § 1605(a). 2. E.g., 18 Grand Traverse Band Code § 1605(b). 3. See generally Petition of the Grand Traverse Band of Ottawa and Chippewa Indians to the Secretary of the Interior for Acknowledgment as an Indian Tribe at 13 (1978) (“Residents of Traverse City crowded the payment office, gawking at the Indians, acting, as Charles Dickson, the distribution agent, said, ‘as though they had never seen an Indian before.’ The curiosity was hardly friendly. Dickson’s wife told a reporter: ‘We found the worst conditions in Michigan. There is more prejudice against these people in Michigan than in any state we have been in and it is senseless.’ ”) (quoting Traverse City (Mich.) Evening Record, July 23, 1910). 4. See Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 369 F.3d 960, 962 (6th Cir. 2004); Determination for Federal Acknowledgment of the Grand Traverse Band of Ottawa and Chippewa Indians as an Indian Tribe, 45 Fed. Reg. 19, 321 (Mar. 25, 1980). 5. See Keith Bradsher, “Michigan Pact Resolves Battle Over Limits on Indian Fishing,” New York Times, Aug. 8, 2000, A16 (“For whites like John Lindenau, who stood on the dock in Leland this morning next to his thirty foot charter fishing boat, the Infinity, the dispute [between Native Americans and Whites over fishing rights] has been all about imposing the same rules on Indians that white fishermen must meet. ‘We won the Indian wars and gave it all away,’ Mr. Lindenau said.”).

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6. See Richard Kennedy, The Rise and Fall of Ben Gizzard (New York: Little, Brown & Co., 1978). 7. Suttons Bay . . . Our History, at http://www.known.com/104StBay.html (last visited August 16, 2007). 8. See Transcript, Vol. I, at 70–71, Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920 (W.D. Mich. 2002) (testimony of Ardith “Dodie” Chambers) (“I’ve heard of the Navajo from TV. I heard of the Sioux Indians from TV and didn’t know there was northern Cheyenne and southern Cheyenne, Cherokees in Oklahoma, North and South Dakotas alone had not only Sioux but all other kinds of Indians there, stuff I didn’t know about.”). 9. See Leelanau Indians, Inc. v. United States Department of Housing and Urban Development, 502 F. Supp. 741, 743 (W.D. Mich. 1980) (“[T]he Grand Traverse Band has existed as a tribe continuously since as early as 1675.”). 10. Treaty with the Ottawas et al., March 18, 1836, art. IV, 7 Stat. 491–497. 11. See Report of Dr. James M. McClurken, at 28, Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920 (W.D. Mich. 2002) (“[F]ew settlers moved to the east shore of Grand Traverse Bay permanently until the 1870s. American squatters began to occupy lands on the Grand Traverse Bay in 1844.”). 12. See Bill Echlin, “GT Resort’s Sale Official,” Traverse City (Mich.) Record-Eagle, April 1, 2003, available at http://www.record-eagle.com/2003/apr/01resort.htm (last visited August 16, 2007). 13. The portions of the Grand Traverse Reservation established by the 1836 Treaty of Washington included Old Mission Peninsula and portions of Acme Township in Grand Traverse County, Michigan. See Report of Dr. James M. McClurken, at 30–49, Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920 (W.D. Mich. 2002) (describing how the federal government delayed the creation of the 1836 reservation and forced the Grand Traverse Band leaders to accept Old Mission Peninsula in lieu of the east shore); see also Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920, 924 (W.D. Mich. 2002) (“Although [the Turtle Creek Casino site is] 1.5 miles outside the 1836 reservation, evidence suggests that the site was located within the contemplated reservation, which was not designated for four years after the treaty was signed.”) (citations omitted). The 1836 Treaty reserved 20,000 acres for the Band. See Treaty with the Ottawas et al., March 18, 1836, art. IV, 7 Stat. 491-497 (“[O]ne tract of twenty thousand acres to be located on the [east] shore of Grand Traverse Bay.”). 14. See Jamie Gumbrecht, “Native Americans fight for land rights,” State News (Mich. St. Univ.), July 19, 2001, at http://www.statenews.com (last visited December 9, 2002) (describing how Grand Traverse and Little Traverse Band members’ access to an Ottawa cemetery on South Fox Island is denied by “developer” David Johnson); Monica Evans, “Block the Swap,” Lansing State Journal, Jan. 26, 2003, at http:// www.lsj.com/opinions/letters/p_030126_evanptv_(fox_isle).html (last visited January 27, 2003) (describing lawsuit filed by the Grand Traverse Band of Ottawa and Chippewa Indians and the Michigan Land Use Institute to, inter alia, improve access to the cemetery on South Fox Island). 15. See Report of Dr. James M. McClurken, at 63, Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920 (W.D. Mich. 2002) (“At Kewadin the four families who live on seven acres purchased and held by 25 Indians. Ben Mamagona who owns and farms 80 acres in a high state of cultivation is their advisor. He is an Indian, and the first Ottawa so far found by the survey who owns farm stock and machinery.”) (quotations omitted). 16. See Report of Dr. James M. McClurken, at 30, Grand Traverse Band of Ottawa and

Notes

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19.

20.

21.

22.

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Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920 (W.D. Mich. 2002) (“Grand Traverse Band chiefs, in Article Two of the 1836 Treaty of Washington, reserved lands they hoped would guarantee them continued access to the east shore and its resources.”); Helen Hornback Tanner, “Mapping the Grand Traverse Indian Country: The Contributions of Peter Doughtery,” Michigan Historical Review 31 (2005): 45–91. See Treaty with the Ottawa and Chippewa, July 31, 1855, art. I, cl. 8, para. 3, 11 Stat. 621-628 (“The United States will give to each Ottawa and Chippewa being the head of a family, 80 acres of land.”). See Act of June 10, 1872, 17 Stat. 381, ch. 424, § 2 (“That said unoccupied lands shall be open for homestead entry for six months from the passage of this act by Indians only of said tribes who . . . have become of age since the expiration of the ten years named in the treaty [of 1855].”). See Report of Dr. James M. McClurken, at 54–55, Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920 (W.D. Mich. 2002) (“Grand Traverse Band members speared fish by torchlight on Elk Lake, Torch Lake, and other inland waters as they had for centuries . . . . Maple syrup harvested from the upland shores and hills . . . continued to provide Grand Traverse Band members with maple sugar which they consumed and a surplus that they sold. Grand Traverse Band members living on both sides of the Grand Traverse Bay traveled to cut-over timberland to harvest berries in season.”) (ellipses added). See James M. McClurken, Gah-Baeh-Jhagwah-Buk: The Way It Happened (East Lansing: Michigan State University Museum, 1991): 80 (“Others left their land for part of each year for fishing, gathering, or by then, lumbering. It was not uncommon for Americans to declare these parcels abandoned and then take possession of them.”). See United States v. Michigan, 471 F. Supp. 192, 208 (W.D. Mich. 1979) (“The liquidation of Indian reservations in the Old Northwest was largely accomplished between 1829 and 1843.”), stay granted, 623 F.2d 448 (6th Cir. 1980), modified, 653 F.2d 277 (6th Cir. 1981), cert. denied, 454 U.S. 1124 (1981); George Weeks, Mem-ka-weh: Dawning of the Grand Traverse Band of Ottawa and Chippewa Indians (Peshawbestown: Grand Traverse Band of Ottawa and Chippewa Indians, 1992): 11–12 (“[M]uch of the land set aside for Indian allotment was not obtained by the Indians . . . . There were several reasons: large portions were excluded from Indian settlement by federal laws and illegal transactions before the Indians began to settle land; many Indian selections failed to get registered because of government mismanagement; other parcels registered by Indians were declared invalid because of errors in certificates; and many Indians who did receive land were unable to retain it, or simply lost it to trespassers.”) (ellipses added). See Treaty with the Ottawa and Chippewa, July 31, 1855, art. I., cl. 8, para. 8, 11 Stat. 621-628 (requiring the federal government to hold the land in trust and stating, “[b]ut such certificates shall not be assignable and shall contain a clause expressly prohibiting the sale or transfer by the holder of the land described therein.”). “[N]o authority exists for the state to tax lands which are held in trust by the United States . . . .” United States v. Rickert, 188 U.S. 432, 441 (1903); see also Ward v. Bd. of County Commissioners of Love County, Oklahoma, 253 U.S. 17, 22-24 (1920) (holding that a state may not tax trust land even with the Indian’s acquiescence in lieu of foreclosure); Choate v. Trapp, 224 U.S. 665, 673-674 (1912) (holding that a tax immunity is a right that cannot be divested without due process); County of Thurston, State of Nebraska v. Andrus, 586 F.2d 1212, 1220 (8th Cir. 1978) (holding that Indians have a property right to be free of state tax until original trust patent expires); State v. Zay Zah, 259 N.W.2d 580, 586 (Minn. 1977) (“[O]nce the trust patent has been issued, it cannot be so converted without the consent of the patentee. The binding trust agreement continues in full effect, with its attendant tax exemption, until its term expires or the patentee accepts title in fee simple.”).

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23. On the Little Traverse Bay Bands Reservation, an Emmett County official summed up the policy of the local government when he said that the tax rate for Indian land would be raised until the area had “relieved itself of the presence of Indians.” Bruce A. Rubenstein, Justice Denied: An Analysis of American Indian-White Relations in Michigan, 1855–1889, Ph.D. dissertation, Michigan State University (1974): 117. 24. See Aish-ka-bwaw v. Schlottenhofer, 14 Pub. Lands Dec. 548, 551, 1892 WL 885 (May 18, 1892) (“There is evidence in the record going to show that this Indian was driven from her claim and her house torn down, that she could not speak English, and was ignorant of her rights, and knew not how to protect them and was poor and friendless.”). 25. See Indian Homesteads, 4 Pub. Lands Dec. 143, 143, 1885 WL 4675 (Sept. 7, 1885) (“On the 14th of March, 1877, my predecessor directed a suspension of action upon certain contested Indian homestead entries in Ionia and Traverse City districts, Michigan, subsequently consolidated at Reed City. This was upon complaint and representation that the contests, made by white persons, were instituted for the purpose of taking advantage of the Indians’ imperfect knowledge of the requirements of the land laws, and possibly meagre [sic] compliance, and thus after depriving them of their homes, such white persons and others in complicity with them were aiming to secure entries upon the land for their own benefit.”). 26. Congress passed three Acts in an attempt to remedy the bad situation with the 1855 Treaty, which itself was an attempt to remedy the bad situation created by the 1836 Treaty. Those remedial Acts were the Act of June 10, 1872, 17 Stat. 381 (“An Act for the Restoration to Market of certain Lands in Michigan”); the Act of March 3, 1875, 18 Stat. 516 (“An act to amend the act entitled ‘An Act for the Restoration to Market of certain Lands in Michigan’ ”), and the Act of May 23, 1876, 19 Stat. 55 (“An act extending the time within which homestead entries upon certain lands in Michigan may be made”). 27. See Aish-Ka-Bwaw v. Schluttenhofer, 14 Pub. Lands Dec. 548, 551, 1892 WL 885 (1892) (“The act of 1872 should be construed liberally, as a remedial statute to secure the rights of those Indians whose rights were overlooked or neglected.”); Indian Homesteads, 4 Pub. Lands Dec. 143, 144, 1885 WL 4675 (1885) (“Certainly no mere technical objection should be permitted to deprive them of guaranteed treaty rights, if the same can be assured to them by any reasonable construction of existing law relating to their homestead privilege.”); see also Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Department of Natural Resourses, 141 F.3d 635, 639 (6th Cir. 1998) (“On the outset, we note that it is well settled that Native American treaties must be liberally construed in favor of Native Americans.”) (citations omitted), cert. denied sub nom., Township of Leland v. Grand Traverse Band of Ottawa and Chippewa Indians, 525 U.S. 1040 (1998); Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920, 934 (W.D. Mich. 2002), aff’d, 369 F.3d 960 (6th Cir. 2004); United States v. Michigan, 471 F. Supp. 192, 251 (W.D. Mich. 1979). 28. See Treaty with the Ottawa and Chippewa, July 31, 1855, art. V, 11 Stat. 621-628 (“The tribal organization of said Ottawa and Chippewa Indians . . . is hereby dissolved.”). 29. It appears to be without question now that: The “Ottawa and Chippewa Tribe” that was dissolved by the Treaty of 1855 was an entirely American creation. The “tribe” had been born in 1836 when the government had gathered the various Ottawa and Chippewa band chiefs of the western Lower Peninsula and the eastern Upper Peninsula in Washington to cede most of their remaining lands in Michigan. To avoid territorial disputes between the bands and to settle the cession with one treaty instead of many, the government dealt with the Ottawas and Chippewas as a single group. This group, the Ottawa-Chippewa Tribe, was created for only one purpose—to cede land. It never exercised any political sovereignty outside the treaty councils.

