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.

Tags: Akaka bill, Gaming, Indian Affairs

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.”

Tags: Akaka bill, Gaming, Indian Affairs