The Cultivation of Resentment: Treaty Rights and the New Right 9780804779654

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The Cultivation of Resentment

The Cultivation of Resentment Treaty Rights and the New Right

jeffrey r. dudas

Stanford University Press Stanford, California

Stanford University Press Stanford, California © 2008 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archivalquality paper Library of Congress Cataloging-in-Publication Data Dudas, Jeffrey R.    The cultivation of resentment : treaty rights and the new right / Jeffrey R. Dudas.      p.  cm.    Includes bibliographical references and index.    ISBN 978-0-8047-5809-3 (cloth : alk. paper)    1.  Indians of North America—Legal status, laws, etc.    2.  Indians of North America—Treaties.   3.  Conservatism— United States.   4.  Gambling on Indian reservations—Political aspects—United States.   I.  Title. KF8205.D83 2008 342.7308'720261—dc22 2007042736

Typeset by Thompson Type in 10.5/12 Bembo

For Mary, Connor, and Andrew

Contents

List of Tables      ix Preface      xi 1. Rights, Resentment, and Social Change      1 2. Mobilizing Nationhood: The Treaty-Rights Movement and the Roots of Resentment      17 3. The Countersubversive Persuasion: Special-Rights Talk and the Anti-Treaty-Rights Movement      39 4. “This Is Not Equal Rights”: U.S. v. Washington and the Origins of the Anti-Treaty-Rights Movement      60 5. We Don’t Believe in the Promised Land: Exploring the Anti-TribalCasino Movement      95 6. The Cultivation of Resentment: Rights in the Theater of Culture War      137 Notes      157 References      175 Index      193

List of Tables

3.1 Activists’ Arguments Against Treaty Rights, Frame Dominance      50 3.2 Activists’ Arguments Against Treaty Rights, Subframe Mentions      53 3.3 Index Mentions for Individual Merit Subframe      53 3.4 Index Mentions for Community Harmony Subframe      55 3.5 Index Mentions for Equal Opportunity Subframe      57 4.1 Washington State Commercial Salmon Catch by Fish, 1951–1991      91

Preface

Rights discourse is a central, though often neglected, feature of American conservative politics. Activist and rank-and-file conservatives, for example, engage in frequent, sophisticated, and sincere mobilizations of law and rights. The Cultivation of Resentment argues that these mobilizations are central both to the identity and to the appeal of conservative politics. Moreover, the prominence of conservative legal mobilizations suggests that American rights discourse is more ubiquitous and flexible than is typically assumed. American rights discourse, accordingly, should be viewed as a potent resource both for those who seek, and for those who oppose, egalitarian social reform. The analysis presented in this book proceeds from the understanding that the conservative adoption of the New Right political vision is a defining feature of modern American society. This political vision is marked by a dual resentment—of the political participation of historically disadvantaged citizens, on one hand, and of witless, naïve, and corrupt governmental officials and cultural elites, on the other hand. Accordingly, it portrays an America under siege from irresponsible and corrosive politics. This nationalistic resentment is often noted by scholars of American conservatism as a crucial element of the New Right’s popular appeal. However, few scholars appreciate the increasingly specific form that this resentment takes. Conservatives argue that the abuse of law, and particularly of rights, is central to national decline. Conservatives maintain that formerly excluded groups misuse rights to persuade public officials to elevate minority interests over the interests of all other citizens. Accordingly, the resentment that infuses New Right activism is frequently cast in a rights-based idiom that excoriates formerly excluded groups for claiming “special” rights that violate the “equal” rights of all other Americans. Conservative activists at once champion as patriotic rights claims

xii   Preface that maintain traditional hierarchies and stigmatize as un-American rights claims that aim to unsettle those hierarchies. Such “special-rights talk” is not simply a clever rhetorical tool. It also does important cultural and political work for those resentful Americans who employ it. In this book I explore the effects of special-rights talk on the activists who make up the contemporary anti-treaty-rights movement, a loose coalition of grassroots organizations that oppose the treaty rights of Indian tribes. Resentful over how “special” treaty rights give Indians unfair advantages not available to others, anti-treaty-rights activists emphasize that treaty rights conflict with the nation’s commitment to protecting the equal rights of all citizens. Convinced by their specialrights talk that they are heroic defenders of an endangered American way of life, anti-treaty-rights activists construct for themselves a virtuous, and exceedingly consequential, identity as “countersubversives” who protect the body politic from the irresponsible activism of Indians. The ambivalent view of rights and nation expressed by members of the anti-treaty-rights movement—for whom “equal” rights are thought to exalt America and “special” rights to undermine it—is at the center of the New Right political vision. As such, it lies also at the heart of the popular appeal of modern conservative politics. By linking rights to the nationalistic resentment that saturates American politics and culture, this study adds new insight to the prevailing scholarship on law and politics, which typically presumes that rights discourse is a resource only for groups that seek redistributive social change. I began this book in the department of Political Science at the University of Washington. Indeed, this book is deeply indebted to, and entrenched within, the intellectual currents established by two distinguished members of the UW community: Michael W. McCann and Stuart A. Scheingold. Moreover, both Michael and Stuart have provided me with a great deal of personal and professional help over the span of many years. Michael, in particular, has offered consistent engagement, encouragement, and advice for which I am deeply grateful. I have accumulated many other significant debts. Also at the University of Washington, I benefited greatly from the help of David J. Olson and Christine DiStefano, each of whom offered incisive and critical insight on early drafts of this book. The members of the interdisciplinary center for Comparative Law and Society Studies (CLASS)—especially George Lovell, Steve Herbert, Katherine Beckett, and Claire Rasmussen—were constantly supportive and intellectually stimulating colleagues. I am particularly grateful to George and Claire, who have each read and commented

Preface   xiii

on multiple earlier versions of the argument presented here. Finally, I acknowledge the friendship and intellectual camaraderie of Robert Farley (of the University of Kentucky); Scott Lemieux (of Hunter College); and Wendy Gunther-Canada, Michael Howell-Moroney, and Angela Lewis (all of the University of Alabama-Birmingham). I have been fortunate to find an intellectual home in the Law and Society Association. It is through the LSA that I have come into contact with many of the scholars whose own research, and whose direct engagement with mine, have indelibly shaped this book. I here acknowledge the help, support, and general cheerfulness of Charles Epp, John Brigham, Bill Haltom, Neal Milner, Jonathon Goldberg-Hiller, Reneé Cramer, Laura Hatcher, Leonard Feldman, Bronwen Morgan, Bert Kritzer, Helena Silverstein, Susan Burgess, Tom Burke, Lief Carter, Scott Barclay, Paul Passavant, Austin Sarat, Patricia Ewick, and John Gilliom (who merits a second acknowledgment for pointing me in the right direction during my time at Ohio University). I am grateful also to my colleagues in the department of Political Sci­ ence at the University of Connecticut. In particular, I acknowledge Howard Reiter (both for doing a splendid job as department head and for his primer on Connecticut politics), Ernie Zirakzadeh (who offered extensive and thought­ful comments on Chapter 1), and David Yalof and Mark Boyer (whose office doors are always open for advice and conversation). Virginia Hettinger, Michael Morrell, Shareen Hertel, and Kristin Kelly have been especially supportive, and I thank them. I am also grateful to Kerri Murphy for providing able research assistance. It is, though, Jennifer Fontanella and Justine Hill who receive my deepest gratitude. Their oversight and attention to detail are greatly appreciated. I am grateful for permission to include, in altered form, some material that has been previously published. Portions of Chapter 6 appear in “Rights and Regulation in Bush’s America; Or, How the New Right Learned to Stop Worrying and Love Equal Rights,” in The Intersection of Rights and Regulation, ed. Bronwen Morgan, Aldershot, United Kingdom: Ashgate, 2007, pp. 153–166. Earlier versions of some of the material presented in Chapters 1 and 4 appear in “In the Name of Equal Rights: ‘Special’ Rights and the Politics of Resentment in Post–Civil Rights America,” 39 Law & Society Review 4, 723–757. I am grateful to Ashgate and Blackwell Publishing for permission to include this material here. At Stanford University Press, Amanda Moran showed early enthusiasm for this book and then skillfully shepherded it to publication, quickly securing outside reviews and, later, a contract. Sarah Ives cheerfully responded to questions and requests, and generally helped me to meet looming

xiv   Preface deadlines. Margaret Pinette of Heckman & Pinette ensured that the book’s production went smoothly. Two anonymous reviewers provided exacting and sympathetic suggestions that made this book much stronger. I am grateful to Amanda, Sarah, Margaret, and the reviewers for their help. My greatest debts are to my family. The Dudas and Mustappa families have been constant sources of encouragement; I gratefully acknowledge their love and support. Mary Dudas read the entire book in manuscript form and then patiently and clearly instructed me both on what I was and was not arguing. She also provided me with the book’s title, which saved me from the pompous title that I had planned and thus, also, from untold future embarrassment. Mary’s fingerprints are all over this book, and I am very happy to acknowledge their presence here. Mary is, moreover, a wonderful companion and a loving mother to our two angels, Connor and Andrew. I dedicate this book to the three of them, “mujussies” all.

The Cultivation of Resentment

chapter 

Rights, Resentment, and Social Change

1

I. Introduction During the 2000 presidential debates George W. Bush explained: “I support equal rights, but not special rights for people. [Nobody] should be given special protective status. Everyone ought to have the same rights” (New York Times 2000: A22). Although it was not surprising that Bush would borrow a formulation made popular by the conservative intellectuals who make up the New Right political movement, it was surprising that Bush’s opponent, Democratic nominee Albert Gore, did not challenge Bush’s framing of the issue. Gore did disagree with Bush that a pending congressional bill that would prohibit job discrimination against gays and lesbians was in fact a grant of special rights. However, his silences regarding Bush’s formulation of the equal-rights/special-rights distinction suggest that Gore accepted the premise that there exists a class of rights that are special and that, as such, they are illegitimate. Such considerations at least suggest that Gore was unwilling to directly challenge Bush’s public condemnation of special rights. It was an unwillingness that he shared with President William J. Clinton, who was similarly silent about the issue in his 1996 debates with Republican Party candidate Robert Dole (New York Times 1996: B10). Their silences are as revealing as the original formulations. Although the most virulent condemnations of special rights come from the political Right, the normative vision that propels those condemnations crosses partisan boundaries. The assumption that there exists a class of illegitimate rights claims, special rights, has become a matter of common sense. Entrenched also is a corresponding, underlying resentment of these rights. The special-rights talk employed by Mr. Bush expresses resentment over how those rights that are presumed to be special threaten the things that equal rights supposedly guarantee: that individual success should be

   Rights, Resentment, and Social Change based upon one’s merits, that communities should be places of relative calm and harmony, and that American governments should treat all people exactly the same. Indeed, special-rights talk is used by many resentful Americans to oppose gay rights, disability rights, affirmative action, and, as I pursue here in-depth, Indian treaty rights. Although opponents of these rights can point to few lasting legal and political victories, their assertion that such rights are special has become a matter of common sense. What is the significance of the entrenchment of this distinction between equal rights and special rights in the American lexicon? And how does this rhetorical success emerge from, and contribute to, the broader success of New Right politics? What cultural and political work, that is, does special-rights talk accomplish? In this book I analyze special-rights talk both as it constitutes a specific set of disputes and as it reverberates generally. I undertake an in-depth exploration of opposition to Indian treaty rights that illustrates the general impacts of special-rights discourse on American politics. I argue that this discourse has three primary impacts. Each of these impacts, moreover, casts attention on the cultural power of rights talk. Analy­sis of specialrights talk, accordingly, depends upon understanding how that discourse works conceptually, as both an explanatory resource with which those who employ it make sense of their interests and as a normative resource with which they make sense of the legitimacy of the world in which they live. Consider, for example, the activists who make up the anti-treaty-rights movement. These activists have mobilized into a loose coalition of grassroots organizations that are dedicated to opposing the treaty-rights claims of the 561 Indian tribes that are currently recognized by the United States. It is unsurprising that treaty-rights claims, which often call for a redistribution of resources, have prompted resentment among people who feel threatened by the changes that tribes seek. After all, the rights mobilizations of other, better-studied social movements, which also sought redistributive social change, met similar fates.1 As with these other rights claims, resentment over, and countermobilization to, treaty-rights claims is motivated by beliefs that those claims threaten self- and group interests. Yet anti-treaty-rights activists voice their resentment in a particular idiom, one that obscures and occasionally disavows their own material interests. Treaty rights, they claim, are unfair because, unlike equal rights, they are special rights whose exercise assaults, rather than complements, national values. In particular, treaty rights differ from equal rights in that they provide to their bearers advantages without regard to their efforts or their merits—the traditional markers by which individual success in

Rights, Resentment, and Social Change   

America is legitimated. Treaty rights, that is, go beyond the equal opportunities guaranteed by equal rights and instead offer “something for nothing” (Lears 2003). Indian treaty rights are, consequently, interpreted as threats to the body politic. Activists’ special-rights talk makes their opposition to treaty rights at once self-interested and patriotic, such that their resentment is expressed according to nationalistic prerogatives. Shading interest-based conflicts in nationalistic tones, the special-rights talk employed by anti-treaty-rights activists generates three primary impacts. First, it inflates the resentment that activists feel toward treaty rights. Perceiving their efforts as defenses not only of their own interests but also of the equal rights of all Americans, activists envision themselves as “counter-subversives,” as defenders of an American way of life under siege from Indian treaty rights (Rogin 1987). These countersubversive inclinations amplify the activists’ resentment, transforming that resentment from its original basis in self-interest to a basis in national values. By portraying anti-treaty-rights activism as an act of selfless devotion to country, specialrights talk infuses that activism with the zealotry of a moral crusade; it thus motivates activists to redouble their opposition to treaty rights. Second, their special-rights talk makes the activists’ arguments about the threats of treaty rights intelligible to a wide audience.2 Their discourse expands the “scope of conflict” to include new actors, a substantial number of whom accept the depiction of treaty rights as un-American, and who consequently support the activists’ efforts (Schattschneider 1960). Their special-rights talk thus simultaneously motivates the anti-treatyrights movement and broadcasts the movement’s concerns to otherwise dis­interested populations. Yet the hortatory qualities of special-rights talk are a mixed blessing for anti-treaty-rights activists. As Schattschneider (1960) argued, the successful expansion of a conflict to new institutional and cultural settings often leads the original parties to lose control of the terms by which conflict proceeds. Such a dynamic is particularly apparent when anti-treaty-rights activists garner the support of public officials. This support has been, at best, of uncertain worth and, at worst, counterproductive. Indeed, the sympathetic participation of public officials inadvertently introduces a host of institutional constraints and electoral incentives that, once the dispute in question becomes formally politicized, tend to work to the disadvantage of the activists’ goals. The third impact of the activists’ special-rights talk is even more damaging to their goals. Their discourse leads activists to consistently overestimate the negative effects of treaty rights on their personal interests, attributing to those rights much greater causal influence than can be substantiated. Meanwhile, activists exonerate the impersonal, long-term economic and

   Rights, Resentment, and Social Change political processes (such as the rise of a service-based economy and the continuing problem of unresponsive government) that are more damaging to their interests. Opposition to treaty rights thereby stifles potential challenges to the actual causes of activists’ resentment. Neither special-rights talk nor its impacts are confined to the antitreaty-rights movement. The ambiguous embrace of rights that propels the anti-treaty-rights movement is a hallmark of New Right political critique and, so, also an underappreciated element of the “culture wars” that define contemporary American politics (Hunter 1991; Haltom & McCann 2004). Prominent conservative intellectuals and politicians fre­quently decry the rights claims of socially marginal Americans, labeling them as perversions of the true meaning of civil rights and, accordingly, as unfair, needlessly contentious, and un-American. For example, conservative attacks on the gay-rights movement, the disability-rights movement, and affirmative-action policies all follow this script.3 The New Right’s halting embrace of rights works in the same fashion as does the special-rights talk employed by anti-treaty-rights activists: It converts interest-based disputes into value-based disputes and thereby heightens conflict; it appeals to diverse audiences; and it places and displaces blame for hard times in ways that insulate harmful economic and political trends from critical scrutiny. Conservative-rights talk cultivates, in particular, the resentment of many middle-class and working-poor Americans. These “forgotten Americans” resent the denigration of their own rights by entrenched policy elites, on one hand, and by the traditionally disadvantaged Americans whose deviant rights claims make them the unfair beneficiaries of governmental programs, on the other hand (Goldwater 1970). The championing of this resentful population has propelled the New Right governing coalition to electoral success (Kazin 1995; McGirr 2001; Keck 2004; Mason 2004). Indeed, the success of conservative-rights talk suggests that rights discourse is a potent resource for opponents of all sorts of redistributive social changes, not only those associated with treaty-rights claims. Accordingly, although the empirical analysis of special-rights talk that I present here most clearly applies to the anti-treaty-rights movement, I will argue that the impacts of that talk have broad resonance. Indeed, the special-rights talk employed by the anti-treaty-rights movement emerges from, and contributes to, the New Right’s political vision. Anti-treatyrights activists lament that “ordinary,” forgotten Americans have become the new victims of a nation that panders to the interests of former victims, thereby sacrificing the equal rights of deserving citizens. Portraying themselves as so victimized, activists’ special-rights talk meshes seamlessly with the narrative of decline and grievance that animates New Right critique.

Rights, Resentment, and Social Change   

Thus, in this book I explore mobilizations of law and rights that aim to block redistributive social change. Such mobilizations are accessible through the existing scholarship on legal mobilization. Some creative extension is required, however. Although the scholarship provides important conceptual resources for such an investigation, it deals predominately with the use of law by marginalized groups that seek social change. It is mostly silent on the types of social movements under investigation here: those that use law and rights to pursue reactionary politics.

II. Mobilizing Law and Rights Legal-mobilization scholarship has in recent years assumed an important place in the field of law and politics. Drawing inspiration from Stuart Scheingold’s seminal (1974) work, The Politics of Rights, scholars have detailed how law simultaneously constrains and enables the opportunities and imaginations of those who use it (see also Zemans 1983 and Scheingold 2004). Indeed, scholars interested in how law might facilitate social change have examined how the use of legal rules, vocabularies, and symbols shape the politics of race, gender, “everyday” citizen interactions with authority, and, especially, social movements.4 In general, these studies have emphasized that the effects of law use for marginalized populations are at best ambiguous. On a positive note, law use, particularly when tied to a “politics of rights” strategy, can activate an individual’s political vision (or consciousness). One recognizes that his or her situation is not a natural product of one’s abilities but is instead the product of conditions that are, in principle, changeable. Recognition of the contingent, and thereby political, quality of one’s situation facilitates critique, resistance, and (possibly) transformation. Rights claims both help to initiate this nascent political consciousness and provide the instrumental mechanisms by which change is pursued. In addition to encouraging relatively powerless populations to understand their grievances as political, as actionable, “rights talk” (and law in general) has strategic currency. This is because most Americans share the values traditionally associated with rights: equality, fairness, due process, and the like. Formulating one’s claims according to these values increases the chances that the claims will be intelligible to a wider audience. In this sense-making role, rights talk can sometimes generate the support of other­ wise indifferent populations for the goals of the marginalized (Scheingold 1974; McCann 1994).5 Rights talk thus displays the qualities of what Murray Edelman called “hortatory” political language. Because its content is at once highly salient and “notoriously unstable and ambiguous”—that is to say, all sorts of

   Rights, Resentment, and Social Change interests can be convincingly depicted as a function of one’s rights—rights talk can be used to “persuade a mass public . . . that the policies that [the speaker] espouses should be accepted generally” (Edelman 1964: 134). Simultaneously “appealing to everyone’s sense of fairness” and functioning as a “medium of self-expression, a rite which helps the individual to reflect in action [her] own [identity],” rights talk exhorts audiences to action even as it affirms and constitutes the moral worth of the speaker herself (Edelman 1964: 137; see also Passavant 2002). Rights talk thus offers strategic and psychic resources to listener and speaker alike. Legal-mobilization scholars therefore tend to stress the less obvious, indirect ways in which law (and especially rights) contributes to, and occasionally expands, our interpretations of possible and desirable social configurations (Scheingold 1974 & 1989; Galanter 1983; McCann 1994 & 1999). Given this “cultural power” of law (that it helps us to “imagine the real” and to make that reality understandable to a wider audience—Geertz [1983]), it follows that law is comprised of a set of values and ideals that can be occasionally harnessed by the less powerful in order to conceptualize, and to act out, a more fair, more equal, and more inclusive society. In this way, law, and specifically rights talk, can be an important resource for social movements that pursue redistributive social change. However, legal-mobilization scholars have also emphasized that law use can be a problematic strategy for those same movements. Although legal claims may offer and suggest remedies for individual cases of discrimination, they typically “leave larger patterns of exclusion firmly in place” (Fish 1996: 734; see also Crenshaw, Gotanda, Peller, & Thomas 1995: x). Successful legal claims sometimes convince people that illegal discrimination has been remedied and therefore there is little need to confront and challenge stratified social orders (Karst 1989). Indeed, because legal values and procedures (such as equal treatment, due process, etc.) are tied to individuals and not to groups, law often insulates systemic inequality from attack (Balbus 1977; Lawrence 1987; McCann 1989; MacKinnon 1989). Although law encourages individual claimants to see themselves as victims of injustice, the tendency of modern legal practices to presume that existing systemic inequalities are natural may narrow the opportunities and the imaginations of would-be reformers. Modern law is thus comprised of a variety of cultural values that anchor, and discourage attempts to fundamentally transform, the status quo. In this way, modern legal practices are hegemonic (Williams 1977: 108–14; Comaroff & Comaroff 1991: 19–32; McCann 1994: 304–10). As Galanter emphasized in a somewhat different context, liberal legal orders usually, though not always, provide for the “haves to come out ahead” (Galanter 1974). Many scholars therefore have concluded that law use is an ambiguous engine of hegemony.6

Rights, Resentment, and Social Change   

Still, most legal-mobilization scholars have recognized the liberating promises and potentials of legal strategies, given that they are often the only plausible means for questioning the legitimacy of the status quo (Haltom & McCann 2004). Because they have a sense-making, or cultural, power, rights mobilizations, for example, can contribute in important (if indirect) ways to facilitating challenges to entrenched privilege (Crenshaw 1988; Williams 1991; McCann 1994). Accordingly, while recognizing the often disabling consequences of legal practices for those who engage in them, scholars tend to look favorably upon E. P. Thompson’s famous conclusion that the modern legal order is a fairer and more open system of governance than cynics acknowledge (Thompson 1975: 267; see also Hunt 1993). It is, though, not clear that the legal-mobilization scholarship adequately captures the dynamics of those social movements, such as the anti-treatyrights movement, that oppose redistributive social change. Although the account of treaty-rights politics provided here generally confirms the utility of rights claims for redistributive causes,7 tribal successes have also exacted significant costs. The most substantial involve the mobilization of resentful and zealous opposition groups. Persuaded by their own rights discourse that treaty rights are unfair and un-American, anti-treaty-rights activists have sought to block the social changes that treaty-rights claims aim to accomplish. Yet the existing legal-mobilization scholarship is mostly silent about these sorts of rights mobilizations and the resentment that inspires them. With notable exceptions, scholars have been more interested in how rights claims potentially empower egalitarian politics (Herman 1997: 111–12; Goldberg-Hiller 2002: 34). They fail, for the most part, to interrogate conservative forms of rights talk (exceptions are Goldberg-Hiller & Milner 2003; Haltom & McCann 2004; and Dudas 2005). But a great deal of legal activism is in the service of conservative social movements (Hatcher 2005; Teles 2007). These movements are frequently inspired by resentment over the rights claims of socially marginal Americans. It is a resentment that, when expressed in a counterlanguage of rights, turns activists into countersubversives.

III. Resentment, Special Rights, and Countersubversion Conservative legal mobilizations are, in large part, reactions to the political activism of women, African Americans, the physically and mentally disabled, Indians, and gays and lesbians over the past fifty years. That activism was characterized by a willingness to mobilize rights as resources for social change. Initiating a “rights revolution,” the legal mobilizations

   Rights, Resentment, and Social Change of marginalized groups helped to make American society more fair and more just (Epp 1998). However, the changes in American society prompted by these rights mobilizations were, and are, accompanied by hostility. Threatened by the activism of the socially marginal, many resentful Americans responded with an activism of their own. Scholars agree that this resentment was motivated by self-interested concerns. Yet scholars also note that these concerns were often cast as matters of principle, with many relatively fortunate Americans explaining how their privilege was earned with hard work and merit, making it unfair to force them to bear the weight of society’s duty to remedy injustice (Wills 1970; Fish 1994).8 Scholars argue, moreover, that the politics of resentment works in a general, even predictable fashion: resentful Americans consistently mis­ diagnose the sources of their anxieties, placing and displacing blame in unconvincing ways (Edelman 1988: 66–89). Indeed, the culprits identified by the resentful are rarely those most responsible. The misattribution of blame at once inflates the alleged threats presented by the innocent and exonerates those parties and processes that are responsible. Such displacement “makes it unnecessary to undertake any analysis that would probe the part played by social and economic conditions and institutions in un­ equally allocating life chances, successes, and failures” (Edelman 1988: 78). This tendency is exaggerated in contemporary times, when large, impersonal forces such as corporations, bureaucracies, and global economic processes exert definitive influence. Resentment personalizes grievances, replacing structural explanations with individualist ones. Resentful politics is thus frequently a futile response to the uncertainty that pervades American life. To the extent that they accomplish the same evasion, conservative-rights discourses (such as special-rights talk) are expressions of resentment. This general feature notwithstanding, the resentment that animates contemporary American politics is historically specific. It emerges from a collective worldview that represents the egalitarian changes of the latter half of the twentieth century as confirmation of America’s historic commitment to the principles of nondiscrimination and equal rights. This worldview emphasizes that “post–civil rights” America has repudiated and overcome the injustices that for so long made a mockery of the nation’s egalitarian pretensions (Schacter 1997; see also Crenshaw 1988).9 It is, of course, undeniable that in contemporary times the essentialist logics that formerly underwrote hierarchy have lost much of their footing (Gerstle 2001). Open celebrations of heterosexual white-male supremacy have been for the most part replaced in American political discourse with understandings that race, gender, and sexual orientation are illegitimate grounds

Rights, Resentment, and Social Change   

upon which to grant or deny benefits. Although it is not warranted to conclude from these changes that material outcomes are now entirely the consequence of one’s merit and are therefore legitimate, many Americans reach exactly that conclusion. Accordingly, even as it champions the principles of nondiscrimination and equal rights, the post–civil rights worldview expresses the “generalized resentment” (Connolly 1991) that pervades American politics. For the principle of nondiscrimination admits of the conviction that any consciousness of race, gender, and/or sexual orientation in the drafting and administration of public policy is not only inappropriate, but also inconsistent with the legitimate interests of others (of white men especially) (Lawrence 1987; Crenshaw 1988; Fish 1994).10 And, as I argue here, the rights claims of socially marginal Americans are frequently interpreted as excessive and unfair. In each of these scenarios the post–civil rights worldview asserts a new process of victimization. No longer powerless, the traditionally disadvantaged are now seeking, and being granted, benefits and advantages beyond those that their achievements merit; their successes are thus interpreted as assaults against the interests of those Americans who lack membership in a historically disadvantaged group (Williams 1991; Goldberg-Hiller & Milner 2003).11 Accordingly, contemporary resentment is intimately linked to a worldview that at once celebrates certain rights claims and assails others, insisting that the former (equal rights) are legitimate claims for nondiscrimination whereas the latter (special rights) are illegitimate claims for “reverse” discrimination. Goldberg-Hiller and Milner’s important (2003) account emphasizes just this aspect of special-rights talk. As they note, the accusation of special rights relies upon an implicit and idealized version of equal rights. The claim of special rights, they argue, expresses a binary logic that opposes legitimate and virtuous equal rights to illegitimate and corrosive special rights. Thus accomplishing an inversion “in which the rights claimants become transgressors and everyone else victims of [their claims],” the accusation of special rights portrays claimants as “morally dangerous, irrational, or profligate people whose very rights claims become indicators of their general unseemliness” (Goldberg-Hiller & Milner 2003: 1078–79; see also Schacter 1994: 302–6; and Herman 1997). Accordingly, as Goldberg-Hiller and Milner suggest, the allegation of special rights works as a defense against the rights claims of those who challenge particular relations of privilege. The rhetorical transformation of a right into a “special right,” they note, is simultaneously a degradation of the rights claim and the claimant and, implicitly, a defense of the cultural and material arrangements that are under attack from that rights claim in the first place. Special-rights talk therefore fortifies particular

10   Rights, Resentment, and Social Change institutional configurations without engaging in explicit justification of those configurations. Goldberg-Hiller and Milner’s theorization of special-rights talk is illuminating. My interest, though, is somewhat different. In emphasizing how special-rights discourse is mobilized in order to naturalize particular arrangements of power, they focus, as do I, on the instrumental effects of special-rights talk (how it expands the scope of conflict by appealing to otherwise disinterested audiences). However, they do not share my interest in how special-rights talk constructs the identities of those who employ it. I explore not only how special-rights talk mobilizes resentment, but also how it propels and transforms resentment, casting it in a distinctively nationalistic form that ultimately encourages activists to envision themselves as countersubversives. Indeed, the cultural work done by conservative-rights talk—the transformation of a resentment based upon competing interests into one based upon competing national values and visions of America—fosters in its users a “counter-subversive mentality.” As developed by Michael Rogin (1987), the countersubversive mentality leads its adherents to conflate personal and national threats. The conflation is doubly consequential. First, condemnation of subversive enemies and their behaviors consolidates the identities of American countersubversives. Second, obsession with morally corrupt enemies authorizes countersubversives to emulate the very behaviors that they condemn, for this is the only way in which subversive threats can be contained (Rogin 1987: xiii–xvii). It is unsurprising that outrage over the inappropriate rights claims of marginalized Americans motivates counterclaims of rights. The countersubversive mentality is thus a product of the interaction of resentment and conservative rights discourse. Indeed, the New Right political vision excoriates crafty minorities and the guileless liberal elites whom they regularly dupe for making abusive rights claims. These rights claims harm both personal and national interests, at once attacking the life chances of hard-working citizens and the values that animate American democracy (Haltom & McCann 2004; McCann & Dudas 2006). Turning its speakers into countersubversives, conservative-rights discourse orients conflicts between American citizens in a distinctive manner: it displaces conflicts of interest into the realm of national identity. That discourse, moreover, does concrete political work. First, it cultivates the resentment of those who employ it, motivating them to entrench themselves against the un-American activism of socially marginal people. Second, because it offers defenses of supposedly endangered American values, conservative-rights talk is persuasive to otherwise indifferent au-

Rights, Resentment, and Social Change   11

diences. Third, conservative-rights talk, however, ultimately directs the resentment of its speakers away from the structural factors that harm their material interests and toward the relatively unharmful activism of socially marginal Americans. Accomplishing both cultural and political work, conservative-rights discourses (such as the special-rights talk employed by anti-treaty-rights activists) animate both New Right politics and the American culture wars themselves.

IV. Methodological Principles researching the cultural power of law To understand the political impacts of conservative-rights discourse it is critical to first understand its cultural power. The legal-mobilization scholarship is particularly useful in this regard. This scholarship argues that the institutional power of law—the capacity of legal actors and legal institutions to coerce behavior—should be placed within its specifically cultural contexts. Recall that law’s effects on how people live are less often direct and more often indirect. We are likely to detect law’s primary influence in society by tending to how legal values, symbols, and discursive conventions help shape people’s perceptions of their experiences and their selves; law influences which kinds of relations people interpret as natural (unchangeable) and which kinds of relations they interpret as political (contestable). The cultural dimensions of law therefore draw our attention both to outwardly legalistic actions and to the normative bases (the justifications) according to which people conceive of the possibility of action in the first place (Brigham 1988, 1996; Sarat & Felsteiner 1995; Ewick & Silbey 1998). The utility that marginalized populations sometimes obtain from using legal discourse, for example, comes less from the invocation of the institutional apparatuses of the state and more from the long-standing cultural values that legal discourse expresses. The more that the claims for inclusion made by less-powerful people resonate with more-powerful people, the greater the likelihood that those claims will be successful (McCann 1994). At the very least, this cultural power of law suggests that the making of a legal claim, even if it does not generate popular support, might mollify the anxieties of those who fear the social change that excluded groups pursue and might, therefore, discourage resistance to redistributive politics (Scheingold 1974, 1989; Sokol 2006: 152–58). Central to these scholarly insights is a focus on how various populations interpret legal claims.12 Because legal ideals and symbols fire people’s imaginations, such that particular kinds of actions seem possible and

12   Rights, Resentment, and Social Change others impossible, it is important for scholars to understand how it is that law is understood, or perceived. As it is the most useful method for studying perceptions of law, my approach is interpretive. Interpretive social science orients the analyst’s attention both epis­temo­ logically and methodologically. Epistemologically, a focus on interpretation —on how shared values and practices provide us with the cognitive resources for making sense of ourselves and others—presumes the centrality of language to human action. It is through language that we make the world meaningful; and it is these meanings that inspire our behavior. Language, accordingly, does not describe an already existing reality so much as it mediates what we understand as reality (Burger & Luckmann 1966). Methodologically, an interpretive account of the influence of law and rights thus values data sources, and methods of analysis, that “probe the meaning-making activity of subjects and situate their efforts in . . . general, analytical, historically grounded terms” (McCann & Dudas 2006: 40). My empirical analysis—which details both the centrality and the consequences of special-rights talk for the anti-treaty-rights movement—relies on archival data, personal papers, position papers, speeches, committee testimony, letters to the editor, mission statements, and other verbal formulations as primary-source material. I analyze this data systematically, presenting both a content analysis (in Chapter 3) that highlights the common themes and discourses that preoccupy movement activists, and two bounded case studies (in Chapters 4 and 5) that connect activists’ resentment of treaty rights with the concrete forms of organizational activity that make up the anti-treaty-rights movement. My interest, accordingly, is in the cultural and political work done by the special-rights talk employed by antitreaty-rights activists. I am concerned with how their rights discourse shapes both the political visions of activists and the trajectory of the antitreaty-rights movement itself. At the same time, my analysis contextualizes this movement, embedding it in the New Right politics from which it draws and to which it contributes. Such methodological pluralism is a hallmark of the legal-mobilization scholarship (McCann 1994, 1996; Silverstein 1996). The commitment to diverse data sources and analytically focused modes of interpretation relies upon a foundation informed by social-constructivist principles. This foundation acknowledges that all claims to knowledge are partial and incomplete. To compensate, the methodological pluralist employs a variety of data and modes of analysis in order to present the most rigorous possible in­ter­pretations of social phenomena (Taylor 1987; McCann 1994: 14–18; Yin 1994: 13). The chapters that follow present data that is accu­mu­lated from a variety of sources. The resulting analysis uncovers the con­tent, the

Rights, Resentment, and Social Change   13

meaning, and the consequences of the special-rights discourse that pervades the anti–treaty rights movement. I turn now to an overview of the book’s chapters.

V. Overview The trajectory of Chapter 2 is historical; it details the roots of the tribal activism that offends, and motivates, the anti-treaty-rights movement. I argue that the mobilization of treaty rights, and the tribal sovereignty that they express, animates contemporary tribal activism. The chapter begins with a brief exploration of the ambiguous legal status of tribal governments in the United States. “Quasi-sovereign” nations, tribes are at once independent of most state and local regulations and entirely dependent upon the will of Congress. As the concrete expression of this quasi-sovereign status, treaty rights reflect the ambiguity of tribal nationhood. Yet because they are claims for autonomy from the oversight of state and local governments, treaty rights occasionally have been a useful resource for tribal claims of authority over land and other natural resources. The mobilization of treaty rights is, accordingly, the invocation of a peculiar but potentially empowering form of nationhood. Indeed, the most successful treaty-rights mobilizations have had meaningful impacts on the distribution of resources in many localities in the United States. For a variety of reasons, these mobilizations began to find a receptive audience among many national officials following World War II. These officials increasingly understood treaty-rights claims as legitimate and deserving of support. Although this chapter relies heavily upon secondary research, it provides context that is important for understanding the dynamics of contemporary opposition to treaty rights. Chapter 2 describes how legal mobilizations can sometimes be useful for generating redistributive social change; Chapters 3, 4, and 5 severely complicate matters. These chapters illustrate how the contemporary treatyrights claims of tribal nations are frequently opposed by wider populations. Rather than ameliorating the anxieties that are typically associated with social change, the rights claims of tribal governments inflame those anxieties. Anti-treaty-rights activists, in fact, interpret treaty rights as special rights that denigrate both their own equal rights and the core American values of individual merit, community harmony, and equal opportunity. Consequently, contemporary debates over treaty rights are contests over which sorts of legal meanings should be accepted. In this contest, both supporters and opponents can persuasively argue that they have “rights” on their side. Whereas Chapter 2 illustrates how the legal mobilizations of

14   Rights, Resentment, and Social Change tribal governments can foster redistributive social change, Chapters 3, 4, and 5 focus upon how these same legal mobilizations trigger resentment over tribal influence in American society. Thus, successful tribal legal mobilizations typically also generate resentment within, and countermobilization by, the populations most immediately affected by them. These populations have typically formed local organizations whose activities are coordinated by a variety of national umbrella groups. Chapter 3 details the activities and, especially, the aims of these organizations and groups. The empirical centerpiece of Chapter 3 is a content analysis of the documents that some of the more well known of the national anti-treatyrights groups have produced in order to present their concerns to public audiences and policy makers. I find that opponents are typically motivated to oppose treaty rights by self-interested concerns that those rights threaten their interests. However, I also find that these opposition groups consistently employ their own rights talk. And their rights talk transforms defenses of self-interest into defenses of the core American values of individual merit, community harmony, and equal treatment. It transforms them into defenses, that is, of an American way of life that is allegedly under assault from Indian treaty rights. Chapters 4 and 5 explore specific conflicts over treaty rights. Chapter 4 details the Puget Sound “fish wars” of the 1970s and 1980s. More than simply a regional conflict, the fish wars spawned the contemporary antitreaty-rights movement itself. Chapter 4 chronicles how federal Judge George Boldt’s landmark U.S. v. Washington (1974) District Court opinion, which interpreted centuriesold treaties as guaranteeing to area tribes up to 50 percent of the region’s salmon and steelhead-trout catch, provided the occasion for a zealous countermobilization. This countermobilization movement, made up primarily of non-Indian commercial and sport fishers, insisted that Boldt’s opinion was an affront both to personal interests and to core American values. Opponents argued that the decision was an increasingly typical example of how the equal rights of hard-working, “ordinary” Americans were sacrificed so that a guilt-ridden nation could atone for past sins by offering special rights to its traditionally disadvantaged populations. Convinced of its moral and legal rightness, the countermobilization movement engaged in activism that delayed the implementation of U.S. v. Washington for close to a decade. The outcomes of the fish wars were, for all parties involved, decidedly ambiguous. For one, the rights mobilizations of Puget Sound tribal nations initiated a transfer of resources to a historically underprivileged population. Yet they also provided a rallying point for aggrieved Ameri-

Rights, Resentment, and Social Change   15

cans whose interpretations of treaty rights as special rights simultaneously amplified their resentment (nationalizing it) and expanded the scope of conflict to invite otherwise disinterested popular audiences and public officials into the countermobilization. The countermobilization’s successful expansion of the conflict into new institutional terrain introduced a further layer of ambiguity. As the conflict entered into electoral politics, countervailing institutional prerogatives marginalized the visions and aspirations of Boldt-decision opponents; all of which led to an eventual resolution of the conflict in terms decidedly unfriendly to opponents. Meanwhile, opponents’ unceasing hostility toward the Boldt decision led them to simultaneously inflate the threat that treaty rights presented to their economic interests and exonerate the far more damaging threats of environmental degradation and incompetent state management of the fish resource, and to reject the most promising means of defending their interests. Chapter 5 confirms the ambiguous consequences of activists’ specialrights discourse. This chapter explores conflicts over tribal gaming, the most salient and controversial aspect of contemporary tribal politics. I focus on the activities of casino opponents in Connecticut, which has emerged as the epicenter of the movements both for, and against, tribal gaming. I situate local opposition within the national context of the emergence of tribal gaming as the dominant conceptual framework for making sense of the promises, and dangers, of treaty rights. The centerpiece of Chapter 5 is a study of the failed efforts of the East­ ern Pequot Tribal Nation (EPTN) to gain federal recognition as an Indian tribe. Recognition would have brought the tribe into the same governmentto-government relationship with the United States that tribes with formal treaty rights enjoy. It would have also, and more important for those local residents who vehemently resisted the tribe’s recognition application, made the EPTN eligible to negotiate a compact with Connecticut to open a third tribal casino in the lucrative Northeast market. Alarmed that such a casino would turn Connecticut into the “Las Vegas of the East” and forever ruin the state’s rural way of life, activists and elected officials organized to defeat the tribe’s efforts. Propelling this opposition was a widely shared belief that the tangible and intangible costs of an EPTN casino would far outweigh its benefits. The calculus by which opponents reached this conclusion, however, owed less to careful and dispassionate analysis than to outrage over the alleged unfairness and illegitimacy of the special treaty rights that the EPTN sought. Special-rights talk once again generated a series of ambiguous conse­ quences. Although the opponents’ activism appears to have played an important, if indeterminate, role in the eventual defeat of the EPTN’s recognition bid, there is little reason to believe that preventing tribal casinos

16   Rights, Resentment, and Social Change will mollify the activists’ anxieties in the long run. Indeed, obsessed with their endangered way of life, opponents have ascribed their vulnerabilities to existing and (potentially) future tribal casinos. Although such an understanding of the threats posed by treaty rights has generated substantial support from Connecticut’s elected officials, it narrows the critical visions of the activists. Casino opponents fail to understand, or at least fail to ac­ knowledge, that tribal casinos are a part of the larger shift away from a manufacturing-based and toward a service-based economy, a shift that has had disastrous consequences for Connecticut’s urban and rural areas. Moreover, elected officials are exonerated from scrutiny for their decades-long unresponsiveness to the state’s deteriorating economic infrastructure. As in the countermobilization to the Boldt decision, the activists’ resentment— expressed and amplified through their special-rights talk—fixes and displaces blame. Chapter 6 concludes and expands the theoretical scope of the study. In this chapter, I contend that the special-rights talk employed by antitreaty-rights activists draws from a more general resentment of the rights claims of socially marginal Americans. Cultivated by New Right intellectuals and politicians, this resentment provides the raw material for the New Right’s political vision and, so, is an underappreciated element of the American culture wars. The impacts of this conservative-rights talk, which end up being decidedly ambiguous for the material interests of the “forgotten Americans” championed by the New Right, suggest anew the limits of using rights discourse to effect redistributive social change. Indeed, the protean nature of rights talk makes it useful both for proponents and opponents of redistributive causes. Insofar as it can be fashioned to articulate with a reactionary political agenda, rights talk is an important resource for promoting inegalitarian goals. When the cultural power of rights is considered it becomes clear that America’s contemporary experience with rights is significantly more reactionary than existing scholarship has recognized.

chapter 

Mobilizing Nationhood: The Treaty-Rights Movement and the Roots of Resentment

2

What the populace actually receives from government is to a large extent dependent upon their willingness and ability to assert and use the law on their own behalf. —Frances Kahn Zemans, “Legal Mobilization: The Neglected Role of the Law in the Political System”

I. Introduction The Indian1 activism that inspires the contemporary anti-treaty-rights movement dates to cold war America. During that era, a host of favor­ able conditions emerged, facilitating a broad-based, coordinated movement on behalf of the long-neglected interests of Indians. The mobilization of law—of treaty rights in particular—was at the center of this activism. Those mobilizations, and the conditions favorable to them, are the focus of this chapter. My primary focus throughout, of course, is on the character of the antitreaty-rights movement. For two reasons, however, it is difficult to understand that movement—its roots, its structure, its grievances—without first exploring the Indian activism that it finds offensive. First, the antitreaty-rights movement follows a fundamentally defensive, even reactionary, tra­jectory that presupposes the very activism it condemns. Making sense of the treaty-rights movement would thus appear to be a prerequisite for investigating opposition to it. Second, and more important, the more egalitarian social context that facilitated the surge in Indian activism in the 1960s and 1970s is often identified by anti-treaty-rights activists as the source of their current troubles. In so targeting this context, activists join their grievances to those voiced by opponents of, for example, affirmative action, gay rights, disability rights, and multiculturalism. They announce,

18   Mobilizing Nationhood that is, their participation in the culture wars that inflect contemporary American politics. Accordingly, without exploring the original context of activists’ grievances—treaty-rights mobilizations and the larger conditions out of which they emerged—it is difficult to situate their opposition, either as it appears specifically (to treaty-rights claims) or generally (to the supposedly corrupt culture that allows the claims in the first place). The form and content of that opposition—the character of anti-treaty-rights activism— is depicted in the following three chapters. This chapter, conversely, locates anti-treaty-rights activists by describing the specific and general con­texts against which they react. In so doing, it sketches the backdrop for contemporary tribal legal mobilizations. The recognition by national officials of treaty rights to sovereign governance has been critical to Indian activism. Equally important has been the willingness of tribal nations to mobilize these treaty rights to secure national, state, and local compliance with the provisions that they promise. This chapter illustrates some of the core insights of the legal-mobilization scholarship. Legal mobilizations, if they are to be successful tools for social change, require a favorable set of conditions internal and external to the movements. Just such a constellation of favorable conditions emerged in the United States during the 1960s and 1970s; these conditions facilitated the successful legal mobilizations that propelled the treaty-rights movement. As Chapter 3 shall make clear, however, this favorable context was momentary, quickly giving way to a more negative context even as the most notable victories of the era resonated.

II. Legal Mobilization and Treaty Rights Many marginalized groups have mobilized law (especially rights) to promote their interests. As Charles Epp argues, for example, a “rights revolution” occurred during the second half of the twentieth century in the United States (Epp 1998). This revolution, supported by a variety of public officials (including, prominently, federal judges), helped to open America’s political institutions for participation from people who had historically been denied the benefits of American citizenship. Although there is some dispute regarding just how responsible court declarations of rights have been for generating this social change (compare, for example, Rosenberg [1991] and McCann [1994]), scholars have generally concluded that the willingness of African Americans, women, the physically and mentally disabled, and gays and lesbians to engage in a “politics of rights” (Scheingold 1974) (i.e., the willingness to organize around constitutional rights) has been an important resource for redistributive politics (Milner 1986; Scheingold 1989).

Mobilizing Nationhood   19

During this same period, Indians have also regularly mobilized law (Deloria 1992; Meranto 1998). There is, however, a central difference between the legal mobilizations of tribal nations and those of other American citizens. Whereas the legal mobilizations of the civil rights movement, for example, were mobilizations of constitutional rights that applied in principle to all American citizens (rights to due process, to equal protection, etc.), the mobilizations of treaty rights by tribal nations are extraconstitutional in the sense that those rights apply only to the particular tribal nation or nations in question. If the most familiar rights mobilizations are those that are meant to facilitate entrance into the social mainstream, to overcome a forced exclusion based on difference, “the general thrust of most indigenous nations and their citizens . . . has been to retain their political and cultural exclusion from absorption or incorporation in the American polity” (Wilkins 2002: 201; see also United States Commission on Civil Rights [USCCR] 1981: 32–33). Whereas the legal mobilizations of non-Indian people have typically (though not exclusively) emphasized that they are similarly situated visà-vis other American citizens and that, therefore, they should be treated similarly, the legal mobilizations of Indian people tend to emphasize that Indians are differently situated vis-à-vis other American citizens and should therefore be treated differently. Specifically, tribal claims for the recognition of treaty rights are also claims that tribes are sovereign nations. Consequently, to recognize a treaty right is also to recognize that tribal nations appropriately conduct their affairs with other American governments according to a unique, government-to-government relationship. Indian legal mobilizations are premised upon, and reinforce, the notion that “Indian peoples are nations, not minorities” (Wilkins 2002: 41; see also Deloria & Lytle 1983).2 The importance of this distinction between Indian and non-Indian legal mobilizations should not be understated. The substance of the distinction —treaty rights are primarily artifacts of a political status (nationhood) and not of a biological trait, such as race or gender—is consistently missed or ignored by opponents of tribal activities (USCCR 1981: 10–13, 31–32). A typical strategy of opponents is to deny or degrade the nationhood of tribes. This denial makes sense, for only by such a tactic is it possible for anti-treaty-rights activists to argue that treaty rights are “special” rights that deny the principle of equal treatment (i.e., that similarly situated persons ought to be treated similarly by government). Indeed, to acknowledge that Indians are citizens of two nations (their own indigenous nations and the United States) is to acknowledge that Indian people are in fact differently situated vis-à-vis other American citizens and that, therefore, the equal rights/special-rights interpretation of treaty-rights politics

20   Mobilizing Nationhood is strained. Accordingly, it is through the denial of tribal nationhood that anti-treaty-rights activists imagine Indians to be making the same sorts of illegitimate rights-claims as those supposedly made by other socially marginal Americans. Dismissing what is distinctive about treaty rights, opponents of tribal claims consistently associate Indian activism with such allegedly subversive activities as affirmative action and multiculturalism. The denial of tribal nationhood is not entirely baseless, however. National courts have consistently refused to recognize tribal governments as full sovereigns and have instead envisioned for tribes a more limited, “quasi”-sovereignty. As Chief Justice John Marshall’s still-controlling opinions in the Cherokee cases (The Cherokee Nation v. The State of Georgia [1831 30 U.S. 1] and Worcester v. Georgia [1832 31 U.S. 515]) made clear, tribes are “domestic dependent nations.” Marshall held that, upon entering into treaties with the United States, tribes surrendered authority over their external affairs to the national government even as they retained authority over purely internal affairs. Relating this quasi-sovereignty to the particulars of American federalism, jurists have consistently held that tribal activities are, in principle, mostly immune from state and local regulations (including taxation). Conversely, the surrender of external sovereignty to the United States government has been understood to give Congress plenary power over tribal activities, lands, and members. 3 Such plenary authority puts tribes and their members at the mercy of the will of Congress, which has frequently been exercised in inconsistent, even in­ coherent, ways (Biolsi 2001: 11–16).4 However, there has been one consistent element in the national government’s treatment of tribal nations. Reflecting Enlightenment sensibilities, policy makers and jurists have typically envisioned Indians as children, as incapable of caring for themselves and thus in need of white support and protection. Not rational self-governors or sovereigns, either individually or collectively, Indians were instead uncivilized and “savage,” their very immaturities signifying their difference from white civilization. Yet children are not simply immature. They are also wild and licentious; they cannot be reasoned with, and so interactions with them may quickly become perilous. Accordingly, public officials (like most Americans) have historically alternated between envisioning Indians as harmless, even loyal, comrades (the “good” Indian or “noble savage”) and relentless, nightmarish blots on American progress (the “bad” Indian) (Berkhofer 1978; Rogin 1987: 134–168; P. Deloria 1998). Either way, Indians were understood as doomed and bound to vanish; they were constructed as authentic artifacts of an earlier, prehistoric time (Dippie 1982). Indeed, this vision is central to the historical articulation of tribal quasisovereignty by national courts. In particular, the consistent enunciation of tribes as needing the support and protection of the national government—

Mobilizing Nationhood   21

famously referred to by Andrew Jackson as the “Great Father”—reflects the paternalism internal to the federal-tribal relationship (Dudas 2001). Even so, scholars have highlighted how that very relationship, invoked through the claim of treaty rights, does not simply disable tribal initiative and effort. Tribes have, especially recently, been able to leverage the federal government’s trustee responsibility to promote their interests, both through treaty claims to active federal support for tribal projects and, especially, for protection from the oversight of state and local government (Cohen 1986; Cornell 1988; Wilkinson 2000; Biolsi 2001; Nesper 2002). Accordingly, the distinguishing characteristic of Indian legal mobilizations is that they are claims for a form of rights—treaty rights—that affirm the political status of tribes as quasi-sovereign nations. Although this sovereignty is of an admittedly limited form, it remains the most important aspect of tribal legal mobilizations. This is because quasi-sovereignty allows tribal governments to assert a recognized legal and political basis for the exercise of meaningful authority over tribal resources and over certain aspects of the lives of their members. Specifically, the nationhood of tribes invalidates most forms of state and local regulation of treaty rights. At the same time, this nationhood occasionally motivates public officials to actively support treaty rights. A former member of the Makah Nation’s (Washington State) Tribal Council explained, “Our tribe has entered into a treaty with the U.S. government and we’re protected by the Constitution of the United States. And any congressman, any legislator, anybody, must uphold it. Treaties that the U.S. enters into [with other nations] have to be honored and have to be protected. So there’s our relationship—governmentto-government—through treaty.”5 Fortunately, in spite of this important difference between treaty rights and constitutional rights, the legal-mobilization framework is fluid enough to simultaneously capture the similarities between these rights forms and leave sufficient room to explore their differences. As McCann articulates the framework, meaningful legal mobilizations are typically contingent upon two factors: (1) “changing organizational resources and capacities available to movement activists”; and (2) “changing ‘structures of oppor­tunity’ that do or do not support defiant political action by subaltern groups” (McCann 1994: 93; see also McCann & Dudas 2006). This dual focus draws the analyst’s attention both to the internal ideological and material infrastructures that buttress movement activities (i.e., the “support structures” for legal mobilization) and the external political and cultural contexts within which movement activity is situated and from which it draws much of its potential efficacy. In this way, the legal-mobilization model builds on McAdam’s general advice for studying social movements. Scholars, McAdam instructs, should “seek to explain insurgency on the basis of a favorable confluence of factors

22   Mobilizing Nationhood internal and external to the movement. Specifically, the emergence of widespread protest activity is the result of a combination of expanding political opportunities and indigenous organization” (McAdam 1999: 2). Accordingly, the following two sections explore the legal mobilizations of tribal nations as products first, of a treaty-rights support structure (made up of ideological and material elements) that emerged during the 1960s and 1970s and second, of changing cultural orientations and political practices during this same period that opened the American polity to a variety of historically excluded populations. This combination of internal and external factors defines contemporary Indian activism. Yet, as detailed in Chap­ters 3, 4, and 5, it is also these factors (or, rather, widespread condem­ nation of them) that motivate opposition to Indian activism.

