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The Seneca Nation's Cigarette Fight With Congress

News flash from western New York:  Indians are on the warpath, and they’re trying to scalp your children!  At least, that’s what the New York Times reported, more or less, in its understated-sensationalist style, more highbrow than the National Inquirer but not much less lurid.  The Seneca Indians want to sell cigarettes . . . to kids . . . through the Internet and the United States Postal Service.

The story itself is actually more complicated—by the Byzantine quality of Empire State politics, by the convoluted nature of American federalism, and by the poorly understood but fundamental rights reserved to American Indians under treaties and the United States Constitution.

The basic facts:  the Seneca Nation markets cigarettes by mail, and they would like to continue to do so because such sales (as many as thirty million cartons a year) produce income critical to the tribe and others living in western New York, an area not otherwise recognized as an economic juggernaut.  Some state and federal officials would like to stop them, raising serious concerns about the reputed ease with which underage smokers might be able to buy Seneca cigarettes.  Oh, and major tobacco corporations, who coincidentally are undersold, are similarly appalled.  The U.S. House of Representatives passed the “Prevents All Cigarette Trafficking” (PACT) Act last spring by an overwhelming majority, 397-11.  But, as the measure stalled in the Senate, the Senecas resisted in the old fashioned way:  by lobbying their representatives in Congress.

The Senecas in the New York Times piece (and most other writing about contemporary Native America) are hard to recognize.  They don’t fit the comfortable stereotypes we assign to American Indians—as sometimes ignoble, sometimes noble, savages, tragically destined for oblivion.  White Americans generally feel bad about the dreadful fate of North America’s Native people, and they feel good about themselves for feeling such noble remorse.  In fact, white Americans have expressed righteous sympathy and retrospective regret since a time even before nearly all Native land was expropriated and most Native people decimated.  Such thoughts enabled conquest and dispossession, and the imagined inevitability of Indians’ disappearance assuaged white consciences.

But American Indians have not actually vanished, and stereotyped depictions—even when well intentioned and seemingly positive—are misguided, misleading, and harmful.

Nonetheless, thanks to the Times, we learn that a Seneca “gambling and cigarette empire” lurks in the Empire State, that the Senecas are bullying “back-room” lobbyists and purveyors of “public political threats.”  Not a beleaguered people, they are instead a “well-financed special interest,” armed with a $1 million “war chest for political retaliation against any New York State official who crossed the tribe.”

This is a stranger-than-fiction, man-bites-dog story.  The Senecas have indiscreetly reappeared from the dustbin of history, now as capitalists and influence peddlers, not to mention contributors to the delinquency of minors and the moral corruption of society more generally.  Not victims, they are supposedly victimizers, “trafficking” in illicit substances; not powerless, they are dominant, even imperial; not traditional, they are innovative, savvy, and greedy, lacking any public spirit.  Who will protect our children?  Perhaps Big Tobacco.

Cigarettes do kill millions of Americans, and who wants to defend their sale to anyone young or old?  Decency perhaps suggests that we quickly pass over the quirk of fate that those victimized historically by white fraud and “civilized” vices have now turned the table on their oppressors, selling them the means of their own demise.  This is not delicious irony; it leaves a bad taste in the mouth.

Instead, we need to peer more deeply through the smoke to see matters in historical perspective.  Without dismissing the real dangers of tobacco, it’s worth considering another story—about Native adaptation, resilience, innovation, self-reliance, and sovereignty, in the face of overwhelming disadvantage.  The Senecas have long survived by making lemonade out of lemons, and current resistance to the PACT bill is but the Senecas’ most recent effort to protect their lemonade stand—a variation on a venerable theme that’s at least two hundred years old.

In the early nineteenth century, Senecas endured relentless encroachment by aggrandizing state officials, swindling land speculators, intrusive settlers, timber poachers, and zealous missionaries, while they were increasingly engulfed by a rapidly changing economic order.  Drawing on tradition but embracing change as a means of survival, they innovated culturally, economically, and politically—all in the interest of preserving their national life, liberty, and pursuit of happiness.  They did not resist a transition from hunting to farming; they already were an agricultural people.  They actively participated in the new market economy, selling their products for things they couldn’t manufacture themselves.  They embraced a revitalized Native religion and, like their white neighbors, advanced their own program of social and moral reform.  The transition was difficult and often painful, but they endured.  The Senecas’ successful adaptation in the early American republic—not their failure—caused consternation among many whites.  Inconveniently, Senecas failed to vanish.

Worse, Senecas held white Americans to their promises, particularly those contained in the U.S. Constitution, federal treaties, and federal law, which promised that the transfer of Indian land would occur only through federally supervised treaties and voluntary sales by Native people, and which guaranteed Seneca sovereignty, often against the illegal claims of the State of New York.  Senecas did not invent the political system that enveloped them, but they learned to play by its rules.  They experienced defeats, but Senecas played well in the 1810s, and they are playing well in 2010.

