Brad Bonaparte was one of those storied Mohawk ironworkers who shimmied up skeletal high-rise beams building skyscrapers in New York City like his father before him. When the twin towers crashed to the ground he was just leaving “the Hall” waiting to be called out on a job.
When I began reporting on Indian issues in New York State a few years back, I was fortunate to meet Leslie Logan, the spokesperson for the Mohawks in Akwesasne at the time. Though Logan is Seneca she tenaciously represented the Mohawks in the spirit of the Iroquois Confederacy. You always count on her for the straight dope on any issue. But it was her long-time partner Brad Bonaparte who provided the color during my first trip to the reservation. He drove me around, introducing me to nearly everyone we met, and told me stories about seemingly every house or building we passed.
Years prior to meeting Brad and Leslie, I reconnected with my heritage after volunteering at Kanatsiohareke, a Mohawk community upstate New York founded by Tom Porter. The name Kanatsiohareke means “The Clean Pot,” which was the inspiration for the logo seen here to the left. A copy of it has hung in office and in my home ever since working there.
The next time I met up with Leslie she was back in Seneca territory and helping me with another story. In a quiet moment I asked her about Brad. At first she didn’t answer me. Then after a couple of awkward, silent moments her eyes welled up and she told me he was dying.
Before Brad passed, he and Leslie were married. They were already a family and had children together but had never made it official. As I perused the photographs she sent me from their wedding I noticed that it was officiated by Tom Porter, the man who founded Kanatsiohareke. Small world.
The next time I spoke with Leslie I had a chance to ask her about her relationship with Tom. We were only speaking about Tom and the community for a few minutes when she said offhandedly that Brad had actually designed the logo for Kanatsiohareke. As she spoke the words I happened to be staring directly at it.
Brad passed away shortly after but his spirit lives on through Leslie, their children and, tragically, 9-11. Brad was an ironworker who worked on “the pile” and subsequently died as a result. He is the reason I continue to write about Indian issues. His life and death perfectly portray the paradoxical existence Indians lead in America. Indians are continually maligned by the nation that conquered them, yet they fight for her during times of war. They famously helped build skyscrapers to house institutions that would marginalize them; then they dug through the rubble when they came crashing down. The story of Leslie and Brad is one of love and resilience, patriotism and disenfranchisement. It’s a story of family, honor and determination. It’s timeless, heartbreaking and uniquely Indian.
This is their story.
THE GENUS OF TEARS
By Leslie Logan
In the days and months immediately following the terrorist attacks of September 11, 2001 the country was awash in tears of astonishment and horror. Thousands of people perished in four strikes against America. In one way or another everyone was indelibly touched, some more than others.
September 11th is one of those historic days of infamy never to be forgotten. Everyone old enough can tell you where they were and what they were doing.
I was two months pregnant with my daughter and rushing to drop off my three year-old at Nancy’s, my babysitter’s house before going to work at Cornell University. On the drive I heard NPR report a developing story—something about a plane crash at the Pentagon. When I got to Nancy’s she had an odd look on her face and greeted me with: “Did you hear?”
I followed her into her house where the television was on. Planes had crashed into the twin towers. We watched in disbelief as history unfolded before our eyes.
My partner Brad Bonaparte (pictured above working on WTC rubble) was one of those storied Mohawk ironworkers who shimmied up skeletal high-rise beams building skyscrapers in New York City like his father before him. When the twin towers crashed to the ground he was just leaving “the Hall” waiting to be called out on a job. He and his ironworker partner Andy Jacobs, also an Akwesasne Mohawk, were headed uptown to catch a train, but pandemonium ensued and they missed the last one. They became part of the masse that walked hundreds of blocks and across the George Washington Bridge to get off Manhattan due to the transit system lockdown. It took them the better part of that day to get back to their apartment in Jersey.
Two days later he and Andy reported for duty as part of the round-the clock ironworking crews enlisted to clear the wreckage at Ground Zero—a place that they would refer to as “the Pile” but was also “part hole and part hell” he would say. He was one of only a handful of Mohawk ironworkers who stayed on for any length of time removing the steel wreckage.
His very first night on the Pile he fell into “the hole” and was skewered through his side by a tie rod. The wound was serious and he was taken to Bellevue and admitted. He checked himself out hours later saying he felt as though it was a time of war and that he felt compelled to return to the battlefield.
He and his fellow ironworkers worked 12-hour, 10-day straight shifts, and in the more than three months that he was there he only came home maybe four times; each time for just a day and a half.
I worried myself sick about him night and day, sleepless and scared, my imagination running on all cylinders as I wondered what kind of impact that level of angst might have on my unborn child. I wanted Brad out of there, home and safe.
Every day the news reported on the biohazards and the air quality, the toxins and contamination at Ground Zero. Most of the reports focused on the police, the firefighters, the rescue crews and the New York celebrities that pitched in as volunteers to feed and serve those on site. There was little said about the ironworkers’ role.
When he came home for the first time after being there for 21 days he called ahead somber and serious and asked me to prepare a bowl of water with Osgwai’da (“Indian tobacco”) that he would need to wash with. The medicinal tobacco was used to cleanse away death and the remnants of unsettled spirits he had encountered. The tobacco is used in ceremonies and is believed to keep us and our children, who are most vulnerable, safe.
He arrived worn and unsettled, burdened with a haunted look of his own after witnessing and experiencing first-hand a tragedy few would know. He would talk about the smell of death, the haphazard respiratory checks and the lack of adequate face masks.