III. Organizational Capacity and Resources: The Treaty-Rights Support Structure Although the vast majority of the most important tribal legal mobilizations are of a relatively recent vintage (from the previous 40 years), the mobilization of treaty rights is not a recent phenomenon. Tribal nations have insisted upon their rights to sovereign control over lands, resources, and members since the beginning of formalized relations with the United States (USCCR 1981: 16–20; Cornell 1988; Harring 1994). The favored policy of the national government until the middle of the nineteenth century— negotiating treaties with indigenous nations that exchanged land for guarantees (or reservations) of land and water rights in certain areas of the country in perpetuity—virtually guaranteed that disputes between American governments and Indian tribes would be specifically legal disputes over the scope and content of treaty rights (Wilkins 2002: 215). Consequently, law, in the form of disputes over treaty rights, has typically been a site of political struggle between America’s settler and indigenous populations (Brigham 1994; Merry 2000; Biolsi 2001; Dudas 2004). In spite of the historic tendency of Indians to assert their treaty rights, it was only beginning in the cold war era that they were able to create a broad-based, coordinated, and well-financed infrastructure for pursuing the treaty rights of all tribal nations. Such a support structure for the making of rights claims is, Epp argues, an important precondition for engaging in a politics of rights. According to Epp, “vibrant support structures— rights-advocacy organizations, supportive lawyers, and sources of financing —[typically] precede and support the development of rights [politics]” (Epp 1998: 20, 23). Between the late 1950s and the late 1970s, just such a support structure devoted to enforcing the treaty rights of tribal nations developed in the United States. The following section details the primary

Mobilizing Nationhood   23

com­ponents of that treaty-rights support structure. In so doing, it explores the ideological and material aspects of treaty-rights mobilizations. “pan-indian” rights consciousness The development of a material support structure for rights presumes that there are at least some people who are cognizant of the possibilities of, and interested in, engaging in a politics of rights in the first place. Or, the existence of a material support structure presumes a degree of “rights consciousness” among those for whose benefit the support structure operates (McCann 1994). Although substantial numbers of Indian people have traditionally retained their self-identities as rights-bearing members of culturally and politically distinct entities, scholars point to the formation of a “supratribal,” or “pan-Indian,” consciousness among Indian activists as an important feature of the emerging treaty-rights support structure of the 1950s and 1960s (see, e.g., Cornell 1988; Johnson 1996; Nagel 1996; Johnson, Nagel, & Champagne 1997; Wilkins 2002).6 This supratribal consciousness recognizes commonalities in the political and economic situation of Indians—similarities that encourage the descendants of America’s indigenous populations to think of themselves as “Indian” (in addition to their specific tribal identities, such as Cherokee or Sioux) and that thus serve as points of connection between otherwise diverse peoples. Two such similarities stand out. First, the American colonial process has uniquely, negatively, impacted Indians. Second, at least part of this negative impact is linked to the deprivation of treaty rights (Deloria 1992: 38–46). Consequently, the supratribal consciousness “emphasized a commonality and solidarity” among Indians that (1) they were a colonized population and (2) one thing that signaled colonization was the loss of rights. In this way, “ ‘American Indians’ [came in the 1950s and 1960s to signify] a distinct population or substantial portion thereof that both subjectively identified as Indians and consistently acted in the political realm on the basis of that identity” (Cornell 1988: 127). Johnson argues that the roots of pan-Indianism were located (1) in the national government’s urban relocation programs of the 1950s and 1960s that encouraged Indians who lived on reservations to move into major city centers such as San Francisco, Cleveland, Dallas, and Denver and (2) in the lessons that Indian activists learned from their counterparts in the civil rights movement ( Johnson 1996; see also Prucha 1984: 354–356; Cornell 1988: 132–138; Deloria 1992: 38–46).7 That this new pan-Indian consciousness— one that recognized the ways in which Indian people have been historically disadvantaged by American colonial processes, including overt, violent, efforts to assimilate—would grow in part out of congressional efforts to encourage Indians to leave the reservations and to acculturate in urban

24   Mobilizing Nationhood settings is ironic, but perhaps unsurprising.8 Torn from traditional social networks and facing severe racial and economic discrimination, some Indian people (including those with different tribal affiliations) began to seek each other’s company in order to practice shared cultural rites and to provide for each other’s material needs ( Johnson 1996: 14; see also Prucha 1984: 394–395). A by-product of this interaction was a growing awareness among newly relocated Indians that they had much in common, including the ways they had been collectively treated by major American institutions. Ironically, congressional efforts to assimilate Indians by exposing them to the melting pot of American urban life only renewed Indians’ appreciation of their own cultural difference ( Johnson 1996: 13). Complementing this unintended consequence of urban relocation were the lessons that pan-Indian activists learned from their counterparts in the civil rights movement and, especially, in the Black Power movement of the late 1960s.9 It is important to note that the “Red Power” activists of the pan-Indian movement (including such prominent figures as Dennis Banks, Clyde Bellecourt, Vine Deloria, Jr., and, later, Russell Means) worked to bridge the schism that had developed in the civil rights movement between those who favored broad-based, grassroots participation and protest (e.g., the Southern Christian Leadership Conference and the Student Nonviolent Coordinating Committee) and those who favored a legal strategy in which lawyers were the primary actors (e.g., the National Association for the Advancement of Colored People). To this end, the leaders of grassroots Red Power organizations such as the American Indian Movement (AIM) and the National Indian Youth Council (NIYC) consciously pursued an integrative strategy—one that both encouraged direct grassroots participation and a legal/lobbying strategy that brought AIM and the NIYC into close working contact with organizations such as the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI) ( Johnson 1996; Wilkins 2002: 218–220).10 What united these strategies was a shared understanding11 of the intolerable condition of American Indians; each emphasized, that is, a panIndian consciousness that highlighted the historical neglect of Indian treaty rights. A primary element of this broader Indian identity was a renewed appreciation of the opportunities that might be available to Indians via the exercise of those rights (Cornell 1988; Johnson 1996; Nagel 1996: 137–140; Wilkins 2002: 207–213). At the center of the emerging panIndian identity, argues Deloria, was recognition that treaty rights were a political resource (Deloria 1992: 45). Treaty rights, accordingly, worked in multiple directions: they were simultaneously cultural and political resources, emblems of historic mistreatment and effective rallying points for activism.

Mobilizing Nationhood   25

Pan-Indian consciousness is thus an animating element of treaty-rights mobilizations. During the 1960s and 1970s this consciousness, and the re­ newed recognition of the political utility of treaty-rights claims, met an increasingly sympathetic official audience and a structural context that was unusually open to redistributive social change. First, though, I turn to the material and organizational infrastructure that expressed, and continues to express, pan-Indian consciousness in practice. treaty-rights infrastructure During the 1960s and 1970s a variety of organizations emerged that were dedicated, generally, to providing for the welfare of Indian people and, specifically, to helping tribal nations secure their treaty rights. Indeed, organizations such as NARF, AIM, the International Indian Treaty Council (IITC), NIYC, and NCAI “generally espoused pan-Indianism as a political identity” (Wilkins 2002: 208; emphasis preserved). These organizations regularly provided, and continue to provide, financial, intellectual, and human resources to tribal governments that claim their treaty rights as a basis of action. The Native American Rights Fund (NARF), a nonprofit legal advocacy organization made up predominantly of Indian lawyers, spent nearly $8 million during fiscal year 2004, as well as a combined $29.7 million during the four years previous, pursuing lawsuits and other activities designed to bolster the treaty-rights claims of tribal nations (NARF 2005; NARF 2006a; NARF 2006b). In spite of continuing criticism that it is too dependent upon federal funding that discourages it from supporting especially controversial treaty-rights claims,12 NARF has successfully litigated a number of important treaty-rights cases since its inception in 1970, including cases dealing with fishing and hunting rights, land claims, jurisdictional issues, and federal recognition problems (NARF 2006c). The American Indian Movement (AIM) is more controversial. Founded in Minneapolis, Minnesota, in 1968 and originally dedicated to protecting the civil rights of newly located urban Indians (many of whom were regularly subject to police brutality), AIM quickly widened the scope of its activities to include a predominant focus on helping tribal nations to secure their treaty rights (Wilkins 2002: 210–211; Banks & Erdoes 2005: 58–66). In 1970, AIM created the Legal Rights Center, which by 1994 had provided legal representation for Indians in over 19,000 cases (AIM 2006a). During the 1970s, AIM complemented these overt legal activities with well-publicized direct actions, including participation in the Trail of Broken Treaties (a nationwide trek to Washington, D.C., in 1972 that culminated in the occupation and destruction of the national headquarters of the Bureau of Indian Affairs) and a series of armed occupations (Weyler

26   Mobilizing Nationhood 1992: 35–96; Banks & Erdoes 2005: 105-209). In the 1980s, however, AIM began to implode from internal fissures that were exacerbated by the intelligence operations of the Federal Bureau of Investigation’s notorious counterintelligence program, COINTELPRO (Weyler 1992: 166–211; Nagel 1996; Banks & Erdoes 2005: 266–283).13 The International Indian Treaty Council (IITC), founded in 1974 as “AIM’s international diplomatic arm,” has been more consistent in publicizing the plight of indigenous peoples around the world. The IITC was instrumental in creating the United Nations’ Working Group on Indigenous Peoples and later in drafting the Universal Declaration of the Rights of Indigenous Peoples. The IITC, which counts among its membership a prominent group of Indian scholars, continues to offer its expertise and media connections to help politicize the treaty-rights claims of American Indian tribal nations, as well as the claims of other indigenous populations (IITC 2006). The National Indian Youth Council (NIYC), established in Gallup, New Mexico, in 1961 (currently based in Albuquerque) predominantly by a group of college-educated Indian youth, is the second-oldest pan-Indian organization in the United States (the National Congress of American Indians, discussed next, is the oldest). Influenced by, and occasionally affiliated with, other civil rights organizations such as the Student Nonviolent Coordinating Committee and the Southern Christian Leadership Conference, NIYC borrowed the nonviolent direct action tactics of each in order to publicize concerns and promote Indian interests (Anaya 1994). In addition to helping tribal nations secure treaty rights, NIYC has orga­ nized voter-registration drives on reservations and filed lawsuits to challenge the exclusionary voting procedures of various localities. Similarly, NIYC has filed lawsuits on behalf of tribal nations whose land and water resources were threatened by various forms of economic development.14 Finally, the National Congress of American Indians (NCAI), founded in 1944 in Denver, Colorado, merits attention. The NCAI, which counts more than 250 tribal nations as members, is primarily dedicated to lobbying public officials on behalf of general tribal interests. This goal, although it confines the NCAI’s activities along well-worn political paths and thus leaves the organization vulnerable to criticism that it is too closely tied to entrenched systems of power, allows the NCAI to speak in highly visible ways about the interests of tribal nations and to present the “tribal voice” as a unified one in matters that are of general importance to all tribal nations (Bernstein 1994; Cowger 1999). Yet, as Bernstein notes, NCAI leadership has remained sensitive to the importance of distinctive tribal cultural and political practices, even as it has accepted the worth of some integration into mainstream America (Bernstein 1994: 371–372).15

Mobilizing Nationhood   27

Thus, during the 1960s and 1970s the ideological and material elements of a treaty-rights support structure came into being. Ideologically, widely shared understandings emerged that (1) pan-Indianism was a viable social and political identity, that is, a viable platform from which to articulate grievances, and (2) that treaty rights were political resources for rectifying historical and contemporary injustices. This new pan-Indian rights consciousness materialized in practice because of the concerted efforts of such organizations as NARF, AIM, IITC, NIYC, and to a lesser extent, the NCAI. These efforts, which often but not exclusively took place in court, created an infrastructure for articulating the political bases of Indian subordination. Treaty-rights mobilizations suggested that the contemporary marginalization of Indians was a direct result of a history of encounters that had a devastating effect on Indians. This treaty-rights consciousness articulated with a more general set of changes that combined to open the American polity to meaningful participation from tribal nations.

IV. Cultural Sensibility and Political Opportunity The U.S. government’s treatment of Indian tribes has typically alternated between efforts to assimilate Indians into mainstream American society (and thus weaken their ties to tribal government) and efforts to keep tribes and their members separate from mainstream society (which may or may not imply the strengthening of tribal governments). This contradictory impulse, which Biolsi (2001) describes as a “tension between [desires] for uniqueness and uniformity,” lies at the center of federal Indian law and is responsible for the often incoherent policies about tribes that Congress and the President have articulated (Biolsi 2001: 14; emphasis preserved; see also Berkhofer 1978; Deloria & Lytle 1983, 1984; Rogin 1987: 134–168). Federal Indian policy over the second half of the twentieth century evinces these contradictory impulses. Specifically, whereas Congress’s “termination” policies of the 1940s and 1950s sought to end the sovereignto-sovereign relationship between the national government and tribes, its “self-determination” policies of the late 1960s (which continue into the present) instead sought to renew and strengthen that relationship. The efforts of the treaty-rights support structure—which were, I have argued, geared toward just such a renewal of tribal sovereignty—are surely im­ portant for making sense of this shift in congressional policy (Prucha 1984: 364–369; Cornell 1988: 121–127; Wilkins 2002: 115–116). However, as the next section will detail, understanding the transition from termination to self-determination requires also that we take account of larger structural and cultural changes that were opening American society to the participation of a variety of marginalized people (not only Indians). In this sense,

28   Mobilizing Nationhood the pan-Indian movement of the 1960s and 1970s was able to exploit a set of changes for which it was not responsible. red scares: anti-communism and the era of termination Jackson Lears argues that a particular form of cultural hegemony pervaded American life during the immediate post–World War II era. The years between 1945 and 1960, he contends, gave rise to a “new class” of professional/managerial groups that proclaimed a shared belief in an “American Way of Life”—a worldview that emphasized that the nation could be secured from threats both internal and external by careful cultivation of its newfound international success and domestic prosperity. This American way of life would produce a new kind of American—one “pragmatic and optimistic, not given to unproductive speculation and brooding” (Lears 1989: 51). Yet in spite of “bland indifference to the darker dimensions of life,” the newly prosperous American realized that the American Way of Life—the key to present and future security in an increasingly uncertain world—was itself tenuous, always in need of protection from those internal and external enemies who might subvert it. Indeed, “the American fears ‘extremist’ crusades at home and an implacable Soviet threat abroad” (Lears 1989: 51). Moreover, such fears about the potential subversion of the American Way of Life were best assuaged by evidence of conformity to entrenched values (Gerstle 2001: 238–267; see also Susman 1989: 26–33). After all, “the American ideal,” James Baldwin wrote during this time, “is that everyone should be as much alike as possible” (Baldwin 1985: 6). Of course, the conformity and consensus that marked post–World War II America was greatly exaggerated by the era’s intellectuals, who systematically undervalued the diversity of experience that made up American life. Accordingly, analyses such as those produced by Daniel Bell and Robert Dahl typically worked, if indirectly, to legitimize existing inequalities, especially those that oriented along fault lines of race, gender, class, and sexuality (Gaventa 1980: 5–20; Rogin 1987: 169–181). It is more accurate to describe America during the cold war era as a “nation in flux,” a nation whose legitimate, taken-for-granted forms of social order—those based upon agrarian economies as well as those based upon race, class, and gender hierarchy—were disintegrating (Gerstle 2001: 241; see also May 1989 and Klinkner & Smith 1999: 161–201). Still, the intellectual fascination with conformity during these years was in many ways justified, for the compulsion to sameness frequently ma­ te­ri­al­ized in political practice. For example, the well-known Red Scare

Mobilizing Nationhood   29

of the late 1940s and early 1950s, exemplified in the hysterical activities of the Screen Actors Guild and the House Un-American Activities Committee, was an obvious instance of the compulsion to conform to traditional American values. A lesser-known but similarly illustrative chapter in this history was the shift in congressional policy toward tribal nations—a shift that renewed the attempts by the United States to assimilate Indian people into the American mainstream by stripping Indians of one of their remaining markers of difference: their political association with quasisovereign tribal nations. The tangle of congressional policies aimed at tribal nations between 1947 and 1958, commonly referred to as the “termination” policies, sought to eliminate, or terminate, the national government’s trustee responsibilities to tribes. Typically, the termination policies were justified as attempts to end the paternal relationship between tribes and the national government; they were thus clothed in the language of Indian self-sufficiency, progress, emancipation, and, above all, assimilation (Prucha 1984: 340–341). Further, although the quasi-sovereignty of tribes allows for congressional usurpation of tribal authority, it has also sometimes worked to invalidate the attempts of state and local governments to regulate tribal activities, in principle forcing them to recognize the quasi-sovereign political status of tribal nations (as noted earlier). The termination of the national government’s paternal responsibilities therefore also implied the diminution of tribal quasi-sovereignty with respect to tribal relations with state and local governments. Indeed, the termination era is notable for the degree to which it expanded the authority of states to regulate the activities of tribal governments and their members. The two major pieces of termination legislation, House Concurrent Resolution no. 108 and Public Law 280 (passed within two weeks of each other in August 1953), were animated by the convictions that (1) “assimilation must be the dominant goal of [Indian] public policy” and (2) the most expedient way to accomplish assimilation was to subject tribal members to the jurisdiction of the states within which their reservations were located (Prucha 1984: 344). Accordingly, House Concurrent Resolution no. 108 provided that “at the earliest possible time . . . [the Indians] should be freed from all Federal supervision and con­trol and from all disabilities and limitations specially applicable to Indians,” whereas Public Law 280 transferred to states complete criminal and some civil jurisdiction on Indian reservations located in California, Minnesota, Nebraska, Oregon, and Wisconsin (PL 83-280, 28 USC §1360; Wilkins 2002: 114–115; Prucha 1984: 346–347). Further, Public Law 280 provided that any other state wishing to draft legislation to assume jurisdiction over the Indian tribes located within its boundaries was free to do so.

30   Mobilizing Nationhood A corollary to strengthening state authority over Indian affairs was a desire to make tribal governments obsolete. Two tribal nations, the Menominee of Wisconsin and the Klamath of Oregon, were initially targeted for this type of termination. In these cases, termination proce­ eded by providing that all collectively held tribal property was to be allotted for individual tribal members who wished to hold title, with the remaining property to be held by newly formed tribal corporations. The conse­quences of such terminations were immediate and unsurprising. For example, Menominee Enterprises, Inc. (the successor of the Menominee Nation), incorporated in 1961, was open to state taxation and other regulatory schemes that quickly ruined the tribe’s economy and forced it to sell large tracts of its property in order to remain solvent (Cornell 1988: 123–124). A similar fate met the Klamath Nation, which was forced to sell large portions of its reservation and, consequently, lost control of valuable timber resources.16 The leaders of the termination movement, Senator Arthur Watkins (Utah) and Representative E. Y. Berry (South Dakota), hoped to enact sim­ ilar termination plans throughout the nation (Cornell 1988: 123). By 1958, however, the termination movement had lost much of its momentum, as tribal opposition coordinated by the NCAI began to shift public opinion about the wisdom of termination. Additionally, the election of 1956, which revived Democratic control of Congress, brought an effective end to the termination era and its overriding goal of assimilation (Prucha 1984: 350–351; Cornell 1988: 123–125). Finally, in 1970 Richard Nixon formally repudiated the era of termination in an address to Congress. Three years later, in a fitting conclusion to the era, the Menominee tribe was restored to its earlier status as a federally recognized tribal nation (Prucha 1984: 371–373; Cornell 1988: 124–125). There are two points to emphasize here. First, although the termination movement was, in part, another in the long line of white efforts to gain control over Indian land and resources, it was also explicitly geared toward assimilating Indians. Termination would, after all, finally rid Indians of those characteristics that were thought to hold them in a perpetual state of childhood and retard their progress. In this way, termination policies were both interest based and culturally salient. Arthur Watkins could argue with apparent sincerity that the termination policies constituted an “Indian freedom program” that would liberate Indians from their dependence on the national government and allow them to take their rightful place at the American table of self-government and prosperity (Cornell 1988: 122). In addition, as I have argued, this drive toward assimilation and conformity gained a sense of urgency during the cold war era, when markers

Mobilizing Nationhood   31

of dissent from mainstream American institutions quickly translated into evidence of subversive intentions. The subversive virus, if primarily based in the great red menace abroad, could easily infect dissidents at home and thereby threaten the American way of life (Gerstle 2001: 239). Hence, during the termination era, the Red Scare abroad combined with an earlier, but resurgent, racially charged red scare at home in order to motivate politicians and other social reformers to advocate policies that would finally make Americans out of Indians. Cold-war era sensibilities thus joined popular fears of new reds to traditional fears of old reds, encouraging a congressional policy that would eliminate Indian difference and thereby remove a historic and continuing threat to American national unity.17 Second, however, the aggressive termination policies of the 1950s actually spawned the very dissent that so alarmed the policies’ advocates. By 1954, the NCAI was mobilizing support among tribal leaders throughout the country in order to lobby Congress to repeal its termination policies. These mobilizing efforts, which soon reached sympathetic audiences (including some state officials who belatedly understood the daunting task of being responsible for Indian reservations), provided a “major shot in the supratribal arm” in that termination had “touched a nerve, drawing Indian groups and leadership together in a concerted effort . . . to defeat or modify the program” (Cornell 1988: 124). Just as the Indian urban-relocation programs had inadvertently fostered pan-Indian solidarity and a renewed appreciation of treaty-rights politics, so had the termination policies actually provided a rallying point for the formation of the supratribal political consciousness, for recognizing the “necessity . . . of united action and of organizational structures through which to act” (Cornell 1988: 125). Congressional policy thus had the effect of fueling resistance to assimilation and providing a mobilizing tool for activists who argued for the political importance of treaty rights.18 Although the national government’s contributions to the emerging treaty-rights support structure during the termination era were mostly accidental and indirect, its contributions in the 1960s and 1970s were intentional and direct. Furthermore, just as the termination-era policies and sensibilities are clear only in light of cold war America’s stifling desire for conformity to traditional values and institutions, the government’s support of tribal nations in general, and of treaty rights in particular, should be understood as a by-product of the changing cultural and political contexts of the 1960s. These changes, which opened the American political system to participation from people who had long been denied the benefits of democratic life, offered to Indian activists and tribal leaders unprecedented opportunities for empowerment.

32   Mobilizing Nationhood from termination to self-determination It is conventional to note that the 1960s were a time of uncommon political activism and structural change in the United States (see, for example, McAdam 1999). To the well-documented list of groups that engaged in protest during the decade—African Americans, students, women, and the disabled—we should add tribal leaders and other Indian activists. However, to reiterate an earlier point, the similarities between Indian insurgency and that of other historically marginalized populations should not be overstated. Although each of these social movements demanded fundamental change and each engaged in rights mobilizations in order to effect such change, Indian activism is notable for the degree to which it was (and remains) committed to a platform of indigenous sovereignty. This sovereignty necessarily suggests some level of detachment from mainstream American political institutions. Whereas the civil rights movement and the women’s movement, for example, typically sought integration into existing structures of power, Indian activists have tended to spurn such integration because of its assimilationist overtones. Indian insurgency should thus be evaluated not only according to the extent to which it has redistributed resources; it should also be judged according to a different standard, one that recognizes that one of the goals of treatyrights mobilizations is the revitalization of tribal sovereignty. However, this is not to suggest that the structural changes that reshaped American politics during the 1960s were not also integral to the successes of Indian activism, even if these structural changes were primarily in response to the activism of better-known social movements. Indeed, there was strategic gain insofar as public officials tended to associate Indian activism with that of African Americans. Racial discrimination has, of course, historically affected the life chances of Indian people. Accordingly, that the activities of the civil rights movement so successfully challenged taken-for-granted racialized practices was important for the goals of Indian activism because such challenges ensured that Indians would also benefit from attempts to remedy racialized inequality. In addition to the direct impacts of African American activist strategy on protest tactics, the gains of the civil rights movement also had indirect impacts on Indian activism in that they helped make whites sensitive to the pervasive structures of racism that shaped American life. The civil rights movement helped to alter the national consciousness in ways that encouraged structural change in the name of equal rights, thus creating a context that was more open to the participation of long-excluded racial groups in general and more receptive to the treaty-rights claims of tribal nations in particular (on this shift in national consciousness see, for example, McCann 1994: 100–103).19

Mobilizing Nationhood   33

This increasing sensitivity to the impacts of racism, and a corollary sensitivity to the nation’s record of ignoring the treaty rights that it had guaranteed to Indians, informed political practice during the late 1960s and early 1970s. In the context of treaty rights, “the guilt felt by white Americans for past injustices to the Indians was a powerful stimulus to widespread support of Indian claims, both in Congress and among the general public” (Prucha 1984: 357). Thus, political opportunities for the enforcement of treaty rights opened at multiple spaces within the national government: first at the level of the executive branch and Congress, and then in the courts as well.20 President John F. Kennedy officially ended the era of termination and inaugurated the era of tribal self-determination (Prucha 1984: 358).21 However, it was Lyndon Johnson who made the first substantive policy gestures toward self-determination. Although the only legislation dealing specifically with Indians during his presidency was the controversial 1968 Indian Civil Rights Act,22 Johnson made Indians eligible for the Great Society programs, including the Economic Opportunity Act of 1964 (under which tribal governments qualified for a variety of community-action programs that distributed federal funds) and the Elementary and Secondary Education Act of 1965 (which was later amended twice specifically to “provide special funds for Indian education and adult Indian vocational training”) (Prucha 1984: 359–361; see also Johnson 1996: 42–43). Such legislation, Johnson argued, demonstrated that the United States was dedicated to “a new goal . . . [one] that ends the old debate about termination of Indian programs and stresses self-determination; a goal that erases old attitudes of paternalism and promotes partnership and self-help” (cited in Johnson 1996: 43). Accordingly, in the Kennedy–Johnson years the stated goals of the national government began to shift away from termination and toward selfdetermination. The Nixon administration completed the shift. It is surprising that Richard Nixon was the president most responsible for re­viv­ing tribal sovereignty and ensuring that the assimilationist goal (a thereto­fore elemental aspect of federal Indian policy) was thoroughly repudiated. After all, Nixon is frequently criticized for initiating a regime of “governance through crime,” a politics of law and order that mobilized racial animosity in order to consolidate a Southern electoral base for the Republican Party (Scheingold 1984: 59–91; Simon 1997; Klinkner & Smith 1999: 291–295; Beckett & Sasson 2000: 47–60). It is counterintuitive that Nixon, who was willing to exacerbate racial tension for electoral gain, would also be dedicated (with apparent sincerity) to improving the life chances of a minority of citizens who had long been demonized on the basis of their racial characteristics (Berkhofer 1978; Rogin 1987: 134–168). However, Nixon was also a firm believer in self-sufficiency and individual merit; he had

34   Mobilizing Nationhood himself risen from relatively humble origins (Wills 1970: 145–177; Feeney 2004: 8–11). Nixon’s belief in the Horatio Alger mythology, combined with a substantial commitment to limited federal authority, sheds light on his support for treaty-rights claims, as well as on his hostility to later civil rights claims. Such commitments likely led Nixon to perceive fundamental differences between treaty-rights claims and the civil rights claims of other historically disadvantaged Americans. Recall that the treaty-rights claims of Indian tribes are claims for self-governance; they are claims for recognition of a precedent nationhood upon which the treaty relation itself was based. Treaty-rights claims are, in this sense, claims for self-sufficiency. This is especially so when the claim is formulated, as it was during the Red Power era, in contradistinction to the dependence that has so importantly shaped federal Indian policy. Here the difference materializes. The later, Black Power–era civil rights claims of African Americans were, Nixon thought, radical, insufficiently reverential of the values of hard work and individual responsibility, and, finally, critical components of the liberal agenda to undermine states’ rights. Tribal self-determination, conversely, would promote Indian self-sufficiency, reduce Indian depen­dency on the national government, and, finally, leave American federalism undisturbed. Indians were simply asking for the opportunity to become the self-made men whom Nixon so valued (Wills 1970; Mason 2004: 128). Nixon developed these themes in his Special Message on Indian Affairs to Congress on July 8, 1970. He began by remarking that “the first Americans —the Indians—are the most deprived and isolated minority group in our nation” and that this condition was largely the result of centuries of unjust treatment, exacerbated by misguided national policy. Immediately, then, Nixon displayed awareness of the pan-Indian sensibility that interpreted the current condition of Indians as a by-product of colonialism. Next, Nixon emphasized that neither termination, which denied the validity of Indian treaties and the responsibility of the national government to uphold its promises to tribes, nor paternalism, which had a “blighting effect on tribal progress,” were any longer appropriate policy goals. The fear of one extreme policy, forced termination, has often worked to produce the opposite extreme: excessive dependence on the federal government. The result is a burgeoning federal bureaucracy, programs which are far less effective than they ought to be, and an erosion of Indian initiative and morale. Only by clearly rejecting both of these extremes can we achieve a policy which truly serves the best interests of the Indian people. [Accordingly] . . . we suggest a policy in which the federal government and the Indian community play complementary roles. (Nixon 1970)

Mobilizing Nationhood   35

Thus, a policy that emphasized self-determination would not only improve the life chances of Indians, whose nascent initiative and morale would be encouraged; it would also maintain the integrity of American federalism and individualism. Nixon’s commitment to tribal self-determination was strong. Partially because of his genuine commitment to treaty rights and partially because of the pressure that the Red Power movement was beginning to exert in national arenas, Nixon throughout his presidency lobbied Congress to adopt the self-determination platform (Prucha 1984: 364–372; Johnson 1996: 43–46; Nagel 1996: 217–227; Wilkins 2002: 116). Congress respon­ ded with the Education Amendments Act of 1972, which authorized funds to improve elementary and secondary schooling for Indian children, and then established an Office of Indian Education in the Department of Health, Education, and Welfare that was directed to distribute the funds with the substantial input of Indian communities. Finally, although it was signed into law by Nixon’s successor, the Indian Self-Determination and Education Assistance Act of 1975 was “the culmination of Nixon’s intention that the tribes should be able to escape the domination of the Bureau of Indian Affairs” (Prucha 1984: 379). It provided that tribal governments could contract with the appropriate federal agency in order to take control of the operation of federal programs on Indian reservations.23 Nixon’s resignation of the presidency did nothing to discredit his Indian policy. Indeed, the Indian Health Care Improvement Act of 1976 provided that tribes could contract to administer all federal health services on the reservation. As White notes, many tribes have since taken the initiative to develop health care services that are specific to their members’ actual needs (White 1990). Finally, the Indian Child Welfare Act of 1978 reversed the long-standing practice of removing Indian children from their communities and placing them with white families. Indian activists had long decried this practice not only because of its obvious assimilationist overtones, but also because it deprived Indian reservations of some of their most promising residents, thereby further eroding tribal capacity (Prucha 1984: 374–385; Wilkins 2002: 115–116). In spite of the unprecedented opportunities for self-government that these self-determination policies have given to tribes, they have done little to alter the basic structure of the national-tribal relation. That basic structure, briefly described earlier, remains one that allows Congress a plenary power over tribal activities, an authority that recognizes Congress’s ability to again shift the tenor of its policies toward tribal nations if it so wishes. In spite of the many real gains of the era, the capacity of tribes remains pinned to the notion that they are “quasi-sovereign” governors,

36   Mobilizing Nationhood open always to congressional oversight and management. Moreover, although many tribal nations are increasingly able to exercise political and economic influence, Indian people as a whole remain close to the bottom of most important socioeconomic indicators, including life expectancy, poverty rates, and unemployment (The Council of Economic Advisors for the President’s Initiative on Race 1998). Still, in addition to the successful litigation that has guaranteed the treaty rights of many tribal nations, the congressional policies of the Nixon era helped to greatly improve the capacity of tribal nations to effectively pursue the pan-Indian agenda that was first outlined by activists during the 1960s. Congress renewed the commitment to self-determination with two major pieces of legislation during the Reagan–Bush years. The Indian Gaming Regulatory Act of 1988 legalized most forms of gambling on Indian reservations (see Chapter 5), and the Native American Graves Protection and Repatriation Act of 1990 allowed tribes to claim ownership over remains and artifacts found on federal and tribal land and to request the return of artifacts and other objects on display in public and private collections (Bordewich 1996: 170–171). Accordingly, in spite of the more conservative trends of contemporary American politics, congressional policy remains now, as it has for the previous 35 years, dedicated to the goal of tribal selfdetermination. Over the last generation, many tribes have thrived under this congressional policy, making self-determination an increasingly realistic goal. The remaining chapters pull from the backdrop developed here to highlight some of the many successful treaty-rights claims from the contemporary era. As the discussions of the fishing-rights movement in Chapter 4 and of the tribal-gaming movement in Chapter 5 make clear, many tribes have exploited the favorable conditions of the 1960s and 1970s and mobilized their treaty rights. These treaty-rights claims confirm the core insight of legal-mobilization scholarship: rights mobilizations, given favorable cultural and political conditions, can contribute to redistributive social change. Of course, widespread resentment of such treaty rights significantly complicates matters. Chapters 3, 4, and 5 explore the character of that resentment, as well as the countermobilizations (infused with a rights consciousness of their own) that it spawns. Thus, we should not imagine that opposition to treaty rights is of minimal importance—quite the opposite, in fact. Yet the redistributive potential of treaty-rights claims should not be minimized either, especially because these claims are themselves embedded in the egalitarian cultural and political currents that transformed American

Mobilizing Nationhood   37

politics a generation ago. It is true that the narrow window of opportunity for tribal (and other redistributive) gains that opened during this time now faces closure from zealous opposition. We do well, however, to acknowledge the potential gains for Indians who pursue their treaty rights.

V. Conclusion Twentieth-century shifts in federal Indian policy away from termination and toward self-determination, away from assimilation of Indians and toward the protection of treaty rights and nationhood, provide important context for understanding contemporary tribal legal mobilizations. This context, at once political and cultural, both facilitated and responded to the treaty-rights support structure that emerged in the 1960s and 1970s. Specifically, I have argued that the material component of the support structure, a tangle of supratribal organizations committed to pursuing the treaty rights of all tribal nations, was underwritten by a pan-Indian sensibility that was itself formed, in part, through opposition to the termination policies of the 1950s’ U.S. Congress. Accordingly, Indian insurgency arose from, and contributed to, important shifts in federal Indian policy. Further, treaty-rights mobilizations drew strength from transformations in American national identity that encouraged whites to recognize the value of a diverse citizenry, including the value of tribal governments. Indeed, American attitudes about the existence of diversity began to change in the 1960s. Difference was no longer automatically associated with subversive intent. Instead, some whites began to envision the exis­ tence of different lifestyles, races, and cultural practices as a sign of American strength, as an affirmation of the American promise to provide equality and justice to all of its citizens. The pan-Indian sensibility, with its focus on recognizing treaty rights, was far more likely to be well received in this context than it would have been in the Red Scare environment of the 1940s and 1950s. However, as the earlier discussion of Richard Nixon’s surprising support of tribal sovereignty suggests, Indian activists were also able to draw strength from the peculiar character of treaty-rights claims vis-à-vis the civil rights claims of other marginalized Americans. For those Americans such as Nixon who were convinced that the rights revolution had by the early 1970s begun to threaten the core American ideals of limited government and individual merit, it was perhaps easier to associate treaty-rights claims, which are in part claims for autonomy and sovereign governance, with the goals of federalism and self-sufficiency. By the 1970s the Indian self-governance that was historically viewed as a psychic and material threat

38   Mobilizing Nationhood to national prosperity was being viewed by many as an appropriate recom­ pense for centuries of colonial domination and one that also satisfied the goal of a limited national government. Contemporary tribal activities emerge from this context. They illustrate the utility of the legal-mobilization approach for political strategists. They also illustrate its utility for those of us who analyze politics; we do well to take note of the centrality of law and rights to redistributive social change. However, there is another side to the politics of treaty rights, one at which this chapter only hints. Just as during the termination era of the 1940s and 1950s, there is now a broad-based, well-coordinated, and zealous network of opposition whose resentment of tribal governance is animated by anxieties that treaty rights threaten personal and national interests. Distressed by the consequences of the redistributive social changes in part sketched here, anti-treaty-rights activists are mobilizing their own rights talk in order to block further change. Their rights talk, its form and its impacts, hereafter consumes my attention.

chapter 

The Countersubversive Persuasion: Special-Rights Talk and the Anti-Treaty-Rights Movement

We lived in relative harmony [with Indians] for 40 or 50 years, up until the mid-sixties. From that time period on, we’ve seen a growing . . . demand . . . and assertion of tribal authority and treaty rights. In America today . . . with treaty rights . . . you now have a group of citizens that are receiving the benefits of the government strictly because of race—if you are Indian you are entitled to certain things. But if you go back in history and look at just about any area in the United States, [you’ll see] that it is also under treaty. So, are we going to give America back to the Indians? —Richard Reid, Interstate Congress for Equal Rights and Responsibilities We are concerned with what we consider to be special rights . . . which bear no relationship whatsoever, now or in the future, to past discrimination and simply substitute one form of . . . invalid discrimination for another. When you face a situation in which a given group of people . . . claim . . . a permanent form of different and higher treatment while they are in fact citizens at the same time, you simply substitute a form of discrimination against which many people in the United States have been fighting all these years for another equally invidious form of discrimination. —Slade Gorton, Washington State Attorney General and U.S. Senator

3

40   The Countersubversive Persuasion

I. Introduction Chapter 2 detailed the contemporary treaty-rights movement, arguing that treaty rights have been an important resource for tribes that pursue redistributive social change. This insight, which emphasizes the political utility of rights claims for marginalized groups, is well established in legal-mobilization studies. These studies emphasize how the cultural salience of rights talk makes it a potential resource for redistributive politics. Rights talk, that is, encourages both the claimant and the claimee to envision the interest-based claims of the marginalized as legitimate claims for greater resources. The previous chapter confirmed this core insight; the claiming of treaty rights by Indian activists and tribal governments fostered a widely shared treaty-rights consciousness that propelled the many gains made by Indians over the past generation. However, the remainder of this book offers a different picture of the impacts of rights discourse on American politics. Specifically, the next chapters illustrate the ambiguity of those impacts in ways only hinted at in the existing literature. Nevertheless, these chapters build on the legal-mobilization approach, proceeding from its premise that law and rights are embedded in American culture in variable, contradictory ways. It is precisely this ubiquity—the distinctively American tendency to talk about, think about, and act on social issues according to words, logics, and ideals associated with law—that makes rights talk such a potent resource for those who are regularly denied the benefits of American democracy. Indeed, highlighting gaps between social realities and legal promises can be an important strategy for those who attack entrenched configurations of power. However, we must not imagine that this cultural power of law and rights is exploited only by socially marginal Americans. This would ignore the insight that law is a language that most Americans use to socially construct their relations with each other. In this sense, law works on all of us, motivating us to conduct our politics, whether they are redistributive or reactionary, according to its words, symbols, and logics. Law and rights are at once resources for those who attack and for those who assert privilege. Although the invocation of legal norms by citizens is a quintes­ sentially democratic activity, it is not necessarily egalitarian (Zemans 1983: 693; see also McCann 1994: 296–310). This chapter explores how anti-treaty-rights activists mobilize a particular rights discourse—special-rights talk—as a conceptual resource for making sense of, and opposing, the redistributive rights claims made by tribal nations. I shall argue, in fact, that activists’ special-rights talk partially constitutes their political visions and identities. It amplifies ac­tivists’ resent­ment

The Countersubversive Persuasion   41

of treaty rights, which they interpret not only as threats to self-interest and group interest, but also as threats to national values. Their special-rights talk thus turns anti-treaty-rights activists into countersubversives. The figure of “equal rights,” which is consistently called on to identify and vilify special rights, is particularly important in this regard. Laments about how treaty rights undermine legitimate equal rights abound. An equal rights/special rights distinction courses through the anti-treatyrights movement, sanctifying its defenses of self- and group interests by expressing them according to nationalistic prerogatives. Special-rights discourse, in this way, shifts the moral high ground provided by rights talk away from those who attack privilege and toward those who assert it. This chapter first details how activists have mobilized against what they understand to be the special treaty rights of tribal nations, thus retaining my narrow focus on the anti-treaty-rights movement. Second, this chapter casts the analysis widely, introducing an argument that is pursued in the book’s concluding chapter: mobilizations against treaty rights are a species of a more general tendency in contemporary American politics; they are expressions of resentment over the political participation of traditionally disadvantaged Americans.

II. The Anti-Treaty-Rights Support Structure Social movements are best studied by exploring both their internal ideo­ logical and material elements (their “support structures”) and the external political and cultural contexts in which the movements are situated. This chapter explores the support structure for the anti-treaty-rights movement. Although I allude here to the broader matrix of resentment in which that movement is embedded, fuller discussion of this resentment and the central place occupied within it by rights discourse is reserved for the concluding chapter. I begin by introducing the logic that animates special-rights talk, arguing that it converts defenses of self- and group interests into defenses of core American values. Next, I show how this understanding materializes in political practice by examining the activities of the anti-treaty-rights movement. This exploration leads, finally, to the empirical core of the chapter: a content analysis of the documents produced by anti-treaty-rights activists. These documents at once diagnose the threats of treaty rights and portray activists as heroic defenders of the American way of life. Their special-rights discourse, accordingly, presents America as a nation imperiled. Under attack from deviant rights claims, America herself requires the antitreaty-rights movement.

42   The Countersubversive Persuasion special-rights consciousness Special-rights discourse is animated by a logic that assigns negative value to redistributive mobilizations of rights: it suggests that claiming special rights is unfair and un-American. This is because special rights are said to go beyond legitimate rights claims for equal treatment by government (i.e., equal rights). Special-rights claims are not claims for an equal opportunity to compete in the marketplace; they are claims for preferential treatment and equal outcomes. Accordingly, special-rights talk enacts a particular worldview. It acts as a conceptual resource that delegitimizes the rights claims of socially marginal Americans. Special-rights talk is a resource for understanding “how the world works, what is possible and what is not. [It] includes cultural codes, vocabularies of motive, logics, hierarchies of value, and conventions. [It] functions . . . to make familiar what may be new and strange and . . . to authorize” certain behaviors, even as it discourages other behaviors (Ewick & Silbey 1998: 39–40). Specifically, special-rights talk expresses three intertwined, salient, and supposedly embattled American values: individual merit, community harmony, and equal opportunity. These three values have helped many Americans to make sense of the political activism of Indians over the previous forty years. This chapter’s discussion of the political visions and identities of anti-treaty-rights activists makes this point clear. Indeed, these values crystallize into a core understanding: treaty rights are special rights that must be resisted. There is, moreover, an instrumental dimension to this worldview. Allegations of special rights reflect a perception on the part of the speaker that the exercise of special rights has a direct, negative impact on his or her material interests. In this way, special-rights talk is an expression of resentment over perceived threats to self- and group interests (Bobo 1999; Klinkner & Smith 1999). This last point is of considerable importance. It is crucial to understand that resentment of treaty rights is based on a perception that those rights threaten self- and group interests. As Chapters 4 and 5 demonstrate, however, this perception is rarely confirmed by dispassionate analysis. Such a disconnect between the degree of felt injury and the amount of corroborating evidence means that anti-treaty-rights activists are not simply reacting in rational ways to the erosion of privilege. Instead, the language that they use to make sense of the law-use of tribal nations inflates their resentment. Expressing the entrenched values of individual merit, community harmony, and equal opportunity, special-rights talk convinces activists that their opposition to treaty rights is not simply a defense of their own personal and group interests. Envisioning themselves as counter­

The Countersubversive Persuasion   43

subversives, activists become participants in a moral crusade and thus harden their opposition to treaty rights. Special-rights discourse, in this way, partially constitutes movement goals and activities. Indeed, those goals and activities “do not exist apart from” special-rights talk, for it is a discourse that activists use to “make sense of the world and . . . deploy resources that affect people and things” (Ewick & Silbey 1998: 41). organization and activity The anti-treaty-rights movement is made up of loosely coordinated co­ alitions of local grassroots activists; national advocacy organizations; and local, state, and national officeholders. To call this a movement perhaps runs the risk of imputing to the actors greater coordination than is actually the case. These actors do speak a common language, however, and their special-rights talk expresses, as in McCarthy and Zald’s definition of social movements, a desire for “changing some elements of the social structure and/or reward distribution of a society” (McCarthy & Zald 1977: 1217–1218). That discourse also initiates, as in Tilly’s alternative formulation, a “sustained interaction between a specific set of authorities and various spokespersons for a given challenge to those authorities” (Tilly 1984: 305; emphasis preserved; see also Burstein 1999: 7–9). Anti-treatyrights activists—who agitate for significant changes in local, state, and national Indian policies through appeals, in part, to variously situated public officials—can thus be thought of as members of a social movement. Nevertheless, the impact of this movement is difficult to assess, at least with traditional markers of influence. Indeed, it is tempting to conclude that, despite more than thirty years of zealous advocacy, the movement has been a failure because it has not achieved its ultimate goal: significant alterations in the relationship between tribal nations and the U.S. government or, better, the abrogation of treaties altogether. Although activists have enjoyed some victories at the local and state levels, the changes in tribal status that they seek require shifts in law at the federal level, where they can point to few lasting legislative or judicial victories. In terms of its direct impact, then, little can be said on the anti-treaty-rights movement’s behalf. The movement has had a series of indirect impacts, however. First, activists have forced tribal nations to expend a great deal of their typically scarce resources in defense of their treaty rights. Indeed, movement activities have forced many tribes to endure protracted legal struggles at a significant monetary cost—the effect of which has been, in some cases, to produce long delays. Second, and more important, the movement has to a large degree succeeded in influencing public understanding of treaty rights. Interested observers have, in fact, increasingly adopted the discursive terms employed by the anti-treaty-rights movement. The entrenchment

44   The Countersubversive Persuasion of these terms, the contours of which I sketch in this chapter, is a source of long-term advantage for the movement.1 The anti-treaty-rights movement began in the late 1960s in the Pacific Northwest. The Pacific Northwest fishing-rights movement was one of the engines of the pan-Indian activism of the late 1960s. Indeed, the U.S. v. Washington District Court case of 1974 (aka the “Boldt decision”) was one of the first major litigation victories for the pan-Indian movement. Given the Pacific Northwest’s location as a seedbed of treaty-rights activism writ large, it is unsurprising that resistance to, and opposition of, that activism would also emerge from the region. “Born in the Pacific Northwest,” the anti-treaty-rights movement “moved from there to the Northern Great Plains, the Upper Midwest, the Southwest, East Coast, and Canada” (Grossman 1992: 3–4). The Boldt decision, which allotted to tribal fishers 50 percent of Washington State’s annual catch of salmon and steelhead trout at select offreservation sites, was an especially important flashpoint for the emerging opposition. The interpretation of treaty rights as special and therefore unfair and un-American—the dominant motif of the anti-treaty-rights movement—developed during countermobilization to the implementation of the Boldt rule (see Chapter 4 and Grossman 1992). This interpretation, in fact, animated the various grassroots organizations that formed in response to concerns that the Boldt litigation threatened to undermine the region’s status quo. The Steelhead/Salmon Protective Association and Wildlife Network (S/SPAWN), a local organization of property owners, sport fishers, and other interested individuals who were threatened by the treaty-rights claims of Pacific Northwest tribes, dates from this time. Ad­ ditionally, the Interstate Congress for Equal Rights and Responsibilities (ICERR), a national organization that boasted an initial membership from thirteen states, formed in the wake of Boldt’s ruling. ICERR soon became a leading opponent of treaty rights, publishing pamphlets, petitioning local and national officials, and sending representatives to testify before congressional committees and the United States Commission on Civil Rights (USCCR) (Yakima Nation Review 1977; Morris 1977; Richendifer 1977; Bruun 1982). As the following chapter develops in detail, these groups soon found advocates among some (typically, but not exclusively, Republican) local and statewide politicians. In Washington State, S/SPAWN and ICERR allied with state Attorney General and future United States Senator Slade Gorton.2 Gorton’s diatribes on how treaty rights transformed Indians into “super-citizens” (Gorton 1977) complemented the legislative activities of U.S. Representative Jack Cunningham (R., Washington), who introduced

The Countersubversive Persuasion   45

numerous bills into the House that aimed to curtail the ability of tribes to exercise their treaty rights (Bruun 1982; Cohen 1986). Organized opposition to treaty rights followed a similar pattern as it spread throughout the nation over the next three decades. Typically, judicial affirmations of treaty rights to various resources (typically land, water, or wildlife resources) have been particularly important catalysts. Court decisions have worked, in part, to generate a vigorous and focused opposition drawn mostly from those individuals who perceive themselves to be most affected by the implementation of treaty rights. For example, federal Court of Appeals Judge Barbara Crabb announced in Lac Courte Oreilles Band v.Voigt (1983) that the various Wisconsin, Minne­ sota, and Michigan bands of the Anishinabe (aka Chippewa) Nation re­ tained a treaty right to spear walleye at off-reservation sites without state oversight. Nesper reports that in northern Wisconsin, where the Ojibwe Na­tion resides, “anti-Indian rhetoric immediately flared, including inflam­ matory stories in the papers, a call for Indian scalps on a radio station, and signs appearing calling for Indians to be killed” (Nesper 2002: 70–71). As the Ojibwe bands asserted their fishing rights over the next several years, opposition from local white residents, who feared that treaty fishing would undermine Wisconsin’s sport-fishing-based tourist economy, hardened and coalesced into two organizations: Protect Americans’ Rights and Resources, led by a local paper-mill foreman and, later, the more militant Stop Treaty Abuse/Wisconsin, led by pizza-parlor owner Dean Crist (USCCR 1989; Grossman 1992; Johansen 2000; Nesper 2002: 81–105). By the late 1980s, the landings from which Ojibwe spear-fishers launched were regularly filled with members of each opposition group. Tire slashing, equipment sabotage, physical abuse of fishers on the water, degrading taunts (“Save a walleye, spear an Indian,” “Too bad Custer ran out of bullets,” etc.), and even the setting of pipe bombs—all meant to dissuade Indian fishers from exercising their treaty rights—characterized the landings of northern Wisconsin during this time (USCCR 1989). Also during this time, Crist debuted his (ultimately unsuccessful) Treaty Beer, which he advertised as “the true brew of the working man” (Grossman 1992: 3; Nesper 2002: 98–104). Meanwhile, a host of treaty-rights claims that would recover tribal jurisdiction over allotted reservation lands3 raised similar fears from landowners and politicians. Consider, for example, reactions to the U.S. Supreme Court’s 1977 decision in Rosebud Sioux Tribe v. Kneip (430 U.S. 584). At issue in that case was whether the Rosebud Sioux (Lakota) Reservation in South Dakota had been “diminished” as a result of Congress’s multiple homestead acts of the early twentieth century. Although the court found

46   The Countersubversive Persuasion that substantial portions of the reservation (almost 75 percent) had, in fact, been diminished and that the tribe thus had no claim to jurisdiction over those portions, the decision did little to assuage what Biolsi calls the “racial hard feelings” that had erupted between Indians and non-Indians during the litigation (Biolsi 2001: 45–66). The hard feelings on Rosebud Reservation—which centered on citizens’ fears of being governed by tribes and local and statewide politicians’ fears of losing authority over land— were exacerbated when in 1980 the tribe was awarded jurisdiction over a non-Indian-owned liquor store and golf club located on its reservation (United States v. Mission Golf Course and City of Mission: 584 F. Supp.1177). In response to the Sioux Nation’s pursuit of its treaty rights, non-Indian residents in 1974 formed Civil Liberties for South Dakota Citizens, an organization dedicated to promoting “the uniform protection of constitutional liberties and property rights for all South Dakota citizens, regardless of race, creed, color, or religion and to promote uniform and equal application of [the] laws to all citizens in South Dakota” (cited in Biolsi 2001: 59). Similarly, the pursuit of treaty rights by the Flathead Nation (Montana) stoked resentment and sparked the formation of local organizations (such as All Citizens Equal and the Citizens Rights Organization) dedicated to opposing the treaty claims. Other disputes involving non-Indians and tribes in the states of North Dakota and Nebraska have resulted in the same generation of vociferous local opposition that resents what it perceives as the special treaty rights of tribes and the preferential treatment of Indians that those rights facilitate (Grossman 1992). More recently, the activities of tribal nations in the upper Midwest (especially in Minnesota and Michigan) and in the Northeast (especially in casino-inundated areas in Connecticut and upstate New York) have sparked significant grassroots opposition.4 Local opposition to treaty rights has, over the previous generation, sparked a national movement—one that has bases of operation in a majority of the states in the union ( Johansen 2000). At the national level, much of the political work done by grassroots activists is coordinated by two umbrella groups: Citizens Equal Rights Alliance (CERA) and One Nation United (ONU).5 Their work includes (1) filing lawsuits to block the exercise of treaty rights; (2) lobbying local, state, and national officials either to abrogate treaties altogether or to modify them to such a degree that there would be little chance of tribes exercising meaningful authority; and (3) educating interested observers with the production of pamphlets and the maintenance of current information and opinion pieces on their Web sites. ONU, based in Oklahoma, and CERA, based in Montana, are each animated by the conviction that treaty rights are special and so are unfair and un-American. As Grossman

The Countersubversive Persuasion   47

puts it, “A major factor motivating [these] groups is the call for ‘equal rights for whites’—that the increased legal powers of the tribes infringes on the liberties of the individual white American taxpayer. The use of civil rights imagery is . . . used to [make] the case: no citizens should have ‘special rights’ to use fish, game, land, and water resources” (Grossman 1992: 3). Indeed, CERA proposes to represent the “millions of Forgotten Americans”6 who, through no fault of their own, see their rights significantly and negatively impacted by the exercise of treaty rights. One potential remedy envisioned by CERA is an amendment to the U.S. Constitution: All persons (including Indians and aboriginals) born or naturalized in the United States, (including territories, Indian reservations and trust lands,) and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No Indian tribe, band or community shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any Indian tribe, band or community deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (CERA 2006)

CERA argues that this amendment, which would strip the authority of tribal governments in the name of equal rights, is the only way to guarantee justice for all Americans. These national organizations have enjoyed the support of a variety of local, state, and national officials who proclaim themselves sympathetic to the forgotten citizens whose interests are represented by CERA and ONU. The anti-treaty-rights movement has been bolstered, for example, by the introduction of legislation designed to curtail treaty rights by congressional representatives from Washington, New York, Pennsylvania, Connecticut, Oklahoma, and Montana (USCCR 1981; Bruun 1982; Cohen 1986; Grossman 1992; Johansen 2000; Cramer 2005). Similarly, countless local and state actions, from the assertion of jurisdiction over tribal lands to the appealing of court decisions that support tribal interests, have been justified with the discourse employed by the anti-treaty-rights movement: special treaty-rights are threats to both personal and national interests. Let us more closely examine activists’ special-rights talk.

