Showdown looms over casinos off tribal lands - Friday 12th of August 2005
There are no Indian reservations or federally recognized tribes in Illinois or Ohio. But both states have been roiled by outside tribes that want to build Indian casinos within their boundaries, in locations near Chicago and Cleveland, among others.
An Oklahoma tribe similarly has approached Colorado, seeking permission to build what would probably be a wildly successful casino just outside Denver.
In San Diego County, the Manzanita band wants to open a casino not on its remote reservation, but in Calexico, just across the border from the bustling city of Mexicali. The local Los Coyotes band also is looking for a change of venue, preferably Barstow – on a heavily traveled route to Las Vegas.
The proposals, and many more like them, have fanned a national furor over off-reservation gaming that now appears close to a boiling point. Congress point men on tribal issues – Sen. John McCain, R-Ariz., and Rep. Richard Pombo, R-Tracy – have been holding hearings for months and are expected to introduce reform legislation soon. Other members already have.
"I believe Congress is at the point right now where legislation is going to happen," said Pombo, who is chairman of the Resources Committee.
Pombos committee has jurisdiction over tribal matters. McCain, who co-wrote the landmark Indian Gaming Regulatory Act, is chairman of the Senate Committee on Indian Affairs.
"There has always been some degree of controversy about off-reservation gaming," said John Dossett, general counsel of the National Congress of American Indians, the nations oldest and largest tribal organization. "Whats new is the level of attention and scrutiny that is going on right now."
The looming political battle could be the most significant that tribes have faced since federal courts and Congress legalized Indian gaming nearly two decades ago. It could tighten and redefine the bounds of an industry that quickly has become a $19.5 billion behemoth.
Some have warned that the future of tribal gaming may be hanging in the balance.
"This issue has the potential to undermine the legitimacy and assumptions underlying Indian gaming, but only if its abused," said Howard Dickstein, a leading tribal attorney. "Its an abuse for tribes that already have land eligible for gaming to move to another location to better their commercial position."
The debate has split tribes and comes at an inopportune time, in the midst of a national backlash against Indian gaming. It also has raised complex questions about what qualifies as ancestral homelands of tribes that were moved against their will through reservations in several states.
Tribes that filed claims to huge tracts of land in Illinois, Ohio and Colorado either had original ancestral lands or had been resettled for a time in those states.
The Cheyenne and Arapaho tribes of Oklahoma dubbed their Denver proposal "the homecoming project." Charles Enyart, chief of the Eastern Shawnee of Oklahoma, told McCains committee that "Ohio is our homeland. We want to go back."
Some tribes have offered to drop their land claims in exchange for lucrative casino sites, offers that state officials dismiss as "blackmail."
The courting tribes have promised thousands of jobs, regional economic boosts and large ongoing payments to states and local communities. Colorado was offered $1 billion. Backers of the Los Coyotes casino and another jointly planned for Barstow said the project would deliver 3,700 jobs and annual payments starting at more than $6 million for the impoverished desert city.
Rep. Jesse Jackson Jr., a Chicago Democrat who represents the area where the Ho-Chunk Nation of Wisconsin wants to build a large casino resort, is a vocal supporter of the tribes plans.
"The (project) would serve as a vital economic engine, bringing millions in revenue and thousands of jobs to an area in the state that so desperately needs them," Jackson told the Resources Committee.
While tribes are divided over so-called reservation shopping for desirable casino locations, most agree they dont want Congress tinkering with the Indian Gaming Regulatory Act, the 1988 law that set the ground rules for tribal casinos.
Ironically, however, the uproar over off-reservation gaming appears to be driving the political push to reopen the law, widely known as IGRA.
"Nowhere in there did they ever anticipate this kind of activity," said Deron Marquez, chairman of the San Manuel band of San Bernardino County. "Nobody every imagined that tribes would be trying to acquire land in San Pablo (a San Francisco suburb) or Ohio, or Denver, or the Catskills."
Marquez, whose tribe operates one of the states most successful casinos, has been an outspoken critic of off-reservation gaming. He is among a minority of tribal leaders who think Congress should intervene.
"Nobody wants to mess with the act. That has been the mantra of Indian Country since the creation of the act," Marquez said. "But you cant walk into Congress and say, We got a problem. Fix it, but dont mess with IGRA, when the problem is IGRA."
Tribes operate 404 casinos throughout the United States, including 54 in California, which has more than any other state. San Diego County alone has eight casinos, more than any other county in the nation.
The operative federal law generally restricts tribal gambling to reservations and other Indian lands that were in place when it was adopted Oct. 17, 1988. But the law also included exceptions for settlements of land claims, for landless tribes and for those whose federal recognition was restored after the deadline.