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Dr. Richard White, Ethnohistorical Report on the Grand Traverse Ottawas, unpublished manuscript, Michigan State University (1978): 25. See Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920, 924 (W.D. Mich. 2002) (“In 1872, then-Secretary of the Interior, Columbus Delano, improperly severed the government-to-government relationship between the Band and the United States, ceasing to treat the Band as a federally recognized tribe.”) (emphasis added) (citations omitted), aff’d, 369 F.3d 960 (6th Cir. 2004); United States v. Michigan, 471 F. Supp. 192, 248 (W.D. Mich. 1979) (describing the “Ottawa and Chippewa nation” mentioned in the treaties as “artificially constructed”). The status of the Michigan tribal treaty “organization” as dissolved greased the skids of the railroad of Indian lands dispossession. See Mary Ann Burdette, 15 Pub. Lands Dec. 104, 106, 1892 WL 541 (July 28, 1892) (“Mrs. Burdette does not now appear before this Department in the character of an Indian, but that of an ordinary citizen seeking to have a fee simple patent reformed. In fact, by the fifth article of the treaty, the tribal organization of the Ottawa and Chippewa Indians was dissolved, and when patents were issued to them for the lands, their control over, and right to dispose of, the latter were as full and complete as those of any other citizen.”). 30. “The dominant motive [for the United States to enter into treaty negotiations in 1835] appears to have been to cheat the Indians out of their lands and reduce their holdings to the reservations. Thereby the Indians would be deprived of their natural habit of roaming the range of the lands on their summer and winter migrations. Thereby the Indians would be deprived of their lands before they realized their eventual value. The figure received for the land 1212–1312 cents per acre indicates that the Indians were cheated out of their land.” United States v. Michigan, 471 F. Supp. 192, 226 (W.D. Mich. 1979) (citations omitted). 31. See Native American Oral History Project, The Tree That Never Dies: Oral History of the Michigan Indians, ed. Pamela Dobson (Grand Rapids: Grand Rapids Public Library, 1978): 127 (“One Ottawa man said, ‘I was born at Stoney Lake, in Benona Township, west of Shelby in Oceana County, in 1903. There’s a place on the south side of [the lake] that belongs to all t[he] Indians at one time.’ A man named Porter, who realized the value of this lake-front property for summer resorts, called a meeting of the Indian property owners. He claimed to be a government agent, and offered to act as their agent to sell the property for a tremendous amount of money. A Miss ‘Korski’ and a Doctor ‘Rosin’ who worked at the girls’ summer camp in the area persuaded the Indians to sign papers which, they said, gave Porter the right to sell the property for them. Each Indian was asked to contribute cash to cover sale expenses. The people actually signed quit-claim deeds and Porter stamped them with a government seal which he had stolen, to make the deal look official, took their money without providing receipts, and left. ‘Well, he sold it, then he kept the money. Nobody prosecute him or nothing. Now what the hell you gonna do in those days?’ ”); Bruce A. Rubenstein, Justice Denied: An Analysis of American Indian-White Relations in Michigan, 1855–1889, Ph.D. dissertation, Michigan State University (1974): 115–116, 116–117 (“Cheap sewing machines and parlor organs, which missionaries and teachers had taught Indians to accept as symbols of civilization, were sold with land mortgages taken as collateral; when Indians failed to meet payment deadlines, the goods were repossessed and the land seized as payment.”; “Some speculators would induce Indians to borrow fifty or a hundred dollars to improve their property; a prosperous white neighbor would be cited as an example of what Indians could achieve by agreeing to the loan. Mortgages served as collateral and repayment dates were set for winter months when Indians were least likely to meet payment; if payment was made, Indians still lost their land, as whites showed them a clause in the contract stating that they were obligated to pay a large attorney’s fee for handling the arrangements.”; “In winter, whites claiming to be agents of charitable institutions went among starving Indians giving them five dollars ‘to buy food’; upon receiving the gift Indians were asked to sign ‘receipts’ which were, in fact, deeds to their property.”).

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32. “In Leelanau County a ten acre plot of ground was donated to the Indians of ‘Menominee Church’, a small church west of Northport, for their camp meetings. When the settler donated this ground over a hundred years ago, the only stipulation in the deed was that the Indians must hold a camp meeting on the site every year or lose it. Over the years this bay shore property became attractive to resort builders and the Indians had problems holding it. Years ago cottages were built along the shore behind the campgrounds. The owner used the access road made by the Indians and, as time passed, the resorters began to think the road belonged to them so they attempted to bar Indians from using it. When the dispute arose, the Indians’ rights were upheld. Recently, owners of a resort attempted to purchase the site, but the Indians refused to consider selling. Following their refusal, the grounds were ravaged by vandals, power lines were cut, a bell was stolen, and buildings were demolished.” Native American Oral History Project, The Tree That Never Dies: Oral History of the Michigan Indians, ed. Pamela Dobson (Grand Rapids: Grand Rapids Public Library, 1978): 127, 146–47 33. “The Grand Traverse Band of Ottawa and Chippewa Indians formally opposes [the] proposed swap, saying many tribal members have ancestral ties to the island and that there is a tribal cemetery there. The tribe contends it has treaty rights to hunt, fish and gather vegetation on public land in areas its ancestors ceded to the U.S. governments in an 1836 treaty.” “A Timeline: The South Fox Island Land Swap,” Traverse City Record-Eagle, Mar. 12, 2003, available at http://www.record-eagle.com/2003/mar/ 12time.htm (last visited March 17, 2003). 34. “There is a story my Uncle Jay Oliver would tell about this occasion. An Indian agent from Ashland actually came here to Charlevoix. I don’t know what they were doing over here. If they were in the business of terminating people’s land rights or whatever, but they made a trip over here. The person from the Bureau went to see my grandmother, Jay’s mother, who was Isabelle Willis originally, but is Isabelle Oliver when they came to see her. It seemed to me that that was more related to the parcel on Beaver Island. That they were trying to . . . this was in the 50s also . . . to get her to relinquish that parcel because she was probably one of the few people still living that had some direct connection there. Her and her children are descendants of Joe Oliver. Jay said she listened for about twenty minutes and then she threw the man out . . . . She [Isabelle Oliver] was a tiny little woman, but she went on a tirade I guess and said, ‘Don’t ever come here again.’ You know, I don’t know what she . . . I wish I could have been there. She threw him out of her house and said, You know, ‘Don’t ever come back. You know, we’ve all suffered enough injury and if you think I’m going to relinquish anything, you’re crazy.’ Basically, that’s what the tone of the conversation was. She threw him out.” Report of Dr. James M. McClurken, at 76, Grand Traverse Band of Ottawa and Chippewa Indians v. Michigan Department of Natural Resources, No. 01-5784-CZ(P) (13th Judicial Cir. Court, Mich.) (quoting Eva Petoskey) (ellipses in original). 35. “Eva Petoskey, a descendant of Jeanette Oliver, the wife of Benjamin Ance, actually owns the letter that her mother received from the Bureau of Indian Affairs regarding an heirship claim on the Sam Bird homestead [on South Fox Island]. The letter gave heirs thirty days [to] ‘show cause why the rejection of the application of Sam Bird should not be made final and the case closed.’ Although Eva’s family members who received this letter were literate, they did not know what the letter meant or why they received it. They do know that the federal government passed title to the Bird homestead to others; they received a check for approximately five dollars in payment for their property.” Report of Dr. James M. McClurken, at 76, Grand Traverse Band of Ottawa and Chippewa Indians v. Michigan Department of Natural Resources, No. 01-5784-CZ(P) (13th Judicial Cir. Court, Mich.). 36. There are many Indian land claims preserved in accordance with the Indian Claims Limitation Act, see 28 U.S.C. § 2415(c), for the allotments of the heirs of several Grand Traverse Band Members. See 48 Fed. Reg. 13698, 13876 (Mar. 31, 1983).

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Federal documents admitting liability in illegal sales of Anishinaabeg lands exist in the public record. See Memorandum from Field Solicitor, Dep’t of Interior, Twin Cities Office, to the Solicitor, Dep’t of Interior 1 (March 7, 1978) (“In reviewing many of the allotment files at the Minnesota Agency, Bemidji, it recently became apparent that great numbers of allotments were sold during the 1950s. In checking further on some of these sales, it seems that many were made with only partial consent of the heirs of the original allottees, and some were made with no consent at all . . . . [The Agency Realty Officer] estimates, from his initial stages of review, that upwards of 2,000 parcels of lands were sold during that period with less than full consent of the beneficiaries and in questionable circumstances. If there were 2,000 of such sales on the six Minnesota Chippewa Tribe reservations alone, it is likely that the figure is even greater on the reservations under the jurisdiction of the Great Lakes Agency and the Michigan Agency.”); Memorandum from Solicitor, Indian Affairs, Dep’t of Interior to Associate Solicitor, Indian Affairs, Dep’t of Interior 1 (May 31, 1979) (“[I]t appears that numerous transactions were entered into without the requisite authority are therefore void . . . . Current holders of these 160-acre allotments include non-Indians, municipalities, Indian tribes, and federal agencies such as the U.S. Forest Service. Their titles now suffer from a severe cloud which is a direct result of unauthorized administrative action.”) (citing Ewert v. Bluejacket, 259 U.S. 159 (1922)). 37. See Transcript, Vol. I, at 71, Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920 (W.D. Mich. 2002) (testimony of Ardith “Dodie” Chambers) (“I was 12 years old myself before we had electricity in our house, and that was 1959 . . . . [The houses didn’t have running water] until . . . the 1970s.”). 38. “When I was about 19 years old, I remember one incident of riding in the car with my uncle. And as I have said earlier, all of my mother’s siblings spoke our language, and my uncle, in particular, my mother’s older brother, was a very articulate speaker of our language. In fact, he spoke English very well, too . . . . But in one case I was riding in the car with him, and he was pointing out to me various places where our relatives had lived throughout, you know, the last hundred years, so he was a person that never moved away from here. He lived there in the Charlevoix area in the Grand Traverse traditional territory all his life, and he knew everyone stretching from Charlevoix to Peshawbestown. He knew a lot of people. So we were riding in the car, and he’s pointing out to me all these places where our relatives had lived and talking about how they had lost the land and how when the lost the land, they—you know, they— excuse me—how difficult it was for them. And, anyway, so I was having the same reaction then as I’m having now as a young person. You know, tears welled in my eyes, and he just kept talking because he’d been through this already, you know. He’d heard it before, and he was a strong-hearted person. And so when we got home . . . we got out of the car, and . . . he was done with his story. And, . . . we went on about our business, and . . . we just sat in silence, I guess, to say . . . he told a story, and we sat in silence. And in reflecting back on that—well, actually at the time I was 19 years old . . . . I said to myself, . . . our ancestors, they . . . would . . . retell these stories, and then they would just sit in silence because they didn’t have any other options.” Transcript, Vol. I, at 105–107, Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920 (W.D. Mich. 2002) (testimony of Eva Petoskey) (ellipses in original); see also Bay Mills Indian Community Land Claims Settlement Act, Hearing Before the Senate Committee on Indian Affairs, 107th Cong., 57, 56 (2002) (prepared statement of George Bennett, Councilor and Former Chair, Grand Traverse Band of Ottawa and Chippewa Indians) (“On January 5, 1841, two Grand Traverse Band leaders, Aghosa and Eshquagonabe, appealed to Henry Schoolcraft, asking him to allow members of the Band to remain in the Grand Traverse Bay area. They wrote: “We feel such an attachment to this our native place, from whence we derive our birth, that it looks like certain death to go from it. Pokagon, one of the principle chiefs of the Potawatomi, ‘cried like a child

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40. 41. 42. 43. 44. 45. 46.

47.

48.