III. The Countersubversive Persuasion The literature generated by anti-treaty-rights activists both explains their opposition to treaty rights and portrays activists as champions of American democracy. It is, moreover, dominated by the theme that the interests both of hard-working, virtuous citizens and of the nation itself are under assault. The culprits are, on one hand, greedy and litigious minorities

48   The Countersubversive Persuasion and, on the other hand, bureaucrats and politicians whom they dupe with “white guilt” into supporting their unprincipled rights claims. This plotline is the unifying thread of the emotional, moralistic, and resentful language in which activists present their opposition to treaty rights; it is the seedbed of their belief that treaty rights are illegitimate, special rights that must be resisted. In order to study the arguments of anti-treaty-rights activists in a systematic way, I have compiled and coded for content a database of literature produced by the anti-treaty-rights movement. The database is made up of 170 randomly selected, publicly available documents. Although I have collected the documents (which include mission statements, testimony before congressional committees, published interviews, essays, fact sheets, and letters to public officials) from several sources, including governmental documents, newspaper accounts, and the like, the most important and frequently mined source has been the Internet. This is because, invariably, the anti-treaty-rights organizations develop and maintain elaborate, informative Web pages that are crucially important for communicating their arguments not only to an interested public, but also to other activists. Activists envision this on-line content as the most effective way to distribute organizational messages; in personal interviews and newspaper editorials, activists consistently refer interested parties to their Web pages. Accordingly, of the 170 documents included in the database, 155 (or 91 percent) were collected from organizational Web pages.7 This does not mean, however, that these documents are exclusive to the on-line source, or that they have been produced solely for display in cyberspace. Instead, activists appear to convert almost every document that they produce (whether originally intended for a mass audience or not, e.g., letters to public officials) into a Web document, greatly increasing the amount of publicly available information that exists about the organization. Given the activists’ heavy reliance upon the Internet, it has been appropriate to construct a database that reflects this source of information. Further, the database excludes all private correspondence from, and personal interviews with, activists. It is the public dimension of activists’ arguments that is crucial for my purposes. My argument is that their language—a language that persuades the activists, and that they believe will also persuade others, of the rightness of their campaigns—simultaneously inflames activists, appeals to otherwise disinterested parties, and insulates harmful economic and political influences from scrutiny. Thus, my interest is less in how the activists communicate their concerns in private and more in how they present their case against treaty rights in public forums. Given this focus, as well as the social-constructivist orientation

The Countersubversive Persuasion   49

of this study (which emphasizes that behavior is largely a function of the shared, public languages that people use to describe and understand their experiences), it would be unproductive to search for the activists’ innermost, deepest feelings. Even absent these epistemological concerns, my limited investigations of the private correspondence among activists suggest a basic consistency between the private and public words that activists use. In both an epistemological and a practical sense, little is to be gained by including in the database such private correspondence. I conducted two content analyses of the database. The first analysis is a general one; it establishes the interpretive “frames”8 with which activists oppose treaty rights. In particular, it reveals that anti-treaty-rights activists consistently portray their resentment of treaty rights in general, nationalistic terms. Indeed, in a strong majority of the coded documents activists disavow the interest-based roots of their resentment and instead pursue a nationalistic, rights-based argument that depicts treaty rights as special and, so, un-American. The second content analysis provides a thorough account of the specific logics (or “subframes”) that make up activists’ special-rights talk. Their rights discourse registers in three subframes. These subframes emphasize how treaty rights violate the ingrained American values of individual merit, community harmony, and, especially, equal opportunity. Before presenting the specific findings of the content analyses, it is worth noting the difference between direct and indirect invocations of the equal rights/special rights distinction. Often, as the database reveals, opponents directly and explicitly use the words equal rights and special rights in order to invalidate treaty-rights claims. However, this distinction also enacts a narrative logic, a set of empirical and normative claims about the importance of particular ways of life and modes of behavior for the integrity of the individual, the community, and the nation (see, especially, Ewick & Silbey 1998). From this, it follows that the logic is at work even when arguments are not explicitly set off by the words equal rights and special rights. The equal rights/special rights logic signifies a worldview that recalls the allegedly endangered values of individual merit, community harmony, and equal opportunity (Greenhouse, Yngvesson, & Engel 1994: 94–100). Thus, we may infer the presence of this logic when opponents reference those values, even if they do not specifically use the words equal rights and special rights.9 The first content analysis dichotomizes the potential arguments against treaty rights into competing frames: a Material/Local Interest frame and a Special Rights frame. The first frame, Material/Local Interest, emphasizes that treaty rights have a negative impact on the personal interests of activists. The second frame, Special Rights, emphasizes how treaty rights

50   The Countersubversive Persuasion violate the equal rights of all Americans and how such special rights violate the troika of core national values noted previously. Within the database there were also occasional arguments that did not fit neatly in either of the two major frames. These arguments, which tend to articulate New Right concerns that are not specifically about treaty rights, were placed in a third, subsidiary frame, entitled “Unclear.”10 Each document was first coded for the number of mentions of each of the three frames. If one frame amounted to more than 50 percent of the total frame-mentions coded for that document, I considered it to be the dominant frame. A frame would thus be dominant, for example, if it accounted for ten of a total fourteen frame mentions in a particular document. Table 3.1 reveals the results of this first content analysis. As it shows, 74.7 percent of the coded documents (127 of 170) are dominated by the Special Rights frame, 2.4 percent (4) by the Material/Local Interest frame, and 11.2 percent (19) by the Unclear frame. Additionally, 11.8 percent (20) of the documents showed no dominant frame. table 3.1.  Activists’ Arguments Against Treaty Rights, Frame Dominance Frame

Material/ Local Interest Special Rights Unclear

Documents in which mentions >50% of total frame mentions

4 (2.4%)

127 (74.7%)

No Dominant Frame

19 (11.2%) 20 (11.8%)

n = 170 documents

The following are specific examples of the language that activists use and that typify the arguments contained within each frame. material / local interest Until very recently, there has never been a question that we owned the tideland and its resources. In 1989 however, some 130 years after tribes signed treaties [ceding the land], and without any complaint to us over that time, several Indian tribes sued, claiming one-half of our shellfish under the Treaties. This immense unfairness [has been] visited upon us after seven generations. (138)11 Governors and Attorney Generals may not be able to, or be interested in, protecting the interests of private landowners in treaty cases. If they don’t you need to form an organization, get legal representation and file to intervene as full parties to the case. (33)

The Countersubversive Persuasion   51

special rights We who oppose treaty claims oppose [claims] to allocate . . . resources to only a small fraction of the population, under special rules. Having two sets of rules, for two sets of citizens, due to their racial heritage, is contrary to our democratic tradition, and a core principal of our Constitution—equal treatment under the law. This nation has grown in strength from its diversity, and has been successful in making progress against the worst impulses of prejudice, only when it adheres to the principle of equal rights. (71) Federal policies [i.e., respect for treaty rights] currently deny millions of people living on or near Indian reservations their full constitutional rights. It is [our] mission to advocate equal protection of the law so that this nation of many cultures may be one people, living under one system of laws. (18)

unclear The Gun Grabbers (government and private) [aim to] completely eliminate individual’s [sic] rights to own guns. This right is guaranteed by the second amendment to the constitution. The Eco-Freaks: Here again, both government and militant efforts to deny, and or diminish the rights of property ownership; and control public lands according to their whims. (79) The Death Tax has been the favored tax of radical leftists for generations. In his 1848 “Manifesto of the Communist Party” [sic], Karl Marx was among the first to make the case for estate taxes. Death tax punishes hard work and savings. (6)

The predominance of activists’ special-rights talk—their expression of resentment in a rights-based, nationalistic idiom—merits further analysis. Accordingly, I conducted a second content analysis that establishes that activists’ special-rights talk registers in three subframes. Special treaty rights, activists argue (1) undermine individual merit, (2) destroy community harmony, and (3) denigrate equal opportunity. Moreover, I coded for the specific kinds of claims that make up the logic of each subframe. For example, anxieties that the exercise of treaty rights undermine individual merit involve four interrelated, but analytically distinct, kinds of claims: (a) treaty rights aren’t needed because everyone is already able to compete in the marketplace on an equal basis; (b) treaty rights aren’t fair because they punish innocent people for the misdeeds of their ancestors; (c) treaty rights aren’t meritorious because they wrongly advantage the interests of the undeserving at the expense of the interests and rights of the deserving, thereby frustrating individual initiative and producing skewed outcomes; and (d) treaty rights promote group-think because they fail to acknowledge people as unique individuals, thereby promoting an unhealthy and (literally) self-defeating attachment to those who share similar outward characteristics. Although each of these claims is integral

52   The Countersubversive Persuasion to the overall individual merit subframe, it is unusual for any one invocation of that subframe to reference each of its four constituent elements. For this reason, I have coded specifically for each kind of claim (or “index”), presenting in Table 3.3 my findings for the individual merit subframe.12 Similarly, the Community Harmony subframe has a logic that is expressed in two related claims: (a) treaty rights are divisive because, unlike equal rights, they generate tension within the community, promoting con­ flict and eroding consensus and (b) treaty rights undermine traditional “ways of life” because they introduce new enterprises and relationships into a community that was content before their introduction. Again, each claim is integral to the overall logic that holds treaty rights responsible for destroying community harmony. Nevertheless, as in the Individual Merit subframe, it is rare for any one invocation of the Community Harmony subframe to explicate each claim. Typically, the activists’ actual arguments favor one claim over the other, developing its logic more fully (see Table 3.4). In the case of the third subframe, Equal Opportunity, four specific claims appear. Activists argue: (a) treaty rights are unconstitutional because they prevent local and state governments from asserting jurisdiction over land and activities within their borders, which results in denying nonIndian residents the equal protection of law; (b) treaty rights undermine the competitiveness of American business writ large because they exempt tribal businesses (including, especially, tribal casinos) from state and local regulations, thereby improperly favoring one enterprise over another and eroding fundamental free-market principles; (c) treaty rights promote unequal treatment and “reverse discrimination,” thereby negating America’s historic commitment to nondiscrimination; and (d) treaty rights promote the agenda of multiculturalism and political correctness, sacrificing widely shared American beliefs in assimilation, progress, and consensus in a misguided attempt to atone for past sins. As do the Individual Merit and Community Harmony subframes, the Equal Opportunity subframe relies on and expresses each of these constituent claims. Also like the other subframes, though, activists rarely reference each of these four claims, instead typically preferring either claim (a) or claim (c) (see Table 3.5). As in the first content analysis, the presentation of this second analysis operates at two levels. First, macroanalyses of the database detail the frequency with which each subframe appears in the activists’ literature. Second, I offer specific examples of the language that activists use and that typify the arguments that make up each subframe. database overview Table 3.2 displays the frequency of mentions13 of the three subframes. As it shows, activists are most likely to attack treaty rights on the basis that

The Countersubversive Persuasion   53 table 3.2.  Activists’ Arguments Against Treaty Rights, Subframe Mentions Subframe Mentions n = 1,758 mentions

Individual Merit

Community Harmony

Equal Opportunity

236 (13.4%)

267 (15.2%)

1,255 (71.4%)

such rights denigrate the core American value of equal opportunity. In fact, this argument dwarfs the individual merit and community harmony arguments. This finding is perhaps unsurprising. Observers of American life have long agreed with Tocqueville that “[Americans’] passion for equality is ardent, insatiable, eternal, and invincible. They want equality in freedom, and if they cannot have that, they want equality in slavery. They will endure poverty, servitude, and barbarism, but they will not endure aristocracy” (Tocqueville [1840] 1969: 506). Using the value of equality to make sense of their grievances, and to communicate them to a wide audience, infuses the struggles of anti-treaty-rights activists with meaning, linking them through history to other battles for American democracy. The finding demonstrates the continuing salience (dominance, even) of the category of equality for making sense of American experience. database specifics Individual Merit: 13.4 Percent (n = 236) of Total Anti-Treaty-Rights Subframe Mentions Table 3.3 displays the frequency with which opponents resort to the different elements of the individual merit subframe in order to attack treaty rights. Of the four kinds of claims that are typically made about how treaty rights undermine the value of individual merit, by far the most frequently invoked is the understanding that treaty rights improperly favor the interests of undeserving tribal members at the expense of deserving nonmembers. That is, treaty rights are understood to defeat the conditions necessary for merit-based achievement. Chief among these conditions is respect for the sanctity of private property. table 3.3.  Index Mentions for Individual Merit Subframe Index Mentions, Treaty Rights Treaty Rights Treaty Rights Treaty Rights Individual Aren't Aren't Aren't Promote Merit Subframe Needed Fair Meritorious Group-Think n = 236 mentions

27 (11.4%)

54 145 (61.4%) (22.9%)

10 (4.2%)

54   The Countersubversive Persuasion Treaty Rights Aren’t Needed: 11.4 Percent of Individual Merit Subframe Mentions.  The 1837 Treaty granted only a temporary privilege . . . that is not only gone, but outdated and unnecessary. (71) [Treaty rights] are antiquated. When Congress first established them, over one hundred and fifty years ago, Indian tribes were not gloriously successful entrepreneurs. It was not foreseeable then by Congress that Indian tribes today would be operating major casinos where thousands and thousands of people come to play and work each day. (135)

Treaty Rights Aren’t Fair: 22.9 Percent of Individual Merit Subframe Mentions.  Citizens have become the innocent victims of a misplaced Federal Indian Policy which is seeking to revive Indian tribes which were assimilated years ago, and to restore to the tribes many thousands of acres of old reservations which have long since passed into non-Indian and/or non-tribal ownership. (42) [Treaty-rights claims have] have resulted in ancient land claim lawsuits brought forward by Indian tribes . . . that seek the eviction of totally innocent landowners from their homes. (130)

Rights Aren’t Meritorious: 61.4 Percent of Individual Merit Subframe Mentions.  In simple terms, Indian Tribes are proclaiming themselves exempt from constraints imposed on all other lands and activities. Tribal governments [are given] a free pass when it comes to bearing legal burdens which, in turn, places a greater burden on their non-Indian neighbors’ lands and activities. This is consistent with a persistent pattern of anti-private property, pro-Tribal bias by our federal government that . . . private property owners have been experiencing across America. (5) It is evident that [treaty rights] don’t protect personal property rights. (22) Federal Indian Policy and respect for treaty rights . . . gives power to tribal governments at the expense of personal property rights. (31) Treaty rights only serve to undermine the systems of free enterprise and exclusive private property ownership. (139)

Treaty Rights Promote Group-Think: 4.2 Percent of Individual Merit Subframe Mentions.  Today, it seems, America has become a collection of self-interest groups (or “victims” to the courts) celebrating their cultural and ethnic differences and suing for their rights. But when we over-celebrate, and even legislate, our differences, [individualism] becomes the victim. Nowhere is this more obvious than with Indian [treaty rights]. (27)

The Countersubversive Persuasion   55

Community Harmony: 15.2 Percent (n = 267) of Total Anti-Treaty-Rights Subframe Mentions Table 3.4 displays the frequency with which opponents resort to the various claims that treaty rights undermine community harmony. As Table 3.2 suggests, this Community Harmony subframe was invoked slightly more frequently than was the Individual Merit subframe, though significantly less often than the Equal Opportunity subframe. Within this subframe, opponents more frequently expressed concerns that treaty rights are divisive and breed conflict—often, it is alleged, where previously the community was content. All of this conflict, it is further sometimes argued, works to undermine the “ways of life” that permeate the community and that are always imagined by opponents as being more virtuous than whatever replaces them. This imagination of a harmonious, pristine past is a fiction, an expression of what Greenhouse and her colleagues have called the “myth of community” (Greenhouse, Yngvesson, & Engel 1994). It is, nevertheless, a potent fiction in contemporary American politics and has received extended expression both from national political figures (President Ronald Reagan, for example) and from commentators on all sides of the political spectrum (see, for example, the writings associated with “communitarian” political thought). table 3.4.  Index Mentions for Community Harmony Subframe Index Mentions, Community Treaty Rights Are Harmony Subframe Divisive n = 267 mentions

Treaty Rights Undermine “Way of Life”

170 (63.7%)

97 (36.3%)

Treaty Rights Are Divisive: 63.7 Percent of Community Harmony Subframe Mentions.  The exercise of treaty rights has been the cause of the polarization of the [community]. It has arbitrarily created two distinct classes of citizens with unrelated and opposing governments, each competing for dominance in the same territorial area. It has created jealousy and friction between these classes and their governments where little had previously existed. (169) [Treaty rights leave] both tribal members and non-members in a state of constant uncertainty and acrimony. It is a preposterous situation that strains the fabric of our mutual existence sometimes to the near breaking point. (19)

56   The Countersubversive Persuasion Treaty Rights Undermine “Way of Life”: 36.3 Percent of Community Harmony Subframe Mentions.  Your quality of life may be drastically changed if [treaty-rights claims] prevail. (69) Treaty rights promote the removal of land from tax rolls of . . . communities and school districts, increasing taxes for all taxpayers. [They also promote] displacement of landowners who feel compelled to leave their property, as willing sellers, rather than reside in the midst of a foreign reservation. The establishment of a self-proclaimed sovereign nation within the counties and states threaten the very fabric of communities. (119)

Equal Opportunity: 71.4 Percent (n = 1,255) of Total Anti-Treaty-Rights Subframe Mentions Table 3.5 displays the frequency of mentions of the various kinds of claims that make up the equal opportunity subframe. As Table 3.2 shows, anti-treaty-rights activists invoke this subframe far more frequently than they invoke either the Individual Merit or Community Harmony subframes. Within this subframe, two particular kinds of claims dominate. First, treaty rights are unconstitutional because they exempt tribal activities from local and state jurisdiction, thereby denying non-Indians a voice in governmental decisions that affect their lives. This, it is argued, denies to affected citizens the U.S. Constitution’s guarantee of equal protection un­ der the law. Second, America is about equal opportunity, not about the sort of reverse discrimination that treaty rights enact. Less frequently, activ­ists argue that treaty rights promote multiculturalism and, thereby, discourage Americans from understanding themselves as simply Americans whose allegiance should be to the nation, not to the ethnic and racial groups of which they are a part. The argument that treaty rights undermine business competitiveness is the least cited of the claims that make up the equal opportunity subframe. Treaty Rights Are Unconstitutional: 39.0 Percent of Equal Opportunity Subframe Mentions.  To extend Tribal jurisdiction over the non-Indian population living on the reservations [via the exercise of treaty rights] would be contrary to the fundamental values of the U.S. Constitution. The U.S. Constitution guarantees life, liberty and justice for all. It does not exclude those living on reservations and interacting with Tribes. (134) When I step foot onto a reservation, State and Federal constitutional rights can be denied me. I become a second-class citizen. On a reservation there is no guarantee the United States Constitution and the Bill of Rights will control. In other words, basic human rights other Americans take for granted, that allow people

The Countersubversive Persuasion   57 table 3.5.  Index Mentions for Equal Opportunity Subframe Index Treaty Rights Treaty Rights Treaty Rights Mentions, Violate Undermine Reverse Promote Equal Constitution Competitiveness Discrimination Multiculturalism Opportunity 489 92 (7.3%) 464 210 (16.7%) Subframe (39.0%) (37.0%) n = 1,255 mentions to live in dignity with their neighbors, are not guaranteed on Indian reservations because of [treaty rights to] “tribal sovereignty.” (62)

Treaty Rights Undermine Business Competitiveness: 7.3 Percent of Equal Opportunity Subframe Mentions.  The [U.S. Supreme] Court has held that tribes have the obligation to assist the states by collecting and remitting sales taxes on [products sold to] non-Indians. But due to the treaty rights to tribal sovereignty, the Court has stated that states generally cannot enforce this obligation on Indian tribes. As a direct result . . . [non-Indian businesses] find it impossible to compete against a group with such a cost advantage—a cost advantage achieved only through tax evasion. (142)

Treaty Rights Promote Reverse Discrimination: 37.0 Percent of Equal Opportunity Subframe Mentions.  The 14th Amendment states that the government shall not give special benefits or special burdens to any citizen unless those benefits or burdens apply to all citizens. [The] burdens [of non-Indians] are not equal. (170) We want to know why Indians get special health services and get money to manage their affairs directly from the Federal Government. We want to know why our tax dollars are supporting tribes. How can the federal government “legally” continue to classify people . . . into special groups with superior rights? Wouldn’t the act of providing citizenship and the Fifth and Fourteenth Amendments of the U.S. Constitution [prohibit this]? (165) Painful divisiveness [is] the inevitable result [of treaty rights] as “Equal Protection Under the Law” is thrown out the window in favor of different classes of people, with non-Natives being treated as second-class citizens by our own government. (15) [Treaty rights] elevate the rights and interests of tribal governments over the rights and interests of United States citizens who are not tribal members. (68)

Treaty Rights Promote Multiculturalism: 16.7 Percent of Equal Opportunity Subframe Mentions.  We must be “One People” for our Constitution to work. “We the People” should be One People Under One Law. (39)

58   The Countersubversive Persuasion To survive and prosper in peace and harmony, united and strong, Americans must be one people, one nation, with one flag, and one law, applicable to all. [Multiculturalism] is creating a growing balkanization of America; a sad situation elsewhere in the world where racial tensions and ethnic wars have raged for centuries. As tribes across America move to [exercise treaty rights against] their non-Indian neighbors, tragic new conflicts are growing. (7)

summary Animating the anti-treaty-rights movement is a special-rights discourse that portrays treaty rights as unfair and un-American. Whereas equal rights establish a level playing field atop which individuals can compete with one another, special treaty rights skew that playing field, improperly favoring the interests of Indians. Equal rights guarantee that communities are peaceful and cooperative because everyone is treated the same by government; special treaty rights breed hostility because they create distinct classes of citizens, replacing harmony with division. Finally, whereas equal rights guarantee equal opportunities to succeed, special treaty rights provide to Indians preferential treatment so that they may realize equal outcomes. The message is clear: treaty rights assault the equal rights of hard-working, virtuous citizens, and, in so doing, they undermine the American way of life itself.

IV. Conclusion This chapter has explored how special-rights talk works as a conceptual resource with which anti-treaty-rights activists offer both empirical and normative assessments of treaty rights. Empirically, activists portray treaty rights as special rights that threaten their personal interests. Treaty rights are, in fact, presented in exact contradistinction to activists’ livelihoods; it is impossible for activists to envision coexisting happily with Indians who are willing to claim treaty rights. Normatively, activists’ special-rights talk portrays treaty rights not simply as inconvenient or unfair, but as illegitimate, as un-American. Activists thus interpret Indian activism as a threat both to personal and national interests. In so doing, their special-rights talk turns activists into countersubversives. Activists’ special-rights talk thus orients conflicts over treaty rights away from their interest-based beginnings and instead makes them battles over competing visions of America. As I argue in Chapter 6, their countersubversive persuasion makes the members of the anti-treaty-rights movement active participants in the American culture wars. Let us examine first, though, the anti-treaty-rights movement in practice.

The Countersubversive Persuasion   59

Chapter 4 traces that movement from its inception in the Puget Sound “fish wars” of the early 1970s to its emergence as a national entity by the early 1980s. Chapter 5 fast-forwards to present-day America and investigates opposition to tribal gaming. These two chapters, accordingly, trace the impacts of the special-rights discourse employed by the anti-treatyrights movement. In so doing, they explore the political effects of the countersubversive persuasion.

chapter 

“This Is Not Equal Rights”: U.S. v. Washington and the Origins of the Anti-Treaty-Rights Movement

4

Equal rights for all, special rights for none! —Sign at a rally against the implementation of U.S. v. Washington The United States has always been a country of equals with no individual or group subjected to subordinate or special rights. Join with me in [correcting] the Boldt decision and providing an equal opportunity for all Americans. —Jack Cunningham, United States Congressman Claims of special Indian rights that arise out of treaties and Federal statutes create a form of supercitizenship . . . that directly and adversely affects the civil rights of non-Indians . . . and is inconsistent with a drive toward equal treatment of all citizens under the same system of laws. —Slade Gorton, Washington State Attorney General and United States Senator

I. Introduction Chapter 3 notes that the anti-treaty-rights movement began in the late 1960s, growing specifically from opposition to the fishing-rights claims of Puget Sound tribal nations. Indeed, the Indian fishing-rights movement’s biggest victory—the U.S. v. Washington District Court case of 1974 (aka the “Boldt decision,” after its author, George Boldt)—also spawned a zealous countermobilization movement. The decision, because it allocated to treaty tribes 50 percent of Washington’s lucrative salmon and steelhead trout catch at those tribes’ “usual and accustomed,” but off-reservation,

“This Is Not Equal Rights”   61

grounds, was highly controversial. The fishing-rights activism that culminated in Boldt’s decision, on one hand, inspired other tribal nations throughout the United States to mobilize their own treaty rights on behalf of social change. On the other hand, the Boldt decision was a flashpoint for anti-treaty-rights activists. Indeed, the nationwide anti-treaty-rights movement was born in opposition to the Boldt decision. It is necessary to explore resistance to U.S. v. Washington in depth to understand the character of that movement. Such an exploration is the focus of this chapter. I will argue that the condemnation of special treaty rights and the celebration of equal rights provided the underlying rationale—the sensibility —not only for the countermobilization to the Boldt decision but also for the subsequent nationwide anti-treaty-rights movement. Believing that Judge Boldt had neglected the equal rights of non-Indians, the countermobilization to the Boldt decision sensitized a whole segment of Americans to the alleged dangers of treaty-rights activism. In so doing, the opponents’ mobilization of special-rights talk transformed the grievances that it voiced from local and interest based to national and value based. Opposition to treaty rights thus became not simply a defense of threatened patterns of self and group privilege; it was also a rousing defense of the American way of life itself. I will begin by sketching the backdrop of U.S. v. Washington, focusing on the decision’s place within the “fish wars” of the late 1960s. This context is necessary for understanding how ordinary Puget Sound residents came to oppose the decision. Commercial and sport fishers, in particular, mobilized through preexisting organizations to issue appeals to both popular audiences and public officials. Their efforts to shape public understanding, I will argue, were far more successful than their simultaneous efforts in formal politics (although, to be sure, they did enjoy important early support from Washington State local and national officials). Commercial and sport fishers interpreted the Boldt decision as an affront both to their material interests and to the equal rights of all Americans. This interpretation inspired their resentment, spurred their activism, and turned them into countersubversives. In so doing, opponents’ specialrights talk inflated their resentment of treaty rights, hardening their resolve and sustaining them through an acrimonious nine-year battle. Further, the opponents’ special-rights talk expanded the scope of conflict, both setting the terms of public understanding and encouraging public officials to support attempts to block or soften the implementation of U.S. v. Washington. Although this support was not eventually enough to reverse the Boldt Decision, it did result in a flurry of legislative and legal activity that ensured that implementation would be a long and bitter

62   “This Is Not Equal Rights” process. Of particular importance in this regard was the obstinacy of local and national officials: the Washington State Department of Game and Department of Fisheries, the Washington State Supreme Court, the New Right wing of the Washington State congressional delegation, and local prosecutors who refused to file charges against those who violated the terms of the Boldt decision. The activities of each frustrated the efforts of Puget Sound tribes to use the favorable legal decision to redistribute the region’s fish resource. In addition, their special-rights talk led opponents to substitute treaty rights for the more elemental, less personal, socioeconomic processes (hab­ itat degradation, overfishing, and incompetent state management of the re­source) that were increasingly transforming the Puget Sound fishery. Interpreting treaty rights and treaty fishers as responsible for their flagging economic fortunes, nontreaty commercial fishers interpreted the Boldt decision as the root of their problems. This interpretive move insulated from examination the harmful human practices that were primarily responsible for the fact that it was increasingly difficult for all fishers to make a living out of the Puget Sound fishery. The political energies of fishers were thus directed at overturning and resisting the Boldt decree, rather than at altering the underlying conditions that negatively affected them. Finally, mass opposition to the Boldt decision facilitated the formation of the first national anti-treaty-rights organization of the contemporary era, the Interstate Congress for Equal Rights and Responsibilities (ICERR). ICERR formed in the immediate wake of the Boldt decision, providing the organizational and intellectual capital for the emerging anti-treatyrights movement. Special-rights talk thus provided the sensibility not only for the countermobilization to the Boldt decision but also for the national anti-treaty-rights movement itself.

II. “Fish-Ins” and U.S. v. Washington Although Indians traditionally occupied a central place in the Puget Sound fish trade, by the middle of the twentieth century they had become increasingly marginal participants. Their increasing marginality proceeded in step with Washington State’s century-long effort to establish generally applicable laws for the regulation of the trade. Solidly in place by the 1950s, these laws refused tribal authority over traditional, off-reservation fishing grounds, in spite of a series of treaties from the 1850s that had arguably secured such authority.1 Moreover, the state’s facially neutral regulations, in conjunction with a variety of economic and environmental factors, had a disproportionate impact on tribal fishers.2 By the time of Boldt’s February 1974 decision, in fact,

“This Is Not Equal Rights”   63

tribal fishing accounted for barely 1 percent of the Washington Fishing Industry (Washington State Department of Fisheries 1951–1991). Given their historic reliance on salmon for subsistence, cultural, and commercial purposes, the impoverishment of tribal fisheries took a major toll on the lifechances of area Indians (Cohen 1986; Boxberger 1989; Wilkinson 2000). However, by midcentury the non-Indian commercial fishery was also beginning to suffer. In particular, the 1950s marked the beginning of a precipitous decline in the state’s salmon stock, with the average commercial salmon catch falling from nearly 67 million fish per decade between 1913 and 1950 to 58.5 million fish during the 1950s and to just 44 million fish during the 1960s (see Table 4.1 on page 91). In addition to the state’s long-term refusal to deal with the problem of habitat destruction (accelerated by deforestation, hydraulic mining, and extensive irrigation), the growth of a robust sport fishery further pressured the livelihoods of nonIndian commercial fishers (Washington Department of Fisheries 1973: 60–70; Cohen 1986: 43–45; Taylor 1999: 68–98; Dudas 2003: 222–227). Accordingly, the non-Indian commercial fishery was experiencing significant difficulties well before Boldt’s 1974 decision. Indian activists who were inspired by the civil rights movement (see Chapter 2) responded to their marginalization by mobilizing their fishing rights, both in and out of court. Their direct-action tactics culminated in the mid-1960s in a series of “fish-ins” in which activists flouted state regulations, fishing at traditional off-reservation grounds in accord with their treaty rights (American Friends Service Committee 1970; Deloria 1977; Thompson 1979: 378–383; Wilkinson 2000).3 Meanwhile, the activists’ tribal governments pursued fishing rights in court, filing a series of suits against Washington State’s Department of Game and Department of Fisheries (the agencies that oversaw the State’s wildlife resources). Boldt’s opinion in U.S. v. Washington—which, in addition to the 50 percent allocation, invalidated state regulations of off-reservation tribal fishing—was thus a successful culmination of more than a decade of fishing-rights activism. When fully implemented in the mid-1980s, in fact, the Boldt decision resulted in Indian fishers taking a little more than 50 percent of the state’s total commercial salmon catch, not just the catch at traditional offreservation fishing grounds (Washington Department of Fisheries 1951– 1991; see also Boxberger 1989). However, although Boldt was initially confident that “the residents of [Washington] State, whether of Indian heritage or otherwise, and regardless of personal interest in fishing are fair, reasonable, and law-abiding people [who] will abide by [this] decision even if adverse to [their] interests,” his opinion instead prompted resentment and resistance (384 F. Supp. 312: 330). Resentment crystallized around Boldt’s interpretation of a provision

64   “This Is Not Equal Rights” common to the treaties signed between Puget Sound–area tribes and the U.S. government in 1854 and 1855. This provision held that the “right of tak­ ing fish, at all usual and accustomed grounds and stations, is . . . secured to said Indians in common with all other citizens of the Territory” (see, for example, the Treaty of Medicine Creek 1854). According to state officials, sport fishers, and non-Indian commercial fishers, this provision required only that tribal fishers not be legally excluded by Washington State from fishing at traditional off-reservation sites (at their “usual and accustomed grounds”). On this interpretation, the phrase “in common with all other citizens of the Territory” provided to tribal fishers an equal opportunity to take as much fish as possible. However, treaty fishers had no claim to an affirmative, or “special,” capacity to take fish; treaties guaranteed the opportunity, not the assurance, of catching salmon and trout. At stake in any more expansive reading of treaty rights, argued this side, was the ability of nontreaty fishers to effectively compete with tribal fishers at off-reservation sites. Fidelity to the core American values of individual merit and equal opportunity thus required that treaty and nontreaty fishers have equal rights to the state’s fish resource. More­ over, the promotion and protection of equal rights demanded Washington State’s continuing oversight of tribal fishing at off-reservation sites.4 Tribal leaders, however, claimed that treaty rights guaranteed more than an equal opportunity to fish at traditional off-reservation sites. They argued that their fishing rights had been reserved, not granted, by the U.S. government. The various treaties, tribes argued, recognized the importance of tribal fishing for subsistence, cultural, and commercial purposes. Consequently, the treaties expressly affirmed the capacity of tribes to take fish in perpetuity at their usual and accustomed sites and to do so free of Washington State regulations. Boldt accepted this tribal understanding of the original intent of the treaty right, rejected the equal rights/opportunity argument, and, accordingly, set off massive governmental and nongovernmental resistance.5 Thus, at the center of the resentment over Boldt’s decision was a widely shared conviction that the tribes were receiving an illegitimate special right that gave their fisheries privileges that no other fishery had. Tribal fishers were both free of Washington state regulation and guaranteed a specific percentage of the annual catch at off-reservation sites—advantages not available to others. As one grassroots opposition leader made the point, “This is not equal rights” (Yakima Nation Review 1977: 13). Opponents’ use of special-rights talk to express their resentment of Boldt’s decision was undoubtedly influenced by the strategies of fishingrights activists. Specifically, the mobilization of treaty rights by Indian activists and tribes seems to have encouraged opponents of those rights

“This Is Not Equal Rights”   65

to also turn to the treaty language, to invest that language with a distinct set of meanings that emphasized the ambiguity of the “in common with” phrase. Marc Steinberg argues that this sort of discursive call and response amounts to a “dialogism,” in which the languages that animate collective action are the products both of actors’ own understandings of their situations and of the more general “discursive fields” (the widely shared, favored forms of rhetoric) that envelop a conflict (Steinberg 1999). Compelled to defend the interests they felt that Boldt had slighted, opponents sought to resignify the treaty right itself, noting how it guaranteed the fishing rights of non-Indians as well. For the treaties, they argued, implicitly recognized that the fish resource would support both treaty and nontreaty populations, “in common with” one another. According to this perspective, it would not make sense for either group to enjoy a prior claim on the resource, because such a differential capacity would subvert the plain moral logic of the treaties—a moral logic that was itself consis­ tent with the traditional American faith in equal rights.6 Thus motivated by their special-rights talk that they were defending their own material interests and the equal rights of all Americans, opponents of the Boldt decision resisted its implementation. Organizing themselves into such groups as the ICERR, Equality for All, and the Washington State Political Action Committees (WSPAC), opponents conducted a nine-year campaign that frustrated the implementation of the decision and spawned the anti-treaty-rights movement itself. The remainder of the chapter details that campaign.

III. Resisting U.S. v. Washington popular reaction Although a few Puget Sound residents immediately realized the potential impacts of the Boldt decision, most were slow on the uptake. Much of the almost one-month delay in public reaction—it was not until March 3, for example, that the Seattle Post-Intelligencer ran an in-depth, three-part story on the decision—had to do with the complexity, length, and obtuseness of Boldt’s opinion. Unlike Chief Justice Earl Warren’s opinion in Brown v. Board of Education twenty years earlier, Boldt’s opinion in U.S. v. Washington was, for the lay reader, impenetrable. Boldt’s attempt to settle every question “of law and fact” presented by the Puget Sound fishingrights dispute led him to produce an opinion that spawned 203 singlespaced pages and featured a scholarly synthesis of historical, biological, anthropological, and legal fact. Impressive in many ways, Boldt’s opinion was nevertheless inaccessible to the vast majority of the people whom he had hoped to placate with the carefully researched and written work. The

66   “This Is Not Equal Rights” Post-Intelligencer summarized the problem with Boldt’s opinion: “Many [people] say they simply don’t understand the judge’s decision. Members of the Gig Harbor Fish Club, for example, said the importance of the ruling had not been explained to them by various commercial fishing associations” (Seattle Post-Intelligencer 1974: A15). By March 5, two days after the Seattle Post-Intelligencer began its series of articles on the Boldt decision, the potential impacts of U.S. v. Washington were beginning to be understood by at least some Puget Sound fishers. On that day, a throng of sport fishers gathered outside of the federal courthouse in Tacoma, Washington to protest Boldt’s decree. In a preview of the street protests that would occur over the implementation of the Boldt decision for the next several years, protesters hung the judge in effigy (Seattle Post-Intelligencer 1974: A3). Also on March 5, a group of sport fishers filed suit against the state of Washington to prevent the Department of Game from implementing the terms of the decision. The countermobilization that Boldt was confident that he could forestall had begun. The countermobilization proceeded along two related paths. First, opponents of the Boldt decision sought to define the terms by which the fishingrights dispute was popularly understood. Opponents’ arguments about the illegitimacy of the decision, which emphasized that it was simultaneously a victory for special treaty rights and a blow to the equal rights of all nonIndian fishers, successfully shaped the terms of public discussion. Second, opponents called for public officials to either block or overturn the Boldt decision. The successful setting of the terms of public understanding did convince some public officials to lend their support to efforts to counteract U.S. v. Washington from within formal governmental institutions. However, opponents there encountered a countervailing set of institutional pressures that precluded the large-scale changes in United States–tribal relations that would be required for the dismissal of the Boldt rule.7 Thus, the sorts of changes in national policy advocated by ICERR, the national anti-treaty-rights organization that formed in the wake of the Boldt decision, did not come to pass. One should not, though, imagine that this failure signals the overall failure of the countermobilization movement. For in setting the terms of public debate according to the equal rights/special rights distinction, opponents transformed the longterm politics surrounding treaty rights, even as they drew from and contributed to a general popular resentment of the rights claims of socially marginal Americans. Boldt opponents inundated the public sphere with special-rights talk. The most vocal members of the countermobilization movement—nontreaty (typically white) sport and commercial fishers—initially coordinated their efforts at transforming public understanding through preexist-

“This Is Not Equal Rights”   67

ing organizations and clubs.8 Under the auspices of such organizations as the Washington State Sportsmen’s Council, Trout Unlimited, the Puget Sound Gillnetters Association, the Washington Kelpers Association, and the American Sportfishing Alliance, opponents wrote letters to the editor, ran paid advertisements in local newspapers and specialty magazines, engaged in street protests, and resisted the decision outright by operating illegal fisheries on Puget Sound waters. letters to the editor Boldt-decision opponents expressed their displeasure with the decision by writing letters to the editors of their local and regional newspapers. Sometimes these letters were unprovoked commentary on the perceived injustice of the decision. For example, Milo Moore, a former director of the Washington Departments of Fisheries and self-described historian, fre­ quently impugned the Boldt decision and other treaty-rights claims on the editorial pages of the Anacortes American, always identifying himself as a “non-Indian citizen” (Kenneth McLeod Papers: Box 1, Folder 12). Other letters were in response to news coverage that opponents perceived as one-sided or otherwise neglectful of their interests.9 Ken McLeod, for example, was a constant watchdog of the local Seattle and Tacoma presses, quick to rebuke what he saw as reporter bias. His letter to the Seattle Times of February 8, 1976 is illustrative: Your lead editorial on prison reform in the Sunday edition just had to step out of bounds and gloat over the Boldt decision. Your remarks likened it to a situation similar to the “Indians’ fishing-rights lawsuit, which resulted in . . . Boldt literally taking charge of fishery regulations because the state had so long neglected the Indians’ treaty rights.” This gleeful comparison only confirms the ill-concealed bias of your news coverage of the subject for more than two years when your reporter constantly stressed the erroneous Indian claims of “treaty rights” and rarely mentioned the “in common with all citizens” phrase in the same sentence of the treaties. (Seattle Times 1976)

Such letters to the editor, which typically rehearsed the equal rights/special rights distinction, were inexpensive and visible. They were thus important not only as expressions of opponents’ resentment, but also as overt attempts to influence public opinion as to the injustice of the Boldt decision. paid advertisements The most creative of the opponents’ attempts to influence public understanding were the advertisements that they produced and offered for publication. Such “paid media” typically emphasized the degree to which the Boldt decision (and, later, treaty-rights claims in general) was inconsistent

68   “This Is Not Equal Rights” with the Fourteenth Amendment’s guarantee of equal treatment and thus subverted the civil rights of non-Indians.10 One popular advertisement took the form of a Federal Bureau of Investigation most-wanted poster. It featured a picture of a dour and stern George Boldt and offered the inscription: “Wanted: Federal Judge George H. Boldt for Robbery of The Civil Rights of All Non-Indian Citizens!!” (Kenneth McLeod Papers: Box 3, Folder 13) Humorous plays on Boldt’s last name were a common feature of the advertisements. Bumper stickers and buttons were produced bearing such slogans as “Nuts to Boldt” and “Screw Judge Boldt.” An ad that ran in sportsmen’s bulletins featured a picture of a man with a full salmon stuffed in his mouth and the text “Screw Judge Boldt—The Indians won’t get this one!!” (Kenneth McLeod Papers: Box 3, Folder 13). Opponents also produced petitions, sometimes sarcastic, that ran in local newspapers and civic publications. An example of this sarcasm can be seen in an official-looking legal contract with a heading note that implored the reader to “sign this document . . . and end the . . . staggering . . . guilt trip [under which white people operate] . . . due to past suppression of Indians by non-Indians.” The contract read in part: To Whom It May Concern: Whereas I believe the White Man in the past has committed many crimes against the Indians, and Whereas I consider Judge Boldt’s decision to be a good ruling which at least partially restores to the Indians that which is rightfully theirs, and Whereas past mistakes were committed not [only by] Non-Indian fishermen but rather by the White Man per se, and Whereas I am a fair-minded consistent individual, I believe the brunt of the Boldt decision should be borne by ALL Non-Indians equally—not just the fishing industry, I therefore do agree to donate 50% of my net income starting from Feb. 12, 1974 and for the rest of my life to the Indian people. Signed  _______________________________  (Kenneth McLeod Papers: Box 3, Folder 14)

Frequently the petitions implored the reader to get involved with the countermobilization effort directly, drawing on widespread fears of economic and political dislocation. Further, as the preceding contract’s identification of “white guilt” suggests, these fears were often inflected with, and expressed according to, racialized logics. For example, WSPAC, an interest group that formed in the wake of the Boldt decision and which was “dedicated to the restoration of integrity in Congress,” ran a petition in many Washington State newspapers in 1977 that called on Judge Boldt to resign his post as federal judge because his “narrow advocacy of ‘Indian Rights’ makes it impossible for [him] to be impartial.” Such partiality, the

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petition read, had “decimated the steelhead runs, created bigotry among our people . . . and created chaos in our entire fishing industry.” The text surrounding the petition called on readers to “act now . . . [and] help to spread the word” that Boldt must resign. The petition also told of how Boldt’s “unconstitutional” decision was an example of how liberal judges and politicians were willing to sacrifice the civil rights of the majority of Americans in order to assuage the guilt that they felt over contributing to the historical marginalization of America’s less fortunate racial groups: “The issue is not just Indian treaties and Fish Conservation. The real issue to be resolved is the usurpation of power by Federal Judges. Whether it’s Bussing in Boston or Fishing in Puget Sound, the principle remains unchanged.” Persuaded readers would thus send their petition and a financial contribution to the Freedom From Federal Judges Fund set up by WSPAC (Kenneth McLeod Papers: Box 1, Folder 26; emphasis preserved). Paid media was also one of the primary ways by which ICERR, the national anti-treaty-rights organization that formed in the aftermath of U.S. v. Washington, sought to influence public opinion. As in the ads produced by the local countermobilization movement, treaty rights were typically associated in these ads with other forms of political action that were perceived to threaten American life. Indeed, ICERR advertisements focused specifically on the evils of treaty rights. But ICERR’s anti-treatyrights message drew from a larger resentment of the increasing political participation of a variety of socially marginal Americans. Two ICERR advertisements illustrate the point. One, with the headline “Must We Give America Back to the Indians?” states that “Only one voice, Interstate Congress for Equal Rights and Responsibilities . . . opposes current Indian policy which infringes on the property and civil rights of citizens. Only a national effort can turn this trend around. We need your help and support!” A second ad exposes the broader logic that underlies ICERR’s efforts. Entitled “Support ICERR,” the ad claims, “the liberal treatment of minorities at the expense of taxpayers has reached astro­nomical proportions. At the same time, legislation is continuously introduced in Congress which would take away your constitutional rights and enlarge the power of racial groups. Only continued support and concerted efforts by citizen groups such as ICERR can turn the trend around” (Kenneth McLeod Papers: Box 3, Folder 11). street protests A recurring feature of opponents’ efforts to influence public understanding was political street theater, which typically took place outside of Boldt’s Tacoma courtroom or in other highly visible locations (such as on the streets of downtown Seattle). The first of these protests took

70   “This Is Not Equal Rights” place in early March 1974. Opponents quickly realized that the protests were a useful way to draw attention to their efforts, as local media frequently covered the spectacles. For example, as the Sportsmen News Letter happily informed its readers, two dozen representatives from local news­ papers, television, and radio covered a 1977 protest that was held outside of the federal courthouse in Seattle (Sportsmen News Letter 1977: 26–27). Similarly, a September 1976 protest of the Boldt decision drew prominent coverage from the Seattle Times, which featured a photograph of the demonstrators on its front page. The most visible of these protests was surely that which greeted President Gerald Ford when he visited Seattle in October 1976. Cohen reports that Ford was greeted by the sight of “fishermen crowd[ing] the Seattle harbor . . . blowing their boats’ whistles and waving anti-Boldt slogans” (Cohen 1986: 89). This protest also received front-page coverage from the Seattle Times (1976: A1). Opponents’ street protests were imbued with claims that the Boldt decision was a victory for the special treaty rights of area tribes at the expense of the equal rights of non-Indian fishers. Signs with inscriptions such as “Equal Rights for All, Special Rights for None” and “Where Are My Equal Rights, Judge Boldt?” were commonplace at the protests. Another commonplace, the hanging of Boldt in effigy, was typically accompanied by accusations that Boldt’s decision had destroyed a preexisting harmony between whites and Indians, was unconstitutional (because it violated the Fourteenth Amendment’s equal protection clause), and was thus subversive of the American way of life (see, for example, Wilkinson 2000: 59–60). illegal fishing Finally, some non-Indian fishers defied Boldt’s opinion by maintaining illegal fisheries that operated on days reserved exclusively for treaty fishers. Although not necessarily intended to rally public support, these acts of civil disobedience had the effect of dramatizing the plight of the non-Indian commercial fisher. Additionally, they broadcast a message that many nonfishers surely found sympathetic. Indeed, one could hardly miss the symbolism of non-Indian fishers operating their boats in the waters of Puget Sound “in common” with Indian fishers, an act that underscored the threat to equal opportunity and individual merit presented by the special rights of area tribes. The impact of these illegal fisheries was not just symbolic. Indeed, the taking of considerable amounts of fish by non-Indian fishers during closed days frustrated attempts to implement the Boldt decision. Further, such illegal fisheries were rarely disturbed by state officials and, when arrests were occasionally made, local prosecutors frequently declined to file

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charges (Cohen 1986: 93). The state’s failure to enforce the terms of Boldt’s decree was noted by the Federal Task Force on Washington State Fisheries, a nonpartisan commission appointed by President Jimmy Carter in 1977 to investigate the difficulties implementing the Boldt decision. The task force concluded that “fishermen . . . have lost respect for law enforcement and the Courts. Increasingly the attitude has become, ‘If everyone else is going to break the rules and make money, then I will do the same’ ” (cited in Unites States Commission on Civil Rights [USCCR] 1978: 352). The illegal fisheries had a considerable economic impact. In 1977 alone, non-Indian fishers illegally caught 183,000 salmon at a catch value of approximately $1.4 million (or about 20 percent of the legal non-Indian commercial catch value from that year) (Cohen 1986: 100; Washington State Department of Fisheries 1951–1991). This number was actually an improvement from the previous year, when illegal fishing accounted for an estimated 34 percent of the total non-Indian catch in Puget Sound (USCCR 1978: 6).11 defining the conflict The definition of the alternatives is the supreme instrument of power. He who determines what politics is about runs the country. —E. E. Schattschneider, The Semi-Sovereign People

Although some of the countermobilization movement’s efforts consisted of spontaneous political action (especially the initial street protests), evidence suggests that the movement quickly organized around a wellcoordinated and clearly articulated set of goals and priorities. For example, the previously described efforts to define the terms of the conflict in the public sphere were part of what WSPAC retrospectively called “Phase I” of the countermobilization.12 WSPAC explained in a memo to its members that the ongoing mission of Phase I was to realize three objectives: 1. Crystallize Public Opinion 2. Inform other industries that: a) Boldt is not just a fishing issue b) Federal Judges are the problem c) You or your industry will probably be next 3. Get the attention of our Congressional Delegation (Kenneth McLeod Papers: Box 1, Folder 26) The first objective of Phase I—to crystallize public opinion—appears to have been largely successful. Although there is limited public-opinion

72   “This Is Not Equal Rights” research regarding the Puget Sound fishing-rights conflict, what does exist is telling. A 1976 Seattle Times poll of 470 Puget Sound–area residents found that 49.1 percent opposed the Boldt decision, 26.0 percent favored it, and 15.1 percent were undecided or of no opinion. Similarly, a 1977 poll of 294 residents conducted by the Northwest Indian Fisheries Commission (NWIFC) indicated that 55.6 percent opposed the Boldt decision, 11.5 percent favored it, and 32.9 percent were undecided or of no opinion (polls cited in Gaasholt & Cohen 1980: 14–15). Finally, Gaasholt and Cohen conducted a comprehensive telephone sur­ vey of 452 randomly selected Seattle-area adults in the summer of 1979. Their survey was meant to uncover attitudes toward Indians in general and treaty rights in particular. As a part of their project, they found that 45.8 percent of respondents opposed the Boldt decision, 37.8 percent favored it, and 13.3 percent were undecided or of no opinion. Gaasholt and Cohen suggest that the substantially higher degree of support for the Boldt decision that they found might be explained by the fact that the U.S. Supreme Court had recently upheld U.S. v. Washington on review (see later in this chapter). Indeed, 76.6 percent of respondents agreed with the statement that “everybody should abide by the Boldt decision now that the Supreme Court has upheld it” (Gaasholt & Cohen 1980: 15). Gaasholt and Cohen’s survey also asked respondents for their opinions on the legitimacy of treaty rights in general. Whereas they found overwhelming agreement with general pro-Indian statements such as “It is important to preserve the cultural heritage of Native Americans”—a statement that elicited 94 percent strong and/or some agreement—the support lessened as they posed questions about the rightness of “special programs to assist Native Americans” (69.3 percent strong and/or some agreement) and, especially, about the legitimacy of “special rights to hunt and fish” (58.6 percent strong and/or some agreement). Further, the low level of support for the Boldt decision (only 37.8 percent of respondents agreed that “All in all, the [Boldt] decision is a fair one”) betrays even this 58.6 percent favorability rating for “special rights.” Gaasholt and Cohen hypothesize that Puget Sound residents were likely to express support for Indian programs and treaty rights in the abstract, but that a substantial portion of that support faded when confronted with specific, controversial exercises of treaty rights (Gaasholt & Cohen 1980: 12). This explanation is compelling. As I have argued throughout, resentment of the rights claims of socially marginal Americans is inspired by perceptions that those rights claims threaten material interests. This hypothesis is not exhaustive, however. If the countermobilization against the Boldt decision was a simple reaction to a “perception of threat” (Bobo 1999) felt by Puget Sound residents, it is unclear why Gaasholt and Cohen

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would find more agreement for governmental programs designed to benefit Indians (69.3 percent) than they would for “special rights” (58.6 percent). If treaty rights are illegitimate because they threaten self- and group interests, then why aren’t special governmental programs for Indians equally offensive? The difference lies in what the notion of rights signals to most Americans. Rights are some of the most important legitimizing symbols in American politics (Scheingold 1974). Indeed, they occupy a mythic place within the American cultural imagination; they signify all that is sacred about the American way of life (Passavant 2002). To use rights improperly, to claim “special” rights, is to subvert everything associated with the American dream of a market-driven community of meritorious individuals. To characterize the exercise of treaty rights, for example, as quests for special rights rather than equal rights is to suggest that treaty rights destabilize the virtuous character of rights and, by implication, the ways of life associated with those rights (Goldberg-Hiller & Milner 2003). A special right is improper, in part, because it is un-American. This is the difference between opposing a governmental “handout” and a special right. To be sure, many people oppose both; but claims for special rights are more likely to generate vitriolic responses precisely because they are mythic. Because of the cultural resonance of rights, their improper use (their abuse in the form of special rights) can be persuasively depicted as an affront to the American way of life. Thus, for opponents to successfully label the rights established by Judge Boldt as special rights was a major strategic victory. Defining the terms of conflict in this way delegitimized treaty rights as unfair and un-American. Opponents’ special-rights talk drew on the cultural resonance of rights in a strategic fashion, converting their self-interested defenses of the status quo distribution of fish into claims exercised from the mantle of democratic authority. These claims turned opponents into countersubversives and, in so doing, helped to persuade a solid majority of Puget Sound residents that treaty fishing rights were illegitimate. At least until the mid1980s, Boldt opponents were able to generate substantial public support by employing special-rights talk. For almost that long, they were also able to use this discourse to appeal to public officials.

