Tag Archives: Hawaiians

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.

Akaka Bill

What Do You Djou?

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If we were handing out political courage awards, we wouldn’t exactly break out backs trying to carry the ones needed for Hawaii’s political class.  Especially on the Akaka Bill.  Heck, a three-year-old child could probably handle the load on that one.  Hawaii’s Democrats are rather remarkably in lockstep agreement on a fairly controversial issue–which pretty much indicates that the Party has declared its approval and will brook no dissent.  Hawaii’s Republican Party (such as it is) thankfully lacks the inflexible message of the Democrats, but makes up for it with party leaders who take a half-measures approach that consists mainly of offering weak disapproval and then caving-in after a few showy are largely meaningless “compromises.”  (Yes, there are exceptions.  There always are.  But not enough of them.)  Thus we have Linda Lingle’s shift on the Akaka Bill and Charles Djou’s rather bewildering variations.

Djou, in particular, is an interesting case.  Prior to getting elected, he gave some the impression that even if he wasn’t a vocal opponent of the Bill, neither did he plan to promote it.  But consider the statement he made in a recent radio interview: “Should the Akaka bill come back to the U.S. House, I’m confident that I’d be able to garner far more Republican support for the Akaka bill — make it bipartisan, make it less controversial, and make its passage far smoother.”  It’s hard not to see this as full support for the Bill’s passage.

Then, perhaps sensing that his position on Akaka was gaining him no friends among the Republicans and Independents that he needs in order to win, Djou decided to add a little nuance to his stance on the Bill.  Now, he says that he supports public hearings on the Bill and a non-binding vote from the Hawaii people.  Needless to say, those who are concerned about the impact of the Akaka Bill feel that the voice of the people of Hawaii on the issue should be a binding one–the current suggestion raises the strange possibility that hearings and a vote could show significant opposition to the Bill only to have it overridden by Congress.  Still, Djou’s latest position demonstrates some understanding that the most radical political questions since statehood deserves a public voice.  And of course Djou’s opponent, Colleen Hanabusa (a Democrat) is an unreserved supporter of the Akaka Bill (she has mentioned some support for public hearings, but not for a public vote).  Clearly, election day this year may have a real effect on what happens next in the effort to pass the Akaka Bill.

OHA

Penned In

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

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

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

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

Akaka Bill, OHA

Stacked Deck

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

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

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

Economy, OHA

Writ or Wrong

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

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

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

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.

Akaka Bill, Economy, Gaming

Guest Series on Tribal Gaming (Part 3)

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Today, we continue with the third part of our guest series on the development of Indian casino gaming in California, by Jim Marino.  (This series originally ran in the Santa Ynez Valley Journal.)

Sometimes it seems as though the issue of gaming is an unspoken controversy that advocates of the Akaka Bill are desperately trying to avoid.  As though the fact that it is not allowed under the current version of the bill is a sufficient guarantee forevermore.  But, as today’s installment demonstrates, a state can move from no casino gaming of any kind to a flood of Indian casinos in a surprisingly short time–and with little to no real input from the public.  Those who are concerned about Akaka being the path to Hawaiian casino culture would do well to take note of California’s experience. . .

RESULTS OF I.G.R.A AND THE PASSAGE OF PROPOSITION 1A AND THE FLOOD OF INDIAN GAMBLING CASINOS IN CALIFORNIA
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
April 29, 2010

(Part 3)

The first week I discussed what led up to the enactment of the IGRA. Last week I wrote about all of the antiquated, ambiguous and contradictory aspects of federal Indian law and policy in existence, when the ill-advised Indian Gaming and Regulatory Act [IGRA] was enacted by Congress, in a feeble attempt to provide an economy for Indian tribes.

As you may recall from last week, the controversial Indian gambling law was enacted by Congress without even considering the impact the existing body of federal Indian law and policy would have. This resulted in the authorization of tax free, lawless and unregulated casino gambling by Indian tribes and related businesses in which patrons, workers and the nearby communities are, in effect, deprived of all their legal and Constitutional rights and cannot sue for injuries or damages occurring in those casinos and businesses. I also wrote of how that Act has also enabled these tiny often questionable tribes to make hundreds of millions in profits, while still collecting federal welfare and grant monies that are monies needed by real Indians still living on remote reservations and living in conditions of abject poverty.

This week’s article deals with how Indian gambling was legalized in California and some of the impacts of the IGRA and the Indian casinos it spawned in California, has had on nearby non-Indian communities.

To give Congress the benefit of the doubt, Congress created the only method that States had available to them in order to control and regulate Indian casino gambling under the IGRA. That mechanism was the requirement that prior to engaging in Class III gambling casinos the tribe and state government would have to enter into a compact (or contract). They did this by including section 2710 d.(3) in Title 25. Under that provision, Indian tribes seeking to engage in class III casino gambling were required to negotiate and have the affected state approve, a compact. If the state lawfully approved a compact, then it was lawfully in effect according to State law.

Following the enactment of the IGRA in 1988 many bands of Indians in California, some with only one or two members, began operating class II Bingo games with unlimited money pay-offs. The Santa Ynez Chumash built a cinderblock building as a “Bingo casino” funded at least in part by the Las Vegas singer Wayne Newton and other Las Vegas gambling investors and apparently did so under questionable circumstances. It soon closed down amongst rumors and controversy, but with a view toward reopening in the future.

Class II “Bingo” gaming under the IGRA does not require a tribal-state compact, only a license from the National Indian Gaming Commission [NIGC] and is in effect unsupervised gaming beyond licensing and annual audits. Before the Supreme Court struck down the provision in the IGRA, giving the tribes the right to sue the state when they claimed the State was not negotiating in good faith, California tribes threatened the State with several suits if the State did not negotiate compacts for full-scale Class III casino gambling. The California Constitution Art. 4, Section 19, prohibited full-scale casino gambling including slot machines, blackjack, craps, roulette and so forth.

