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THE CONFLICT:
INDIAN CASINOS (5/2002)
Indian gaming is bigger than ever in the state of California. How did it get to be such a booming business and, amidst growing criticism from its competitors and detractors alike, what does the future hold for Indian Casinos?
Produced by José Márquez.
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In the late 1970s, the Seminole Indian tribe of Florida opened a bingo hall on their reservation. In order to attract more customers, they offered jackpots in excess of the $100 limit set by the state of Florida. In response, Sheriff Robert A. Butterworth of Broward County threatened to arrest members of the tribe. The tribe sued the sheriff and the case wound up before the 11th Circuit Court of Appeals.
The federal court sided with the Seminole Indian tribe, concluding that Florida did not prohibit bingo and could therefore not prohibit the high stakes Seminole version. Because Indian reservations are sovereign, the sheriff was only authorized to enforce criminal law in Seminole country. Starting in 1823, the U.S. government, through a series of laws and supreme court cases, has defined Indian tribes and their land as sovereign: i.e., independent states within the geographical confines of the U.S.. States, in turn, have limited authority over tribal lands, thanks largely to Public Law 280, passed in 1953 by the U.S. Congress which granted state officials penal authority over Indian peoples in Indian country.
The contours of this law enforcement authority were more fully defined in 1976, when the Supreme Court decided in "Bryan v. Itasca County" that states could not apply its tax or other "regulatory" laws in Indian country. The federal court case of 1981, between Sheriff Butterworth and the Seminoles articulated that gambling laws were among those excluded from the provision of P.L. 280.
Or did it? While Florida's authority under P.L. 280 was limited, California is one of six states (the others are Alaska, Minnesota, Nebraska, Oregon and Wisconsin) granted complete criminal and limited civil jurisdiction over Indian reservations.
In the 1980's, the Cabazon Band of Mission Indians in California began offering high stakes bingo games on its tribal land. The State of California and Riverside County sought to regulate this gambling and the parties took their dispute to court. In 1987 their case was heard by the Supreme Court which decided that as long as certain forms of gambling are legal in a given state (such as the California state lottery), the same state cannot invoke criminal law to regulate Indian gaming on Indian land. In 1988, Congress passed the Indian Gaming Regulatory Act (IGRA) which created a legal mechanism for dealing with a now inevitable explosion in untaxable and unregulated gaming on Indian land.
According to the IGRA, such gaming would be divided up into three categories, the third of which would be "regulated through a compact between the tribes and states, thus allowing states to share regulatory jurisdiction with tribes over casino-style gambling within their borders." Class III gaming, which encompass slot machines, card games with a bank and related Vegas-style games, are permitted on Indian lands only if these are located in a state where such gaming is legal (i.e., Nevada) and/or are conducted in conformance with a Tribal-state compact.
In the 1990s, Governor Pete Wilson and Attorney General Dan Lungren went toe-to-toe with dozens of California Indian tribes over their right to offer Class III gaming. While the state entered into compacts with five tribes between 1990 and 1992, negotiations came to a halt over the highly profitable category of video slot machines. In 1996, Wilson entered into talks with the Pala tribe, who did not then have a casino.
Though originally touted as a blueprint for other tribes, many of whom were already offering Class III gaming in violation of the IGRA, the Pala compact proved to be more divisive than conclusive. When the Pala compact was completed in 1998, the U.S. Attorney's office initiated 27 court actions against Indian casinos for offering slot machine gaming. Meanwhile, local and out-of-state interests, in favor and against the future of Class III Indian gaming were already spending a record-setting $92 million dollars to influence the outcome of an Indian gaming initiative called Proposition 5.
Prop. 5, which was passed by California voters in November of 1998, successfully harnessed the popular vote in order to muscle Gov. Davis into compacts that favored the interests of the 80 Indian tribes previously dissatisfied with ongoing negotiations. It stipulated the exact "terms and conditions of [a] mandatory compact between state and Indian tribes" and mandated the "Governor to sign [this] compact upon request by [the] tribe." It proscribed alternative compacts that did not coincide with its own terms and finally wrote into law permission for slot machines and banked card games at tribal casinos. One year later Prop. 5 was deemed unconstitutional by the State Supreme Court.
In September of 1999, a chastened Governor Davis negotiated compacts with 57 California tribes, including those involved in the Pala compact, which also allowed for certain Class III gaming to take place on tribal lands. As a safeguard, the same tribes who pushed for Prop. 5 launched Prop. 1a which set forth conditions slightly revised from those found in the repealed Prop. 5. By the end of 2000, California voters had approved Prop. 1a and elected Gray Davis as the new governor. A challenge to Prop. 1a is currently being deliberated by U.S. District Judge David F. Levi in Sacramento.
