The endless war over Indian gaming
By Will Collette
When the Twin
River slot parlor in Lincoln was in serious financial trouble and sought state
approval to add table games, the Narragansett Indian Tribe asked the state to
sell the troubled operation to them and allow them to operate it as a
full-service casino.
Even though such an action would have permanently ended
Charlestown’s mortal fear of an Indian casino in Charlestown, our Special
Counsel for Indian Affairs, Joe Larisa, went
to work to scuttle the Tribe’s attempt to buy Twin River.
After being
rebuffed on their offer to buy Twin River, largely due to Larisa’s lobbying,
the Tribe sued the
state
arguing that its rights under the RI State Constitution had been violated. The
state’s main defense was that the Tribe lacked standing to bring suit. However,
the RI Supreme Court just ruled the Tribe does have standing
to sue
because it suffered direct harm when the state allowed table games at Twin
River.
Under state law,
the Tribe is
entitled to 0.17% of Twin River’s slot machine revenue which works out to be a
pretty substantial sum, up to $10 million a year. But when table
games were added at Twin River, 200 slot machines were removed to make room,
and the Tribe’s share of the revenues took a hit.
All this ruling
does is give the Tribe the opportunity to make its Constitutional case, but had
the ruling gone the other way, it would have been “game over” for the Tribe’s
legal action.
“Carcieri Fix”
still mired in Congress
One of the
reasons why Charlestown has paid Special Counsel Joe Larisa so much money –
over $300,000 over the past few years – is the 2009 Supreme Court’s “Carcieri v. Salazar” decision that
blocked the Narragansett Indian Tribe from putting acreage where it wanted to
build low-income senior citizens housing under federal trust. The Court’s
decision not only blocked that specific project, but broadly curtailed the
sovereignty rights of the Narragansetts and about 500 other tribes across the
US.
That decision
was based on the thinking of the Court’s conservatives (especially Antonin
Scalia and Clarence Thomas) that Congress was not clear in its 1934 Indian Reorganization Act (IRA)
whether
the new rights and powers it was bestowing on tribes only applied to those
tribes that were federally recognized at the time. The decision held that
because Congress was not clear enough to their way of thinking, that tribes
recognized after 1934 (which
included the Narragansetts and 500 other tribes) were not entitled to the Act’s
benefits.
This decision
enraged Native Americans and they have been lobbying ever since for a “Carcieri
Fix” law that “clarifies” the 1934 law to include all federally recognized
tribes, regardless of when they were recognized. The Charlestown Citizens
Alliance viewed this as tantamount to a go-ahead to break ground on a
Charlestown Indian casino. Thus, they’ve supported payments by Charlestown to
Joe Larisa to watch to see what is happening with this “Carcieri Fix” process
in Congress.
I could have
done it for nothing. Simply put, even though a “Carcieri Fix” has strong
support from the Obama Administration, there are enough members of Congress who
think that allowing Native Americans more control over their own property will
only mean they will build casinos. Leading this fear-mongering is powerful
Democratic Senator Diane Feinstein of California who is outraged at
the expansion of Indian gaming in California. Legislators in other states with
Indian gaming establishments also want to curb tribal rights to acquire and
control land.
Feinstein and
her allies in the fight to curb Indian gaming are dedicated to
blocking any passage of a “Carcieri Fix” unless the Congress simultaneously
amends the Indian Gaming Regulatory Act to give the
non-Indian neighbors of proposed gaming establishments veto rights.
Tribal leaders
across the country and the Obama Administration oppose tying the Carcieri Fix
to amending the Gaming Act, arguing they are two separate issues. They call for
a “clean fix” that addresses the problems created by the Carcieri v. Salazar
decision, while Feinstein and her allies call that a deal-breaker.
The issue has
been divisive within the Indian community with some advocates arguing that it’s
better to get the benefits of Feinstein’s position – a “fix” with curbs on
gaming – than nothing at all. This split led tribal leaders to issue a peculiar warning
to the Obama Administration to beware of their own tribal lobbyists, since they
may be deviating from the “clean fix” position that prevails among the
leadership.
Indian leaders
point out that between the 1934 passage of the Indian Reorganization Act and
the 2009 Carcieri decision, 10 million acres of land wrongly taken from tribes
(out of a total of 90 million acres) had been restored to tribes, but less than
1% has been used for gaming. Any uses of the land restored to tribes and placed
in federal trust must be approved by the Department of Interior.
The Obama
Administration says that it has approved more than 1,200 applications for
various land uses on tribal trust lands, but only 20 of them have been for
gaming establishments. In many instances, federal permission was unnecessary
when tribes and state governments, with assent from local communities, agreed
to new casinos through mutual agreement. We are seeing this kind of process
play out right now in Massachusetts where new Indian casino proposals are being
placed before voters in local communities.
Senator
Feinstein and others (click here for an
interesting article on the subject) also raise the question of whether we’ve
reached the point where “enough is enough.” Feinstein argues there are already
too many Indian casinos based on her own state’s experience with 70 Indian
gaming establishments. To anticipate your question, “how many Rhode
Islands would fit into California?” the answer is 106.
Since Rhode
Island has two official gaming establishments, you could extrapolate and
conclude that, arguably, California could handle 212 gaming establishments.
No matter what
comes out of the Narragansett Indian Tribe’s lawsuit against the state over the
Constitutionality of passing them over and allowing Twin River to become a
full-service casino, the Carcieri Fix problem remains. I just wish the state
could have a do-over on the Tribe’s offer to buy Twin River, and that in the
do-over, Larisa could curb his own bias and act in Charlestown’s interests.
There is also
the lingering question of the pending RIDOT land transfer of
the Camp Davis
property to the Tribe. This transfer is due to the state’s legal obligation to
compensate the Tribe for disturbing Indian sites lying under the land where the
new I-95 improvement project is taking place. But the transfer is stalled,
apparently due to the Tribe’s reluctance to have to submit to more land
restrictions than those it has already acquiesced to.
Trust is a
valuable commodity and is essential to the conduct of a civil society.
Unfortunately, in Charlestown, trust between the town’s Narragansett and
non-Indian residents is hard to come by.