Just before Christmas he wrapped up his time at Ground Zero. CBS News’ 60 Minutes did a segment on the ironworkers that featured him. The Smithsonian American Indian magazine put him and his partner Andy on the cover and detailed their experience. My mom called him a hero. I was just grateful to have him home.
Along with full-fiber, deep-core exhaustion Brad brought home an unnerving, body-gripping cough that shook him awake at night. Between the nightly news reports that warned of unknown health implications and that disturbing, unmistakable cough of his, it was hard to ignore the alarm signals going off in my head.
I remember reading articles that suggested in 8 to 10 years, a wave of illnesses and conditions related to the hazardous conditions could surface among the first responders and workers at Ground Zero, much like the thyroid cancers that erupted in the aftermath of Chernobyl, the nuclear disaster.
So in October 2009 as Brad prepared to dress for my sister’s wedding, his shirt grazed a perceptible lump on his neck. He directed my attention there with a frown. I uneasily touched the undeniable growth. The first thing he said was: “It’s cancer and I’m going to die.”
I rolled my eyes at him and told him he was full of drama.
Indeed, for him it was the beginning of the end.
Sadly on the day before Thanksgiving 2009 my 47-year old partner of nearly 14 years received a phone call from his doctor with very little detail attached to it. We had been anxiously awaiting the results of a biopsy. Brad came home from his new dream job he had started only two weeks before as executive director of a Native arts and cultural center in his home community of Akwesasne, sat down and quietly, and simply stated, “It’s cancer. That was it. There were tears. He was told to call back on Monday, to schedule a follow-up appointment for more tests.
We spent the Thanksgiving holiday wondering in fear about what kind of cancer it was. There was no one to field our barrage of questions. Was it survivable? Was it burn-your-skin-and-make-you-go-bald kind of cancer? Was it kick-your-ass-and-kill-you kind of cancer? We didn’t know. The prospects weighed heavily on us.
We went to Montreal on a planned trip to shop, eat and have fun; but the laughs were few and forced, and neither of us had much of an appetite. I kept reminding him that people beat cancer all the time. But over the long weekend I would steal away to the bathroom to cry in private.
After Thanksgiving we returned to the Vermont Cancer Center. A team of doctors sat us down and told us they didn’t know what kind of cancer it was or where it was emanating from. The lead oncologist said, “If it is ‘primary unknown,’ that won’t be good. We’ll be reaching around in the dark and we’ll just throw Jello at the wall and hope something sticks. If it’s a testes cancer; that would be better because testes cancers respond well to treatment and you can get a couple of years out of that. If its colon cancer, the treatments are better now and you can get five years out of that.
At that point Brad and I traded grave looks of concern and took deep breaths. The doctor said, “if it’s stomach, pancreatic or esophageal cancer… he trailed off. He shook his head. He continued, “if it’s stomach, pancreatic or esophageal cancer, then we are looking at a severely diminished lifespan. The words: “a severely diminished lifespan was like a sharp punch to the stomach. I tried to blink back a rush of tears.
Several hours later I sat nervously by myself in one of the many waiting rooms while the doctors performed an endoscopy. I rocked like a child with autism, my hands tightly clasped, praying as I’ve never done, pleading to some unknown higher power, feeling all the while a touch of insanity as I hoped for colon cancer. I worked hard to force back the tears that were building inside of me.
Only an hour later the doctor called me in to join Brad in recovery. He was still delirious from the anesthesia. It was then that the tears unfurled. There would be many tears, so many tears that would flow and become lodged in the slim crevice of the next seven months.
* * *
Up in Alaska, in that wintry landscape draped white, urban legend suggests that Native Inuit speakers have 100 different ways to describe the many variations of snow. (Science, for its part, tells us that no two snowflakes are alike.) The truth is the Inuit have about a dozen ways in their Native language to describe snow. It strikes me that in the dark landscape of grief, tears are like snow; there are many different forms and numerous ways to capture the precipitation of tears that accompany sorrow and loss.
There is the nature of tears and the occasion of tears, the shock of tears, convulsive tears and fits of unrelenting, physically exhausting, emotionally depleting tears. There are tears that choke, tears that paralyze, tears that gut you and turn you inside out. There are tears of relief, tears of disbelief and denial, tears of sympathy, tears of fear, tears of contempt, burning tears of rage and recognition, tears of disappointment and betrayal, tears of dread and uncertainty, tears of regret and tears of hope. There are tears of letting go, tears of loss and devastation, and tears of complete bewilderment. There are quiet tears on automatic pilot. There are tears of gaping emptiness, plaintive tears of loneliness and desperation. There are doubled-over, gut-wrenching tears of pain, tears of a stunned, broken heart.
The tears of shock and denial I cried when Brad was diagnosed with all-guns-firing advanced, metastatic, inoperable, 4th-stage, terminal esophageal cancer—were different from the ones he and I later shared when we laid together in bed at night over the remaining months of his life. Scared in the darkness, holding each other tightly as though our bounded bodies could shield us from the inevitable, those tears throttled our throats and stung our lips as our faces, wet and slippery, pressed hard against one another.
Those tears were different from the ones that tumbled out only eight days after our January 2010 wedding when I received the phone call informing me that the tumors in his super clavicle had strangled the nerves to his left arm rendering his limb all but dead.
The tears were different when his pee turned the color of iodine and the ER doctors informed me that tumors in his kidneys had grown like ivy vines and choked his organs preventing them from functioning properly.
The tears were different when the oncologist told us in a somber tone, yet face unflinching, that there was now a tumor in the brain.
