Today’s entry in our ongoing series by Jim Marino on the development of tribal gaming in California deals with the immediate aftermath of the passage of Proposition 1A–the ballot measure that was a de facto legalization of tribal casino gambling in California. For Hawaiians, this is an interesting study in how special interests can lobby and maneuver their way to their ends, regardless of popular sentiment on the issue. Not to point any fingers or anything, but my experience in Hawaii politics doesn’t fill me with confidence that our own state’s politicians would be immune to the kind of machinations that were so successful in bringing gaming to California. Also of interest, a short discussion of the impact of tribal sovereign immunity (which protects Indian tribes from certain lawsuits) and the societal impact of casinos.
INDIAN CASINO GAMBLING IN CALIFORNIA
AFTER PASSAGE OF PROPOSITION 1A
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 6, 2010
As I discussed in last week’s article, Proposition 5 was struck down as unconstitutional by the California Supreme Court in August 1999. Undaunted by that fact, two months later in October 1999, Gov. Davis and the Legislature approved the 59 tribal-state compacts Davis negotiated in secret and without proper public input.
Then, to overcome the fact that these 59 compacts had been executed and approved by the Legislature without lawful authority, Gov. Davis and the Legislature put a second “Legislative Initiative” on the ballot in March 2000 called Proposition 1A. Although that Proposition was written as a Constitutional amendment to authorize the Governor to negotiate future compacts with Indian tribes with casinos in California, it was, in effect, intended to ratify the 59 illegally signed compacts approved 5 or 6 months earlier – and to do so without informing the voters, who approved Proposition 1A, of the real purposes of that initiative.
Just as soon as Proposition 1A was approved by voters in March 2000, the 59 compacts were submitted en masse to the Secretary of the Interior, who approved all of them without checking either the legitimacy of the tribes who signed them or the eligibility for gambling on the land that was identified as the sites for these 59 or more casinos.
As a result, several faux tribes who did not and still do not have eligible lands for any class II or class III gambling, as defined by the IGRA 25 USC section 2703 and 2719, were given class III gambling casino compacts by Gov. Davis.
As set out in an earlier installment, one of the most glaring problems created by the I.G.R.A. was its failure to provide for local input and control over gambling casinos that were thrust into their midst by the I.G.R.A. and by these tribal-state compacts.
Many of these 59 tribes, then armed with the Gray Davis “give-away” tribal-state compacts, began constructing casinos and acquiring lands to construct large mega-casinos. In some cases, they undertook to expand their existing gambling casinos far beyond the small and modest casino operations that existed in communities on existing Indian lands, and that were pointed to by the casino tribes during the campaigns for Proposition 5, and then later Proposition 1A as evidence of their need to continue these modest enterprises.
It became immediately apparent what a mistake it was to have approved Proposition 1A. The worthless compacts negotiated by Gov. Davis paid nothing to the state. These Indian casinos and businesses began placing tremendous demands on public services and infrastructure, yet they were immune from the taxes that pay for those things. Therefore, the non-Indian taxpayer had to shoulder that cost and received nothing from the casino profits and still don’t.
The provisions in these compacts requiring that the tribes would either participate in the State’s Workers Compensation system or establish an equivalent system, complete with impartial independent tribunals to protect their employees, was immediately ignored. These compacting tribes, neither participated in the State system nor adopted a comparable system, leaving injured employees with no effective recourse at all. The State and the various state agencies like the Attorney General and the Gambling Control Commission made no effort at all to force the casino tribes to abide by any compact terms, particularly those terms that were actually enforceable at law. The compacts have a provision 11, which allowed the State to sue a tribe to terminate the gambling compact for a violation of its terms but this has never been done. Injured citizens, workers or communities could not sue upon these compacts because the only rights to sue in these compacts for enforcement of the terms that were set out therein were limited to disputes between the State and the affected tribe. Again local governments, communities and non-Indian citizens had no say so. The term and condition, contained in these 59 virtually identical compacts, requiring protections for injured, damaged or cheated customers was likewise ignored by these casino tribes. Instead when customers sought relief for injuries or other tort damages, violations of law or breaches of contract, the tribes uniformly denied such claims and informed customers they could not sue the tribe, its casino or any other tribal business because of the court-created legal immunity doctrine (discussed in earlier segments of this series).
