Akaka Bill, Hawaii

Equality for Native Hawaiians (and all other Americans)

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By Jere Krischel

In a recent debate (http://www.youtube.com/watch?v=o9d_p7uLfVw), our local politicians once again deceptively framed the Akaka bill as one that would provide some sort of “parity” between Native Americans, Native Alaskans, and Native Hawaiians.

Djou stated, “I think Native Hawaiians should have the same self-determination rights as Native American Indians.”  Hanabusa identified herself as one of, “those who feel that Native Hawaiians should at least have the same rights as Native Americans and Native Alaskans.”

The problem is, they simply gloss over exactly what “rights” they’re talking about.  My cousin is part Native Hawaiian, and not part of any tribe.  My son is part Cherokee, and not part of any tribe.  Exactly what “rights” do Djou and Hanabusa think my son has that my cousin doesn’t?

Neither my cousin, nor my son, get any tribal benefits.  Neither of them have any inherent right to tribal lands, or casino income.  Neither of them have any right to tribal membership, or tribal governance.  But somehow, the Akaka Bill is supposed to bring the “rights” my son has as a Native American to my Native Hawaiian cousin.

Maybe what they really mean to say is that all Native Hawaiians, of even the smallest degree of ancestry, deserve parity with *tribal* members.  Maybe they believe that every Native Hawaiian deserves to have a stake in a tribal casino, and a stake in tribal lands, and a tribal leadership which can remove them from the tribe for any imaginable pretext without any constitutional protections whatsoever.  Maybe what they’re really saying is that Native Hawaiian blood alone should confer rights that Native Americans and Alaskans by blood alone don’t have.

There are two problems with this position.  First off, they’re not really promoting “parity” with Native Americans and Native Alaskans at all – they’re saying that Native Hawaiians, by blood, deserve special treatment compared to Native Americans and Native Alaskans who aren’t tribal members.  By creating a special bit of legislation to bypass the standard tribal recognition process, they’re establishing a brand new set of rights, conferred simply by racial background, to Native Hawaiians with even a single drop of Native Hawaiian blood.

The second problem is particularly pernicious – if the precedent is set that unrecognized indigenous people deserve a separate sovereign government, without the protections of the U.S. Constitution, what is to stop every person in the United States, with even the smallest drop of native blood, to demand a “reorganization” into their own new, sovereign government?  As dangerous as U.S. Tribal law currently is, opening the floodgates to rights determination simply on the basis of race, rather than political history, can only be seen as even worse.

If Djou, Hanabusa, and Case really believe in equality, they should be working towards is ensuring that *all* Americans have the same rights, regardless of ancestry.

What this means is not an extension of existing tribal governments, but a dissolution of them.

It means writing a bill that explicitly declares that all citizens of the United States must enjoy the same rights of self-determination, neither more nor less than their neighbors.

It means ensuring that that a pure Cherokee born in the U.S., and a Native Hawaiian born in the U.S., get the same rights and protections as a first-generation Nigerian who was just naturalized yesterday.

It means not having to ask someone what race they are before deciding what rights they have.

Taxes

Putting the “Fun” in De-Funding NPR

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Confession: I do not listen to National Public Radio.  Except in cabs.  I have no idea why taxi drivers so universally listen to NPR, but there’s probably a very dull sociological paper in there somewhere.  Admittedly, my NPR aversion is not even particularly interesting confession material.  Outside of the beltway, I think people would be more surprised to hear that I did  listen.  If that were the case, I’d probably be besieged with questions like “Why?” and “Do you have anti-boredom superpowers?” and “Really, why?”

Now there are tons of arguments that are often put forward for the continued use of federal tax dollars to support National Public Radio.  Most of these may have been persuasive in 1958, but in the age of the information superhighway, seem almost quaint.  And the notion that government-funded broadcasting is going to be somehow more unbiased or pure is beyond laughable.  The political bias at NPR is so legendary and ingrained that conservatives don’t even bother to complain about it most of the time.

In the end, it seems like habit and tradition (as much as anything else) are what keep the tax dollars flowing to National Public Radio.  Well, that and the fact that (compared to certain other government expenditures) it doesn’t seem like such a huge expense.  (This, of course, is silly thinking, but no less powerful for that.  Of course, you’re not going to throw a dollar out the window just because it represents a comparatively small part of your income.  But who hasn’t experienced the effect of relative cost?  In other words, the effect of looking at a list of things with such high dollar amounts that something on the low end of that group seems like a bargain in comparison.  Incidentally, this also explains why I bought a pair of $250 shoes last week and felt like I got a deal.)

Anyway, if you’re interested in joining the campaign to de-fund NPR, head over conservativehq.com and sign their petition.  For me, it would be worth it just to cut down on the frequency of my tense political discussions with cab drivers.

Entertainment

The Best of Free Press

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We are a cynical culture when it comes to the media.  And with good reason.  The impartial journalist of integrity is starting to seem like a quaint, old-fashioned notion–soon to be replaced entirely by the journalist who pursues an obvious political agenda, even while loudly ridiculing the possibility of media bias.  And as for local news . . . well, all too often it seems to have devolved to weather updates, local tragedies, and an extended recap of high school sports scores.  (Ironic, most of this can be learned about more quickly by asking the lady next door.)

But there are exceptions.   And today, we’re celebrating the 9th Anniversary of one the best of them.  Yes, today, Hawaii Reporter turns 9.  (Happy Birthday!)

People want to use all the trendy buzzwords about communication in the 21st century to belittle the importance of community news, but the truth is that it’s still as important as ever.  My ability to send a message to Washington DC in a matter of nanoseconds doesn’t make them more interested or dedicated to our interests out here.  And when was the last time you saw something about Hawaii on the national news that didn’t deal with the LA Lakers training camp, a beauty pageant, or a television show?  The more things change, the more they stay the same.  And for all of this time, Hawaii Reporter has been setting the standard for an active, invested, and free community news source.  More than any other news outlet in Hawaii, they have concerned themselves with providing a voice for the regular local guy and keeping abreast of the issues that we really care about (and without the editorializing that so often derails one’s enjoyment of the Advertiser and other Hawaii newspapers.)  Let’s hope they’re around for many more anniversary celebrations.