The tears were different when we were given the “You-have-fought-a-really-valiant-fight speech and the doctor transferred us to hospice care and tried to make “maybe three months sound like an optimal remaining timeline. In a blur of tears I remember firing a dirty look his way and thinking loudly in my head: LIAR—I knew we didn’t have three months.
The tears were different when the daily dose of round-the-clock meds climbed to 18 different prescriptions and he became confused.
The tears were different when the hospice nurse came to the house on a Monday and stated the obvious—“He’s having some ‘changes,’ and said he would not likely make it to Friday, when our daughter would have a featured role in her second-grade spring chorale program.
The tears were different when the social worker told me we had to break the news to our two children that we would lose him—the most painful and difficult conversation I would ever have. For months we had told them that Hahni (“dad in Seneca) was very sick and that we were doing everything we could to help him get better. The week before I finally broke down and told the kids that Hahni was not going to get better. My 8 year-old daughter’s face contorted as she cried out, “Not next week? He’s not going to get better next week? I never felt so helpless, so broken, so unable to protect her from the oncoming train of pain that would run us all down.
The tears were different when the very next day at his bedside he grabbed my arm and pulled me close to him, as he coughed and struggled out his last breath, his eyes wide and searching.
The tears were different when, on Father’s Day 2010, as we prepared to return his body to the earth, I sat in the Akwesasne Mohawk Longhouse gripping my children tightly against my quaking body to keep from visibly shaking.
The tears were different when in February, on a brutal, late Winter day my 11-year old son sad, angry and confused told me he missed his Hahni and had nothing to live for, then grabbed his BB gun and told his sister “You’ll never see me again! as he headed out the door in the freezing rain.
The tears were different on March 12, 2011 when I had the kids take Windex to the dry-erase calendar that for nine months remained untouched on the refrigerator door in a state of frozen time, locked on June 2010 when we lost him. For nine months June stared us in the face every time we went to prepare a meal or quench a thirst. Three squirts of Windex irrevocably erased the names of people who would visit, the places we would go, the events we had planned and intended; things we did and things we didn’t get to do and the day his proverbial battle with cancer came to an unavoidable end.
Some might argue that tears are all the same, but as with snowflakes, in the land of loss and grief, I believe that no two tears are alike. They are all related, rooted to a similar source, deep and familiar, yet varied according to a range of emotions. In our case, as with so many now across the country, our relapses and lingering tears flow back to the incident in lower Manhattan.
Ten years after Ground Zero, I am rattled with disbelief that my Mohawk ironworker failed to live to see the 10-year 9/11 anniversary tributes that are dominating the headlines. This week my children are riveted to the television, unable to escape the replay of images of that day. My son is transfixed by the coverage and inconsolable as he watches the news. He says, “If only Hahni never went down there, he never would have gotten the cancer…
Brad was widely known for being a storyteller, something of an old-school Iroquois orator, gifted with a quick wit and a smooth ability to draw in listeners to the details of his experiences and delights.
We miss his stories, his levity and his voice. The terrorists unwittingly have had an even deeper far-reaching impact that continues to this day with a death tally that grows exponentially. As a country we were all affected by 9/11; there are literally thousands of stories of loss and some of us have felt the devastation more intimately than others.
As with all cycles, there is change. The warmth of the sun melts the snow-covered terrain in Alaska, and in the season of mourning, the tears eventually dry and a new, different vision of the future unfolds. For my small Seneca family, as with an entire country affected by 9/11, we have learned to live with the loss; still we are strengthened by the knowledge that our lives were made better by the sacrifice and conviction Brad and others demonstrated in a time of national crisis and need.
An economic noose is being gradually slipped over Native Americans, who are being quietly led to the gallows, as they have been so many times before. Under the executioner’s mask is the tobacco industry, preparing to pull the lever and release the floor beneath them.
Tucked away along a waterway in Mastic, Long Island is Poospatuck, the smallest Indian reservation in New York State. It means “Where the water meets” and is home to 400 enrolled members of the Unkechaug tribe of Native Americans. It’s difficult to discern where exactly the reservation begins and ends. There are no visible signs to guide your way, no glow from a towering casino to mark the spot. Once you happen upon Poospatuck, however, there’s no mistaking you have arrived.
Large billboards advertising native-brand cigarettes adorn the façades of several homes converted to tobacco shops and traffic moves briskly in and out of parking areas. People are finding their way here for one reason only: cheap cigarettes.
Harry Wallace is the elected chief of the Unkechaug Nation who has found himself at the center of one of the largest controversies facing Indian nations today. He is also the owner of Poospatuck Smoke Shop, a bustling retail enterprise nestled in a wooded area deep within the reservation. Hanging boldly from the deck of the quaint wood shop on Wallace’s property is a sign that reads “Sovereignty Yes, Taxes No.”
Behind the shop is an office where Wallace conducts the business of his enterprise and the tribe. On the right side of the office is a wall of legal books that remind visitors that Wallace is not just an entrepreneur but a lawyer, a skill that has proven vital to the survival of Poospatuck. As I enter, he is talking to his staff and admits to being slightly irritable due to a strict diet and having recently kicked the caffeine habit.
“I’m trying to take care of my health,” he says.
Wallace was recently diagnosed with diabetes, one of the most common diseases plaguing Native Americans. This affliction makes him a statistic. Harry Wallace hates being a statistic.
Born in Flushing, Queens, Wallace lived there until his grandmother’s house burned down, forcing his family to move to Williamsburg, Brooklyn. As a kid he would make frequent trips to Poospatuck and recalls a beautiful place.
“People built their own homes and kept the powwow grounds in good shape,” he remembers. “They had socials and there was this old dock with rowboats and you could actually swim in the river.”