Because slot machines generally make up 85 percent of the revenue any casino brings in, the tribes were threatening lawsuit if the State would not negotiate for slot machines and banked card games like blackjack. (Remember the Cabazon case discussion earlier. The State had the absolute right to refuse to allow all forms of gambling by any Indian tribe, as long as those types of games were also prohibited for everyone else in the state to operate.) Slot machines had been illegal in California for years and use, possession or transport was a violation of the California Penal Code.

One lawsuit brought by Indian tribes in the 1990s claimed the lotto terminals the State had licensed to bars and cocktail lounges all over the state were, in effect, state run “slot machines.” Therefore, the tribes claimed they had a right to install slot machines in their casinos. The court denied that assertion but was highly critical of the definition of “slot machines” set out in the California Penal Code. As a result, the state pulled all these machines from bars all over the state and stored them in a warehouse, where I believe they still sit today.

Many tribes like the Santa Ynez Chumash simply ignored the law prohibiting slot machines and the requirement of a tribal-state compact in 25 USC 2710 d (3) requiring such a compact before Class III gambling could be allowed. Then one night in 1995, the Chumash moved more than 600 slot machines into the cinderblock former Bingo casino and began illegally offering slot machines to the public and position player backed blackjack games. The installation of these slot machines also constituted a violation of the Johnson Act, a federal law prohibiting the unlawful transportation, use, procurement and possession of slot machines. After all, the delaying litigation was exhausted in 1997. The State Attorney General and federal authorities including the F.B.I. informed the illegal casino tribes like the Santa Ynez Chumash that they intended to raid them, seize the slot machines, all monies and other illegal fruits of the illegal gambling operations and even arrest the operators. The tribes then launched a public initiative-drive entitled Proposition 5 in 1998.

Proposition 5 was an initiative to amend the California Government Code to allow Indian tribes to operate slot machines on Indian lands in California. Besides sponsoring that initiative the tribes, many of whom were operating illegal casinos with slot machines at the time, like the Santa Ynez Chumash, pumped millions of dollars into an advertising campaign to depict pictures of poverty-stricken Indian tribes self-sufficient.

In addition to this advertising campaign, these casino Indians pumped millions into the campaign coffers of Grey Davis, a career politician who was running for Governor in 1998. In November 1998, Proposition 5 was approved by the voters and Grey Davis was elected Governor. Commencing in 1999, Gov. Davis began negotiating gambling compacts with California Indian tribes, all of which was done behind closed doors. None of the traditional power groups in California such as local governments, taxpayers groups, law enforcement organizations, environmental groups, trial lawyers, workers compensation and consumer lawyer groups, women’s rights groups, union and others were allowed the opportunity to participate in the discussions and influence the terms of these tribal-state class III gambling compacts.

As a result, the compacts Gov. Davis agreed to were weak, giveaway compacts with many provisions so poorly written that they were virtually unenforceable. These compacts provided no revenue at all to the state and made no provisions to mitigate the significant negative impacts the flood of Indian casinos that resulted would have, and subsequently did have, on local communities.

In the meantime, Proposition 5 was challenged in a lawsuit and in August 1999 the California Supreme Court ruled that Proposition 5 was unconstitutional because it only amended the Government Code not the State Constitution, which contained the prohibition on casino gambling like slot machines and house banked card games in Art. 4, sec. 19.

Undaunted by the Supreme Court’s striking down Proposition 5, Gov. Davis executed some 59 of these giveaway tribal state compacts and then had the State Legislature approve them in September and October 1998. He made no effort to determine if the tribes he was negotiating with, and granted gambling compacts to, were lawfully created Indian tribes or if the land on which their casinos or proposed casinos were to be sited were legally “Indian Lands” eligible class for III gambling under federal law. In fact, many of these questionable Indian tribes were on land or acquired land that was clearly not eligible to build and operate any class II or class III gambling casinos under the IGRA.

To remedy the fact that these compacts were executed and approved when there was no longer any legal authority to do so, the Legislature put a “Legislative initiative” on the ballot for March 2000 the following year at Gov. Davis’ behest, some 6 months after they were executed and approved. That initiative, called Proposition 1A, by its language proposed to amend the California State Constitution Art. 4, sec. 19, to authorize the Governor to negotiate future compacts with California Indian tribes. The voters were never informed that a vote in favor of Proposition 1A would, in effect, retroactively ratify the 59-weak giveaway, virtually unenforceable compacts that Gov. Davis has already signed without legal authority and which were approved at his instance by the State’s Legislature. It is not coincidence that so many State legislators also received hundreds of thousands of dollars in campaign contributions from these casino tribes, often funneled throu gh campaign committees and PAC’s with unassuming names. My favorite was the one calling itself “The California Native Peace Officers Association.” That PAC was funded by $5,000,000 million entirely from the Pechanga Indian Casino and the State Correctional Officers Union and was distributed to key politicians in Sacramento. The use of PACs is one of the ways politicians use to disguise receipt of gambling monies by disguising them through innocent-sounding groups. Once legalized in 2000 by Proposition 1A, the onslaught of Indian casinos in California began.

NEXT TIME: PART 4, THE EXPANSION OF “INDIAN CASINO GAMBLING IN CALIFORNIA AFTER PASSAGE OF PROPOSITION 1A AND THE NEGATIVE IMPACTS ON LOCAL GOVERNMENTS AND COMMUNITIES.”

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.”