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as he signed’ an 1833 treaty that caused the removal of hundreds of his people.”) (citations omitted). “And I think that we are more astute advocates than . . . our parents were, but there’s actually a lot more to it than that because the other type of education that we received growing up as Indian people had as much to do with what we learned within our families about who we are and what our history is, and it’s really the education that we use more frequently, I believe, when we make our decisions about . . . the future of our tribe and what our goals are and what’s important to us. It is the education that we received within our families that we are using to make those decisions. They involve principles and values that we learned from our parents and grandparents. And the things that we learned, some of us, in outside institutions are really secondary to that.” Transcript, Vol. II, at 35–36, Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920 (W.D. Mich. 2002) (testimony of Eva Petoskey). See Brewton Berry, “The Myth of the Vanishing Indian,” Phylon 21 (1960): 51–57. See generally James W. Loewen, Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong (New York: Simon & Schuster, 1996). See Nancy H. Barry and Paula Conlon, “Powwow in the Classroom,” Music Educators Journal 90 (2003): 21–26 (arguing against the use of the song “Ten Little Indians”). Cf. Reginald Horsman, “Scientific Racism and the American Indian in the Nineteenth Century,” American Quarterly 27 (May 1975): 152–168. This is a true story about the author’s own mother, who used to teach a Michigan Indian history class at a small college in Grand Rapids, Michigan. See Matthew L.M. Fletcher, “The Insidious Colonialism of the Conqueror: The Federal Government in Modern Tribal Affairs,” Washington University Journal of Law and Policy 19 (2005): 273–311. Compare Francis Paul Prucha, “Andrew Jackson’s Indian Policy: A Reassessment,” Journal of American History (December 1969): 527–539 (arguing that President Jackson’s removal policy was mostly beneficial to Indians), and Robert V. Remini, Andrew Jackson and His Indian Wars, New York: Viking, 2001 (same), with Richard White, “How Andrew Jackson Saved the Cherokees,” Green Bag: 2d Series 5 (Summer 2002): 443–452 (arguing the opposite). See Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis: University of Minnesota Press, 2005); Charles R. Lawrence III, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” Stanford Law Review 39 (1987): 317–388. See generally Derrick Bell, And We are Not Saved (New York: Basic Books, 1987).

Chapter 3 1. This narrative is based on the case of Antoine v. Winner School District 59-2, filed in 2006 in the United States District Court for the District of South Dakota, available at http://www.aclu.org/racialjustice/edu/24772lgl20060328.html. The plaintiffs were middle and high schools students and members of the Rosebud Sioux Tribe. In June 2007, the school district settled the case. See American Civil Liberties Union, Press Release, Native American Families and Winner School District Announce Settlement in Case Alleging Discrimination (June 18, 2007), http://www.aclu.org/crimjustice/juv/ 30155prs20070618.html. 2. The details of a similar program at Winner school district are recounted in a letter from the American Civil Liberties Union to Angela M. Bennett, Regional Director, Office of Civil Rights, United States Department of Education (June 23, 2005), http:// www.aclu.org/racialjustice/edu/15916lgl20050622.html, and in the complaint filed against the school district in federal court. A story written for a major news magazine by an Ojibwe writer also provided details. See Mary Annette Pember, Graduating to

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Prison: Native Americans Sue School District, T P, Feb. 2007, http:// www.progressive.org/mag_pember0207?page=0%2C0. 3. Act of April 15, 1934 (48 Stat. 596), as amended by Act of June 4, 1936 (49 Stat. 1458), codified by 25 U.S.C. §§ 452-455.

Chapter 4 1. See Associated Press, “Lake Michigan’s Low Water Level Not Expected to Rise,” Wisconsin State Journal (Madison), March 19, 2007, B3. 2. See Edward Benton-Benai, The Mishomis Book: The Voice of the Ojibway (St. Paul, Indian Country Press, 1979): 80–83. 3. In the critical affirmative action case, Grutter v. Bollinger, Justice Thomas dissented from the Court’s finding that the University of Michigan Law School’s affirmative action program was constitutional. He wrote, in part, “The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition.” 539 U.S. 306.372 (2003) (Thomas, J., dissenting). 4. Cf. Matthew L.M. Fletcher, “The Legal Fiction of Standardized Testing,” Law & Inequality: A Journal of Theory and Practice 21 (2003): 397–414. 5. See Michigan Compiled Laws Annotated § 390.1251 (Michigan Indian Tuition Waiver statute); Michigan Civil Rights Commission, “One Michigan” at the Crossroads: As Assessment of the Impact of Proposal 06-02 (March 7, 2007): 25–27, http:// www.michigan.gov/documents/mdcr/FinalCommissionReport3-07_1_189266_7.pdf. Cf. Letter from Matthew L.M. Fletcher & Kathryn E. Fort, Michigan State University Indigenous Law Program, to Richard McLellan, Chairman, Michigan Law Review Commission (December 4, 2006), http://www.law.msu.edu/indigenous/papers/ 2006–05.pdf. 6. “Big knife,” or a word now used to describe white men. See Charles E. Cleland, Rites of Conquest: The History and Culture of Michigan’s Native Americans (Ann Arbor: University of Michigan Press, 1992): 150.

Chapter 5 1. For more information about the secret society at the University of Michigan formerly known as “Michigamua,” please see Patrick Russell LeBeau, “The Fighting Braves of Michigamua: Adopting the Visage of American Indian Warriors in the Halls of Academia,” in Team Spirits: The Native American Mascots Controversy, ed. C. Richard King and Charles Fruehling Springwood (Lincoln: University of Nebraska Press, 2001): 109–128; see also Tara Browner, Heartbeat of the People: Music and Dance of the Northern Pow-wow (Champaign: University of Illinois Press, 2004): 45–47; James Barron, “Groupings; Keeping Secrets,” New York Times, Jan. 16, 2005, at 20; Brenda Norrell, “Secret Society exposed at University of Michigan,” The Circle: News from an American Indian Perspective, Mar. 31, 2000, at 6; Roberto Rodriguez, “Michigan Student Coalition Takes Over Student Union,” Black Issues in Higher Education, Mar. 2, 2000 at 17. 2. During the occupation of the Michigamua space in the Michigan Union in 2000, the President of the University of Michigan denounced the activities of the students engaged in the speech activity of occupying the Michiganua space, while implicitly affirming the speech activities engaged in by Michigamua. See generally University of Michigan Press Release, Statement by President Lee C. Bollinger (February 21, 2000), http://www.umich.edu/~urecord/9900/Feb21_00/4.htm (last visited August 17, 2007); University of Michigan Press Release, Statement by President Bollinger on SCC sit-in/ Michigamua (February 25, 2000), http://www.umich.edu/~newsinfo/Releases/2000/

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Feb00/r022500b.html (last visited August 17, 2007); University of Michigan Press Release, Statement by President Bollinger re: panel on space allocation (March 13, 2000), http://www.umich.edu/~newsinfo/Releases/2000/Mar00/r031300c.html (last visited August 17, 2007). Cf. Lee C. Bollinger, Images of a Free Press (Chicago: University of Chicago Press, 1991); Lee C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (Oxford: Oxford University Press, 1986). 3. “Anishinaabe woman.” 4. See generally Kimberle Crenshaw, “Playing Race Cards: Constructing a Pro-Active Defense of Affirmative Action,” National Black Law Journal 16 (1999–2000): 196–214; Jack Greenberg, “Affirmative Action in Higher Education: Confronting the Condition and Theory,” Boston College Law Review 43 (2002): 521–617; Rachel F. Moran, “Of Doubt and Diversity: The Future of Affirmative Action in Higher Education,” Ohio State Law Journal 67 (2006): 201–243; Angela Onwuachi-Willig, “Using the Master’s ‘Tool’ to Dismantle His House: Why Justice Clarence Thomas Makes the Case for Affirmative Action,” Arizona Law Review 47 (2005): 113–165; Eugene Volokh, “The California Civil Rights Initiative: An Interpretative Guide,” UCLA Law Review 44 (1997): 1335–1402.

Chapter 6 1. See generally Vine Deloria, Jr., “Anthropologists and Other Friends,” in Custer Died for Your Sins: An Indian Manifesto (1969) (Norman: University of Oklahoma Press, 1988): 78–100. 2. The books written by self-identifying American Indians who later turned out to be hoaxes are legion. E.g., Forrest Carter, The Education of Little Tree (New York: Delacorte Books, 1976); Jamake Highwater, Anpao: An American Indian Odyssey (Philadelphia: Lippincott, 1977); Jamake Highwater, Dance: Rituals of Experience (New York: A&W Publishers, 1978). 3. See Matthew L.M. Fletcher, “Looking to the East: The Stories of Modern Indian People and the Development of Tribal Law,” Seattle Journal for Social Justice 5 (2006): 1–26. 4. See James A. Lake, Sr., “Standing Bear! Who?”, Nebraska Law Review 60 (1981): 451–503.

Chapter 7 1. See generally American Indian Religious Freedom Act, S.J. Res. 102, Aug. 11, 1978, Pub. L. 95-341, 92 Stat. 469, codified in part 42 U.S.C. § 1996; Felix S. Cohen, “The Erosion of Indian Rights, 1950–1953: A Case Study in Bureaucracy,” Yale Law Journal 62 (1953): 348–390; John Petoskey, “Indians and the First Amendment,” in American Indian Policy in the Twentieth Century, edited by Vine Deloria, Jr. (Norman: University of Oklahoma Press, 1985): 221–238. 2. The importance of a pipe in Anishinaabe culture depends on the person who uses the pipe for teachings. Specifics vary, but the fundamental importance is unquestionable. E.g., Edward Benton-Benai, The Mishomis Book: The Voice of the Ojibway (St. Paul, Indian Country Press, 1979): 80–84; Basil Johnston, Ojibway Heritage (Lincoln: University of Nebraska Press, 1976): 134–141; The Sacred Tree: Reflections on Native American Spirituality, ed. Judy Bopp, et al. (Lethbridge: Four Worlds International Institute for Human and Community Development, 1984). 3. See Richard M. Dorson, Bloodstoppers and Bearwalkers: Folk Traditions of the Upper Peninsula (Cambridge: Harvard University Press, 1952): 26–37. 4. See United States v. Bay Mills Indian Community, 692 F. Supp. 777 (W.D. Mich. 1988); Matthew L.M. Fletcher, “Bringing Balance to Indian Gaming,” Harvard Journal on Legislation 44 (2007): 39–95.

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5. The then Justice Rehnquist’s dissent in United States v. Sioux Nation of Indians stands as a prime example of a racist rejection of telling the truth about American history, which he argued was “revisionist history.” 448 U.S. 371, 424 (1980) (Rehnquist, J., dissenting). Professor Rob Williams wrote years later about this dissent: “Rehnquist’s selective use of his own preferred, nonrevisionist historical sources on the hostile, savage character of the nineteenth-century Indian tribes in his dissent to the Sioux Nation majority opinion teaches us a very important lesson: His reliance on these types of sources to support his counterversion of the ‘long history’ of Indian-white ‘confrontations’ shows the continuing force of the long-established tradition of negative stereotyping of Indians.” Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis: University of Minnesota Press, 2005): 121. 6. See generally Frank S. Ravitch, School Prayer and Discrimination: The Civil Rights of Religious Minorities and Dissenters (Boston: Northeastern University Press, 1999). 7. Cf. Alan Campbell, “S-B stepped over line: District promises to follow 1st Amendment,” Leelanau (Mich.) Enterprise, Sept. 12, 2002 (reporting on a public school student assembly where tribal members holding a small powwow at the school asked attendees to stand during a prayer in Anishinaabemowin, the Anishinaabe language). 8. Treaty with the Ottowas and Chippewa, July 31, 1855, art. I, cl. 8 para. 8, 11 Stat. 621, 622 (1859). 9. Indian Homesteads, 4 Pub. Lands Dec. 143, 143, 1885 WL 4675 (Sept. 7, 1885). 10. City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005); see also Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266 (2nd Cir. 2005) (dismissing Indian land claims after twenty years of litigation by following the reasoning of Sherrill); Kathryn E. Fort, “The (In)Equities of Federal Indian Law”, 54 Fed. Law., March/April 2007, at 32; Wenona T. Singel & Matthew L.M. Fletcher, “Power, Authority, and Tribal Property”, 41 Tulsa L. Rev. 21 (2005); Joseph William Singer, “NineTenths of the Law: Title, Possession & Sacred Obligations, 38 Conn. L. Rev. 605 (2006). 11. See Van Orden v. Perry, 545 U.S. 677 (2005). 12. Tony Mauro, “Context is key to sorting out Commandment rulings,” First Amendment Center (June 28, 2005), available at http://www.firstamendmentcenter.org/ analysis.aspx?id=15483 (last visited August 22, 2007) (quoting law professor Erwin Chemerinsky, who argued the case).

