Second Thoughts about Native Americans

(This 931st Buffalo Sunday News column was first published on January 25, 2009.)

The Reservoir that overlaps the Tuscarora "Reservation"

A front-page article by Michael Beebe in the December 28 Buffalo News made a strong case against the sale of tax-free cigarettes on regional Native American reservations. I join many others, including some Native Americans, in the concern expressed in the article about cigarette profits going to a few individuals instead of the tribes involved. I have similar worries about the few who seem to benefit from gasoline sales on the reservations.

Still I worry that this and other issues like the bootlegging brought up in the article are beside the point and I wonder if this isn't simply another case where political power and public greed win out over another minority group that has moral law on its side.

This nation's record of dealing with Native Americans is a major embarrassment and the record of this state is equally poor. Most of us think that offences committed against Native Americans ended in the 19th Century but our record of breaking just about every promise made to them continued until at least my lifetime.

I believe that it would do our politicians, our judges and, yes, each of us good to review the history of Robert Moses' battle with the Tuscaroras. The issues do not relate directly to our state taxing cigarettes and gasoline, but they do remind us how our powerful state and federal officials and our courts have continued to deal with Native Americans. I have included us all in this suggestion because we have a selfish inclination to support this proposed tax grab. If our state gained the claimed $400 million in taxes, it would at least reduce the major budget shortfall we face. (Outside the reservations the punishment would affect only those benighted cigarette smokers who have saved a few dollars by buying cartons on reservations.)

To gain some perspective on this episode I turned to Edmund Wilson's 1959 book, "Apologies to the Iroquois", to Robert Moses' 1960 response and to newspaper accounts provided by Niagara Falls librarian Maureen Fennie.

Ask an older Niagara Falls resident about the Niagara Power Authority's dealings with the Tuscaroras and you will often find support for the Native Americans. Moses, the famous Power Broker of Robert Caro's Pulitzer Prize winning biography whose name appears on the Niagara River power project and dozens of other projects across the state, set out to take over two square miles, more than one-fifth of the Tuscarora Reservation for the project reservoir.

Contemporary accounts indicate that Moses proceeded in his usual bulldozing style. He sent surveyors onto Tuscarora land without obtaining permission or even notifying the property owners. And only through newspaper accounts one day before it was scheduled did the Native Americans learn about the court session at which their land would be condemned and taken.

But the Tuscarora leaders stood up to Moses. They argued that their land was inviolate because of the 1794 Pickering Treaty and the policies of the federal government as stated by George Washington in 1790: "No state or person can purchase your land unless at a general treaty held under the general authority of the United States, and the government will never consent to your being defrauded, and it will protect you in all your just rights."

Moses' lawyers appealed to the United States Supreme Court, making the case that the Tuscarora Reservation did not come under the Pickering Treaty. They won on this narrow interpretation with a split decision, Justices Black, Warren and Douglas voting for the Native Americans. Black's minority statement argued that the taking "violates the nation's long-established policy of recognizing and preserving Native American reservations for tribal use and it constitutes a breach of Native American treaties recognized by Congress since at least 1794."

Yes, Moses did win. It turned out that he only needed a third of the land he sought. In his screed, "Tuscarora Fiction and Fact," he rubbed it in, claiming to have paid the landowners he referred to as "redskins" $8 million, whereas records indicate the total amount was one-tenth of this.

Our substantial political power supports Native American activities like their casinos when they accrue tax monies for us but that same power is applied quite differently when we identify another way we can take from them. I hope that we will take this into account as we address these serious issues about Native American autonomy.-- Gerry Rising