In the early ’70s, Wallace got what was then a rare opportunity for a financially supported college education at Dartmouth College in New Hampshire. This chapter in his life would change him forever and connect him with his heritage in a way he never conceived of before.
As it turns out, the Dartmouth years provided as much education as they did turbulence, as Wallace was at times confronted with blatant racism. “I ran into a conflict the first day I got there,” he laughs, recollecting a fight stemming from a racist comment made by a football player.
After college, Wallace moved back to Brooklyn to start a family and received his law degree from New York Law School. He began practicing law in New York City in 1983, which he did for nearly 10 years before returning to Poospatuck.
“My mother asked me to,” shrugs Wallace. “She said, ‘We need your help to take care of our land.’”
Upon his return he describes finding only “desolation.”
Gone were the pristine waters of his youth, sullied, he says, by industry and the refuse from duck farms at the mouth of the canal that Poospatuck lies adjacent to. The shellfish were gone and many of the residents who had existed on a marine economy had fallen into abject poverty; not an unfamiliar condition on reservation land throughout the country. Time and natural resources had run out for the inhabitants of this tiny reservation until the most unlikely of scenarios provided a dubious light at the end of a dark tunnel.
“It’s cigarettes, man.”
Because so many states have driven up the cost of cigarettes due to tax levies, they are cheaper to purchase from retailers on Indian reservations who don’t recognize government taxes on retail tobacco. The disparity has led to an economic boon that is creating newfound wealth and generating badly needed funds in some of the most poverty-stricken areas of the country.
But not everyone is happy about the burgeoning success of Native Americans. Many state and federal elected officials feel as though they are being cheated out of sorely needed tax dollars and anti-cancer advocates claim that tobacco consumption hasn’t decreased as a result of taxes; demand has merely shifted toward the unregulated Indian marketplace. Ironically, the biggest threat to the native cigarette industry may actually be from the cigarette companies themselves.
With the Great Recession as the backdrop to this unfolding drama, the stage is set for a David versus Goliath battle between Indian Country, the US government and Big Tobacco.
The price disparity between cigarettes available from reservations and traditional American-based retailers is at an all-time high. A carton of Marlboro cigarettes, the most popular brand in America, will run the consumer as much as $95 in New York City (NYC), where Mayor Michael Bloomberg has initiated an all-out war on smoking. The same carton costs somewhere in the neighborhood of $43 at a Native American-owned smoke shop on reservation land. This is the result of so-called “sin taxes” applied by state and local governments who use the additional tax to balance budgets and discourage consumption for public health reasons. While retailers and local municipalities have cried foul for several years about the inequity of cigarette pricing, it wasn’t until recently that these cries reached a fever pitch.
But the rise of the Native American tobacco entrepreneur has also contributed positively to the overall economic conditions on some reservation territories. The burgeoning Indian cigarette trade is having the ironic effect of creating tribe-funded public welfare systems that address health issues such as diabetes, drug addiction and heart disease that have crippled Native Americans.
The stunning growth of the Indian tobacco trade has drawn the ire of some powerful people and corporations, and together they are collaborating with remarkable efficiency to wage an epic political and economic war against Native American tribes. The cast of characters involved in the battle is like something out of the movie The Insider. Senators, governors, congressmen and women, local politicians, the U.S. Postal Service, Homeland Security and the mayor of Gotham are all playing key roles in targeting the native Indian tobacco trade. But it is Big Tobacco that is controlling the game and moving these powerful interests around the chess board like a master.
Don’t Tread on Us
New York State (NYS) is ground zero for the attack on the native cigarette trade. On one end of the spectrum, the 55-acre Poospatuck reservation is being called a bootlegger’s paradise and is a defendant in several high-profile lawsuits from neighboring municipalities. At the other end is this highly organized and extremely well-funded Seneca Nation, located on three territories in upstate New York. If Poospatuck is a minor league ball team in this scenario, then the Seneca Nation is the New York Yankees. Both tribes are fighting enormous, yet entirely different, political battles.
Despite the differences in size and resources, both nations cite the same reason for why the US government, at any level, is forbidden from interceding in their affairs: sovereignty. To understand sovereignty, it is helpful to think of these nations not as territories within US borders, but as geographically and politically independent nations far away. In every instance the theory of sovereignty is invoked by Native Americans, imagine it being invoked by leaders of small nations abroad instead of in your backyard.
The economic extremes that Poospatuck and Seneca Nation represent are as divergent as their take on the nature of sovereignty and the legal rights associated with it. For its part, Poospatuck is not federally recognized as a reservation, but it is recognized by NYS. Chief Wallace of Poospatuck believes that the fact the Unkechaug never sought federal recognition is perhaps an even greater claim of sovereignty than any agreement could possibly provide.
“The BIA [Bureau of Indian Affairs] cannot confer sovereignty,” scoffs Wallace. “All it was, all it is and continues to be, is an agency that manages funds. This whole notion of sovereignty was created as fiction during the Nixon administration. You cannot confer sovereignty, you can only recognize it.”
Conversely, the Seneca believe their sovereign rights are superior to other tribes who are federally recognized because Seneca territories in western New York are protected by what is known colloquially as the Buffalo Creek Treaty of 1842. The treaty explicitly states that the “lands of the Seneca Indians, within the State of New York” are protected from “all taxes.” For the Seneca people this is impenetrable language and the basis of their claim of total sovereignty and independence.
But as one quickly learns from reporting on Indian issues, nothing is absolute in Indian Country.
