Category Archives: Guest Commentary

Akaka Bill, Guest Commentary, Hawaii, Hawaii Legislature, Sovereignty

A Lack of Resolution

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Over on Hawaii Reporter (which I swear doesn’t do anything to get all these mentions here except produce a broader and more fearless variety of opinions than the vast majority of other Hawaii news sources), Ken Conklin has an interesting take on the most recent effort of the Hawaii Legislature to rewrite history.  The article is worth reading in its entirety (not least of all for the impassioned discussion of the ultimate effect of these endless muddled legislative exercises in pandering), but here are the highlights:

House Concurrent Resolution 107 (HCR107) in the Hawaii legislature would establish “a joint legislative investigating committee to investigate the status of two executive agreements entered into in 1893 between United States President Grover Cleveland and Queen Liliuokalani of the Hawaiian Kingdom, called the Liliuokalani assignment and the agreement of restoration.”

The investigating committee would be empowered to “Issue subpoenas requiring the attendance and testimony of the witnesses and subpoenas duces tecum requiring the production of books, documents, records, papers, or other evidence in any matter pending before the joint investigating committee; … Administer oaths and affirmations to witnesses at hearings of the joint investigating committee; Report or certify instances of contempt as provided in section 21—14, Hawaii Revised Statutes …”

….

The purpose of such an investigation is not merely to do academic research on an obscure historical question from 118 years ago. The purposes are to claim that the U.S. had an obligation to restore Liliuokalani to the throne; and to claim that the obligation of the President of the United States continues to this day to restore the Kingdom of Hawaii to its former status as an independent nation.

Throughout my nineteen years in Hawaii I have seen the legislature repeatedly pass bills and resolutions encouraging some sort of race-based Hawaiian political entity, or sovereign independence. Year after year: Let’s pay for an election of delegates to a Native Hawaiian convention, and years of their travel expenses for meetings, so they can choose the tribal concept or write a constitution for an independent nation; let’s pass a resolution in 2002 asking the United Nations to investigate the legitimacy of Hawaii’s admission to statehood in 1959; let’s support the Akaka bill in Congress; let’s proclaim April 30 of every year a permanent holiday called “Hawaiian Restoration Day”; let’s create a state-recognized tribe with a state-only version of the Akaka bill; let’s transfer $200 Million in land or money to OHA; etc. etc. ad nauseum.

Why? All these legislative actions have accomplished is to stir up racial animosity, feelings of entitlement, etc. Hopes are raised for some people who want land and money from the rest of us, and then those hopes come crashing down. Over and over again. Remember the Aloha Airlines plane that had a huge hole ripped out of its side in mid-flight, due to metal fatigue caused by too many takeoffs and landings? That’s what resolutions like this are doing to all Hawaii’s people, and to ethnic Hawaiians in particular.

NB: Be sure to read the whole article to see the main points of Mr. Conklin’s testimony against the Resolution.

Guest Commentary

No Reservations: The Case for Dismantling the Indian Bureaucracy

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By Carl Horowitz

This column was originally published in Townhall.

If ever a federal agency were a candidate for termination, the Bureau of Indian Affairs (BIA) would make for a good choice. The BIA combines patronage and ethnic separatism into a single package, wasting sizable tax dollars in the process. Yet few in Congress have the stomach for a fight with supporters of the bureau, now with a roughly $2.7 billion annual budget. That’s not the only Indian agency in need of serious downsizing.

The Bureau of Indian Affairs actually goes back nearly two centuries. Secretary of War John Calhoun virtually single-handedly created the BIA in 1824 to oversee treaty negotiations, conduct trade, establish budgets, and operate schools. In 1849, Congress moved the bureau from the War Department to the new Interior Department, where it since has been housed. In recent decades, the agency has become a conduit through which tribal leaders and their allies can accrue money and influence. It’s a variation on what public choice economists call “regulatory capture,” in which firms – especially large ones – effectively dictate policies and practices to the regulator, so as to maximize competitive advantage.

The current system is a by-product of periodic warfare beginning in the early-17th century and lasting through most of the 19th century. There are now 565 federally-recognized Indian (including Alaskan) tribes in this land of ours, representing nearly two million persons. Indian territories comprise some 55 million surface acres. Crucially, a tribe operates under a federal grant of sovereign status. Taken as a whole, Indian tribes are a loose confederacy of mini-nations, each with its own elected tribal government overseeing courts, schools, job training, health care, infrastructure development, and on due occasion, casinos.