When anyone did sue them, the tribes would successfully move the court to dismiss the lawsuits and all claims, on the basis the tribe was immune from lawsuit. If injured employees or customers tried to sue the State or others as some did, based on the tribal-state compact provisions that were included, ostensibly for their protection, the State and tribes claimed the compacts created no “third-party rights” i.e., no rights for anyone but the State or the affected tribe. In one case, three injured employees I represented sued the State and the Governor instead of the Chumash tribe and casino, asserting the complete failure of the State to enforce the compact provisions, which were included to protect them. The State’s attorneys then removed the case from State court to federal court, asserting the case raised a “federal question” even though Worker’s Compensation law is a matter of state law and was the subject of a term set out in the compa ct.
Once removed to federal court, the State’s Attorney General then asserted that the Indian tribes were necessary or indispensable parties to the action, and moved the federal court to dismiss the case on the basis the Indian tribe or tribes, who were necessary or “indispensable parties,” could not be joined in any case because they were immune from lawsuit. Plaintiffs would have to join the tribe as a party, so this Catch-22 argument went, and the plaintiffs could not do so because the tribe and its businesses had immunity from all lawsuits. The case was thus dismissed and affirmed by a three-judge panel of the 9th Circuit Court of Appeals. The U.S. Supreme Court refused to grant a writ of certiorari to hear the case.
People who dealt with or entered into contracts with these casino tribes and businesses found out that if the tribe stiffed them for the bill, they could not sue, again based on the court-created doctrine of legal immunity for Indian tribes and their businesses discussed in last week’s article.
This use of the tribal legal immunity doctrine to evade legal responsibility is one of the most flagrant and outrageous impacts of Indian gambling and business expansion. This doctrine is exacerbated by the fact that these tribes, their casinos and businesses, can also operate outside of all state and local laws (except alcohol-control law). Laws that were enacted over many years to protect customers, workers, the environment and quality of life.
They are able to evade these laws under the silly fiction that these tiny bands or tribes of fractional Indian descendants (some with only one or two members) are “sovereign governmental entities” of their own with governmental status, all just because bureaucrats at the Bureau of Indian Affairs have “recognized” or officially “acknowledged” them as a tribe, band or community of Indians.
As discussed earlier, before conferring the right to unregulated casino gambling on these “Indians,” neither the State of California nor the federal government made any effort to determine if the tribes who were given gambling compacts were legitimate tribes or whether the land on which they constructed casinos, or were seeking to do so, were legitimate and were located on legally eligible “Indian Lands” as defined under federal law [25 USC 2703 or 2719]. To this day, more than half of the 59 tribal-state compacts and Indian casinos operating in California, were and are probably still, operating illegally.
One of the common methods that gambling promoters and investors, using an “Indian tribe” as a front to introduce gambling casinos into a community, is the promise of “jobs.” Often they target communities that are economically depressed because they know local government, unions, Chambers of Commerce, businesses and others often jump at the chance for anything that creates “jobs.”
This Indian gambling casino explosion was so sudden and extensive, that a few years ago a developer ran a full-page ad in the Palm Springs newspaper advertising that he had investors willing to bankroll “Indian casinos” and tribal recognition and listing a toll-free number. At the request of Arizona Sen. John McCain, David Crosby, testifying as a witness, put that advertisement in the Congressional record during a hearing of an Indian Affairs Sub-Committee being held 4 years ago, specifically to review Indian gambling policies on local communities.
Sen. McCain promised those of us attending that hearing, several times over, that the IGRA had to be amended in order to provide for more local control over Indian gambling casinos. Despite those hollow promises, nothing has been done yet, years later. As evidenced by that ad, the stampede to turn California into another gambling Mecca like Nevada got so bad that promoters and gambling investors were literally trolling for “tribes.”
