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Blame the Governer, Not the DOI
In 1988, when Congress passed the Indian Gaming Regulatory Act (IGRA) two United States senators, John McCain and Daniel Inouye, with prominent Congressman Morris Udall, promised in separate statements in the Congressional Record that if states tried to take advantage of the bill to encroach on tribal sovereignty or to tax tribes, they would be the first to yell foul. As feared, states did take advantage of the bill. And Congress failed to respond. Combined with the Supreme Court’s Seminole decision (allowing states to avoid court ordered arbitrations when they engaged in bad faith compact negotiations), the concerns of tribal leaders were realized. Without protection against bad faith practices by states, tribal negotiations have often been hijacked by governors through political blackmail, stalling, and infinite legal challenges.
Gov. Arnold Schwarzenegger has been among the worst offenders. Today, in California, tribes may get new compacts, but only if they are willing or desperate enough to pay a heavy price. Just because IGRA mandates that tribes are the “primary beneficiaries of gaming, and the law is meant to “ensure that gaming is protected as a means of generating tribal revenue,” it doesn’t mean a governor will honor the law. Throughout our history, states have been snubbing federal laws and court decisions protecting tribal rights when it suits their purposes and most often when it benefits them economically. It’s not the first time, nor will it be the last, that tribes are given a promise that goes bad. That’s why the Rincon Band of Luiseño Indians took on the lengthy and expensive court battle to protect the tribe’s hard-earned right to be the primary beneficiaries of gaming and to stop the tribe’s governmental revenue from being swallowed up in the gaping black hole that is the California budget. For anyone that believes states do not have the right to prey on tribal desperation for revenues to fund their governments, or extract exorbitant concessions for gaming, the price demanded by the governor for Rincon’s compact renewal should be a big wake up call. If we had bowed to Gov. Schwarzenegger’s demands, the state would have received $38 million in net revenue and the tribe would have received only $2 million. Thus, the state, not the tribe, would have become the primary beneficiary. Adding insult to injury, the tribe would also end up paying the capital expenditures for expansion out of our $2 million.
The governor says all he wants is for tribes to pay their “fair share.” Can anyone, except Gov. Schwarzenegger, honestly say with a straight face that his fee demands resemble a fair share? Tribes in California, especially those in prime urban markets, have been paying a very fair share to the state to regulate gaming, to fund tribes with less than 350 or no machines, and to fund local governments, including fire and police services. But as the state’s budget woes escalated so have the governor’s taxation demands. The final insult, and his ultimate downfall, according to the courts, was transferring tribal funds away from local governments, tribes and public safety, to the state’s general fund. It took a decision by a federal judge in San Diego that was upheld by the Ninth Circuit Court to put the governor on notice that his negotiations were neither fair nor legal. Rincon believes it is the right of every sovereign tribe to negotiate its own compact. It is not our place to tell another tribal government how to conduct their affairs. But, we simply could not tell our people that we were willing to condone extortion that ran counter to tribal sovereignty and sound business practices. It’s still a sad truism that American Indians – desperate to fund tribal government – are hustled and pushed into agreements where everyone benefits but the tribes. Preying on the poor, and denying marginalized people an opportunity to improve their conditions, which is all tribes want from gaming, is heartless and wrong. And it must be challenged. Thanks to Gov. Schwarzenegger, smaller, more vulnerable tribes, betting on the economy that has now soured and competing for shrinking markets, are facing more challenges than just excessive state fees. Situated in already highly competitive, or poor, rural markets, many with Schwarzenegger compacts have seen their dreams of making life better for their people reduced to a nightmare of lending and construction indebtedness, and trying to meet state demands of 15 – 25 percent of their gross revenue (before operating expenses). Compacts by this governor were not negotiated with the success of the tribal governments in mind, and if they proved to be a recipe for failure for the tribe, he just spins it and tells the people of California that tribes have an unfair advantage. The judges agreed with Rincon, that our compact negotiations were not in the best interests of the tribe from an economic point of view, and that the most important federal protection tribes as governments have – protection from being taxed by states – was being violated. The Department of Interior (DOI) has rightfully acted on this decision and cited it with approval in a recent decision to disapprove a compact submitted for approval by another California Indian tribe. However, the Rincon decision alone was not the sole basis for the decision. Rather, it was based on DOI’s analysis of the economics and the law, and DOI rightfully concluded that the compact terms were not tenable for the tribe at issue. Rincon believes to do otherwise would put the DOI in the position of being accused of failing to meet its trust responsibility to protect tribes. Interior has reluctantly stood by and let compacts go into law by default against their better judgment and trust responsibilities because tribes wanted the compacts and were desperate for any revenue. The department is always walking a fine line between tribes demanding protection and at the same time the freedom to make our own decisions, even the bad ones. It’s just part of the upside down, seesaw relationship that finds tribes forced into conflicts with each other, fighting to survive, and caught between the courts, the states, and the federal government. Sometimes it works for us, like the Indian Gaming Regulatory Act, which gave us a shot at economic self-reliance. Unfortunately, some states found ways to turn that opportunity to their advantage.
The situation we find ourselves in with the California compacts is not the doing of the Rincon Band or DOI. The person to blame is the governor of the State of California. And despite short-term sacrifice, we must honor that old adage that those who forget history are bound to repeat it, or in the case of American Indians, be victimized by it. We must always fight encroachment by states and draw a line in the sand to protect our sovereignty, and unfortunately, sometimes, have to pay a heavy price for doing the right thing.
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