Within their respective reservations, tribal leaders enjoy enormous power. Too often, they and employees use this power as a cover for corruption. Recent cases abound. At the Fort Peck Indian Reservation in northeastern Montana, for example, six office employees – two federal and four tribal – pleaded guilty last year to embezzling roughly $400,000 from a tribal credit program. In Oklahoma, Dawena Pappan, former secretary-treasurer for the Tonkawa tribe, pleaded guilty in federal court that year to stealing hundreds of thousands of dollars in casino proceeds with help from other Tonkawa officers.

Want more? Emily Anne Sauppity, secretary-treasurer of the Apache of Oklahoma, was found guilty by a federal jury of embezzling $46,068 in oil and gas royalty taxes, though her actual thefts amounted to nearly $108,000. Evelyn James, former president of the San Juan Southern Paiute Tribe in Arizona pleaded guilty to theft and money-laundering of nearly $300,000 in Justice Department community policing funds. And about a dozen persons, including two former tribal officials, pleaded guilty or were found guilty in Oklahoma City federal court to embezzling about $750,000 from the Lucky Star Casinos, operated by the Cheyenne and Arapaho of Oklahoma.

It isn’t just Bureau of Indian Affairs funds that have made their way into the pockets of crooks. In mid-2008, for example, the Government Accountability Office (GAO) issued a report revealing that the Indian Health Service (IHS), part of the Department of Health and Human Services, during fiscal years 2004-07 “lost” about 5,000 pieces of medical equipment with an acquisition value of $15.8 million. In a follow-up evaluation audit released in June 2009, the GAO noted: “IHS continues to lose property at an alarming rate, reporting lost or stolen property with an acquisition value of about $3.5 million in a little over a year…” Missing items included a $170,000 ultrasound unit, a $100,795 mammography X-ray machine, and various dental chairs and diagnostic monitors.

Far bigger piles of loot, however, can be made legally. Class-action lawsuits are one route. Over the past few months, Indian plaintiffs and their attorneys managed to coax massive settlements from the federal government in two longstanding unrelated civil suits. Last October, lawyers for tens of thousands of Indians corralled a $760 million agreement from the U.S. Department of Agriculture as compensation for credit discrimination against Native American farmers and ranchers. Known as Keepseagle v. Vilsack and originally filed by a Sioux couple in North Dakota in 1999 as a copycat of the Pigford (i.e., “black farmer”) lawsuit, the case did not uncover any specific acts of willful discrimination. In the other lawsuit, Congress in November created a $3.4 billion trust fund to be shared by an estimated 300,000 to 500,000 Indians, pursuant to the settlement in Cobell v. Salazar, in which the plaintiffs had alleged that the Interior Department for decades had squandered royalties due individual Indians for extracted oil, gas, timber and other natural resources from tribal lands. The details of the case suggest a well-planned and executed plaintiff shakedown.

An even bigger street-legal money maker is casino gambling. In 1988, Congress enacted and President Reagan signed the Indian Gaming Regulatory Act (IGRA), which recognized “the right of Indian tribes in the United States to establish gambling and gaming facilities on their reservations as long as the states in which they are located have some form of legalized gambling.” This legislation effectively conferred monopoly rights upon a tribe to operate a casino on its property, subject to regulation by the National Indian Gaming Commission. These enterprises are immune from state regulation. Moreover, they are exempt from federal income taxation, though state governments may tax a portion of slot machine revenues.

Currently, some 220 recognized Native American tribes operate a combined roughly 400 Class I, II and III (casinos fit under the latter category) gaming facilities. Given the seemingly limitless capacity of Americans to place wagers, this has meant big bucks. The Foxwoods Resort Casino in southeastern Connecticut, owned by the Mashantucket Western Pequot Tribal Nation, thanks to several expansions, has become the largest hotel-casino complex in the U.S. Featuring 7,200 slot machines and 380 table games, the luxury facility takes in roughly $1.5 billion annually from combined gaming and non-gaming sources. Right down the road is the nation’s second largest casino venue, the Mohegan Sun Resort & Casino. Owned by the Mohegan tribe, this high-end getaway destination features 300,000 square feet of gaming space within three casinos. The Pechanga Resort and Casino in Temecula, California isn’t exactly small time either, containing 200,000 square feet of gaming space and 3,400 slot machines.

All told, Indian gaming in 2009 took in $26.5 billion in revenues. This represents an explosive increase from $100 million in 1988, the year of IGRA passage.