Chapter 8 1. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) (tribal hunting and fishing regulations; Williams v. Lee, 358 U.S. 217 (1959) (“Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.”). 2. E.g., William Asikinack, “Why Native American Studies? A Canadian First Nations Perspective,” in American Indian Studies: An Interdisciplinary Approach to Contemporary Issues, ed. Dane Morrison (New York: Peter Lang, 1998): 111–118; Donna Brown, The Perceptions of Selected Tribal College Transfer Students Attending the University of North Dakota, Ph.D. dissertation, University of North Dakota (1995); Kirsten Matoy Carlson, “Towards Tribal Sovereignty and Judicial Efficiency: Ordering the Defenses of Tribal Sovereign Immunity and Exhaustion of Tribal Remedies,” Michigan Law Review 101 (2002): 569–601; Vine Deloria, Jr., “Legislation and Litigation Concerning American Indians,” Annals of the American Academy of Political & Social Science 436 (March 1978): 86–96; Angela R. Riley, “Good (Native) Governance,” Columbia Law Review 107 (2007): 1049–1125; John Petoskey, “Indians and the First Amendment,” in American Indian Policy in the Twentieth Century, ed. Vine Deloria, Jr. (Norman: University of Oklahoma Press, 1985); Lindsay G. Robertson, Conquest by Law: How the Discovery of American Dispossessed Indigenous Peoples of Their Lands

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5.

6.

7.

8.

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(Oxford: Oxford University Press, 2005); Wenona T. Singel, “Labor Relations and Tribal Self-Governance,” North Dakota Law Review 80 (2004): 691–730; Wayne J. Stein, “American Indian Education,” in American Indian Studies: An Interdisciplinary Approach to Contemporary Issues, ed. Dane Morrison (New York: Peter Lang, 1998): 73–92; Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University of Oklahoma Press, 1975); Robert A. Williams, Jr., The American Indian in Western Legal Thought (Oxford: Oxford University Press, 1990); David E. Wilkins, American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997). Cf. America in 1492: The World of the Indian Peoples before the Arrival of Columbus, ed. Alvin M. Josephy, Jr. (New York: Knopf, 1992). E.g., Connecticut ex rel. Blumenthal v. Department of Interior, 228 F.3d 82, 92 (2d Cir. 2000) (describing the Mashantucket Pequot Tribe of Indians’ wealth as “tremendous”); Smith v. Babbitt, 100 F.3d 556, 557 (8th Cir. 1996) (noting that complaint alleged that an Indian tribe disbursed $400,000 a year in gaming revenues to each tribal member); Lincoln v. Saginaw Chippewa Indian Tribe of Michigan, 967 F. Supp. 966, 967 (E.D. Mich. 1997) (acknowledging that tribe distributed gaming revenue to its members); Saratoga County Chamber of Commerce, Inc. v. Pataki, 798 N.E.2d 1047, 1069 n.4 (N.Y. 2003) (Read, J., dissenting) (noting that Oneida Indian Nation’s casino payroll exceeded seventy million dollars); see also K. Alexa Koenig, “Gambling on Proposition 1A: The California Indian Self-Reliance Amendment,” University of San Francisco Law Review 36 (2002): 1033, 1034 (indicating that, despite some moral objections, gaming has proved itself as the most effective route for Indians in overcoming a history of extreme poverty); Kathryn R.L. Rand, “There Are No Pequots on the Plains,” Chapman Law Review 5 (2002): 47, 85 (reviewing the history of tribal gaming and arguing that excessive regulation of tribal gaming inhibits tribal sovereignty, while failing to aid Indians suffering from poverty). See generally Kathryn R.L. Rand & Steven A. Light, “Virtue or Vice? How IGRA Shapes the Politics of Native American Gaming, Sovereignty, and Identity,” Virginia Journal of Social Policy & Law 4 (1997): 381–437 (comparing and contrasting the benefits and drawbacks of Indian gaming, and concluding that Congress, not individual tribes, should determine appropriate regulatory measures). See Talton v. Mayes, 163 U.S. 376, 382 (1896) (addressing the question of whether the Fifth Amendment to the Constitution applied to local legislation of the Cherokee nation that required a grand jury to initiate all prosecutions for offenses committed against the laws of the nation). The Court held that the Fifth Amendment restrains the power of the general government, rather than the power of the states. See Robert B. Porter, “A Proposal to the Hanodaganyas to Decolonize Federal Indian Control Law,” University of Michigan Journal of Law Review 31 (1998): 899, 961 (“It is extremely expensive and inefficient for the Indian nations to remain dependent on the United States.”); Robert J. Miller, “Economic Development in Indian Country: Will Capitalism or Socialism Succeed?”, Oregon Law Review 80 (2001): 757, 763–764 (arguing that tribal government economies are quasi-socialist and therefore very inefficient); Robert B. Porter, “Strengthening Tribal Sovereignty Through Government Reform: What are the Issues?”, Kansas Journal of Law and Public Policy 7 (1997): 72, 78 (noting that in both large and small tribes, self-governance frequently leads to intratribal disputes). Cf. John D. Barton & Candace M. Barton, “Jurisdiction of Ute Reservation Lands,” American Indian Law Review 26 (2001): 133, 134 (2001) (explaining that the United States government’s isolationist policy toward Indians stemmed from colonial attitudes that found English and Native American cultures incompatible). See Grutter v. Bollinger, 539 U.S. 306, 328, 330 (2003) (“Today, we hold that the Law School has a compelling interest in attaining a diverse student body.”; “[T]he Law School’s admissions policy promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different

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races. These benefits are important and laudable, because classroom discussion is livelier, more spirited, and simply more entertaining and interesting when the students have the greatest possible variety of backgrounds.”) (brackets, quotation marks, citations, and ellipses removed). Contra Derrick Bell, “Diversity’s Distractions,” Columbia Law Review 103 (2003): 1622 (arguing that the debate over diversity diverts concern with and efforts to “achieve racial justice”). See generally Mary Mack Adu, “Brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, et al., in Support of Respondents,” Michigan Journal of Race & Law 9 (2003): 5 (arguing that the racial diversity in schools helps eliminate additional social divisions such as those of social status, experience, and access to wealth); Nancy E. Dowd et al., “Diversity Matters: Race, Gender, and Ethnicity in Legal Education,” University of Florida Journal of Law & Public Policy 15 (2003): 11 (describing how diversity promotes more interesting classroom discussion and better prepares students as professionals). 9. Cf. Michelle DeArmond, “Former Allies Oppose Tribes,” Riverside Press-Enterprise, May 1, 2003, at A01 (explaining that tension arises when a community’s willingness to allow Indian gaming clashes with their unmet expectations of Indian support for restrictions that protect children from gaming hazards); Andy Hall & Scott Milfred, “Tribe Accuses Legislators of ‘Insulting’ Tactics; Tensions Rose After GOP Gave Little Notice for a Hearing Today on Casino Deals,” Wisconsin State Journal, Feb. 27, 2003, at A1 (relating the deterioration of tribal relations where the Ho-Chunk Nation accused Wisconsin state legislators of “insulting, demeaning, and disrespectful” tactics in handling casino gambling); A.J. Higgins, “Tribal-State Meeting Falls Apart; Passamaquoddys Walk Out in Bitter Response to Casino Vote,” Bangor Daily News, Nov. 8, 2003, at A1 (demonstrating the tension between tribal leaders and state officials where Indians were denied the opportunity to open more profitable casinos); Lewis Sahagun, “Tribes Fear Backlash to Prosperity; Rapid Growth of Casinos has Come with Several Missteps, Causing Leaders to Worry About Erosion of Support That Could Put New Wealth at Risk,” Los Angeles Times, May 3, 2004, at B1 (expressing the fear among tribal leadership that rapid enhancement in the quality of life of Indians, due to gaming revenues, would generate community backlash). 10. Cf. Yavapai-Apache Tribe v. Meija, 906 S.W.2d 152, 161 n.2 (Tex. App. 1995) (citing Jeanne Louise Carriere, “Representing the Native American: Culture, Jurisdiction, and the Indian Child Welfare Act,” Iowa Law Review 79 (1994): 585, 601) (noting that prior to the passage of the Indian Child Welfare Act, “[eighty-five percent] of the Indian children removed from their homes were placed in non-native American homes”). 11. See Native American Oral History Project, The Tree That Never Dies: Oral History of the Michigan Indians, ed. Pamela Dobson (Grand Rapids: Grand Rapids Public Library, 1978): 52–54 (describing the Mount Pleasant School, which was run like a military school where students received punishments so severe that scarring resulted from the beatings). See generally New Rider v. Board of Education of Independent School District No. 1, 414 U.S. 1097, 1101 (1973) (Douglas, J., dissenting from denial of certiorari) (“Such schools were run in a rigid military fashion, with heavy emphasis on rustic vocational education. They were designed to separate a child from his reservation and family, strip him of his tribal lore and mores, force a complete abandonment of his native language, and prepare him for never again returning to his people.”); Linda LeGarde Grover, “Chi-Ko-ko-koho and the Boarding School Prefect,” in Sister Nations: Native American Women Writers on Community, ed. Heid E. Erdrich & Laura Tohe (St. Paul, Minnesota Historical Society, 2002): 82 (describing, poetically, the fear of violence students felt toward their prefect if they ever “crossed his path”); Pamela J. O’Connor, “Squaring the Circle: How Canada Is Dealing with the Legacy of Its Indian Residential Schools Experiment,” International Journal of Legal Information 28 (2000):

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13. 14.

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232 (describing Canada’s policy of assimilating indigenous children through laws requiring Indian children to attend school). See David E. Stannard, American Holocaust: Columbus and the Conquest of the New World (Oxford: Oxford University Press, 1992): 217 (stating that Spanish conquistadors worked Indians to death, rather than feeding and caring for a long-term resident slave population, because it was the cheapest way to maximize profits); id. at 241 (describing how the New England colonists and religious elite referred to Indians as “ravenous howling wolves” and ordered followers to track, pursue, and beat the Indians as the “dust in the wind,” until they were “consumed”). See William Dunlop, The Indians of Hungry Hollow (Ann Arbor: University of Michigan Press, 2004): 131–140 (describing the abuses of the Catholic boarding school in Petoskey, where a priest used a horsewhip to beat students). See Robert A. Williams, Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800 (New York: Routledge, 1997): 83–97 (describing Indian treaties as “stories”); Milner S. Ball, “Stories of Origin and Constitutional Possibilities,” Michigan Law Review 87 (1989): 2280, 2296 (suggesting that “[n]o version of the American story gives full voice to Native Americans”); Kristen A. Carpenter, “Interpreting Indian Country in State of Alaska v. Native Village of Venetie,” Tulsa Law Journal 35 (1999): 73, 118 (1999) (arguing that the “white man’s” conception of Indian law “ignores that, like Europeans, Indians retained their own unique system of politics, diplomacy, and rituals to early encounters”); N. Bruce Duthu, “Incorporative Discourse in Federal Indian Law: Negotiating Tribal Sovereignty Through the Lens of Native American Literature,” Harvard Human Rights Journal 13 (2000): 141, 165–166 (“Placing Indigenous narrative texts . . . alongside the prominent legal texts in federal Indian law permits a greater degree of textual interrogation precisely because they recall the dialogic nature of intersocietal relations and help steer us away from simplistic, inaccurate, or incomplete tellings and retellings of this nation’s many formative stories.”). See also Nevada v. Hicks, 944 F. Supp. 1455, 1467 (D. Nev. 1996) (“If justice is a product of conversation rather than unilateral declaration, it is more likely to be achieved in the context of respectful dialogue rather than majoritarian conclusions about the ‘other.’ ”) (quoting Frank Pommersheim, Braid of Feathers: American Indian Law and Contemporary Tribal Life (Berkeley: University of California Press, 1995): 193); Richard Delgado, “Storytelling for Oppositionists and Others: A Plea for Narrative,” Michigan Law Review 87 (1989): 2411 (examining the use of stories, parables, chronicles, and narratives to address the need for racial reform); Matthew L.M. Fletcher, “Stick Houses in Peshawbestown,” Cardozo Public Law, Policy & Ethics Journal 2 (2004): 189–287 (telling the stories of several generations of Michigan Ottawas in fiction); Matthew L.M. Fletcher, “The Legal Fiction of Standardized Testing,” Law & Inequality: A Journal of Theory & Practice 21 (2003): 397 (relating fictional stories about several minorities required to take standardized tests for educational and professional purposes); Matthew L.M. Fletcher, “Looking to the East: The Stories of Modern Indian People and the Development of Tribal Law,” Seattle Journal of Social Justice 5 (2006): 1–26. See Frank Pommersheim, Braid of Feathers: American Indian Law and Contemporary Tribal Life (Berkeley: University of California Press, 1995): 40–41; Robert A. Williams, Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800 (New York: Routledge, 1997): 98–123; David E. Wilkins and Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law (Norman: University of Oklahoma Press, 2001): 117–142; Rebecca Tsosie, “Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights,” UCLA Law Review 47 (2000): 1615. See Vine Deloria, Jr., Custer Died for Your Sins: An Indian Manifesto (1968) (Norman: University of Oklahoma Press, 1988). See Brief for Amici Curiae for National Congress of Am. Indians et al., at 12–17, 20–27, Inyo County v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony, 538 U.S. 701 (2003) (discussing law enforcement agreements between several