It also allows tribes to seek new lands for gaming if they can achieve what is widely known as the two-part determination – approval from both the Secretary of the Interior and the governor of a state.
To date, just three tribes have secured state and federal approval for an off-reservation casino. But an additional 23 casinos have been authorized under the other exceptions, according to the Bureau of Indian Affairs.
Those numbers, and the difficulty of getting anything through the complicated, time-consuming approval process, has moved the Bureau of Indian Affairs and others to suggest that the threat of off-reservation casinos has been overblown.
"We really do not see the problem," George Skibine, an acting deputy assistant secretary with the BIA, told McCains committee last week. "Weve had not that many applications, theyve been carefully considered, and . . . it hasnt been a runaway problem."
Skibine paused, then added: "Now there may be a problem in the future. We are not discounting that."
He noted that the grass-roots organization Stand Up for California has documented some 40 off-reservation proposals pending in the state. Moreover, of the 302 tribes seeking federal recognition nationally, 67 are from California, according to a BIA spokesman.
Once recognized, those tribes would be permitted to establish a reservation on which they could build a casino.
Regardless, Dickstein, the tribal attorney, said, "The problem, at least in California, is more smoke than fire."
He said congressional legislation, not the Indian gaming act, authorized four California tribes to engage in gaming on new reservations.
One of those four is the Lytton band, which so far has been frustrated in its efforts to develop a new casino in San Pablo. The controversial project has become a national symbol for critics of off-reservation gambling.
As a result, Dickstein said, Congress is unlikely to grant any more expedited approvals. He also noted that Secretary of the Interior Gale Norton has not approved an off-reservation transfer "in years," while taking an increasingly restrictive view of such proposals.
In 2002, Norton panned off-reservation gaming in a letter explaining her reasons for declining to approve a compact between the Seneca Nation and New York Gov. George Pataki. She allowed the compact to take effect without her signature.
"I am extremely concerned that the principles underlying the enactment of IGRA are being stretched in ways Congress never imagined," Norton wrote.
She narrowed her position even more a few months ago in rejecting a compact for an off-reservation casino in Oregon. In the rejection letter, a Norton deputy declared that the department would no longer consider compacts before a tribe had the necessary land held in trust by the federal government.
The Interior Departments new stance, combined with BIAs already difficult approval process, has stacked the odds against most new off-reservation proposals, Dickstein said.
"What you have is a lot of developers who . . . find Indian tribes who have little or nothing to lose by partnering with them and looking around the state for commercially viable locations," Dickstein said. "But they go from one to the other without any success."
Gov. Arnold Schwarzenegger recently issued strict guidelines for new off-reservation proposals in California, but even those might be too permissive for Norton and the Bush administration.
Norton has refused to approve Schwarzeneggers compact for the Ewiiaapaayp band of San Diego County. Signed nearly a year ago, that compact authorized a large casino not on Ewiiaapaayps isolated lands, but on the Alpine reservation of the Viejas tribe.
Interior officials declined to comment on the matter, but if they are concerned about another off-reservation site, it could spell trouble for Los Coyotes hope to develop a project in Barstow with the Big Lagoon tribe of Trinidad, a small Northern California community.
As pressure builds for Congress to intervene, the National Congress of American Indians and the National Indian Gaming Association have come out in strong opposition to amending the gaming act. Tribes fear that a move to rewrite the law could be dangerous, opening up a debate that could move well beyond the off-reservation controversy.
The Indian gaming act was a delicately balanced compromise brokered between states and tribes after the U.S. Supreme Court ruled that American Indians had a right to game on their reservations, the tribal groups said.
That balance was tilted in favor of states by a later Supreme Court decision in a case involving Floridas Seminole tribe, said Dossett of the National Congress of American Indians.
The court held that states could not be forced to negotiate Indian gambling agreements. Federal law requires such agreements, or compacts, for tribes to conduct casino-style games.
"If legislation were proposed to fix the Seminole problem and tribes get some things, states get some things, that might be a discussion tribes would be willing to have," Dossett said. "But thats not the discussion thats on the table."
But San Manuel Chairman Marquez said tribes have too much at stake to ignore the off-reservation uproar. California tribes, he noted, promised voters in two high-profile campaigns that Indian casinos would be limited to existing reservations.
If the public concludes that promise has been broken, its just a matter of time before they approve commercial gambling all over the state.
"We sold this to the people of California as only on Indian lands as of today," Marquez lamented, "and here we are just five years later shopping it out."
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