Chief Wallace believes that the Seneca stance may have deleterious repercussions on Poospatuck’s assertion of sovereignty. “When we negotiated with the state in the past we had a unified coalition with the League of First Nations,” says Wallace. “Most of the Indian Nations were a part of that coalition. That unified front is not there today.”
Robert Odawi Porter, the senior policy advisor and counsel to the Seneca Nation, offers a slightly different viewpoint. “We’re still united with other nations in the state but our constitutional government is what sets us apart. We’re a stronger and more functional government.” Then he carefully adds, “There are times that our advocacy is common.”
Standing together at this time may be more important than ever before, as impending federal laws and mounting legal challenges against these nations have everyone running for cover, leaving the tribes to defend their economic rights on their own. Even a representative from the New York Civil Liberties Union said that Native American issues are “not our area of expertise” and declined to comment on the issue.
As to why no organizations or individuals are likely to come to their defense, it’s simple. As Chief Wallace says, “It’s cigarettes, man.”
The Long and Winding Trail
Because cigarettes have such a deservedly unsympathetic role in modern society, it’s no wonder there is little support for any cigarette retailers. Questions of fairness and free enterprise fly out the window due to the simple fact that cigarettes kill people. Even still, Wallace is incredulous at the attack on the Native American smoke trade for reasons beyond the economic peril it places them in.
“They’re the ones that turned a Native American sacrament into a carcinogen,” he says in disgust.
When America declared itself free, indigenous people were herded like animals onto isolated areas of the burgeoning nation. Stretches of remote desert lands and parcels nestled in the secluded woodland areas became homesteads for Native Americans. Their numbers were decimated and the survivors were humiliated. Yet, in the beginning, there was still food to eat and some freedom to move about. But the influx just kept coming.
Says Porter: “Personally I don’t think it sunk in with our people that the usage of our land was so severely restricted. We weren’t used to lines being drawn on a map.”
Over time, a sea of white faces pushed deeper and deeper into the country—slowly at first, then like a dam bursting, they rushed through the forests and across the plains. Pretty soon they were everywhere. They brought machines and ushered in the Industrial Revolution. Gradually, the skies turned gray, the waters turned brown and the earth lay fallow.
This part of the story took 400 years. The next part took much less time.
Native Americans became like prison inmates adapting to life on the “inside.” By the mid-20th century the Native American population living on reservation land was among the poorest on Earth. The game was long gone and the earth and seas were poisoned. Fast food, low-wage jobs and hustling were part of the daily routine. If you stayed, you hustled. And you probably drank. If you were a woman, there was a one-in-three chance of being raped in your lifetime.
This was life on “the res” and for many tribes, it still is.
For the most part, reservations are rural ghettos, forgotten wastelands with few opportunities to get ahead. This concept of “getting ahead” in America usually starts very simply. Find a job. Buy a home. Take out a home equity loan to start your business. As the business grows, you have the option of paying off that loan and securing business financing. But this is precisely where the Indian economic dream ends.
Because reservation land cannot be owned by anyone, the land and any structure on it cannot be leveraged. Put simply, if it cannot be repossessed, you can’t take out a loan on it. Therefore, even the most industrious Indian entrepreneur has been unable to tap into the source of financing that is behind nearly every great American story of growth and industry.
As an attorney, Chief Wallace was able to make a living practicing in New York City and save enough to open a business on the reservation. He credits his business savvy to this experience, saying, “I always worked for myself as a lawyer and not in a firm.” But expanding his business was more challenging. “I have tried many times to get credit. When [lenders] realize they can’t secure my building, the conversation always ends there.”
Then along came the ’80s and, for some tribes, everything changed.
The Indian Gaming Regulatory Act of 1988 articulated a one-size-fits-all approach to establishing gambling on Indian lands. For some tribes gambling brought indescribable wealth. For others it was marginally effective. For most it had little impact because their remote locations made it nearly impossible to draw large enough crowds to ensure profitability.
Other tribes, particularly in western states, found economic success by exploiting the natural resources beneath reservation lands. In one of the more ironic twists of fate, the barren lands turned out to be more resource rich than anyone would have anticipated. But just as selling cigarettes and running casinos present moral challenges, blasting apart the earth to retrieve fuel for an increasingly industrial world presents an ethical challenge to a population long considered to be stewards of the environment. But when faced with third-world poverty and few prospects for a better life, you do what you have to do.
Of all the paths that lead out of poverty, selling cigarettes became by far the most consistent and profitable trade for most reservations.
Tobacco Wars: In the Trenches
In January 2009, NYS Assemblyman Michael Benjamin (D-Bronx) floated a bill to remove “the Poospatuck Indian Reservation from being recognized as an Indian Tribe in NYS.” Benjamin introduced the legislation “in response to a New York Times investigation of the Poospatuck Indian tribe, which seems to be nothing more than a criminal enterprise.” When I visited Wallace late last year, he had choice words for Benjamin, calling him “a political hack whose premise is based on newspaper articles. You don’t deserve the seat you hold. No wonder the state is fucked up if you’re indicative of the talent that emanates from that office.”
But people like Benjamin are more of an annoyance than the gathering storm of deadly serious lawsuits that Poospatuck finds itself defending. In 2009, Judge Carol Amon of the U.S. District Court for the Eastern District of New York issued a ruling requiring Poospatuck to pay taxes on all cigarettes sold to non-natives from reservation smoke shops. Amon essentially ruled that Poospatuck could not claim protection as a sovereign entity.
