And now:Ish <[EMAIL PROTECTED]> writes: From: Victor Rocha: Pechanga.net Subject: A STACKED DECK Date: Wed, 23 Jun 1999 23:37:53 -0700 A STACKED DECK : THE NATIONAL GAMBLING IMPACT STUDY COMMISSION'S FLAWED PROCESS AND CONCLUSIONS by Michael Lombardi and Waltona Manion Featured Columnists For Indian Gaming Business Magazine Two years after its creation, the National Gambling Impact Study Commission submitted its final report to Congress on June 18th. When the composition of the Commission was originally announced, it was apparent to leaders in Indian Country that politics, not sound public policy would drive the study's conclusions. The nine-member federal commission was made up of Nevada gaming insiders J. Terrence Lanni, CEO of MGM Grand; Bill Bible, a former chairman of the Nevada Gaming Control Board and John Wilhelm, president of the Hotel Employees and Restaurant Employees International Union, which represents approximately 100,000 casino workers and former California Lieutenant Governor and horseracing industry consultant Leo McCarthy. The commission also included two staunchly-religious activists -- former dean at Pat Robertson's Regent University Kay James and prominent Christian radio personality James Dobson as well as Paul Moore, a Mississippi radiologist and finally, a sole Native American representative, Robert Loesher, leader of the Tlingit/Haida Indian tribe in Alaska, a tribe with no gaming. Early comments made by Senator Harry Reid of Nevada, were prophetic in forecasting how the Commission would come down on the issue of Indian gaming. Following a conversation with Senator Tom Daschle about the appointment of horseracing industry advocate Leo McCarthy to the commission, Reid was reported to have stated, "We want someone who will check the spread of Indian gaming." With the issuance of the commission's final report we can clearly see that the modern day Indian fighters got what they wanted from the commission. Among the sixteen Commission recommendations to Congress regarding tribal gambling is the following bombshell: "The 'Commission recommends that the Indian Gaming Regulatory Act classes of gambling must be clearly defined so that there is no confusion as to what gambling constitutes Class II and Class III gambling activities. Further, the commission recommends that Class III gambling activities should not include any activities that are not available to other citizens of the state, regardless of technological similarities Indian gambling should not be inconsistent with the state's overall gambling policy.' " If Congress were to act affirmatively upon this recommendation it would effectively over turn the United States Supreme Court 1987 decision in California vs Cabazon. This has been the objective of Senator Reid and his casino cronies for years. In that landmark decision the court ruled, "State jurisdiction over on-reservation activities of tribes and tribal members is preempted if it interferes or is incompatible with federal law, unless state interests at stake are sufficient to justify assertion of state authority; inquiry should proceed in light of traditional notions of Indian sovereignty and Congressional goal of Indian self-government, including overriding goal of encouraging tribal self-sufficiency and economic development". The Supreme Court concluded that, "When a State seeks to enforce a law within an Indian reservation under the authority of Public Law 280 it must be determined whether the state law is criminal in nature and thus fully applicable only as it may be relevant to private litigation in state court". The court went on to uphold a court of appeals decision which concluded, "that California's statute, which permits bingo games to be conducted only by certain restrictions, is not a "criminal/prohibitory" statute falling within Public Law 280's grant of criminal jurisdiction, but instead is a "civil/regulatory" statute not authorized by Public Law 280 to be enforced on reservations." The standard, for determining the permissible scope of gaming, in each of the 24 states with tribal-state compacts has been the Cabazon public policy test. The commission's recommendation, if adopted by Congress, to limit tribes' gaming activities to the state regulatory jurisdiction would have a catastrophic effect on Indian gaming nationwide. Perhaps as many as 21 of the 24 currently compacted states may demand tribes renegotiate the terms of their respective compacts. Limiting tribes to the "exact form" of permissible gaming permitted to others will result in a radical transformation of the Indian gaming industry. Revenues for tribal governments engaged in compacted Class III gaming under this scenario could decline by more than 70%. Limiting tribes to the "exact same form of gaming as permitted to others within a state" has been the objective of both the Governors Association and the Nevada Resort Association for years. Forcing tribes to submit to the civil, as well as criminal jurisdiction, of the state will end tribal sovereignty as we know it. As it turns out, tribes were correct all along in their guarded cynicism towards the commission. The composition of this commission was a stacked deck and it dealt out a predetermined hand to the tribes. After, in effect, gutting the principle of tribal sovereignty with its recommendation to overturn Cabazon, the commission continued with a pledge of respect for tribal sovereignty: "The commission recommends that tribal and state sovereignty should be recognized, protected, and preserved." It is hard to ignore the fact that the public record that those who oppose the right of tribes to be self-governing always profess respect for tribal sovereignty and a deep love for Indian people. Hypocrisy in dealing with Indians is an American tradition. Typical of this attitude are the words of President Andrew Jackson, who addressed Congress on December 6, 1830 regarding the removal of Indians from southeastern states. Jackson said "Towards the aborigines of the country, no one can indulge a more friendly feeling than myself, or would go further in attempting to reclaim them from their wandering habits and make them a happy, prosperous people." Gee, thanks, Andy. Rick Hill, National Indian Gaming Association (NIGA) chairman, was right on the money months ago. When testifying before the commission, about the tribes' trepidation concerning the NGISC's request for confidential tribal government financial records, Hill expressed the mistrust that tribal governments hold for the federal governments' poor track record in caring for and protecting tribal resources. This certainly was not enhanced when the NGISC lost the records of tribal testimony and documents collected during its public hearings. There is a saying in Indian Country that Rick Hill quotes often: "When negotiating with Indian tribes states maintain what belongs to the states is the states'; what belongs to the tribes is negotiable." On August 15, 1953 President Dwight Eisenhower signed into Public Law 280 into law. He did so with serious reservations. He foresaw that state governments would never be satisfied until Congress reduced sovereign tribes to the status of quasi-municipalities under state control. In signing he noted..."My objection arises because of the inclusion of sections which permit other states to impose on Indian tribes within their borders, criminal and civil jurisdiction and, in some instances, effective self-government. The failure to include in these provisions a requirement of full consultation in order to ascertain the wishes and desires of the Indians and of final federal approval, was unfortunate". It is indeed unfortunate that the commission would call for the recognition, protection, and preservation of tribal sovereignty with one breath and in the next, proposes that Congress trample upon tribal sovereignty. History will record that the National Gambling Impact Study Commission, struggle as they did, were unable to rise above partisan politics, to produce an independent report on the societal effects of gambling on contemporary America society. At the end of the day, Congress can reflect on a statement by NGISC commissioner James Dobson which appeared in a June 4th Los Angeles Times story; "The American people want gambling. As long as they do, it would be foolish for this commission to tell them they can't have it." It is also foolish for the committee to attempt to eradicate tribal sovereignty while publicly praising its merits. In the old days they used to call that "speaking with a forked tongue." Reprinted under the fair use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. &&&&&&&&&&&&&&&&&&&&&&&&&& Tsonkwadiyonrat (We are ONE Spirit) Unenh onhwa' Awayaton http://www.tdi.net/ishgooda/ &&&&&&&&&&&&&&&&&&&&&&&&&&