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states, localities, and Indian tribes); Saikrishna Prakash, “Against Tribal Fungibility,” Cornell Law Review 89 (2004) 1069, 1102 & n.206 (recognizing that even if the executive branch technically cannot “direct the internal or external affairs of another nation,” there still remains “residual powers” within the executive branch that effectively allow for the creation of favorable policies for certain Indian tribes); Matthew L.M. Fletcher, “The Power to Tax, the Power to Destroy, and the Michigan Tribal-State Tax Agreements,” University of Detroit Mercy Law Review 82 (2004): 1 (examining the issues a state is confronted with when dealing with collection of taxes and an Indian tribes sovereign immunity). See Yakama Indian Nation v. Flores, 955 F. Supp. 1229, 1251 (E.D. Wash. 1997) (“[T]he primary purpose in all treaties with Indians was to ‘extinguish all Indian title and rights and acquire the land . . . .’ ”). See State v. St. Francis, 563 A.2d 249, 257 (Vt. 1989) (Mahady, J., dissenting) (accusing the non-Indians of “[h]aving waged genocidal warfare against the native inhabitants of this continent . . . .”); John W. Ragsdale, Jr., “Indian Reservations and the Preservation of Tribal Culture: Beyond Wardship to Stewardship,” UMKC Law Review 59 (1991): 503, 519–520 n.138 (noting that Europeans intentionally gave blankets infected with smallpox to Indians, which often resulted in the devastation of closeknit tribal communities where quarantine was nearly impossible). Contra Eric Kades, “The Dark Side of Efficiency: Johnson v. M’Intosh and the Expropriation of American Indian Lands,” University of Pennsylvania Law Review 148 (2000): 1065, 1145 (arguing that it is improbable that Europeans used smallpox as biological warfare because they had limited knowledge of infectious diseases). See generally Gloria Valencia-Weber, “The Supreme Court’s Indian Law Decisions: Deviations from Constitutional Principles and the Crafting of Judicial Smallpox Blankets,” University of Pennsylvania Journal of Constitutional Law 5 (2003): 405 (describing the white settlers’ and traders’ practice of using blankets infested with smallpox when meeting with tribal opposition leaders). See Rice v. Cayetano, 528 U.S. 495, 506 (2000) (detailing how the introduction of Western diseases and infectious agents among Hawaiian peoples resulted in high mortality figures, death from common illnesses, and the spread of a devastating smallpox epidemic in 1853); State v. McCoy, 387 P.2d 942, 949 (Wash. 1963) (“The Indians of Puget Sound, unlike those of upper Columbia (Yakima and Nez Perce) were remnants of former large tribes; their numbers were depleted by smallpox and other diseases.”); Parker Land and Cattle Co. v. Wyo. Game and Fish Commission, 845 P.2d 1040, 1053 (Wyo. 1993) (noting that in 1853, the Indian agent at Fort Pierre reported a new grievance that developed among the Indians, the loss of many of their friends and relatives to smallpox, measles, and cholera); Kirkpatrick Sale, The Conquest of Paradise: Christopher Columbus and the Columbian Legacy (New York: Knopf, 1990): 33–46 (describing the disease and famine that was rampant in Europe at the time of the Columbian contact with Indians); David E. Stannard, American Holocaust: Columbus and the Conquest of the New World (Oxford: Oxford University Press, 1992): 57–147 (explaining that the introduction of European diseases among Native Indians in North America had a genocidal impact). Cf. Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 341 (1945) (explaining that the discovery of gold in California caused white settlers to populate Indian land, which resulted in the disappearance of game from the Indians’ hunting grounds); Karuk Tribe of California v. Ammon, 209 F.3d 1366, 1371 (9th Cir. 2000) (“On January 24, 1848, when James Marshall saw the sparkle of gold on the South Fork of the American River in northern California, the native population of California was about five times as large as the settler population. By September 4, 1850, when California became the 31st state, the settlers easily outnumbered the natives.”) (citing Byron Nelson, Jr., Our Home Forever: A Hupa Tribal History (Hoopa: Hupa Tribe, 1978): 47). See generally Paul v. United States, 20 Cl.Ct. 236, 240 (1990) (“In 1880, the non-native population was less than 300, all but 30 of whom lived in Sitka. When the

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24.

25.

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Citizenship Act was passed in 1924, Alaska natives comprised a majority of the population. It was not until 1939 that non-natives began consistently to outnumber Alaska natives. During and after World War II, increasing numbers of non-natives were attracted to Alaska by the prospect of economic development. By 1960, the approximately 53,000 Alaska natives accounted for only 20 percent of the total one quarter million people of Alaska.”); David E. Stannard, American Holocaust: Columbus and the Conquest of the New World (Oxford: Oxford University Press, 1992): 122 (asserting that the United States government used white settlers to promote the eradication of Indians from the land); William L. Evans, “Who Owns the Contents of Ohio’s Ancient Graves,” Capital University Law Review 22 (1993): 711, 719 (1993) (suggesting that it was beneficial for settlers to buy land from Native Americans willing to sell land in order to avoid conflict) (citing Felix Cohen’s Handbook of Federal Indian Law, ed. Rennard Strickland (Charlottesville: Michie, 1982): 55); Katharine F. Nelson, “Resolving Native American Land Claims and the Eleventh Amendment: Changing the Balance of Power,” Villanova Law Review 39 (1994): 525, 580 n.337 (“Discovery of oil and abundant timber also lured many white settlers and profiteers to southwestern New York. By 1900, the Senecas were outnumbered five to one on the Allegany Reservation.”); Gloria Valencia-Weber, “The Supreme Court’s Indian Law Decisions: Deviations from Constitutional Principles and the Crafting of Judicial Smallpox Blankets,” University of Pennsylvania Journal of Constitutional Law 5 (2003): 407 (explaining that although the Indians outnumbered the Europeans, the Europeans’ use of weapons and microbes reduced the power of the native people). Cf. Kirkpatrick Sale, The Conquest of Paradise: Christopher Columbus and the Columbian Legacy (New York: Knopf, 1990): 31–33 (describing the violence that was rampant in European culture at the time of the Columbian contact with Indians). See Charles E. Cleland, Rites of Conquest: The History And Culture Of Michigan’s Native Americans (Ann Arbor: University of Michigan Press, 1992): 150 (stating that Indian descendents of Algonquian refer to non-Indian Americans as “Chemokmon,” which relates to the first terrifying encounters between Great Lakes warriors and American militias); see also Edward Benton-Banai, The Mishomis Book: The Voice of The Ojibway (St. Paul: Indian Country Press. 1979): 111 (defining “Chi-mook’-amon-nug’ ” as “Long Knives” or “Light-skinned Race”); Native American Oral History Project, The Tree That Never Dies: Oral History of the Michigan Indians, ed. Pamela Dobson (Grand Rapids: Grand Rapids Public Library, 1978): 23 (defining “chi-mokoman” as “white people”). See Grutter v. Bollinger, 137 F. Supp. 2d 821, 864 (E.D. Mich. 2001) (determining that the excessive number of Indians who live in impoverished areas is a major cause of the grade point average gap between Indians and the rest of the country), rev’d on other grounds, Grutter v. Bollinger, 539 U.S. 306 (2003); Donald E. Laverdure, “A Historical Braid of Inequality: An Indigenous Perspective of Brown v. Board of Education,” Washburn Law Journal 43 (2004): 285, 293 (“[T]he percentage of college readiness rates for . . . indigenous students [is] . . . [fourteen percent] . . . . To compound the problem, the already extremely low number of college-ready indigenous students have incredibly high dropout rates in mainstream higher education institutions—[seventyeight percent] at Arizona State University, for example.”). Cf. Native American Oral History Project, The Tree That Never Dies: Oral History of the Michigan Indians, ed. Pamela Dobson (Grand Rapids: Grand Rapids Public Library, 1978): 55–56 (“Indian children soon found that there was room for only one language at [their Indian school] and that language was English.”; “As at public schools, children who spoke only an Indian language had a difficult time understanding their lessons.”). See generally Allison M. Dussias, “Waging War With Words: Native Americans’ Continuing Struggle Against the Suppression of Their Languages,” Ohio State Law Journal 60 (1999): 901. See United States v. Sioux Nation of Indians, 448 U.S. 371, 425 (1980) (“[U]nder the circumstances presented in 1877, Congress attempted to improve the situation of the

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Sioux and the Nation by exchanging the Black Hills for 900,000 acres of grazing lands and rations for as long as they should be needed . . . . [A]lthough the Government attempted to keep white settlers and gold prospectors out of the Black Hills territory, these efforts were unsuccessful.”); Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201, 1204 (9th Cir. 2001) (en banc) (“As California grew, due in part to the discovery of gold, clashes between the White settlers and the tribes increased in frequency and severity, usually to the detriment of the Native American populations.”); Karuk Tribe of California v. Ammon, 209 F.3d 1366, 1371 (9th Cir. 2000) (stating that when the first white settler struck gold on the banks of the American River in northern California, there were about five times as many native Americans in the population as there were white settlers; but just two years later, settlers outnumbered the native Americans). Cf. Sokaogon Chippewa Community v. Exxon Corporation, 805 F. Supp. 680, 686 (E.D. Wis. 1992) (“[T]he Treaty of the Chippewa, signed in 1842 . . . in which Native Americans conveyed a vast tract of land in Northern Wisconsin and the Upper Peninsula of Michigan to the United States. This area began to attract white settlers in the mid-1800s, as rich mineral deposits had recently been discovered both on and underneath the land.”). See Howard Zinn, A People’s History of the United States (New York: HarperCollins, 1995): 522 (“On Thanksgiving Day 1970, at the annual celebration of the landing of the Pilgrims, the authorities decided to do something different: invite an Indian to make the celebratory speech. They found a Wampanoag Indian named Frank James and asked him to speak. But when they saw the speech he was about to deliver, they decided they did not want it.”). Cf. Gregory Evans Dowd, A Spirited Resistance: The North American Indian Struggle for Unity, 1745–1815 (Baltimore: Johns Hopkins University Press, 1992): 26 (describing the friendships and alliances that the Indians and the French built through trading and their common British enemy, and also noting the Indian’s dependency on the British for goods after the French left North America). Cf. New Rider v. Board of Education of Independent School District No. 1, Pawnee County, Oklahoma, 414 U.S. 1097 1101 (1973) (Douglas, J., dissenting from denial of certiorari) (“In the late 1800’s . . . the Bureau of Indian Affairs began operating a system of boarding schools with the express policy of stripping the Indian child of his cultural heritage and identity . . . .”) (citation omitted); Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 519-520 (1819) (explaining that Reverend Eleazar Wheelock established a school where he housed, cared for, and educated Indian children to prepare them to spread the word of the Gospel among their tribes); Bear Lodge Multiple Use Association v. Babbitt, 175 F.3d 814, 817 n.4 (10th Cir. 1999) (“As early as 1818, the United States contracted with Christian missionary societies to organize and run boarding schools which enrolled Indian students, either voluntarily or by force.”) (citation omitted); Cobell v. Babbitt, 91 F. Supp. 2d 1, 8 (D. D.C. 1999) (noting that the Bureau of Indian Affairs would take Indian children from their families and put them in boarding schools designed to teach them English and strip them of their native language and culture) (quoting Kevin Gover, Assistant Secretary of Indian Affairs); Cuthair v. Montezuma-Cortez, Colorado School District No. RE-1, 7 F. Supp. 2d 1152, 1158 (D. Colo. 1998) (stating that federal policy forbade Indian schools from teaching in any Indian language). See generally Michael Young, The Rise of the Meritocracy: 1870–2033 (London: Thames and Hudson, 1958) (satirizing “meritocracy”); Lani Guinier, “Supreme Democracy: Bush v. Gore Redux,” Loyola University of Chicago Law Journal 34 (2002): 23, 46 (“[A]lthough the original application of the meritocracy concept to the college admissions process was done in the name of extending access to students beyond the confines of the New England private preparatory schools, it, too, has become a vehicle for codifying and camouflaging social hierarchy.”) (citation omitted); Susan Sturm & Lani Guinier, “The Future of Affirmative Action: Reclaiming the Innovative Ideal,” California Law Review 84 (1996): 953, 968 (equating “meritocracy” with “testocracy”).