In 1821, the State of New York indicted a Seneca man, Soongise, commonly known as Tommy Jemmy, for the murder of an Indian woman on the Seneca reservation.  Tommy Jemmy admitted the killing, and yet he entered a not guilty plea.  His defense asserted that the execution was not murder at all; rather it was the lawful execution of a person convicted of a capital crime committed within Seneca jurisdiction.  The woman’s alleged offense?  Witchcraft.  Belief in the dark art lingered in the early nineteenth century, even among whites, but such strange developments outraged respectable white Americans.  The Seneca leader and orator Red Jacket retorted in court:

What!  Do you denounce us as fools and bigots, because we still believe that which you yourselves believed two centuries ago?  Your black-coats thundered this doctrine from the pulpit, your judges pronounced it from the bench, and sanctioned it with the formalities of law; and you would now punish our unfortunate brother for adhering to the faith of his fathers and of yours!  Go to Salem!  Look at the records of your own government, and you will find that hundreds have been executed for the very crime which has called forth the sentence of condemnation against this woman, and drawn down upon her the arm of vengeance.  What have our brothers done more than the rulers of your people have done?  And what crime has this man committed, by executing, in a summary way, the laws of his country, and the command of the Great Spirit?

While Red Jacket hoisted white New Yorkers on their own petard, white jurors, judges, and state appellate courts acknowledged the legality of the execution and reluctantly recognized Seneca sovereignty.  The State Assembly pardoned the un-convicted Tommy Jemmy and passed legislation asserting New York State dominion over Senecas and other Native people living within its boundaries, but these were legally vacant acts of wishful thinking.  The point here is not to condone witch-hunting or capital punishment, any more than to apologize for the sale and consumption of cigarettes; it is to recognize long-standing double standards and to emphasize the basic rights that Americans—including Native Americans—have under the U.S. Constitution, binding treaties, and federal and state law.

Now as then, Senecas are playing the hand they’ve been dealt, with considerable resourcefulness.  And they continue to fight new efforts to stack the deck more unfairly against them.  Article IV of the Constitution reaffirmed all Indian treaties and recognized Indian Nations as foreign governments.  The Commerce Clause in Article I treated tribes as entities within the national domestic sphere and as part of the federal structure of government, on par with states and not subservient to them.  Over the years, as Native peoples’ lands have been eroded, so have many rights and protections, often in a fashion that legal scholars find illegal and unjust.

For years, state officials have sought to tax Seneca cigarette sales (which undercut the sales of taxed state cigarettes).  Why should the Senecas object?  Is it selfish to contest taxation, or is it as American as apple pie and Orange pekoe?  Should we be surprised that people might resist the imposition of a tax by a party lacking jurisdiction?  Would New York, say, submit to taxes imposed by Pennsylvania?

In 2005, Eliot Spitzer, then New York’s virtuous Attorney General, managed to strong-arm FedEx and UPS into refusing Seneca cigarette shipments.  The U.S. Postal Service proved less willing to discriminate and continues to deliver Seneca products, though the USPS does not offer the services of the other carriers, which allow better age verification (as in on-line wine sales).  The PACT legislation’s new threat has inspired renewed Seneca resourcefulness, constrained of course by the rules of the American political game.

We might not like that game, any more than we like witch-hunting and smoking, but rules are rules, . . . at least until the powerful change the rules to promote a preferred outcome.

Since House passage of the legislation (which stalled in the Senate), the Senecas have gained the support of two western New York Democratic congressmen, persuaded by Seneca arguments that “an attack on the Seneca Nation is an attack on the economy of western New York.”  Seneca spokespersons argue their trade supplies a thousand jobs, and profits that function as a critical engine for economic development in the region.  New York’s two Democratic senators remained PACT Act supporters.  One of them, Kirsten E. Gillibrand, faces reelection in 2010, having been appointed last year to fill out the term of Hillary Rodham Clinton.

Seneca success in persuading public officials to support them—even to reverse their political course—has been aided by substantial investment in political campaigns and payments to Washington lobbyists.  The New York Times reported that the Nation contributed $15,000 to Republican Senatorial Campaign Committee, and that in 2009 they were billed more than $300,000 by three powerful K Street lobbying firms.  That Seneca “war chest” purportedly contains heaps of cash. 

Should we be shocked?  Co-Chairman of the Seneca Nation Richard Nephew is as eloquent as Red Jacket in highlighting America’s double standard:  “Isn’t that the way things go in the American system?”  Modestly, he notes, “It is something new for us to learn what works in America, and I guess making political contributions is something that works.”

On Thursday, the Senecas learned a very old lesson, when the Senate belatedly but unanimously joined the House and approved the ban on mail order cigarette sales.  President Obama is expected to sign the bill.  Hypocrisy, double standards, and the old money of corporate lobbyists have prevailed.  The public is encouraged to see things more simply.  How lovely that the Senate has finally managed to act in bipartisan fashion to promote the nation’s health!

There was a time when the only Indian most Americans noticed stood outside a cigar shop.  Sometimes, that cigar store Indian was Red Jacket himself, whose name graced the tins of a popular brand of tobacco.  But Native people are not made of wood, and, unlike cigar shops, they have not vanished from the American scene.  They have survived through their resourcefulness and resilience and innovation.  We should not expect them to conform to our ethnocentric images, nor should we place them on pedestals.  Perhaps we should outlaw the sale of cigarettes, but if so shouldn’t it be an equal opportunity prohibition?  Oh, did I mention that mail order cigars are exempt in the PACT bill?   Perhaps there are too many cigar aficionados in Washington’s smoke-filled rooms.