Akaka Bill

Bar None

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The American Bar Association is currently lobbying in favor of the Akaka Bill, having sent a letter this week to every US Senator in favor of its passage.  This is much less impressive than it sounds.   Much like The Simpsons or David Lee Roth, the ABA is a shadow of its former self, living off the credibility of a name that too few have realized no longer carries any guarantee of quality or professionalism.

So when did the ABA jump the shark?  It’s hard to say . . . it’s really one of those incremental things.  Until one day you wake up and they’re applying purely political considerations to their evaluation of judicial nominees.  Among those people who follow such things, it’s common knowledge that the ABA no longer has any credibility as a neutral arbiter of constitutional interpretation or judicial ability.  Now, it functions more like a mouthpiece for the left wing of the Democratic party.  Take the aforementioned letter to the US Senate on the Akaka Bill.  One might imagine that the American Bar Association would present a neutral evaluation of the constitutionality and possible objections to the bill.  Don’t make me laugh.  In essence, it’s little more than a distillation of the same arguments presented by the pro-Akaka Lobby.  In fact, it bears such a similarity to an OHA column that one hopes the ABA didn’t spend too much money to produce such a propagandist rehash.

Of course, that’s how the game is played nowadays . . . bias disguised as neutral analysis is par for the course in modern politics.  It’s just a shame that such politics-as-usual methods are preventing a true debate on the merits of the bill and its possible impact on Hawaii.

OHA

Penned In

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Lest it be said that all I do is criticize the Office of Hawaiian Affairs, I will direct your attention today to a thought-provoking study they’ve just released on Native Hawaiians in Hawaii’s criminal justice system.  I won’t give it my unqualified seal of approval–after all, the term “disparate treatment” in the title implies a lot more than disproportionate representation and the usual barriers and difficulties encountered upon release–but for an organization that is (theoretically) dedicated to the needs and betterment of Native Hawaiians, this is a worthy topic of study and action.  (And if I may be permitted a little judgment, far more worthy of attention than some of the pet vanity project receiving OHA funding, not to mention the barrels of money poured into lobbying on the Akaka Bill.)  Among the points made by the report (from the OHA press release):

  • Of the people serving a prison term in Hawai‘i, approximately 50 percent are housed in facilities on the mainland. Of this population, about 41 percent are Native Hawaiian, the most highly-represented group. While incarcerated out of state, these people are further disconnected from their communities, families and culturally appropriate services for re-entry.
  • Native Hawaiians do not use drugs at drastically different rates from people of other races or ethnicities, but Native Hawaiians go to prison for drug offenses more often than people of other races or ethnicities.
  • Once released from prison, Native Hawaiians experience barriers that prevent them from participating in certain jobs, obtaining a drivers license, voting, continuing education, obtaining housing and keeping a family together.

I will question the assertion that Native Hawaiians don’t use drugs at different rates that the rest of the population.  Granted, studies of drug use by ethnic population are legion and far from exact, but the situation is more complex than OHA paints it in their release.  For example, at least one study has found significantly higher rates of persistent smoking and drug use among pregnant women of Hawaiians ancestry.  And anyone who has seen the devastation of the ice epidemic in the Islands wouldn’t be surprised to hear that treatment admissions for use of amphetamines and methamphetamines among Asian and Pacific Islanders far outstrips the rest of the population.   I understand and even applaud the desire of OHA to help lower the number of Native Hawaiians entering the criminal justice system, but playing games with the statistics to bolster their case helps no one.  (Except maybe, those looking for more grant money by appealing to the OHA line.)

Of course, this does lead to the question of what OHA is planning to do with the results of their study.  The easy answer is, “culturally-sensitive interventions.”  But what does that really mean?  If I’m a local woman struggling with these problems, am I going to be comforted by the notion that someone is really working on a culturally sensitive intervention to my family?  Personally, I’d be a lot happier with an approach that was proven to be effective over one that raised my ethnicity over everything else.

Akaka Bill, OHA

Stacked Deck

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As I’ve mentioned before, there are Native Hawaiians who are opposed to the Akaka Bill.  This is not such an incredible notion.  After all, there’s no requirement that one must close one’s eyes to the problems in the Bill just because of one’s ethnic heritage.

And it is equally obvious that OHA supports the Akaka Bill.  Though the word “support” drastically understates their approach.  There are professional cheerleaders that would feel that OHA goes a bit overboard in its efforts to hype up the Bill.  It’s hard to say how much of their money and staff time they are currently devoting to lobbying for passage of the Akaka Bill, but it’s obviously a central priority.  And why wouldn’t it be?  There’s plenty of debate over the far-reaching impact of the Akaka Bill in Hawaii, but one thing that is certain is that OHA will benefit greatly.  Already entrenched as the elite governing “voice” of Native Hawaiians in Hawaii, OHA is situated to be hugely influential in implementing a new Native Hawaiian government.  Take that for what it is.  I’m not saying that OHA is anything less than perfectly aboveboard and transparent.  I’m just saying that they have a lot of money and a lot of political power and are lobbying to get more.

Of course, this has made some Native Hawaiians a bit uneasy.  So uneasy, in fact, that they filed suit against OHA, challenging its expenditures in support of the Akaka Bill.  Though it would seem reasonable that Native Hawaiians would like to see a little more balance in OHA’s political machinations (especially when using money from the Trust), it seems that the Average Kimo has very little say in how OHA can spend his money.  In Day v. Apoliona, the Courts interpreted the OHA mission in a way that gives the OHA Trustees enormous leeway in how they choose to fulfill OHA’s mission . . . up to and including the Akaka lobbying efforts.  It makes you wonder what wouldn’t be allowed as part of the OHA mission.  It seems like pretty much anything that uses the word “Hawaiian” is fair game.  What’s worse is that this closes another avenue for Native Hawaiians to question OHA’s expenditures and priorities.  So much for accountability.  Perhaps it’s time that Native Hawaiians start asking some hard questions about who they trust to administer their Trust.