IV. Public Officials U.S. Senator Warren E. Magnuson had tried to convince Congress to limit off-reservation treaty fishing for years prior to the Boldt decision. In fact, Magnuson responded to the “fish-ins” of 1964 by submitting Joint Senate Resolutions 170 and 171 for congressional consideration. The first

74   “This Is Not Equal Rights” resolution called on Congress to recognize state police powers over offreservation treaty fishing. The second resolution went further, authorizing the secretary of the interior to purchase and extinguish the off-reservation fishing rights of all Indian tribes holding them. The problem with off-reservation fishing rights, Magnuson explained, was that they allowed some Indians (he seemed to have in mind those who were defying state law at the fish-ins) to fish unregulated. To be sure, Magnuson noted first how industrial pollution and the indiscriminate building of dams and water diversions, practices that degraded fish habitats, had damaged the fisheries of Puget Sound. Then, however, in a reprise of the overwrought anxieties historically expressed by Washington State officials, Magnuson claimed that renegade Indian fishing, not habitat destruction, was the gravest of the contemporary threats to the resource. “Indian rights must be reviewed in the light of conservation today, so that the few—fewer than 1.5% of the Indians—who are under neither tribal nor State controls do not destroy these fisheries for themselves, their fellow tribesmen and everyone else” (Magnuson 1964). Substantial qualification, or outright extinguishment, of treaty rights was thus necessary to ensure healthy fish runs, runs that would benefit all Puget Sound fishers (white and Indian). Magnuson’s vision of equality, however, was never realized; his proposed legislation eventually died in the Senate’s Committee on Interior and Insular Affairs. Magnuson’s legislation is instructive in several ways. First, it illustrates the propensity of Washington State officials to avoid complex issues of habitat destruction and instead blame resource erosion on the treaty fishing of local Indians (Boxberger 1989: 132–135). Second, it suggests a preexisting sympathy to special-rights talk, a sympathy that grassroots Boldt-decision opponents consistently evoked as they frustrated the implementation of U.S. v. Washington. Third, and of foremost importance in explaining the counter­mobilization movement’s eventual failure in formal politics, the unspectacular deaths of Joint Senate Resolutions 170 and 171 (neither made it to the Senate floor for debate, let alone for vote) confirm that by the mid-1960s momentum within Congress to extinguish treaty rights had stalled (see Chapter 2). Accordingly, most members of the Washington State congressional delegation, including those who agreed that the Boldt decision was unfair, soberly accepted the reality of the decision.13 Rather than spearhead attempts to overturn U.S. v. Washington or to circumvent the decision by abrogating treaty rights (an authority that Congress has), these legislators instead sought a negotiated settlement that would mitigate the decision’s effects on non-Indian fishers and restore what they saw as a more equitable distribution of the Puget Sound fish resource. However, many of the

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most vocal members of the countermobilization movement interpreted this shift in legislative emphasis not as a realistic response to countervailing institutional pressures, but rather as capitulation and as further evidence that their interests and rights were being ignored. Instead, they endorsed the more radical (and improbable) pieces of legislation offered, for example, by Representative Jack Cunningham and former Washington State attorney general and senator Slade Gorton. The legislation sponsored by each fully endorsed the equal rights/special rights distinction, but, because it called for substantial changes in federal Indian policy, it stood virtually no chance of success in the then-current political climate. Opponents’ special-rights talk thus cut in opposing directions when applied to a strategy of formal politics at the national level: it simultaneously mobilized the support of many Washington State public officials and pushed the countermobilization movement into an increasingly untenable position, one that eventually marginalized movement activists.14 Conversely, opponents’ appeals were for a time quite successful at the state level. Specifically, the initial willingness of state officials to directly appeal the Boldt decision in national court ensured that its implementation would be a slow and costly process. Similarly, two 1977 Washington State Supreme Court opinions that flagrantly contradicted the holding of the Boldt decision further complicated the implementation. By the time those cases were appealed and made their way through the federal court system (with the Supreme Court finally issuing an opinion in 1979 that mostly reaffirmed U.S. v. Washington), another two years had passed. Such obstruction ensured that no cooperative relationships would emerge between Washington State and local tribes until 1983. I begin with the countermobilization’s partial victories in Congress. national officials Most members of the Washington State congressional delegation—including Senators Henry “Scoop” Jackson and Warren Magnuson (and, later, Slade Gorton) and Representatives Don Bonker, Joel Pritchard, Thomas Foley, and Lloyd Meeds (and, later, Jack Cunningham)—empa­ thized with opponents of the Boldt decision. They agreed that sport and non-Indian commercial fishers were unfairly burdened by the Boldt decision. On the unfairness of the Boldt decision, in fact, there was bipartisan agreement. The delegation, however, was less unanimous on how to respond to the decision. On one hand, Senator Magnuson and Representatives Pritchard, Foley, and Meeds headed a centrist contingent that claimed that, although its members were either opposed or ambivalent to it, the Boldt decision was national law and there was a constitutional obligation to uphold it. Unless

76   “This Is Not Equal Rights” and until U.S. v. Washington was overturned on appeal, Lloyd Meeds told his constituents in November 1975, “we are bound by Judge Boldt’s interpretation. [For] our American constitution established courts of law to interpret treaties, among other things. Unless we are prepared to change the constitution, [we must uphold the decision]” (Meeds 1975: 2). The following year Thomas Foley agreed with Meeds’ diagnosis: “Although I have been on record as taking a different view on the requirements of the treaties than that of Judge Boldt, his decision is now the law of the land, and I would be less than frank if I indicated that there was any alternative but for implementing that court decision. We must of necessity focus on the immediate need to implement the decision of the courts” (Kenneth McLeod Papers Box 1, Folder 2). Even Warren Magnuson, who had been an opponent of off-reservation treaty fishing, felt by March 1976 forced to admit defeat. As he concluded, “whether one agrees or disagrees with the Boldt decision, it is clear that it is here to stay. [We] must now determine what—realistically—we can do here at the federal level to be of assistance [to non-Indian fishers]” (Kenneth McLeod Papers: Box 1, Folder 5). Having conceded the inevitability of complying with U.S. v. Washington, this contingent of the state’s congressional delegation sought primarily to maximize the nontreaty catch in ways that maintained the integrity of Boldt’s decision. The most notable of these efforts was Senate Resolution 2163 (S. 2163). A companion to House Resolution 6959 [H.R. 6959], the two bills were consolidated and passed as the Salmon and Steelhead Conservation and Enforcement Act of 1980. The legislation created a Steelhead and Salmon Advisory Commission that would issue a report making suggestions as to how treaty tribes and the state could productively comanage the fisheries. It also provided federal grants and matching funds to the tribes and to Washington State for the implementation of the commission’s findings.15 Representative Don Bonker, who sponsored the House version of the bill, hoped that the law would allow for “our fish resources [to be] raised to their potential and the industry [to] continue to contribute to the strong economy of [Washington] state” (Kenneth McLeod Papers: Box 1, Folder 2). S. 2163 was this contingent’s most visible attempt to enhance the state’s fisheries, but not the only or the first attempt. Before the permanence of the Boldt decree was clear, members of the contingent first responded to the de­cision by urging the Justice Department to expedite its appeal before the Ninth Circuit Court of Appeals. That same year, 1974, they persuaded Congress to appropriate over $4 million to, in Meeds’s words, “expand production at salmon and steelhead hatcheries in view of changed demand on the resource” (Kenneth McLeod Papers: Box 1, Folder 9). Additionally,

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Magnuson led a successful effort to secure from the U.S. Economic Development Administration a grant of $3.5 million to assist Washington State in an earlier buyback program. These attempts to mitigate the impacts of Boldt’s opinion (without actually attacking the opinion’s interpretation of the Puget Sound treaties), according to Meeds, were “responsible and rational [responses] to the new reality” ushered in by U.S. v. Washington. On the other hand, the legislation introduced and sponsored by the more ideologically trenchant contingent of the state’s congressional delegation (whose most visible members were Jack Cunningham and Slade Gorton) was, in the view of the centrist coalition, neither responsible nor rational. This contingent rose to office along with a host of other “New Right” politicians—politicians who explicitly organized around, and promoted, the interests of resentful Americans such as those who made up the most vocal and active of the countermobilization movement (Perlstein 2001). Cunningham exhorted his constituents, If we work together, we can defeat those people who are devoted to making this nation a welfare state. I promise you that as long as I am in Congress, I will fight every inflationary big-government program which is proposed by the liberal members of Congress. We have a tremendous undeveloped natural resource: the conservative, patriotic, common sense views of most Americans. Most Americans . . . oppose massive Federal deficits, reverse discrimination, government subsidy for “gay” liberation . . . and the soft-on-crime policies of [liberals]. I will continue to be the people’s candidate controlled only by what they say. (Cunningham 1978)

To Cunningham, and to his future congressional colleague Gorton, the Boldt decision was a prime example of the continuing indifference to the interests of a now forgotten, but majority, American population. Cunningham argued on the floor of the House of Representatives that “Boldt’s interpretation of [the] treaties . . . [was] wrong.” The Boldt decision was “unfair to non-Indian commercial fishermen, sport fishermen, and a dangerous threat to the preservation and protection of our fish and other wildlife.” To remedy the “3-year nightmare in the State of Washington” that the decision inaugurated, Cunningham proposed to his colleagues in 1977 the Native American Equal Opportunity Act (H.R. 9054). H.R. 9054 would, according to Cunningham, enact the historical reality that “the United States has always been a country of equals with no individual group subjected to subordinate or special rights.” Because Indian policy “must reflect this same fairness,” the proposed legislation would, like the termination policies of the 1950s (see Chapter 2), direct the President to abrogate all Indian treaties and to treat Indians the same as all other Americans. This would be a desirable result for all Americans, for H.R. 9054 would “provide full citizenship and equality under law to

78   “This Is Not Equal Rights” Native Americans” and provide “an equal opportunity for all citizens to fish and hunt in the United States” (Cunningham 1977). The grassroots countermobilization movement embraced Cunningham’s proposed legislation. In a letter from September 27, ICERR board member Ken McLeod informed Cunningham that he was “delighted” by the introduction of H.R. 9054, taking it as proof of the congressman’s “determination to live up to [his] . . . oath of office to support the constitution of the United States” (Kenneth McLeod Papers: Box 1, Folder 2). The Northwest Steelhead and Salmon Council agreed that the bill would “allow all fishermen an equal opportunity to fish in Washington State” and, in an admission of the movement’s growing dissatisfaction with the centrist coalition of the state’s congressional delegation, instructed that Cunningham should be praised as “the only person . . . from the delegation of the State of Washington that has tried to carry out his job the way he said he would” (Kenneth McLeod Papers: Box 3, Folder 2). Equality for All, another of the organizations that formed in response to the Boldt decision, claimed credit for H.R. 9054 and directed its members to contact their congressional representatives to urge the bill’s passage (Kenneth McLeod Papers: Box 3, Folder 14). And ICERR, which had formed in a national meeting in Salt Lake City in early 1975 and which now oversaw much of the Boldt decision countermobilization, rejoiced at how closely H.R. 9054 followed the proposed “Restoration of Equal Rights and Responsibilities Act of 1977” that it had issued earlier in the year (Kenneth McLeod Papers: Box 3, Folder 24). The centrist coalition of the Washington State congressional delegation was less complimentary. Don Bonker refused to cosponsor H.R. 9054 and hesitated even to support it “because simply stated, it will only succeed in raising false hopes among those who have been victimized by the controversy that surrounds Indian claims.” Further, in spite of his personal opposition to the Boldt decision, Bonker was convinced that Cunningham’s bill, “in the unlikely event that it is enacted by Congress, would probably be unconstitutional” (Kenneth McLeod Papers: Box 1, Folder 2).16 Instead, Bonker spoke for his colleagues in the centrist coalition in hoping that a presidential task force appointed by Jimmy Carter would be able to broker a negotiated settlement that would moderate the impact of the Boldt decision on non-Indian fishers. The task force, Bonker told his congressional colleagues, was a “responsible action and a reasoned approach to a negotiated settlement of differences.” Bonker juxtaposed these responsible and reasoned actions against H.R. 9054, an impractical and “abrupt action that is cosmetic and could be overturned easily in court” (Congressional Record: 1977).17

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A similar reaction would have been predicted for the legislation that was proposed in 1981 by first-term Senator Slade Gorton. Gorton’s S. 874, the Steelhead Trout Protection Act, sought to de-commercialize steelhead trout and thus make all state laws regarding the taking of that fish applicable to treaty fishers, whether they fished on or off reservation. Counter­ mobilization organizations were quick to rally behind the legislation. The American Sportfishing Alliance “respected and greatly admired” the legislation, lauding Gorton as the rare politician that “stood up and challenged the awesome American Indian lobby in Washington, D.C.” Unlike the mem­bers of the centrist delegation, who cowered before the disproportionate influence exercised by Indians and their liberal champions, Gorton was a “very good friend” to nontreaty fishers (Kenneth McLeod Papers: Box 1, Folder 2).18 It is interesting to note that S. 874 offended the centrist delegation less than H.R. 9054 did. It is unclear why some members of the delegation, notably cosponsor Henry Jackson and Representative Don Bonker (who introduced the related H.R. 2978 in the House), were more optimistic about Gorton’s legislation than they were about Cunningham’s. After all, S. 874 would have accomplished many of the same purposes of H.R. 9054, if more by default than by direct action. Although S. 874 did not call for the abrogation of treaties per se, it essentially nullified treaty rights with respect to steelhead fishing because it allowed for the state to regulate treaty and nontreaty fishing alike. Whatever difference some members of the delegation discerned between the two, S. 874 fared no better than had H.R. 9054 before it. The Steelhead Trout Protection Act was referred to the Senate’s Committee on Indian Affairs, hearings were held, and the bill died. The split in the Washington State congressional delegation between a centrist coalition less amenable to the radical propositions of the countermobilization movement and an ideologically motivated wing more welcoming of those propositions illustrates the paradoxical relationship that developed between national public officials and the movement. It also illustrates Schattschneider’s insights about the complexity of expanding the scope of conflict into new institutional arenas. On one hand, opponents’ special-rights talk successfully expanded the scope of conflict into the congressional arena. Their discourse helped to generate a bipartisan agreement that the Boldt decision was unfair to non-Indian fishers and that Congress must act to mitigate the decision’s impacts. In document after document, members of the Washington State delegation express their empathy with non-Indian fishers and their disapproval of how Boldt’s decision elevated the special rights of area tribes over the equal rights of all other citizens. Just as the countermobilization movement was able to galvanize public

80   “This Is Not Equal Rights” opinion with its special-rights talk, so too was that discourse effective in capturing the sympathies of statewide elected officials (Bruun 1982: 285). On the other hand, once the conflict entered into formal politics, mem­ bers of the countermobilization movement lost control of the terms of con­flict. The fishing-rights dispute was winnowed through a countervailing set of pressures and constraints distinct to congressional politics that deradicalized policy responses to the Boldt decision. Although some members of the congressional delegation—those who were committed to a strident partisan-position affiliated with the New Right agenda— disregarded these institutional pressures, the majority of the members did not.19 Two such constraints merit attention. First, evidence suggests that the centrist coalition of the delegation felt conflicted over defying the orders of federal judges. Deference to the existing structure of federal Indian policy, which gave national courts a prominent role in construing treaties, thus seemed to dissuade members of the delegation from leading a frontal assault on U.S. v. Washington, even though it was a decision with which they disagreed (and even though Congress has the authority to alter the terms of treaties). Members of this delegation were, accordingly, disinterested in putting one branch of the national government into open conflict with another. Second, the centrist coalition argued correctly that the radical changes the countermobilization movement sought in existing Indian policy (for example, the abrogation of all treaties) had no chance of garnering the support of a Congress and Presidency that had endorsed the policy of tribal self-determination (see Chapter 2)—a policy that placed heavy reliance on respecting treaty rights. Indeed, the members of the centrist coalition interpreted the propositions of the countermobilization movement as unreasonable and irrational. Given conflicting prerogatives (personal distaste of the Boldt decision and structural, cultural, and political constraints that seemed to demand compliance with it), the majority of Washington State’s congressional members advocated a negotiated approach that would balance respect for Boldt’s decision with efforts to mitigate its impacts on non-Indian fishers. This approach, which the countermobilization dismissed as defeatist, turned out to be a more promising means by which to blunt the effects of U.S. v. Washington. The story was, for a time, very different at the state level. Without the institutional constraints that operated on national officials, 20 outright state resistance and obstinacy greeted Boldt’s opinion shortly after its release in February 1974. Although the Department of Fisheries showed a goodfaith, if muddled, effort to comply with off-reservation treaty fishing, the Department of Game steadfastly opposed the Boldt decision. The state

“This Is Not Equal Rights”   81

attorney general’s office, led by future U.S. Senator Slade Gorton, quickly appealed U.S. v. Washington to the Ninth Circuit Court of Appeals. Gorton, moreover, embarked on a series of speaking engagements that raised his profile as a leading opponent of the Boldt decision. Local prosecutors refused to file charges against non-Indian fishers who were caught fishing during newly closed seasons, with some even running for the office on thinly veiled promises to not enforce Boldt’s decree. The state’s Supreme Court issued three opinions that directly contradicted Boldt’s construal of the Puget Sound treaties, two of which were eventually overturned by the U.S. Supreme Court in 1979. All told, the resistance of state officials to the Boldt decision frustrated its implementation for close to a decade, even after a frustrated George Boldt assumed authority over the operation of Washington State’s fisheries in 1977. As the Ninth Circuit Court of Appeals reported, “[Washington] state’s extraordinary machinations in resisting the [Boldt] decree . . . [constitute] except for some desegregation cases . . . the most concerted official efforts to frustrate a decree of a federal court witnessed in this century” (Puget Sound Gillnetters Association v. United States District Court [573 F.2d 1123; 1978 U.S. App.]). state officials The Department of Game steadfastly opposed off-reservation treaty fishing for years prior to U.S. v. Washington. Even when the Department of Fisheries began to accommodate that fishing in the late 1960s, Game officials continued to argue that the state must not recognize special rights for Indian fishing.21 Game insisted that unregulated treaty fishing would decimate the steelhead trout population because Indians traditionally fished with much more efficient gear (nets) than did white sport fishers (who fished according to the hook-and-line method) (Kenneth McLeod Papers: Box 1, Folder 3). Boldt’s opinion did nothing to change Game’s approach. Drawing inspiration from its mission statement—to “preserve, protect, perpetuate, and enhance wildlife . . . to provide the maximum amount of wildlifeoriented recreation for the people of the State”—top Game officials protested Boldt’s decree, only begrudgingly drawing up new regulations that differentiated between treaty and nontreaty user groups. They insisted that the state legislature had not given them the authority to do such differentiating. Not only did the allocation of resources violate Game’s mission to regulate steelhead trout for purposes of preservation and perpetuation only, but it was also inconsistent with the department’s mission to regulate steelhead trout for all Washingtonians equally. Accordingly, the Department of Game declared that it did not have the legal authority to comply

82   “This Is Not Equal Rights” with Boldt’s decision and, further, that it was unconstitutional for Boldt to command the department to so violate both Washington State law and the U.S. Constitution. Slade Gorton heard Game’s declaration clearly. the attorney general’s office State Attorney General Slade Gorton regularly argued that the Boldt decision was based on a flawed interpretation of the Puget Sound treaties— one that distorted the plain language of the treaties and awarded special rights to treaty fishers, thus turning them into “super citizens.” He argued that the Boldt decision was an affront “to all who believe in the American tradition of equal rights under the law”: From the beginning . . . [it was assumed] that while the Puget Sound treaties prohibited discrimination against Indians, they did not grant Indians special privileges. [So] the Boldt decision . . . was a bombshell, disrupting a long-standing policy treating Indians and non-Indians equally. Thus this state . . . now has two completely unequal classes of citizens: treaty Indians and everyone else. Such an unjust resolution cries out for change, for a solution which restores equality of treatment for all citizens, Indian and non-Indian, in the fisheries resources of the state. The Boldt decision is both unjust and contrary to our basic values as a national society. A policy under which one class of citizens is entitled to special rights in perpetuity by reason of race or, more precisely, by reason of a combination of race and the luck of an ancestral treaty, is both wrong and destructive of social peace. (Gorton 1976: 2–4)

Unsurprisingly, Gorton’s initial response to Boldt’s decision was to appeal it to the Ninth Circuit Court of Appeals, which accepted U.S. v. Washington for review. Following the Court of Appeals’ affirmation of Boldt’s decision in June 1975 (520 F.2d 676), Gorton appealed to the U.S. Supreme Court. However, that court also endorsed U.S. v. Washington, if by default, when in January 1976 it refused to issue a writ of certiorari (i.e., when it refused to hear the case) (423 U.S. 1086). Gorton stood fast. Indeed, the attorney general argued that the state would not be able to enforce the Boldt decision until the U.S. Supreme Court intervened in the fishing-rights conflict and issued a full opinion on the merits (USCCR 1977: 28). Ignoring the Court’s recent refusal to do just that, Gorton claimed that the general public’s resentment of the Boldt decision would be quelled only by a decision from the highest court in the land. In the meantime, Gorton advocated pursuing other methods to overturn U.S. v. Washington, including a congressional resolution that would extinguish treaty rights in exchange for monetary compensation (Gorton 1976: 6–8). Gorton soon had another opportunity to refute Boldt’s interpretation of the Puget Sound treaties, this time in front of the Washington State

“This Is Not Equal Rights”   83

Supreme Court. At issue in this 1976 case of The Department of Game et al. v. Puyallup Tribe, Inc., et al. (86 Wn.2d 664) was the appropriateness of a Thurston County Superior Court opinion that, following an earlier U.S. Supreme Court decision (Department of Game of Washington v. Puyallup Tribe et al. [414 U.S. 44 1968]), allocated 45 percent of the harvestable natural run of steelhead trout to treaty fishers. Gorton’s office appealed the Superior Court decision, arguing that it mistakenly interpreted the Puget Sound treaties as guaranteeing to treaty fishers a specific percentage of the catch when, in fact, the treaties guaranteed to treaty fishers only an equal opportunity to catch steelhead “in common with” all other citizens of the state. Washington State thus argued that treaty rights were granted, not reserved, to Indians and that, consequently, the promulgation of two classes of fishers violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. In a unanimous (9–0) opinion, the state Supreme Court reached a seemingly paradoxical holding: It simultaneously upheld the Superior Court’s allocation of steelhead trout to treaty fishers and Gorton’s equalopportunity interpretation of the Puget Sound treaties. Claiming that they felt bound by the U.S. Supreme Court’s opinion to recognize a special Indian net-fishery for steelhead trout, the justices held that “45 percent of the harvestable natural run [of steelhead trout] was an equitable determination by the trial court in the exercise of its discretion. We cannot say from this record that such a determination was a manifest abuse of discretion” (685–686). Nevertheless, Justice Hunter’s majority opinion spent twelve pages endorsing the state’s interpretation of the Puget Sound treaties. Those treaties, he argued, guaranteed to treaty fishers only that they would be able to fish under the same circumstances as nontreaty fishers. This meant that state police powers could be exercised over off-reservation Indian fishing. Any alternative reading of the treaties would violate the Fourteenth Amendment’s equal protection clause.22 It was telling that the Court’s opinion almost entirely ignored Boldt’s decision, the interpretation that he gave of treaty rights as reserved not granted, and the substantial line of U.S. Supreme Court jurisprudence that had led Boldt to so interpret the treaties (see note nos. 4 and 5). This omission was in spite of the obvious relevance of the decision both to the specific legal question at hand and to the majority’s elaboration of the meaning of the Puget Sound treaties. Boldt’s decision (and the subsequent court opinions that affirmed it) was recognized as an abstract legal position—as an obviously wrong interpretation of the “unambiguous” and “clear” meaning of the treaties—but not as a precedent that was, according to the “supremacy clause” of the U.S. Constitution, controlling on Washington State.

84   “This Is Not Equal Rights” Following the state Supreme Court’s opinion, the attorney general’s office encouraged Boldt decision opponents to pursue their cause through the state courts, with the hope that eventually the U.S. Supreme Court would intervene and give a full review of Boldt’s holding. Two commercial fishing organizations took Gorton’s advice, filing suit against the Department of Fisheries to enjoin it from issuing new guidelines that would recognize treaty rights. By 1977, their suits had reached the Washington State Supreme Court. Gorton was thus placed in the awkward position of defending the Department of Fisheries in court against a reading of the Puget Sound treaties that he had urged—a reading through which he had been steadily building his reputation as a defender of equal rights.23 department of fisheries Like the Department of Game, the Department of Fisheries had traditionally opposed off-reservation treaty fishing. As Director Milo Moore noted in 1946, “[I cannot] emphasize too strongly the attitude of this department against the [existence] of any exclusive right of fishery for any certain class of citizens [i.e., treaty fishers]” (Kenneth McLeod Papers: Box 1, Folder 6). However, by late 1974, and unlike their colleagues at the Department of Game and the attorney general’s office, officials at Fisheries were making efforts to implement Boldt’s decision. The department issued new fishing regulations in 1974 and 1975 that recognized two classes within the state’s commercial fishery (nontreaty and treaty) and allocated the fish resource to each according to the fifty–fifty terms outlined in U.S. v. Washington. Due in part to these new regulations, the total treaty catch of salmon had increased from about 5 percent in 1973 to about 27 percent by 1978 (cited in Cohen 1986: 155). Fisheries’ Director Don Moos even went on record in 1976 as recognizing that much of the current crisis in the Puget Sound fisheries had been caused by the state’s poor management, not, as Boldt opponents asserted, by unregulated off-reservation treaty fishing (USSCR 1981: 74). Indeed, in spite of the dwindling annual salmon harvests that the state had been experiencing since 1945, by 1974 the Department of Fisheries had almost quadrupled the number of licenses that it granted for purse seine vessels (to 437), nearly tripled the number of licenses authorizing gillnet vessels (to 2,805), and quadrupled the number of licenses for reefnet fishing (to 80). Further, a University of Washington study that was commissioned by Governor Albert Rosellini in 1963, and which documented the significant overharvest of the fish resource and the state’s role in facilitating the overharvest, had been ignored both by Fisheries and by the state legislature. Fisheries, with the approval of the state legislature, had pursued a management scheme that increased the total number of commercial vessels almost 400 percent

“This Is Not Equal Rights”   85

between the years 1945 and 1974, even as the total number of harvested salmon fell in that time by nearly 4 million fish annually (Washington State Department of Fisheries 1951-1991; Boxberger 1989: 136–147). Most commercial fishers were unwilling to accept Moos’s assertion that the Boldt decision was not the source of their material difficulties. George Johansen, a commercial fisher and representative for the Seattle Association for Fisheries, expressed the popular sentiment: “We cannot ignore the fact that the Boldt ruling is the root cause of the trouble we are facing in the fisheries today. Fishermen look at the [Boldt decision] as both unfair and discriminatory, and it is difficult for people to control their emotions and their actions when they see their livelihood go down the drain” (Kenneth McLeod Papers: Box 3, Folder 30). Indeed, two professional associations, the Puget Sound Gillnetters Association and the Washington State Commercial Passenger Fishing Vessel Association, were convinced that treaty rights were to blame for their members’ flagging economic fortunes. Encouraged by high-ranking state officials, the associations filed suit in state court against the Department of Fisheries. The suits sought to enjoin Fisheries from recognizing, and allocating fish to, two user groups (nontreaty and treaty). Instead, the suits asked that Fisheries be required to manage the resource without distinguishing between user groups. The state Supreme Court’s opinion in the first of these suits, Puget Sound Gillnetters Association v. Donald Moos (88 Wn.2d 677), was released in June 1977. Writing for the majority in a 9–0 opinion, Justice Hugh Rosellini’s opinion contained three parts. First, he held that it was beyond the authority granted to the Department of Fisheries in the Revised Washington Code to regulate commercial fishing for “allocation” purposes. Instead, Rosellini held that Fisheries could regulate the industry only for “conservation” purposes.24 Because the implementation of the Boldt rule would require that Fisheries “affirmatively” allocate the resource according to the fifty–fifty framework, and because Fisheries lacked such authority, the Department was unable to implement U.S. v. Washington without violating the state constitution. The second portion of Rosellini’s opinion gained the approval of only seven of the nine justices. In it he argued that, even if Fisheries had been granted affirmative authority to allocate fish among user groups, it would not actually be able to use this authority to implement Boldt’s ruling without violating the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. Rosellini claimed that, in attempting to so implement Boldt’s decision, Fisheries would be required to make an invidious, race-based, and thus unconstitutional distinction between members of the same class. Accordingly, Rosellini held that the equal-opportunity

86   “This Is Not Equal Rights” interpretation of the Puget Sound treaties, which had appeared as dicta during the Washington State Supreme Court’s previous term, was the only possible construal that would respect the principle of equal rights enshrined in the U.S. Constitution. Thus, the third part of the majority’s opinion concluded that the implementation of the Boldt decision would require Fisheries to violate both the Washington State constitution and the U.S. Constitution. Because no state official could be required to violate their state’s constitution (let alone the U.S. Constitution) in the name of implementing a federal court opinion, it followed that Fisheries lacked the authority to implement the terms of U.S. v. Washington. Further, Rosellini suggested that because the enabling legislation that created the Department of Game was similar to that which created the Department of Fisheries, any attempts on the part of Game to recognize off-reservation treaty fishing would be similarly invalid (in spite of the court’s decision from the previous year explicitly approving of Game’s allocation plan for steelhead trout).25 Having had no success in getting the Boldt decision overturned in federal court, the countermobilization movement could point to victories before the state’s highest court. The movement was thrilled with its success, feeling not only that its efforts were starting to produce real results but also that their special-rights talk was starting to influence the actions of state officials. Some officials suggested as much. Justice Hugh Rosellini, for example, acknowledged that he had been “reading with pleasure ‘Indian Treaties, American Nightmare’ ” (a slim volume produced by the countermobilization movement) as he worked on the majority opinions (Kenneth McLeod Papers: Box 1, Folder 3). So too was the attorney general’s office encouraged, despite having lost its cases before the state’s Supreme Court. To be sure, Gorton was somber in public: “The state’s position before the state supreme court was that we did have the right to enforce the Boldt decision. We lost” (Keller 1988: 108). Gorton convinced few observers of the sincerity of his remorse. No matter that he quickly appealed Rosellini’s opinions, for the granting of those appeals would only serve Gorton’s original goal: to allow the state to re-argue the interpretation of the Puget Sound treaties that grounded Boldt’s opinion. Leveraging the Washington State Supreme Court’s rulings, which brought the agencies of state government into direct conflict with the orders of national courts, Gorton succeeded in initiating a new round of appeals of U.S. v. Washington in federal court. One of the issues that the new round of appeals would address was the constitutionality of Judge Boldt’s response to the state Supreme Court decisions. Following those decisions, the embattled judge assumed control

“This Is Not Equal Rights”   87

over Washington State’s fisheries. In July 1977 Boldt appointed a biologist to assist him and deployed the resources of the national government (including the Coast Guard and the National Marine Fisheries Service) to implement his original decision (Boxberger 1989: 155–156). Members of the countermobilization movement were infuriated by Boldt’s actions. The sense of persecution that animated their resentment now spawned full-blown conspiracy theories. In an example of what Richard Hofstadter famously called the “paranoid style in American politics” (Hofstadter 1965), some members of the Boldt countermobilization began to produce literature, such as 220, Million Custers [sic] by Bill Lowman, which hypothesized that a massive conspiracy involving the national government, lawyers, the media, and Indian tribes was afoot. Lowman did not see his argument as anti-Indian, though. Indeed, he claimed that the tribes were less blameworthy than the other members of the conspiracy, because the national government and the lawyers (and perhaps the media) were duping tribal leaders into pursuing their treaty rights, with an endgame of reclaiming all of the country’s natural resources (Lowman 1978). Although many sympathized with Lowman’s argument, it would be a mistake to make too much of Hofstadter’s image of the paranoid style. There is little evidence to suggest that the majority, or even a sizable minority, of those who actively opposed the Boldt decision shared this conspiratorial worldview. To be sure, the sense of persecution that underlies resentment can occasionally lead to outright paranoia, as in the case of 220, Million Custers. More often, however, embattlement is expressed as resent­ ment over how a perceived enemy is subverting core national values, val­ues that are commonly thought to symbolize and preserve a culture’s way of life (Rogin 1987). Defenses of these core national values—acts of counter­ subversion in the name of equal rights, for example—provide a sense of purpose to many Americans who perceive their interests to be forgotten, lost within the impersonal and undemocratic processes of late capitalism (see also Connolly 1991). In spite of Boldt’s usurpation of state authority, the equal rights/special rights distinction remained the predominant conceptual framework with which opponents of the Boldt decision made sense of the fishing-rights conflict. Unfortunately for opponents, the second time in federal court was no more productive than the first. In April 1978 the Ninth Circuit Court of Appeals renewed its earlier affirmation of U.S. v. Washington, approved of Boldt’s assumption of authority over Washington State’s fisheries, and spent a fair amount of text chastising the state for refusing to implement the order (Puget Sound Gillnetters Association v. United States District Court). Undeterred, the state appealed the Court of Appeals decision to the U.S.

88   “This Is Not Equal Rights” Supreme Court, which granted certiorari and heard oral arguments in late February 1979. The Supreme Court issued its opinion, Washington et al. v. Washington State Commercial Passenger Fishing Vessel Association et al. (consolidated with Puget Sound Gillnetters Association), in July of that year (443 U.S. 658). Justice Stevens, writing for a 6–3 majority, rejected the state’s equal-opportunity interpretation of the Puget Sound treaties, upholding the substance of Boldt’s opinion. The majority did change the terms of Boldt’s decision slightly, clarifying that the 50 percent allocation to treaty fishers at usual and accustomed grounds was a maximum, not a minimum, catch.26 Moreover, Stevens approved of Boldt’s assumption of authority of the Washington State fisheries, citing similar district court actions in cases involving school desegregation and prisoners’ rights. Relying on the supremacy clause of the U.S. Constitution, the majority rejected Washington State’s argument that the Department of Game and Department of Fisheries lacked the statutory and constitutional authority to enforce a federal court opinion. Finally, the majority opinion held that the district court’s management of the fisheries would end as soon as the agencies of the state displayed a good-faith willingness to implement the terms of the Boldt decision. The Supreme Court’s affirmation of the Boldt decision was a devastating blow to the countermobilization movement’s ability to marshal the support of state officials. Ironically, the Court’s opinion was devastating not so much because it rebuked the state’s obstructionist tactics but rather because it held out the promise of restored state authority. Indeed, state officials seized upon Stevens’s suggestion that national control of the state’s fisheries would end as soon as implementation of the Boldt decision began. The only thing worse than Boldt’s original decision, many felt, was his subsequent claim of authority over a historically state-managed resource. The promise of regaining authority of the fisheries, if at the expense of implementing a disagreeable court opinion, was enough to lead many recalcitrant state officials to enforce U.S. v. Washington. Just as institutional pressures had worked to deradicalize the responses of national officials to the Boldt decision, so too did a new set of pressures work to encourage state officials to end their opposition to the decision. The state’s expansion of conflict into the judicial arena had thus created a new set of incentives that ultimately led it to abandon its previously solid support of the counter­ mobilization’s resistance. The attorney general’s office, for example, began to admit that the Boldt decision was, in fact, now the law of the land. Gorton had already conceded as much in his brief before the Court.27 Gorton’s position was con-

“This Is Not Equal Rights”   89

sistent with his earlier admission that the authority for interpreting treaties rested ultimately with the national government (USCCR 1977: 20). Accordingly, Gorton asked the Washington State Supreme Court to bring its decisions into line with those of the national courts. On reconsideration, the justices now held that Game and Fisheries did, in fact, have the authority to implement the Boldt decision. With this decision, and with the promulgation of new regulations by each department that recognized multiple user groups (treaty and nontreaty fishers), the state regained control of its fisheries. A former director of Fisheries retrospectively captured the combination of resignation and opportunity felt by state officials following the second round of defeats in federal court: “We had to be hit between the eyes with a two by four, the 1978 9th Circuit Court of Appeals [and the Supreme Court] decisions did this” (cited in Brown 1994: 4).28 Public support for overturning U.S. v. Washington also flagged in the aftermath of the Supreme Court’s affirmation. As the study conducted by Gaasholt and Cohen in the summer of 1979 (discussed earlier) suggests, area support for the Boldt decision reached an all-time high following the Supreme Court’s decision. Indeed, recall that they found 76.6 percent agreement with the statement that all should abide by the Boldt decision now that it had survived the court’s scrutiny. Popular opposition to treaty fishing rights had not disappeared by the early 1980s, but it had become less visible. Indeed, the Supreme Court’s opinion did little to alter the still widely and deeply held conviction that the Boldt decision was unfair to nontreaty fishers and that it dangerously elevated the special rights of area tribes over the equal rights of all other citizens. Although many were now resigned to it, there remained relatively little active support for the decision. Remember, for example, Gaasholt and Cohen found that more than 60 percent of those surveyed continued to feel that the Boldt decision was unfair. By the early 1980s, the countermobilization movement was less able to convert this core of opposition into a viable program of action. Part of this surely had to do with the state’s new willingness to implement the terms of the Boldt decision. The state legislature’s enactment of harsh penalties for illegal fishing (including the loss of fishing licenses) in 1979, combined with state-court enforcement of these penalties, made the civil disobedience that earlier had been so effective increasingly unattractive, both to participants and observers (Cohen 1986: 154–155). In addition, “recognizing that the continuing court battles were not producing any fish,” the Department of Fisheries actively sought an end to the fish wars (Brown 1994: 4). Accordingly, in 1983 it entered into a “formal era of co-management”

90   “This Is Not Equal Rights” with the NWIFC (a management body representing nineteen of the Boldt-litigation tribes) (Steinman 2005). Under this arrangement, the state and the tribes together calculate and allocate each year’s salmon harvest. Opponents at the grassroots level stood fast against the Boldt decision. Increasingly, though, many of them understood the fishing-rights conflict to be just one of a variety of treaty-rights conflicts emerging throughout the nation. Although the anti-treaty-rights movement had since its inception implicitly recognized the national scope and impact of the Indian insurgency of the 1960s and 1970s, the Pacific Northwest fish wars were the dominant events that its members associated with that insurgency and to which they had dedicated the vast majority of their efforts. Either out of necessity or conscious choice (or perhaps both) the movement expanded its scope of attention beyond the Pacific Northwest and began to coordinate opposition to treaty rights throughout the western, midwestern, and northeastern United States.29 Although the anti-treaty-rights movement has in the intervening years expanded opposition to treaty-rights claims nationwide, in Washington conflicts between state officials and tribes have been mostly defused (Steinman 2005). Comanagement of the salmon resource between the state and tribes, for example, has become entrenched. The Puget Sound Salmon Management Plan, updated each year, expresses the commitment to comanagement. Indeed this comanagement was central to the full implementation of Boldt’s fifty–fifty allocation of fish at traditional off-reservation grounds. Table 4.1 displays the tribal and nontribal commercial salmon catch over a forty-year period, beginning in 1951. However, interpretation of this table requires care. Although the table shows that Boldt’s fifty–fifty standard was achieved by 1991, the catch figures, especially the trend that they seem to indicate toward increasing salmon stock over time, are misleading. Indeed, the salmon resource in Washington State has been in steady decline for the better part of a century, and this decline was well established by the time of Boldt’s ruling. By the early 1970s a long-term trend of declining salmon stock was evident. As noted earlier, in the years between 1913 and 1950 (1913 was the first year for which Washington State collected catch data) the total commercial salmon catch averaged almost 67 million fish per decade (Boxberger 1989: 146). As Table 4.1 displays, the total salmon catch for the years 1951–1980 was significantly decreased, with the 1960s (the de­ cade before the Boldt decision) a particularly bleak period. This longterm view of the Washington State salmon industry qualifies the apparent rebound of salmon stock in the 1980s. Although the 1980s was a strong

“This Is Not Equal Rights”   91 table 4.1.  Washington State Commercial Salmon Catch, 1951–1991

1951–1960

Tribal Catch 3,718,678 Nontribal Catch 54,832,964 Total Catch 58,551,642

1961–1970

1971–1980

3,579,656 40,430,139 44,009,795

10,920,750 44,718,575 55,639,325

1981–1991 37,241,541 36,065,238 73,306,779

source: Washington State Department of Fisheries

decade, during which the terms of the Boldt decision were finally realized, it marked only a temporary halt in the resource’s downward trend. By the middle of the 1990s, in fact, the salmon resource had resumed its steep decline. As a group of prominent scholars noted in 1996: “The 1990’s have been poor for all fishing groups . . . Indian fishers [for example] caught only half as much as those in the early 1940s, even though their proportional allocation increased from 5% to 50%. [There] has been a major reduction in economic opportunity for [all] fishers” (National Research Council 1996: 257, 274). And so, the salmon resource continues to dwindle. Although both comanagers—the Washington Department of Fish and Wildlife and the NWIFC—are now dedicated to restoring and maintaining the habitats vital for salmon life, more than a century of neglect has left its mark. Although resource-enhancement efforts now focus on more than just the dubious science of “fish culture” (the artificial propagation of fish in hatcheries), faith in it remains strong enough to divert resources away from more promising solutions (Taylor 1999).30 Accordingly, the difficulties of the commercial fishers who made up the countermobilization movement persist. Although Washington State has continued its gear buyback program until the present day, the continuing decline in salmon landings mean that there are simply fewer fish to go around. Just as the claims of commercial fishers following the Boldt decision that it had become much more difficult over the previous years to maintain a livelihood in the fishing industry were accurate, so too are their similar claims today. However, their attribution of this condition to the Boldt decision was, and is, suspect. Given the increasing number of fishers licensed by Washington State, the increase in the state’s sport fishery, and the decreasing number of salmon landings in the thirty years prior to the Boldt decision, it is clear that individual commercial fishers were suffering well before U.S. v. Washington.31 As the President’s Task Force observed in 1978, “It is interesting to note that among the complaints of financial hardship [allegedly brought on by the Boldt decision] we find no documentation

92   “This Is Not Equal Rights” supporting the claim. In fact, the actual financial impact might be quite small” (cited in USCCR 1978: 685). Rather than locating the causes in shifting socioeconomic and demographic trends (facilitated by political will), however, commercial fishers blamed treaty fishers for endangering their material interests. Special-rights talk was at the center of this placement of blame. Encouraged by the associations and organizations to which they belonged, by vocal members of the sport fishing community, and even by state and national officials to view the failing Washington State fishery as a product of the handiwork of militant Indians and activist federal judges, commercial fishers overlooked the ways in which the state had mismanaged the fish resource for 100 years and instead proclaimed that special rights were at the root of their unstable economic position. Implementation of the Boldt decision has clearly made it more difficult for non-Indian commercial fishers to make a living out of the Washington State fishery (Taylor 1999: 243–244), but that decision is not the root cause of their troubles. If the Boldt decision had never occurred, the state’s near-sighted, even incompetent, stewardship would still have placed the fishery in peril (National Research Council 1996). Opponents’ special-rights talk, however, protects that mismanagement from critical scrutiny. Indeed, castigating Indian treaty rights exonerates state officials from responsibility for the damage that they have done to the state’s fish resource.

V. Conclusion This chapter explored the impacts of the special-rights talk that propelled opposition to the Boldt decision. I have argued that opponents’ specialrights talk (1) hardened opposition to U.S. v. Washington, transforming opponents’ defenses of personal interest into defenses of American democracy; (2) expanded the scope of conflict by setting the terms of the popular understanding of the fishing-rights conflict and appealing to sympathetic national and state public officials; and (3) attributed blame for the problems of the Washington State fishery to Indian treaty rights rather to more harmful economic and political influences. A final consequence of the Puget Sound fish wars is important for my overall purposes. Although the typical account of the Boldt decision emphasizes the long and bitter process of implementation, it concludes sounding a note of progressive triumph (Bruun 1982; Cohen 1986). After all, the decision was eventually implemented, and it has had a major impact on one of Washington State’s most notable industries, equalizing its output in a more historically accurate and fair manner. If ever there were an example of the redistributive potential of law and rights, this would be it.

“This Is Not Equal Rights”   93

However, there is another equally potent lesson to be drawn from the politics surrounding the Boldt decision: that politics produced a zealous social movement that appropriated one of the core legitimating symbols of American democracy—equal rights—in order to oppose the legal mobilizations not only of Puget Sound–area tribes, but of tribal nations throughout the United States. Members of this movement were sufficiently encouraged by their considerable successes in Washington State to pursue similar activities nationally. The editorial page of Outdoor Life (a wildlife magazine that took up the fight against treaty rights with particular zeal) announced the movement’s national coming-out. A 1984 editorial entitled “The Threatening Indian Problem” illustrates the way that the movement had by the early 1980s pulled together the general themes of preferential treatment of minority populations, the majority’s forgotten interests, white guilt, and affronts to cherished American values. Funneling these themes through the equal rights/special rights distinction and applying them specifically to treatyrights mobilizations, Outdoor Life proselytized, We have been warned by friends to lay off the Indian problem. They have cautioned . . . that “The Great American Guilty Conscience,” actively kept alive by the Indians, has stripped the American people of their ability to deal logically with the rampant Indian excesses that are becoming more flagrant every day. Make no mistake. The tribes are on the move. They aim to lay claim to as much land—your land—as they can get. Sixty million outdoor sportspeople, countless na­ture lovers, and the American people in general can go to hell. At this time, the problems are mostly in the Northern and Western states, but no state is safe. [Since] the Boldt decision in Washington State, the problem has exploded everywhere. It is time to end our treaties with the Indians. Indians should just be Amer­ icans like everyone else, not super Americans with special privileges. It’s up to you. Now is the time to unite. Otherwise, we might yet give this country back to the Indians. (Outdoor Life 1984: 2; emphasis preserved)

With such efforts to set public understanding of treaty rights, the opposition to the Boldt decision had by the early 1980s reached out beyond its core participants in the Pacific Northwest and transformed itself into a national movement (see Chapter 3). Joseph De La Cruz, in 1984 the pres­ ident of the National Congress of American Indians, summarized the countermobilization’s achievements: “During the last three and one-half years . . . the small, organized opposition we faced in the 1970s has become better organized and well-financed.” He continued, “They have be­ gun to successfully infect the views and opinions of larger numbers of middle-American citizens—taking advantage of the Reagan ‘New Right’ movement . . . with sentiments that Indians and Native peoples should be

94   “This Is Not Equal Rights” ‘equal to all other Americans,’ and that we should not enjoy what they call ‘special rights’ or the benefits of treaties signed by our grandfathers” (De La Cruz 1984: 2). The point is clear. If the politics surrounding the U.S. v. Washington litigation is notable for its eventually redistributive impulses, it is equally notable for producing a commonly underestimated counterpart: a national movement of countersubversives that is dedicated to opposing redistributive social change in the name of equality—dedicated, that is, to defending the nation from egalitarian politics by mobilizing a hallmark of American democracy, equal rights under the law. The next chapter explores this countersubversive influence as it surfaces in opposition to tribal casinos.

chapter 

We Don’t Believe in the Promised Land: Exploring the Anti-Tribal-Casino Movement

5

I have a real problem with . . . this country being set up where there are different rights for different groups— different privileges, different immunities. Whatever happened to one nation under God, indivisible? —Robert Congdon, Selectmen, Preston, Connecticut Indian tribes get a special pass from the federal government to run a high-margin monopoly simply because they are Indian tribes, which is to say, simply because of their ethnicity. This is the worst, least fair form of affirmative action. [We should] support the idea of a meritocracy, a country where hard work not heredity is the key to success and everyone is equal before the law. [We] should despise Indian gambling on principle. —Tucker Carlson, host of Tucker

I. Introduction Donald Trump is not accustomed to being fired. Recently, of course, the casino magnate is better known for exactly the opposite. Trump’s emphatic rejection of aspiring capitalists, a ritual that culminates each episode of the television program The Apprentice, has invigorated a reputation that was sullied by financial woes and almost two decades’ worth of battering by, and mockery in, the popular press. Quite a shock, then, it must have been for Trump when he was himself dismissed as a potential business partner by the Eastern Pequot Tribal Nation (EPTN) in 2002. Trump had paid $10 million to fund the tribe’s application for federal recognition—a recognition that would, in part, allow the tribe to enter into negotiations with Connecticut to establish a casino. Trump was to have been a managing partner of the tribe’s hoped-for North Stonington–area casino. The

96   We Don’t Believe in the Promised Land “Trump Promised Land Casino” was not to be, however, for after the EPTN gained federal recognition, the tribe delivered to Trump a message that he was uniquely well suited to understand: “You’re fired!” It was not only the Eastern Pequots who lacked faith in Trump’s promised land. In fact, a whole segment of nonbelievers was located throughout Connecticut—a coalition made up of both citizens and high-ranking state officials. Not that these anti-casino forces were especially upset by Trump’s attempts to gain a foothold in the southeast Connecticut casino landscape; for they opposed, and continue to oppose, all attempts to establish additional casinos, regardless of whether initiated by local tribes, Las Vegas entrepreneurs like Steve Wynn, or some combination of each (as was the case here). Although Connecticut tribal nations (the Mashantucket Pequot Tribal Nation [MPTN] and the Mohegan Tribal Nation) operate two of the most financially successful and well-regarded casinos in the United States, casino opponents remain unconvinced of the benefits of gaming. They are, instead, resentful of the way in which the existing casinos have already transformed southeastern Connecticut, and they recoil at the thought of the expansion of gambling throughout the state. Indeed, such an expansion, opponents argue, would drive the last stake into the heart of Connecticut’s predominantly rural way of life. This chapter explores the character and the impact of this opposition to gaming, both in Connecticut and throughout the nation. My inquiry will proceed along four related paths, each of which is by now familiar. Each, in fact, unites this chapter with already established themes. This chapter also updates those themes, locating them within the most salient of the contemporary conflicts over treaty rights: controversies over tribal gaming and, inevitably, the federal-recognition process that is a precursor to much of that gaming. I will argue, first, that casino opponents’ warnings of a disappearing way of life express resentment over their increasingly precarious economic and political situations. Second, in portraying tribal gaming as irresponsi­ ble, selfish, and destructive, opponents depict the treaty rights that en­ able tribal gaming as special rights that foster illegitimate, un-American activities. Like anti-treaty-rights activists throughout the nation, casino op­po­­nents in Connecticut employ special-rights talk to depict treaty rights as threats both to their own interests and to the body politic itself. Counter­ subversive at its core, Connecticut’s anti-tribal-casino movement zeal­ ously defends an America allegedly under attack from irresponsible Indian activism. Third, I will argue that opponents’ special-rights talk expands the scope of conflict, appealing especially to the state’s highest-ranking elected officials. These officials, in fact, have been staunch supporters of the local

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anti-tribal-casino movement, but their support has been of uncertain worth to movement activists. The prominence of these officials means that their attention makes the casino issue much more salient and newsworthy than it would be otherwise. However, that same prominence means that the way officials frame the issue crowds out alternative understandings, rendering moot promising policy initiatives. That frame emphasizes the evils of tribal casinos and the bureaucratic process responsible for them, rather than the economic and political causes of the resentment that propels the anti-tribal-casino movement. Indeed, fourth, I will argue that their special-rights talk leads casino opponents to exaggerate the negative impacts of tribal gaming and to slight its positive impacts, which dispassionate analyses consistently highlight. To be sure, the economic and political insecurity that opponents feel is real. Moreover, anti-casino activists are correct when they note that Connecticut’s two existing tribal casinos have significant impacts on the social services and local infrastructures of neighboring towns. However, their antipathy toward treaty rights leads opponents to dismiss policy initiatives that would potentially mitigate those impacts and, instead, to imagine a fundamental contradiction between their interests and those of their Indian neighbors. In so doing, their resentment displaces blame for the uncertainty that pervades their lives away from the injurious processes of global capitalism and the increasing unresponsiveness of Connecticut state government, fixing it instead on tribal activism. In diagnosing treaty rights as the source of decline and insecurity, opponents tend to ignore the damaging consequences of the pronounced shift in Connecticut’s economy away from a manufacturing base and toward a service base. At the same time, they miss how the decline of Connecticut’s once-vaunted traditions of local control and machine politics has created a state government that is now less representative of citizen interests and less responsive to citizen needs than it was once. Shifts in the economy, on one hand, have damaged the interests and livelihoods of many of the state’s residents, including prominently those who live in the southeastern portion (the epicenter of anti-casino activism). Shifts in the nature of Connecticut’s politics, on the other hand, have made it more difficult for these same citizens to defend their interests and their livelihoods through political mobilization. Accordingly, the anti-tribal-casino movement’s special-rights talk is at once an attack on the treaty rights that enable tribal casinos and an attempt to allay the resentment that, paradoxically, has little to do with those casinos. The placement and displacement of blame is thus an emergent feature of Connecticut’s anti-tribal-casino movement. Casting treaty rights, and those who claim them, outside of their normative universe,

98   We Don’t Believe in the Promised Land casino opponents insulate from scrutiny the economic and political trends responsible for their resentment in the first place.

II. The (Anti) Gambling Nation Attending to the ways in which anti-casino activists in Connecticut oppose the expansion of tribal gaming links us to the larger themes of this book. The Connecticut anti-tribal-casino movement is linked, first, to nationwide condemnations of tribal gaming and, second, to the anti-treaty-rights movement that has been my focus throughout. Connecticut’s anti-tribalcasino movement expresses also a third, and by now familiar, connection: It participates in the culture wars that propel contemporary American politics. Let us begin first with the anti-tribal-casino movement. the anti-tribal-casino movement Opposition to tribal casinos has spiked in recent years. This opposition is unsurprising. It has followed in step with the burgeoning of the tribalgaming movement itself. The tribal-gaming movement of the last twenty years has received extensive media coverage, even drawing the muckraking attention of Time magazine, which in 2002 devoted significant parts of two issues to it. As media pundits frequently note, tribal gaming has become big business in twenty-first-century America. Less often noted is how much of that success is due to the legal fact that tribes have treaty rights to sovereign governance—rights that immunize them from most local and state gambling regulations (Light & Rand 2005). A brief review of tribal gaming makes this point clear. It also makes clear how opposition to tribal gaming crystallizes around condemnations of those same rights. In the late 1970s, a number of tribal nations in California and Florida opened bingo halls and card clubs on reservation land. They set the betting limits and prize purses higher than existing state regulations allowed, claiming that those regulations did not apply to them because their treaty rights immunized their on-reservation activities from state and local oversight. Tribal revenue spiraled as word spread to surrounding areas of the high-stakes gambling available on the reservations. In the case of the Cabazon and Morongo bands of Indians in California, whose members reside on barren reservation lands that have few natural resources, the gambling enterprises quickly became the primary means of employment and funding for tribal government (480 U.S. 202: 219). When first Florida and then California attempted to apply their gambling statutes against Indian casinos, the Seminole Tribal Nation and the Cabazon and Morongo bands respectively sued the states in federal court.

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The first of this litigation to reach court, Seminole Tribe of Florida v. Butter­ worth, confirmed the tribe’s immunity from Florida’s bingo regulations. The Fifth Circuit Court of Appeals affirmed the District Court’s opinion in 1981 (658 F.2d 310), and a year later the U.S. Supreme Court refused to hear the case (455 U.S. 1020), allowing the Court of Appeals’ opinion to stand. The courts held in these cases that tribal sovereignty prevented Florida from regulating an activity on the reservation (gambling) that it allowed off-reservation (though in highly regulated forms). In the wake of these opinions, more tribes throughout the nation (including the Mashantucket Pequot in Connecticut) invested in modern bingo and card facilities. Luckily for them, the next set of cases to reach federal court, Cabazon Band of Mission Indians v. California (1987), confirmed the line of jurisprudence established in Seminole Tribe. This time the U.S. Supreme Court did intervene in the tribal gaming question, issuing a 6–3 opinion that invalidated California’s efforts to regulate tribal gaming under its existing statutes (480 U.S. 202). Writing for the majority, Justice White agreed with the Seminole Tribe court, holding that California lacked regulatory authority to prohibit the games because its gambling regulations were primarily civil and not criminal. This distinction between civil and criminal regulation was curious. Rather than the uncomplicated affirmation of treaty rights that it may have seemed at first glance, White instead suggested that California would have been able to regulate tribal gaming if it had previously criminalized the games (bingo and card games) played on the reservation. However, because California allowed those games to be played legally throughout the state (if in a substantially regulated form), its laws were more civil than criminal and it could not, therefore, deny those games to tribes or regulate the tribal versions. Accordingly, the majority opinion amounted to this compromise: if games are illegal under existing state law, then tribes do not have the right to conduct them on their reservations. If, however, existing state law allows the games to be played in any form (e.g., the charitable “Las Vegas” nights popular in many states, including Connecticut), then the tribes can conduct them on their reservations free of state regulation. This compromise informed congressional action on tribal gaming. Although the Department of the Interior had already announced that it understood tribal gaming to be consistent with the reigning national commitment to Indian self-determination (see Chapter 2) and had thus given its approval to tribal bingo and card clubs, Congress had so far refused to address the issue. In the wake of unfavorable court decisions, however, state officials (who feared the social consequences of what they considered to be unregulated gambling) pressured Congress to act. Congress re­ sponded with the 1988 Indian Gaming Regulatory Act (IGRA).