With the Amon decision on appeal, the tribe caught a break shortly thereafter when Judge Kiyo Matsumoto, also of the Eastern District, issued a vastly differing opinion on a separate suit brought by Gristedes. Matsumoto found that the Unkechaug people of Poospatuck met the burden of proof of establishing that they are legally recognized as a sovereign tribe by federal standards. Although this is different than federal recognition by the BIA, for Poospatuck it is just as powerful and has provided temporary cover. While Wallace is confident that the judicial system will ultimately clear Poospatuck of the immediate hurdles, the fight is taking its toll.
Through it all, NYC and NYS assert that Poospatuck is little more than a weigh station for cheap, untaxed and unstamped cigarettes that are being sold in massive quantities off the reservation. The state, during the waning days of the Cuomo administration, crafted legislation to establish a couponing system that would track these sales and require reservations to pay taxes on all cigarettes sold to non-native customers. Any cigarettes sold to enrolled members of the tribe would be exempt from the tax. The New York tribes were up in arms, having not been consulted on the matter, and argued that any law passed by a foreign government such as New York that is not recognized and adopted by the tribes themselves is unenforceable.
The Pataki administration attempted to enforce the regulations, known as 471-e, in 1992 and 1997. Both attempts were met with angry throngs of organized and armed Indians who blockaded the NYS Thruway, held up traffic and burned tires in protest, ending in a standoff with state troopers. Wishing to avoid further conflict, the Pataki administration instituted a policy of forbearance, which basically acknowledges that although New York deems the law to be valid, without tribal consent there is no clear and official method of enforcement, and the issue was dropped.
Desperate to close a rapidly expanding budget deficit yet anxious to avoid similar conflict, NYS Gov. David Paterson sent a letter last September to the U.S. Attorney’s Office, inquiring as to the level of support NYS could expect if it decided to pursue visiting a coupon program on Indian reservations.
It was the last line of the letter, which was leaked almost immediately, that provoked strong interest in several channels and brought the debate back to the front lines. In it, Paterson wrote: “I would be grateful if you would please review this matter and provide me with your assessment as to the likelihood of violence and civil unrest should the Tax Department begin the implementation of Tax Law 471-e. Furthermore, I would appreciate your operational commitment to help mitigate any disturbances that might occur in each of your Districts if implementation were to occur.”
Tribes throughout New York saw this as a shot across the bow and all eyes shifted to the Seneca Nation.
With the state running out of money, Mayor Bloomberg on the offensive in court and unrest among the tribes, the state legislature turned its focus to the tribes’ booming cigarette trade. In October 2009, the Senate Standing Committee on Investigations chaired by NYS Sen. Craig Johnson (D-Nassau) held a hearing to determine the extent of the loss in tax revenue to New York. In a spirited session before a packed room of Indians from nations across New York, the panel attempted to nail down an answer, which proved to be nearly impossible.
According to the testimony of William J. Comiskey, the deputy commissioner in the Office of Tax Enforcement, the department estimates “that if all cigarette transactions conducted through Native American merchants with non-Indians were properly taxed, New York would collect additional state revenue of approximately $220 million. Because complete compliance is not likely, the actual number achievable would be less.”
Eric Proshansky, from the Corporation Counsel of the City of New York, zeroes in on the Poospatuck Reservation in his testimony claiming that the deliveries to Poospatuck “amounted to a $155 million tax loss in 2007 alone, for the State alone.” He then concluded that “if those cartons replaced sales in the City, as the evidenced proved that many of them did, that amounts to City tax loss of up to another $155 million in 2007 alone.”
Steve Rosenthal, former tobacco retailer and frequent testifier at tobacco hearings, estimated the annual loss of tax revenue to NYS to be approximately $1.6 billion.
For his part, Proshansky is largely critical of the Paterson administration, stating that the “failure of the State of New York to enforce the laws with respect to reservation sales is directly responsible for the loss of many billions of dollars that rightfully should have gone into the public treasury.” He went on to say that, “It hardly seems like good public policy to leave so much lawful tax money in the pockets of bootleggers.”
Richard Nephew of the Seneca Foreign Relations Committee dismisses the city’s claims altogether. “Long before the Indians started selling cigarettes there was a black market of cigarettes heading into New York City,” Nephew tells the Press. “They’re just utilizing us as scapegoats.”
Yet with all of the talk about numbers of cartons and billions of dollars lost to reservations, the city and state are reluctant to talk about how much is lost to bordering states and states as far away as North Carolina due to lower state tax penalties. For all of the attention that focuses on Indian reservations there is no discussion of requiring other states to curb the sale of tobacco to New York residents. Theoretically, if it abided by the same regulation, it is attempting to pass with respect to Indian reservations, then NYS should be sending state troopers into Pennsylvania demanding the records of all tobacco transactions to New Yorkers and payment thereof. This, of course, is never going to happen.
Up In Smoke?
The hearing began to head down a slippery slope when the panel brought JC Seneca, Tribal Councillor for Seneca Nation, up to testify. During the question and answer period, NYS Sen. Martin Golden (R-Brooklyn) said it was only fair that the New York tribes share the burden of the financial crisis, sending the crowd and the Seneca members into a frenzy. Sensing the growing anger of the attendees and referencing the conflicts during the Pataki years, Golden tried to strike a conciliatory note with JC Seneca, saying he didn’t seem like the type of person that would resort to violence. Seneca simply replied, “Then you don’t know me very well.”
Not wanting to agitate the situation further during the hearing, the committee members turned their attention to the governor’s representative. But Peter Kiernan, counsel to Governor Paterson, refused to take the bait when pressed aggressively by the committee. Reluctant to engage either the legislature or the tribes present, Kiernan offered testimony that included language like: “A US dollar spent on an Indian reservation in New York is a dollar put into motion in the New York State economy. Every time that dollar is re-spent or invested is good for New York.”