Economy, OHA

Writ or Wrong

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So, what ever happened to the much-ballyhooed OHA petition to force money out of the Hawaii legislature?  I remember when they filed it with the Hawaii Supreme Court.  How could I forget?  I got two separate press releases, a print newsletter article, an e-newsletter brief, and multiple links to the story as picked up (and especially endorsed) by other media outlets.  No one would let me forget it.  As I recall, the spin went something like this: the Hawaii legislature was resistant to approving the payout plan for a $200 million settlement between OHA and the Lingle Administration related to ceded land revenues, so OHA petitioned the Hawaii Supreme Court to force the legislature to pass a law regarding this pay-out  In the OHA version of the story, the reason for the Legislature’s foot-dragging is unexplained, though one is free to conclude that the Legislature is just full of culturally-insensitive money-grubbing politicians.  (Not that this is necessarily totally inaccurate, but fairness compels me to point out that our current economic and budget woes make this a bad time for the legislature to try to carve out another $200 million for OHA.)

Anyway, it turns out that the State Supreme Court has ruled on OHA’s petition for a Writ of Mandamus, though in order to learn what happened, I had to read a small column in the lower right corner of page 7 of OHA’s monthly newspaper.  No email blasts for this one, I guess.  As you may have surmised, the OHA petition was denied based on (in the article’s somewhat mendacious words) the court’s, “understanding of the technical requirements for a mandamus action.”  Allow me to translate this into plain language: The court said no, based on the fact that the OHA petition was a bit of public grandstanding with no legal merit.

As I said in my earlier entry on this issue, to me, the big problem is not whether the state owes OHA the money or how they should pay.  I just continue to be amazed at the insensitivity of the powers-that-be at OHA.  After such a difficult economic year, these kinds of stunts don’t do much to bolster the agency’s image.  And trying to obscure the evidence of their miscalculation doesn’t help much either.

Gaming, Guest Commentary

Guest Series on Tribal Gaming (Part 7)

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Today, we have the final installment of Jim Marino’s series on Indian casino gaming in California (originally published in the Santa Ynez Valley Journal).  If you’ve been following the series, you’ve seen Marino build a case for the inherent problems of tribal gaming–from its end-run around initial state opposition to the damage it can cause a community or local economy.  But perhaps you thought that the federal government would catch any truly serious abuses of the system–especially considering the power of the BIA to regulate tribal gaming in the US.  Not so fast.  As Marino lays out below, the federal government is often unwilling or unable to regulate Indian gaming–a point to ponder for anyone who puts their trust in the compromises and limits outlined by the Akaka Bill when it comes to regulation of a new Native Hawaiian government.

WHY NO FEDERAL OR STATE AGENCY ENFORCES
LAWS OR RULES WHEN IT COMES TO INDIAN CASINOS
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 27, 2010

(Part 7)

This is the concluding article in a series of articles on Indian gambling casinos in California. In recognition of the ten-year anniversary of the legalization of some of the Indian gambling in California, I thought it was an opportune time to talk about its origins, the failures and inadequacy of Congress in enacting the Indian Gaming and Regulatory Act in 1988, and the political process and corruption involved in the negotiation and execution of the 59 original compacts, negotiated in California by now deposed governor Gray Davis who received massive contributions for his 1998 election from the illegal Indian casinos operating here before March 2000.

Once Indian gambling was introduced into California I went on to discuss the impacts on communities where they are located and some of the irony of tiny recognized “tribes” of one or two people, or perhaps a handful of members, often tracing only fractional descent [if any] to a real California Native Indian Band and claiming they were sovereign governments because they have been “recognized” by bureaucrats in the Bureau of Indian Affairs. These tiny “sovereign governments” pay no taxes and provide no services or infrastructure to their “tribe”. Rather they depend on the public services and infrastructure paid for by non-Indian taxpayers and the federal government for their welfare.

I discussed how these claims of “sovereignty” were not only used to evade paying the taxes needed to fund local public services and infrastructure, but also used to evade all the many laws enacted for the protection of the public, customers in Indian casinos and businesses, their workers and the environment and quality of life in the host communities.

I discussed the false economy of Indian gambling casinos that promise “jobs” and claim to be a destination “resort” bringing in tourist dollars when, in actuality these are unprotected, transient and generally low paying “jobs” that are created. This job creation is far-outweighed by the fact that the many gamblers losing money at an Indian casino, come from nearby communities where they are not spending those discretionary dollars in non-Indian businesses. These nearby non-Indian businesses often cannot compete with an Indian casino or business that pays no taxes, operates above the laws and which cannot be sued by customers, workers (or anyone else) for their misdeeds because of an outdated court-created legal doctrine giving Indian tribes, their casinos, businesses, agents and employees complete immunity from lawsuit no matter how outrageous their actions or conduct may be.

That in addition to siphoning millions of dollars in discretionary money from gamblers drawn to these casinos from nearby communities these patrons are gambling with money they often cannot afford to lose. That produces increases in crimes of theft, robbery and embezzlement, divorce and family neglect, financial problems, foreclosures and bankruptcies, gambling addictions, substance abuse, even increased suicides that are an inevitable result of the introduction of Indian casino gambling.

I quoted Warren Buffet who astutely pointed out a few years ago that there has always been gambling activities. The problem with Indian gambling casinos is that they have made gambling much more convenient so those losing vast amounts of money do not have to travel great distances to places like Las Vegas to do so.

Finally I discussed the inherent corruption and decay in the political and moral fiber that arises with Indian gambling casinos and which is virtually impossible to measure the negative impacts of that in dollars and cents and which is equally difficult to detect because addicts, corrupt politicians and drug and alcohol abusers rarely admit to such things like gambling away food and rent money or stealing money to gamble more. I knew a foreign car dealer in this area years ago (now deceased). A client and friend who had accumulated a comfortable retirement nest egg, only to lose it all at the Chumash casino. He was a proud man who never admitted to his gambling addiction. Within the past year alone several embezzlers have admitted to stealing thousands of dollars from local employers in this area to fuel their gambling habits at the Chumash casino. Even a reported armed robber arrested in Oxnard admitted to robbery in order to have money to gamble in Indian casinos including the Chumash casino.

In last week’s article I discussed the pervasive undue influence, insidious corruption and political pay-offs inherent with Indian gambling casinos and the avarice of Sacramento politicians ready and willing to accept those gambling dollars, much of which is paid quietly and secretly, funneled and laundered through Political Action Committees and political party channels. Some received in the form of perks, free concert and sports tickets, free chips, spa treatments and free rooms as set out in a recent Los Angeles Times story about the failure of 27 California legislators to report these Indian casino “gifts.”