100   We Don’t Believe in the Promised Land IGRA followed the courts’ lead; it legalized for tribal nations those forms of gaming that were already permitted under state constitutions. The legislation, though, went even further in its recognition of state policepower interests. Out of deference to the quasi-sovereign status of federally recognized tribes, IGRA provided that reservation gaming was exempt from local and state regulation. However, it also provided that tribes that wished to operate a gaming enterprise must enter into compacts with the various states within whose borders they were located. These compacts would recognize a three-part gaming classification (with Class III games—slots, poker, blackjack, and roulette—being the most profitable) and would require the parties to agree on exactly which sorts of games would be offered by tribes (thereby giving the state some regulatory authority after all). Additionally, the compacts would require tribal nations to pledge to the state treasury a certain percentage of the profits generated by their gaming enterprises. The compromise approach to tribal gaming, most in evidence by the compact requirement, thus sought to balance tribal interests in sovereign governance with state police-power interests (25 U.S.C. §§ 2701; see also Mason 2000 generally and Cramer 2005: 88–93). Although the congressional compromise satisfied neither states nor tribes, it did offer a relatively clear and comprehensive framework for the rapid expansion of tribal gaming throughout the nation. In 1997, 266 tribal-gaming facilities in 27 states (with some tribes operating more than one facility) generated almost $7.5 billion in revenue. In 2005 (the latest date for which the National Indian Gaming Commission, a nonpartisan regulatory agency created by IGRA, has available data), a total of 199 tribal nations in 28 states operated 391 gaming facilities, generating $22.6 billion in revenue, doubling the approximately $11 billion generated in 2005 by Nevada’s casinos (National Indian Gaming Commission 2006; Nevada Gaming Control Board 2006). Although the tribal gaming movement as a whole has been very successful, its bounty has not spread to all, or even most, reservation Indians in the United States. After all, only 199 of the 562 federally recognized tribal nations (less than one-third) operate gaming facilities, and within this group of 199, fortunes vary greatly. For example, in 2005 only 60 of the 391 total operations (15.4 percent) accounted for almost $16 billion of that year’s $22.6 billion in total revenue (70.8 percent). Conversely, the bottom 155 operations (39.6 percent of the total) accounted for only $495 million (2.2 percent) of the industry’s gross revenue (National Indian Gaming Commission 2006). Typically those tribes that are located near major metropolitan centers operate the most successful gaming facilities, with southeastern Connecticut (within driving distance from Boston,

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New York, and Providence) particularly fertile ground. The vast majority of tribes, however, are located in rural areas, where sustaining a clientele is far more difficult. The stereotype of all Indians becoming wealthy from gambling (a stereotype amplified by such television shows as The Simpsons and South Park) is overwrought.1 However, gaming has been an unprecedented economic tool for many tribes, even for those that have not enjoyed spectacular success. Studies of the impacts of gaming on tribes confirm its broad importance. For example, in Minnesota (home to eleven gaming tribes located primarily in rural areas) a 1997 study found that tribal casinos directly employed 11,465 people (27 percent of whom were Indian). More than 30 percent of these employees were either unemployed or on some form of public assistance before they began work at the casinos (The Hospitality Group of Marquette Advisors 1997). California’s fifty-four gaming tribes have also made significant contributions to local economies. In 1997, forty-two of these gaming facilities directly employed almost 15,000 people, generating an estimated $1.4 billion in revenue. The same 1998 report estimates that tribal gaming reduced Aid to Families with Dependent Children payments by $50 million, “including reductions of $21 million to Tribe members” (Analysis Group/Economic, Inc. 1998). Studies reveal more of the same in Washington State. Analyses from 1998 (conducted by Tiller and Chase) and from 2002 (conducted by King and Kanzler) show that Washington State tribes (twenty-two of whom currently operate gaming facilities) contributed over $1 billion annually to the state’s economy and employed almost 15,000 people. King and Kanzler found that, between 1990 and 2000, tribal gaming was responsible for elevating employment rates and median household income rates and lowering poverty rates on reservations. These changes, they found, were more pronounced in each direction than were similar changes outside of reservation areas in the relevant counties (King & Kanzler 2002: 7–9). Similar studies of the impacts of tribal gaming in Michigan, Connecticut, Wisconsin, New York, and Arizona confirm the economic importance of gaming for tribal members (National Indian Gaming Association 2006b, generally). As these studies also suggest, though, tribal gaming has had a positive economic impact for non-Indians as well. For example, the National Indian Gaming Association found that non-Indians occupied 75 percent of the 300,000 total jobs created by tribal casinos (National Indian Gaming Association 2006a). A 1999 study, also commissioned by the National Indian Gaming Association, found that “personal income in the U.S. was boosted by more than $8.7 billion in 1998 because of Indian casino gaming, federal tax receipts rose by over $3.6 billion in 1998 because of Indian

102   We Don’t Believe in the Promised Land casino gaming, and Indian gaming casinos generated more than an additional $1 billion in fees and related revenue sharing payments to state governments in 1998” (National Indian Gaming Association 2006a). These national figures do not count the many indirect (or multiplier) economic impacts of tribal gaming, including tourist dollars generated and secondary forms of employment such as hotel, restaurant, and souvenir jobs that are produced as a result of tribal gaming. These beneficial impacts are even more pronounced on local and state economies. The University of Connecticut’s Center for Economic Analysis issued a study in November 2000 that documented the many positive impacts of the MPTN on Connecticut’s economy. The MPTN, whose Foxwoods Resort Casino is one of the two most financially successful casinos in the United States, raised real gross state product by $1.2 billion annually above the baseline forecast (a percentage increase of 8.5 percent for its New London County location and 1 percent for the state as a whole). Additionally, the study found the following: (1) Pequot operations increased total employment (directly and indirectly) statewide by 41,363 jobs yearly above forecasts; (2) the tribal casino had by the year 2000 made direct payments to Connecticut totaling more than $1 billion, per its IGRA-required compact; and (3) the tribal casino hosted 41,000 customers each day, 73 percent of whom come from out of state. The study concluded that the economic activities of the MPTN filled a gap that was left in local and state economies in the late 1980s and early 1990s as a result of the contraction of the state’s manufacturing sector (Carstensen et al. 2000). Similarly, other studies of the impacts of tribal gaming in Minnesota (Reeves et al. 1996), Wisconsin (Evans 2002), and Washington State (King & Kanzler 2002) confirm the positive impacts of tribal gaming for both local and state economies. In spite of this evidence, a zealous anti-tribal-casino movement has developed. This movement, like the anti-treaty-rights movement from which it has emerged and to which it contributes, is made up of loosely coordinated grassroots activists and the public officials who support them. Like the anti-treaty-rights movement, it employs a common discourse. Anti-casino activists insist that special treaty rights, which allow tribes to operate casinos where others could not, introduce unregulated forms of development that damage the activists’ interests. Equally bad, they argue, such special rights threaten the values that underlie American glory. There are numerous anti-casino groups nationwide, although the areas most saturated with these groups, unsurprisingly, tend also to be the areas with the greatest Indian populations and, so, the areas with the most tribal casinos. In the West, California (home to fifty-four gaming tribes and fifty-

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six gaming establishments), Washington (home to twenty-two gaming tribes and thirty-two gaming establishments), and Oregon (home to nine gaming tribes that each operate one casino) feature the high-profile opposition groups Stand Up for California and Democracy for Citizens (California); United Property Owners, Inc., Stand Up for Clark County Citizens, and American Land Rights Association (Washington); and People Against a Casino Town and Cascade Lake No Casinos (Oregon). Along the Great Plains, Oklahoma and South Dakota (which together are home to thirty-one gaming tribes and ninety-one gaming establishments, eighty in Oklahoma alone) are home to Oklahoma’s One Nation of Oklahoma and numerous local anti-casino groups. Minnesota and Wisconsin are home to a combined twenty-two upper-midwest gaming tribes and fortyfour gaming establishments and also feature the prominent anti-casino groups Mille Lacs Tea Party and Proper Economic Resource Management (Minnesota) and Protect Americans’ Rights and Resources (Wisconsin). In the Northeast, New York (home to three gaming tribes, seven gaming establishments, and the prominent anti-casino group Upstate Citizens for Equality) and, especially, Connecticut (home to the nation’s two most profitable tribal casinos and the nation’s most active opposition groups— see the following) are centers of anti-casino activism, with controversy simmering in Massachusetts and Rhode Island (National Indian Gaming Commission 2006). Opposition groups in each of these regions are active and, like the general anti-treaty-rights groups, tend to pursue a variety of insider (e.g., lob­bying and litigation) and outsider (e.g., letters to the editor, paid media, direct action, commercial publications) strategies. In addition to their own anticasino activism, the national anti-treaty-rights groups discussed in Chapter 3 (especially Citizens Equal Rights Alliance [CERA] and One Nation United [ONU]) occasionally coordinate the activities of local organizations.2 More frequently, though, activists retain a local focus, concentrating on the specific conflicts that originally motivated their mobilization. This autonomy is only relative, however. On one hand, there is evidence of knowledge sharing between organizations. Jeff Benedict, one of the most prominent anti-casino activists in the nation, offers his consulting services to groups fighting against the introduction of tribal casinos in their localities. Lower-level information networks exist as well. Much information sharing occurs, for example, at the annual conferences sponsored by CERA.3 On the other hand, a vital part of the information campaigns of most anti-casino groups is an attempt to educate observers about the allegedly pernicious effects of the treaty rights that allow for tribal casinos. The

104   We Don’t Believe in the Promised Land Internet home pages of these organizations are awash in information relating to the history of white–Indian relations, the legal concept of tribal sovereignty, and the national organizations (especially CERA and ONU) that oppose treaty-rights activism in all its forms.4 They follow, in fact, the advice of CERA Chair Elaine Willman, who exhorts readers that “citizen education [and] engagement” is necessary for “exercis[ing] citizen voice in matters affecting . . . local government, and especially in matters that involve tribal government decisions that affect your community, your business, your property, and the local tax base” (Willman 2005). Special-rights talk is at the center of the activists’ education efforts. Indeed, activists typically offer two arguments in this vein, each of which emphasizes the problems with both tribal casinos and treaty rights. First, as Eve Darian-Smith’s (2002, 2003) accounts of opposition to tribal gaming in California note, opponents frequently describe tribes as incompetent entrepreneurs, unable to manage complex commercial enterprises without doing damage to either themselves or their surrounding communities (or, usually, both). As she further notes, this argument revives a long-standing portrayal of Indians as incapable of wrenching themselves out of prehistoric times and into the modern, contemporary world. This understanding is a species of that which holds that Indians weren’t made for contemporary times and that their disappearance (or marginalization) is a foregone conclusion (Dippie 1982). Accordingly, though they rarely articulate it in such bald terms, casino opponents frequently proceed from the socially constructed common sense that Indians cannot be trusted to competently operate a high-powered economic enterprise; or that tribal casinos are particularly threatening and damaging forms of economic development (Darian-Smith 2002, 2003). The further accusation that tribes are being duped by outside investors, who often provide to tribes necessary initial funds in exchange for a percentage of the casino’s future revenues, is closely linked to this evaluation of Indian capabilities.5 The second common argument offered by opponents of tribal gaming —the lure of casino riches tempts non-Indians into fabricating Indian identities—appears to be specific to tribes that are not yet (or are only recently) recognized by the federal government as sovereign nations. The Federal Acknowledgement Process (FAP) is premised on the realization that there exist an indeterminate number of Indian tribes that, although they have maintained tribal identity and community since contact with whites, are nevertheless not covered under treaty with the United States government. The treaty-making era was, in fact, of only relatively short dur­ation, lasting from the end of the eighteenth until the middle of the nineteenth century. In addition, treaties were negotiated and signed with

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particular tribes and then ratified by Congress in a haphazard fashion, proceeding without reference to substantive policy goals. Accordingly, the presence or lack of a treaty says less about the historical legitimacy of a tribe than it might seem at first blush. FAP is designed to compensate for the deficiencies of the treaty-making policy by offering to qualified applicants the same government-to-government relationship with the United States that the treaty establishes. Much of the opposition to treaty rights, and to tribal gaming in particular, necessarily revolves around the specifics of the FAP. Indeed, as Reneé Cramer (2005) argues, criticism of FAP increasingly intersects with anxieties over tribal casinos. As she also argues, opponents of tribal gaming in the Northeast in particular (where, because of historical circumstance, few Indian tribes signed treaties with the United States) frequently resort to allegations that members of gaming tribes (or wouldbe gaming tribes) are not “real Indians.” Opponents thus argue that the lure of riches is prompting many nonnatives to turn Indian. The origins of this claim are multifaceted. First, the FAP itself invites such accusations. As Cramer shows, the criteria for recognition, which is a prerequisite under IGRA for the establishment of gaming facilities, is implicitly race-based. The seven criteria that the Bureau of Acknowledgement and Recognition (BAR, a standing committee under the authority of the Bureau of Indian Affairs [BIA]) follows in acknowledgment decisions are meant to determine whether the group in question has maintained a common identity as an Indian tribe since contact. The ability to trace one’s heritage genealogically, although not the only way to display continuity, is a constant, often overriding concern—both for recognition applications and decisions. The blood quantum requirement is no longer valid federal law, but in practice a recognition claim is bolstered by the petitioner’s ability to show undiluted ancestral links. Tribal status is thus often defined racially. The stakes for proving, or disproving, one’s racial ancestry are, accordingly, high (Cramer 2005: 56–61). Second, northeastern tribes typically feature a membership that is multi­ racial. After the Euro-American conquest of the region (which was relatively complete by the second half of the eighteenth century), racial hierarchy ensured that African Americans (free and slave) and Indians shared a common social situation. Unions between the two ensued. Unlike tribes in other regions of the United States (such as in the Great Plains and in the West), racial segregation in the Northeast created a situation in which the Indian gene pool expanded to include significant amounts of both Caucasian and African genes. Accordingly, tribes in the Northeast typically

106   We Don’t Believe in the Promised Land feature individual members who run the range of racial types, attributes, and appearances. Allegations such as those leveled by Donald Trump in 1994 against the Mashantucket Pequots (before he decided to support tribal gaming)—“those Pequot don’t look Indian!”—fail to understand the historical and social situation of Northeastern Indians (Cramer 2005: 107). Such failure is common among opponents of tribal gaming, who frequently imply that contemporary, unrecognized tribes are actually groups of non-Indians who are motivated by the possibility of casino wealth (see, for example, Benedict 2000). Third, some tribal members themselves argue that non-Indians are turning Indian in order to take advantage of tribal casinos. The multiracial composition of many Northeast tribes thus gives rise to infighting about who is and is not Indian and who, therefore, is due the advantages of being a member of a federally recognized tribe. The most difficult and long-lasting cleavages within tribes are thus racial, with members whose physical attributes appear African frequently accused of being non-Indian. Just such a cleavage has consumed the EPTN, which split into two factions (the Eastern Pequot and the Paucatuck Eastern Pequot), along racial lines, over the course of the twentieth century (BIA 2002; Cramer 2005: 141–149). Accordingly, anxiety over fraudulent Indians occasionally originates from within tribes. These two arguments—Indians are unprepared to manage large commercial enterprises such as casinos and tribal casinos encourage fraudulentidentity claims—animate the anti-tribal-casino movement. They are also the centerpieces of Jeff Benedict’s Without Reservation, a mainstream success published by Harper Collins in 2000. Benedict’s book explores the revival of the MPTN, and especially the building and operation of the tribe’s successful Foxwoods Resort and Casino, which is located on reservation land in Ledyard, Connecticut. The impact of Benedict’s book has been considerable both nationally and regionally, especially in New England. Nationally, the book garnered a significant amount of media attention. Its account of tribal gaming was consistent with Time magazine’s own high-profile (2002) series, and its emphasis on otherwise peaceful and harmonious communities that are under assault from both Indian incompetence and fraudulent-identity claims has infiltrated popular culture via such television shows as The Simpsons (repeatedly), South Park, and The Family Guy. New Right commentator Michelle Malkin, for example, praised Benedict for his “bold, brave, and Pulitzer-worthy book,” calling it a “mustread—and must-act-on—for congressional staffers, homeowners, business owners, [and] local officials.” Taking Benedict’s narrative about an

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“artificially manufactured ‘tribe’ ” to heart, Malkin warned her readers, “This is not a provincial tale. It could happen—or be happening—in any town where groups are seeking tribal recognition and all the attendant benefits of national sovereignty, including federal grants, tax exemptions, legal immunity, and freedom from environmental, zoning, and gambling regulations” (Malkin 2000: 1–2). More notable was the exposure given to the book by 60 Minutes II. The CBS news magazine broadcast in May 2000 a story entitled “Wampum Wonderland,” filed by reporter and cohost Steve Kroft. Kroft’s piece, an overview of the then-simmering controversy regarding the historical legitimacy of the Mashantucket Pequots, was subtly indebted to Benedict’s master narrative of fraudulent identity claims. Relying upon interviews with the principals on each side (including Benedict himself  ), Kroft’s otherwise careful report voiced the emerging skepticism over the ethnic heritages of tribes petitioning BAR for recognition. Indeed, describing the expansion of the Mashantucket Pequot tribe since the opening of Foxwoods, Kroft noted that “there’s no shortage of aspiring Indians from London to Louisiana eager to sign up and share the [casino] wealth” (Kroft 2000). Mentioning Without Reservation, Kroft gave prominent position to Benedict’s claims that the contemporary Mashantucket Pequots were “fraudulent” and not “the same Pequots that inhabited Connecticut a couple hundred years ago.” Compounding the fraud, Benedict told Kroft, was that Foxwoods was “changing the face of . . . southeastern Connecticut forever” (Kroft 2000). Most notable of all, though, was the two-issue Time magazine exposé on tribal gaming, written by Donald Barlett and James Steele and published in December 2002. The articles, which garnered Barlett and Steele interviews with Cable News Network’s (CNN) Lou Dobbs and National Public Radio’s (NPR) Terri Gross (host of Fresh Air), sought to uncover the disparities generated by tribal gaming, both between gaming tribes and within tribes themselves. Indeed, the articles pursued two related claims. First, Barlett and Steele noted that, in spite of expectations that it would help to lift Indians out of poverty, the profits of tribal gaming have been skewed toward a few tribes, with the vast majority of tribes struggling to balance their outgoing expenses with incoming revenues. This first claim was, by 2002, well supported and uncontroversial. In fact, as noted previously, the regulatory commission created by IGRA (the National Indian Gaming Commission) has consistently documented this trend since at least the late 1990s. More controversial was the conclusion to which these figures led Barlett and Steele. Cramer, for example, concludes from these figures that the popular-culture narrative of all Indians becoming fabulously

108   We Don’t Believe in the Promised Land rich from gaming is overwrought; yet she also underscores that Indian gaming has consistently improved tribal capacity and infrastructure, even when it has not produced notable profit margins (Cramer 2005). Barlett and Steele’s conclusion points in the opposite direction. Apparently unaware of the studies upon which Cramer relies (many of which are also cited here), they conclude that Indian gaming has been mostly a failure. Tellingly, they count as evidence of failure that most gaming tribes (75 percent according to the most reliable sources; see Note 1) invest profits in reservation infrastructure instead of distributing per capita payments to members (Barlett & Steele 2002a). Similarly, Barlett and Steele appear unaware of the many studies that detail the positive economic impacts of tribal gaming on surrounding areas. This second evasion leads them to downplay the benefits of Indian gaming for nontribal populations. Not that Barlett and Steele ignore how tribal gaming benefits at least some non-Indian populations. Indeed, the second major theme of their articles is that tribal gaming is controlled by wealthy gambling interests who trade capital and expertise for excessively large casino profits. Noting that most gaming tribes lack the initial funds to construct and operate a fully functioning casino, Steele and Barlett obsess over how wealthy entrepreneurs (to whom they refer, revealingly, as “godfathers”) have turned to tribal gaming as a growth industry. Their conclusion follows easily, even as it builds on their concern over the inequity of gaming among tribes: Even those tribes whose gaming operations are notably successful must cope with a situation in which success buoys already wealthy capitalists and not impoverished tribal members. Steele and Barlett add to this mix of inequity both within and among gaming tribes their suspicions (supported only with anecdotal evidence) that the entire edifice of tribal gaming is rent with corruption, deceit, coercion, and incompetent governmental oversight. Summarizing Indian gaming as a “wheel of misfortune” both for Indians and their white neighbors (over whom gaming tribes “ride roughshod”), they conclude that Indian gaming allows for the “white man [to] win again”: “While most Indians continue to live in poverty, many non-Indian investors are extracting hundreds of millions of dollars . . . from casinos they helped establish. More than 90% of the contracts between tribes and outside gaming-management companies operate with no oversight. That means that investors’ identities are often secret, as are their financial arrangements and their share of revenue” (Barlett & Steele 2002a: 47). What’s more, incompetent governmental oversight encourages the cloak-and-dagger dynamics that animate tribal gaming. “The tribes’ secrecy about financial affairs—and the complicity of government oversight agencies—has guaranteed that abuses in Indian country growing out of

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the surge in gaming riches go undetected, unreported, and unprosecuted” (Barlett & Steele 2002a: 47). Conveniently for Barlett and Steele, the fact that such abuses are unreported relieves them of the responsibility of doing more than providing a few anecdotes of (admittedly) authoritarian tribal practices. Undeniably effective for their overall purposes, reliance on shocking anecdotes makes it impossible to gauge how systematic are such abuses or how reliable Barlett and Steele’s own narrative is even for the selected abuses that they do spotlight (Barlett & Steele: 2002a & 2002b).6 These shortcomings, however, did little to check the prominence of Barlett and Steele’s work. In addition to the CNN and NPR interviews, the articles provided the template for a December 2002 op-ed article by prominent conservative pundit William Safire that appeared in the New York Times. Setting aside his credentials as a “free-enterprise freak,” Safire condemned tribal gaming as a “financial-political scandal of stunning proportions.” As have many other commentators, Safire then made the argument against tribal gaming in terms drawn directly from America’s contemporary culture wars. Indefensible according to any legitimate principle, the scourge of Indian gaming can be explained only by greed, government incompetence, wasted tax dollars, an eroding moral order, and, finally, preferential treatment of minorities borne of white guilt: Under the cover of helping the 28 percent of Indians now mired in poverty, financial vultures . . . are ripping off the U.S. taxpayer and promoting a noxious something-for-nothing slots philosophy—not to mention degrading the country­ side’s moral and physical environment—by gaming the American political system. Casino press agents will . . . trot out warm and cozy stories of hospitals and schools built and Indian lives rehabilitated by gambling money . . . [these] distort the whole truth of a rapacious operation protected by politicians fearful of seeming unkind to Indians. (Safire 2002)

Safire was, though, only following the lead of James C. Dobson, founder of the prominent evangelical Christian organization Focus on the Family. Dobson has, at least since 1999, attacked legalized gambling in general, and Indian gaming in particular, for its destructive moral and economic impacts. In addition to the ways in which gambling supposedly contributes to moral decay, Dobson anticipated one of the primary arguments made by Connecticut’s casino opponents. “When a tribe gets into the gam­ bling business,” claimed Dobson, “neighboring communities are usually left to foot the bill for the increased crime, traffic, and other headaches that accompany casinos” (Dobson 1999). A national audience already receptive to its antigambling theme thus welcomed Without Reservation’s attack on tribal gaming, even as the book contributed in important ways to public opinion regarding the legitimacy

110   We Don’t Believe in the Promised Land of tribal gaming in particular. Even more influential in New England, the book armed opponents of tribal gaming with a blueprint for appealing to elected officials and disinterested observers. Indeed, stopping the spread of tribal casinos became a significant issue in both the 2002 Connecticut gubernatorial campaign and in statewide congressional elections. Armed with a pair of public-opinion polls that showed opposition to tribal casinos running at nearly 60 percent throughout the state, candidates from both major parties portrayed one another as soft on Indian gambling (Center for Survey Research & Analysis 2002; Associated Press 2002).7 Incumbent Governor John Rowland (R.) scrambled to retract his previous statements of support for the expansion of tribal gaming in the face of withering attacks from Democratic challenger Bill Curry. And Rob Simmons (R., CT-2), who had staged an unlikely upset of long-time incumbent Sam Gejdenson in 2000 based largely on accusations that Gejdenson was responsible for the introduction of tribal gaming in Connecticut, soundly defeated challenger Joe Courtney on the strength of his unremitting hostility toward tribal gaming. Simmons was saved a general election challenge from an even more virulent opponent of tribal casinos—Jeff Benedict himself, who parlayed the success of Without Reservation into an unsuccessful bid for the Democratic nomination. Without Reservation’s attacks on tribal gaming are also consistent with another set of well-established themes, for the understanding of harmonious communities under attack from incompetent or fraudulent (non)Indians follows easily from the arguments made by the anti-treaty-rights movement. Indeed, the broader movement’s insistence that treaty rights are special rights that undermine core national values articulates with the arguments offered by opponents of tribal gaming. Consider, for example, the claim that Indians are unprepared to manage a large commercial enterprise. This allegation implies that tribes have not earned their management positions, but instead have been awarded them based upon something other than their proven merit as entrepreneurs. In this case, it is treaty rights, or the government-to-government status afforded to tribes that gain federal recognition, that so elevates Indians. These rights, and this status, are unavailable to other Americans; they are special, and they make their recipients successful not for what they have accomplished but instead for who they are. Similarly, the claim that non-Indians are turning Indian in order to exploit the potential of tribal gaming relies upon the understanding that extraordinary benefits go along with being a member of a tribal nation. After all, why would a non-Indian make a fraudulent-identity claim were it not for such privileges? Special treaty rights and the benefits that they

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promise (i.e., the lure of casino riches) are thus the only imaginable incentives for turning Indian. Fergus Bordewich—whose 1996 book Killing the White Man’s Indian dismissed tribal sovereignty as naïve and anachronistic, in the process winning plaudits from commentators across the political spectrum—nested these anti-casino arguments within both the equal rights/special rights and culture war narratives. Taking up the fight for “gaming’s beleaguered opponents” in a 2006 Wall Street Journal op-ed, Bordewich explained, The dazzling lure of casino profits has inspired hundreds of groups, often with doubtful credentials, to seek federal recognition as Indian tribes . . . In an age when guilt and romantic fantasy often masquerade as politics, tribal sovereignty has seemed like a cure-all for the genuine wounds of the past . . . But without a clear, nationally-agreed upon idea of what tribal sovereignty is . . . we may one day find ourselves living in a land that has little in common with the goals of today’s good intentions, and in which hundreds of “tribes” of Americans are permanently distinguished from their fellow citizens mainly by the special rights that were bestowed on their Indian ancestors, and by the privilege of operating . . . gambling casinos. (Bordewich 2006)

Again, we see here how special-rights talk converts local, interest-based grievances into rituals of nationalistic anxiety that insulate unresponsive political and economic power from scrutiny. The language of incompetent or fraudulent Indians deploying special treaty rights to assault otherwise peaceful and harmonious communities leads opponents to stigmatize the interest-based activism of Indians, assigning to it subversive, un-American qualities. By focusing so unyieldingly on the allegedly destructive role of tribal casinos (and other tribal development projects), opponents overlook the various ways in which their communities and livelihoods are very much threatened by, for example: the exporting of manufacturing jobs overseas and to cheaper locales and the concomitant rise of a service economy, the loss of valuable governmental largesse, and the unresponsiveness of elected officials to the deteriorating infrastructures of their communities. Each of these long-term and impersonal processes is far more responsible than is Indian activism for the perilous situation in which many formerly secure Americans (including many residents of Connecticut) find themselves. Yet opponents at once fix blame for their uncertainty and anxiety onto treaty rights and displace it from the more harmful influences. Accordingly, special-rights discourse is at the center of the anti-tribalcasino movement. Consumed by anxiety over how tribal casinos threaten their ways of life, opponents consistently emphasize how treaty rights (and federal recognition, if necessary) undermine the core American values of individual merit, community harmony, and equal opportunity. At the same

112   We Don’t Believe in the Promised Land time, they create perverse incentives to throw off one’s true identity and embrace a fabricated Indian one. In so doing, opponents consistently overlook, or underplay, the positive impacts that tribal casinos typically have, instead focusing on a host of real (and imagined) negative consequences.8 Accordingly, the dominant interpretations that opponents use to make sense of tribal gaming propel their resentment, converting it from local and interest based to national and value based. Defending not only their own ways of life but also the American way of life, opponents turn themselves into countersubversives and so entrench themselves against Indian activism. The next section grounds the analysis. It explores the controversy that developed over the federal recognition application of the EPTN. This conflict put into motion each of the considerations so far sketched. I will argue that the special-rights discourse employed by Connecticut’s anticasino activists heightened conflict, appealed to public officials, and mis­ attributed blame for the resentment that originally inspired the activists.

III. The “Casino State”? The EPTN was awarded final approval as a federally recognized Indian tribe in June 2002, almost a year after receiving preliminary approval. Rec­ognition by BAR occurred in spite of the concerted efforts of local and Connecticut state authorities and over the objections of most of Connecticut’s congressional delegation. Spurred by the fear of a third tribal casino in the southeastern portion of the state, elected officials from North Stonington (where the EPTN’s reservation is located), Ledyard, and Preston appealed for help to the already sympathetic state attorney general, Richard Blumenthal. Blumenthal, in turn, secured the support of both of Connecticut’s U.S. Senators (Christopher Dodd and Joseph Lieberman) and most of Connecticut’s U.S. Representatives (Christopher Shays, Robert Simmons, Rosa DeLauro, and Nancy Johnson). John Rowland, Connecticut’s now-disgraced former Governor, initially supported the EPTN’s recognition but soon switched course, campaigning against the decision as a part of his 2002 reelection strategy. And driving this official opposition was a strong undercurrent of grassroots discontent, both locally and across the state. Many of these grassroots efforts were coordinated by the Connecticut Alliance Against Casino Expansion (CAACE), which was formed in early 2002 by, among others, Jeff Benedict himself. Summarizing this opposition, Joseph Lieberman noted that the recognition decision “ignited a cauldron of controversy in Connecticut” (Lieberman 2002). The EPTN was itself unhappy with BAR’s finding, for

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in recognizing the “historical” EPTN, BAR had incorporated two distinct recognition applications, from two distinct factions, into one. BAR’s decision was, thus, also over the objections of the consolidated EPTN, and particularly over those of the minority Paucatuck Eastern Pequot faction. BAR’s finding was also controversial within the BIA. Indeed, the team of researchers that makes up the agency had originally recommended to BIA Assistant Secretary Kevin Gover that both of the Eastern Pequot recognition claims be rejected, citing significant gaps in evidence that the tribe(s) were continuous political communities since the contact era. Gover rejected his staff’s recommendation and instead instructed the researchers to give heightened consideration to the fact that Connecticut had recognized the Eastern Pequots since colonial days, even maintaining a reservation for the tribe and treating its members as distinct from its citizenry. In reconsidering the evidence, BAR held that continuous state recognition compensated for gaps in the evidence presented by the Eastern Pequots, helping to establish the tribe as a distinct and continuous political entity. There was, accordingly, enough discontent with BAR’s recognition of the historical EPTN to go around. However, the two factions of the EPTN quickly set aside their long feud (which was race-based; Cramer 2005: 141–147), focusing instead on plans for a North Stonington casino that the tribe was now eligible to pursue. So too did the BAR researchers get past their initial recommendations to reject the EPTN’s application, quickly coming to the defense both of Gover and the decision. The coalition of grassroots activists and elected officials who opposed casino expansion was not so magnanimous. Following the final determination in June 2002, the coalition announced that it would appeal the recognition decision to the Interior Board of Indian Appeals, an internal review board. Hedging their bets, the opponents also announced their intentions to pursue an aggressive lobbying agenda that would be geared toward pressuring Congress into a complete overhaul of the federal recognition process, starting with BAR’s recognition of the Eastern Pequots. To be sure, neither of these responses appeared particularly promising, because no final recognition decision had ever been overturned and Congress had for 30 years been relatively unresponsive to the appeals of the anti-treatyrights movement (see Chapter 3). That the first strategy succeeded (BAR’s recognition decision was overturned on appeal in May 2005 and denied altogether in October 2005) and that the second has made more headway than most would have predicted is a testament to the opponents’ perseverance. It is also, and more fundamentally, an indication of the degree to which the political vision of the anti-treaty-rights movement—expressed

114   We Don’t Believe in the Promised Land through its special-rights talk—has become lodged in public discourse, providing the terms by which the treaty-rights issue is understood and debated. What follows is an account of the opponents’ efforts. The complex aftermath of Eastern Pequot recognition was prefigured in its difficult beginnings. The consolidated tribe that was recognized by BAR was, in fact, made up of two competing factions: the Eastern Pequot Tribe (EP) and the Paucatuck Eastern Pequot (PEP). Each faction descended from the original Pequot tribe, with the Mashantucket Pequots (the operators of Foxwoods casino and resort) a third faction. For decades, the PEP enjoyed a close relationship with Connecticut, consulting with the state on all matters relevant to the tribe’s well-being. The EP, comprised primarily of African Indians, was marginalized by the state. The PEP treated the EP much worse. Claiming that EP members were not Pequot in ancestry, the PEP excluded EP members from leadership positions and constantly petitioned the state to remove EP members from the tribe’s membership rolls (Cramer 2005: 141–148). By the 1980s, both the PEP and the EP had filed petitions with BAR seeking federal recognition. Resisting BIA suggestions to consolidate their petitions, the two factions continued to feud with one another, even as each made postrecognition plans. Each faction leveraged its plans to open casinos to attain the financial backing necessary to research and present its recognition petitions before BAR. In exchange for the management of the planned casinos, Donald Trump and David Rosow (a local golf course developer) paid millions to fund the recognition petitions of the Paucatuck Eastern Pequots and the Eastern Pequot Tribe, respectively.9 Anti-casino activists attacked the twin Eastern Pequot recognition applications on three grounds. First, and most prominently, activists rehearsed the familiar argument about the devastating consequences of tribal casinos on the communities in which they are situated. Specifically, activists claimed that a third tribal casino in the southeastern portion of Connecticut would further assault the formerly peaceful, rustic ways of life for which the region was known. And, as in the anti-tribal-casino movement writ large, the claims of negative impact were here buttressed by a second argument. The EPTN, opponents contended, consisted of a membership that was not authentically Indian, since members could not unassailably trace their lineages back to the colonial era. Opponents also made a third argument, one that was particularly appealing to sympathetic elected officials: They argued that the federal recognition process, and BAR in particular, was “out of control,” “broken,” “capricious,” “lawless,” and, in Christopher Dodd’s estimation, “too cavalier” (see, for example, Dodd 2002, 2005; Johnson 2005; Lieberman 2005; Rell 2005; Simmons 2005; Shays 2005). Opponents emphasized that the BIA had become a dysfunc-

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tional, insular bureaucracy that was unaccountable to democratic pro­ cesses. Worse, opponents claimed that the recognition process had become corrupt, as the influence of outside investors seeking a big payday through the sponsorship of recognition applications was driving BAR’s decisionmaking process. The confluence of gaming and money, opponents contended, led to the recognition of an ever-expanding number of groups that lacked the necessary tribal credentials. This three-part attack on the recognition process, moreover, articulates clearly with the New Right political vision. That the opposition to tribal casinos in Connecticut is explicitly bipartisan testifies to the allure of that vision, to the centrality of its logic in mainstream American politics. Indeed, opponents emphasize how the irresponsible activism of a traditionally disadvantaged population (here Indians, or at least those who claim to be Indian), in conjunction with biased political elites (housed within the impenetrable walls of the BIA), is threatening the interests and livelihoods of innocent, “ordinary” Americans. These Americans are thus forced to defend themselves and their communities; but they are also compelled to defend an America that values core principles such as hard work, merit, and equal opportunity. The next section discusses the arguments that animate the anti-tribal-casino movement in Connecticut generally and the opposition to the EPTN’s recognition specifically. impact Casino opponents in Connecticut frequently claim that tribal casinos destroy their rural “way of life.” Indeed, opponents consistently emphasized how the proposed EPTN casino, because it would have joined an already crowded casino market, would have forever altered the southern New England landscape. Foxwoods Resort and Casino, operated by the MPTN, and the Mohegan Sun, operated by the Mohegan Tribal Nation, are located within a short driving distance from where the EPTN’s proposed casino would have been built. Opponents worried that a third casino would have turned Connecticut into the “Las Vegas of the East,” or, worse, the new Atlantic City. This argument, which highlights the potentially destructive impacts of another casino in particular and recognition in general, was consistently offered both by elected officials and grassroots activists. Indeed, it was one of the opponents’ two most common arguments.10 According to state Attorney General Richard Blumenthal (D.), a vociferous critic both of tribal gaming and the federal recognition process: A decision to acknowledge an Indian tribe has profound and irreversible effects on tribes, states, local communities and the public and in Connecticut’s experience greatly affects the quality of life in those communities living in close proximity to

116   We Don’t Believe in the Promised Land Indian reservations. A federally recognized tribe is entitled to certain privileges and immunities under federal law. They are exempt from most state and local laws and land use and environmental regulations. (Blumenthal 2002: 2)

Recognition, of course, also means the possibility of casinos. And as North Stonington First Selectman Nicholas Mullane told the Senate Committee on Indian Affairs following the EPTN’s initial recognition, “Casino development has devastating impacts on state and local communities” (Mullane 2002: 2). Similarly, most of Connecticut’s congressional delegation (Senators Dodd and Lieberman and Representatives Shays, Johnson, DeLauro, and Simmons—everyone except Representative John Larson [D., District 1]) shared this evaluation. Consider, for example, Joseph Lieberman’s formulation: “If the Eastern Pequot . . . recognition decision is upheld, local residents will have to bear the economic and social costs associated with the prospect of [a] . . . new casino that will forever change their quality of life” (Lieberman 2005: 4). Representative Nancy Johnson agreed: “Casinos place unbearable burdens on municipalities, on local tax bases and taxpayers, and on an aging infrastructure that [cannot] tolerate the volume of traffic such a facility . . . creates” ( Johnson 2005: 2). Pulling together these themes, a casino impact report prepared by the town of Preston’s Board of Selectmen (their three highest-ranking elected officials) laid bare the community-under-siege logic. Evoking a lost Eden, the report was anguished: The financial and social impact of the [existing casino] development is overwhelming. Some of these impacts can be measured quantitatively in dollars and cents, while others are much harder to put a dollar value on. The loss of our rural character is a loss no amount of financial remuneration can compensate. The social costs of our changing demographics are not measurable in dollars. Preston historically has had few of the “big city” social problems such as welfare, drugs, crime and families requiring social services. [We] are now seeing a trend toward a substantial increase in the occurrence of these types of problems. (Preston Board of Selectmen 2001)

So too did interested citizens who opposed the EPTN’s federal recognition emphasize the vulnerability of their ways of life. Kenneth Cooper, president of Town Action to Save Kent (TASK, an organization located in southeastern Connecticut that successfully appealed the federal recognition of the Schaghticoke Tribal Nation), voiced the concerns of his neighbors: “Because of their location in the densely populated Boston–New York corridor, the impact of Las Vegas–style casinos on [local] communities has overwhelmed their infrastructure and destroyed the character that took settlers more than 4 centuries to build. Their tax base has shrunk, crime has soared, their schools are jammed, and, sadly, the long term resi-

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dents of these towns have lost the ability to plan their own futures.” Connecting the destruction of local communities squarely to the pro­cess of federal recognition, Cooper continued, “Federal acknowledgement grants the petitioner extraordinary rights far beyond those of their neighbors and especially in the densely populated East coast cause disruption to thousands of innocent citizens and often has the effect of destroying their equally important culture” (Cooper 2005: 2, 4). As the collected essays of Greenhouse, Yngvesson, and Engel (1994) argue, such claims of a deteriorating culture (or way of life) are commonplace in contemporary American society. They are, moreover, indicative of the perception that the speakers are losing their privileged places within prevailing hierarchies. Typically the evocation of a lost way of life is, though sincerely offered, an exercise in nostalgia that posits the speakers as members of a once-harmonious community that is now under assault from the reckless activism (which is frequently legal in character) of “outsiders.” This narrative, Greenhouse and her colleagues note, mutes the histories of conflict between the community’s socially valued “insiders” and its socially marginal “outsiders”—histories that define the identity of the community itself (Greenhouse, Yngvesson, & Engel 1994).11 Thus implicit in the way-of-life trope is, first, recognition of socioeconomic decline and, second, the assignment of blame for such decline. As Greenhouse and her colleagues recommend, such arguments of decline and blame are best approached through an analysis of the socioeconomic landscape that produces both the image of a harmonious community past and the conflicts that render that image fictional. This then leads to a sustained analysis of the economic and political conditions whose erosion has imperiled the fortunes of the Connecticut residents who participate in the state’s anti-tribal-casino movement. Consider, at the outset, the arguments of Jeff Benedict, who, as author of Without Reservation, maintained a high profile as president and lead spokesman for CAACE.12 Because he has developed the communityunder-siege argument in detail, his accounts of the impacts of tribal casinos on Connecticut life are appropriate points of departure. In 2005 Benedict claimed, for example, that the social costs of Connecticut’s two existing casinos outweigh the benefits of the almost 20,000 jobs that they together provide and the enormous annual payments ($417 million in 2005 alone—twice as much as the state lottery generated) that they contribute to the state in exchange for the ability to operate slot machines.13 According to Benedict, the costs of the existing casinos include the exacerbation (and even creation) of problem gamblers whose miseries soon become drains on the public welfare; low-paying, nonunionized jobs that require at least some casino employees to apply for public assistance and

118   We Don’t Believe in the Promised Land a few to live at homeless shelters; and the influx of low- and middleincome casino employees into towns whose public services infrastructures are unprepared to handle the new residents. Reflecting on these impacts of Foxwoods and the Mohegan Sun, Benedict concludes that “the casinos are devastating towns around them” (Hartford Courant 2005: C1). More casinos would, in Benedict’s estimation, make matters worse. Condensed within this allegation that the EPTN’s federal recognition would hasten the destruction of the rural character of southeastern Connecticut was a subterranean theme that emphasized that tribal casinos are a particularly damaging form of economic development. Indeed, with the exception of his argument about problem gamblers, Benedict’s critiques of Foxwoods and the Mohegan Sun could apply also to many forms of contemporary economic development, especially in the increasingly serviceoriented American economy. There is, of course, good reason to critique the shift from a manufacturing to a service economy, and the grounds that Benedict cites in relation to at least some jobs at the casinos are valid ones. Moreover, the trajectory of Connecticut’s economy over the previous 20 years would seem to make such a critique intelligible and persuasive to those disinterested citizens to whom casino opponents appeal. Connecticut’s economy has historically been driven by its manufacturing sector, especially the armaments (e.g., Remington) and textiles (e.g., silk, rubber, and thread) industries. When General Electric’s strong presence in the state was complemented in the twentieth century by the emergence of the aerospace (e.g., Pratt & Whitney, Sikorsky, Chance Vought, and Hamilton Propellers) and nautical industries (especially the Electric Boat Company), Connecticut’s manufacturing sector was well situated to take advantage of the massive increase in federal spending on defense that followed the end of World War II ( Janick 1975: 58–79). As in other areas of the country, Connecticut’s manufacturing sector was notable for its relatively high degree of unionization and, accordingly, for the stable and high-paying jobs that it offered to the state’s residents. In the mid-1980s, however, Connecticut’s manufacturing sector began to lose jobs at an alarming rate. Already damaged by the weakened national economy that fueled American anxiety in the late 1980s, Connecticut’s manufacturing sector was devastated in the early 1990s by a double blow: a 43 percent drop in defense spending in the wake of the end of the cold war and the emergence of a global economy that made foreign labor markets increasingly attractive to employers. A 64 percent drop in defense contracts between 1987 and 1995 led to the loss of 104,000 of Connecticut’s manufacturing jobs—nearly one-third of the state’s total employment in the manufacturing sector (Connecticut Economic Digest 1996a: 2–4; Connecticut Economic Digest 1996b: 1–3). The emergence of the

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global economy in the mid 1990s ensured that the jobs lost as a result of declining governmental largesse would not return. By the end of 2005, in spite of (or perhaps because of ) increased worker productivity, Connecticut had lost an additional 84,000 manufacturing jobs (Connecticut Economic Digest 2006: 6). Since 1987, Connecticut has thus seen its manufacturing sector (the traditional engine of the state’s economy) reduced by more than 50 percent. The southeastern portion of the state, home to both the existing Foxwoods and Mohegan Sun casinos and the proposed site of the EPTN casino, was hit especially hard by the reduction in defense spending. In this part of the state, the economic health of New London County (home to the Groton submarine base and the port of New London) was particularly reliant upon defense spending, with 39 percent of the county’s total income in 1984 dependent upon defense contracts (Connecticut Economic Digest 1996b: 2). As Connecticut’s manufacturing sector contracted during the latter part of the twentieth century, its service sector expanded. Indeed, as the state was losing more than 100,000 manufacturing jobs between 1987 and 1995, it was gaining 82,400 jobs in the service sector (Connecticut Economic Digest 1996a: 2–4). By the end of 2005, the state’s service sector employed nearly 542,000 people, more than 158,000 more people than it had employed in 1987. Accordingly, as the state’s high-paying, highly skilled manufacturing sector was declining by more than 50 percent to its current 197,600 jobs, its lower-paying, lower-skilled service sector was expanding by nearly 30 percent to its current 542,000 jobs (Connecticut Economic Digest 2006: 12).14 Emphasizing how casino employment is a part of these long-term, negative changes in Connecticut’s economy thus seems a relevant, even obvious, point of critique. Casino opponents consistently refuse to make this broader point, however. They refuse, that is, to interrogate the context in which casino employment has emerged as an important part of the Connecticut economy in general and the region’s economy in particular. This evasion leads opponents to portray casino employment as uniquely negative, even as it encourages them to downplay its potentially positive impacts on the local economy. To be sure, opponents are correct that the salaries for most jobs at each of the casinos are entry level and are, thus, consistent with the salaries of service jobs everywhere. They are also correct to emphasize that low salaries are incommensurate with various living-wage logics and proposals. Studies conducted by the National Gambling Impact Study Commission in 1998, for example, found that the average salaries at tribal casinos were about $18,000, though average salaries at both Foxwoods and the Mohegan Sun were, as of 2004, higher (about $25,000) (National Gambling Impact Study

120   We Don’t Believe in the Promised Land Commission Report 1999: 7–8; Daily Free Press 2004: 1). Moreover, a compre­ hensive survey conducted in 2005 by the University of Nevada–Las Vegas’s International Gaming Institute, in conjunction with Wage Watch, Inc., indicated that tribal-casino jobs were less well compensated (by 7 per­cent) on average than were equivalent jobs in the hotel industry as a whole (Hospitality Industry 2006). Although these figures do not include tips, and so should perhaps not be considered definitive, most tribal-casino jobs are nevertheless relatively low paying. However, there is a critical difference between most tribal-casino jobs (especially those in southeastern Connecticut) and other low-paying ser­ vice jobs (such as at Wal-Mart and Target). Whereas the large superstores that are a crucial part of the contemporary service economy are predators, killing off independent businesses and higher-paying jobs wherever they locate, tribal casinos typically add jobs where few had previously existed. Although this is especially the case in southeastern Connecticut, this pattern holds with tribal casinos throughout the nation, which are usually located in rural locations that frequently lack meaningful economic infrastructure. Accordingly, with respect to jobs, tribal casinos in general, and Connecticut’s in particular, are in the worst analysis on a par with major retailers such as Wal-Mart. Given the rural areas in which most of them are situated, and the relative lack of other opportunities in these areas, however, tribal casinos should perhaps be better understood as crucial economic engines that provide employment to otherwise barren regions. In addition, whereas the social costs of gambling are at least debatable, the damaging social, economic, and environmental impacts that such major retailers as Wal-Mart have on local communities are not (see, e.g., Head 2005 and Fishman 2006). The implication that tribal gaming is a uniquely damaging form of economic development overlooks key factors and associations, divorcing the enterprise from the regional, historical, and economic contexts in which it is situated. This is not to say that gambling is without costs: it is to emphasize, as in Rose’s comprehensive review, that “Economic theory and the preponderance of the evidence indicate that the aggregate direct and indirect impacts of the construction, operation, and taxation [where applicable] of casinos are significantly positive. Broader economic costs relating to such factors as the use of government services and changes in property values are not insignificant, but they do not come close to canceling out the more conventional output, income, and employment gains” (Rose 1998: i). Yet such complexity is drained from the opponents’ attacks on tribal ca­ sinos, which are unremitting in their portrayal of communities as uniquely under assault from irresponsible Indian activism. At the same time, the

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opponents’ failure to articulate the relationship between casino employment and the shifts in Connecticut’s economy over the previous 20 years leads them to at once downplay the necessarily, if not satisfactorily, positive impacts of the existing tribal casinos on the economy of southeastern Connecticut. A second cause of opponents’ resentment also goes undiagnosed. Connecticut politics has historically followed a dual, intertwined trajectory. This trajectory has become considerably altered in contemporary times, arguably leaving the state’s citizens with a government that is at once less representative of, and less responsive to, their interests. On one hand, the state’s residents have historically emphasized the importance of local (i.e., town) control over most aspects of society and government. On the other hand, this tradition of local control, which has declined over the course of the twentieth century, intersected with a tradition of machine politics that deemphasized popular spectacle and focused instead on substantive governance. Although there is good reason to appreciate the loss of each tradition, their disappearance has also had a negative impact on the ability of the state’s citizens to leverage governing institutions on their behalf. Indeed, political scientist Duane Lockard’s 1959 assessment—“in the final analysis it does seem that the Connecticut political system turns out to be reasonably responsive to public demands” (Lockard 1959: 304)—was by 1992 eclipsed by political scientist Gary Rose’s far more pessimistic one. Connecticut’s “state political system,” he wrote, “has failed the state’s citizenry” (Rose 1992: x). Local control is deep-seated in Connecticut practice and contributed to two distinctive traits of Connecticut government.15 First, the emphasis on town, not county or state, command contributed to the selectmen-townmeeting form of government and later, the “home-rule” movement. The selectmen-town-meeting form, which is still practiced in many areas of the state, was in the early 1950s the predominant form of government in rural Connecticut (McKee 1983: 31). Prevalent throughout New England, this form of government relies upon, first, the election of a number of selectmen who conduct and oversee town affairs on a daily basis and, second, an annual public meeting of eligible community members at which budgets, legislative changes, and policy priorities are determined. Often, particularly contentious issues (typically those involving budgets) are tabled and decided according to the results of a later referendum. As some democratic theorists argue, the selectmen-town-meeting form offers one of the more robust sites for participatory democracy available in America, past and present (Mansbridge 1983). As McKee (1983) notes, however, the democracy practiced according to the selectmen-town-meeting form is not particularly well suited to

122   We Don’t Believe in the Promised Land localities that feature expansive and diverse populations, and so has been eschewed in Connecticut’s more populous towns and cities. Moreover, over the last several decades many towns have abandoned the selectmentown-meeting form in favor of other, more bureaucratized, governmental forms (especially the town-manager form, which is nonpartisan in nature) (Doyle & Milburn 1981: 34–40). Accordingly, in many parts of Connecticut experts and planners have replaced the citizen legislators idealized by the selectmen-town-meeting form. Still, Connecticut’s town meetings maintain practical and iconic value; still practiced in many towns, the town meeting is a symbol of Connecticut’s populist orientation. Additionally, the home-rule movement, in which towns are statutorily authorized to conduct their methods of governance as they wish, reinforces the emphasis on local control over basic governmental prerogatives and activities, even in the absence of the town-meeting format (McKee 1983: 28–34; McKee & Petterson 1997: 119–120). And yet, local control over several critical issues (such as public education16) has undoubtedly waned. Connecticut’s commitment to local control, and its contemporary decline, is also reflected in the transformation of the state’s apportionment politics. Prior to its invalidation by the U.S. Supreme Court on Fourteenth Amendment equal protection grounds in 1965, apportionment in the state House of Representatives was based upon unit, not population. Under this scheme each incorporated town in Connecticut was awarded one representative in the state’s House of Representatives, and each town with a population of more than 5,000 was awarded two (but not more) representatives. The rural areas in Connecticut, particularly in the state’s southeast region, were thus vastly overrepresented proportionally, whereas the state’s cities (New Haven, Bridgeport, and Hartford) were woefully underrepresented. Malapportionment translated into enormous power and in­fluence for the rural, mostly white, regions of the state and little influence for the more densely packed, increasingly minority, urban areas. “The method of apportioning the House of Representatives,” wrote Lockard in 1959, “results in granting majority control over that segment of the government to a small minority of the people who live in the small towns” (Lockard 1959: 271).17 Those who lived in southeastern Connecticut—the population from which the vast majority of anti-casino activists is drawn—thus once enjoyed pronounced influence in Connecticut politics. Until 1965 the small towns that dot southeastern Connecticut held a trump card over Connecticut state politics, able to sway and block proposed legislation as befit local constituents (Lockard 1959: 273–274; McKee 1983). The reapportionment adopted by the state legislature was based on population and not

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on unit and so was, and is, far more representative, affording much greater influence to the more densely populated areas of the state. Reapportionment is certainly a democratically legitimate transformation of Connecticut’s political system, but it has undercut the power base of just those citizens who, as we shall see momentarily, would now most benefit from increased influence in the state legislature. When combined with the general trend toward centralization in all areas of governance, the long-term impacts of reform become clear. Once prominent players in a political system that was structured to exaggerate local authority, Connecticut’s rural residents now wield far less influence over public policy. So too has the decline of the second traditional aspect of Connecticut politics—machine politics—lessened access to state government for Connecticut’s rural residents, if in a more general sense. As was the case elsewhere, Connecticut’s political machines depended on strong political parties, which controlled both the nominating and the legislative pro­ cesses. During the twentieth century, party leaders John Bailey (D.) and J. Henry Roraback (R.) played the familiar roles of boss, directing floor votes and legislative agendas from their offices in the state legislature in Hartford.18 Noting that “the parties of Connecticut exert great authority as instruments of government,” Lockard’s 1959 account concluded that “in Connecticut the party leadership is the real leadership of the legislature” (Lockard 1959: 244, 278). Connecticut’s machines retained power long after the demise of po­ litical machines elsewhere. Not until 1955, with the introduction of the party primary, did the first dents in the party system appear. Even then, the impact of the primary was mitigated by the rule that required all can­didates for the party nomination to receive at least 20 percent of the delegates at that party’s earlier nominating convention. Party bosses, who typically exercised great influence over local party members and so also over the voting delegates, thus effectively retained the ability to determine the party’s nominees (Lockard 1959: 256–257). Accordingly, uncontested primaries remained the norm. Between 1955 and 2004, only 47 of a potential 480 primaries for major statewide and national offices were actually held.19 In contrast to other, more notorious, political machines, Connecticut’s machines were relatively unmarked by the strong-arm tactics that define the popular image of political machines. The corruption, fraud, and intimidation that animated New York’s Tammany Hall or Richard Daley’s Chicago, for example, were mostly absent from Connecticut’s party system. Lockard attributed Connecticut’s upright politics to its highly competitive two-party system and its (then) absence of gambling (Lockard