Someone out there is getting rich. And it isn’t just tribal leaders and outside investors. Tribes operate with a grant of monopoly privilege. Remaining shielded from competition requires gaining access to federal and state legislators to vote the right way. That’s where lobbyists come in. The 2006 final report of the Senate Indian Affairs Committee, chaired by John McCain, R-Ariz., revealed that Jack Abramoff, though an extreme example (hence, the superficially satisfying cliché, “disgraced lobbyist Jack Abramoff”), was part of a larger “come and get it” political culture. A former BIA official, Wayne Smith, grandson of a Sioux chief, explained to CBS News at the time: “I had lobbyists…tell me that ‘It was our time, this is our time to make some money in the Indian game arena. We worked hard to get this president elected, and we expect to be rewarded for it.’” What matters here is that influence-buying is a product of tribal sovereignty and monopoly privilege. “Lobbyists” – love them or hate them – will always be around to service an Indian client’s political needs under this scenario.

If all this theft and influence-peddling amounted to nothing more than a few anecdotes, it would be easy to minimize their importance. Such behavior can be found in any type of organization, whether government agencies, corporations, unions, philanthropies or churches. Yet these cases, in fact, represent a fraction of widespread criminal and otherwise ethically-challenged activity. It is hard to avoid the conclusion that the system of tribal governance, with an able assist from Washington, is dysfunctional.

Bureaucratic client capture offers a partial explanation for this state of affairs. The ultimate problem is the setting aside of territory and public funds to accommodate Indian “nations.” Indian identity politics, at bottom, is about irredentism – the condition of two or more ethnic, linguistic or religious groups claiming sovereignty over the same territory. Many Indians have a deep attachment to ancient lands they believe were stolen by the white man. The federal government can’t bottle up their sense of moral entitlement. But it doesn’t have to subsidize it either.

Despite our best efforts, separatism and corruption appear to have become more pronounced over the past few decades. The late Sixties and early Seventies witnessed the aggressive rise of Indian identity politics, culminating in passage by Congress of the Indian Self-Determination and Educational Assistance Act (1975) and the Indian Child Welfare Act (1978). Lawmakers further encouraged decentralization of authority in 1991 with the Tribal Self-Governance Demonstration Project Act. With larger budgets and fewer strings attached, opportunities for corruption have increased, especially as the BIA itself has come to be heavily staffed by Indian activists.

Ending the network of incestuous relationships and accompanying corruption requires that Congress do the unthinkable: Abolish the Bureau of Indian Affairs, the Indian Health Service and all other federal agencies that serve Native American interests. These agencies have outlived whatever usefulness they had. Lawmakers also ought to end the practice of formal tribal recognition. Why should Cheyenne, Choctaw, Mohawk or Sioux sovereign “nations” exist within our borders, any more than Dutch, Irish, Italian or Polish ethnic ones? It is one thing for members of a particular tribe to live in close proximity, preferring their own company. It is entirely another for Americans as a whole to be coerced into subsidizing this tribal confederacy, an arrangement that is not only costly, but also corrosive of national identity.

Back in the late 1940s, Congress set up a commission on executive branch reorganization, chaired by former President Herbert Hoover. Among its hundreds of recommendations, the Hoover Commission concluded that assimilation of Indians into the mainstream of American society must be a top priority. More than six decades later, our nation remains a long way from realizing that goal. Dismantling the Indian bureaucracy would be a major step in that direction.

Carl F. Horowitz is director of the Organized Labor Accountability Project of the National Legal and Policy Center, a Townhall.com Gold Partner organization dedicated to promoting ethics in American public life.

Akaka Bill, Guest Commentary

Aloha for All, 1840; No Segregation, No Discrimination

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On Decemeber 22, 2010, Hawaii’s own Senator Akaka addressed the US Senate to proclaim his continuing support of the so-called Akaka bill which expired without action as the senate closed for the 2010 year.

With all respect to the senator, the Akaka bill should never again see the light of day.  Americans nationwide have objected to the efforts of Hawaii politicians to divide our nation on the basis of race, and it should never have been seriously considered, much less enacted into federal law as Akaka desires.  Our nation’s people should just remain joined and integrated under our governing documents in a society defined by friendship, fellowship, respect for each worthy individual, patriotism and common purpose.  Most particularly, none of the people of the United States or of any of the 50 states should ever live under law that segregates or  discriminates  based on bloodlines.