But with Gov. Paterson barely holding onto his office, there is blood in the water. On March 2, NYS Sen. Carl Kruger (D-Brooklyn) called for full compliance and the revocation of the forbearance policy and went as far as to call Gov. Paterson “a willing and active partner in a longstanding travesty that has hurt legitimate businesses and robbed billions from our state.”
In a statement issued exclusively to the Press, Seneca’s Richard Nephew fired back, saying: “It should occur to some that we are heading into an important election year for New York State politicians. I believe this is largely politics being played out for the public. Paterson, Klein, Kruger, Golden and others may be blowing their own brand of smoke, engaging in political theatrics against the backdrop of New York’s economic crisis.”
Perhaps in an effort to show strength during a troubled time, Gov. Paterson reversed his stance in recent weeks, proposing a new set of regulations that would essentially choke the supply to reservations located in New York.
Included in the regulations are exact calculations for how many cigarettes would be allowed to be delivered to reservations from certain state-approved wholesalers. The law calculates Poospatuck, for example, would only be allowed to take delivery of 8,100 packs of cigarettes every quarter. The calculations are based upon the number of enrolled members each tribe reports and the theoretical consumption on Indians who live on the reservation. Sales of any other tobacco in the state that is not through these approved retailers would be strictly prohibited and the manufacturers would then bear the burden and risk losing the ability to do business in New York.
This proposal is currently in the public comment period and will most likely be met with several reservation-based challenges for the courts to untangle once again. But in a state with as many problems as New York right now, these efforts are child’s play compared to what is taking place on the federal level.
Gods and Generals
There is impending doom for the tribes in federal legislation that seeks to curtail the growing Indian cigarette trade, known as Prevent All Cigarette Trafficking Act of 2009 (PACT). It’s an act that has the support of almost every sitting politician in America today. The act itself would prevent retailers from mailing cigarettes purchased by catalog or on the Internet through the U.S. Postal Service (USPS). Private delivery services such as United Parcel Service and Federal Express already have voluntary bans in place to prevent bulk mail order purchases of tobacco, but the USPS operates under no such agreement. Cancer organizations and elected officials are supporting PACT for the obvious reason of protecting public health by cutting off part of the cigarette supply chain, but there is another unlikely supporter of this bill: Big Tobacco.
The growing cigarette trade on tribal lands was never much of a concern to the multi-billion dollar tobacco industry until Native American retailers began manufacturing and promoting native-owned brands. Brands such as King Mountain and Seneca (unrelated to the tribe) have gained a tremendous following and begun encroaching on Philip Morris’ territory by gaining market share. This phenomenon has turned the relationship between Big Tobacco and Indian smoke shops on its ear. As the tobacco industry and US government combine efforts to attack Indian cigarette sales, the dispute between Big Tobacco and Indian Country grows by the day. Wallace has already banned all Philip Morris products and claims to have felt only a minimal impact to his gross sales.
As this relationship erodes, Philip Morris has ratcheted up its lobbying effort to support the government ban on shipping cigarettes through the mail. It’s a stance that on the surface seems confusing, but the tobacco industry is no stranger to the upside of paradox.
One of the most notable examples was the effect of the cigarette advertising ban on television and radio imposed in 1970. Due to the ban on broadcast advertising, the major tobacco companies at the top of the industry were able to protect their positions because a new entrant to the market was unable to effectively advertise its brand to a broad audience. Indeed, the advertising ban has contributed to freezing these positions in a time capsule with companies such as R.J. Reynolds (Camel), Lorillard (Newport) and worldwide leader Philip Morris (Marlboro) maintaining levels of market share domestically.
A more recent example was in 1998 when it appeared as though Big Tobacco might be dealt a significant blow. Under pressure from several states with massive pending lawsuits against them, Big Tobacco entered into a landmark agreement known as the Master Settlement Agreement (MSA). Under the terms of the deal, the tobacco companies would fork over $200 billion over a 20-year period to 46 states that enjoined in an action against the major tobacco companies. The states who received this money were then supposed to put the funds to good use toward health care and anti-smoking initiatives. In return, the tobacco companies would be indemnified from future claims against them.
Instead of Big Tobacco’s wallet being negatively impacted by the MSA, the opposite occurred, with the tobacco manufacturers simply hiking the base price of cigarettes to a level that covered the payments to the states while receiving full indemnification against future claims.
Big Tobacco’s ability to display contrition and a willingness to address public health concerns while reaping huge rewards as a result of this behavior provides a useful context in which to understand its support of the PACT Act. The only businesses affected by the ban on cigarettes in the mail are the native retailers who have exploited the tax disparity issue and reinvested into native-owned brands. By targeting this methodology, Big Tobacco gives the appearance of cooperating with the government, showing a concern for public health and eliminating competition for market share.
Native American entrepreneurs in turn became victims of their own success.
The last remaining step in the process, or nail in the coffin, is to guarantee passage of the PACT Act. So Big Tobacco tied it to an issue that most elected officials would never argue with: Terrorism.
Terrorism and Tobacco
In April 2008, U.S. Rep. Peter King (R-Seaford) issued a report titled “Tobacco and Terror.” The report attempts to draw a straight line between the sale of untaxed cigarettes on Indian reservations to non-Native Americans and terrorist groups such as Hezbollah. In it, King wrote: “It is possible for these Arab networks to rely on suppliers in lower tax states such as Virginia and North Carolina as well as Hezbollah-linked front companies in various free trade zones around Latin America. However, sources told the committee that in NYS the smuggling networks rely primarily on access to the Native American Indian reservations for tax-free cigarettes—for obvious financial reasons.”