124   We Don’t Believe in the Promised Land 1959: 266–269). Although hardly forums for robust political exchange, Connecticut’s parties exercised influence in more subtle ways, eschewing coercive techniques for persuasion through patronage and other services. There was, though, a primary similarity between Connecticut’s politicalmachine system and those of other states. For all of the legitimate critiques that can, and have been, leveled at strong political party systems, scholars nevertheless note their one central, arguably democratic virtue: Whatever else they did, machines created a politics that was emphatically not candidate centered. The rise of candidate-centered politics is, in fact, generally recognized as a harbinger of party decline (Beck & Sorauf 1992; Wattenberg 1994).20 Scholars argue that much of value to democratic practice has been lost by the transition from party-centered to candidate-centered politics. The contemporary spectacle of electoral politics, in which individual candidates are responsible for their own campaigns and so are constantly in re­ election mode, has given rise to a politics that is frequently divorced from substantive vision. Logics of governance are all too often pushed aside by the politics of spin and by empty sloganeering—each of which is understood as vital to bolstering one’s reelection chances. Accordingly, some scholars have argued that a stronger party system would generate a more representative politics, one in which the party platforms and governing philosophies for which constituents voted would be consistently pursued once a party attained power (Schattschneider 1942; American Political Science Association 1950). Scholars further trace the rise of voter apathy and alienation, at least in part, to the decline of party strength over the course of the twentieth century (Beck & Sorauf 1992; Wattenberg 1994). Without a central organization articulating and pursuing substantive policy agendas (even if those agendas are meant to win elections), voters lose efficacy and, eventually, interest in the governing process. Moreover, strong parties arguably offer a more responsive politics as well. The logic of the political machine—constituents trade votes for governmental largesse and other services—suggests, from one perspective, an eminently democratic process in which one literally gets that for which one votes. Usually much less virtuous in practice, and often working less as fair exchange and more as a method for co-opting emerging voting blocs, especially immigrants (Rogin 1967: 192–206; Erie 1992), the political machine was, nevertheless, necessarily mindful of the wants and needs of at least part of the voting public. In spite of their regular paeans to the public interest, it is dispiritingly easy to identify the general indifference of many, if not most, elected officials to the interests of constituents. The insulation between elected officials and the voting public was once mini-

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mized by the presence of political parties that bought votes with services and patronage; the deflation of political parties in contemporary times leaves a yawning gap between the reelection prerogatives of those who govern and the everyday interests of those who are governed (Beck & Sorauf 1992: 78–82; Rose 1992: 4–5). Although the party system in Connecticut remained strong long after it had faltered elsewhere, by the mid-1980s it was clearly in decline. Contributing to the rise of candidate-centered politics were changes in statutes (such as the abolition in 1986 of the “party lever”—with which the voter could select the entire party ticket with one motion) and changes in the political visions of Connecticut residents (especially the rise of nonpartisan voters) (McKee 1983; Rose 1992: 13–19; McKee & Petterson 1997: 120–121). The most obvious manifestation of this change occurred in 1991 when Lowell Weicker (a former U.S. Senator) abandoned the Republican Party and ran for governor as an independent. Shocking observers, Weicker won statewide office without the backing of either of the major political parties—a result that was formerly unimaginable.21 Then, as if to underscore the point that scholars make about the decline in representative government that occurs with candidate-centered politics, once in office Weicker violated his own campaign pledge, signing into law a bill that created the state’s first income tax (Rose 1992: 20-24; McKee & Petterson 1997: 130). There is little reason to mourn the decline of Connecticut’s traditions of local control and machine politics. For one, both local rule and political parties remain important, though not dominant, features of Connecticut’s politics. The home-rule movement remains important and political parties continue to offer logistical support and personnel to candidates. It would be misleading to conclude that Connecticut’s political system has entirely abandoned either local control or the strong parties that were once its hallmarks. Those traditions have eroded significantly, however. Local control and machine politics contributed some legitimately democratic elements to the state’s political system, but they also often contributed to both the maintenance of unfair hierarchy and the stifling of dissent, discussion, and opportunity. The anguish that Rose (1992: 96) expresses over the demise of machine politics, for example, is overwrought. Nevertheless, the impacts of the decline of local control and machine politics should be appreciated. Once favorite sons and daughters, Connecticut’s rural residents have in recent times lost their stranglehold on the state’s politics and, with it, the atypical representation and response from state government that they once enjoyed. Illustrative of this decreased influence is the operation of the Mashantucket Pequot–Mohegan Fund and

126   We Don’t Believe in the Promised Land the frustrations experienced by the towns most affected by the casinos in their efforts to gain more revenue from the fund. The fund was established as a condition of the gaming compact signed between the MPTN and Connecticut in 1993. The Mohegan Tribal Nation opened its own casino in 1996, having in 1994 agreed to the same terms with the state as had the MPTN. According to that compact, each tribe pays to Connecticut 25 percent of their annual slot-machine profits or $100 million (whichever is greater). Between 1993 and 2005 the tribes made more than $3 billion in direct payments to the state, contributing more than $417 million in 2005 alone (State of Connecticut 2006). The Pequot-Mohegan Fund distributes $135 million of this payment annually to Connecticut’s 169 municipalities according to a formula based on such factors as population, the number of hospitals and private colleges that a town hosts, and the amount of state-owned property in each municipality (Connecticut General Statutes, Sec. 3-55i, Sec. 3-55j, & Sec. 3-55k). There are two important points. First, the Pequot-Mohegan Fund comprises a relatively small amount of the direct payments made by the tribes to the state, slightly less than one-third in 2005. The remaining amount of the direct payments is used by the state legislature to fill deficits in the annual budget, to fund spending projects, and to bolster the state’s “rainy day” fund. The Pequot-Mohegan Fund is thus a vital source of governmental revenue, even though comparatively little of that fund is used to respond to the impacts of the casinos themselves. Second, the formula by which towns are awarded their annual grants from the Pequot-Mohegan Fund makes little allowance for those towns that are closest to the casinos. As anti-casino opponents accurately note, the casinos do have substantial impacts on the infrastructure of local towns, increasing the towns’ needs for traffic control, emergency services, and, occasionally, social services (such as public education). It would thus be appropriate for the casino funds to be distributed in ways that gave favored status to towns such as Ledyard, Preston, and North Stonington. The statutory criteria used for determining the amount of a town’s award do not include proximity to the casinos as a factor, however. Indeed, the criteria clearly favor the state’s larger municipalities; such cities as New Haven, Bridgeport, and Hartford receive much larger payments than do the smaller towns of southeastern Connecticut that are much more directly affected by the casinos. Although the legislature did eventually amend the statute in 2002, granting additional (modest) payments to the affected communities, the statutory criteria continue to disproportionately favor Connecticut’s large municipalities. The administration of the Pequot-Mohegan Fund thus deprives those most affected by tribal casinos of a potentially useful resource. Consid-

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ered in light of the shifts in Connecticut’s political system, it is unsurprising that the small towns have had little success in attempting to remedy the imbalances in the Pequot-Mohegan Fund. Their one victory—the amending of the statute in 2002 to grant additional payments to the towns of Ledyard, Montville, Norwich, North Stonington, and Preston—was modest. Seeking a greater share of the fund to offset significant increases in town spending as a direct result of casino impacts, the towns were able to secure only an additional $500,000 annually (Connecticut General Statute, Sec. 3-55j). Unable to influence legislation as in years past, rural towns are marginalized by the newfound influence of Connecticut’s cities. Without a strong political party system to access, rural citizens receive increasingly less responsive and representative government from the state legislature. There is little evidence of mobilization around the inequitable distribution of the Pequot-Mohegan Fund. Although local officials often justifiably complain about how little of the state’s casino revenue their towns receive, there is little of the fervor around this issue that exists around the issue of the casinos themselves. This acquiescence pervades the ranks both of local elected officials and of grassroots activists. One might argue that the refusal to mobilize against the blatantly unfair distribution of the Pequot-Mohegan Fund is the consequence of rational calculation. After all, given the decline in the responsiveness and representativeness of Connecticut’s political system, there is little reason to believe that political mobilization would be successful. Perhaps, then, citizens have made a strategic decision to accept what they cannot change and to instead focus upon combating the evils of tribal casinos and the treaty rights that enable those casinos. Yet there is also little reason to believe that the extensive mobilization efforts undertaken by those same elected officials and grassroots activists against tribal casinos and treaty rights will be successful. The overturning of the EPTN recognition notwithstanding, the reforms sought by the anti-treaty-rights movement would require significant changes in a congressional policy (self-determination) that has enjoyed broad support for almost 35 years. Locally, in Connecticut, casino revenue has become untouchable. It is a revenue stream that is essential for meeting governing prerogatives. It is thus unlikely that the Connecticut legislature would take action to compromise either existing or future casino revenue, regardless of how sympathetic individual lawmakers may be to the local anti-tribalcasino movement. There is just as little cause to be optimistic about the anti-treaty-rights agenda, both nationally and locally, as there is, for example, about the prospects of recalibrating the distribution of the PequotMohegan Fund. A purely instrumental explanation thus fails to make sense of why mobilization occurs with one issue, but not with the other.

128   We Don’t Believe in the Promised Land One explanation lies in the prerogatives of Connecticut’s highest-profile elected officials. Both national and statewide officeholders are, with rare exceptions, either unable or unwilling to confront the long-term shifts in Connecticut’s economy and politics that have increasingly rendered the state’s blue-collar, rural populations insecure. Indeed, vigorous, coordinated, bipartisan efforts such as the one in 2005 that succeeded in removing the Groton Submarine Base from the Department of Defense’s recommended closure list are exceptional. To be sure, few policy decisions generate the clear and immediate consequences that the closure of the submarine base would have. And yet, the paucity of leadership and imagination shown by Connecticut’s major elected officials as the state’s economic and political spheres became increasingly inaccessible and undemocratic is striking. The major reform movements of the previous generation—for economic justice, for school desegregation, for electoral reform—found in local officials (mayors, school boards, town councils, etc.) their strongest supporters (see, for example, Jacobs 2006). Perhaps from reticence, perhaps from investment in the status quo, Connecticut’s governors, attorney generals, and congressional rep­ resentatives have consistently failed to represent the public interest. All of this makes the unwavering support that those same officials have shown for the anti-tribal-casino movement jarring. Much of the movement’s momentum, in fact, comes from the support of Connecticut’s major elected officials. The state’s congressional delegation, for example, has offered staunch, bipartisan support for the movement’s goals. Indeed, its members have gone beyond the typical platitudes and offerings of sympathy; they have organized local meetings, testified before congressional committees, introduced legislation in Congress, and made casino issues a major part of their campaigns. With the exception of First District Representative John Larson, who is unsympathetic to casino opponents, the seven-member delegation has done seemingly everything in its power to mitigate the impacts of the existing tribal casinos and to preempt the estab­ lishment of future casinos. At the state level, casino opponents have long enjoyed the zealous support of Attorney General Richard Blumenthal and now count Governor M. Jodi Rell (who won reelection in 2006 with 63 percent of the popular vote) as an ally. Having successfully expanded the scope of conflict to the terrain of formal politics, Connecticut’s anti-tribalcasino movement can point to the support of the state’s most-recognizable public officials as evidence of the rightness of their cause. This support is, from another perspective, unsurprising. Without impugning the sincerity of their support for the anti-tribal-casino movement, it should be recognized that supporting the resentment of anti-casino activists is much easier than confronting the intractable economic and poli­

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tical transformations that generate that resentment in the first place. Such support allows Connecticut’s highest-ranking public officials to be responsive to constituent wants at the same time that they avoid upsetting the status quo economic and political relationships that have disempowered those same constituents. Indeed, supporting the movement’s claims that the tribal casinos are responsible for the attack on Connecticut’s rural way of life allows policy elites to ignore how the growth of a service economy and the decline of responsive and representative state government have done far more damage to that way of life. Nor is this support without its drawbacks for the anti-tribal-casino movement: Just as in the Puget Sound fish wars explored in Chapter 4, where the expansion of conflict into the formal arenas of government introduced institutional prerogatives that eventually deradicalized the countermobilization to the Boldt decision, so too does the introduction of the casino issue into formal politics generate ambiguous consequences. These consequences have less to do with ingrained institutional prerogatives and more with the news worth of high-ranking public officials. As I have argued, obsession with the impacts of tribal casinos and the supposed biases of the BIA pervades the ranks of Connecticut’s anti-tribal-casino movement. The endorsement of this understanding by the state’s highestprofile public officials, however, solidifies its dominance in the discursive field that envelops the casino issue; their influence and celebrity help casino opponents to set public understanding with the notion that tribal casinos, and the treaty rights that enable them, threaten the fabric of Connecticut’s traditional lifestyle. This setting of public understanding is a boon to the anti-tribal-casino movement. When disinterested residents discuss the introduction of future casinos into the state, they frequently proceed from the understanding that casinos have overwhelmingly negative effects (Center for Survey Research and Analysis 2002). The content of public understanding is thus evidence of the significant indirect impacts of the anti-tribal-casino movement. To the extent that it has been responsible for setting public understanding—a source of long-term advantage to movement goals— the support of Connecticut’s statewide elected officials is a cause for anticasino activists’ celebration. That support, however, undermines the movement’s elemental goal: the lessening of the uncertainty and anxiety—the resentment—that originally motivates anti-casino activists. Encouraged both by their own specialrights talk and by the state’s highest-ranking public officials to view themselves as hostages to tribal casinos and the special treaty rights that enable those casinos, the predominantly rural anti-casino activists attribute their increasing economic insecurity and decreasing political influence to the

130   We Don’t Believe in the Promised Land pernicious effects of tribal casinos. Existing and potential future casinos are thus figured as the causes of the negative changes in rural Connecticut’s way of life. Ignoring the many positive effects of those casinos and dwelling instead on a smaller set of ( justifiable) concerns, activists fail to scrutinize the long-term changes in Connecticut’s economy and politics that are far more responsible for their resentment. Recall how opponents of the Boldt decision became so consumed with Indian treaty rights that they consistently supported radical, unrealistic legislative proposals at the expense of moderate, more promising proposals (see Chapter 4). So too does obsession with treaty rights lead Connecticut’s anti-casino activists to pursue unpromising mobilizations against Indians and eschew mobilizations that, if successful, would much more clearly support their material interests. Complementing the opponents’ arguments that tribal casinos, and the EPTN casino in particular, are uniquely damaging is the claim that the EPTN is not an authentic Indian tribe. It is not, therefore, due federal rec­og­ni­tion. This claim feeds into the third broad script upon which opponents rely: that the federal recognition process is fatally flawed and must be reformed in order to assure its legitimacy. fraudulent identity The fraudulent-identity claim is relatively popular with the grassroots opponents, who periodically use it to stir up moral indignation against both already recognized tribes (especially the MPTN) and petitioning tribes (including the EPTN). Indeed, the claim received extensive attention as a result of its prominent role in Jeff Benedict’s Without Reservation. The book, which explores the rise of the Mashantucket Pequots from obscurity in the early 1970s to operators of the most profitable casino in the nation by the mid-1990s, relies heavily upon Benedict’s insinuation that present-day Mashantuckets are unrelated to the historic Pequot tribe. Instead, Benedict argues that some members are Narragansett (a Rhode Island–area tribe), and others (including the Hayward line, which resurrected the tribe in the 1970s) are Caucasian. Benedict is particularly hard on Skip Hayward, who, as architect of the tribe’s revival, served as its first contemporary tribal chairman and whose visionary efforts led to the construction of Foxwoods Resort and Casino. Accusing Hayward of serially trying on new identities until he found the one that was most profitable, Benedict details how Hayward inherited the barren 200-plus acre Mashantucket Pequot reservation (near Ledyard) from his grandmother Elizabeth George. Although George always understood herself to be Pequot, Benedict claims that there is no evidence of this ancestry. 22 When combined with Hayward’s early history of self-identification as Caucasian,

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Benedict considers this lack of evidence to be the smoking gun that proves that present-day Mashantucket Pequots are frauds (Benedict 2000). This allegation focused a great deal of attention both on the Mashantucket Pequots and, more generally, on the tribes petitioning for federal recognition. It inspired the 60 Minutes II feature discussed earlier and, more importantly, the formation of a whole series of local citizen groups that oppose both existing and expanded tribal gaming. These groups—including Benedict’s own CAACE, the curiously named Tribal Nation, and the afore­ mentioned Town Action to Save Kent—have consistently questioned the ancestry of petitioning tribes and, accordingly, their motives for seeking federal recognition.23 Also as in Benedict’s tome, these groups consistently portray the “ordinary” citizens of southeastern Connecticut—earnest, hard-working, unsuspecting property owners—as the innocent victims of rapacious and fraudulent tribes. Tribal Nation proselytizes: [We] want the world to know what is happening on [Indian] reservations, in [our] towns, and in [our] communities. We want the world to know: What has happened to the small towns where these tribes and casinos now reside. What could happen to your town if a [sic] Indian casino opens for business. How you are now the VICTIMS of reverse discrimination, your loss of rights, and how you are considered a third class citizen compared to these “tribal members.” How these “Indian tribes” and their casinos are allowed to practice “Indian preference” with regard to hiring practices. [Tribes] place the communities, the towns, and the individuals surrounding them into political, social, and economic chaos. (Tribal Nation 2005)

Indeed, Tribal Nation has its bases covered; as they suggest, even “authentic” tribes have special rights that would subject ordinary Americans to at best second-class citizenship, if not the third-class citizenship that one suffers when under the heel of fraudulent “Indian tribes.” Accordingly, even if the EPTN could have adequately answered the gaps in evidence in its recognition application (which the citizens’ groups uniformly insisted that it could not), Eastern Pequot activism would still have been unfair and un-American. Although elected officials seem to share the suspicion that petitioning tribes are potentially made up of enterprising non-Indians, they rarely voice it. Indeed, the most notable thing about the claim of fraudulent identity in the EPTN case, for example, is how rarely elected officials offered it, at least explicitly. Instead, in their public comments, testimony before government commissions, and legal briefs, elected officials made the claim circuitously, preferring a formulation that denied that the EPTN had met each of the seven criteria that BAR requires for recognition. In their public comments, in fact, there were few examples of an elected official directly

132   We Don’t Believe in the Promised Land denying, or questioning, the ancestry of the EPTN’s membership. The more common formulation was to insist that the EPTN had not proven a continuous political identity and that it had for significant stretches of its contemporary history lacked a meaningful governing apparatus. Attorney General Blumenthal, for example, referred to the EPTN not as an illegitimate group of non-Indians but rather as an “undeserving petitioner” (Blumenthal 2002: 4). Similarly, North Stonington First Selectman Mullane recognized the “understandable desire of [the EPTN] to achieve acknowledgment for personal and cultural reasons,” but emphasized that the “later residents of the Pequot reservation” have failed to make their case for continued “internal tribal community or political authority” (Mullane 2002: 2, 7). Or consider Governor Rell: “If a tribe can meet the requirements established by federal law to win federal recognition, it should be given all of the rights and privileges to which it is entitled. If a tribe cannot meet such criteria it should not be granted recognition” (Rell 2005: 3; emphasis added). Note that Rell described the EPTN not as a group, or a family, but as a tribe; but one that cannot satisfy the criteria for recognition and whose application should be denied. Elected officials thus seemingly go out of their way to avoid the inflammatory formulations that many grassroots activists prefer; but the implication of fraud remains. Consider, for example, this formulation by Robert Simmons, whose former congressional district includes North Stonington: “We all agree that legitimate groups need to be granted the federal status they deserve and accorded their sovereign rights, but the determination to acknowledge such tribes cannot and should not be made unless these groups clearly meet each of the seven criteria” (Simmons 2005: 3; emphasis added). Legitimate groups, he argues, are those that unassailably meet BAR’s criteria. All others, by implication, are illegitimate, looking for rights to which they are not entitled. Any doubts, for example, about a group’s genealogical record thus apparently indict that group as a fraud whose application must be rejected. In the face of uncertainty, or a dearth in accepted forms of documentation, Simmons seems to be arguing, one should presume that the petitioner’s claim is illegitimate and probably fraudulent. Such a presumption means that the recognition of a tribe that lacks a well-documented history can be explained only by imputing bias to the federal-recognition process. a broken process Indeed, activists and public officials frequently assail the “broken” recognition process. There are here a variety of critiques that unite officials and the grassroots groups. First, opponents allege that the process is closed to those people and entities who are most affected by recognition: non-

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tribal community members and local and state government. Attorney General Blumenthal, in fact, resorted to filing suit against the Department of the Interior following the EPTN’s preliminary recognition in order to gain access to relevant documents that BAR did not produce before the end of the 180-day comment period. Although BAR claimed that its staff lacked the time and resources to satisfy the State’s entire request, which was for copies of a substantial number of documents, Blumenthal interpreted the delay as intentional obstruction (Blumenthal 2002). Similarly, First Selectman Mullane alleged that BAR punished the towns of North Stonington, Preston, and Ledyard for submitting a joint brief in opposition to the preliminary approval of the EPTN’s petition. As a penalty, claimed Mullane, BAR changed the deadline for submitting new evidence for use in the final determination and did not inform the towns of the change (Mullane 2002). Mullane’s complaint highlighted the opposition’s second critique: BAR is biased toward Indians, willing to sidestep its own criteria in order to recognize even undeserving tribes. Opponents trace this bias to the BIA’s dual mission. The BIA exists, in principle, both to manage Indian affairs and to act as an advocate for Indian interests.24 Opponents charge that BAR unsatisfactorily works out this dual mission in practice. Rather than struggling with potentially competing priorities, opponents claim that BAR has instead chosen to become an unabashed advocate for petitioning tribes. Such bias was supposedly apparent in the Eastern Pequot case at several points: Assistant Secretary Gover’s unprecedented decision to ignore his researchers’ initial conclusion; Gover’s similarly unprecedented instruction that researchers give great weight to the fact of state recognition of the EPTN in order to help make up for deficiencies in the evidentiary record; a confidential and closed meeting that new Assistant Secretary Neal McCaleb held with the competing factions of the EPTN following preliminary recognition; and, finally, BAR’s unprecedented merging of two distinct recognition applications into one—a consolidation that was required, opponents asserted, because together the two factions made a more believable case for recognition than either made apart (Blumenthal 2002, 2003; Mullane 2002; Benedict 2004; Lieberman 2005; Rell 2005). If BAR is biased toward recognizing unqualified tribes, the outcomes of recognition decisions do not provide much support for the thesis. Created by congressional statute in 1978 (25 C.F.R. Part 83), BAR had, as of 2002, issued final determinations on thirty-four acknowledgment ap­plica­ tions: fifteen petitioners were acknowledged as Indian tribes and nineteen were denied. There is, though, a large backlog of applications. Indeed, 235 ap­pli­ca­tions were in varying degrees of readiness in March 2004 (Fleming 2004: 1). Although the possibility exists that the decisions on future

134   We Don’t Believe in the Promised Land applications will be biased toward recognition, there is little evidence that this has so far been the case. Opponents thus tend to stress the possibility, not the historical fact, of bias. Blumenthal, for example, summarizes the biases of the process and introduces opponents’ third major critique: the recognition process has been corrupted by the participation of wealthy gaming interests: “Fatally flawed and desperately in need of repair, the present recognition pro­­cess has been ruled by too little law or objective, open fact-finding—and has proven to be susceptible to improper influences of power, money and politics” (Blumenthal 2002a: 1). Indeed, opponents charge that the recognition process is replete with improper associations and influences. Foremost among these is the position of wealthy financiers, who provide crucial funding for many petitioning tribes to hire the lawyers, historians, anthropologists, even lobbyists that tribes insist are necessary to meet the imposing recognition criteria. In exchange for funding recognition applications, entrepreneurs typically sign on to be managing partners of any future casinos for a period of up to as many as seven years (the maximum number of years, according to IGRA, that a nontribal entity may manage a tribal-gaming facility) and to take a certain percentage of the casino’s proceeds during that period. It was this relationship that one faction of the EPTN (the Paucatuck Eastern Pequots) had with Donald Trump that went sour following BAR’s merging of the two factions. According to Jeff Benedict, the relationships between petitioning tribes and outside entrepreneurs creates a “scandalous nexus” that gives these financiers “undue influence” over the recognition process. Indeed, “the actions of a few federal bureaucrats, combined with the investment of tens of millions of dollars by gambling financiers, have manipulated federal law . . . the future of the State of Connecticut is at risk” (Benedict 2004: 4, 5). Congressional representative Christopher Shays agrees: “The influence exerted by the huge, undisclosed sums being poured into the process has distorted the tribal recognition process to the point where it bears no resemblance to its governing statuses and regulations.” Accordingly, these private investors should be “rooted out from the recognition pro­ cess” (Shays 2005: 2). Impenetrable, biased, and corrupt, the federal-recognition process is, according to opponents, sorely in need of reform. The recognition of tribal nations bestows special rights and privileges upon (potentially fraudulent) tribes, who then use them to open highly profitable casinos. Recognition thus gives tribes a “license to print money” (Shays 2005: 1). In so doing, it threatens ordinary American citizens with economic and social costs that their communities are unable to absorb. Indeed, “as casino gambling has

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rapidly swept the country,” instructs Jeff Benedict, “it has transformed communities overnight . . . Make no mistake about it. Life in Connecticut will never be the same if this process is not stopped and corrected. Otherwise, the BIA will transform Connecticut from the ‘Constitution State’ to the ‘Casino State’ ” (Benedict 2004: 2, 5).

IV. Conclusion May 2005 was a watershed month for Connecticut’s anti-tribal-casino movement and perhaps for the national anti-treaty-rights movement itself. First, Connecticut’s elected officials were able to convince Senator John McCain, the new chair of the Senate Committee on Indian Affairs, to hold hearings dedicated to examining the federal-recognition process.25 The first of these hearings, held in Washington, D.C., on May 11, featured a witness list dominated by Connecticut’s own: Senators Dodd and Lieberman; Representatives Shays, Johnson, and Simmons; and Governor Rell (in her first trip to Washington). It also featured the testimony of Kenneth Cooper from the grassroots Town Action to Save Kent. Neither Richard Blumenthal nor Jeff Benedict, who have each meant so much to Connecticut’s battle against tribal casinos, were invited to testify before the committee. Each, though, must have been heartened to hear their concerns, and so many of their formulations, being taken seriously by one of the country’s most well-known politicians. They were both far more heartened the next day, May 12, when the Interior Board of Indian Appeals (IBIA) issued an unprecedented ruling, overturning the 2002 Eastern Pequot recognition decision. The board found that BAR had not satisfactorily explained just how the evidence of state recognition was being used to patch significant gaps in each petitioner’s application. Moreover, although the board accepted a history of state recognition of tribes as a valid form of evidence, it held that it could serve only as supplementary, not primary, evidence. A history of state recognition could not by itself substitute for more concrete forms of evidence, such as a history of governmental proceedings, community gatherings, and formal control over members (41 IBIA 1). The decision was vacated and remanded to Assistant Secretary of Indian Affairs Jim Cason for reconsideration. In October 2005, Cason rejected the EPTN’s petition, effectively ending its bid for federal recognition and, also, a casino (Department of the Interior 2005).26 Governor Rell’s victory statement following the IBIA decision reads as a fitting tribute to the anti-tribal-casino movement’s countersubversive efforts. The decision, she claimed, was “a big win for the people of Connecticut. If granted, [this] recognition would have destroyed the historic

136   We Don’t Believe in the Promised Land small town character of many communities in . . . eastern Connecticut” (New London Day 2005). Movement activists couldn’t have agreed more. Indeed, activists’ successes have validated their resentment of tribal casinos. However, as I have argued, these successes have not helped them protect themselves against the long-term economic and political processes that inspire their resentment in the first place. Yet the activism of casino opponents in Connecticut links them, first, to the Boldt-decision opponents explored in Chapter 4 and, second, to the anti-treaty-rights movement itself. Their resentment cultivated by rights talk—by the simultaneous condemnation of special treaty-rights and celebration of their own equal rights, that is—they are countersubversives all, convinced that their zealous opposition to Indian activism serves both personal and national interests. With respect to the first goal, the defense of personal interests, the evidence shows that anti-treaty-rights activists consistently misdiagnose the sources of pressures to their livelihoods. This misattribution of blame, accordingly, leads activists to direct their rancor against the relatively unharmful treaty rights of Indians and exonerates harmful economic and political processes from scrutiny. Moreover, the complicity of public officials with such disempowering structural factors also goes unnoticed. Activists’ special-rights talk is thus a poor antidote for the resentment that inspires their activism in the first place. However, their special-rights talk is undeniably effective in forwarding a particular vision of America. Activists imagine that the nation is under assault from, on one hand, the deviant rights claims of Indians and, on the other hand, witless governmental officials ( judges in the case of the Boldt decision, bureaucrats in the case of tribal casinos) who are duped by those rights claims. Simultaneously embattled and forgotten, anti-treaty-rights activists envision themselves as the victims of a nation that no longer appreciates the sort of industrious and virtuous citizenship to which they aspire. This vision of an America under siege from the unprincipled activism of the socially marginal is widespread; it links anti-treaty-rights activists to a variety of other countersubversives. In so doing, it at once allies them with New Right politics and situates them within the American culture wars. The next chapter, the book’s concluding chapter, considers these matters closely.

chapter 

The Cultivation of Resentment: Rights in the Theater of Culture War

6

[The culture wars have] a critical effect on the conduct of law, particularly in the ways in which Americans define rights—who should have them and who should not and with whose interests the state should be aligned. —James Davison Hunter, Culture Wars

I. Introduction This book has explored the impacts of the special-rights talk employed by the anti-treaty-rights movement. In this concluding chapter I expand the book’s theoretical scope. I first summarize the insights derived from the study of the anti-treaty-rights movement. I then turn to the general culture of resentment in which movement activists are embedded. I shall argue that the simultaneous condemnation and celebration of rights that defines movement activists is also an underappreciated element of the political vision that has propelled the New Right governing coalition to a position of dominance. In fact, both anti-treaty-rights activists and New Right intellectuals champion a character conventional to American political culture: the aggrieved, rights-deprived “forgotten American.” More­ over, the activists’ special-rights talk at once expresses New Right ideals and announces activists’ participation in the American “culture wars.” Each relationship indicates that America’s experience with civil rights is far less egalitarian than is often presumed.

II. Summary The preceding chapters detailed the anti-treaty-rights movement. They uncovered, in particular, the cultural and political work accomplished by that movement’s special-rights talk. The use of that discourse is predicated on the belief that treaty-rights claims threaten the material interests of activists.

138   The Cultivation of Resentment Indeed, rather than being understood as appropriate tools for enforcing promises made by the United States government, treaty rights are frequently decried as unfair. Treaty-rights claims have, moreover, inspired the formation of countermobilization groups. In an unintentional sense, Indian treaty-rights claims have become mobilizing tools for opponents of those rights. Thus, I have examined another side of the legal-mobilization story— one that is underexplored in the law and politics scholarship. Although Chap­ter 2 offered a more traditional approach to Indian legal mobilizations —detailing how treaty-rights claims have facilitated redistributive social change—I have been primarily interested in reversing the emphasis. To that end, I have focused on mobilizations against the rights claims of a traditionally disadvantaged population. I have also argued that anti-treaty-rights activists are not simply reacting to threats to group and self-interest. To be sure, activists’ resentment is sourced in what Bobo calls a “perception of threat” to group position, the supposition that treaty rights undermine material interests (Bobo 1999). Those who oppose treaty rights do in fact perceive an acute injury to their interests. However, a straightforward interest-based explanation should be resisted, because it does not sufficiently capture the depth of activists’ resentment of treaty rights. Indeed, neutral and dispassionate analyses of the impacts of treaty rights rarely confirm the extent or direction of injuries that activists allege.1 Instead, the resentment that inspires anti-treaty-rights activists is in­fla­ ted by the special-rights talk in which it is expressed. Their special-rights talk works as a conceptual resource with which activists make sense of what is at stake in disputes over treaty rights. Accordingly, activists’ resent­ ment is animated not only by concerns that treaty rights threaten selfinterest, but also by concerns that treaty rights are un-American. In this way, their special-rights talk amplifies their resentment; it infects activ­ists with a nationalistic zeal, encouraging them to understand their defenses of interest as defenses of American values. Sanctifying their opposition to treaty rights, special-rights talk portrays activists as champions of, and Indians as subversive of, American democracy. This cultural impact of special-rights talk—the transformation of interest politics into countersubversive activities—leads to the first of its three political impacts: specialrights talk hardens activists’ resolve to mobilize against treaty rights, even when those rights do not appear to actually threaten activists’ material interests. These chapters have also shown how activists’ special-rights talk ex­ pands the scope of conflict because it appeals to otherwise indifferent pop-

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ular audiences and public officials who are motivated to defend allegedly endangered American values. In this way, activists’ special-rights discourse frequently works to expand opposition to social change. The support of outside parties, and elected officials in particular, is not without costs, however. The expansion of conflict into new institutional terrains, for example, typically introduces a variety of incentives (electoral concerns, interbranch tensions, partisan and ideological imperatives, etc.) that can alter, and occasionally frustrate, the goals of movement activists. Chapter 4’s examination of opposition to the Boldt decision, for example, emphasized that the support of statewide elected officials generated ambiguous consequences for the countermobilization movement. That support deradicalized movement goals, confining policy responses to the Boldt decision within institutionally accepted paths. It also led frustrated activists, who were unwilling or unable to decipher the institutional pressures and incentives under which elected officials acted, to marginalize themselves by supporting consistently impractical legislative proposals. Similarly, Chapter 5’s investigation of Connecticut’s anti-tribal-casino movement argued that the staunch support of Connecticut’s highestranking elected officials has been important for helping the movement set public understanding on casinos. However, that support has also discouraged movement activists from recognizing, let alone confronting those same officials about, the disabling consequences of long-term changes in the state’s economy and politics. Thus, in neither case did the support of elected officials lead to particularly productive or sustained attempts to address the root causes of activists’ resentment. Finally, these chapters have shown how the discourse of anti-treatyrights activists consistently misidentifies the forces responsible for threats to their livelihoods and how it consistently places blame on relatively unharmful treaty rights and displaces blame away from much more harmful economic and political influences. To be sure, the interest-based anxieties that movement activists report are genuinely felt and are, thus, real. Often their situations are as precarious as they claim. It is, for example, undoubtedly much more difficult for commercial fishers to make a living out of the Washington State fishery than it was in the 1940s and early 1950s. Similarly, the economic dislocation and political alienation felt by the rural citizens who swell the ranks of Connecticut’s anti-tribal-casino movement is sincere. Activists genuinely believe that treaty rights are responsible for these pressures both to their personal livelihoods and to national values. Little dispassionate evidence confirms that treaty rights are to blame, however. The attribution of personal and national decline to the exercise of treaty rights is typically premised on weak empirical and analytical

140   The Cultivation of Resentment ground. Instead, the most persuasive evidence suggests that an increasing number of Americans are imperiled primarily by long-term, impersonal economic and political processes—such as the conversion of the American economy from a manufacturing to a service base and the unresponsiveness of elected officials to the needs of citizens. In the process of attributing blame to the exercise of treaty rights, activists thus displace attention and critique away from those forces and trends most responsible for the increasing instability of American life. This displacement of blame away from the actual causes of activists’ resentment helps to explain why activists’ opposition to treaty rights cannot be persuasively understood as a purely instrumental response to the threats that treaty rights pose to material interest. Such an instrumental explanation, in fact, would be incomplete because it would imply that the method by which anti-treaty-rights activists express their resentment of tribal activity—their special-rights talk—is politically inconsequential. A purely instrumental account, in fact, would deny the constitutive impact of language in general and of rights discourse in particular. Such an account would turn rights discourse into epiphenomena, a meaningless verbal rendering of the underlying, real, interest-based conflict at hand. Such a conception of language would be at odds with the social-constructivist approach that has informed my interpretive analysis. A purely instrumental analysis of the anti-treaty-rights movement is also at odds with my empirical findings. It misses the transformative impacts of special-rights talk on the trajectory of the movement itself. It ignores, that is, the cultural and political impacts of that discourse. Far from meaningless, those impacts reveal that the movement’s special-rights talk—its simultaneous resentment of certain rights and celebration of other rights—is a central engine by which it proceeds. This ambiguous embrace of rights is not unique to the anti-treatyrights movement. It is, instead, integral to the New Right’s political vision. It is also, I shall argue, a powerful trope in the culture wars that define American politics.

III. Rights in the Theater of Culture War Chapter 3 argued that anti-treaty-rights activists claim that special treatyrights provide preferential treatment to Indians. This preferential treatment, they argue, damages local communities, the nation as a whole, and, especially, the interests of hard-working citizens. Accordingly, special treaty-rights should be resisted, not because they are claimed by Indians, but because they are unfair and un-American.

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As a founding member of the Interstate Congress for Equal Rights and Responsibilities (ICERR), the first national anti-treaty-rights group of the contemporary era, explained the problem: I don’t doubt at all, in reading a lot of history, that there has been an awful lot of injustices done to people, without any question. But we get to certain points where [these people] seem to assume some authority . . . and there is no stopping point. We can’t forever drop our tears as to what happened 150 years ago. No one denies that [these injustices] happened, but it can’t go on forever; we have got to have everyone live together, equally. The 14th Amendment of the Constitution states that we should have equal rights for all citizens, regardless of race, color, or creed. [America is about] equal opportunities and equal rights to enjoy or participate. (Yakima Nation Review 1977: 4)

Activists’ special-rights talk not only stigmatizes treaty rights and the Indians who mobilize them. It also portrays the activists themselves as at once virtuous and embattled. Disavowing the special rights that Indians parlay into, for example, fishing and casino success, activists insist only on the recognition of their equal rights to compete in the market. The special rights/equal rights distinction works as a barometer for determining which sorts of privilege are legitimate and which are illegitimate. The privilege that activists either protect or seek—their own—is thus figured always as a legitimate outcome of hard work and self-discipline, as a just return on their merit. Conversely, the privileges that they attack—those secured through the operation of treaty rights—are tarnished as the products of a market skewed intentionally by the machinations of crafty Indians and unintentionally by the gullibility of well-meaning whites. Indeed, activists’ resentment of treaty rights links them to a recurring figure in American political thought: the “forgotten American.” Consider, for example, the formulation of Blair K. Richendifer, another of ICERR’s founding members, whose testimony before the United States Commission on Civil Rights (USCCR) in 1977 made the case for America’s “forgotten citizens”: [We] address the constitutional rights of those forgotten citizens, numbering in tens of thousands, whose civil rights are presently encroached upon, and even threatened with future extinction as a result of Indian [treaty rights]. Typically, they are small farmers, ranchers, homeowners, businessmen, and professional people such as found in any other section of America. They are people of all nationalities, and of all political and religious persuasions. They are the citizens and descendants of citizens who . . . established, and funded through their taxes, counties, cities, towns, school districts and other governmental units . . . for the benefit and protection of all citizens, including tribal members. Their governments are now threatened with arbitrary extinguishment—

142   The Cultivation of Resentment to be usurped and displaced . . . by Indian tribal governments. Citizens who do not have the proper degree of Indian ancestry seemingly would be disenfranchised and reduced to the status of aliens, intruders. (Richendifer 1977: 600–601)

This figure—the forgotten American whose equal rights are neglected, whose successes are denigrated, and whose voice in public affairs is marginalized—is central to the self-identifications of anti-treaty-rights activists. It is, moreover, both conventional to American political thought and, I will argue, the hero of New Right political and cultural critique. The forgotten American appears prominently, for example, in William Graham Sumner’s classical liberal manifesto What the Social Classes Owe to Each Other (1883). Dubbed the “forgotten man” by Sumner, he is an industrious and successful citizen who is nevertheless victimized by “social doctors” and misguided politicians who elevate the interests of the underprivileged both at his and society’s expense. Sumner’s conception of the forgotten man was flexible; it signified the victimization felt by a wide range of Americans, from working men and women to captains of industry (Sumner [1883] 1995: 107–131). Rechristened “forgotten Americans” by Michael Bernstein (a speechwriter for Barry Goldwater) in 1961 and described by commentator Peter Schrag in 1969 as “perhaps the most alienated [people] in America” (Schrag [1969] 1995: 396), this appellation stands in contemporary times for predominantly blue-collar, working- and middle-class whites who were once the backbone of the Democratic Party’s New Deal coalition. A population to whom Richard Nixon referred to as “the silent majority,” they are distressed, on one hand, by the protests of traditionally disadvantaged Americans and, on the other hand, by a government that rewards the lazy and indolent with “excessive government programs” that are funded with their tax dollars (McGirr 2001: 214). Convinced, in Nixon’s words, that “they have a legitimate grievance that should be rectified and a just cause that should prevail,” an increasing number of middle- and workingclass Americans accepted Nixon’s invitation to join the ranks of the GOP (Wills 1970: 311).2 As Keck notes, the “appeal to ‘Middle America’—to the ‘forgotten man’ and the ‘silent majority’ ” was a critical part of the Republican Party’s allure; it amounted, according to Kazin, to the “GOP’s identity of choice” (Kazin 1995: 253) “To appeal to these voters,” Keck writes, national GOP candidates “repeatedly denounced both the liberal elites who were running the welfare state . . . and the unruly . . . masses who were threatening [their] peace and quiet” (Keck 2004: 111; see also McGirr 2001: 214–215). As Governor of California in the late 1960s, Ronald Reagan built a national reputation making just such appeals. As he told audiences,

The Cultivation of Resentment   143 Thousands upon thousands of Americans, those forgotten men and women who work and support the communities and pay for all the social experimenting are groping for answers to their doubts, seeking a cause in which they can invest their idealism and their energy. [It] is the Republican Party that is polarized around a belief in constitutional limits on the power of government, belief in the right of the individual to freedom of choice, [and] a belief in the federal system of sovereign states. (Reagan 1968: 138)

Indeed, the resentment of “Reagan Democrats”3 initiated a sea change in the American political landscape. The product of what Barry Goldwater described as the “revolt of the Middle American,” American politics has become dominated by a dual resentment: of entrenched federal officials who waste taxpayer money on unpopular programs and of the traditionally disadvantaged Americans who are the beneficiaries of these programs (Goldwater 1970: 45). Resentment, that is, Over the continuous insistence that society must shoulder a mass responsibility and a mass guilt for everything which is not perfect in the human condition. It’s pretty hard to convince a man who has worked hard all of his life, lived according to his own moral precepts, and paid ever-increasing taxes to support the social engineering and paternalism of the liberals in government that he is today responsible for slums, ghettos, poverty, discrimination and crime in the streets. [Such] collective guilt . . . [should never have been applied to] responsible citizens who performed their work, fulfilled their civic responsibilities, and added to the forces which add up to good in our society. (Goldwater 1970: 66)

An essay written by pundit Caitlin Flanagan, which appeared in Time magazine in 2006 and won plaudits from across the political spectrum, illustrates the enduring appeal of this narrative. Ostensibly an argument that the Democratic Party has marginalized stay-at-home mothers, “abhor[ing] what [they] represent because [they don’t] fit the stereotypical image of the modern woman who has escaped from domestic prison,” Flanagan eventually reveals the original marginalization that has supposedly driven mothers into the arms of the GOP: “The Democrats made a huge tactical error a few decades ago. In the middle of doing the great work of the ’60s– civil rights, women’s liberation, gay inclusion—[they] decided to stigmatize the white male. The union dues-paying, churchgoing, beer-drinking family man got nothing but ridicule and venom. So he dumped [the Democrats]. And he took the wife and kids with him” (Flanagan 2006). This aggrieved, resentful figure is thus at the center of New Right critique. Consider Samuel Francis’s sympathetic (1993) portrait. Made up primarily of “middle American radicals,” Francis depicts the New Right as both “an electoral coalition concerned with winning elections and roll calls” and as the “political expression of a relatively new social movement

144   The Cultivation of Resentment that regards itself as the depository of traditional American values and as the exploited victim of the alliance between an entrenched elite and a ravenous proletariat.” Locating grievance at its core, Francis notes that resentment propels New Right politics. “The New Right,” he contends, “is not a conservative force but a radical or revolutionary one [that] seeks the displacement of the entrenched elite, the discarding of its ideology of liberalism and cosmopolitanism, and its own victory as a new governing class” (Francis 1993: 76). Moreover, New Right politics is an explicitly cultural politics. Indeed, it aims, first, to “radicalize Middle American consciousness [so as to] perceive the ways in which exploitation of the middle class is institutionalized and understand how it can be resisted.” Second, New Right critique aims to cultivate the resentment of those Americans by expressing salient concerns over “crime, educational collapse, the erosion of their economic status, and the calculated subversion of their social, cultural, and national identity by forces that serve the interests of the elite above them and the elite’s underclass ally.” Operating at the level of perception, New Right critique seeks to construct a new political vision, one that will elaborate an “infrastructure of cultural hegemony” on which political action is based (Francis 1993: 230–231). As commentator and sometime presidential candidate Patrick Buchanan exhorted the delegates at the 1992 Republican National Convention, My friends, this election is about much more than who gets what. It is about who we are. It is about what we believe. It is about what we stand for as Americans. There is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation we will one day be as was the Cold War itself. (Buchanan 1992)

Explained by Hunter (1991) as the struggle to determine “how we as Americans will order our lives together,” the American “culture wars” to which Buchanan alluded loosely emulate the German Kulturkampf of the late 19th century (Hunter 1991: 34). Hunter argues, however, that, unlike the Kulturkampf, America’s culture wars are fought on largely secular ground.4 A battle of competing “moral understandings,” the culture wars express disagreements over “different and opposing bases of moral authority and the world views that derive from them” (Hunter 1991: 42–43).5 Accordingly, political debate over issues as varied as “abortion, child care, funding for the arts, affirmative action, gay rights, values in public education [and] multi-culturalism” is dominated by normative judgment. “It is precisely this reason,” Hunter argues, “that political action . . . tends to be so passionate” (Hunter 1991: 42).

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Moreover, much of this passion is expressed according to nationalistic prerogatives. “The contemporary culture war is ultimately a struggle over national identity—over the meaning of America, who we have been in the past, who we are now, and perhaps most important, who we, as a nation, aspire to become” (Hunter 1991: 50). Presidential elections, for example, are thus less about who gains authority over the executive branch of the national government and more about, as in Buchanan’s formulation, the “soul of America.” Similarly, debates over affirmative-action policies focus not only on whether such policies are appropriate recompense for past mistreatment. They focus also, as Joseph Lieberman implied during debate over California’s anti-affirmative-action Proposition 209, on whether those policies are “un-American” (Lieberman 1995). To argue that debates over rights take place in a theater of culture war is thus to argue that they take place in a cultural environment that ele­ vates normative and nationalistic anxieties over concerns of practicality or expediency. It is also to acknowledge, accordingly, that contemporary conflicts over rights are “often intensified and aggravated by the way they are presented in public” (Hunter 1991: 34). Rights are understood either as tools of subversion or countersubversion—for use either to defend, or under­mine, the sources of American character and success. Contemporary debates over rights intersect with debates over the meaning of America; they contribute to the cultural conflict that permeates “the lives of most Americans, even those who are or would like to be totally indifferent” (Hunter 1991: 50). It is thus unsurprising that the use of nationalistic rhetoric to defend and attack rights is a key part of the New Right’s push for cultural hege­ mony. Barry Goldwater’s attacks on the “extravagant and shameless misuse” of civil rights by 1960s liberals offered an early intellectual blueprint. On one hand, the rights claims for redistribution of resources that were fashionable in the early 1960s (which Goldwater dismissed as “human rights” and “natural rights” unhinged from legislative or constitutional moorings) infringed upon the states’ rights located in the Tenth Amendment of the U.S. Constitution. On the other hand, those rights, such as the one to an integrated public education that was established by the U.S. Supreme Court in Brown v. Board of Education, were themselves mockeries of true, legally defined civil rights (Goldwater 1960: 33–38). Yet Goldwater was also a champion of individual rights properly defined, particularly those of “whole men.” The rights of these whole men6 were particularly important for protecting individual initiative, and so individual freedom, from the overbearing influence of government: “We seek only to secure his rights, guarantee him opportunity, guarantee him

146   The Cultivation of Resentment opportunity to strive with government performing only those needed and constitutionally sanctioned tasks which cannot otherwise be performed” (Goldwater 1964). At once dismissive of contemporary misuses of rights and effusive about what rights supposedly once meant, Goldwater’s nostalgia was a template for New Right critique. Indeed, prominent conservative-intellectuals frequently lament that dubious rights claims have corrupted the original meaning of individual rights. Consider, for example, William F. Buckley, Jr.’s, long-standing for­ mulation. The dean of modern American conservatism and founder and editor-in-chief of the National Review, Buckley has consistently objected to the “mutation” of the meaning of rights in contemporary times (Buckley 1994: 79). It is, in fact, a favorite theme of Buckley’s to note how modern usages of civil rights go far beyond what their early advocates claimed, such that now “everything goes under ‘civil rights’ ” (Buckley 1988a: 69; see also Buckley 1994, 1996). The expansion of the meaning of rights, Buckley alleges, yields a variety of undesirable consequences. First, it converts public policy into exercises of “reverse discrimination” against whites, whose own rights are denigrated (Buckley 1985, 1988b, 1996, 1998). Second, it gives the “civil rights lobby” a potent weapon with which to attack as racist and otherwise insensitive all principled arguments against such preferential treatment (Buckley 1988a, 1994, 1996, 1998, 2003). And, third, it intimidates public officials and popular audiences alike, who must acquiesce to unfair and un-American activism or risk being cast outside of the prevailing, though perverted, standards of justice and equality (Buckley 1988b, 1994, 1996, 2003). “Someone, somewhere, somehow,” pleads Buckley, “has got to stop the civil-rights thing. It is making a joke out of one or another of our Bill of Rights” (Buckley 1988a: 69). Similarly illustrative are the multiple formulations of Thomas Sowell. A staunch opponent of affirmative action policies, Sowell argues that those policies are animated by a logic of equal results that is at war with the initial goal of civil rights. According to Sowell, The very meaning of the phrase “civil rights” has changed greatly since the Brown decision in 1954, or since the Civil Rights Act of 1964. Originally, civil rights meant, quite simply, that all individuals should be treated the same under the law. Many Americans who supported the initial thrust of civil rights . . . later felt betrayed as the original concept of equal individual opportunity evolved toward the concept of equal group results. (Sowell [1984] 1988: 310; emphasis preserved)

Declaring any consciousness of race and gender in public policy morally noxious and socially destructive, Sowell argues that the affirmative-action policies enabled by the new meaning of rights (1) reward already well-off

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members of traditionally disadvantaged groups, (2) fuel resentment and jealousy amongst nonpreferred populations, and (3) lead to fraudulent “claims of belonging to the designated beneficiary groups” (Sowell [1989] 1996: 237).7 All told, the corrupted rights claims that underlie affirmativeaction policies threaten “social disaster” (Sowell [1989] 1996: 282). Consider, finally, Mary Ann Glendon’s Rights Talk (1991), which traces the same perversion of rights and also links it to destructive social impulses. Having colonized both American political discourse and our own private discussions with one another, Glendon argues that rights talk is the “carrier of the few values that are widely shared in our society: liberty, equality, and justice under the law” (Glendon 1991: 3). Yet the social understanding facilitated by rights talk resembles something closer to miscommunication. Indeed, because contemporary rights talk has become unmoored from its original civil rights vision (with Americans applying it to an everexpanding group of interest-based claims), it now generates a series of unintended, and destructive, consequences. First, rights talk is “hyperindividualist”; it discourages us from recognizing communal duties and responsibilities and so encourages us to act licentiously. Second, rights talk now works as the “language of no compromise” (Glendon 1991: 3). Our “strident” rights talk, that is, makes our conflicts absolute and allencompassing, turning otherwise negotiable disputes into all-or-nothing affairs. Defeating the ancient, deliberative goal of politics, rights talk locks us into fruitless combat with one another. Glendon makes the point that “our rights talk . . . promotes unrealistic expectations, heightens conflict, and inhibits dialogue that might lead toward consensus. Its silence concerning responsibilities . . . seems to condone the benefits of living in a [democracy] without accepting the corresponding obligations. [Rights talk] corrodes our fabric of beliefs, attitudes, and habits” (Glendon 1991: 14-15). Rights talk has thus become a scourge on the polity, at once mis­ educating us about the requirements of American citizenship and amplifying interpersonal conflict to dangerous levels. Accordingly, contemporary American conservatism is not uniformly hostile to civil rights. Instead, it is hostile to the supposed abuses of rights, either consciously by greedy and unprincipled hucksters or unconsciously by otherwise well-meaning citizens who lack alternative vocabularies for pursuing their interests. Moreover, the culprit of this alleged perversion of rights is a faulty logic of equal results. Assaulting both the body politic and the rights of forgotten Americans, rights themselves have become subversive. This logic animates the special-rights talk used by a growing number of politically engaged Americans, including the anti-treaty-rights activists

148   The Cultivation of Resentment that I have chronicled here. For example, a variety of social-movement organizations are dedicated to combating the preferential treatment enabled by special rights. Moreover, these organizations—such as the Center for Equal Opportunity (CEO), Americans Against Discrimination and Preferences, the American Civil Rights Institute (ACRI), America’s Future, and Alliance for America—seek to reclaim the mantle of civil rights, explicitly linking rights to a vision of individualism that emphasizes procedural equality, self-sufficiency, and merit-based achievement.8 For example, the California-based ACRI, led by Ward Connerly, proclaims that “race has no place in American life or law” and has been at the forefront of battles over affirmative action (Connerly was one of the sponsors of Proposition 209) (ACRI 2006).9 Connerly, in fact, rehearses the conservative anxiety over the breakdown of traditional meaning. “Words and principles,” he argues, “have ceased to have universal meaning and accep­ tance in our nation.” Such instability is a source of national decline. “Our nation is adrift, uncertain of its principles, lacking the courage to defend itself from those within who place engineered diversity ahead of respect for individuals . . . But someone has to put Humpty Dumpty back together again, or our beloved nation is in a world of trouble” (Connerly 2001). Anxiety and equivocation over rights are not limited to the intellectual and activist wings of modern American conservatism. Instead, as Hunter prophesized, it is a culture wars’ trope that infiltrates popular American thought and practice, influencing the understandings of a growing number of Americans. The collected (1994) essays of Greenhouse, Yngvesson, and Engel are illustrative. Their essays make three particularly relevant points. Detailing how long-time community elites (“insiders”) attribute negative changes in their “ways of life” to the irresponsible legal activity of “outsiders,” they first note that the insider/outsider distinction marks identity and, so, is a conceptual resource for long-time residents to make sense of changes that they find threatening. Stigmatizing already socially marginal outsiders as greedy and litigious (out “for a fast buck,” in the words of one of Engel’s interviewees), the distinction affirms the moral worth of insiders, who un­ der­stand themselves as responsible and esteemed community members. Insiders’ anxiety over litigiousness thus reaffirms the community’s pre­exist­ ing distinctions in status and power, even as it dresses up those inequalities in the reassuring, facially neutral language of community harmony (Greenhouse, Yngvesson, & Engel 1994). Second, the essays note that insiders’ condemnations of the legal activity of outsiders are not condemnations of legal activity writ large. Instead, insiders frequently engage in legalistic behavior of their own. Moreover, insiders interpret their own law-use as consistent with the community

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values (hard work, keeping promises, being a good neighbor, etc.) that are thought to be assaulted by the law-use of outsiders. Law-use is thus at the center of community, both as a conceptual resource for justifying the prevailing insider/outsider dynamic and as an engine of the virtues that insiders ascribe to their communities. Third, impugning the law-use of outsiders obscures the large-scale and impersonal economic processes (such as the loss of an agricultural base or the rise of a service-based economy) that are driving the changes that the three communities in the study are undergoing. To the extent that these changes disempower insiders, they are far more responsible for altering the community’s way of life than is the litigious behavior of outsiders. Insiders, that is, mistakenly place blame for challenges to their material selfinterests onto the relatively benign presence of the community’s socially marginal members. In so doing, they displace blame and critical engagement away from the actual processes that harm them. The same is true of the New Right’s qualified embrace of individual rights. First, obsession with how rights have lost their association with an individualism that emphasizes self-sufficiency and equal opportunity— obsession, that is, with how rights lost their allegedly traditional meaning —works as a conceptual resource for understanding how contemporary American society has become a grotesque inversion of its former self. The loss of traditional meaning explains how formerly powerless Americans have seized control of the nation’s cultural and intellectual institutions. It explains, that is, the gullibility of well-meaning whites, who, lacking stable vocabularies and fixed moral and ethical principles, are easy targets for the crafty machinations of traditionally disadvantaged Americans. It also explains how the people who the nation once valued have become the victims of an upside-down society; the loss of traditional meaning, accordingly, explains how forgotten Americans became simultaneously ignored and despised. Indeed, the obsession with rights marks the identities both of forgotten Americans (e.g., the anti-treaty-rights activists chronicled here) and of the traditionally disadvantaged Americans whose activism is so threatening. Needing only their equal rights to succeed, self-sufficient and hardworking Americans are nevertheless “forgotten, unrespected, mocked” (Wills 1970: 312). Worse, they are denigrated as the historical recipients of unfair advantages. Their brand of individualism is surpassed by an individualism of license and greed, by a philosophy that holds that special rights are the keys to success. In the exhaustion of the traditional meaning of rights we see also the decline of individual merit and self-sufficiency (of equal opportunity) and the rise of entitlement and preferential treatment (of equal results).