How terrible is the irony that Akaka supporters try to use racial preferences as the solution to the “wrong” they say was caused by racial discrimination.  Of course, this an unconscionable misrepresentation of history–and unworthy of Hawaii’s tradition as well.  The Kingdom of Hawaii was many things, for better or worse, but one thing it was definitely not was a state based on racial divisions and distinctions.  But those who stand to profit by sewing racial discord in the islands would like to rewrite history and create a culture of division to replace our spirit of Aloha.

That spirit is one recognized the world over as one uniquely Hawaiian:  “Aloha for All – – Hawaii’s gift to the world rooted in the first constitution of the kingdom of Hawaii in the year 1840.”  The preamble to that constitution starts with this sentence “God has made of one blood all races of people to dwell upon this earth in unity and blessedness.”  That is the translation used by the US Commission on Civil Rights (which also opposed the Akaka Bill as unconstitutional and antithetical to the mission of promoting civil rights).  If only we could turn away from the racial politics that have exploded around the Akaka Bill and better reflect the sentiment of that Preamble.

Guest Commentary, Hawaii

What Are the ‘Returned Lands’ of Hawaii?

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By Jere Krischel

In an article titled “What are the ‘Ceded Lands’ of Hawaii?” written for Honolulu Civil Beat on 11/08/2010, Professor Van Dyke makes some critical errors in his assessment of both the history and the law.  While acknowledging the Supreme Court’s rejection of the “Apology Resolution,” he still relies on it for his “legal” justification.  While quoting from the Admissions Act of 1959, he omits a key clause that differentiates between “should” and “can.”  But most problematically, Van Dyke intimates that “Native Hawaiians” were somehow legally separate during the Kingdom period in Hawaii, and that the public lands that were returned to the State of Hawaii have some sort of racial lien on them.

The first red flag we should recognize in Van Dyke’s writing is the use of quotes around the term “illegal.”  In order for something to be illegal, we must have several things – a concrete body of law which was violated, a judiciary to arbitrate the dispute, and finally, a finding after a trial presenting both sides of the issue.  Without these necessary requirements, we are substituting personal opinion for legal fact.  Although PL103-150 (aka “The Apology Resolution”) uses the term “illegal” several times in describing the Hawaiian Revolution, it does not identify any specific law which was violated, any judiciary with jurisdiction over the Hawaiian Revolution of 1893, nor any trial which was conducted to determine guilt or innocence.

So can the “Apology Resolution” unilaterally declare the Hawaiian Revolution of 1893 illegal?  Absolutely not.  Ex post facto laws are explicitly forbidden by the U.S. Constitution -  one cannot simply pass a law which declares someone’s prior actions illegal.  Neither does the legislature have the authority to declare someone guilty as a matter of legal fact.  In recognition of this and the basic principles of statutory construction, the Supreme Court on March 31, 2009 firmly established that the “Apology Resolution” had no legally binding effect, stating that the “‘whereas’ clauses cannot bear the weight that the lower court placed on them.”

The second major mistake Van Dyke makes is a subtle, but important distinction between something that is necessary, and something that is allowable.  Van Dyke states that the 1959 Admissions Act demanded that “revenues from these lands should be used” for native Hawaiians.  This is a misread of the Admissions Act, which provided limits on what the revenues could be used for, not mandates.  The specific text of the Admissions Act reads, “such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes…their use for any other object shall constitute a breach of trust…”

This means that the State of Hawaii could spend every penny on public education, and not a dime on the development of farm and home ownership.  Or, it could decide to spend everything on public improvements and provisions for public use of the lands, while not funding anything else.  Any combination of “one or more” would be legal according to the Admissions Act.  The only two things that would be a breach of trust would be to spend none of the revenue at all, or spend any of the revenue on a non-permissible use, such as supporting private schools, or the development of automobile ownership.

With his words Van Dyke echoes a misinterpretation of the Admissions Act that OHA has been intentionally cultivating for many years, using it to justify a 20% share of revenue from the public lands of the State of Hawaii to native Hawaiians (although OHA specifically ignores the blood quantum definition used in the Admissions Act).  By their rationale, exactly 20% should be allocated to farm and home ownership, exactly 20% should be allocated to public schools, exactly 20% should be allocated for public improvements, and the last 20% should be allocated to make public lands available for public use.  But the Admissions Act, as plainly read, has no such mandate whatsoever.

The most insidious misrepresentation Van Dyke makes, however, is regarding the citizenry of the Kingdom of Hawaii, and the chain of ownership of the ‘ceded’ lands.

