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.”

Under the circumstances, I thought it would be interesting to look at the history of the development of Indian gaming in another context (namely, California), and am therefore happy to introduce the first part in a series of guest columns by Jim Marino, an attorney from Santa Barbara who is an expert on the issue.  These columns were originally published earlier this year  in the Santa Ynez Valley Journal, and manage the rare feat of being both interesting and educational.  Enjoy:

HISTORY AND IMPACTS OF INDIAN GAMING IN CALIFORNIA
Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
April 15, 2010

(Part 1)

It has been almost 10 years exactly since Indian casino gambling was legalized in California. Very few people know the history of Indian gambling casinos in California so this is a good time to review that history. I will do this is a five-part series covering the origin of Indian gambling in California up to the present time.

As public attitudes loosened toward gambling in general, many states began to expand legalized gambling. Betting on horse racing at race tracks had long been permitted. The only limitation was the use “bookies” or other off-track intermediaries to place bets, collect and pay off bets made on horses. Many cities also had a thriving underground “lottery” system usually called the “numbers rackets.”

People picked numbers and made a bet, the numbers were then selected often by using the winning numbers of horses running in certain races at a particular race track. Similarly, though probably illegal, Saturday night “penny ante” poker games were commonplace everywhere, and in some communities people engaged in shooting “craps” – a form of gambling using dice. Although many of these gambling activities were illegal, law enforcement placed very low priority on raiding illegal off-track bookie operations, or the “poor man’s lottery,” the numbers rackets, or Saturday evening poker games played for money usually occurring between friends and for relatively small amounts of money.

Then there were the full-on legal casino gambling venues which were limited to Nevada, Atlantic City, New Jersey and cruise lines and riverboats, where the full range of gambling games were allowed. These included slot machines, roulette, craps, blackjack and other house-banked card games pitting the gamblers playing those games against the house and not each other.

As attitudes toward gambling changed and more and more people saw these many forms of gambling as harmless, state and local governments took a second look at their laws strictly prohibiting most gambling games. Soon many states had state-run lotteries and allowed poker rooms or card clubs and even legalized off-track betting on horse races. Taking it a step further, many states allowed charitable groups to hold Bingo games for money, but licensed them and limited the amounts of money one could play and win and the hours and conditions of operation.

Meanwhile, the federal government had been trying for decades to find a way for the real historic Indian tribes to become self-sufficient and sustainable and doing so without eliminating the Indian tribal reservation system, which for decades had blocked the integration of Indians into mainstream America, particularly the mainstream of American economy.

Many tribes and particularly tribal governments resisted any change or attempts at assimilation, which they considered a threat to their tribe’s cultural preservation and a threat to the fiction that Indian tribes and their governments were “sovereign nations” notwithstanding the nearly total dependency of most tribes on the federal government.

Many of the 600 or so recognized tribes had only a handful of members and little land base. As Tim Giago, a noted Lakota Sioux writer, once wrote in an editorial, “Indians don’t need more welfare, they need a welfare to work program.”

Congress passed many laws in the struggle to improve a lot of reservation Indians and eliminate the massive bureaucracy that had been established, called the Bureau of Indian Affairs (B.I.A.), and its even bigger parent, the Department of Interior (D.O.I.).

Congress was loathe to eliminate the inherent separation and isolation created by the tribal reservation system. In most cases these federal laws and programs were ineffective. The real historic tribes of Indians often saw those assimilation efforts as an attempt to extinguish their respective cultures or impinge on what they considered to be a “sovereign status.”

Beginning during the late 1970s and early 1980s, Indian tribes in Florida and other states began offering Bingo for money as a tribal business and method of earning money.

Not long after those efforts began the tiny Cabazon Indian tribe located near Palm Springs asserted the right to offer Bingo games for money, and without any limitation on the amounts of money, conditions and hours of operation that applied to groups under California charitable Bingo laws. They also wanted to open a card club like those being operated under State and local licensing, but without the regulations imposed by the California Gambling Control Board and local jurisdictions. California refused to allow these Bingo games and card clubs, because the State feared it could not control such activities when it was occurring on Indian reservation lands.

A lawsuit entitled Cabazon Tribe v. California (Governor Wilson) was commenced and finally wound its way through the system and wound up before the United States Supreme Court in 1987. In that case, the U.S. Supreme Court divided California gambling games into two groups: Those games that were illegal and prohibited by everyone, everywhere in the state and those that were permitted like charitable Bingo, horse racing and card clubs. The court concluded that Indian tribes in California were entitled to operate Bingo, card games and other forms of gambling that were permitted to other non-Indians within the state.