150   The Cultivation of Resentment Second, the New Right’s stilting embrace of rights encourages attempts to reclaim the allegedly original meaning of rights. It authorizes, that is, a series of legal mobilizations explicitly geared toward opposing the extravagant rights claims of the traditionally disadvantaged in the name of rights themselves. The vessel through which flows “ ‘true’ civil rights in opposition to falsity and duplicity,” the rights discourse employed by the New Right is as much national service as it is self-interested activism (Goldberg-Hiller 2002: 235). Indeed, the New Right’s counteruses of rights talk seek to purify rights and to thereby make them once again safe for use by the self-sufficient individuals who were the original heroes of American democracy (Goldberg-Hiller & Milner 2003). Third, New Right critique consistently evades the major sources of the resentment that consumes forgotten Americans. To be sure, the New Right political vision does offer an economic analysis, one that purports to free Americans of the overbearing governmental influence that supposedly hampers self-sufficiency. Conservative intellectuals and public officials consistently tout the importance, in fact, of tax reform. As Edsall and Edsall (1992) detail, cultivating resentment over allegedly unfair tax burdens (in particular, the graduated or progressive tax scheme) has been a constant feature of modern conservative politics (see also Smith 2006: 12–16).10 Economist and Reagan Administration official Bruce Bartlett recently made the same point: “Tax cuts are the glue that holds the Republican coalition together” (Bartlett 2006: 193). Yet there is little evidence that the obsessive focus on tax cuts has improved the lives of middle-class and working-poor Americans. Consider, for example, the GOP’s consistent failure to address the nation’s worsening health-care problems. At the time of this writing, 16 percent of Americans are uninsured, insurance premiums are rising, and insurance options are dwindling. According to a report issued by the nonpartisan Commonwealth Fund, “The evidence clearly shows that, overall, the performance of the U.S. health care system falls far below the level it can and should achieve” (Commonwealth Fund 2006: 1). Its problems, according to Sered and Ferandopulle (2005), are the result of converging structural factors (such as decentralization, the dominance of employment-based health-care plans, and the political influence wielded by the health-care industry) that deny high-quality and affordable health care to many middle- and working-class Americans. These are exactly the people that the New Right champions, and whose resentment provides the raw material for GOP prominence. The Republican Party has made little effort to create a more inclusive health-care system, however. In fact, it led opposition to the Clinton administration’s proposed overhaul (Skocpol 1996).11 Not the result of sinister motives, the GOP’s disinterest in the

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material interests of middle-class Americans instead reflects the difficulties involved in maintaining a governing coalition that pursues as many often-contradictory goals as does the Republican coalition (e.g., running a limited government, deregulating the economy, protecting traditional social arrangements, etc.) (Keck 2004, generally). The loud championing of middle- and working-class Americans insulates the New Right from their criticism, even though such Americans have little to show in return for their fidelity to the GOP (Frank 2004). Instead, middle- and working-class Americans are encouraged to blame their economic hard times on witless federal officials and the duplicitous minorities who manipulate those officials. Accordingly, the New Right’s electoral and governing successes, as well as its political vision itself, are premised on middle- and working-class Americans misidentifying the causes of their resentment.12 Rights talk, as I have argued throughout, is a central medium through which such misidentification proceeds. Indeed, the special-rights talk employed by the anti-treaty-rights movement, for example, blames federal officials (such as judges and bureaucrats) and Indians for threatening economic livelihoods, wrecking local ways of life, and undermining America itself. Yet it does this in the absence of persuasive evidence, and in the face of compelling data that locate the sources of their hard times elsewhere. The three impacts of anti-treaty-rights activists’ special-rights talk— that it constitutes the speaker’s identity as a countersubversive and, thereby, amplifies resentment; that it expands the scope of conflict to otherwise disinterested audiences by setting public understanding on treaty rights; and that it places and displaces blame—radiate generally. The resentment of middle- and working-class Americans over perceived slights to their rights is the raw material that propels the New Right’s participation in the culture wars. The denigration and dismissal of their rights makes so many otherwise laudable Americans forgotten. Similarly, the rights talk employed both by forgotten Americans and the New Right intellectuals who champion them has assumed a prominent place in public discourse, making rights claims on behalf of traditionally disadvantaged Americans increasingly unfashionable (McCann & Dudas 2006). The abuse of rights, moreover, is consistently identified as the root cause of the difficulties that underlie middle- and working-class resentment; deviant rights-claims, not structural causes, are thus to blame for personal and national decline. The rights discourse employed by anti-treaty-rights activists, New Right intellectuals, and an increasing number of otherwise disinterested citizens enacts a morality tale. In expressing the resentment that pervades American culture, it identifies heroes and villains. How they practice rights is what distinguishes good, productive (yet denigrated) citizens from bad,

152   The Cultivation of Resentment parasitic (yet esteemed) citizens. The anti-treaty-rights movement is thus linked both in content and in form to New Right politics, and so to the American culture wars themselves.

IV. Conclusion This book has built on research that explores the work that rights discourse does for the social movements that employ it. Such a “politics of rights,” Stuart Scheingold noted in his seminal study on the topic, can be an important, though indirect, resource for social movements that seek a more equitable balance of power. Scheingold argued that a politics of rights could have strategic effect precisely because the concept of rights draws on deep-seated cultural values that can impart to redistributive causes a sense of popular legitimacy that they might not otherwise enjoy (Scheingold 1974, 2004; see also Brigham 1988 and McCann 1994). Similarly, I have emphasized how the special-rights talk employed by anti-treaty-rights activists is politically effective because it is culturally evocative. I have argued, in fact, that the political efficacy of their specialrights talk depends ultimately on its consistency with such ingrained values as individual merit, community harmony, and equal opportunity. It is this consistency that makes activists’ special-rights talk politically consequential: it inflects the resentment of activists with nationalist ardor, thereby heightening conflict; it expands the scope of conflict to include newly sympathetic parties; and it (mis)directs attention to the sources of activists’ resentment. However, this study has also departed from the existing rights scholarship in significant ways. Most clearly, I have explored reactionary, not redistributive, uses of rights talk. In so doing, I join a relatively small group of scholars who explore the centrality of rights talk to the New Right political vision. Conservative rights talk, in fact, reveals the broad cultural salience and political efficacy of rights discourse, as existing scholarship would suggest. It is also revealing that, in spite of more than forty years of it, there has been little scholarly evaluation of conservative rights talk. With notable exceptions,13 the rights scholars who have produced such perceptive work about redistributive social movements have almost entirely ignored conservative rights discourse (McCann 2006: xvii). Could it be that scholars have realized that conservative rights mobilizations offer nothing new and that they have thus avoided studying them, focusing instead upon more intellectually productive arenas of struggle? This book, of course, suggests otherwise. More likely, the omission is related to a similarly surprising relative silence, especially amongst politi-

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cal scientists, about the rise of the New Right and its impacts on American politics. Though there are exceptions, political scientists have focused their efforts elsewhere, leaving the New Right’s importance to historians, cultural critics, and journalists.14 The relative lack of interest in conservative rights talk may be related to the more general lack of interest shown by political scientists in the New Right. Attention to conservative rights discourse, however, reveals analytical and theoretical insight about the capacity of rights talk to foster redistributive social change. My findings suggest that the protean nature of rights talk—its capacity to accommodate and make meaningful a whole range of political claims—is itself a potentially substantial barrier for those who mobilize rights on behalf of redistributive causes. Dependent for its meanings on prevailing cultural and institutional standards, which have in recent years become more conservative, rights talk is now a less-effective resource for redistributive politics. “Contemporary America” is, in fact, “both more hostile to most familiar types of progressive democratic rights movements and more supportive of neoconservative or reactionary movements” (McCann & Dudas 2006: 38). At the center of this change is the rise of the New Right governing coalition and the willingness of its members to express their own grievances—their resentment—in the language of rights. Scholars should acknowledge the centrality of rights discourse to the New Right’s political vision. To the extent that that this vision stigmatizes efforts to create a more just and equitable society, declaring such efforts unfair and unAmerican, rights discourse plays a significant role in the contemporary retrenchment of American politics. Indeed, the New Right’s use of rights reveals the contingent, halting relationship between rights and redistributive social change just as clearly as did the political Left’s use of rights a generation ago.

Reference Matter

Notes

chapter 1

1.  On the civil rights movement, see Morris (1984), Scheingold (1989), McAdam (1999), and Sokol (2006). On the equal-pay movement, see McCann (1994). On the gay-rights movement, see Schacter (1994), Brigham (1996), Herman (1997), and Goldberg-Hiller (2002). Milner (1986) and Engel and Munger (2003) explore the disability-rights movement. 2.  “Equal rights” is a signifier of legitimacy because, as in Greil Marcus’s formulation, it is an animating element of the “American master narrative”; it symbolizes the interconnected values of “equality, individualism, virtue, and success” according to which many Americans make sense of appropriate and inappropriate relations (Marcus 1995: 27–28). 3.  Scholarly evaluations of opposition to the gay-rights and disability-rights movements are cited in note 1 above. Sowell ([1984] 1988), Loury (1996), Steele (1998), and McWhorter (2000) offer representative conservative positions on affirmative action. 4.  On law and race, Lawrence (1987), Crenshaw (1988), Crenshaw et al. (1995), and Williams (1991) offer representative positions. Schneider (1986) and MacKinnon (1989) explore the relationship between law and gender. The capacity of individuals to deploy law in order to advance their interests is the topic of a voluminous literature. Of the many studies in this area, those by Merry (1985, 1990); Sarat (1990); White (1990); Greenhouse, Yngvesson, and Engel (1994); Ewick and Silbey (1998); and Gilliom (2001) are noteworthy. Even more has been written on how law use shapes the terrains of struggle on which social movements operate. Handler (1979), Brigham (1988, 1996), Scheingold (1989), Forbath (1991), McCann (1994), Silverstein (1996), and Epp (1998) are some of the many exemplary works in this area. McCann and Dudas (2006) argue for the usefulness of social-movement theory for analyzing legal-reform movements. 5.  As McCann notes in relation to the pay-equity movement of the 1980s, “naming” the movement’s claims in the language of rights “was the only [way] that [they] could ‘make sense’ to the primary parties in the conflict . . . to frame new challenges in an alien, esoteric . . . lexicon simply would be ‘senseless’ as a

158   Notes to Pages 6–9 motivation and ineffective as a strategy, given the cultural orientations binding the activists . . . and their opponents” (McCann 1994: 272). 6.  Scheingold associates liberal legal orders with a species of “soft” hegemony. This is because, as he argues in the context of U.S. constitutional rights, “[T]he traditional liberal democratic guarantees embodied in the Bill of Rights provide necessary, but not sufficient, protections against state and corporate power. A society structured according to the values of the Bill of Rights is to a significant degree an open and responsive society that minimizes overt repression . . . [Any kind] of politics of rights is constrained [however], in the first place by the liberal capitalist values of the U.S. Constitution; by the individualistic mechanisms for claiming and implementing those rights; and by the limited political power of judicial institutions. [Consequently] the soft hegemony of constitutional rights offers opportunities for meaningful, if not fundamental, social change” (Scheingold 1989: 82–83, 87). 7.  The fishing-rights claims of Pacific Northwest tribes (examined in Chapter 4) have, for example, transformed the operations of the region’s fishing industry and have affected a substantial transfer of wealth toward some of the most materially disadvantaged peoples in the area. Similarly, relying upon their treaty rights, some tribes have recently built hugely successful Las Vegas–style casinos (see Chapter 5). 8.  For example, threats to self-interest often prompt defenses of one’s “way of life”—the collective material and cultural arrangements that naturalize distinctions in power and status. Anxieties over disappearing ways of life are thus motivated by widespread, though rarely articulated, resentment over the perceived loss of one’s privileged place within the status quo (Greenhouse et al. 1994; see also Chapter 5). 9.  I have in mind here what Schacter (1997) refers to as the “liberal” version of a general “cultural skepticism” of civil rights law. The liberal version of this skepticism, she notes, emphasizes how contemporary rights claims undermine the values of merit and equal opportunity that underlie American individualism (Schacter 1997). 10.  Crenshaw describes how the principle of nondiscrimination can be appropriated in order to oppose attempts to overcome the continuing legacies of racism. Because its goal “is fundamentally ambiguous,” the doctrine of nondiscrimination suggests both a “restrictive” and “expansive” understanding. The restrictive understanding emphasizes that discrimination is the product of individual malice, not of ingrained social conditions and holds, therefore, that efforts to remedy inequality must not overburden the interests of those people who, although they may have historically benefited from inequality, are nevertheless innocent of past misdeeds (Crenshaw 1988: 1341–46). It is this restrictive understanding of the nature of, and appropriate remedies for, discrimination that resonates most clearly with the resentful Americans whose legal activism I explore here. In fact, a nightmare scenario that they consistently evoke, that in the zeal to correct historic injustice some people have become the victims of “reverse discrimination,” articulates with the terms of this restrictive understanding of nondiscrimination (see also Schacter 1994).

Notes to Pages 9–23   159 11.  Anti-treaty-rights activists, for example, lament how the exercise of treaty rights turns Indians into “super citizens” and “super Americans with special privileges” (United States Commission on Civil Rights [USCCR] 1977). 12.  Rabinow and Sullivan make the point: “When we try to understand . . . culture—the shared meanings, practices, and symbols that constitute the human world—we are dealing with interpretations and interpretations of interpretations” (Rabinow & Sullivan 1987: 7). chapter 2

1.  I refer to Indians rather than Native Americans. This designation is, to be sure, problematic. It is an artifact of colonial sensibilities, and so its usage continues the pervasive misrecognition of native populations that defined European contact with the Americas (Todorov 1984). However, as Reneé Cramer puts it, “unless speaking specifically about their tribal affiliation, most Indians refer to themselves using that term—‘Indian.’ ” Like her, I “respect the right of people to name themselves” (Cramer 2005: 169, n. 3). 2.  The United States Commission on Civil Rights is more precise. As it claims, “Other [non-Indian] minorities have had no separate governmental institutions. Their goal primarily has been and continues to be to make the existing system involve them and work for them. Indian tribes have always been separate political entities interested in maintaining their own institutions and beliefs. Their goal has been to prevent the dismantling of their own systems. So while other minorities have sought integration into the larger society, much of Indian society is motivated to retain its political and cultural separateness” (USCCR 1981: 32–33). 3.  Extended discussion of the plenary-power doctrine appears in the Supreme Court’s 1903 opinion in Lone Wolf v. Hitchcock (187 U.S. 553; 23 S. Ct. 216). 4.  Tribes have not fared much better during periods of congressional indifference. The relative powerlessness of most Indians, in conjunction with Congress’s occasional neglect, has frequently left tribes without the ability to defend their interests against hostile local governments or their resources against encroachments from non-Indian neighbors (Prucha 1984; Harmon 1998). 5.  Interview with author, November 1999. 6.  Cornell calls the formative process of pan-Indian consciousness “Indianization.” Indianization, he writes, “refers to the growth of a supratribal consciousness and constituency, to the eventual emergence of ‘American Indians’ as a politically self-conscious population” (Cornell 1988: 72). 7.  Other scholars have noted that the Wheeler-Howard Act (aka the Indian Reorganization Act) of 1934, which allowed for tribal members to constitute themselves as governmental entities, also had important ramifications for producing a pan-Indian sensibility (Prucha 1984: 338–339). Prucha links the renewal of tribal governments to the emergence of the National Congress of American Indians (NCAI), a lobbying group made up of a cross-tribal membership that has been instrumental in forging ties between tribal governments and mainstream American institutions. (For more on the NCAI, see later in this chapter.)

160   Notes to Pages 24–26 8.  The Employment Assistance Program, begun in earnest by the Bureau of Indian Affairs in 1952, emerged during a time in which Congress was encouraging policies that would “terminate” the nation’s responsibilities to tribes and assimilate Indians into the mainstream of American life. The program relocated more than 100,000 Indians to urban centers by the late 1960s. The termination era is discussed later in this chapter. 9.  The influence was especially pronounced in those Indian youth who attended college ( Johnson 1996: 14). 10.  For example, each of the three most visible direct-protest activities of the Red Power era—the Pacific Northwest “fish wars” of the 1960s (see Chapter 4), the occupation of Alcatraz Island in 1969 ( Johnson 1996; Johnson, Nagel, & Champagne 1997), and the occupation of Wounded Knee, South Dakota, in 1973 (Sayer 1997)—also had a prominent legal/lobbying component that involved members of NARF and NCAI, who simultaneously pressed treaty-rights claims in court and lobbied policy elites for concessions. 11.  Although the emphasis on treaty rights was widely shared by Indian activists, it was never an unquestioned strategy within the Red Power movement. Some activists consistently worried, as Medcalf (1978) notes, that the concept of treaty rights was too limited and that it could not capture the diversity of practices that constituted the traditional ways of life that Indians hoped to preserve. Moreover, as Joanne Nagel (1996) shows, practical conflicts within the Red Power movement bore directly on the treaty-rights strategy. Conflict within the movement typically surfaced along rural/urban lines (Nagel 1996: 162–178). Urban-based supratribal groups, such as AIM, initially tended to emphasize the general theme of colonialism and treaty rights at the expense of the more specific, local concerns of the Indians who remained in reservation communities. The general treaty-rights strategy was, in fact, often unsuccessful in mobilizing the active support of many of those communities (Nagel 1996). 12.  Of the just over $7.5 million in revenues that NARF generated during fiscal year 2004, $1.65 million (or 22 percent) was in the form of federal grants (NARF 2005). Nevertheless, as Wilkins notes, there is little evidence that NARF’s dependence upon governmental funding (the organization was started in 1970 with a Ford Foundation grant) has significantly influenced its decisions about which cases to support (Wilkins 2002: 212–213). 13.  By the early 1990s, these fissures resulted in the formation of two distinct organizations, each proclaiming itself to be the true heir of the American Indian Movement. The National American Indian Movement, Inc., a centralized organization that is run by Clyde and Vernon Bellecourt and which holds the legal patent to various AIM symbols and slogans, virulently opposes the International Confederation of Autonomous AIM (ICAAA), a loose confederation of local AIM chapters that is affiliated with the academics Ward Churchill and Glenn Morris and the activist/actor Russell Means. AIM (2006b) and ICAAA (2002) offer background on the dispute. 14.  See, for example, National Indian Youth Council v. Andrus: 501 F. Supp. 649 [D.N.M. 1980], aff ’d, 664 F.2d 220 [10th Cir. 1981], and National Indian Youth Council v. Watt: No. 80-2097 [10th Cir. November 12, 1981]).

Notes to Pages 26–44   161 15.  However, because of this moderate approach to asserting the interests of tribal nations, the NCAI fell out of favor with the more assertive pan-Indian organizations that emerged in the 1960s and 1970s (such as NARF, AIM, and NIYC), which viewed the NCAI’s agenda as too conciliatory (Bernstein 1994; Wilkins 2002: 207). Moreover, the shift toward pursuing treaty rights and using litigation as a political resource lowered the NCAI’s profile in national political networks, even as it elevated the role and status of NARF (Bernstein 1994: 372). 16.  In all, though, the effect of termination on tribes was muted by the relative brevity of its reign. According to Prucha, by the effective end of termination in 1958 “Indians in terminated groups numbered 13,263 out of an estimated tribal Indian population of 400,000, or not much more than 3 percent of federally recognized Indians. The 1,365,801 acres of trust land withdrawn amounted to about 3 percent of the approximately 43,000,000 acres held in trust in 1953” (Prucha 1984: 351). 17.  Michael McCann suggested the image of new reds and old reds (personal correspondence). 18.  Termination remains, in fact, an important rallying point for tribal politics. See, for example, Cornell (1988) and Johansen (2000). 19.  Ironically, as Chapters 3 through 5 detail, the call for equal rights now haunts Indian activism. 20.  Because courts have typically been at the center of the most notable treatyrights mobilizations (and countermobilizations) of the contemporary era, discussions of the courts are reserved for Chapters 3, 4, and 5, where some of those mobilizations are detailed. 21.  My discussion of the self-determination era is necessarily brief. Interested readers should refer to Deloria & Lytle (1984), Prucha (1984: 357–392), Cornell (1988: 164–213), Johnson (1996: 16–48, 217–221), and Wilkins (2002: 115–118) for more detailed analyses of the period. 22.  The Indian Civil Rights Act made the bulk of the national Bill of Rights applicable to tribal governments and was widely interpreted by Indian activists and tribal leaders as an attack on tribal sovereignty (see, for example, Wilkins 2002: 116). Much of the practical effect of the Indian Civil Rights Act was, however, under­ cut by the U.S. Supreme Court’s decision in Santa Clara Pueblo v. Martinez (436 U.S. 49 [1978]), which gutted one of the act’s most important enforcement mechanisms (federal habeas corpus review of tribal practices in noncriminal cases). 23.  This 1975 act of Congress, because it mandates an infusion of cash in addition to authorizing significant tribal autonomy in the development of natural resources, has proven to be a critically important means for reviving slack reservation economies (White 1990). As one observer puts it, the Indian Self-Determination and Education Assistance Act has “enabled tribes, for the first time, to create their own resource policies and regulatory agencies” (Bordewich 1996: 135). chapter 3

1.  Burstein (1999) argues that social movements are frequently able to influence public understanding on the issue(s) that most concern them. This is especially so when the issue in question lacks salience, meaning that movement activists must

162   Notes to Pages 44–49 overcome fewer competing interpretive constructions when presenting their appeals (Burstein 1999). Indeed, by the time highly visible controversies over tribal gaming arose in the mid-1990s (see Chapter 5), anti-treaty-rights activists had been priming public understanding for nearly twenty years. Moreover, during this initial period, the anti-treaty-rights movement’s message was not directly countered by Indian activists and tribal organizations, which left its terms unchallenged (Steinman 2005). The trajectory of the anti-treaty-rights movement confirms Burstein’s insight that social movements typically influence politics in an indirect fashion. 2.  Gorton is still derisively referred to by many tribal leaders as “The Last Indian Fighter.” When in a less charitable mood, they call him “Skeletor,” after the villain in the children’s cartoon He-Man and the Masters of the Universe, to whom Gorton in his later years bears a resemblance (Shapiro 1998; St. Clair & Cockburn 2000). 3.  This refers to parcels of reservations that were allotted to individual tribal members, with the excess land being sold off by the U.S. government to homesteaders during the early twentieth century. 4.  Chapter 5 explores the activities of casino opponents. See also Cramer (2005) generally. 5.  One Nation United incorporated the well-known anti-treaty-rights group United Property Owners, Inc. in late 2004. 6.  Activists’ self-depictions as “forgotten” animate the anti-treaty-rights movement, although such depictions are not unique to the anti-treaty-rights movement. Instead, the “forgotten American”—who, in spite of lifelong commitments to hard work, thrift, and fair play finds him- or herself ignored (if not despised) by policy and cultural elites—is at once a recurring figure in the American political imagination and the hero of New Right critique. The valorization of this figure by anti-treaty-rights activists thus both revives a national tradition and links activists to a prominent cultural logic that infuses contemporary American politics. Chapter 6 explores the relationship between the anti-treaty-rights movement and New Right politics, focusing especially on the central place in each of the forgotten American. 7.  The most important of these organizations are the Citizens Equal Rights Alliance, One Nation United, United Property Owners, Inc., Protect Americans’ Rights & Resources, Upstate Citizens for Equality, Mille Lacs Tea Party, and Proper Economic Resource Management. 8.  I follow Gamson and Modigliani’s discussion of frames (1989). They argue that all political controversies give rise to various “interpretive packages,” according to which citizens, media, and public officials make sense of what is at stake in the controversy. “At [the] core [of an interpretive package] is a central organizing idea, or frame, for making sense of relevant events, suggesting what is at issue” (Gamson and Modigliani 1989: 3; emphasis preserved). A frame thus works as an interpretive resource with which we can quickly intuit what an issue is about and, perhaps, discern appropriate responses. 9.  Gamson and Modigliani note that “a [frame] offers a number of different condensing symbols that suggest the core frame and positions in shorthand, making it possible to display the [frame] as a whole with a deft metaphor, catchphrase,

Notes to Pages 49–62   163 or other symbolic device” (Gamson & Modigliani 1989: 3). I conceive of the core values of individualism, community, and equal opportunity as such condensing symbols. 10.  The Unclear frame merits further discussion. Anti-treaty-rights activists are, I have argued, enmeshed within New Right politics, borrowing much of the substance of their political vision from the major themes developed by New Right intellectuals. Occasionally these broader commitments to conservative politics lead activists to produce literature that, although consistent with the resentment that they express toward treaty rights, is only tangentially related to those rights. Protect Americans’ Rights and Resources, for example, occasionally issues vitriolic attacks on “tree huggers” and “gun-grabbing Nazis.” Each liberal constituency, it is emphasized, is wedded to the ideal of big government and, so, to massive governmental invasion into the affairs of ordinary Americans. This antipathy toward big government is an important part of the political visions of antitreaty-rights activists, who consistently highlight the allegedly sordid connections between tribal governments who claim treaty rights and various unresponsive and corrupt governmental agencies. Thus, although the general arguments against big government have clear connections to, and implications for, the anti-treaty-rights arguments, the lack of explicit connection to treaty rights merits their inclusion in a different frame. 11.  The number that appears in parentheses at the end of the quotations identifies the document from which the quotation is drawn. Some scholars (see, for example, Epp 1995) argue that so identifying documents increases reader confidence in the validity of the analysis. 12.  I adapt the indices for the individual merit subframe from Fish (1996). 13.  To protect against possible measurement bias, I also conducted a secondary content analysis that used subframe “clarity” as the unit of measurement. This measure was derived by multiplying the number of mentions of a subframe in any one discrete piece of movement literature by a measure of salience (1–3). The measure of salience reflected how clearly each mention articulated the subframe in question. Accordingly, clarity is an indication of how saturated each piece is with the terms of specific indices and general subframes. This content analysis yielded results that were basically indistinguishable from the primary analysis that uses mentions as the unit of measurement. chapter 4

1.  See, for example, the treaties of Medicine Creek, Point Elliot, Point No Point, Neah Bay, Olympia, and Yakima. As this chapter documents, Washington State officials argued that these treaties guaranteed tribal control only over fishing that took place in reservation waters. 2.  The impact of regulations that eliminated fixed fishing gear, such as weirs and set nets, is illustrative. Such fixed gear—which was durable, widely available, and efficient—was traditionally favored by area Indians. Yet Washington State policy makers, relying mostly on anecdotal evidence, concluded that the use of fixed gear indiscriminately trapped massive numbers of fish, inhibiting their migration

164   Notes to Pages 62–65 to salt-water bodies and their instinctive return to fresh water spawning grounds. Although these regulations (the first of which appeared in the form of a 1934 state initiative [Initiative 77]) were generally applicable, they had a disproportionate impact on tribal fishers, who were typically less able to afford the more expensive and inefficient fishing methods (such as the gillnet and the hook and line) that were mandated by the state (Washington Department of Fisheries 1973; USCCR 1981; Cohen 1986; Boxberger 1989). 3.  Attracting both critical and sympathetic attention, participants in the fishins were subject to harassment, violence, and arrest. Sympathizers Marlon Brando and Dick Gregory were, for example, each arrested for violating Washington State’s time, place, and manner fishing restrictions (American Friends Service Committee 1970: 110–111). Far more damaging to treaty fishers than the arrest of sympathizers, though, was the state’s confiscation of their fishing gear (U.S. v. Washington 384 F. Supp. 312: 393–405; Deloria 1977: 133–197). 4.  This interpretation of the treaties was neither in bad faith nor without legal support. By the time of Boldt’s 1974 decision, in fact, federal and state courts had been providing confusing, and often contradictory, readings of the Puget Sound treaties for 70 years. Sometimes these opinions accommodated fishing rights (e.g., United States v. Taylor [3 Wash. Ty. 88 1887] and U.S. v. Winans [198 U.S. 371 1905]) and other times state police powers (e.g., State v. Towessnute [89 Wash. 478 1916] and Tulee v. State of Washington [315 U.S. 681 1942]). Accordingly, by the late 1960s, case law had become incoherent. Justice Douglas’s contortions in Puyallup Tribe v. Department of Game of Washington et al. (391 U.S. 392 1968), which depicted treaty rights as simultaneously sacrosanct and subject to police powers, are illustrative. 5.  Despite frequent protestations of its “lawlessness,” Boldt’s decision was consistent with Federal District Court Judge Belloni’s 1968 opinion in Sohappy v. Smith (consolidated with U.S. v. Oregon and issued as 302 F. Supp. 899). Interpreting treaty language similar to that contained within the Puget Sound treaties, Belloni held that Oregon lacked the authority to apply its facially neutral regulations to tribal fishing at traditional off-reservation fishing grounds. Boldt was thus repeating Belloni’s refusal of state police powers over the treaty rights of local tribes. 6.  Ken McLeod, a central figure in the countermobilization movement, so instructed the U.S. Supreme Court in 1976 after its members refused to hear Washington State’s appeal of the Boldt decision. In his “open letter” to the justices, McLeod argued that “the right of taking fish” [guaranteed by treaty] is a prepositional verbal phrase modified by the additional words “in common with all citizens.” How could any sane mind distort these treaty words to mean . . . the supremacy of Indian rights over those of “citizens of the territory” or vice versa? Boldt has created a special class of citizen against all others and he [has] denied the non-Indian citizen equal protection. [His] malodorous decision . . . flagrantly discriminates against more than 99 percent of all citizens. Your refusal to hear the legitimate appeal of the State of Washington [has] robbed the Nation’s citizens of their equal rights guaranteed by the 14th Amendment; [it is] a ruthless mockery of our Constitution. (Kenneth McLeod Papers: Box 1, Folder 6)

Notes to Pages 66–75   165 7.  Notwithstanding the passage of Washington State Initiative 456 in 1984, which affirmed Washington State’s desire to have the steelhead trout declared a national game fish (thereby outlawing the sale of the fish by treaty fishers), Boldt opponents typically saw their efforts at formal politics frustrated. Even Initiative 456, considered by some opponents to be the crowning jewel of the counter­ mobilization to the Boldt decision, was largely symbolic, both because it lacked an enforcement mechanism and because it was contrary to stated federal law. 8.  For example, the ICERR, which organized much of the later counter­ mobilization and was the most important of the grass roots organizations to emerge from the backlash to the Boldt decision, was not formed until 1975. 9.  Hetherington’s study of the perceptions of newspaper coverage by a crosssection of leading participants in the fishing-rights dispute confirms, and complicates, this pervasive sense of bias. Not only did Boldt opponents perceive that newspaper coverage was thin, ill informed, factually incorrect, and unfair, but tribal leaders and other supporters of the decision also detected such problems (Hetherington 1983). 10.  This understanding of the Fourteenth Amendment’s equal protection clause (as well as similar guarantees construed to exist within the Fifth Amendment) has been consistently rejected by the U.S. Supreme Court, at least with respect to its application towards Indians. Citing Congress’s long-standing trust relationship with tribes, as well as its plenary power to legislate on behalf of the interests of tribal members, the court’s holding in Morton v. Mancari (1974), for example, approved of Indian preference programs as long as they could be rationally tied to Congress’s trust responsibility (417 U.S. 535). Although defenders of Boldt’s decision occasionally chided its opponents for their legal myopia (see, for example, USCCR 1981: 5–6), such arguments made little impact, either on the opponents themselves or on the audiences to whom they appealed. 11.  The illegal fishery led Washington State’s U.S. Senators Henry Jackson and Warren Magnuson to bemoan the threat it presented to the resource, claiming in a letter to Secretary of the Interior Cecil Andrus that “enforcement officers cannot possibly monitor the fishery and insure adequate escapement under these circumstances” (USCCR 1978: 6). 12.  ICERR similarly instructed its members on the importance of public activities that would draw the attention of members of Congress. Calling on them to attend a rally supporting Phil Sutherland, a commercial fisher who was arrested by federal agents for violating closed-season regulations, ICERR implored, “Your senators and congressmen will not care about Indian related problems unless you voice your protest. And write them. Yes, letters matter, more than you know” (Kenneth McLeod Papers: Box 3, Folder 28). 13.  This was so especially after the Supreme Court in 1976 refused to review Boldt’s decision on appeal, thereby effectively making his decision settled law. 14.  These mixed results are unsurprising. As Schattschneider instructed, the party that successfully expands the scope of conflict to include new political actors can also end up losing control of the terms of that conflict. Schattschneider argues that this is especially so when conflicts enter new institutional terrain, for “the function of institutions is to channel conflict” in ways that are distinctive to the institutional venue in question (Schattschneider 1960: 70).

166   Notes to Pages 76–83 15.  More important than the work of the commission, though, was the legislation’s provision of federal grants and matching funds to Washington State for a variety of “buyback” programs (where the state would purchase from commercial fishers their gear and their licenses) that would reduce the number of Puget Sound fishers. 16.  Bonker’s prediction that H.R. 9054 would be found unconstitutional was never tested, as the bill died in committee. 17.  To the dismay of the delegation, though, the presidential task force’s report did not resolve the fishing-rights controversy. Released in 1978, the report was roundly criticized by Indian and non-Indian fishers alike as unfair, unreasonable, and uninformed. Ken McLeod and other opponents of the Boldt decision (including the Puget Sound Gillnetters Association and the Purse Seine Vessel Owners Association) declared the 322-page document “propaganda,” whereas the treaty tribes were so appalled by the report’s recommendation that their “usual and accustomed” fishing grounds be cordoned off into much smaller “Tribal Management Zones” that they produced a formal, point by point, response (for a summary of positions, see USCCR 1978 generally and 1981: 75–91; see also Kenneth McLeod Papers: Box 1, Folder 6). 18.  Ken McLeod argued that S. 874 would “return this nation we cherish to the constitutional government that made it great and the envy of the people worldwide, but from which we have been steadily drifting” (Kenneth McLeod Papers: Box 1, Folder 7). 19.  There is a large body of political science scholarship that explores the impacts of institutions on the behavior of political actors, especially public officials. The most prominent of this scholarship, which is occasionally referred to as New Historical Institutionalism and is tied primarily to the work of professors Karen Orren and Stephen Skowronek, understands and explores behavior in ways that are consistent with the cultural approach to politics outlined in Chapter 1, with analysis particularly focused upon the institutionally specific meanings that actors attribute to events and the constitutive work that these meanings do on present and future behavior. See, for example, Orren and Skowronek (1993, 1995), Smith (1988, 1995: 36–40), and Keck (2004). 20.  Not that state officials were entirely free of institutional constraints. A critically important one—the desire to regain state authority over Washington fisheries—would play an increasingly central role in the actions of officials as the state’s unsuccessful legal appeals worked their way through the federal courts in the late 1970s. 21.  The Department of Game and Department of Fisheries traditionally shared authority over Washington state’s fish resource. Fisheries regulated commercial fishing, while Game regulated sport fishing. With respect to Indian fishing rights, Game claimed authority over treaty fishing for steelhead trout (a fish recognized under state law as noncommercial), and Fisheries claimed authority over treaty fishing for salmon. 22.  “Equal protection is denied when similarly situated persons, e.g., all state citizens including Indians, are treated differently by allowing only a certain class to fish with nets. There is [thus] no discrimination where all state citizens are

Notes to Pages 83–90   167 only allowed to fish by a certain method. Illegal discrimination would occur only where one group is given special rights that the other group is denied, e.g., allowing only Indians to net fish or allowing only non-Indians to fish with hook and line” (Department of Game et al. v. Puyallup Tribe, Inc., et al. [86 Wn.2d 664: 680]). 23.  Gorton was not the only elected law-enforcement official to build a reputation on the back of the Boldt decision countermobilization. Through selective prosecution of nontreaty illegal fishing, many local prosecutors came to be known as champions of the people. Some hopefuls for the position even ran on thinly veiled campaign pledges to not enforce the terms of the Boldt decision. Jim Bates, a Democratic hopeful for King County Prosecutor in 1977, billed himself in the Sportsmen News Letter as a candidate who “will enforce ALL laws for ALL of us,” who “favors abrogation of all citizen-with-citizen treaties,” and who “can find no law or court case saying inverse discrimination does not violate the U.S. Constitution” (The Sportsmen News Letter 1977: 18). 24.  The distinction between a regulation that allocates (and is thus impermissible) and a regulation that conserves (and is thus permissible) is, at best, unclear. Rosellini’s logic seems to rest on the facially untenable assumption that regulation for conservation purposes does not have the effect of allocating fish to particular user groups. For a discussion of this point, see USCCR 1981: 74–75. 25.  The second suit against Fisheries, Washington State Commercial Passenger Fishing Vessel Association v. Thor Tollefson (89 Wn.2d 276), was decided in November 1977. Justice Rosellini, again writing for the majority, repeated his threepart argument from Moos, thus forbidding Fisheries from implementing the Boldt decision. 26.  Stevens also introduced a “moderate living” standard that held that the 50 percent tribal catch might in the future be reduced on a case-by-case basis, as individual tribes came to be less dependent on fishing for their livelihoods. 27.  “Whatever the decision of this Court,” Gorton wrote, “the state will implement it. The state believes that after a decision by this Court it will be in a position to comply with District Court orders. We do not believe the state courts could or would take a different point of view: we are confident that they will accede to this Court’s interpretation of the treaties in the future” (694). 28.  Although Slade Gorton, the countermobilization movement’s “very good friend,” was elected to the U.S. Senate in 1980, his removal from state politics actually calmed state–tribal relations; it removed from the relationship an official whose antipathy towards treaty rights has been well documented (Shapiro 1998; St. Clair & Cockburn 2000). 29.  The countermobilization movement did mount one final attack on the Boldt decision in 1984. Taking advantage of a popular climate that it had been instrumental in promoting, the movement successfully placed an anti-treaty-rights initiative (I-456) on the November ballot. Declaring the people’s opposition to “any special off-reservation legal rights or privileges of Indians,” I-456 affirmed that the management of all fish and wildlife was the exclusive domain of state agencies. Moreover, the initiative required that state officials immediately petition Congress to de-commercialize steelhead trout, thereby forbidding the sale of the valuable fish at market by treaty fishers. Although I-456 passed, the attorney

168   Notes to Pages 90–104 general’s office refused to enforce it, citing its inconsistency with stated federal law. The trajectory of I-456 affirmed both the movement’s ability to generate public support with its special-rights talk and the movement’s inability to use that discourse to overcome countervailing institutional prerogatives. 30.  Moreover, there is some evidence that the implementation of the Boldt decision has deepened existing divisions within tribal societies. Those tribal fishers best able to take advantage of the decision were those who were able to invest in efficient (but expensive) gear, including purse-seine vessels outfitted with power-reel marine gillnets and global-positioning-satellite technology. Anderson (1987) argues that these fishers have benefited greatly from the implementation of Boldt’s 50 percent provision. Conversely, those tribal fishers who use traditional net methods (or “riparian” fishers) have benefited much less from the Boldt provisions. Anderson argues that these disparities have exacerbated a series of conflicts within the membership of tribal societies that center on differences over the degree to which Indians should adopt the practices of mainstream American society. As he argues, purse-seine owners tend to emphasize the importance of individual self-sufficiency, whereas traditional riparian fishers tend to emphasize that fishing is important for preserving cultural integrity (Anderson 1987: 135–139; see also Knutson 1987). 31.  Boxberger (1989) concurs in this assessment. He notes that “although . . . non-Indians claimed their fishery was ruined by the Boldt decision, evidence suggests that it would have experienced hardship whether or not the decision had been implemented . . . [with] the build-up of the commercial fleet and overcapacity [the] prime factors” (Boxberger 1989: 154). chapter 5

1.  Further, only 25 percent of gaming tribes distribute per-capita payments directly to their members. The remaining 75 percent, in accord with IGRA’s requirement that all gaming proceeds be spent on the needs of tribal members, have invested in health and human services and in diversifying their economic bases (National Indian Gaming Association 2006a). The Muckleshoot tribe of Washington State, for example, has followed this latter path to considerable success (Dudas 2003). 2.  Washington State’s ALRA, for example, maintains a local focus, opposing the Cowlitz Nation’s attempts to establish a casino. However, ALRA’s fundraising pamphlets also prominently advertise the organization’s affiliations with national anti-treaty-rights groups, such as ONU and CERA. ALRA, in fact, highlights how its current executive director was one of the founding members of CERA in the 1980s (ALRA 2005). 3.  The organization’s 2008 conference, which will feature two days of conference sessions and three days of Congressional lobbying by conference participants, will take place in Washington, D.C. (CERA 2008). 4.  The home page for UCE is illustrative. An upstate New York organization founded originally to combat land claims made by the five bands of the

Notes to Pages 104–114   169 Oneida Nation, the group soon became a watchdog of the Turning Stone Resort and Casino (operated by the Verona band of the Oneida Nation), quick to point out tribal mistakes and management difficulties in the local press and conducting high-visibility protests on land near the Oneida reservation. UCE has now broadened its education efforts, instructing visitors as to the evils of treaty rights on issues as diverse as taxation, jurisdiction, and resource planning. As a part of this education, the group’s home page prominently displays links to the home pages for CERA and ONU (UCE 2006). 5.  This theme pervades Time magazine’s (2002) exposé on tribal gaming. It is also a central theme of Jeff Benedict’s (2000) Without Reservation, a full-length examination of the Mashantucket Pequot Tribal Nation that has become an intellectual manifesto for opponents of tribal gaming and, more generally, for those who oppose the exercise of treaty rights writ large. 6.  Consider, for example, the case of Kathy Lewis, a Table Ranch Indian whose undeniable tale of woe receives extended attention from Barlett and Steele. Although her grandfather was an enrolled member and chief of the Table Ranch Rancheria (located near Fresno, California) in the 1950s, Lewis’s family (which had moved off the reservation to pursue economic opportunity) was unenrolled following the establishment of the tribe’s profitable casino. Even worse, after her father was successfully readmitted to the tribe, he disowned her and the rest of his family (Barlett & Steele 2002a: 57–58). The point is not that the tribe’s treatment of Kathy Lewis is defensible (the tribe, in fact, refused to discuss her case with the reporters). The point, rather, is that it is impossible to know how well, or how poorly, Lewis’s scenario represents the reservation politics of gaming tribes. May (2002), Melmer (2002), and Spilde (2003), for example, all deny that such abuses are systematic features of tribal politics. 7.  The more rigorous of the two polls—the one conducted by the University of Connecticut’s Center for Survey Research & Analysis—found that 56 percent of Connecticut’s residents opposed the building of more Indian casinos, even as 65 percent of the state’s residents acknowledged that the two existing casinos played an “important role in the state’s economic health.” The source of this paradox— acknowledgement of the economic benefits of tribal casinos and opposition to the establishment of more casinos—seems to lie in the perception held by 80 percent of those surveyed that the existing casinos had significantly increased traffic on the roads near the casinos. As I note here, the perception of increased traffic is a critical component of the argument made by casino opponents that the tribal casinos are destroying Connecticut’s rural way of life (Center for Survey Research & Analysis 2002). I am grateful to George Pettinico, who provided me with the specifics of the Center for Survey Research and Analysis poll. 8.  Foremost among these alleged consequences of tribal gaming is that casinos will become breeding grounds for organized crime. That there is to date no reliable evidence that established crime families have infiltrated tribal gaming operations does little to alleviate opponents’ fears (Eisler 2001). 9.  When BAR consolidated the petitions in 2002 and recognized the EPTN, the majority faction (formerly the EP) elected to drop Trump and retain the

170   Notes to Pages 114–122 management services of Rosow. This decision prompted Trump to file suit against the EPTN in federal court, alleging breach of contract and asking for $500 million in damages. The suit is ongoing as of this writing. 10.  Content analysis of a sample of sixty-eight documents (made up of committee testimony, op-ed pieces, and newspaper articles) revealed that the destructive impacts argument and the broken federal recognition process argument are the two most popular arguments offered by casino opponents. The third common argument—non-Indians are fabricating a fraudulent Indian identity in order to take advantage of casino wealth—was far less popular than the other two, especially among public officials. Kerri Murphy conducted the content analysis, with intercoder reliability assured by the author. The analysis is on file with the author. 11.  As Chapter 3 argued, anti-treaty-rights activists often employ this fiction of a once-harmonious community under attack from the exercise of special treatyrights. Its narrative of decline and grievance, as well as its targeting of deviant rights claims as the source of trouble, is also consistent with the more general, nationalistic version of the argument found in New Right critique (see Chapter 6). 12.  Benedict stepped down as president of CAACE in December 2005, following the rejection of the EPTN’s recognition bid. Attorney General Richard Blumenthal offered an effusive testimonial: “Jeff has been a leader of incomparable courage and intellect in giving voice to a grass roots movement and making a crucial contribution to our State” (CAACE 2005). 13.  Per their gaming compacts with the State of Connecticut, the Mashantucket Pequot and Mohegan tribes annually contribute 25 percent of slot machine profits directly to the state. These contributions fund the Mashantucket Pequot/ Mohegan Fund, which has become an essential revenue stream, necessary both for sustaining the state budget and local town budgets throughout the states (Connecticut General Statutes: 3-55i, 3-55j, and 3-55k). Since 1993 (the first year of the agreement), the tribal gaming compacts have generated in excess of $3 billion in direct payments to the state (State of Connecticut 2006). 14.  To be sure, some of those displaced from the manufacturing sector have found employment in the state’s growing high-tech, information sector (which includes the telecommunications industry). In spite of consistent expansion, though, Connecticut’s information sector is relatively small, providing only 39,000 jobs and amounting to only .02 percent of the state’s total nonfarm labor force (Connecticut Economic Digest 2006: 12). 15.  An indicator of Connecticut’s historic commitment to local control is the state’s 1960 decision to abolish county governments, preferring instead to devolve authority to town government and evolve authority to state government (McKee & Petterson 1997: 119–120). 16.  Once a hallmark of local control, public education has become far more centralized in the past 30 years. The shift away from local control occurred primarily as a result of, first, state-initiated and, later, court-mandated desegregation schemes. Indeed, in 1996’s Sheff v. O’Neill (238 Conn. 1, 678 A.2d 1267) the Connecticut Supreme Court held that the state was maintaining a dual school system in violation of the state constitution and ordered that it be remedied. Although Jacobs’s (2006) exhaustive study finds that Sheff prompted little change in the

Notes to Pages 122–138   171 racial composition of Connecticut’s public schools, it is clear that the various attempts made by the state to comply with the court’s order served as rebukes to the long tradition of local control in the area of public education. 17.  Indeed, prior to reapportionment, “12 percent of the voting population could elect a majority of members to the House” (McKee 1983: 36). 18.  There were, though, differences in how the Republican and Democratic machines operated. John Bailey’s Democratic machine of midcentury, which drew most of its support from the more populated, urban areas of the state, was forced into alliances with the dominant local party organizations. In contrast, the Republican machine (especially in its early twentieth century heyday under J. Henry Roraback) was far more centralized and autocratic (Lockard 1959: 257–266). 19.  I am grateful to Howard Reiter, who assembled and shared with me this data. 20.  As McKee’s account of Connecticut politics notes, “Party organizations have been greatly weakened by candidates running successfully for office without funds and workers supplied by party chairmen” (McKee 1983: 58). 21.  In 2006 Joseph Lieberman successfully followed Weicker’s example. After losing the Democratic primary, he won reelection to the U.S. Senate as an independent. 22.  Kim Eisler, who published a 2001 book on the Mashantucket Pequots, confirmed George’s ancestry, locating Civil War–era documents that establish the George line as Pequot (Eisler 2001). Benedict subsequently claimed that these documents were forged (Benedict 2001). 23.  Perusal of the Internet home pages maintained by these organizations reveals this focus on fraudulent identity. See, for example, http://www .connecticutalliance.org; http://www.tribalnation.com (cached as of 02/20/07); and http://www.kenttask.org. 24.  In the BIA’s 2005 annual report, for example, James Cason (Associate Deputy Secretary) highlighted both the agency’s commitment to “fiscal stewardship” of tribal resources and its “government-to-government commitment for improving the lives of American Indians and Alaskan Natives” (Bureau of Indian Affairs 2005: 4). 25.  Suggesting that his support for the anti-tribal-casino movement is substantive, McCain in November 2005 introduced Senate Resolution 2078, a bill that would limit the ability of tribes to engage in what opponents derisively label “reservation shopping.” Reservation shopping refers to the process of tribes making claims to ancestral lands that are far from the lands on which they currently reside. 26.  The EPTN unsuccessfully appealed Cason’s decision to the Interior Board of Indian Appeals, which rejected the appeal in January 2006 (42 IBIA 133). chapter 6

1.  Studies failed to confirm the extent or direction of the injuries claimed by the opposition to the Boldt decision and to tribal gaming, for example. See Chapters 4 and 5.

172   Notes to Pages 142–150 2.  Wills writes that “Nixon did not invent ‘the Forgotten American’—neither the phrase nor the concept; but he used it perfectly” (Wills 1970: 312; see also Nixon 1968; Goldwater 1970: 49–53; and Mason 2004). The success of Nixon’s appeal to white, middle-class resentment was prefigured in the previous presidential election cycle. The disaffection and grievance that characterizes these former New Deal Democrats, in fact, was first revealed in their surprisingly strong support of George Wallace’s 1964 presidential campaign (Rogin 1968; Carter 1995). 3.  Reagan himself told audiences in the late 1960s that “we all started out as Democrats but somehow the Democratic Party left us. It left us when it switched to so many philosophies that we could not accept” (Reagan 1968: 135). 4.  Wills, though, disagrees. He argues, in fact, that the American culture wars amount to a “conflict of one religious vision with another,” where the “religion of the [New Right] is judgmental, punitive, and individualistic” (Wills 1992). 5.  Hunter argues that the culture wars are driven by the competition of two particular worldviews. The “orthodox” worldview enacts a “commitment on the part of adherents to an external, definable, and transcendent authority” that “tells us what is good, what is true, how we should live, and who we are.” Its competitor, the “progressive” worldview “resymbolize[s] historic faith according to the prevailing assumptions of contemporary life” such that “truth tends to be viewed as a process, as a reality that is ever unfolding” (Hunter 1991: 44). Unsurprisingly, the orthodox worldview tends to be favored by cultural conservatives and the progressive worldview is preferred by “liberals or cultural progressives” (Hunter 1991: 46). 6.  The “whole man” was a central motif of Goldwater’s political thought. It was a reference to how his brand of conservatism supposedly acknowledged both the economic and spiritual aspects of individual life. Liberalism, in contrast, was allegedly consumed by the issue of economic inequality, focusing only on the material well-being of Americans (Goldwater 1960: 10–13). 7.  Recall that anti-casino activists often accuse tribes petitioning for federal recognition of making fraudulent-identity claims (see Chapter 5). 8.  In his study of Sander County, Engel notes that this brand of individualism emphasizes “self-sufficiency and personal responsibility rather than rights . . . and remedies” (Greenhouse, Yngvesson, & Engel 1994: 33). Yet conservative intellectuals and New Right activists appear to efface the distinction, arguing that it is the denigration of equal rights and the lack of remedies available to those so afflicted that undermines individualism. 9.  Similarly, the Center for Equal Opportunity, headed by conservative pundit and failed George W. Bush nominee for Labor Secretary Linda Chavez, advertises itself as “devoted exclusively to the promotion of colorblind equal opportunity and racial harmony” and so as “uniquely positioned to counter the divisive impact of race conscious public policies” (Center for Equal Opportunity 2006). 10.  The emphasis on taxes has gone mainstream, animating popular movements even in the absence of identifiable GOP goals. The California “property tax revolt” of the late 1970s (quickly followed by a similar movement in Illinois) is noteworthy, as are more recent tax-cutting initiatives in states as diverse as Washington, Oregon, Michigan, Maine, Alaska, and South Carolina (Cleary 2000).

Notes to Pages 150–153   173 11.  Confronted with his opponent’s comprehensive health-care plan during the 2004 presidential election, President Bush offered to voters a predictable package of tort reform (to discourage the medical malpractice suits that allegedly inflate insurance premiums) and tax cuts (to place more money in the hands of consumers) (Washington Post 2004). Irrespective of the general merits of tort reform and tax cuts, there is little reason to believe that either will improve the inadequacies of the nation’s health-care system (Haltom & McCann 2004). 12.  There is little reason to presume (as does commentator Thomas Frank, for example) that a simple change in voting behavior—shifting back to supporting the Democratic Party, for example—would result in significantly more responsive policies. The centrist drift of the Democratic Party in recent years, manifest in the disinterest of “new Democrats” in combating race and class-based inequalities, makes the emergence of an economic-justice agenda unlikely (Roedinger 1998: 48–60). 13.  See, for example, Schacter (1994 and 1997); Herman (1997); GoldbergHiller (2002); Goldberg-Hiller & Milner (2003); and Hatcher (2005). 14.  Notable works on the New Right written by political scientists include those by Rogin (1987), Smith (2000 and 2006), Keck (2004), Haltom and McCann (2004), Dudas (2005), Taylor (2005), McCann and Dudas (2006), and Teles (2007). Wills (1970, 1987, and 1992), Carter (1995), Kazin (1995), McGirr (2001), and Mason (2004) have written important histories of New Right politics. Two prominent cultural critics, Fish (1994, 1996) and Frank (2004), have extensively engaged New Right ideology, and Perlstein (2001) and Micklethwait and Wooldridge (2004) have written useful journalistic accounts of the major figures associated with contemporary conservative politics.