From its inception, the Kingdom of Hawaii was a multi-racial nation.  High Chief Olohana, otherwise known as John Young, fought beside Kamehameha the Great to establish the unified Kingdom, and was the grandfather of Queen Emma herself.  The first constitution of the Kingdom of Hawaii in 1840 stated boldly that all people were “of one blood,” and established equality between all races over 100 years before the modern civil rights movement in the United States.  Characterizing the Crown Lands or Government Lands of the Kingdom of Hawaii as being dedicated to only one race is a desecration of both the spirit and the laws of the Kingdom from which they came.

With his synopsis, Van Dyke perpetuates the fiction that the ‘Ceded Lands’ are still ‘ceded.’  But the truth is, they are now more properly called  the ‘Returned Lands.’  The Crown Lands and Government Lands of the Kingdom of Hawaii were consolidated into the Public Lands of the Republic of Hawaii in 1894.  These public lands (about 1.8 million acres) became the ‘Ceded Lands’ in 1898, when the Republic ceded them to the United States on the condition that the revenues and proceeds, except for the parts used for the civil, military or naval purposes of the U.S., “shall be used solely for the benefit of the inhabitants of the Hawaiian Islands.”  Van Dyke acknowledges that this created a “special trust”, but he carefully omits that the ‘Ceded Lands’ Trust was established for all the inhabitants of the Hawaiian Islands, not just for those of a specific ancestry.

When the Territory of Hawaii was established in 1900 by the Organic Act, it reiterated that the public lands were acquired by the United States in “absolute fee” under the Annexation Act, free from “all claim of any nature whatsoever.”  These ‘Ceded Lands’ finally became the ‘Returned Lands’, when the lands were returned to the public of the State of Hawaii as per the Admissions Act of 1959.  The circle was finally complete – what had originally been the public lands of all the people of the Kingdom of Hawaii, became the public lands of all the people of the State of Hawaii.

Placing exclusive racial claims upon the ‘Returned Lands’ is an abuse of the trust placed in the State of Hawaii, and a violation of our Constitutional guarantees of equal protection.  No matter how many times these false claims are repeated, and no matter how many myths are invented to justify such race-based distinctions, they will never become true, and will never be justified.  All of the inhabitants of Hawaii, regardless of ancestry, have a powerful claim to the ‘Returned Lands,’ as clearly demanded by the Organic Act and the legacy of the multi-racial Kingdom of Hawaii.

Akaka Bill, Guest Commentary

Why Would a Native Hawaiian Oppose the Akaka Bill?

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Actually, there are plenty of good reasons for Native Hawaiians to oppose the Akaka Bill, from believing that it’s not good for Hawaii to mistrusting how it handles the creation of the new Hawaiian government.  But the reasons don’t have to be specific to the bill itself.  There is also a principled approach that questions how it affects the Hawaiian spirit of ohana.  Consider this explanation given to Grassroot Institute President Richard Rowland by a Native Hawaiian who is concerned that the Akaka Bill forces Native Hawaiians to turn their backs on spouses, in-laws, and friends:

In addition, they would also be turning their backs on many others with whom they might have long and close ties that bind such as:  hanai children or parents, aunties and uncle, classmates, teachers, students, coaches, business partners, co-workers, faithful employees, squadron mates,  church parishioners, canoe club members, swim club members, fellow professionals and on and on.

The Akaka bill allows only those with at least one ancestor indigenous to the Hawaiian islands to participate in the process of creating the new government; but it leaves it up to the new Native Hawaiian governing entity to decide the criteria for its own citizenship.  Since the Akaka bill is intended to protect the existing race-based entitlements, it is a given that the new government will not have an Equal Protection clause.  That means the new government will be free to discriminate on the basis of race, even against some of its own citizens.

Hard to see why any Hawaiian would want to join.
Akaka Bill, Guest Commentary

E Pluribus–What?

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By Jere Krischel

E pluribus unum.  Present on the Great Seal of the United States since 1782, its meaning is both simple and profound – “Out of many, one.”  Originally it may have been but a literal acknowledgement of the Union of the thirteen colonies, but as the years have gone by it has become a philosophical premise which we apply as a standard of morality.  It is today a clarion call for the respect of diversity, an acknowledgement that while we may have our differences, we are one people, under one law.  Each citizen of the United States takes for granted that regardless of their racial background, cultural background, or family history, they are endowed by their Creator, the same unalienable rights as all their other fellow citizens.

