Bits and Pieces from Indian Country – March 2006

Nothing that I have to say in February of 2006 is much different than what I had to say in most of 2005 and in some cases most years before. Like the rest of the gaming industry, Indian gaming has matured and there are very few growth opportunities left. The number and sophistication of the competition increases every year and it is increasingly more difficult and complicated every year. Operating an Indian casino will be more difficult and complicated in 2006 than it was in 2005; and 2005 was more difficult and complicated that 2004 and so forth and so on.

Still, 2006 is going to be different; the national lobbying scandal is going to make changes in Indian gaming as it will to the industry in general. But the changes will be much more significant to Indian gaming than the rest of the industry.

Every aspiring politician is using Abramoff as an excuse to attack Indian gaming in every way possible. And as he has for years, John McCain leads the charge, reform is his platform and he is fully focused on Indian gaming. Each month we get closer to the actual reforms and each month we can expect to see McCain use his bully pulpit to increase his visibility as a potential national leader.

Congressional efforts to reform lobbying law for tribes kicked into high gear at a Feb. 8 hearing of the Senate Committee on Indian Affairs. Committee Chairman Sen. John McCain, R-Ariz., took pains to state at the outset, and again at the close, that the political disenfranchisement of Indians and curtailment of tribal sovereignty are not on the agenda...Various panelists at the hearing worried that tribes can influence elections as no donation-limited individual could, however affluent; their donations can be hidden because only the recipients record them, and done recording practices have not been standardized; and they can serve as conduits for prohibited donations - from corporations or banks, for instance …For that matter, Larry Noble, executive director of the Center for Responsive Politics, said that standardization of political donor tracking records is a national issue, by no means limited to tribes. Jerry Reynolds, Indian Country Today, 2-10-06

The congressional furor over Washington fixer Jack Abramoff and last summer's local flap about four legislators taking a junket to Canadian casinos does not justify making lobbyists disclose their finances, according to a lawsuit lobbyists plan to file today in Tallahassee. Senate President Tom Lee, the main critic of lobbyist-legislator coziness, said Thursday the Senate will hire an outside lawyer and defend the controversial new gift ban. The statute not only requires lawmakers to go Dutch when dining with lobbyists - and forbids the trinkets and gifts lobbying organizations send to legislators during sessions - it requires periodic reports on what companies pay lobbyists for influencing legislation. Bill Cotterell, Tallahassee Democrat, 2-17-06

American Indian tribes are pressing to move gambling operations closer to cities where customers live, but Sen. John McCain is demanding that the Interior Department create a procedure to help decide when tribes can open off-reservation casinos … clarifying how it carries out the law, a department official said at a hearing Wednesday. "It really is unacceptable 17 years later not to have regulations to implement a law that now applies to a 19-to-20 billion-dollar-a-year business," said McCain, R-Ariz., who chairs the Senate Indian Affairs Committee…McCain will send a stern letter to Interior Secretary Gale Norton asking when Congress can expect to have regulations, which would help everyone know what to expect when an off-reservation casino is proposed. Jennifer Talhelm, Associated Press, Seattle Post-Intelligencer, 2-2-06

The backlash from Abramoff and the attacks using Abramoff as a pretext are not limited to Congress and the national government. Many states, indeed some local communities, are using the scandal to try to control, limit or even stop Indian gaming in their jurisdictions.

When he took office, Arnold Schwarzenegger, governor of California grabbed hold of Indian gaming as a way to solve the state's budget woes. He was successful in negotiating a few compacts that would provide the state with a significant part of the casino revenues, but he has been mostly unsuccessful in getting that money into the state treasuries. He is pretty much stalemated and under siege even with compacts he has negotiated.

Gov. Schwarzenegger has angered Legislative Democrats, Republicans and the Department of the Interior by negotiating gaming compacts with Indian tribes to run casinos off reservation land. But with rumors in the Capitol that another major compact deal is imminent, Sen. Dean Florez, D-Shafter, chairman of the Senate Governmental Organization Committee, is trying to stop the new compact before it is introduced. …SR 20, would prohibit the Senate from taking up any compact with a tribe that does not already have federally recognized lands approved for gaming by the federal government… Among those calling on the governor to hold off on new off-reservation gaming deals is Interior Secretary Gale Norton. Anthony York, Capitol Weekly, 2-17-06

The major issue of the day nationally is off reservation casinos; from California and Oregon to New York and Ohio, tribes are looking for opportunities to open casinos off their reservations in more populous urban areas. Those efforts are being met with increasing resistance locally and nationally. The McCain hearings will most likely lead to legislation that will limit, if not outright stop, any tribe's ability to locate a casino outside of its traditional reservation boundaries. And while everyone awaits legislation, many communities are holding meetings to review proposals and express the concerns of the community about casino projects.