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Index

aerospace industry, 118 affirmative action, 2, 4, 17, 20, 95, 145–48 African Americans, 18, 32, 34, 105–106 African Indians, 114 Aid to Families with Dependent Children, 101 Alaska, 173n10 Alcatraz Island, 160n10 Alger, Horatio, 34 All Citizens Equal, 46 Alliance for America, 148 American Civil Rights Institute (ACRI), 148 American Friends Service Committee, 63, 164n3 American Indian Movement (AIM), 24–26, 160nn11,13, 161n15 American Land Rights Association (ALRA), 103, 168n2 American Political Science Association, 124 American Sportfishing Alliance, 67, 79 American Way of Life: core national value system, 2–5, 13–15, 28, 37; offreservation fishing, 61–62, 72–73, 77, 87, 93–94; rural/small town character, 115–18, 129, 135–36, 169n7; subversion of, 138–39, 145, 148, 158n8, 170n11; treaty-rights claims as threat, 28–32, 41–43, 47, 49–52, 56, 58, 96; tribalgaming movement, 102–104, 110–12, 115, 129, 131, 134–36. See also national identity Americans Against Discrimination and Preferences, 148 America’s Future, 148

Anacortes American, 67 Analysis Group/Economic, Inc., 101 Anaya, S. J., 26 Anderson, M. R., 168n30 Andrus, Cecil, 165n11 Anishinabe (aka Chippewa) Nation, 45 anti-Communism, 28–32 anti-treaty-rights literature analysis, 47–58; arguments against treaty rights, 50t, 53t; clarity subframe, 163n13; commun­ity harmony, 52, 55–56, 55t; equal opportunity, 52, 56–58, 57t; individual merit, 51–54, 53t, 163n12; material/local interest, 49, 50; meth­ odology, 162nn8–9, 163n13; special rights, 49, 51; unclear frame, 50t, 51–52, 163n10 anti-treaty-rights movement, 39–59; ability to shape understanding of issue, 161n1; congressional politics, 74–75, 79–80, 113; conspiracy theories, 87; countersubversive persuasion, 42–43, 47–58, 73, 94, 130, 136, 138, 151; defining the conflict, 2–4, 7, 14–15, 17–18, 43–47, 71–73, 140–42; denial of tribal nationhood, 19–20, 36, 93; direct/indirect impacts, 43–44, 151, 161n1; instrumental analysis, 140; interest-based v. valuebased disputes, 4, 10–14, 58, 61–62, 72–73, 92–93, 136; literature and proposed legislation, 47, 78, 82, 86, 87, 139; McLeod letter to Supreme Court, 164n6; mobilization of, 41–47, 61–62, 66–67, 70–71, 78, 89–90, 93–94; as

194   Index anti-treaty-rights movement (continuted) moral crusade, 9, 43; New Right political vision, 4, 16, 77, 93–94, 136, 138, 142–44; newspaper coverage, 65–68, 165n9; opposition groups, 43–47, 162n7, 165nn8,12, 169n4; reaction to Boldt decision, 65–73; strategies, 65–73, 165n12, 167n29; support from public officials, 3, 44–45, 50, 73–92, 96–97, 139, 166nn14,20, 167nn23,28; Washington State Initiative 456, 165n7, 167n29. See also anti-treaty-rights literature analysis; fish wars; special rights; treaty-rights movement; U.S. v. Washington anti-tribal-casino movement, 95–136; antigambling nation, 98–112; arguments against tribal casinos, 104, 106–12; casino state, 112–36; countersubversive persuasion, 127, 130, 135–36; election campaigns, 110; fraudulent identity claims, 106–107, 110–15, 130–32, 170n10, 171nn22–23, 172n7; inequitable distribution of casino revenue, 126–27; interest-based v. value-based disputes, 96–97, 111, 112, 115–17; legitimacy of treaty-rights claims, 104–106; media response to, 106–12; opposition groups, 102–103, 112, 168n2, 169nn3–4, 171n23; problem gamblers, 117; public officials support, 102, 128–29, 131–32, 139; reservation shopping, 171n25; roots of movement, 96–112, 122–23; socioeconomic impacts, 115–30, 170n10; themes/ strategies, 104–16, 126–32, 169nn4–5, 170n10, 171n23. See also Connecticut; federal tribal recognition process; treatyrights movement; tribal casinos The Apprentice, 95 Arizona, 101 armaments industry, 118 artifacts, return of, 36 Associated Press, 110 Attorney General’s office (Wash.), 81–84, 86, 88–89 autonomy, 38 Bailey, John, 123, 171n18 Baldwin, James, 28 Banks, Dennis, 24, 25, 26

BAR. See Bureau of Acknowledgement and Recognition Barlett, Donald, 107–109, 169n6 Bartlett, Bruce, 150 Bates, Jim, 167n23 Beck, P., 124–25 Beckett, K., 33 Bell, Daniel, 28 Bellecourt, Clyde, 24, 160n13 Bellecourt, Vernon, 160n13 Belloni, Robert C., 164n5 Benedict, Jeff, 103, 112, 133–35, 170n12, 171n22; Without Reservation, 106–107, 109–10, 117–18, 130–31, 169n5 Berkhofer, R. F., Jr., 20, 27, 34 Bernstein, J., 26, 161n15 Bernstein, Michael, 142 Berry, E. Y., 30 Bill of Rights, 146, 158n6, 161n22 bingo halls, 98–99 Biolsi, T., 20, 21, 22, 27, 46 Black Power movement, 24, 34 blame, misattribution of: anti-treatyrights movement, 4, 10–14, 58, 61–62, 72–73, 92–93, 136; anti-tribal-casino movement, 96–98, 111, 112, 115–17, 128–30; socioeconomic consequences, 8, 15–16, 139–40, 149, 151–52 Blumenthal, Richard, 112, 115–16, 128, 132–35, 170n12 Bobo, L., 42, 72, 138 Boldt decision. See U.S. v. Washington Boldt, George, 63, 65, 68, 70, 81, 86–87, 88. See also U.S. v. Washington Bonker, Don, 75, 76, 78, 79, 166n16 Bordewich, Fergus, 36, 111, 161n23 Boxberger, D. L., 63, 74, 85, 87, 90, 163n2, 168n31 Brando, Marlon, 163n3 Bridgeport, 126 Brigham, J., 11, 22, 152 Brown, J. J., 89 Bruun, R., 44–45, 47, 80, 92 Buchanan, Patrick, 144, 145 Buckley, William F., Jr., 146 Bureau of Acknowledgement and Recognition (BAR), 105, 107, 112–15, 131–36, 170n9. See also federal tribal recognition process

Index   195 Bureau of Indian Affairs (BIA), 25–26, 35, 114–15, 129, 160n8, 171n24. See also federal Indian policy; federal tribal recognition process Burnstein, P., 43, 161n1 Bush, George W., 1, 173n11 Cabazon band of Indians, 98 Cable News Network (CNN), 107, 109 California: authority over reservations, 29; Proposition 209, 145, 148; tax revolt, 173n10; tribal-gaming movement, 98–99, 101–104 card clubs, 98–99 Carlson, Tucker, 95 Carstensen, F. W., 102 Carter, D. T., 172n2 Carter, Jimmy, 71, 78 Cascade Lake No Casinos, 103 casinos. See tribal casinos Cason, James, 135, 171nn24,26 Caucasian race, 130–31 Center for Equal Opportunity (CEO), 148, 172n9 Champagne, D., 23, 160n10 Chance Vought company, 118 Chase, R., 101 Chavez, Linda, 172n9 Cherokee Tribe, 20, 23 Chicago, Ill., 123 Chippewa (aka Anishinabe) Nation, 45 Churchill, Ward, 160n13 Citizens Equal Rights Alliance (CERA), 46–47, 103–104, 162n7, 168n2, 169nn3–4 Citizens Rights Organization, 46 Civil Liberties for South Dakota Citizens, 46 civil rights movement, 19, 24, 32–33, 47, 63, 145–47, 158n9 Cleary, P., 173n10 Cleveland, Ohio, 23 Clinton, William J./Clinton administration, 1, 150 Cockburn, A., 162n2 Cohen, F. G., 21, 45, 47, 63, 70–73, 84, 89, 92 Cold War era: federal Indian policy, 28–32, 37, 118; “pan-Indian” consciousness, 17–18, 22–27, 32–37, 39, 44–45, 160nn10–11, 161nn15,19; red scares, 28–32, 161n17

colonialism, Indian policy as by-product, 23, 34–35, 38, 160n11 Comaroff, J. L., 6 commercial fishing industry: economic health, 91–92, 139, 158n7; federal buyback programs, 166n15; reaction to Boldt decision, 14–15, 61–62, 66–67, 70–71, 84, 92; state regulation, 62–63, 84–85, 89–90, 163nn1–2, 166n21; Washington State Commercial Salmon Catch, 90, 91t. See also fish wars Commonwealth Fund, 150 community harmony: core American value, 13–14, 42, 49–50, 117, 152; database analysis, 52, 55–56, 55t; undermining of, 52, 55–56, 110, 111, 170n11 conformity, desire for, 28–29, 31 Congdon, Robert, 95 Congressional Record, 78 Connecticut: apportionment/reapportionment, 122–23, 171n17; candidatecentered politics, 124–25; casino employment, 119–21; casino revenue distribution, 117, 126–27, 168n1, 170n13; defense industry, 118–19; economic insecurity, 111, 118–19, 129–30; high-tech information sector, 170n14; home-rule movement, 121, 122, 125; House of Representatives, 122; local control of communities, 121–26, 170nn15–16; machine politics, 121, 123–26, 171n18; manufacturing sector, 16, 97, 102, 111, 118–19, 170n14; political party system, 123–26, 171n20; public education, 170n16; selectmentownmeeting form of government, 121–22; service-based economy, 16, 97, 111, 118–19, 128–30, 140, 170n14; spread of casinos, 15–16, 46, 95–96, 99–100, 103, 108, 110, 134–35; tele­ communications industry, 170n14; town-manager form of government, 122; unresponsiveness of government, 97, 108–109, 111, 121, 124–25, 127–30, 140; voting patterns, 124–25, 173n11. See also anti-tribal-casino movement; tribal casinos Connecticut Alliance Against Casino Expansion (CAACE), 112, 117, 131, 170n12

196   Index Connecticut Economic Digest, 118, 119, 170n14 Connecticut General Statutes, 126, 127 Connerly, Ward, 148 Connolly, W. E., 9, 87 conservative-rights discourse: cultural power of, 11–13, 142–44, 172nn4–5; denigration of equal rights, 172n8; intrusion of big government, 163n10; New Right political vision, xi–xii, 142–44, 147–49, 151–53; redistributive social change, 4, 16; resentment and countersubversion, 7–11. See also politics of resentment conservative-rights mobilizations, 152–53 Cooper, Kenneth, 116–17 Cornell, S. E., 21–24, 27, 30–31, 159n6, 161n18 cosmopolitanism, 144 Council of Economic Advisors for the President’s Initiative on Race, 36 court cases: Brown v. Board of Education, 65, 145; Cabazon Band of Mission Indians v. California (1987), 99; The Department of Game et al. v. Puyallup Tribe, Inc., et al., 83; Lac Courte Oreilles Band v. Voigt (1983), 45; Morton v. Mancari, 165n10; Puget Sound Gillnetters Association v. United States District Court, 81, 85–86, 87–88; Puyallup Tribe v. Department of Game of Washington et al., 164n4; Rosebud Sioux Tribe v. Kneip, 45–46; Santa Clara Pueblo v. Martinez, 161n22; Seminole Tribe of Florida v. Butterworth, 99; Sheff v. O’Neill, 170n16; Sohappy v. Smith, 164n5; United States v. Mission Golf Course and City of Mission, 46; Washington et al. v. Washington State Commercial Passenger Fishing Vessel Association et al., 88; Washington State Commercial Passenger Fishing Vessel Association v. Thor Tollefson, 165n25; Washington State Department of Game et al. v. Puyallup Tribe, Inc., et al., 167n22. See also U.S. v. Washington Courtney, Joe, 110 Cowger, T. W., 26 Cowlitz Nation, 168n2 Crabb, Barbara, 45 Cramer, Reneé, 47, 100, 105–108, 113, 114, 159n1

Crenshaw, K. W., 6–9, 158n10 Crist, Dean, 45 culture wars, 137–53; affirmative action, 2, 4, 17, 20, 95, 145–48; anti-treaty-rights movement, 4, 17–18, 58, 136; cultural/ institutional power of law, 5–7, 11–13, 40–41, 148–49; disability rights, 2, 4, 17, 18, 32; equal rights/special rights interpretations, 13, 19–20, 41, 89, 93–94, 111, 136, 141; gay rights, 2, 4, 17, 18; interpretations of cultural meanings, 159n12; multiculturalism, 17, 20, 37, 56–58; New Right cultural politics, 11, 16, 142–46, 151–52, 172n4; progressive rights, 172nn4–5; rights discourse and social change, 12, 16, 40–41, 112–13, 136, 138–44, 151–52, 158n6; Sixties-era activism, 32–37, 145, 149. See also politics of resentment; redistributive social change Cunningham, Jack, 44–45, 60, 75, 77–78, 79 Curry, Bill, 110 Dahl, Robert, 28 Daily Free Press, 120 Daley, Richard, 123 Dallas, 23 Darian-Smith, Eve, 104 De La Cruz, Joseph, 93–94 death tax, 51 DeLauro, Rosa, 112, 116 Deloria, P., 20 Deloria, Vine, Jr., 19, 23, 24, 27, 63, 164n3 Democracy for Citizens, 103 Democratic Party, 142, 143, 171n18, 172n2, 173n12 Denver, Colo., 23, 26 Dippie, B. W., 20, 104 disability rights, 2, 4, 17–18, 32 Dobbs, Lou, 107 Dobson, James C., 109 Dodd, Christopher, 112, 114, 116, 135 Dole, Robert, 1 Douglas, William O., 164 Doyle, W., 122 Dudas, J. R., 7, 10, 12, 21–22, 63, 151, 153, 168n1 Eastern Pequot Tribal Nation (EPTN): and Donald Trump, 95–96, 170n9;

Index   197 split of, 106; tribal status recognition, 15–16, 112–16, 118, 130–36, 170nn9,12, 171n26. See also Mashantucket Pequot Tribal Nation (MPTN) Eastern Pequot Tribe (EP), 106, 114, 170n9 Eco-Freaks/tree-huggers, 51, 163n10 Edelman, Murray, 5–6, 8 Edsall, T. B., 150 education/public education, 33, 35, 65, 145, 161n23, 170n16 Eisler, Kim, 169n8, 171n22 Electric Boat Company, 118 employment: defense industry, 118; information sector, 170n14; service-based economy, 16, 97, 111, 118–21, 140; tribal casinos, 98, 101–102, 119–21 Engel, D. M., 49, 55, 117, 148–49, 172n8 entitlements, 149 Epp, Charles, 8, 18, 22, 163n11 equal opportunity: core American value, 13–14, 42, 49–50, 64, 115, 152, 172n9; database analysis, 52, 56–58, 57t; undermining of, 52, 56–58, 111 equality/equal rights: abusive rights claims, 10–11, 51, 147–49; appropriation of, 93; denigration of, 172n8; equal-rights/ special-rights distinction, 1, 41, 49–50, 66, 75, 87, 93, 141; Indian activism, 161n19; passion for, 9–10, 53, 157n2. See also special rights Equality for All, 65, 78 Erdoes, R., 25, 26 Erie, S. P., 124 Evans, M. K., 102 Ewick, P., 11, 42, 43, 49 fairness/unfairness distinction, 2–3, 6–7, 41, 140–41 The Family Guy, 106 Federal Acknowledgement Process (FAP), 104–105 Federal Bureau of Investigation, 26 federal grants: buyback programs, 166n15; grounds for, 8–9, 39, 73, 107 federal Indian policy, 27–37; assimilation, 23–24, 27, 29–32, 35, 37, 54, 160n8, 168n30; Cold War era, 28–32, 37; and colonialism, 38, 160n11; Employment Assistance Program, 160n8; jurisdiction over treaty interpretation, 80; misman-

agement of, 115, 159n4; noble savage/ bad Indian duality, 20; “pan-Indian” rights consciousness, 23–25, 37–38; paternalistic attitude, 20–21, 29, 33–35; recognition of treaty-rights, 19, 80; self-determination policies, 27, 32–38, 80, 99, 127; termination policies, 27–32, 34, 37–38, 57, 77, 160n8, 161nn16,18; treaty-making era, 104–105; uniqueness/ uniformity duality, 27; urban relocation programs, 23–24, 31, 160n8 Federal Task Force on Washington State Fisheries, 71, 78, 91–92, 166n17 federal tribal recognition process: bias and corruption in, 132–35, 170n10; criteria for recognition, 105, 131–32; EPTN tribal status, 15–16, 112–16, 118, 130–36, 170nn9,12, 171n26; fraudulent recognition, 130–32, 170n10, 171n22, 172n7; hearings into conduct of, 135; number of tribes recognized, 133; opposition to, 115–17, 130–36; recognition of EP and PEP tribes, 114; Senate Resolution 2078 (reservation shopping), 171n25; and wealthy gaming interests, 134 federal-tribal relationship: and Boldt decision, 66, 165n10; Nixon’s Special Message on Indian Affairs to Congress, 34–35; plenary authority of Indian tribes, 20, 35–36, 165n10. See also tribal sovereignty and nationhood Feeney, M., 34 Felsteiner, R., 11 Ferandopulle, R., 150 Fifth Circuit Court of Appeals, 99 Fish, S., 6, 8, 9, 163n12 fish wars: commercial fishing, 14–15, 61–62, 66–67, 70–73, 84, 92; confiscation of fishing gear, 164n3; “fish-ins”/fishingrights movement, 44–45, 50, 60–65, 73–74, 160n10, 164n3; fishing methods, 84, 163n2, 167n22, 168n30; illegal commercial fishing, 70–71; off-reservation treaty fishing, 63–65, 74, 79, 83–86, 89–90, 158n7, 164n5, 167n29; purposes for regulation, 167n24; reaction to Boldt decision, 65–73, 129; sport fishing, 14–15, 45, 61–63, 66–67, 79, 81, 91–92. See also Puget Sound fish resources Fishman, C., 120

198   Index Flanagan, Caitlin, 143 Flathead Nation, 46 Fleming, R. L., 133 Florida, 98–99 Focus on the Family, 109 Foley, Thomas, 75–76 Ford Foundation, 160n12 Ford, Gerald, 70 forgotten Americans: anti-treaty-rights movement, 47, 77, 87, 93, 141–42; championing of by New Right, 16, 137, 143–44, 150–51, 162n6; defined, 142–44, 172n2; silent majority, 142; in specialrights talk, 147–49; stigmatization of white male, 143; as victims, 4, 136 Fourteenth Amendment, 68, 70, 83, 85–86, 122 Foxwoods Resort and Casino, 102, 106–107, 113, 115, 118–19, 130. See also Mashantucket Pequot Tribal Nation (MPTN) Francis, Samuel, 143 Frank, Thomas, 151, 173n12 Freedom From Federal Judges Fund, 69 Fresh Air, 107 Gaasholt and Cohen survey, 72–73, 89 Gaasholt, O., 72–73, 89 Galanter, M., 6 gambling, social costs, 120 gaming laws: distinction between civil and criminal regulation, 99; Las Vegas nights, 99; three-part gaming classification, 100; tribal/state compacts, 100, 102 gaming-management companies, 108 Gamson, W. A., 162nn8–9 Gaventa, J., 28 gay rights, 2, 4, 17, 18 Gejdenson, Sam, 110 General Electric, 118 George, Elizabeth, 130–31, 171n22 Georgia, 20 Gerstle, G., 8, 28, 31 Gig Harbor Fish Club, 66 gillnet fishing, 84, 167n22 Glendon, Mary Ann, 157 globalization, 97, 118–19 Goldberg-Hiller, J., 7, 9–10, 73, 150

Goldwater, Barry, 4, 142–43, 145, 172nn2,6 Gore, Albert, 1 Gorton, Slade: Boldt decision appeals, 75, 77, 79, 81, 82–84, 86; election to U.S. Senate, 167nn23,28; implementation of Boldt decision, 88–89, 167n27; as last Indian fighter, 162n2; on special rights, 39; on treaty rights and supercitizenship, 44, 60 Gotanda, N., 6 Gover, Kenneth, 113, 133 grassroots activism: anti-treaty-rights, xii, 2, 43–46, 64–65, 74, 78, 90, 165nn8,12; anti-tribal-gaming activists, 102–104, 112–15, 130, 132–35, 170n12; treaty rights support, 24 “Great Father,” 21 Great Society programs, 33 Greenhouse, C. J., 49, 55, 117, 148–49, 158n8, 172n8 Gregory, Dick, 163n3 Gross, Terri, 107 Grossman, Z., 44–47 Groton submarine base, 119, 128 Gun Grabbers, 51, 163n10 Haltom, W., 4, 7, 10, 173n11 Hamilton Propellers, 118 Harmon, A., 159n4 Harring, S. L., 22 Hartford, Conn., 126 Hartford Courant, 118 Hatcher, L. J., 7 Hayward, Skip, 130 He-Man and the Masters of the Universe, 162n2 Head, S., 120 health-care system, 35, 57, 150–51, 173n11 Herman, D., 7, 9 Hetherington, J., 165n9 Hofstadter, Richard, 87 homestead acts, 45–46 Hospitality Group of Marquette Advisors, 101 Hospitality Industry, 120 House Un-American Activities Committee, 29 human rights, 145

Index   199 Hunt, A., 7 Hunter, James Davison, 4, 137, 144–45, 148, 172n5 Hunter ( justice), 83 identity: and rights discourse, xi–xii, 142, 148–49. See also national identity; panIndian consciousness illegal fisheries, 70–71, 165n11 Illinois, 173n10 Indian nationhood. See tribal sovereignty and nationhood Indian treaty claims. See treaty-rights claims “Indianization,” 159n6 Indians: assimilation, 23–24, 27, 29–32, 35, 37, 54, 160n8, 168n30; as colonized population, 23–24, 160n11; designation as, 159n1; immunity from state and local regulations, 20–21, 98–100; maintaining cultural integrity, 159n2, 160n11, 168n30; paternalism, 20–21, 29, 33–35; race-based tribal status, 105–106, 113, 114, 130–32; self-sufficiency, 29; socioeconomic indicators, 36; special-rights talk and treaty-rights, xii, 58, 110–12; as “super-citizens,” 44, 60, 82, 159n11; supratribal identity, 23–25, 160n11; urban relocation programs, 23–24, 31, 160n8. See also federal Indian policy; pan-Indian consciousness; tribal sovereignty and nationhood individual merit: core American value, 9, 13–14, 38, 42, 49–50, 64, 115, 152; database analysis, 51–54, 53t; undermining of, 51–52, 111 individual rights/individualism: federal Indian policy, 35; in New Right politics, 145–46, 148, 149, 157n2; Sander County study, 172n8; undermining of, 54, 158n9; whole man concept, 145, 172n6 inequality: systemic nature of, 6. See also equality/equal rights integration, 32 Interior Board of Indian Appeals (IBIA), 113, 135, 171n26 International Confederation of Autonomous AIM (ICAAA), 160n13 International Indian Treaty Council (IITC), 25, 26

Internet/Web pages, 48 interpretive social science, 12 Interstate Congress for Equal Rights and Responsibilities (ICERR), 44, 62, 65–66, 69, 78, 141–42, 165nn8,12 Jackson, Andrew, 21 Jackson, Henry “Scoop,” 75, 79, 165n11 Jacobs, C. F., 170n16 Janick, H. F., 118 Johansen, B. E., 45–47, 161n18 Johansen, George, 85 Johnson, Lyndon, 33 Johnson, Nancy, 112, 114, 116, 135 Johnson, T., 23, 24, 33, 35, 160nn9–10 Kanzler, C., 101, 102 Karst, K. L., 6 Kazin, M., 4, 142 Keck, T. M., 4, 142, 151, 166n19 Keller, R. H., 86 Kennedy, John F., 33 King, C. S., 101, 102 Klamath Nation, 30 Klinkner, P. A., 28, 33, 42 Knutson, P., 168n30 Kroft, Steve, 107 Kulturkampf, 144 land and water rights, 22 language, centrality of, 12 Larson, John, 116, 128 Las Vegas nights, 99 law: cultural/institutional power of, 5–7, 11–13, 40–41, 148–49; uniqueness/uniformity polarity in, 27 law-use See legal mobilization Lawrence, C., 6, 9 Lears, Jackson, 28 Ledyard, Conn., 112, 126–27, 130, 133 legal mobilization: contexts for success, 21–22; cultural power of law, 5–7, 11– 13, 40–41, 148–49; historic patterns, 22; Indian/non-Indian distinction, 17–19; insider/outsider distinction, 148–49; methodological pluralism, 12–13; New Historical Institutionalism, 166n19; reclaiming original meaning of rights, 150; scholarship on, 157n4;

200   Index legal mobilization (continuted) treaty rights, 18–22, 36–38, 92–94. See also redistributive social change Lewis, Kathy, 169n6 liberalism, 144, 158nn6,9, 172nn5–6 Lieberman, Joseph, 112–14, 116, 133, 135, 145, 171n21 Light, S. A., 98 liquor store and golf club, Indian authority over non-tribal owned, 46 Lockard, Duane, 121–24, 171n18 Lowman, Bill, 87 Lytle, C., 19, 27 MacKinnon, C. A., 6 Magnuson, Warren G., 73–76, 165n11 Maine, 173n10 Makah Nation Tribal Council, 21 Malkin, Michelle, 106–107 Mansbridge, J. J., 121 Marcus, Greil, 157n2 Marshall, John, 20 Marx, Karl, 51 Mashantucket Pequot Tribal Nation (MPTN): Foxwoods Resort and Casino, 102, 106–107, 113, 115, 118–19, 130; Mashantucket Pequot-Mohegan Fund, 125–27, 170n13; as recognized tribe, 130–31, 171n22; Time maga­zine exposé, 169n5; tribal gamingmovement, 96, 99 Mason, D., 100 Mason, R., 4, 34 Massachusetts, 103 May, L., 28 McAdam, D., 21–22, 32 McCain, John, 135, 171n25 McCaleb, Neal, 133 McCann, Michael: legal mobilization, 6–7, 11–12, 18, 21, 40; new reds/old reds terminology, 161n17; New Right agenda, 4–5, 10, 151, 173n11; payequity movement, 157–58n5; rights consciousness, 23, 33, 152, 153 McCarthy, J. D., 43 McGirr, L., 4, 142 McKee, C. D., Jr., 121–22, 125, 170n15, 171nn17,20 McLeod, Kenneth/McLeod Papers: anti-Boldt-decision campaign, 67–69,

71, 76, 78–79, 84–86, 165n12; fishing methods, 81; letter to Seattle Times, 67; letter to Supreme Court, 164n6; presidential task force report, 166n17; Steelhead Trout Protection Act (S. 874), 166n18 Means, Russell, 24, 160n13 Medcalf, L., 160n11 medical malpractice suits, 173n11 Medicine Creek treaty, 163n1 Meeds, Lloyd, 75–77 Melmer, D., 169n6 Menominee Nation/Menominee Enterprises, Inc., 30 Meranto, O., 19 meritocracy, 95 Merry, S. E., 22 methodology: framing analysis, 162nn8–9; pluralism in, 12–13; researching the cultural power of the law, 11–13; validity of analysis, 163n11. See also anti-treaty-rights literature analysis Michigan, 45–46, 101, 173n10 Middle America, 142–44, 172n2. See also forgotten American Milburn, J. F., 122 Mille Lacs Tea Party, 103, 162n7 Milner, N., 7, 9–10, 18, 73, 150 Minnesota, 45, 46, 101–103 minorities/marginalized populations: activism as reckless and un-American, 10–11, 145–46, 153; “politics of rights,” 18; racial discrimination/racism, 34, 104, 114; rights consciousness, 11, 32; special rights, xi–xii, 42, 93, 109; stigmatization of, 148–49 mobilizing nationhood. See “pan-Indian” consciousness Modigliana, A., 162nn8–9 Mohegan Tribal Nation: Mashantucket Pequot-Mohegan Fund, 125–27, 170n13; Mohegan Sun, 115, 118–19, 126; tribal gaming movement, 96 Montana, 46 Montville, Conn., 127 Moore, Milo, 67, 84 Moos, Don, 84–85 Morongo band of Indians, 98 Morris, B., 44 Morris, Glenn, 160n13

Index   201 Muckleshoot Tribe, 168n1 Mullane, Nicholas H. II, 116, 132–33 multiculturalism, 17, 20, 37, 56–58 Murphy, Kerri, 170n10 Nagel, Joanne, 23–24, 35, 160nn10–11 Narragansett Tribe, 130 National American Indian Movement, Inc., 160n13 National Association for the Advancement of Colored People (NAACP), 24 National Congress of American Indians (NCAI), 24–26, 30–31, 93–94, 159n7, 160n10 National Gambling Impact Study Commission, 119–20 national identity: core national value system, 2–5, 13–15, 28, 37; national decline and abuse of rights, 10–11, 148, 150, 170n11; patriotism and traditional hierarchies, xi–xii; rights discourse and social change, 145–46, 148, 150, 152; special-rights talk, 1–3, 10–11, 111, 142, 152; subversion of core national values, 41–43, 47, 58, 87, 93–94, 138–39, 145, 158n8 National Indian Gaming Association, 101–103, 168n1 National Indian Gaming Commission, 100, 107 National Indian Youth Council (NIYC), 24–26, 161n15 National Marine Fisheries Service, 87 National Public Radio (NPR), 107, 109 National Research Council, 91 National Review, 146 nationalism. See national identity Native American Rights Fund (NARF), 24–25, 160nn10,12, 161n15 Native Americans: attitudes toward, 72–73; designation as Indians, 159n1. See also Indians natural rights, 145 nautical industries, 118 Neah Bay treaty, 163n1 Nebraska, 29, 46 neoconservatism, 153 Nesper, L., 21, 45 New Deal coalition, 142, 172n2 New Haven, Conn., 126

New Historical Institutionalism, 166n19 New London County, Conn., 102, 119 New London Day, 136 New Mexico, 26 New Right: anti-treaty-rights activism, 4, 16, 77, 93–94; centrality of rights talk, 149–53, 172n8; championing of forgotten Americans, 16, 137, 143–44, 150–51, 162n6; cultivation of resentment, 151–52; cultural politics, 11, 16, 142–46, 151–52, 172n4; national decline and abuse of rights, xi–xii, 10–11, 148, 150, 170n11; non-treaty-rights concerns, 50t, 51–52, 163n10; political vision and rights discourse, 2, 4, 16–17, 80, 115, 137, 142–44; redistributive social change, 152–53, 173n14; Southern electoral strategy, 33–34. See also antitreaty-rights literature analysis; national identity New York, 46, 101, 103, 169n4 New York City, 123 New York Times, 1, 109 1992 Republican Convention, 144 Ninth Circuit Court of Appeals, Boldt decision litigation, 76, 81–82, 87–88 Nixon, Richard, 30, 33–36, 37, 142, 172n2 nondiscrimination, 9, 158n10 North Dakota, 46 North Stonington, Conn., 95–96, 112–13, 126–27, 132–33 Northwest Indian Fisheries Commission (NWIFC), 72, 90–91 Northwest Steelhead and Salmon Council, 78 Norwich, Conn., 127 off-reservation treaty fishing: Puget Sound tribal nations claims to, 63–65, 74–79, 83–86, 90, 158n7, 167n29; socioeconomic impacts, 158n7, 168n31, 172n1; Sohappy v. Smith, 164n5. See also fish wars Office of Indian Education, 35 Ojibwe Nation, 45 Oklahoma, 46, 103 Olympia treaty, 163n1 One Nation of Oklahoma, 103 One Nation United (ONU), 46–47, 103–104, 162nn5,7, 168n2, 169n4

202   Index Oneida Nation, 169n4 Oregon, 29, 103, 164n5, 173n10 organized crime, 169n8 Orren, Karen, 166n19 Outdoor Life, 93 Pacific Northwest. See fish wars; Puget Sound fish resources “pan-Indian” consciousness, 17–38; activism as reckless and un-American, 3, 111, 117, 120, 131; Cold War era, 22–27, 32–39, 44–46, 90, 160nn10–11, 161nn15,19; context for, 17–18, 37–38; cultural sensibility and political opportunity, 27–37; Kennedy/Johnson administrations, 33; legal mobilization and treaty rights, 18–22; Nixon admin­istration, 33–36; Reagan/Bush administrations, 36–37; support structure, 22–27; supratribal identity and organizations, 23–27, 34, 37, 159nn6–7, 160n11. See also federal Indian policy; treaty-rights movement; tribal-gaming movement; tribal sovereignty and nationhood participatory democracy, 121–22 Passavant, P. A., 6, 73 paternalism, 20–21, 29, 33–35 patriotism. See national identity patronage system, 125 Paucatuck Eastern Pequot Tribe (PEP), 106, 113, 114, 134 pay-equity movement, 157–58n5 Peller, G., 6 People Against a Casino Town, 103 Perlstein, R., 77 Petterson, P., 122, 125, 170n15 Point Elliot treaty, 163n1 Point No Point treaty, 163n1 politics of resentment, 1–10; conservative social movements, 4, 6, 7–11, 16; culture wars, 137–53; misattribution of blame, 8, 15–16, 92, 97–98, 111–12, 117, 149, 151–52; New Right political vision, xi–xii, 142–44, 153; political elites, 115; politics of law and order, 33; “politics of rights,” 18, 152, 158n6; resentment and countersubversion, 7–11, 58, 73, 94, 112, 135–39, 145, 151; roots of, xi, 3, 17–38, 93–94, 140–44; subversion of core national values, 1–2, 87, 93–94, 111, 138–39, 150. See also

conservative-rights discourse; New Right; special-rights talk Pratt & Whitney, 118 preferential treatment, 58, 140–41, 146, 148, 149 presidential elections/debates, 1, 145, 173n11 Preston, Conn., 112, 116, 126–27, 133 Pritchard, Joel, 75–76 private property rights, 51, 53–54 problem gamblers, 117 progressive-rights discourse, 172nn4–5 Proper Economic Resource Management, 103, 162n7 Proposition 209 (Calif.), 145, 148 Protect Americans’ Rights and Resources, 45, 103, 162n7, 163n10 Prucha, F. P., 23–24, 27, 29–30, 33, 35, 159n,4,7, 161n16 public officials: New Historical Institu­ tionalism, 166n19; treaty-rights claims, 3, 44–45, 50, 73–92, 96–97, 139, 166nn14,20, 167nn23,28; tribal gaming interests, 102, 128–29, 131–32, 139 Puget Sound fish resources: Boldt administrative authority over, 81, 86–88; buyback programs, 166n15; co-management of, 89–90; degradation of, 15, 62–63, 74, 91–92, 139, 168n31; federal action/legislation, 76–77, 166n15; governmental mismanagement, 15, 62–63, 84–85, 92; illegal fisheries impact, 71; impact of Boldt decision, 168n30, 172n1; overharvesting, 84–85; percentage of tribal fishing, 62–63, 83–84, 91, 167n26; Puget Sound Salmon Management Plan, 90; resource enhancement efforts, 91; state regulation of, 62–63, 84–85, 88–90, 163nn1–2, 166n20, 167n26; treaties, 163n1, 164n4; Tribal Management Zones, 166n17; Washington State Commercial Salmon Catch, 90, 91t. See also fish wars; U.S. v. Washington; Washington State Department of Fisheries Puget Sound Gillnetters Association, 67, 81, 85, 166n17 Puget Sound tribal nations: fishing-rights movement, 44–45; off-reservation fishing rights, 63–65, 74–79, 90, 158n7. See also fish wars

Index   203 Purse Seine Vessel Owners Association, 166n17 purse seine vessels, 84 Rabinow, P., 159n12 racial discrimination: Indian population, 32–33, 104; Northeastern segregation, 105–106; rights discourse, 148, 172n9; Southern electoral strategy, 33–34 racism, 32–33, 45–46, 51, 101, 104–108, 158n10 Rand, K. R. L., 98 reactionary politics, 16, 153 Reagan Democrats, 143, 172n2 Reagan, Ronald, 55, 93, 142–43, 172n2 Red Power movement, 24, 34–35, 160nn9–11 red scares, 28–32, 161n17 redistributive social change, 1–16; conservative-rights discourse, 4, 6–8, 16; courts’ declaration of rights, 18; impact of U.S. v. Washington, 92, 94; mobilizing law and rights, 5–7, 11–13, 32, 36–38, 138, 153; resentment and countersubversion, 7–11, 58, 73, 94, 134–36, 138–39, 151; scholarship on, 152–53, 173n14. See also legal mobilization reefnet fishing, 84, 167n22 Reeves, N., 102 Reid, Richard, 39 Reiter, Howard, 171n19 Rell, M. Jodi, 114, 128, 132–33, 135 Remington company, 118 Republican Party: anti-treaty-rights movement, 44; Connecticut politics, 125, 171n18; New Right political vision, 142–43, 150–51; presidential elections/debates, 1, 145, 173n11; Southern electoral strategy, 33–34; tax policy, 173n10 resentment, cultivation of, 140–52, 153 reservation shopping, 171n25 reservation system: bingo halls and card clubs, 98–99; constitutional rights, 56–57; exempt from state and local gaming regulation, 99–100, 107; federal programs, 35; off-reservation treaty fishing, 63–65, 74–79, 83–86, 90, 158n7, 167n29; Public Law 280, 29–30; reservation politics, 169n6;

treaty-rights movement, 160n11; tribal jurisdiction over, 161n23, 162n3. See also federal Indian policy resources, treaty-rights redistribution of, 2, 13, 22, 32, 45, 51 reverse/inverse discrimination, 56–57, 146, 158n10, 167nn22–23 Revised Washington Code, 85 Rhode Island, 103 Richendifer, Blair K., 44, 141–42 rights discourse and social change, 1–16; abuse of rights and national decline, xi–xii, 10–11, 111–12, 147–51, 170n11; cultural power of, 16, 40–41, 73, 136, 139–44, 151–52, 158n6; entrenched privileges, 7, 32; “hortatory” political language, 5; insider/outsider distinction, 148–49; mobilizing law and rights, 5–7, 40–41; New Right political vision, 149–53; opposition to expansion of rights, 146–48; pay-equity movement, 157–58n5; polarizing nature, 147; reclaiming original meaning of rights, 150; rights claims and political consciousness, 5–7; special rights and countersubversion, 7–11, 58, 73, 94, 102, 112, 135–36, 151. See also national identity; redistributive social change “rights revolution,” 7–8, 18–19, 37 Roedinger, D., 173n12 Rogin, Michael P., 3, 10, 20, 27–28, 34, 87, 124, 172n2 Roraback, J. Henry, 123, 171n18 Rose, Gary, 120, 125 Rosebud Sioux (Lakota) Reservation, 45–46 Rosellini, Albert, 84 Rosellini, Hugh, 85–86, 167nn24–25 Rosenberg, G., 18 Rosow, David, 114, 170n9 Rowland, John, 110, 112 rural way of life, 115–17, 129, 169n7 Safire, William, 109 salmon/salmon harvest, 14, 44, 60–62, 71, 76, 84–85, 90–91, 166n21 San Francisco, Calif., 23 Sander County study, 172n8 Sarat, A., 11 Sasson, T., 33 Sayer, J. W., 160n10 Schacter, J. S., 8, 9, 158nn9–10

204   Index Schaghticoke Tribal Nation, 116 Schattschneider, E. E., 3, 71, 79, 124, 166n14 Scheingold, Stuart A., 6, 11, 18, 33, 73, 158n6; Politics of Rights, 5, 152 Schrag, Peter, 142 Screen Actors Guild, 29 Seattle Association for Fisheries, 85 Seattle Post-Intelligencer, article on Boldt decision, 65–66 Seattle Times, 67, 70, 72 Seattle, Wash., 69–70 self-determination policies, 27, 32–38, 80, 99, 127 self-sufficiency, belief in, 34, 150, 172n8 Seminole Tribal Nation, 98 Sered, S., 150 Shapiro, N., 162n2 Shays, Christopher, 112, 114, 116, 134, 135 Sikorsky company, 118 Silbey, S., 11, 42–43, 49 silent majority, 142. See also forgotten Americans Silverstein, H., 12 Simmons, Robert, 110, 112, 114, 116, 132, 135 Simon, J., 33 The Simpsons, 101, 106 Sioux/Sioux Nation, 23, 46 60 Minutes II, 107, 131 Skocpol, T., 150 Skowronek, Stephen, 166n19 Smith, R. M., 28, 33, 42, 166n19 social change. See redistributive social change social-constructivist theory, 12–13, 48–49 socioeconomic impacts: off-reservation fishing rights, 158n7, 168n31, 172n1; shift to service-based economy, 16, 97, 111, 118–19, 128–30, 140, 170n14; socioeconomic insecurity, 91–92, 97, 149–52; treaty-rights claims, 158n7, 172n1; tribal casinos, 16, 98, 101, 108–109, 115–30, 169n7; tribal gaming, 100–102, 112, 158n7, 168n1, 169n8, 172n1 Sokol, J., 8, 9 Sorauf, F., 124–25 South Carolina, 173n10 South Dakota, 45–46, 103, 160n10

South Park, 101, 106 Southern Christian Leadership Conference (SCLC), 24, 26 sovereignty. See tribal sovereignty and nationhood Sowell, Thomas, 146–47 special rights: accusations of, 9–10, 46–47, 64–65, 82, 102, 110, 134; concept, 1–5, 7–11, 39; equal-rights/special-rights distinction, 1, 41, 49–50, 66, 75, 87, 93–94, 141; interpretation of equal rights, 13, 19–20, 89, 111, 136; as preferential treatment, 58, 140–41, 146, 148, 149; resentment of, 58, 73, 94, 111–12, 131, 135–36, 140–44, 151; special rights consciousness, 42–43, 113–14; subversion of core national values, 41–43, 47, 138–39, 145, 148, 150, 158n8, 170n11 special-rights talk, 39–59; corruption of civil rights, 51, 147–48; countersubversive mentality and identity, xii, 10–12, 40–43, 47–58, 73, 94, 142, 145; cultural and political work of, 16, 112–13, 136, 138–44, 151–52; “dialogism,” 65; impacts, 3–4, 9–11, 15–16; nationalistic prerogatives, 3, 10, 111, 152; opposition to social change, 139; organization and activity, 43–47; polarizing nature, 55, 147; racial discrimination, 148; resource allocation, 51; self-interest activism, 54, 102, 150, 158n8; specialrights consciousness, 42–43, 79–80, 104–105; support structure, 41–47, 74–75; treaty rights as unconstitutional, 56, 69, 82; venues for, 48–49. See also anti-treaty-rights literature analysis; anti-treaty-rights movement; rights discourse and social change Spilde, K. A., 169n6 sport fishing: reaction to Boldt decision, 14–15, 45, 61–63, 66–67, 79, 81, 91–92; regulation of, 166n21 Sportsmen News Letter, 70, 167n23 St. Clair, J., 162n2 Stand Up for California, 103 Stand Up for Clark County Citizens, 103 states’ rights, 29–30, 34, 99, 145 stay-at-home mothers, 143 Steele, James, 107–109, 169n6

Index   205 Steelhead and Salmon Advisory Commission, 76, 166n15 Steelhead/Salmon Protective Association and Wildlife Network (S/SPAWN), 44 steelhead-trout: hatcheries expansion, 76; Initiative 456, 165n7, 167n29; offreservation fishing, 14, 44, 60–61, 81, 83; state regulation of, 166n21; Steelhead Trout Protection Act (S. 874), 79, 166n18. See also fish wars Steinberg, Marc, 65 Steinman, E., 90, 161n1 Stevens, John Paul, 88, 167n26 Stop Treaty Abuse/Wisconsin, 45 Student Nonviolent Coordinating Committee (SNCC), 24, 26 Sullivan, W. M., 159n12 Sumner, William Graham, 142 Susman, W., 28 Sutherland, Phil, 165n12 Table Ranch Rancheria, 169n6 Tacoma, Wash., 66, 69–70 Tammany Hall, 123 Target stores, 120 tax policy, 20, 30, 51, 56, 107, 150, 169n4, 173n10 Taylor, C., 12 Taylor, J. E. III, 63, 91–92 Teles, S., 7 termination policies, 27–32, 34, 37–38, 57, 77, 160n8, 161nn16,18 textiles industry, 118 Thomas, K., 6 Thompson, E. P., 7 Thompson, H. S., 63 Thurston County Superior Court (Wash.), 83 Tiller, V., 101 Tilly, C., 43 Time magazine, 98, 106–109, 143, 169n5 Tocqueville, Alexis de, 53 Todorov, T., 159n1 Town Action to Save Kent (TASK), 116, 131, 135 Trail of Broken Treaties, 25 Treaty Beer, 45 Treaty of Medicine Creek, 64 treaty-rights claims: case law interpretations, 164nn4–5; fairness/unfairness distinction, 2–3, 41, 138; federal recognition,

19, 21, 110; historical legitimacy, 104–106; Nixon Administration support, 33–36; redistribution of land and resources, 2, 13, 138; socioeconomic impacts, 158n7, 172n1; special rights, 2, 110–12, 129–30, 138, 140–41, 151; subversive and unAmerican, 3, 20, 46–47, 49, 58, 73, 111, 138; threat to American Way of Life, 28–32, 41–43, 47, 49–52, 56, 58, 96; white guilt, 33, 48, 93, 141, 149. See also “pan-Indian” consciousness; redistri­ butive social change; tribal sovereignty and nationhood treaty-rights movement, 17–38; cultural sensibility and political opportunity, 27–37; enforcement record, 33–36; fish-ins, 50, 60–65, 73–74, 164n3; history of legal mobilization, 13, 18–22, 32–37; Red Power movement, 28–32, 160n11; strategy, 24, 160n11, 161n15; support structure, 21–27. See also anti-treaty-rights movement; “panIndian” consciousness tribal casinos: accusations of mismanagement, 104, 106, 110–11, 169n4; casino impact report, 116; employment and salaries, 98, 101–102, 119–21; entrepreneurship, 54, 95–96, 104; expansion, 100, 103, 108, 169n7; legality of and state/ local regulation, 98–100, 107; media stereotypes, 101, 106–108; non-Indian population benefits, 108; revenues/ revenue distribution, 100–102, 117, 126–27, 168n1, 170n13; socioeconomic impacts, 16, 98, 101, 108–109, 115–30, 169n7. See also anti-tribal-casino movement tribal-gaming movement: casino state, 112–36; fabricating tribal identity, 104–106; history, 98–102; socioeconomic impacts, 100–102, 108, 112, 115–30, 172n1; success/failure record, 107–109; tribal/state compacts, 100, 102, 126, 170n13. See also federal tribal recognition process Tribal Nation, 131 tribal sovereignty and nationhood: autonomy and self-determination, 34–35, 99, 161n23; Bill of Rights, 161n22; court cases upholding, 20–21; domestic

206   Index tribal sovereignty and nationhood (continued) dependent nations, 20; history of, 19–21, 33–36, 104–106; mobilization of treaty rights, 18, 19–21, 98–100; as naïve, 111; quasi-sovereign status, 13–15, 29, 32, 36, 38, 98–100, 107, 159n2; and states’ rights, 29–30, 34, 99, 145; treaty rights as affirmation of, 13–14, 19–21, 32, 107, 110. See also pan-Indian consciousness; treaty-rights claims Trout Unlimited, 67 Trump, Donald, 95–96, 106, 114, 134, 170n9 Turning Stone Resort and Casino, 169n4 220 Million Custers, 87 2004 presidential election, 173n11 unionization, 118 United Nations’ Working Group on Indigenous Peoples, 26 United Property Owners, Inc., 103, 162nn5,7 Universal Declaration of the Rights of Indigenous Peoples, 26 University of Connecticut: Center for Economic Analysis, 102; Center for Survey Research & Analysis, 110, 129, 169n7 University of Nevada-Las Vegas International Gaming Institute, 120 Upstate Citizens for Equality (UCE), 103, 162n7, 169n4 U.S. Coast Guard, 87 U.S. Commission on Civil Rights (USCCR): Indian/non-Indian legal mobilizations, 19, 22, 159n2; Richendifer on forgotten Americans, 141–42; treaty rights, 45, 71, 84, 89, 92, 159n11, 163n2, 165nn10–11; Tribal Management Zones, 166n17 U.S. Congress: anti-treaty-rights movement, 113, 127; Civil Rights Act (1964), 146; Economic Opportunity Act, 33; Education Amendments Act, 35; Elementary and Secondary Education Act, 33; House Concurrent Resolution no. 108, 29; Indian Child Welfare Act, 35; Indian Civil Rights Act, 33, 161n21; Indian Gaming Regulatory Act (IGRA), 36, 99–100, 105, 107, 134, 168n1; Indian Health

Care Improvement Act, 35; Indian SelfDetermination and Education Assis­tance Act, 35, 161n23; indifference toward Indians, 159n4; Joint Senate Resolutions 170 and 171, 73–74; Native American Equal Opportunity Act (H.R. 9054), 77–79, 166n16; Native American Graves Protection and Repatriation Act, 36; Nixon Special Message on Indian Affairs to Congress, 34–35; plenary authority of Indian tribes, 20, 35–36, 165n10; Public Law 280, 29–30; Salmon and Steelhead Conservation and Enforcement Act, 76, 166n15; Senate Resolution 2078, 171n25; Steelhead Trout Protection Act (S. 874), 79, 166n18; Wheeler-Howard Act (aka Indian Reorganization Act), 159n7. See also federal Indian policy U.S. Constitution: constitutionality of treaty rights, 21, 56, 69, 82; Fifth Amendment, 165n10; Fourteenth Amendment equal protection clause, 68, 70, 83, 85–86, 141, 165n10, 167n22; proposed anti-treaty-rights amendment, 47; reservation system and con­sti­tu­ tional rights, 56–57; supremacy clause, 83, 88; Tenth Amendment, 145 U.S. Department of Interior, 99, 135 U.S. Economic Development Administration, 77 U.S. Senate Committee on Indian Affairs, 116, 135 U.S. Supreme Court: Boldt decision litigation, 45, 72, 75, 81–83, 87–88, 164n6, 165nn10,13, 167nnn26–27; Brown v. Board of Education, 65, 145; case law on treaty rights interpretation, 164n4; Connecticut reapportionment ruling, 122; McLeod letter to, 164n6; Morton v. Mancari, 165n10; Puyallup Tribe v. Department of Game of Washington et al., 164n4; Santa Clara Pueblo v. Martinez, 161n22; tribal casino litigation, 99 U.S. v. Washington, 60–94; appeals of, 76, 81–82, 86–88, 165n13; Attorney General’s office, 81, 82–84; congressional delegation reaction, 75–81; content of ruling, 14, 44, 60–61, 63, 65–66, 85, 88, 90; defining the conflict, 60–62, 71–73; Department of Fisheries

Index   207 implementation, 62–63, 71, 75, 80–81, 84–92; “fish-ins,” 62–65, 73–74, 164n3; Gaasholt and Cohen survey, 72–73, 89; impacts of, 92–94, 168n30, 172n1; legislation pertaining to, 47, 73–79, 89–90; letters to the editor, 67; national officials reaction to, 75–81; newspaper coverage, 65–68, 165n9; opponents’ interpretation of, 64–65, 164n6; paid advertisements, 67–69; petition campaign, 68–69; popular reaction, 65–67, 89–90; public officials reaction, 73–92, 139, 166nn14,20; resistance to implementation, 65–73, 75, 81–92; street protests, 69–70; survey and poll results, 72–73. See also anti-treaty-rights movement; court cases USCCR. See U.S. Commission on Civil Rights victimization, 9, 54, 142–43, 149, 158n10 voter apathy, 124 voter-registration drives, 26 Wage Watch, Inc., 120 Wal-Mart, 120 Wall Street Journal, 111 Wallace, George, 172n2 walleye, 45 Warren, Earl, 65 Washington, D. C., Trail of Broken Treaties, 25 Washington Fishing Industry, 63 Washington Kelpers Association, 67 Washington Post, 173n11 Washington State: congressional delegation and Boldt decision, 62, 75–81, 166n17; Department of Game, 62–63, 66, 80–82, 86, 88–89, 166n21, 167n22; Initiative 465, 165n7; state officials and Boldt decision, 75, 81–92; tax revolts, 173n10; tribal gaming movement, 101–103, 168nn1–2. See also fish wars; Puget Sound fish resources; U.S. v. Washington Washington State Commercial Passenger Fishing Vessel Association, 85, 88, 167n25 Washington State Department of Fisheries: comanagement era, 89–91; illegal fish­eries, 71; implementation

of Boldt decision, 62–63, 71, 75, 80–81, 84–92, 167nn25,27; Initiative 77, 163n2; mismanagement of fish resources, 15, 63, 84–85, 92; regulation of fish resources, 62–63, 84–85, 89–90, 163nn1–2, 166nn20–21; Washington State Commercial Salmon Catch, 91t. See also fish wars; Puget Sound fish resources; U.S. v. Washington Washington State Political Action Committees (WSPAC), 65, 68–69, 71 Washington State Sportsmen’s Council, 67 Washington State Supreme Court, Boldt decision litigation, 62, 75, 81, 83–86, 167nn24–25 Watkins, Arthur, 30 Wattenberg, M. P., 124 Weicker, Lowell, 125, 171n21 Weyler, R., 25–26 White, Byron R., 99 white guilt, 33, 48, 93, 109, 141, 149 White, R. H., 35, 161n23 Wilkins, D., 19, 22–25, 27, 29, 35, 160n12, 161nn15,22 Wilkinson, C., 21, 63, 70 Williams, R., 6, 7, 9 Willman, Elaine, 104 Wills, G., 8, 34, 142, 149, 172nn2,4 Wisconsin, 29, 45, 101–103 Without Reservation (Benedict), 106–107, 109–10, 117–18, 130–31, 169n5 women, 18, 32 worker productivity, 119 Wounded Knee, S.D., 160n10 Wynn, Steve, 96 Yakima Nation Review, 44, 64, 141 Yakima treaty, 163n1 Yin, R. K., 12 Yngvesson, B., 49, 55, 117, 148–49, 172n8 Zald, M. N., 43 Zemans, Frances Kahn, 5, 17, 40