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The California Nations Indian Gaming Association is a non-profit lobbying entity representing 76 federally-recognized tribal governments, 43 of which have gaming compacts with the state of California. CNIGA was instrumental in the successful campaigns for both the Prop. 5 and 1a ballot measures. They do not represent 13 other Ca. tribes with gaming compacts. CNIGA organizes conferences for its members, conducts surveys, lobbies legislators, formulates position papers on gaming policy, tracks legal cases related to Indian gaming and produces media guides favorable to its members' interests.
The National Indian Gaming Association is based in Washington D.C. where it creates both media and legislator-friendly reports and organizes conferences in order to promote the interests of its 168 member tribes. They have supported initiatives like Prop. 5 and 1a in California. Many of the widely circulated national surveys on Indian gaming are funded and/or facilitated by the NIGA. Their gaming-specific lobbying efforts also bolster the legislative and legal standing of Indian sovereignty. They were founded three years prior to the passage of the IGRA.
Stand Up For California! represents a collection of citizens' action groups vehemently opposed to "the expansion of gambling in California," and, thus, the growth of Indian gaming. They have lobbied state officials, the federal Committee of Indian Affairs, and the Department of the Interior, among others. They do not accept funding from Nevada casinos. Their opposition to Indian gaming ranges from moral to economic objections and, as a result, have become advocates for Indian casino workers who allege mistreatment as well the environmental impact of reservation casinos.
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California Card Clubs have long opposed the expansion of Indian gaming for obvious economic reasons. By law, card clubs can only rent their properties as a venue for individuals to conduct their private card games. The Artichoke Joe's Casino card club of San Bruno, Ca. is currently suing Dept. of Interior Secretary Gale Norton in a Sacramento federal court. The lawsuit claims that Prop. 1a gives unfair racial preference to Indian tribes in affording them the right to offer Class III gaming on tribal land. Norton oversees the Bureau of Indian Affairs. Card clubs have also sought legislative permission to offer slot machines and other Vegas-style gambling on their premises.
Donald Trump who has spent millions over the last decade in opposition to Indian gaming in California and New York, formed a partnership with the Twentynine Palms Tribe to open a $60 million casino in Coachella, Ca. earlier this year. He is one of several out-of-state gambling interests to form partnerships with California tribes in the wake of Prop. 1a; namely, Station Casinos, Anchor Gaming and Harrah's Entertainment, all of which are based in the state of Nevada. Harrah's will partner with the Rincon San Luiseno Band of Mission Indians in the south while Station Casinos is embroiled in an effort to work with the United Auburn Indian Community in northern California.
The Alliance of California Tribes is one of several organizations representing non-gaming Indian tribes. While the ACT also represents some gaming tribes, their stated purpose is to affect non-gaming related legislation such as healthcare and financial stimulus packages. A primary concern for non-gaming tribes is access to the Indian Gaming Revenue Sharing Trust Fund called for by Prop. 1a and created by Senator Battin's AB 1385. An estimated $25 million was disbursed in August of 2001 to 82 eligible non-gaming or limited gaming tribes. Of the 107 federally recognized tribes in the state, only 61 have signed gaming contacts. Some non-gaming tribes have, in the past, publicly opposed gambling, but to date only the Navajo tribe has rejected gaming in referenda.
Nevada casino owners like Steve Wynn have spent millions to block propositions like 1a and 5. Along with the Nevada Resorts Association and the Governor of Nevada they fear the expansion of Indian gaming in California to include slot machines and other high-stakes casino games will eat into their revenue.
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Native Americans were undeniably and repeatedly mistreated by the U.S. government in its efforts to expand the national territories throughout the 19th century. Reservation sovereignty is one of the limited compensations Indian tribes have been granted after losing their land and way of life.. This legal status allows Indian tribes to offer gambling to Americans who otherwise participate in gaming to the tune of at least $600 billion a year. If Indian tribes who wish to offer gaming on their land enter into compacts with their neighboring states that will benefit both state and non-gaming tribes, what could be possible be wrong with this legal, profitable activity? Might it not lift the American Indian community out of utter poverty and hoplessness?
Is a tribe of one, really a tribe? How can the California state government regulate a sovereign nation to prevent fraud, criminal activity or poor planning when casino developers are calling the shots? Does the track record of profitable Indian casinos show that tribal education, employment and health figures improve as a result of reservation gaming? Gambling disproportionally hurts poor people who think it will be an easy solution to their financial woes. Pathological or compulsive gambling will only be more widespread if Indian casinos are allowed to expand at their present rate. Indian casinos do not generate enough taxable revenue to offset the infrastructure costs they produce for the state in terms of law enforcement, transportation and social services.
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