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31. See generally Stanley Fish, There’s No Such Thing as Free Speech and it’s a Good Thing, Too (Oxford: Oxford University Press, 1994): 63–65, 67–68, 72, 85–86 (claiming that the Scholastic Aptitude Test is racist and class-biased). 32. Cf. Cobell v. Norton, 283 F. Supp. 2d 66, 72-73 (D. D.C. 2003) (describing the forced removal of indigenous peoples from their lands as “one of the darkest chapters in American history”); United States v. Michigan, 471 F. Supp. 192, 239 (W.D. Mich. 1979) (“Removal was seized upon as the means to rid white settlements of these advanced Indian societies.”); Angie Debo, A History of the Indians of the United States (Norman: University of Oklahoma Press, 1970): 101 (“Andrew Jackson was elected president in 1828. It was clear to the frontier that, whatever his professions of benevolence, he would remove the Indians to the West by force.”); Carol Chomsky, “The United States-Dakota War Trials: A Study in Military Injustice,” Stanford Law Review 43 (1990): 13, 15–22 (describing the United States–Dakota War and the large-scale, state-sponsored persecution of native populations that followed). 33. See Tonkawa Tribe of Okla. v. Richards, 75 F.3d 1039, 1041 (5th Cir. 1996) (describing an instance where Indians have sided with Americans); Oneida Indian Nation of New York v. New York, 691 F.2d 1070, 1077 (2nd Cir. 1982) (stating that two of the six Iroquois Nation tribes sided with the states during the American Revolution, the others sided with the British). 34. Cf. United States v. Kagama, 118 U.S. 375, 383-384 (1886) (articulating the theory that Congress has plenary power over all Indian tribes because they are “dependent” on the United States for virtually everything). 35. See Nell Jessup Newton, “Indian Claims in the Courts of the Conqueror,” American University Law Review 41 (1992): 753, 771 (noting that the purpose of the Indian Claims Commission was “to settle tribes’ ancient grievances in order to prepare them for the termination of their special status under United States law”); John T. Vance, “The Congressional Mandate and the Indian Claims Commission,” North Dakota Law Review 45 (1969): 325, 335 (“[T]he Indian Claims Commission has failed throughout the time of its existence . . . .”); Western Addition Community Organization v. NLRB, 485 F.2d 917, 940 (D.C. Cir. 1973) (Wyzanski, J., dissenting) (“To leave non-whites at the mercy of whites in the presentation of non-white claims which are admittedly adverse to the whites would be a mockery of democracy.”). Cf. Richard Delgado, “The Imperial Scholar Revisited: How to Marginalize Outsider Writing, Ten Years Later,” University of Pennsylvania Law Review 140 (1992): 1349, 1353; Richard Delgado, “The Imperial Scholar: Reflections on a Review of Civil Rights Literature,” University of Pennsylvania Law Review 132 (1984): 561, 577. 36. Cf. Frank Pommersheim, Braid of Feathers: American Indian Law and Contemporary Tribal Life (Berkeley: University of California Press, 1995): 11–36 (describing how the United States government repeatedly reduced the size and value of the Indian reservations); Robert N. Clinton, “The Dormant Indian Commerce Clause,” Connecticut Law Review 27 (1995): 1055, 1241 n.470 (“Indian statehood which would have resulted in some structural representation of the affected Indian tribes in the Senate and the electoral college, but, like many promises made to Indian tribes in treaties, these promises remain unfulfilled.”); Kirke Kickingbird, “ ‘Way Down Yonder in the Indian Nations, Rode My Pony Across the Reservation!’ From ‘Oklahoma Hills’ By Woody Guthrie, Tulsa Law Journal 29 (1993): 303, 317–20 (explaining that the United States used a series of laws, treaties, and court decisions to gain control over and drive Indian populations from lands once known as “Indian Territory,” which later became Oklahoma). 37. See Cherokee Nation of Oklahoma v. United States, 782 F.2d 871, 874 (10th Cir. 1986) (“Wary of promises of a permanent home and federal protection, the Cherokees resisted relocation and met with hostility, both from the State of Georgia, where the Cherokees were settled, and the federal government, which was anxious to placate white settlers.”); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 361 (7th Cir. 1983) (attributing the few documented incidents of Indian

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violence or misbehavior to the negative influence of the white settlers); Northern Paiute Nation v. United States, 634 F.2d 594, 596 (Ct. Cl. 1980) (explaining that persistent hostilities between relocated Indians and white settlers were obstacles that challenged the successful establishment of Indian reservations). Cf. Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 341 (1945) (noting that the discovery of gold in California resulted in white settlers arriving on Indian lands and depleting the natural resources, which in turn induced the Indians to commit acts of violence); Confederated Bands of Ute Indians v. United States, 64 F. Supp. 569, 575 (Ct. Cl. 1946) (noting that the United States government set apart separate land areas for Indian use in order to protect Indian tribes and their resources from settlers and gold prospectors); Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie Tribal Government, No. F87-0051 CV (HRH), 1995 WL 462232, at *2 (D. Alaska Aug. 2, 1995) (“The first treaties after the Revolution continued to whittle away at Indian holdings, while white settlers relentlessly encroached on tribal lands without regard to treaty boundaries.”) (citation omitted); In re General Adjudication of All Rights to Use Water in Gila River System and Source, 35 P.3d 68, 75 (Ariz. 2001) (addressing the fact that although the federal government promised to protect the Indians by permitting them to stay peacefully on the lands allotted to them, the government eventually broke that promise in favor of aiding the western expansion of white settlers). Contra Sioux Tribe of Indians v. United States, 146 F. Supp. 229, 232 (Ct. Cl. 1956) (“In the early 1870s many white settlers began invading the Indian lands and the United States, living up to its treaty commitments with the Indians, expelled these white people by military force.”); Dennison v. Topeka Chambers Industrial Development. Corporation, 527 F. Supp. 611, 616 (D. Kan. 1981) (explaining that some government officials, specifically Indian agents, were opposed to any attempts by the white settlers to purge Indian “half-breeds” from their lands). See United States v. Southern Ute Tribe, 402 U.S. 159, 176 n.1 (1971) (Douglas, J., dissenting) (“The white settlers were dissatisfied on learning that the Indians might be allowed to settle in certain valleys which the settlers desired. The allotment, and sale of residue to whites, would leave the Indians in close proximity to the white settlements and will subject the Utes to constant annoyance by evil-disposed persons. The Indians had to be protected from this.”); Caddo Tribe of Oklahoma v. United States, 614 F.2d 272, 274 (Ct. Cl. 1980) (explaining that the Brazos Reservation Indians agreed to move from Texas to Oklahoma because of the hostilities they faced from the white settlers); Healing v. Jones, 210 F. Supp. 125, 136 (D. Ariz. 1962) (noting that government officials believed that an Indian “reservation was needed to protect the Hopi Indians from intrusion by other tribes, Mormon settlers, and white intermeddlers”); cf. Richard Delgado & Jean Stefancic, “California’s Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education,” UCLA Law Review 47 (2000): 1521, 1570 (“One northern California town, forced to accept Indians in school, walled them off with a partition in special rooms, fenced off a part of the playground, and provided them with a separate teacher.”) (citation omitted). See Snake or Piute Indians of Former Malheur Reservation in Oregon v. United States, 112 F. Supp. 543, 568 (Ct. Cl. 1953) (noting the Commission of Indian Affairs’ justification of the government’s decision in refusing to permit the Piutes at Yakima to return to Malheur was due to the hostility of the whites along the route, which “would have been suicidal for the Indians”); Alcea Band of Tillamooks v. United States, 59 F. Supp. 934 (Ct. Cl. 1945) (Whaley, C.J., dissenting) (“Due to the intrusion and conduct of certain white settlers, and the resentment thereof by certain Indians, there were open hostilities with the Rogue River Indians, a great many of whom were exterminated.”). See Natonabah v. Board of Education, 355 F. Supp. 716, 732-733 (D.N.M. 1973) (holding that the school district discriminated against Navajo students by incorrectly spending federal funds, which led to overcrowding in predominantly Indian schools).

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42. See Michael C. Walsh, “Terminating the Termination Policy,” Stanford Law Review 35 (1983): 1181; Charles F. Wilkinson & Eric R. Biggs, “The Evolution of the Termination Policy,” American Indian Law Review 5 (1977): 139. 43. See Dewakuku v. Cuomo, 107 F. Supp. 2d 1117, 1119 (D. Ariz. 2000) (recognizing that much federal Indian policy has been directed toward assimilating Indians into “mainstream America”); Masayevsa v. Zah, 792 F. Supp. 1160, 1162 (D. Ariz. 1992) (suggesting that Congress passed the General Allotment Act to assimilate Native Americans); Heffle v. State, 633 P.2d 264, 268 (Alaska 1981) (stating that one congressional policy is to assimilate Native Americans by including them as citizens of the state in which they reside); see also County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251, 254 (1992) (explaining that the goal of assimilation was to “extinguish tribal sovereignty, erase reservation boundaries, and force assimilation of Indians into society at large”); Sokaogon Chippewa Community v. Exxon Corporation, 805 F. Supp. 680, 688 (E.D. Wis. 1992) (“The government hoped that consolidation of Native Americans on reservations would hasten their assimilation into American Society and better enable Indian agents to oversee the tribes’ development.”); Peyote Way Church of God v. Smith, 556 F. Supp. 632, 639 (N.D. Tex. 1983) (“[T]he Congress has a power or duty to the Indians to preserve their dependent nations until such a time as they may become so assimilated as to not be ‘a people apart.’ ”); In re Adoption of Baby Boy D, 742 P.2d 1059, 1072 (Okla. 1985) (recalling the past practice of removing Indian children from their families and tribal environments, which impeded the ability of the tribe to perpetuate itself, and resulted in coerced assimilation of the First Americans into a homogenous society) (footnotes omitted); State v. Greger, 559 N.W.2d 854, 856 (S.D. 1997) (discussing the fact that reformers in the late 18th century hoped to improve the welfare of Indian people and “solve the Indian problem” through a plan of assimilation). 44. See Grutter v. Bollinger, 539 U.S. 306, 328, 343 (2003) (“[Twenty-five] years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”). 45. Cf. Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784, 827 (D. Minn. 1994) (illustrating the cultural differences between the Indians and settlers through an example about glass windows where “[s]ettlers regarded them as something to look out of, and the Indians regarded them as something to look into, oblivious of the settlers’ concept of privacy”). 46. See Felix S. Cohen, “Indian Rights and the Federal Courts,” Minnesota Law Review 24 (1940): 145, 145-146 (characterizing the defense of Indians by non-Indian lawyers in their fight against the state, federal, and private oppression of Indians as “the most vigorous defense of the rights of a racial minority” in American jurisprudence). 47. See Banner v. United States, 238 F.3d 1348, 1352 (Fed. Cir. 2001) (By entering into a system of treaties, agreements, and statutes, a unique trust relationship has been created between the United States and the Native American tribes. The United States has “charged itself with moral obligations of the highest responsibility and trust,” and its management of Native American affairs must be “judged by the most exacting fiduciary standard.”) (quoting Seminole Nation v. United States, 316 U.S. 286, 296-297 (1942)); see also Shelby D. Green, “Specific Relief for Ancient Deprivations of Property,” Akron Law Review 36 (2003): 245, 250 (“[T]he only just and legally sustainable substitutionary relief is substitute land.”); Leslie Marmon Silko, “Reasserting Our Claims: An Interview with Leslie Marmon Silko,” New Letters 59 (1992): 43, 51 (claiming that American Indians will be able to repossess their tribal land just as African tribes recovered their land from the Europeans). 48. This is where the Supreme Court appears to be heading. See David Getches, “Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Colorblind Justice and Mainstream Values,” Minnesota Law Review 86 (2001)” 267, 281 (illustrating that until recently, criminals had a better chance than Native Americans of winning a supreme court case). See generally Bethany Berger, “ ‘Power Over This Unfortunate

Notes

49.

