Regulation: the new racism


America's history of brigandage against Indian tribes hasn't ended, but in our enlightened times we call it regulation.

We could just as well call it racism.

Our longest-running, made-in-the-USA theme is that whenever Indians have anything good enough for others to want, it must be taken from them. The world knows well of this process in its historical setting: religion, land, water, resources, even the freedom that fired Europeans to come here in the first place, all had to be forcibly seized from American Indians, Alaska Natives and Native Hawaiians.

This is the historical pattern, based as we know on the false assumption that Native people are "Nature's children" who never quite graduated to the realm of engineering human progress in conditions of scarcity (as Western economic terminology would have it).

But let Native people make significant, undeniable gains by the guidance of that very model, either through the courts or the political system, the free market or their own dedicated efforts, and what the pattern requires is variation. Because, when American Indians make honest progress despite the obstacles placed in their paths, the message they send is this: you were and are wrong about us - deeply wrong in every respect that matters. And that could never be.

This message, then, must not be admitted to consciousness. That is where the new racism of regulation comes in. Native American success becomes comprehensible if the regulations weren't just right, if we didn't quite play by the rules, if we cheated a little or a lot. A regulatory fix will serve us right. The message of Native capacity will die on the vine. The knowledge of historical wrongs will cease to agitate the national consciousness.

But the wrongdoing overlooked by such exercises in denial will go on and on. Particularly now, as a critical mass of Native communities and individuals pursue the promise of self-determination, it seems the regulators are working overtime. As I write, a host of racist efforts are underway to regulate high-profile tribal prosperity into abeyance.

A congressional effort is underway to banish tribal cigarette sales because a tortured logic has been found for linking them with federal funds. The abandonment of ordinary standards for the sake of making a case against Indians has been particularly obvious here. A congressman insists, without evidence, that tribal cigarette outlets sell willingly and by design to minors. A journalist insinuates that because a single merchant in a larger tribal complex answers the phone "smoke shop," federal block grants have been misused. But when it becomes obvious that a military PX, also untaxed and also benefiting from federal funds, also relies on cigarette sales to get folks into the store for other purchases ... well, never mind that the military has proceeded along precisely these lines for many years. Easier to pick on tribes.

A non-issue is amassing pressure for a sure-to-come campaign against Indian gaming. A recent book that would have no credibility, and surely no publisher, if it were not flailing away at Indian success seeks to deny the authenticity of the Mashantucket Pequot - they of Foxwoods Resort Casino fame. Now when any relatively small group of people is taking in $66 million a month from gaming alone, the temptation to find fault is human nature. But Indian people should take a sweat before they decide a tract for teens and a chance to unload on wealthy relatives really counts for anything compared with Pequot history. Make no mistake about it; this bookish flap is the warm-up for further attacks aimed at regulating Indian gaming into submission. And space doesn't even exist to consider the escalating demands for profit-sharing that states place on successful casino tribes. There is more of the same, much more. But two exceptions that prove the rule also deserve to be noted.

Tribal and individual trust funds have been embroiled in regulatory maneuvers ever since it became clear in 1994 that tribes stand to realize some small part of the lost returns on their trust accounts.

An initiative to bring fairness for tribes into tax regulations on bond issuance is at an impasse, in large part because tribes might seek the same strategic advantages for economic development that states have always enjoyed.

These are exceptional cases in that the lack of firm, fair regulation in trust funds and taxation deals heavy losses to Indian people and tribes. Here they would welcome regulations that provide a level playing field. The political system's failure to provide them over the course of decades, in dramatic contrast with its regulatory zeal the minute tribes get a toehold on genuine prosperity, means we can all see anti-Indian regulation for what it really is: the ongoing, racially motivated plunder of tribal resources by peaceful means.