Besides the failure to enact enough effective laws to control and regulate Indian gambling this concluding article discusses the failure of federal, state and local government to take any meaningful steps to curtail the improper and illegal activities occurring within casino tribes in the course of the daily operations. This is true even where there are enforceable laws, thereby rendering Indian casinos operations virtually lawless.

Here I will pick up where I left off last week. Section 2710(2)(B) of the Indian Gaming and Regulatory Act of 1988 spells out the only five categories where the net proceeds of Indian gambling casinos can be spent. They are:

(i) To fund tribal government operations or programs

(ii) To provide for the general welfare of the Indian tribe and its members

(iii) To promote tribal economic development

(iv) To donate to charitable organizations; or

(v) To help fund operation of local government agencies.

As I related in the last article, the Louisiana Coushetta and the Mississippi Choctaws gave now imprisoned lobbyist Jack Abramoff and his sidekick Michael Scanlon some $85 million dollars to “distribute” to various politicians in Washington D.C. to block the Alabama Coushetta and Texas Tigua tribes from opening a casino nearby that would have competed with their casinos. Besides participating in what amounts to these fairly obvious bribery attempts, where could any Indian tribe justify a scheme like that into any of the five exclusive statutory categories of 2710(2)(B) set out above? Nothing was done to the tribal officials, their lawyers and advisors for this scheme but Abramoff wound up in prison. The whole thing was spun as “overbilling” to the tribal governments by Abramoff and Scanlon. Ultimately the identity of the many recipients of this money was concealed and buried in a perfunctory “investigation” conducted by the Senate Indian Affairs Committee.

Three years ago Butch Crawford from Plymouth California and I met with the solicitors for the Bureau of Indian Affairs in their Washington offices. He presented the investigators with a copy of an application for more than $900,000 in grants monies for claimed improvements to be made to Indian fee lands in Amador County. Those lands were actually owned by a group of individual Miwok Indians from the same tribe but a different faction of the tribe. The application had been submitted by the newly elected tribal chairman who was at the time, the spokesperson for the other break away dissident group or faction of the same tribe. The original smaller faction consisting of these individuals and families actually owned the 40-acre parcel of land in fee divided amongst them individually. It was not reservation or trust lands it was privately owned. The $900,000 grant application was submitted by the larger dissident faction of the tribe. Those members owned no land at all, yet the application they submitted was for a grant for “physical improvements to tribal land.” At or about the same time this dissident faction, now constituting the majority of tribal members, was desirous of building a gambling casino. To facilitate that effort they made application to the B.I.A. to bring land near Plymouth Cal., [on which they held an option], into federal trust status to render it eligible for gambling operations. To fit into one of the exceptions allowing gambling on lands acquired by an Indian tribe after 1988 they asserted in that application that they were entitled to do so under the IGRA exception allowing for gambling on land acquired by a tribe after 1988, if they were a “landless” tribe. So for purposes of obtaining a large federal grant for “improvements” on non-existent tribal land, they succeeded in obtaining nearly a million dollars in federal grant money. At the same time and for purposes of trying to qualify to bring the Plymouth land into trust for a gambling casino they stated in their federal application they were landless! The investigative lawyers we spoke with at B.I.A. were not interested in how a group of Indians received a $900,000 grant for land improvements at the same time they applied to buy land and bring it into trust under a legal exception only available for tribes that had no land! The response of the B.I.A. investigative lawyers was that half their 60 or so investigators were still working on the Abramoff case and they didn’t have the manpower or time. This in the face of the fact the Abramoff case had already been concluded and nothing has happened in that case in the three years since that meeting.

In another more local instance, we had a meeting with an agent of the Federal Bureau of Investigation concerning the use of casino credit cards by Chumash government officials. Records indicated charges had been made, among other things, for a $10,000 “diamond ring, breast implants, a funeral,” luxury travel and other clearly inappropriate charges that were made, amounting to tens of thousands of dollars.

He informed us that unless it involved a theft of over $75,000 they would not even open a case file. I pointed out that if a robber went into a bank, pulled a gun and robbed the teller of $1,500 they would put 5 agents on the case and if it happened a few more times that same robber would make the 10 most wanted list. Nothing was ever done by the F.B.I. or anyone else about these improper credit card charges.

The current Chumash tribal chairman Vince Armenta went into the casino a few years ago and sat at a blackjack table with his son and some friends. He demanded chips from the dealer for he and his friends to play “on the house.” When the dealer offered only some one dollar and five dollar chips, he demanded “the greenies” [$25 chips], this was done despite the fact these actions would normally constitute a federal felony under Title 18 entitled “theft from an Indian tribe.” When angry tribal members reported this incident to the National Indian Gaming Commission (N.I.G.C.) investigator in Sacramento he said it was up to the tribal Gaming Committee to deal with it and basically shined the incident off. That tribal gaming committee was chaired at the time by the tribal Chairman’s brother, Raul Armenta and the committee later suspended the blackjack dealer for a week.

On another occasion, the cardroom manager at the time, Tony Armenta, was instructing a gambler who had won over $10,000 dollars playing blackjack, how he could avoid the reporting requirements for any cash transaction over $10,000, required by the United States Banking Act. He informed him he could do so by splitting the winnings with his girlfriend, bringing them below the $10,000 threshold, the casino security officer, called to the cardroom at the time, informed Mr. Armenta that was illegal. When nothing was done that same officer, a former police sergeant, reported the incident to the I.R.S. The agent did nothing except inform the Chumash tribal government, who then disciplined the security officer for reporting this incident to the I.R.S.

Even now when drug trafficking at the Chumash casino is rampant, the County Sheriff is doing little about it, although federal law provides that local and state law enforcement authorities have jurisdiction over all crimes committed on Indian lands. It is the Sheriff’s duty to police all Indian lands, not the security guards employed by the tribe. A few years ago the N.I.G.C. had promulgated a set of rules called the Minimum Internal Control Standards [M.I.C.S.]. The Colorado River Indian tribes filed suit and challenged these rules on the grounds the I.G.R.A. gave no authority to the N.I.G.C. to police class III, full scale casino gambling. Their jurisdiction only extended to the licensing of class II Bingo halls. The 10th Circuit agreed and those M.I.C.S. were held unenforceable.

The only authority left to enforce any rules and regulations other than criminal laws, was through the tribal state compacts. In California this has proven to be a standing joke. Neither the Governor, the Attorney General, or the inept and ineffective State Gambling Control Commission [which at last report had only 3 investigators], has ever done anything. Nor have effective rules been adopted or any enforcement of the compacts been undertaken by any state or federal agency.