50.

51.

52.

53.

•

213

Race’: Race, Politics and Indian Law in United States v. Rogers,” William & Mary Law Review 45 (2004): 1957; Philip P. Frickey, “Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law,” Harvard Law Review 107 (1993): 381; David H. Getches, “Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law,” California Law Review 84 (1996): 1573; Joseph William Singer, “Canons of Conquest: The Supreme Court’s Attack on Tribal Sovereignty,” New England Law Review 37 (2002–2003): 641; Alex Tallchief Skibine, “The Court’s Use of the Implicit Divestiture Doctrine to Implement its Imperfect Notion of Federalism in Indian Country,” Tulsa Law Journal 36 (2000): 367. Cf. Antoine v. Washington, 420 U.S. 194, 201 (1975) (holding that states are bound by past treaties under the supremacy clause of the United States Constitution); Menominee Tribe v. United States, 391 U.S. 404, 411 n.12 (1968) (“The Treaty of Wolf River was, under Article VI of the Constitution, the ‘supreme law of the land.’ ”); Worcester v. Georgia, 31 U.S. 515, 559 (1832) (stating that the Constitution recognizes past and future treaties as authoritative in resolving current disputes); United States v. Michigan, 471 F. Supp. 192, 217 (W.D. Mich. 1979) (“Under the United States Constitution, Article VI, clause 2, a treaty made under the authority of the United States becomes the supreme law of the land.”); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin, 663 F. Supp. 682, 688 (W.D. Wis. 1987) (“Like a federal statute, a treaty is the ‘supreme law of the land.’ ”). See generally Ralph W. Johnson, “The States Versus Indian Off-Reservation Fishing: A United States Supreme Court Error,” Washington Law Review 47 (1972): 207 (discussing a Supreme Court opinion that neglected to follow treaties in the 1850s, which gave Indians the permanent right to fish in off-reservation waters); Charles F. Wilkinson & John M. Volkman, “Judicial Review of Indian Treaty Abrogation: ‘As Long as Water Flows, or Grass Grows Upon the Earth’—How Long a Time is That?,” California Law Review 63 (1975): 601 (noting the common practice of the Supreme Court in abrogating the treaty rights of American Indians). Cf. Indian Reorganization Act of 1934, 25 U.S.C. § 461 (2005) (establishing a new method of allocating land on Indian reservations); Robert B. Porter, “A Proposal to the Hanodaganyas to Decolonize Federal Indian Control Law,” University of Michigan Journal of Law Review 31 (1998): 899, 933 (describing the Indian Reorganization Act as “the first federal Indian policy in over 100 years that did not have the explicit purpose of undermining the status of Indian nations”). See generally “Tribal SelfGovernment and the Indian Reorganization Act of 1934,” Michigan Law Review 70 (1972): 955 (examining the effects of the Indian Reorganization Act on tribal structure). See Navajo Nation v. Department of Health & Human Services, 325 F.3d 1133, 1141 (9th Cir. 2003) (noting that Congress intended the Indian Self-Determination and Education Assistance Act to give tribes the authority and ability to administer their own federal programs); Babbitt v. Oglala Sioux Tribal Pub. Safety Department, 194 F.3d 1374, 1381 (Fed. Cir. 1999) (Gajarsa, J., expressing additional views) (explaining the origin and evolution of the self-determination policy); Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461-1462 (10th Cir. 1997) (analyzing and applying the selfdetermination provisions of the Indian Self-Determination and Education Assistance Act); Hopland Band of Pomo Indians v. Norton, 324 F. Supp. 2d 1067, 1071-1073 (N.D. Cal. 2004) (articulating the importance of self-governance in effecting a policy of self-determination). See, e.g., United States v. Antelope, 430 U.S. 641, 646-647 (1977) (upholding the disparity of criminal penalties for Indians and non-Indians); Morton v. Mancari, 417 U.S. 535, 553-555 (1974) (upholding the Bureau of Indian Affairs’ enactment of an employment policy providing an Indian preference on the basis that the classification was not race-based, but instead based on the political status of Indian tribes as wards of the United States); American Federation of Government Employees v. United States,

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54.

55.

56.

57. 58.

59.

•

Notes

330 F.3d 513, 522-523 (D.C. Cir. 2003) (upholding Indian preference in federal contracting); Johnson v. Shalala, 35 F.3d 402, 406-407 (9th Cir. 1994) (upholding federal employment preference for Indians that were not members of tribes to which the Bureau of Indian Affairs provided services); Alaska Chapter, Associated General Contractors v. Pierce, 694 F.2d 1162, 1170 (9th Cir. 1982) (upholding Indian preference in federal contracting); Matthew L.M. Fletcher, “The Original Understanding of the Political Status of Indian Tribes, St. John’s Law Review 82 (2008): 153. See Stanley Fish, There’s No Such Thing as Free Speech and it’s a Good Thing, Too (Oxford: Oxford University Press, 1994): 89–101 (arguing that phrases that appear to be non-discriminatory are actually “code” for phrases that are explicitly intended to preserve the discriminatory status quo); cf. Richard Dvorak, “Cracking the Code: ‘De-Coding’ Colorblind Slurs During the Congressional Crack Cocaine Debates,” Michigan Journal of Race & Law 5 (2000): 611 (asserting the need to de-code racially neutral legislation in order to unmask the racial bias underlying the legislature’s words). Compare Gus P. Coldebella & Mark S. Puzella, “The Landowner Defendants in Indian Land Claims: Hostages to History,” New England Law Review 37 (2003): 585 (opining that the defendant landowners in an Indian land claim were innocent victims and that allowing recovery against the landowners would be unjust), with Arlinda Locklear, “Morality and Justice 200 Years After the Fact,” New England Law Review 37 (2003): 593 (arguing that so-called “hostages to history” are actually direct beneficiaries of illegal and racist theft of property). See Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty AbuseWisconsin, Inc., 41 F.3d 1190, 1192 (7th Cir. 1994) (“Spearfishing protesters yelled numerous racial insults at the Indians – among them the accusation that all Indians are on welfare and filling up Wisconsin’s jails. STA members called spearers “Tonto,” “redskin,” “welfare warriors,” and “timber niggers” and stated that taxpayers had paid for their boats; protesters also mocked an Indian chant and caricatured an Indian ceremonial dance. STA members were heard to say that Indians could not find their food stamps because they kept them under their work boots. In addition to ridiculing Indian culture and traditions, protesters’ racist rhetoric took more violent forms as well. The protesters advocated spearing an Indian to save a walleye and urged supporters to drown Indians.”); Winona LaDuke, All Our Relations: Native Struggles for Land and Life (Cambridge: South End Press, 1999): 123 (describing virulent antiIndian campaigns in Minnesota and Wisconsin); Robert J. Miller, “Exercising Cultural Self-Determination: The Makah Indian Tribe Goes Whaling,” American Indian Law Review 25 (2000–2001): 165, 165 n.1, 267 n.533 (describing racist anti-Indian campaigns against the Makah Tribe in Washington state). See generally Derrick Bell, “The Final Report: Harvard’s Affirmative Action Allegory,” Michigan Law Review 87 (1989): 2382 (describing in narrative the danger of being a “token” minority in an otherwise all-white faculty). See Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 369 F.3d 960, 969-970 (6th Cir. 2004) (describing the administrative termination of the Grand Traverse Band and subsequent restoration by the federal government 108 years later); City of Roseville v. Norton, 348 F.3d 1020, 1022 (D.C. Cir. 2003) (describing the Congressional termination of the Auburn Indian Band and their subsequent restoration); Oregon v. Norton, 271 F. Supp. 2d 1270, 1272 (D. Or. 2003) (describing the Congressional termination of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians and subsequent restoration); Sault Ste. Marie Tribe of Lake Superior Chippewa Indians v. United States, 78 F. Supp. 2d 699, 705-707 (W.D. Mich. 1999) (describing the administrative termination of the Little Traverse Bay Bands of Odawa Indians and the Pokagon Band of Potawatomi Indians and their subsequent restoration). Cf. Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701–2721 (2005) (codifying and providing for the regulation of Indian gaming); California v. Cabazon Band

Notes

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215

of Mission Indians, 480 U.S. 202 (1987) (upholding the right of Indian tribes to conduct high-stakes bingo operations on Indian lands); Grand Traverse Band of Ottawa and Chippewa Indians v. United States Attorney for the Western District of Michigan, 198 F. Supp. 2d 920, 926 (W.D. Mich. 2002) (discussing the important social services funded by Indian gaming); American Greyhound Racing, Inc. v. Hull, 146 F. Supp. 2d 1012, 1063 (D. Ariz. 2001) (finding that gaming revenues allow tribes to fund housing and infrastructure projects); Kansas ex rel. Stephen v. Finney, 836 P.2d 1169, 1171 (Kan. 1992) (noting that income derived from Indian gaming is often the sole means by which tribes can end their dependency on federal money and become selfsufficient); Sherry M. Thompson, “The Return of the Buffalo: An Historical Survey of Reservation Gaming in the United States,” Arizona Journal of International & Comparative Law 11 (1994): 520, 521 n.7 (highlighting a sixteen percent decrease in the number of Indian families relying on welfare in a given area after casinos opened nearby). 60. See Rick Green, “Are State’s Indians in the Crosshairs?,” Hartford Courant, Feb. 17, 2003, at A1 (reporting a backlash against Connecticut Indian tribes due to their successful gaming); Daniel B. Wood, “Despite Casino Setbacks, Indian Clout Rises,” Christian Science Monitor, Nov. 10, 2003, at 3 (reporting backlash against California tribes for contributing money to the 2003 California recall election campaign); see also Monique L. Vondall, “Editorial, What is Wrong with America?: Latest displays of racism in Northwest & local community raises concerns,” Native Directions 11 (Winter 2003): 21 (describing how individuals at the University of North Dakota vandalized and burned ceremonial property belonging to the University of North Dakota Indian Association). 61. See, e.g., Donald L. Bartlett & James B. Steele, “Playing the Political Slots,” Time, Dec. 23, 2002, at 47 (reporting on the large amounts of money Indian casino operators spend on lobbying, campaigning, and other political endeavors); Donald L. Bartlett & James B. Steele, “Wheel of Misfortune,” Time, Dec. 16, 2002, at 47 (asserting that casino profits often benefit a small number of investors, some of whom are nonIndians, while many Indian tribes remain impoverished). 62. 42 U.S.C. § 1981: (a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. [. . .] (c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law. 63. Compare Taylor v. Alabama Intertribal Council Title IV J.T.P.A., 261 F.3d 1032, 1035 (11th Cir. 2001) (dismissing § 1981 claim against a tribal employer); Wardle v. Ute Indian Tribe, 623 F.2d 670, 673 (10th Cir. 1980) (same); Stroud v. Seminole Tribe of Florida, 606 F. Supp. 678 (S.D. Fla. 1985) (same), with Aleman v. Chugash Support Services, Inc., 485 F.3d 206 (4th Cir. 2007) (allowing § 1981 claim against a tribal employer); Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006) (same). 64. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440 (1968) (“Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and incidents of slavery.”). 65. See Runyon v. McCrary, 427 U.S. 160 (1976). 66. See Effect of the Fourteenth Amendment upon Indian Tribes, S. Rep. No. 41-268 (Dec. 17, 1870). 67. Act of June 2, 1924, ch. 233, Statutes at Large 43 (Washington, United States Government Printing Office, 1925), codified at 8 U.S.C. § 1401(b); Robert B. Porter,

216

68.

69. 70. 71. 72. 73.

74. 75. 76.

77. 78. 79. 80. 81.

82. 83. 84. 85. 86.