King’s primary evidence is “a North Carolina based operation that forwarded a total sum of $100,000 to Hezbollah in 2000.” Before 9/11. Based upon this data, the report arrives at the conclusion that: “In just two months of illicit cigarette trade operations, a motivated terrorist cell could generate sufficient funds to carry out another September 11th-style attack, in which operational costs were estimated to be $500,000.”
That’s a pretty sensational conclusion from the evidence proffered in this report. But it may be all the fuel necessary to provide the impetus to pass the PACT Act. The link to terrorism has many, including Chief Wallace, concerned beyond the impact of this bill. “National Security interests,” he says, “may play a part in taking the rest of our land.”
PACT has seen relatively few bumps along the road to passage—quite a feat given the climate of severe partisanship that currently chokes Washington. The key to this lies in the main body of the bill authored by U.S. Sen. Herbert Kohl (D-WI), which says: “We can no longer continue to let terrorist organizations exploit weaknesses in our tobacco laws to generate significant amounts of money.” With that, Kohl closed the loop begun by King by linking the Altria (Philip Morris)-backed bill to prevent mail- and Internet-order tobacco retailing. Seneca Nation saw this coming.
“When Peter King came out with his report,” sighs Seneca’s Porter, “that was the brush that all Indians were painted with. Those types of propaganda are hard to fight against.”
JC Seneca was, however, not impressed with the new strategy. “We’ve been fighting terrorism since 1492. The issue is sovereignty. To protect what we have today like what our ancestors fought for.”
PACT has already passed the House with unanimous support from all of New York’s Congressmen and women. The U.S. Senate version lists Senators Charles Schumer and Kirsten Gillibrand, both Democrats, as co-sponsors. While Schumer recently opened the door to listening to the Seneca Nation, which would be most affected by the bill’s passage, Gillibrand has remained publicly silent on the issue. This has Indian Country enraged and crying foul at Gillibrand’s much-touted ties to Altria, the parent company of Philip Morris, who Porter alleges to be the one “banging the drum” for the passage of PACT. According to a New York Times report, while an attorney, Gillibrand represented Philip Morris in a sensitive case and as senator she has taken in tens of thousands of contribution dollars from the tobacco giant.
But another Times article this week indicates that the Senecas have been actively lobbying elected officials with some measure of success. According to the report, “two or three Democratic senators” are trying to stop the bill. But with the PACT Act being shopped as an anti-terrorism bill, time may be running out for New York’s Indians.
The Inevitable Conclusion
The past 20 years have brought a sense of optimism and independence to Native Americans, who have begun to create infrastructure on reservation land and become, in some cases, a vital part of the economic engine in the regions they exist within. In western New York, according to the Seneca Annual Report, the Nation “operates a $1.1 billion economy that employs more than 6,300 people, Seneca and non-Seneca.”
As the Seneca economy grew over the past two decades, it poured funds back into areas like health care and badly needed projects. Seneca’s Richard Nephew takes a shot at the U.S. government, saying: “We’re a government that provides for our people,” moreover, “we’re not emptying people’s pockets.” Porter likewise adds, “We have what Americans are fighting for: top-to-bottom health care.”
JC Seneca cites the problem New York has in losing big business to other regions of the country and wonders why politicians, particularly an upstate official like Gillibrand, wouldn’t want to work together with the Seneca people. “We’re not a company that’s going to pack up and head out of state.”
Though not on the same scale, Chief Wallace also argues that Poospatuck has increasingly contributed to the local economy.
“We approved fuel oil for our seniors from a local company,” he says proudly. “We spent $1.8 million on home improvement with approved contractors through the [Suffolk] county. We spent about $200,000 hooking up water to municipal services. Put drains in, improved powwow grounds and purchased a new building.” Wallace points out that a local contractor was chosen to construct a new community center at the heart of the reservation.
Perhaps most impressively, the leaders of Poospatuck created a fund that last year gave every household $15,500 toward home improvement. The funds had to be made payable to an approved third party home improvement contractor to ensure that they went exclusively toward construction and beautification. Tribal members call it the “fifteen five.”
Wallace Wilson, a 29-year-old member of the tribe who works for Chief Wallace, says: “The impact of the fifteen five was a complete change. Just last year it was a dump.”
In New York, the new regulations proposed by Paterson would restrict the flow of cigarettes to reservations while the PACT Act will block Indian retailers from fulfilling cigarette orders through the mail. If the US government is successful in clamping down on the cigarette trade on reservation lands, then this brief encounter with prosperity will most likely come to an unceremonious end. An economic noose is being gradually slipped over Native Americans, who are being quietly led to the gallows, as they have been so many times before. Under the executioner’s mask is the tobacco industry, preparing to pull the lever and release the floor beneath them.
But the tribes have vowed that they won’t go down without a fight. “There are two paths we can go on,” states JC Seneca. “Diplomacy or controversy and confrontation. They want controversy and confrontation? They’ll get it.”
Should the tribes find themselves on the losing side of the battle, they may be forced back into another prolonged era of poverty and hopelessness. The resulting job losses and increased dependence upon social services and welfare may have the ironic effect of forcing the states to pick up the tab.
The only winner here is Big Tobacco, able to once again manipulate the public and our politicians at will to maintain dominant market share. Their products are addicting to people and their power is intoxicating to politicians, because, as Wallace so aptly puts it: “It’s cigarettes, man.”