A few years ago I testified in front of that Gambling Control Commission at the request of Cheryl Schmit [Stand Up for California] concerning a number of illegal and questionable practices occurring at Indian casinos including the Chumash casino. During a recess the Commission chairman and legal counsel, Herb Boltz, approached me and asked that I document the incidents testified to and send it to him, which I did in a 12-page letter complete with several exhibits and attachments. I did that within a week of that hearing. I never heard another word, not even a thank you for the effort.

Not long ago the Chumash casino brought in a roulette wheel. This is a clear violation of state law because Art. 4 section 19 of the amended Constitution only authorizes slot machines and house-banked card games conducted by Indian tribes by compact and on Indian lands. Use of roulette wheels are also a violation of the compact. One local group took a picture of it and sent it with a letter demanding enforcement of the law to the Gambling Control Commission. After several unanswered letters the State Gambling Control Commission finally wrote a letter to the Chumash tribal government that December, telling them they would be down to inspect the casino in March and suggested they remove the illegal roulette wheel before then.

Several tribes, apparently aware no enforcement action would ever be taken by their friends in Sacramento, brought in craps tables. Craps games are also illegal for the same reasons as roulette. The offending tribes asserted, apparently to the satisfaction of state regulators, that it really wasn’t craps after all because instead of rolling dice on the craps table they had two stacks of six cards each numbered 1 through 6 and the player would turn over one card from each stack constituting the numbers “rolled.”

At a meeting two years ago with George Skibine in Washington D.C. [at the time he was head of Indian Gaming at the B.I.A.] he is now acting commissioner of the N.I.G.C. We discussed a number of issues concerning illegal activities occurring in Indian casinos including tribes operating gambling casinos on ineligible lands. In the course of the discussion he postulated the following incredible and illogical policy which probably best explains why the federal government is doing nothing about all of the illegal activities involved in Indian casino gambling.

Chairman Skibine said this: Our [meaning the N.I.G.C. and B.I.A. and Department of Interior] authority and jurisdiction over Indian gaming comes from the Indian Gaming and Regulatory Act. If any Indian tribe is operating a gaming facility that is not on eligible Indian lands or otherwise not complying with federal gaming laws then it is outside of the provisions of the I.G.R.A. which requires such gambling to be on eligible Indian land in order to be authorized and sanctioned by that Act.

Therefore it is beyond our authority and jurisdiction to do anything about it because if it is outside of the Act it is outside of our jurisdiction. If Indian gaming not being conducted on eligible “Indian Lands” pursuant to the I.G.R.A. then it is up to the State in which it is occurring to enforce State laws against illegal gambling, if that gambling activity is against that state’s laws. This “hot potato” game is thus played when the state claims that enforcement is the responsibility of these federal agencies. The federal government then says it is the responsibility of the state or, as in the Armenta blackjack case, claim that it is a matter for the tribal government to resolve.

Likewise local law enforcement often passes the buck to the state or federal government, who passes the buck back to the state or perhaps to the tribal government. So the answer to the original question, why no one is enforcing the laws that do apply and which are enforceable, it is because no one is willing to do so.

The reasons they are not willing to do so are complex but generally fall into a few recognizable categories. The first is that it is politically incorrect and unpopular to take any action against “Indians” even if they are not really Indians at all, because the public has been indoctrinated about historic injustices to “Indians” centuries ago. Politicians don’t want to evoke the “race card.” The second reason is political corruption plain and simple. The casino Indians are funneling hundreds of thousands of dollars into the pockets of politicians and the bureaucrats who are responsible to regulate and police these tribal casinos and businesses and they are routinely ignoring numerous violations. The third reason is that many of the federal laws are poorly written, lack adequate specific enforcement provisions and directions and the tribal-state compacts that are in place are also poorly written. Even where they contain enforceable provisions, they are never enforced, like the 59 Gray Davis compacts in California. The last reason is that many of the federal agencies that should be taking enforcement actions in these areas are dominated by Indians, or part Indians, even wannabe Indians, or those who are simply “enrolled” members of some tribe someplace, and they ignore the law, stonewall inquiries and investigations, and exercise biased interpretations of the laws and rules that they have been given wide discretion over by enabling statutes, thereby thwarting any effective enforcement. As I mentioned in a previous article, where one would expect the media to expose this scandalous scenario, they don’t and they have haven’t done so, because they are afraid of offending their biggest and most profitable advertisers, Indian gambling casinos.

This concludes the series on Indian gambling in California, meant to be educational, because the more people who know and understand what has happened and is still happening, the more likely people will call for positive changes and perhaps elect ethical and responsible representatives and not politicians or corrupt bureaucrats holding out their hand for casino cash and perks to get elected or re-elected or appointed to the offices that they are supposed to hold to protect and fairly and impartially serve the 38 million people of California.

Akaka Bill, Guest Commentary

Guest Series on Tribal Gaming (Part 6)

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Today, our sixth installment of Jim Marino’s series of articles on tribal casino gaming in California (originally published in the Santa Ynez Valley Journal) looks at the corruption in California that followed the explosion of Indian casinos.  “Tribes” of one person . . . lobbying slush funds . . . it’s all there, proving that money, politics, gaming, and corruption are natural bedfellows.  Those who oppose the introduction of casino gaming to their communities are often wrongly characterized as puritans.  True, opposition to gambling may be a factor for some, but there’s so much more to the issue than just the issue of gambling.  As this article makes clear, no one should walk blindly into creating Indian gaming in their community without knowing more about the social impact of it–from crime rates to the powerful influence of gaming profits on local government.  It’s something to keep in mind as we consider the far reaching implications of the Akaka Bill.  (And recall that–even though the current version of the Bill does not allow for Native Hawaiian casinos, there was a time when such casinos weren’t permitted in California too.)

CORRUPTION OF CALIFORNIA’S GOVERNMENT
BY INDIAN GAMBLING DOLLARS
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 20, 2010

(Part 6)

In a 5-part series, I outlined what led up to the advent of the Indian Gaming and Regulatory Act of 1988. How Congress engaged in a feeble attempt to wean Indian tribes from total federal dependence and at the same time clarify the 1987 U.S. Supreme Court decision in Cabazon Tribe versus California. How Congress completely failed to take into account the complex and confusing body of Indian law, including the court-created doctrine of Indian tribal immunity from lawsuit.

