Coin: Tribal gaming needs the same federal protections as other trust resources

Jacob Coin
8/29/03

The U.S. Government has for more than a century maintained a trust relationship with American Indians in the management of gas, oil and other resources from tribal lands.

Granted, I use the term "management" loosely. The Department of the Interior has been criminal in its bungling of lease payments owed to Indians since Interior began managing tribal land resources in 1887.

Regardless, that has been the legal landscape in this country. Interior and the BIA have served as trustees of these valuable resources - agents in a government-to-government relationship with the tribes.

Government revenues from casinos on Indian lands are as much tribal trust resources as oil and gas, timber and other minerals. They, too, are products of a trust relationship between tribes and the federal government, the parameters of which are set down very clearly in the Indian Gaming Regulatory Act of 1988.

But the intent of Congress in drafting IGRA and the letter of the act are being severely compromised by state governments seeking tribal revenues to alleviate budget deficits. And too many tribes anxious to snatch the social and economic benefits of casino gaming have allowed themselves to be snared in a spider's web of tribal-state compacts that demand excessive revenue sharing and erode their sovereign rights to govern their own lands.

Billions of dollars of tribal gaming revenues - trust resources that should be providing needed government services to the tribes - are instead being diverted to the coffers of state governments and county and municipal agencies.

Tribes, Congress, Interior and the BIA must begin working together to put an end to what has become a most disturbing trend.

Who benefits?

IGRA states very clearly that Indians are to be the primary beneficiary of tribal government gaming revenues, not the state or federal governments. Gaming on Indian lands was intended to generate tribal economies and build strong tribal governments.

Although IGRA allows tribal-state compacts to include "the assessment by the State of such activities in such amounts as are necessary to defray the costs of regulating such [tribal government gaming] activity," it precludes any taxation of tribal gaming.

IGRA also prohibits states from using revenue sharing as bargaining chips in negotiating tribal-state compacts under which tribes can engage in government gaming. "No state may refuse to enter into [compact] negotiations ? based upon the lack of authority in such state, or its political subdivision, to impose such a tax, fee, charge, or other assessment," IGRA states.

Indians learned early on that the mandate of IGRA did not stand the test of states which leveraged their desire to negotiate tribal-state compacts on the willingness of tribes to commit to exorbitant revenue sharing agreements.

"Compact negotiations have become a smokescreen for extortion," Jacob Viarrial, governor of the Pojoaque Pueblo in Santa Fe, N.M., testified at a recent meeting of the Senate Committee on Indian Affairs.

Many states negotiating new compacts or renegotiating existing agreements are basing revenue sharing demands on Connecticut, where the Mashantucket Pequots pay the state 25 percent of slot revenues at its Foxwoods Casino.

The Pequot agreement "set an unreasonable precedent from which other state governments have begun to shape their demands," Brenda Soulliere, chairwoman of the California Nations Indian Gaming Association, told the Senate committee.

There are only two casinos in Connecticut, one of the nation's most lucrative gambling markets, and the tribes have a monopoly on legal gambling. Fifty-two California tribes currently operate casinos, many in highly competitive regions of the state. California has card clubs, pari-mutuel gambling and a lottery. The state already ranked sixth in the nation in gambling revenues before tribal-state compacts were signed into law in 1999.

Yet California Gov. Gray Davis, faced with a $38 billion budget shortfall, is seeking $680 million more than the hundreds of millions of dollars tribes are already paying annually into a Special Distribution Fund and a Revenue Sharing Fund.

"It really gets old being looked at as a cash cow," Soulliere told the Los Angeles Times.

Pedro Johnson, public affairs executive director for the Mashantucket Pequots, acknowledges that what his tribe pays should not be a benchmark for other Indian nations.

"States should not balance their budgets on the backs of Indian governments," Johnson said. "It's patently unfair."

Resolving the issue

BIA Acting Assistant Secretary Aurene M. Martin says the agency reviews new and renegotiated compacts "on a case-by-case basis."

"We look at it to determine if the tribe is able to make the payment and if what they are getting in return for that payment is of sufficient economic benefit to them," she said.

The logic is fuzzy. And the results have certainly been mixed.

""The law allows [states] to demand excess money," committee Chairman Sen. Ben Nighthorse Campbell R-Colo., said of IGRA's revenue sharing provisions. "There's no statistical basis for revenue sharing policy, no broad regulation that guides the Department [of the Interior] either.

"States are taking money from destitute tribes," Campbell said. "I can't imagine what the tribes are getting from the states."

Opening IGRA to revisions is dangerous. Requiring the BIA to adopting a policy to guide future compact approval on a more strict reading of the act makes sense.

Or, perhaps, Interior may one day find itself back in federal court, defending itself from charges of abusing a trust relationship with Native Americans.

Jacob L. Coin is executive director of the California Nations Indian Gaming Association, an association of more than 50 Indian nations in the state. He is a member of the Hopi Indian Tribe, Tobacco Clan, from the Village of Kykotmovi in Arizona.

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