They further concluded that because Indian tribes had historically been accorded a measure of self-government and control of their governmental affairs on their reservation lands, then when operating these permitted games they could regulate these games on their own – setting the rules and limits of play for themselves and need not follow California’s limitations.

On the other hand, the Court made it clear all gambling games that were prohibited to everyone within the State of California as a matter of strong public policy were likewise prohibited on any Indian reservations within the borders of California.

This was a fairly straightforward decision; however, it was poorly understood by many state and local governments all over the country, many of which thought this decision would open the floodgates of gambling in their respective states.

Consequently Congress moved quickly in what they thought would clarify the Cabazon case, and in October 1988 they enacted the Indian Gaming and Regulatory Act [the IGRA] 25 USC 2701 et.seq.

This Act divided Indian Gambling games into three groups: Class I was any traditional Indian games played amongst tribal members. Class II was Bingo or similar traditional games played on a card by marking a number of letters as they were randomly selected and called out or posted. These games were licensed and regulated by the National Indian Gaming Commission also created by the I.G.R.A. Class III gaming was the full-on casino style gambling like slot machines, “craps,” roulette, blackjack and other “house-banked” games where the players are playing against the house and not against each other. To be entitled to engage in Class III gambling games, the Indian tribe must have a tribal-state compact approved by the state and lawfully in effect under state law. As it later turned out, this federal law created more problems than it resolved.

Next time: The Indian Gaming and Regulatory Act, an example of a well-intended law gone awry.

According to a recent report from the Grassroot Institute of Hawaii, the state has more that $1.4 billion in unspent excess funds sitting in “special funds” accounts–several of which have long been noted by the state auditor for repeal.  What is a “special fund”?  In short, it’s a little niche set-aside of state money for some specific purpose–say, public art education–funded through anything from state license fees to legislative appropriations.  You may recall that the 2009 Legislative Session included a finance bill that gave the Hawaii director finance authority to “raid” these special funds if necessary to pay government expenses.  This, not unnaturally, got some of us wondering exactly how much money there was available in these state special funds.  In light of the nearly relentless efforts to raise taxes and raid our wallets, the knowledge that there are untold millions of state dollars sitting around in untouched “special funds” is just a wee bit infuriating.

Thus, the Grassroot Institute launched its own investigation into the extent of Hawaii’s “special funds”.  You can read the full report here, but some highlights include:

• In a review of 20 State Department reports, they found 186 accounts identified as special funds.
• This accounts amounted to a combined excess balance of $1,412,357,203.
• Divided equally among the population of Hawaii, these combined excess balances have a refund value of $1090.47.
• The Hawaii Department of Transportation was the worst offender, with $582,449,161 reported as unspent, while the Hawaii Health Systems Corporation had the smallest excess at $34,837.

Really, how outrageous is the situation when the smallest, most responsible excess is still more money that many Hawaiians make in a year?  An economist once pointed out that there are four ways to spend money: 1. You can spend your own money on yourself, in which case you look for the best possible value in quality and price; 2. You spend other people’s money on yourself, in which case you look for the best quality and damn the price; or 3. You spend your money on other people, and look for the best value in terms of price and might compromise on value; and 4. You spend other people’s money on other people, and to heck with quality, value, price, or anything other than getting home from work a little earlier than usual.  Most government spending–especially as practiced in Hawaii–falls into Category 4.  We get nothing but sob stories from every possible state representative about lack of revenue.  We get tax increases and “Furlough Fridays” and guilt trips about the plight of government workers.  And all this time, they’ve been hoarding funds to the tune of $1.4 billion.  It boggles the mind.

If we work hard and are lucky the bill will either die lonely, and quietly forgotten, as happened in 2000; or will crash and burn spectacularly as happened in 2006. But this will be the period of greatest danger in ten years …

For the complete article, see

http://www.hawaiipoliticalinfo.org/node/3245

But would you make more of an effort if you knew that they were getting nearly a million dollars from OHA for the creation of a “Hawaiian-themed internet television station and web portal”?  It kinda makes you wonder what a cool million buys these days in the way of internet entertainment . . . aside from buckets of Farmville cash or enough “adult videos” to end up under permanent FBI surveillance, of course.