Then I discussed the tortured history of how Indian gambling found its way into California illegally and the attempts to legalize it by corrupt politicians and Gov. Gray Davis, who executed 59 tribal-state compacts for casinos with several tiny bands of questionable Indian descent, and who had no legally eligible lands on which to build and operate a gambling casino and even allow questionable “tribes” to purchase land near perceived gambling markets in a practice that came to be known as “reservation shopping.”

These often ridiculous policies and events led to the rapid expansion of Indian gambling casinos all over California being thrust into many communities who didn’t want them and which provided no benefit despite the creation of “jobs.” That was because of the many negative impacts of such a casino and the demands placed on public services and infrastructure, which the Indian casinos and businesses used regularly while paying no taxes.

This continuing article is to demonstrate how pervasive the corruption from Indian gambling dollars has become. Although there are many examples, this limited space only allows for the recounting of some of the typical and more outrageous examples of it.

As set out in the earlier series, Gov. Davis owed his election to the massive contributions from Indian casinos operating illegally in California at the time and the massive campaign instituted by those tribes, many of which had only a handful of members, and fractional and often questionable claims to being “Indian” at all. A campaign to enact a tribal initiative to amend the California Government Code known as Proposition 5 was circulated in an attempt to legalize the illegal Indian gambling casinos operating in California at the time.

To repay this largesse, once elected, Gov. Davis negotiated 59 tribal-state compacts through the summer of 1999 with these illegal existing casino tribes and many other questionable groups, several with no eligible land upon which gambling would be allowed under federal law. These compacts had been negotiated behind closed doors under the authority of Proposition 5 enacted in November 1998 at the same time Davis was elected.

These secretive negotiations took place behind closed doors, away from all of the major public forces that usually shape laws, such as city and county governments, unions, law enforcement, women’s rights groups, environmental protection groups, local and consumer rights groups and lawyers’ organizations. Even though the California Supreme Court had struck down Proposition 5 in August 1999, undaunted, Gov. Davis executed these give-away “sweetheart” compacts in September 1999 and had the democratically controlled legislature approve them in October 1999. To overcome the fact there was no statutory authority to execute and approve those compacts after the August 1999 Supreme Court decision, Gov. Davis and the Legislature put a “legislative initiative” on the March 2000 ballot called Proposition 1A. Although this initiative amended the State Constitution to authorize the Governor to negotiate future tribal-state compacts, it was, in effect, an initiative designed to retroactively ratify the 59 compacts signed earlier without lawful authority and without informing the voters.

As if this corrupted set of events was not enough, it was but the opening bell in a bruising round of corrupt practices that followed at both the state and federal level.

Proposition 1A established two funds: The Revenue Sharing Trust Fund and the Special Distribution Fund. The former was a fund established by the state into which those tribes with casinos would pay money. That fund would then make annual payments to “Indian tribes” in California that did not have casinos, or had casinos with fewer than 300 slot machines. Each “tribe” would receive an annual distribution of $1,100,000 over and above the hundreds of thousands they receive in federal welfare and grant monies.

Some of these “tribes” had only one or two members, like the Valley Miwoks and the Buena Vista MeWuks and Mary Ann Martin’s Augustine Band of Cahuilla Mission Indians. She was the only member of that “tribe” and not only entitled to receive a $1.1 million dollar distribution but also hundreds of thousands of dollars each year in federal welfare and grant money for “tribal government,” “tribal economic development,” “tribal housing,” and so forth. Many other bands or tribes had perhaps a handful of members.

The first thing that happened once Indian gambling became openly legal was that these casino tribes began contributing monies large and small to various politicians at the state and local level.

Many of you may recall how Jack Abramoff, the now imprisoned and disgraced lobbyist, got $80 million from one “poor” Indian tribe in Alabama with orders to spread it around Washington politicians, in order to block another Indian tribe’s attempt to open a competing casino. When the scandal finally broke, the Indian tribal governments and liberal media castigated Abramoff and his partner Scanlon for his activities, but carefully concealed the fact it was the Indian tribal governments, lawyers and lobbyists that furnished the tribal ‘pay-off” monies and that Abramoff was just the bag man delivering the tribal gambling monies to the many corrupt politicians he knew and who willingly took it.

One tribal government operating a gambling casino near Palm Springs gave Abramoff $10 million and then later refused to disclose what it was for, even to the tribal membership. State Senator Jim Battin from Palm Springs received tens of thousands of dollars in Indian casino contributions deposited into committees mostly called “The Friends of Jim Battin.” These committees were very generous in handing out tens of thousands of those casino dollars to other Sacramento politicians, lending a new meaning to the expression “it pays to have friends.” When he finally got in trouble with the state F.P.P.C. and they filed complaints against him, he and these Indian casinos set up the “Jim Battin Defense Fund.”

Senator Battin, (now termed out), was a champion of Indian gambling causes of all kinds. A year or two ago, the former chairman of the Indian Gaming Commission, Phillip Hogen, had been trying to change the federal rules defining more clearly what a slot machine was. Casino Indians and slot machine manufacturers had designed machines they called Bingo machines. Bingo under the IGRA is a class II gambling game that can be operated by a tribe without needing a tribal-state compact. Such a tribal-state compact is required for class III casino gambling, including the use of slot machines.

The compact requirement is the only way states can require tribes to pay money for all of the public services and infrastructure they use at the taxpayers’ expense. The compacts are also the way states can impose rules and regulations on gambling tribes. Commissioner Hogen had been trying to change the rules for years and reclassify these “Bingo machines” as facsimile slot machines subject to state control and the tribal-state compact requirements.

Sen. Battin wrote a letter, at the time, to Commissioner Hogen urging him not to change the rule, and he had 20 other Senators sign it. So, here we have fully one-half of our state’s Senators opposing a federal rule change that would be a direct benefit to the State of California, the state that they are supposed to be representing.