The Sennatt Town Board expects to hear next week about the Seneca-Cayuga Tribe of Oklahoma hopes to build a full-scale casino and resort on Route 34…the meeting will be the first opportunity to learn the scale of the proposed $200 million resort complex…Any gaming compact would require the tribe to have some land taken into trust by the federal Department of Interior…Over the last few years, the tribe has shifted its sights from a casino in Aurelius, to Sennett, to Sullivan County in the Catskills and then to Ulster County…The tribe said it would give up land claim rights for $1, pay all taxes on the facility, pay 25 percent of slot-machine revenue to the state and pay $5 million for a period of 20 years to the city and county. Amaris Elliott-Engel, Auburn Citizen, 2-17-06

Fighting back inferences that Indian gaming money follows a corrupt money trail, Shoshone-Bannock tribal leaders scored a major victory Thursday in their attempt to keep tribal casinos open. A legislative proposal that sought to examine the constitutionality of Indian gaming in Idaho failed by a 13-4 vote in a House committee after nearly three hours of debate… gaming operations have spread more rapidly than predicted and could move off reservations in the near future. "Edmo remained coy on the issue of whether the Shoshone-Bannock tribe will pursue new potential gaming sites outside its current reservation boundaries. Dan Boyd, Pocatello Journal, 2-17-06

The Sault Tribe of Chippewa Indians is not likely to build a casino in Romulus, Flint or Monroe County anytime soon, according to the tribe's chairman. In an interview Thursday, Aaron Payment said he believes the mood of Congress after the Jack Abramoff lobbying scandal will prevent pushing ahead with any plans to build another casino. "With the controversies surrounding Indian lobbyist Jack Abramoff in Washington, the likelihood is close to nothing to winning approval for a new casino. That's going to be the climate for quite some time." Joel J. Smith, Detroit News, 2-17-06

New York represents all of the issues that are playing themselves out nationally in Indian gaming and adds a couple issues that, if not unique to New York, are developing in ways that can be instructive for other states. Perhaps the most unusual of the issues is the returning tribes; some tribes were forced to leave New York or lost most of their land 200 years ago - those tribes are trying to regain a foothold in the state. The debate is important for several reasons: the treaty rights of tribes are fundamental to not only this debate, but to tribal sovereignty itself; many tribes were uprooted in American history and placed on reservations often far from their original home territories.

"In the Trade and Intercourse Acts and the Treaty of Canandaigua, the United States committed the nation to protecting the interests of the Cayugas and other New York Indian Nations in their lands. This court should ensure that the United States is able to honor that commitment…" The Bush administration is asking the U.S. Supreme Court to reinstate the Cayuga land claim in hopes of protecting more tribes from seeing their cases dismissed. In a petition filed earlier this month, the Department of Justice called on the justices to reaffirm the right of tribes to seek redress for stolen lands. Government lawyers said cases across the country could be thrown out of court unless the high court revives the claim filed by the Cayuga Nation of New York and the Seneca-Cayuga Tribe of Oklahoma. Indianz.com, 2-21-06

The second issue that is playing itself out in New York is a state's ability to impose taxes or other regulations on tribal lands. Several states are attempting to enforce cigarette taxes and others are trying to impose non-smoking regulations on tribal casinos. The non-smoking debate will become increasingly more important as more states attempt to forbid smoking in all public places. New York is worth watching, not for its gaming revenues, although there are some very successful operations in the state, but more for the contentious debates over every facet of gaming in the state. There is trouble and dissent in racing, Indian gaming and Indian sovereignty and finally where the ever-popular VLTs will end up, and of course, who is going to put the first casino in New York City.

There's almost no chance the Pataki administration will begin collecting taxes on tobacco and gasoline from Native American merchants come March 1, defying the state Legislature once again. And with this latest delay, some lawmakers and anti-smoking activists are convinced that Gov. George Pataki will stall the issue until he leaves office at the end of the year…Hundreds of millions of dollars are at stake. On one side are convenience stores that compete with reservation stores and state legislators who view the taxes as a way of helping to pay for the state budget. On the other are customers who enjoy cheaper prices and Native American tribes that insist the law would intrude on their sovereignty. Yancey Roy, Rochester Democrat and Chronicle, 2-21-06

The Oneida Indian Nation wants a "smoking compact" with Oneida County that would allow smoking in designated areas of Turning Stone Resort and Casino. The Nation asked for the compact just as a hearing on smoking-ban violations at Turning Stone was set to happen Wednesday. Nation General Counsel Peter Carmen's Feb. 21 letter to the county seeks a compact "that would be a sufficient basis for the county to issue a smoking waiver with respect to the Nation or any other party following such smoking policies." Elizabeth Cooper, Utica Observer-Dispatch, 2-21-06

American Indian tribes are not being arbitrary or capricious in their attempts to conduct activities on their reservations according to tribal laws and not state laws. Tribes are in fact acting on faith in sovereignty agreements with the government of the United States; each tribe has some agreement with the federal government defining the boundaries of the land held in trust by the federal government for the use of the tribe and guaranteeing to it the right to govern its own activities.

The treaties upon which the New York tribes base their arguments were signed by federal government before 1790; those same treaties were violated by the State of New York by 1796. The United States Supreme Court found that the State of New York had illegally negotiated with the Oneida Nation and deprived the Nation of millions of acres of its lands. Is it any wonder that Oneida and the other tribes of New York distrust the state government? The tribes, nationally not just in New York, contend that every time they find a way to profit from the land or rights granted in their treaties, the forces of greed put pressure on congress to change the rules and take away more tribal rights and sovereignty. Congress has the right to revisit any legislation and to change the legislation in any way it deems necessary and prudent. However, there should be some fundamental rights, such as those guaranteed by the Bill of Rights or treaties, which cannot be unilaterally eroded.

Off-reservation casinos may come in two flavors; the commercial flavor wherein one locale is commercially superior to another. No one would argue that a casino located in San Francisco or Seattle would be more successful and profitable than one located on a remote reservation in the hinter lands. The other flavor would be the original rights casino. There are tribes with a "right" to land that is not on what is currently considered their reservation. The two cases should be separated in the minds and legislation of Congress. We as a nation should honor the treaties we signed. Congress and the courts should honor the treaties we signed.

But now, that is simply my opinion, isn't it?

Ken