Curious as to what a Hawaiian internet TV station might look like, I checked out their website, and was confronted by . . . Puppies!  Adorable ones! In a shopping cart!  Also, canoeing wipe-outs and some footage of a party in Waikiki that didn’t seem interesting enough to click on.  In all honesty, it looked more like a creation of the Hawaii Tourism Authority than anything intended for Hawaii residents, much less Native Hawaiians.  And if this were a private enterprise, that would be no big deal.  I mean, I would question their business plan, but we live in a country where people are entitled to waste their own money in whatever way they wish.  And I would no more stop someone from starting a questionable business enterprise than from going to an Rob Schneider movie.  (Ok, that’s not entirely true.  I would probably at least try to urge them, out of basic human decency, to avoid the movie.)  But this is beside the point.  Because we’re not talking about private enterprise here.  We’re talking about money intended for the benefit of the Native Hawaiian people.  And we’re talking about a quasi-governmental agency that hopes to have a big hand in the proposed Native Hawaiian Reorganization proposed by the Akaka Bill.

The crazy thing is that we have seen plenty of media enterprises aimed at speaking primarily to one minority group succeed (BET and Telemundo come to mind, but there are others too).  But they succeed or fail in the marketplace by learning to speak to their audience and growing their audience in a profitable way.  Who is the Pacific Network speaking to?  The lack of advertising on the website suggests that profitability at this point is determined only by the success of their grant proposals.  If you were (or are) Native Hawaiian, would you consider this an effective way of reaching out or fostering the Native Hawaiian community?  Or is it just another OHA vanity grant that looks good on paper, but disappoints in reality?

HAWAIIANS DEMAND AKAKA BILL HEARINGS IN HAWAI`I
Petition Shows Broad Anti-Akaka Bill Sentiment

Aloha,

We are contacting you to make you aware of broad opposition to S.1011, the Native Hawaiian Government Reorganization Act of 2009, otherwise known as the Akaka bill, throughout Hawai`i and to ask for your vote AGAINST this bill.

Regardless of what Hawai`i Senators Akaka and Inouye have told your office, the people of Hawai`i, including Native Hawaiians, do not support the Akaka bill and are demanding public hearings be held in Hawai`i before any vote occurs in Congress.

Over the years, poll after poll has shown the citizens of Hawai`i, both native and non-native to be overwhelmingly opposed to this bill.

Moreover an online anti-Akaka bill petition has garnered hundreds of signers from all political points of view, both of natives and non-natives.

A copy, with over eight hundred signatures is attached to this email. The petition can also be seen online at http://StopAkakaPetition.com <http://StopAkakaPetition.com>

“We, the people of Hawai`i, declare our opposition to the 2010 version of the Akaka bill, and strongly object to being excluded from this legislative process,” stated Leon Siu representing the Koani Foundation, part of a coalition of Native Hawaiian groups.

“We have long been told that open, public debates in matters that affect the citizenry are part of the US democratic process. But it has not been so with the Akaka bill.”

“We, the people of Hawai`i, insist the US Senate Indian Affairs Committee hold public hearings on S.1011 in Hawai`i as soon as possible. We demand to be heard.”

The only time public hearings were held in Hawai`i on the bill was ten years ago.

At that hearing, people turned out in record numbers to oppose the legislation.

Since then, the only hearings held on the Akaka bill were in Washington, DC in the dead of winter, 5,000 miles from Hawai`i, and no opposing testimony from Hawaiians or anyone else was allowed.

For more information, contact Leon Siu at (808) 488-4669.

Yes, New York and Massachusetts both make the top 5.  But for a sheer, soul-crushing, burdensome tax scheme, no other state can beat Hawaii.  That’s right.  We’re #1! We’re #1!  I quote the San Francisco Chronicle’s recent article on the states with the greatest individual tax burden on their residents:

So I find it hard to understand why we haven’t had opportunity for comment on the Akaka Bill yet.  This is the most transformative piece of legislation to hit Hawaii since we became a state.  (Heck, some people might say since the revolution.)  And yet, there’s no push for public hearings on it?  Well–let’s be fair here.  There certainly is a push for public hearings on the part of the public.  Strangely, the politicians involved seem to be more interested in keeping all the wheeling, dealing, and negotiations at a more exclusive level.  And if that’s not enough of an argument for hearings, I don’t know what is.

Therefore, even though I’m not the world’s biggest fan of online petitions (No, I am not going to stop watching TV today in order to send a message to Big Oil.  Burn Notice is on tonight, for goodness sakes!), I think that this one is a worthy one.  It’s a call to stop the Akaka Bill until the people of Hawaii (as well as Native Hawaiians in other parts of the country) get their opportunity to weigh in on the matter.  So click on this link and make your voice heard in the fight to  . . . um . . . make your voice heard.