As I wrote in an article last year for this Valley Journal titled “Pay to Play,” this Indian casino corruption is rampant. Locally the Chumash and other tribes pushed for a bill early on in the gambling casino saga. They urged adoption of a bill in the Legislature that required local communities to come hat in hand for monies from the special distribution fund that were paid into it by gambling tribes. This money was originally intended to mitigate the negative impacts of casinos on local communities. That bill established local committees, controlled by the very Indian tribes causing the negative impacts who would then either approve or disprove any requests for grants by local governments to be made from the monies that were originally in that fund to mitigate those impacts.

On another occasion when the IRS refused to allow Indian tribes to issue tax-free bonds for gambling casino construction, arguing that such bonds were for public works projects, the tribes went to their friends in Sacramento – and introduced a bill to have the State of California issue tax-free bonds on their behalf.

When the gambling tribes wanted to eliminate any competition, they went to Sacramento again and had a bill introduced to place a long moratorium on the issuance of any more private non-Indian card room licenses that is still in effect. In fact, they just got their buddies in the Legislature to extend it.

When they wanted to eliminate competition from charities conducting Bingo games for charitable purposes, they got their Legislative friends to pass a bill banning the use of these Bingo machines by charities. You remember, the same machines they argued to the federal government were not slot machines at all, but then when they wanted to block their use by charities in California, they claimed that the state should not allow this use because it infringed on their exclusive right to operate “slot machines,” as provided for in the tribal-state compacts and in Art. 4, section 19 of the State Constitution.

Even locally, you may recall, when the Chumash wanted to rename San Marcos Pass/Highway 154 “The Chumash Highway,” they went to another friend of the Indian casino tribes, Assemblyman Coto, who has taken thousand of dollars from casino tribes and is now doing so for a run for the State Senate. Assemblyman Coto represents a San Jose District some 300 miles from here.

After receiving a generous political contribution of several thousand dollars from the Chumash, he introduced a resolution to rename Highway 154 as the Chumash Highway.

This was done without any local notice or knowledge and/or a resolution from the Santa Barbara County Board of Supervisors, which resolution was required by a section of the California Streets and Highways Code. It was then shepherded quietly through the legislature by a number of elected officials in record time, many of whom had received thousands of dollars from the Chumash and tens of thousands from other casino tribes. The community only learned of the resolution when the tribe issued a press release after the fact.

In another recent episode of attempted corrupt influence, in order to further their ambitious acquisition and development plans, the Chumash gave State Sen. Florez a $15,000 “contribution,” and within a month or two he introduced a bill to relieve the Chumash (and ostensibly other Indian tribes) from complying with the limitations contained in the Williamson Preservation Act, apparently knowing they were going to purchase the 1,400-acre former Fess Parker property and other properties still restricted by Williamson Act limitations. Fortunately, that bill was soundly rejected by the Local Government Affairs Committee, with the chairman, State Sen. Cox stating, “You wouldn’t be here, Sen. Florez, if it wasn’t for the Chumash.”

This corruption from gambling dollars is bi-partisan. Two years ago, when four tribes wanted to expand the number of slot machines in their casinos, they not only spent well over $70 million promoting the amended compacts on the statewide ballot, they also gave the State Republican party $5 million. Not coincidentally, the Republican Party then spent about the same amount of money supporting those ballot propositions which were numbered 34-38 and ultimately were approved.

In addition, Indian casino tribes spent more than 35 million to oppose race track efforts to obtain slot machines at their tracks in propositions 93-95 on the ballot in that same election. Such slot machines would have competed with tribal casinos, having exclusive rights to have slot machines.

What is perhaps the most ironic, if not astounding aspect of all this corruption from these Indian gambling casinos and their political contributions, is the fact that these political pay-offs are not legal by federal law. Title 25 section 2710 of the I.G.R.A. provides as follows:

2710(2)(B) net revenues from any tribal gaming are not to be used for purposes other than –

(i) To fund tribal government operations or programs

(ii) To provide for the general welfare of the Indian tribe and its members

(iii) To promote tribal economic development

(iv) To donate to charitable organizations; or

(v) To help fund operation of local government agencies.

The obvious question is into which one of these categories could political contributions and pay-offs possibly fit? How, for example, could an Indian tribe justify putting money into a fund, like the Jim Battin Defense Fund, whose purpose is to defend a politician from state allegations of illegal acts and practices constituting violations of the Fair Political Practices laws?

When I put that very question to former Chairman of the NIGC Phillip Hogen, he could not answer it. That is most likely because such contributions do not fit into any one of these five categories of permissible uses.

That brings me to the last point and that is, where are the provisions to enforce the federal laws and state laws that should be regulating Indian gambling casinos but are not? I thought I could conclude this series in 5 installments but that has proven impossible.

So next time, the final installment: “Why no one enforces the laws intended to limit and regulate Indian gambling.”


Gaming

Guest Series on Tribal Gaming (Part 5)

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Today’s entry in our continuing series on Tribal Gaming in California by Jim Marino looks at the false economy of Indian casinos.  For the state, that is.  And any other residents who aren’t fortunate enough to have a profit stake in said casinos.  You know, this has always been one of my particular stumbling blocks.  After all, when one is dazzled by the glitter of Vegas or the sheer amount of cash changing hands in a casino, it’s hard to imagine that they can actually have a negative economic impact on the community.  But, as Marino explains (in this piece originally published in the Santa Ynez Valley Journal), there’s a lot more to the economy of tribal gaming than meets the eye . . .

THE FALSE ECONOMICS OF INDIAN GAMBLING CASINOS
AND ITS CORRUPTION OF THE STATE’S GOVERNMENT
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 13, 2010

(Part 5)

Last week I wrote about the many negative impacts Indian casinos imposed on the host communities. I wrote about the underhanded way the 59 tribal compacts were negotiated secretly and executed and then the clandestine ratification of them by the passage of the “Legislative Initiative” called Proposition 1A, months after former Gov. Grey Davis signed them and the Legislature approved them illegally with no Constitutional authority to do so.

I also wrote about the worthless content of these “sweetheart” compacts and how they provided no benefit to the state or local communities, except the massive political contributions these casino tribes now make regularly to the many politicians in the hip pocket of their gambling casino benefactors.

These casinos were thrust into communities under the claim the federal Indian Gambling Act [I.G.R.A.] and the state compacts made them a “done deal” and the local communities had nothing to say about it.