The startling truth, however, is that we have a lot further to go before our laws and our country are aligned with this noble motto.  Just as the institution of slavery stood as a stain against the noble ideals upon which our constitution was based, today we live under a government which has yet to make good on the motto, ‘E Pluribus Unum.’  While our constitution expressly prohibits denying people equal treatment under the law with the fourteenth amendment, our government has often both willfully and woefully ignored this basic guarantee.

The race-based quota system of affirmative action is perhaps the most visible example of this violation of constitutional rights (with a low point in Grutter v. Bollinger, and some progress recently with Ricci v. DeStefano).  The idea of treating people differently because of their racial background is anathema to the concept of civil rights, and the “fighting fire with fire” philosophy of fixing racial discrimination by using more racial discrimination is hypocrisy at its worst.  However, an even more egregious violation of the principle of equal treatment exists in current Indian law, and an even greater danger is presented to us with the Akaka Bill that has been proposed in various forms for the past ten years.

As it stands today, we have three distinct classes of citizenry in the United States – tribal leaders, tribal members, and non-tribal citizens.  Tribal leaders stand generally above the law, with no constitutional checks on their power.  The Supreme Court in its Nevada v. Hicks (2001) case stated, “it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes.”  This exemption from the basic protections afforded to other citizens places tribal members in the most disparaged class of the three, leaving them at the whim of their tribal governments.  While under tribal jurisdiction, non-tribal citizens fare just as poorly, but they at least have the wherewithal to escape from the reservation, while tribal members face the threat of tribal expulsion, confiscation of the lands their family may have lived on for generations, and even loss of custody of their own children.

Today, there are 565 federally recognized tribes which may freely violate the constitutional rights of their members.  The Shinnecock Nation, backed by Gateway Casino Resorts, with only 1,292 members, became number 565 on October 1, 2010, after all appeals to their recognition (including objections from other already established casino tribes) were exhausted.  The Shinnecock, and the other 564 federally recognized tribes, are granted exemptions from state and local jurisdictions, creating a special class of citizenry not subject to the rights and laws of their peers.  These federally recognized tribes also have access to lucrative federal assistance programs (regardless of any tribal casino income), funded by non-tribal taxpayers and controlled exclusively by tribal leaders.

So instead of ‘E Pluribus Unum,’ the truth is that today we live in a country governed by ‘E Pluribus Pluribus,’ with a constant, yet often overlooked, division of people into different strata of citizenship.  The Akaka Bill serves as yet another continuation of that deplorable trend, promising to “reorganize” everyone with the smallest drop of native Hawaiian blood into an Indian tribe, with all the equal protection problems that come with it.  Specifically constructed to protect current race-based programs targeted at native Hawaiians, the Akaka Bill is a headlong dive into the constitutional loophole provided by Indian Law, and promises to divide the State of Hawaii in the most wrongheaded manner imaginable.

From a purely self-interested point of view, it’s no wonder that future Akaka Tribe leaders want to get in on the Indian Tribe game – between the casino money, and the federal dollars appropriated (regardless of whether or not a tribe is economically self-sufficient), even the most reasonable and rational person might be sorely tempted.  An investigation into recent native Hawaiian grants handed out by the government, at http://4hawaiiansonly.com, has already identified over 766 grants totaling over $273 million dollars.  While only a drop in the bucket compared to the more than 4 billion spent on Indian tribes every year (the BIA is unable to give any exact number), there is no question that we’re talking a lot of money, and a lot of temptation.

It will be a long road for our country, to repair the self-inflicted wounds of ‘E Pluribus Pluribus.’  Ending the second and third class citizenship status of existing Tribal Law, and preventing the enactment of further injustices like the Akaka Bill will not be easy – the forces arrayed against a nation of one people, under one law, have resources common citizens simply cannot match.  But in the end, no matter how long or difficult the struggle, the United States will one day live up to its noble ideals of its founding – E Pluribus Unum.

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 Commentary

Guest Series on Tribal Gaming (Part 4)

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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

(Part 4)

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.

Gaming, Guest Commentary

Guest Series on Tribal Gaming (Part 2)

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Today, we are continuing our guest series on the history of Indian gaming in California by Jim Marino.  Today’s excerpt (originally published in the Santa Ynez Valley Journal)  looks more specifically at how we arrived at the legal definition of “Indian”–at least as far as the federal government and Indian gaming regulation is concerned.  As accustomed as we generally are to the notion of an intrusive and exacting federal bureaucracy, it is shocking to learn exactly how loosely this term is interpreted.   Other items of note in today’s excerpt is the way that land is defined (or acquired) as “tribal land” for the purposes of casino construction and the liability loopholes that Indian casinos are able to operate under.