•

Notes

“The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Indian Citizenship upon Indigenous Peoples,” Harvard BlackLetter Law Journal 15 (1999): 107. By 2006, Indian gaming revenues exceeded $25 billion. See National Indian Gaming Commission, “Press Release: NIGC Announces 2006 Indian Gaming Revenues,” PR-63 07-2007 (June 4, 2007), http://www.nigc.gov/ReadingRoom/PressReleases// PR63062007/PR63072007/tabid/784/Default.aspx (last visited August 27, 2007). See United States v. Lara, 541 U.S. 193, 218 (2004) (Thomas, J., concurring in judgment) (citing 16 Stat. 566, codified at 25 USC. § 71). See United States v. Lara, 541 U.S. 193, 219 (2004) (Thomas, J., concurring in judgment) (“The tribes, by contrast, are not part of this constitutional order, and their sovereignty is not guaranteed by it.”). See Aleman v. Chugash Support Services, Inc., 485 F.3d 206 (4th Cir. 2007); Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006). 392 U.S. 409 (1968). For discussion about the legislative history of the Reconstruction Amendments and their (lack of) application to Indian tribes, please see George Beck, The Fourteenth Amendment as Related to Tribal Indians: Section I, “Subject to the Jurisdiction Thereof ” and Section II, “Excluding Indians Not Taxed”, American Indian Culture and Research Journal 28 (2004): 37–68. 25 U.S.C. §§ 1301 et seq. 436 U.S. 49 (1978). See National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 857 (1985) (citing North Dakota ex rel. Wefald v. Kelly, 10 Indian L. Rep. 6059 (Standing Rock Sioux Tribal Ct. 1983); Crow Creek Sioux Tribe v. Buum, 10 Indian L. Rep. 6031 (Intertribal Ct. App. 1983)). See Lawrence A. Cremin, “John Dewey and the Progressive Education Movement, 1915–1952,” The School Review 67 (1959): 160–173. See generally Benjamin Ramirez-Shkwegnaabi, “The Dynamics of American Indian Diplomacy in the Great Lakes Region,” American Indian Culture and Research Journal 27 (2003): 53–77. See Treaty of Fort Meigs, 7 Stat. 160 (Sept. 28, 1817); Children of the Chippewa, Ottawa, and Potawatomy Tribes v. Regents of the University of Michigan, 305 N.W.2d 522 (Mich. App. 1981). See generally Cohen’s Handbook of Federal Indian Law, ed. Nell Jessup Newton et al. (Newark: LexisNexis, 2005): 1355–1375. See An Act Granting Certain Property to the State of Michigan for Institutional Purposes, 48 Stat. 353 (1928–1934); William Comstock, Letter to Secretary of the Interior, Honorable Harold L. Ickes (May 28, 1934); Brief of Amici Curiae Bay Mills Indian Community et al., at 15, Grutter v. Bollinger, 539 U.S. 306 (2003) (“ ‘[T]he education of Indian children in California, Idaho, Michigan, Minnesota, Nebraska, Oregon, Texas, Washington, and Wisconsin was the total responsibility of the state and not the Federal Government.’ ”) (quoting Special Subcommittee on Indian Education of the Senate Commission on Labor and Public Welfare, Indian Education: A National Tragedy—A National Challenge, S. Rep. 501, 91st Cong. Sess. (1969)). E.g., William Dunlop, The Indians of Hungry Hollow (Ann Arbor: University of Michigan Press, 2004): 131–140. Cf. Matthew L.M. Fletcher, “Politics, History, and Semantics: The Federal Recognition of Indian Tribes,” North Dakota Law Review 82 (2004): 487–518. Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (New Haven: Yale University Press, 1987): 14–19. See Felix S. Cohen, Handbook of Federal Indian Law (Washington: United States Government Printing Office, 1942): 122. See United States v. Lara, 541 U.S. 193, 201 (2004) (“We recognize that in 1871 Congress ended the practice of entering into treaties with the Indian tribes. . . . But

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the statute saved existing treaties from being ‘invalidated or impaired,’ . . . and this Court has explicitly stated that the statute ‘in no way affected Congress’ plenary powers to legislate on problems of Indians,’ Antoine v. Washington, 420 U.S. 194, 203, (1975).”). 87. See Anishnaabemadaa, http://www.anishinaabemdaa.com/ (last visited August 27, 2007). 88. See Robert A. Williams, Jr., “Columbus’s Legacy: Law as an Instrument of Racial Discrimination against Indigenous Peoples’ Rights of Self-Determination,” Arizona Journal of International & Comparative Law 8 (1991): 51, 53 (describing insidious racism of the Old South).

Index

A

C

Ann Arbor University 80–2, 85–7, 88–9, 92, 93, 95–6 Native American Student Association (NASA) 100–3, 105–6 Student Affairs Committee meeting 110–24 “The Terrible Tribe” 96–9, 101–7, 108–10, 110–24 assimilation 1–3, 4–5

Cabel, Charles 161, 162–5 car accidents 77–80, 82–5, 87–8, 89–92, 148 casinos/gaming 45, 54–5, 62, 152–3, 161–2 Cassetta, Vince 138–43 Christianity 163–4 Cleland Braves football team 15–16 counternarratives 6 Critical Race Theory (CRT) 6

B Banes, Louis C. 169–73 Banks, Hal 61–2 basketball 52–3, 61, 85, 149, 167–8 Beercan see Mark, Anthony Board of Regents Student Affairs Committee 110–24 boarding schools 3, 5 Burke, Lori 63–75

D disciplinary issues 54–6 fights 53, 56–76, 61, 163–4 police interventions 53, 55, 60–1, 97, 170 proceedings 57–76 dropouts 54, 55, 78, 94–5, 171, 172

219

220

•

Index

E Ellison, Judge Elijah 153–60 expulsions 53–4, 55, 97, 170–1 Ben Wilson case 63–76

F federal civil rights stature (Section 1981) case 176–87 Federal District Court lawsuit 153–60 federal funds 54–5 federal recognition (1983) 32 fights 53, 56–76, 61, 163–4 Fisher Dietrich, Linda 110–24 football teams 56–7, 61, 93–5 Cleland Braves 15–16 Lake Matchimanitou County 78’er Football League 17–20 Lake Matchimanitou Warriors 22–9 Matchimanitou Bears 13–22 Shelbyville Rockets 21, 22 fraud academic 93–124 literary 125–43 funding 3, 14, 161 federal 54–5 of “The Terrible Tribe” 96, 102 trust funds 31

Higgins, Bob 44–6 high school see Lake Matchimanitou High School historical accounts, non-Indian see Logan, Vann historical perspective 1–3, 4–5 history curriculum 42–50, 169–70 founding of Madison Bay 32–3, 35–6

I Indian Ben 139–43 Indian Child Welfare Act (1978) 5 Indian Reorganization Act (1934) 5 Indian Self-Determination and Education Assistance Act (1975) 5 Indianization of American Schools lobby 175–6 Irvine, Bug 96, 97–8, 102–3, 104–6 Student Affairs Committee meeting 110–24

J Jeffries, Robert, school board meetings 25–9, 46–9 Johnson-O’Malley Acts (1934/1936) 5, 54

G gaming/casinos 45, 54–5, 62, 152–3, 161–2 George, Tahsanchat 51, 73–4 Sawbawgezewog: Tales of the Onemuk 129–32 Grand Traverse Band (GTB) 6

K Katz, Helen 63–75 Killingsworth, Al 99–100, 102, 107, 108–9 Student Affairs Committee meeting 110–24

H

L

Harvard University 147, 148 Hendricks, Fred 56–8, 62, 76

Lake Matchimanitou Band of Ottawa Indians 6–8

Index Lake Matchimanitou High School 11, 12, 51 non-Indian teachers 167, 168–9, 172 non-Indian vs Indian student admissions issue 161–87 Principle Larissa Reyna 172–5, 187 Principle Louis C. Banes 169–73 reorganization and affirmative action 172–6 US Supreme Court case 176–87 see also history curriculum; school board Lake Matchimanitou Warriors football team 22–9 land rights see reservations law and policy 4–5, 6 literature fraud 125–43 philosophy and politics 146–7 university class 132–8 Llewellyn, Lucas 80–2, 85–7, 88–9, 92 Logan, Vann 125–8, 133–8 Sawbawgezewog: Tales of the Onemuk 129–32 The Unifying Native 128–9, 132–3

•

221

Maynard, Elton 110–24 Michigan State University 11 missionaries 5 Montana, Bryan 21, 22, 55–6, 173, 174 expulsion case 63–76 Student Affairs Committee meeting 112–24

N Native American Student Association (NASA) 100–3, 105–6 Niles, Jim 53–4, 55, 56 disciplinary proceedings 57–76 non-Indian historical accounts see Logan, Vann non-Indian reservation settlers 14, 37, 38–41, 146 non-Indian teachers 167, 168–9, 172 non-Indian vs Indian student admissions issue 161–87 Northwest Michigan College 11

M Madison Bay, founding of 32–3, 35–6 Madison, Jefferson 11, 16, 21, 22, 44 Federal District Court lawsuit 153–60 Lake Matchimanitou County 78’er Football League 17–20 school board meetings 25–8, 46–9, 63–75 Madison, Steve 63–75 Manitou, Ben 145–6, 147 Mark, Anthony (Beercan) 51, 52, 53, 54, 56–7 disciplinary proceedings 57–76 Marks, Toledo 145–53 Matchimanitou Bears football team 13–22

O Ogema, Gil 93–5, 97–9, 103–4, 105–7, 108–9

P Patriarche, Anthony 110–24 Peshawbestown 6–7 police interventions car accident 83–5, 87, 89–90, 92 disciplinary 53, 55, 60–1, 97, 170

222

•

Index Lake Matchimanitou County 78’er Football League 17–19 school board meetings 25–9, 46–9

R racism school 53, 56–7, 62–3 university 85–7, 99–100 see also fights Raider, Johnny 61, 63 reservations 2–3, 4–5, 34–41 history curriculum 42–50 non-Indian settlers 14, 37, 38–41, 146 Reyna, Larissa 172–5, 187 Roberts, Emma 11–13, 147–8 as Niko’s Gramma 31–42, 52, 55–6, 78, 79 relationship with Toledo Marks 149, 150–1, 152–3 tribal council roles 12, 13, 16, 17–20, 21, 55–6 Roberts, Frank 14–15, 16, 17, 20–1, 22 Roberts, Niko at Ann Arbor University 80–2, 85–7, 88–9, 92, 93, 95–6, 100, 101–3, 105–6, 110–24 car accident 77–80, 82–5, 87–8, 89–92 Federal District Court lawsuit 153–60 grandfather Toledo 98–9, 142–3 grandmother Emily 31–42, 52, 55–6, 78, 79 literary fraud 129–32, 134, 135–8 Native American Student Association (NASA) 100, 101–3, 105–6 school friends 51–4 school students 55 Student Affairs Committee meeting 110–24 “The Terrible Tribe” 97–8, 100, 101–3, 104, 105–7, 110–24 US Supreme Court case 176–87 Roberts, Parker 11–13, 16, 20–1, 31, 32, 34, 35, 41 birth and childhood 150, 152–3 car accident 77–80, 82–5, 87–8, 89–92 as history teacher 42–50

S Sawbawgezewog: Tales of the Onemuk 129–32 school board expulsion case 63–76 meetings 11, 12, 24, 25–9, 46–9, 63–76 student representative 54 and tribal council 55, 153 self-governance 5 Shelbyville Rockets football team 21, 22 Smallings, Radica 125–6, 132–8 sport basketball 52–3, 61, 85, 149, 167–8 see also football teams state property taxes 38 Stone, James 110–24 storytelling 5–6 Student Affairs Committee meeting 110–24 Supreme Court case 176–87

T Tee-Hit-Ton Indians v. United States 6 “The Terrible Tribe” 96–9, 101–7, 108–10, 110–24 Thompson, Dave 11, 25, 47, 48, 49 expulsion case 63–76 Thompson, Sandi 25, 28–9 treaties 2, 3, 4, 8 see also reservations tribal council Emma Roberts’ roles 12, 13, 16, 17–20, 21, 55–6

Index football team issue 17–20, 22, 24 non-Indian vs Indian student admissions issue 161, 162–3, 165, 166, 167–8, 169–70, 172, 173, 175 and school board 55, 153 trust funds 31

•

223

literature class 132–8 Michigan State University 11 racism 85–7, 99–100 see also Ann Arbor University US Supreme Court case 176–87

W U The Unifying Native 128–9, 132–3 university Harvard University 147, 148

Warriors football team 22–9 Wilson, Ben 51, 52 disciplinary issue 53, 54, 56–7, 59–60, 61, 62, 63 expulsion case 63–76

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