But if they didn’t oppose them, these local communities might get some of the gambling dollars in lieu of the many taxes local and state government could not collect. If the local government did not cooperate, on the other hand, they would get no money and often would be accused of being anti-Indian racists and insensitive to the plight of “Indians” in America. After wielding this political stick, these gambling investors and tribes would then wave the carrot, telling local government they would create “jobs” and thus be a great benefit to the community.

This week I’ll discuss the false nature of these claims and the negative economic impacts on every community that are easily identifiable and those that are more difficult to measure. Lastly, I will discuss the manner in which a literal handful of casino Indians and their gambling cartel have totally corrupted the State of California and its 38 million citizens.

One does not have to be an economist to understand the false economy of gambling casinos in general. The vast sums of money lost there in the name of entertainment are often monies lost by people who cannot afford to lose that money. Slot machines are the favorite vehicle to lose money, accounting for about 85 percent of the profits raked in by all casinos.

The difference between a casino in Nevada and an Indian casino is stark: The gambling casinos in Nevada pay taxes; Indian casinos do not. The Nevada casinos are strictly regulated and policed. Indian casinos are not. Nevada casinos require minimum fair rates of return for slot machines. Indian casinos do not and are free to change out the random operating chips in these slot machines whenever they want.

The tremendous costs of providing public services like police, fire, schools, jails, hospitals, public works, social services, etc., used regularly by Indian casinos and related businesses, and the demands placed on infrastructure like roads, bridges, public buildings, and other facilities, are all paid for by the non-Indian taxpayers because these tribal businesses are exempt from property taxes, bed taxes, sales taxes, personal property taxes, corporate taxes and state income taxes among others.

As an example, the Chumash casino grossing between $250 and $300 million a year in gambling losses, is able to evade approximately $20 million in combined taxes annually. The Chumash put sales tax as an item on bills and receipts and in an amount identical to what the state requires for all others, in order to make customers think the tribe pays the state tax monies. But that money does not go to state and local governments; it is kept by the tribe who recently allocated some $3 million from that fund to buy property in Solvang.

Similarly, the per capita profit distributions to each of the 152 tribal members amounts to about a half-million dollars a year to each tribal member. The state income taxes on that amount of money would be almost $9 million a year that the state does not get.

The amount of money that trickles down into the local economy from the salaries of employees and the costs of goods and services is nowhere near enough to make up for lost tax revenues or to pay the tribe’s fair share of the costs to the community for increased demands on public services and infrastructure. Neither are the occasional gifts tribes like the Chumash make usually to the police or fire agencies which gifts are often less than the $2 million the tribe still receives in federal welfare and grant monies every year.

The 59 Grey Davis compacts had a provision requiring the signatory tribes make a good-faith effort to comply with the California Environmental Quality Act [CEQA]. That provision provided that if tribal compliance was unsatisfactory then the Governor could demand a renegotiation of that provision. Tribal compliance was woefully inadequate, so in March 2003 Gov. Davis sent all the tribes a timely notice of required renegotiation. Not long after that, Gov. Davis was recalled for his inept leadership and Gov. Schwarzenegger was elected to replace him. During that campaign, Gov. Schwarzenegger assured the public he would make the casino tribes pay their fair share of the costs of providing public services and infrastructure to them at public expense, describing these casinos as “ripping the State off.” He also stood on the steps of the Capital, waving a broom and assuring the public he was going to sweep the corruption out of Sacramento. Once elected, he did neither.

In fact, he championed five expanded amendments a year or so later, creating compacts allowing those affected tribes to double and triple the number of slot machines and in doing so, making exaggerated claims as to how much money that would bring the state, it hasn’t come close to the amount claimed. In fact a recent court case in the 9th Circuit has held these tribes don’t have to pay any more money, going back to original giveaway compacts Gray Davis negotiated to pay back the tribes for his election and these five tribes can keep the extra slot machines and the revenue from them.

Shortly after Davis was recalled and just before his term was to end prematurely, he withdrew the notice to tribes demanding a renegotiation of the environmental protection clause in the compacts apparently out of pure spite because the public had ousted him from office and leaving environmental protection for all of the casino communities up to the “good-faith efforts” of the casino tribes in their neighborhood.

So despite the initial bluster and pontificating, Schwarzenegger did nothing to improve the false economics of Indian casinos. Most impartial studies, that is those that are not bought and paid for by Indian casinos, indicate that once the construction phase of a casino is finished, that it costs the host community $3.50 for every dollar the casino brings in.

Another economic myth is that by calling the casino a “resort” it will somehow become a destination location for tourists. This myth is debunked by several studies showing the vast majority of gamblers come from a one- to two-hour drive or fewer than 50 miles and come to gamble only.

Therefore, an Indian casino essentially siphons dollars from the immediate surroundings. Those are dollars and local monies not spent in other non-Indian businesses and entertainment venues where such discretionary income would otherwise be spent. Non-Indian businesses nearby often cannot compete with an Indian business that pays no taxes, is exempt from state and local laws, rules and regulations workers compensation and public liability insurance and cannot be sued for any of its misdeeds, no matter how outrageous they may be.

There are also the intangible and subtle negative impacts which are hard to place a monetary value upon. For example gambling addiction, substance abuse, family neglect, financial problems, bankruptcy and foreclosures, increased crimes of theft and embezzlement even increased suicides. Generally, chronic gamblers and addicts are not willing to stand up and admit they have gambled away food and rent money on the foolish belief they might win something in an unregulated, unpoliced and uninspected Indian casino, making monetary assessment of these negative impacts difficult to calculate.

Lastly, how can one measure the negative impacts of the corruption gambling dollars has brought to government and the impossibility of measuring in dollars the loss of integrity and honesty in state and local governments.

So widespread is this corruption I have written a concluding piece for next week’s Valley Journal.

It is more than clear at this point that Indian casinos are a false economy that creates far more detrimental and negative impacts on every community, and those costs and negative impacts are not offset by the creation of a few largely low-paying, unprotected and transient jobs in Indian casinos and businesses, nor by the purchases of goods and services. Nor do they come close to offsetting the millions in lost tax revenues needed to pay for all the public services and infrastructure used regularly by these casino tribes and their businesses.

NEXT TIME: THE CORRUPTION OF CALIFORNIA’S GOVERNMENT BY INDIAN GAMBLING DOLLARS AND THE LACK OF ANY EFFECTIVE POLICING AND SUPERVISION OVER ALL INDIAN GAMBLING CASINOS.