THE INDIAN GAMING AND REGULATORY
ACT OF 1988: A WELL INTENDED LAW GONE AWRY
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
April 22, 2010

(Part 2)

Last week I wrote about the history of Indian gambling and the 1987 landmark case of Cabazon Tribe v. California leading up to the hasty enactment of the IGRA.

The first mistake Congress made in trying to clarify for the states the impact of the Supreme Court in the Cabazon case was in the name of the Act itself. To me, games are checkers, chess, basketball, etc. The gambling industry came up with the name change, calling gambling games “Gaming.” They apparently hoped to shed the inherent stigma associated with gambling activities and transform gambling into what they classify as recreational entertainment.

If it were really a “game” then the visitors, who nearly always lose, would have the worst record of anyone competing in any “game” against the home team. Not only the fact that the odds of winning anything are so poor, it is hard to imagine that anyone could describe losing large amounts of money as “entertainment.” What Congress failed to realize, or perhaps intentionally ignored, was that when they enacted the IGRA, there was already in place a long and confusing set of laws, rules and case decisions loosely called “Indian Law.” Some of the obscure, often irrational and unintelligible provisions of this body of law would shock most reasonable people. The advent of Indian gambling, however, exposed this body of existing laws to widespread public scrutiny, particularly when the extent and application of these principals, are now being applied to the non-Indian public who frequent the expanding numbers of Indian casinos and other Indian businesses.

One would think the first simple question that Congress would have asked before enacting this controversial legislation is, “Who is an Indian?” More particularly before giving any Indian tribe the right to operate an essentially unregulated gambling casino, Congress would have also needed to understand “What is an Indian tribe?”

In the former case, an Indian is anyone who claims to be part Indian or who is a member of any self-styled “Indian tribe,” or in the eyes of the federal government, an Indian is whoever a recognized Indian tribe decides is an Indian. Once one of these often questionable tribes attains official acknowledgement status, the BIA never questions tribal government’s assertion or representations about who is a tribal member, who isn’t a member or who they decide to kick out as no longer members: a practice euphemistically described as “disenrollment.” Until relatively recently, there were not even any objective criteria to be applied by the BIA in making a determination to acknowledge or recognize who constitutes an “Indian tribe.” Ever since the adoption of at least some rules and objective criteria, as set out in 25 CFR part 83, those rules and criteria are, never the less, often ignored. So in a nutshell, an Indian tribe is whoever the federal government says is an Indian tribe.

That is why there are now more than 600 Indian tribes in this country, many with only a handful of members, some with only one or two and many with highly questionable, if any, fractional ancestry linking them to a real Indian. Since the advent of federal programs providing grant monies to “Indian tribes” and particularly since the advent of Indian gambling, there have been many more groups claiming to be Indians and seeking federal acknowledgment as a “tribe” or “band” of Indians.

In fact, Indian tribes like the so-called “Mashantucket Pequot Indians,” which started with “Skip” Hayward and a couple of relatives, parlayed a faux tribal recognition, into the billion-dollar-a-year “Foxwoods Casino” in Ledyard, Conn. They have set as an enrollment criteria, a 1/32nd Indian ancestry or blood quantum and it is no wonder that these tribal members literally came out of the woodwork and the tribal enrollment now exceeds 700. Having that minute a fraction of Indian ancestry, however, did not prevent them from owning and operating that billion-dollar-a-year gambling casino at Foxwoods, all done with the sanction of the Bureau of Indian Affairs and the National Indian Gaming Commission, just because there are and were no objective standards applied.

So there is no surprise that hundreds heretofore never heard of “Indians” and “Indian tribes,” are lining up for recognition and the right to own and operate lucrative gambling casinos, and hiring lobbyists and paying off politicians to grease the wheels of recognition in Washington.

Lobbyists like the now disgraced and imprisoned Jack Abramoff, whose assistance was instrumental in obtaining recent recognition for the Mashpee Wampanoag is now seeking to build a casino on or near Cape Cod, Mass. This is a recent federally recognized Indian tribe, which was determined by a federal judge to lack the very criteria for recognition needed, in a case decided during the 1970s, when the tribe tried to take over acres of land around Mashpee, Mass., including the massive multi-million dollar New Seabury country club and resort development.

