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Sunday, January 12, 2014

Supremes green-light Narragansetts to challenge state Twin River decisions

The endless war over Indian gaming
By Will Collette

star trek (3759) Animated Gif on GiphyWhen 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.

upvote (1295) Animated Gif on GiphyUnder 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.

martin scorsese (217) Animated Gif on GiphySenator 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.