Because most local governments, elected officials and their attorneys knew virtually nothing about Indian Law, gambling law or the false economics of gambling casinos, they did not know how to deal with the flood of Indian casinos the State had improperly authorized. They were easily convinced by tribes and investors that locating an Indian casino in their community was a “done deal,” and they had nothing to say about it because it was all a matter of federal law and furthermore, it would be good for the community economy anyway. The casino tribe might even agree to pay them something in lieu of the many taxes they don’t pay if they cooperated, but if the local government didn’t play ball and support the casino proposal, they would get nothing.
As a result of all this subtle blackmail, gambling promoters and investors, along with ersatz Indian tribes have been able to locate casinos in numerous communities even though they are not wanted, produce no benefit and only create a host of problems as well as place untold demands and costs on all government and public services and all infra-structure without paying the taxes needed to fund them.
In talking with many people who voted in favor of Proposition 1A, every single person I spoke with expressed the fact that they believed they were voting at the time, to allow the existing Indian tribes in California to simply retain the low-key gambling operations they had at the time and solely on their own lands. No one expressed to me any understanding that a vote in favor of that Proposition 1A was authority for dozens of tiny Indian tribes made up of fractional or questionable Indian descendants to be able to build huge Las Vegas style mega-casinos anywhere they wanted to. In fact, the many people I spoke with indicated they also expected any Indian gambling casino to remain on their existing Indian lands.
What has in fact occurred is that those existing tiny and modest casinos have been replaced with glitzy giant casinos measured in hundreds of thousands of square feet and thousands of gambling devices.
There are casinos that have ruined entire residential neighborhoods like the San Manuel Casino rising above single-family homes in a housing tract, which homes then lost most of their value because of the nearby gambling operations. Neighbors complained about noise, traffic, drunkenness, open drug trafficking and even having to pick up beer cans and used hypodermic needles from their front lawns.
Virtually every casino community has now experienced increases in crime ranging from shoot-outs, murder, theft, robbery, embezzlement, gang activity, substance abuse and drug trafficking, drunk driving, auto accidents and fatalities, gambling addictions, credit problems and bankruptcies, family neglect, even suicides, and the list goes on. Recently, Highway 154 ominously being called “the Chumash Highway” has experienced several auto accident fatalities, not to mention the officially unexplained suicide jumpers from the Cold Springs Canyon bridge. Only a few weeks ago, a gang shoot-out erupted amongst the slot machines at the Jackson Rancheria casino located in Amador County.
Not long ago, Sheriffs deputies were involved in a running gun battle outside the Soboba Casino where at least two suspects, who were tribal members, were shot and killed and the Sheriff refused to respond to calls there anymore. One deputy Sheriff working a special overtime detail at the Chumash Casino in Santa Ynez arrested 36 drug violators in only six weeks time, most of them felonies involving methamphetamines being used, possessed and sold around the casino.
In another case, an elderly couple were walking in the parking lot of another Southern California Indian casino near San Bernardino and a thief whizzed by on a motorcycle and snatched the woman’s purse in the parking lot. The motorcycle grazed their car during the theft. They reported the incident to casino security guards, expecting that the crime would be reported to the Sheriff’s Department. They found out later, when they made an insurance claim for the damage to their car, this incident was never reported to the police. This is but another of the many negative impacts of Indian casinos, the fact that the primary duty of Indian casino security staff is to conceal any negative incidents that occur or insinuate the false claim that some kind of “sovereign status” permits them to deal with criminal acts when it does not.
Another problem is the failure and refusal of many local media outlets to report the crime, corruption and negative incidents occurring regularly at Indian casinos because those casinos are the biggest television, radio and newspaper advertisers they have. So the so-called “free press” has in effect, been co-opted by the fear of offending these gambling casinos who are their best advertising customers.
The increased demands on public service and infrastructure created by Indian gambling casinos are immeasurable and are detrimental to the surrounding areas near these unregulated casinos, which have been or are being located in, or near, highly populated areas.
NEXT TIME (PART 5): THE FALSE ECONOMICS OF INDIAN GAMBLING CASINOS AND ITS CORRUPTION OF THE STATE’S GOVERNMENT
This article was originally published in the Santa Ynez Valley Journal.