Not only did Congress fail to clarify what constitutes an “Indian tribe” and who is an Indian when they enacted the IGRA, they also failed to clearly define what lands are the “Indian Lands” required by that Act, and which are the lands a tribe is required to have before they can build, own and operate any gambling casino.

This failure has opened the door to real Indian tribes as well as highly questionable tribes alike, to buy or acquire fee land usually, with money furnished by non-Indian gambling investors, and then claim it is eligible “Indian Lands” on which they can build and operate a gambling casino and can do so wherever they believe there is a lucrative non-Indian gambling market to be had in the area. This has fostered a practice now called “reservation shopping!”

Not only did Congress enact the IGRA without addressing these important issues and weaknesses in federal Indian policy, regarding who is an Indian, what constitutes an Indian tribe and what constitutes “Indian Lands” that are eligible for gambling casinos, Congress failed to address another important legal doctrine. A legal anomaly created by various federal court decisions giving Indian tribes, their officers, agents, casinos and other businesses, total immunity from lawsuit no matter how outrageous their conduct may be.

On top of that, with a few exceptions, Indian tribes and their businesses operate without complying with almost all state and local laws enacted for the protection of all customers, consumers, workers and the nearby communities based on the legal and political fiction they are somehow a sovereign political governmental entity. These numerous laws were enacted by virtually every state to protect workers and customers, the environment and quality of life for adjacent communities everywhere. However, they do not apply to Indian casinos and businesses. Finally, Indian tribes can evade all of the many state and local taxes, which are clearly needed to fund all the infrastructure and public services that these Indian tribes and their casinos and businesses uses regularly at the rest of the non-Indian taxpayer expense.

This common law [court-made] legal immunity doctrine barring injured and damaged persons from suing an Indian tribe, its casinos and business was described in 1998 U.S. Supreme Court case as having been created, “almost by accident” by the earlier Turner case decided in 1921 and was described by the Court as a legal anachronism in need of elimination. In that case, [Kiowa Tribe of Oklahoma versus Manufacturing Technologies, Inc.] after concluding this doctrine should be eliminated in this day and age where the Indian tribes own and operate lucrative gambling casinos, hotels, restaurants, amusement parks, marinas, shopping centers and other businesses – all open to the public and employing non-Indians – a majority of the court nevertheless concluded that it was up to Congress to fix legal anomaly created by a succession of cases decided by liberal federal judges in court decisions decided over the past 70 years.

Even though that Kiowa case was decided 12 years ago in 1998, and despite the fact the court informed Congress could simply amend the Foreign Sovereign Immunity Act, which federal law provides that any foreign country or business operating in the United States must obey all the same laws, pay all the same taxes and can be sued just like everyone else can be for their misconduct.

Because Congress has not acted, then to this day, customers who patronize any Indian casino or business, or anyone who works in an Indian casino and business, have no legal or Constitutional rights. In other words, they patronize these casinos and businesses at their own risk. As one Florida judge said, while reluctantly dismissing a woman’s valid lawsuit for injuries caused by an Indian tribe in their casino, “The law should require a large sign at the entrance to all Indian casinos and businesses warning people that are entering at their own risk.” When one thinks of the hundreds of state and local laws defining and regulating many things necessary for the public welfare and safety, one has to wonder what Congress was thinking, or perhaps not thinking, by passing a federal law allowing Indian tribes to own and operate gambling casinos and a wide variety of businesses that are not subject to state and local laws, are not taxable for all public services and infrastructure they use regularly and are immune from lawsuits by anyone who has been damaged or injured by misconduct of the tribe, its agents and employees or businesses.

Lastly when Congress enacted the IGRA, allowing some tiny federally acknowledged “Indian tribes” to make tens of millions in profits from gambling losses, they did nothing to amend the many existing laws that provide millions of dollars in tax monies via grants and welfare funds set aside for Indians in general. Consequently, these fractional “Indian” descendants and often questionable “tribes” making hundreds of millions of dollars in casino profits, still get millions in federal grant monies and welfare aid while thousands of real Native American Indians still live on remote reservations in conditions of abject poverty and get nothing more that the pittance they live on.

Clearly enacted by Congress with good intentions, but it is a law done badly awry.

NEXT TIME: “THE RESULTS OF THE I.G.R.A. THE PASSAGE OF PROPOSTITION 1A AND THE FLOOD OF INDIAN GAMBLING IN CALIFORNIA.”