Casino Wars: Friends, Enemies, and States

Peter d'Errico

On March 6, 2014, the Connecticut Post newspaper published an editorial—"Some Indians are inconvenient"—blasting Connecticut Governor Dannel Malloy for trying to block proposed changes in the federal recognition process for Indian Nations.

The editorial said the governor is "driven by the fear that a newly recognized tribe might try to open a casino," and asked, "How are Indian tribes that were recognized by the state of Connecticut for centuries, no longer Indian tribes?" The editorial argued that "if casinos are the problem, address the problem." It concluded, "Don't tell a group of people you've recognized for centuries as Indians that now, with dollars at stake, you don't think so anymore."

Governor Malloy is not the only Connecticut politician trying to derail new federal recognition rules. Adding to the din are state Attorney General George Jepsen and U.S. Senator Richard Blumenthal. Meanwhile, the Golden Hill Paugussetts, the Schaghticoke, and the Eastern Pequots are waiting for the federal process to work out.

In other news, the New York Times reported on March 3 that Native Nations are fighting each other over plans to build casinos. As the Times put it, "casino-owning Indian tribes have emerged as some of the most powerful and dogged opponents of new Indian casinos."

Strange as it may seem, the casino-owning Nations are appealing to state governments and politicians to help them fight rival casinos! "Tribes from Oregon to Arizona are now using their casino wealth [for] lobbying lawmakers, contributing generously to political campaigns and filing lawsuits."

For example, the Chukchansi and Table Mountain Peoples are appealing to the state of California as they battle the North Fork Band of Mono Indians. Two other Indian nations are appealing to the state of Arizona for help fighting the Tohono O’odham Nation, and still two others are working with the state of Wisconsin against the Menominee.

The Times quoted Philip N. Hogen, Oglala Sioux, a former chairman of the National Indian Gaming Commission: "There was a time when tribes felt like we’re all in this together, everyone can get a piece of the pie…. That unity has diminished over time, maybe regrettably."

It's regrettable, but not surprising, to see Connecticut and other states trying to block Indian self-determination and economic development. That sort of thing has been going on a long time. In 1828, the state of Georgia initiated a series of actions to oust the Cherokee Nation from its homelands, where it maintained a highly productive economy. Those actions set the stage for the infamous Indian Removal Act and Trail of Tears two years later.

It is, however, both surprising and unfortunate that any Indian nation would appeal to a state to act against another Indian nation. That sort of thing reminds us of the days when Indians opened the door to deep colonization by allying with colonial forces against their neighbors. Perhaps the most infamous example is the 1634-1638 Pequot War, when the Narragansett and Mohegan allied with English colonists to nearly destroy their traditional enemy. The Narragansett and Mohegan warriors withdrew from the ultimate battle, horrified by the brutality of the English; but this was not the last time an Indian nation allied with colonial invaders under the notion that "the enemy of my enemy is my friend."

As I ponder the situation, I am reminded of an 1886 U.S. Supreme Court case, United States v. Kagama. It was a case involving a federal indictment against two Indians for murder of another Indian in the Hoopa Valley reservation. The indictment was brought under a law enacted by Congress in 1885, declaring that seven major federal criminal laws (murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny) would apply to Indians, regardless whether they were on an Indian reservation.

The question in Kagama was whether the 1885 law was constitutional. The court had a hard time trying to find a justification for federal jurisdiction: "The constitution…is almost silent" on this question, the court said. "We are not able to see…any delegation of power to enact a code of criminal law for…Indians."

The Kagama court finally came up with a reason to uphold the law: "Indian tribes are the wards of the nation. They are communities dependent on the United States—dependent largely for their daily food; dependent for their political rights. … Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies."

The court concluded, "The power of the [federal] Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that Government, because it never has existed anywhere else."

Where does this leave us? First, the notion that the United States Constitution covers Indians even though the Supreme Court can't find anything saying so is an example of the "now you see it, now you don't" quality of federal Indian law. Second, to the extent that federal domination is justified by Indian powerlessness, Indian casinos have the potential to undo that domination by increasing Indian wealth and power, eliminating their dependence for "daily food" and "political rights." Third, to the extent that "local ill feeling" among the states still exists, the reason for Indians to be wary of states still exists.

The law that Kagama upheld was passed in response to an earlier Supreme Court decision, Ex parte Crow Dog (1883), which overturned a federal conviction of an Indian. The Crow Dog case said that criminal law among Indians on a reservation was for the Indians to handle, as an aspect of their sovereignty. Congressional reaction to this decision led to the 1885 law.

While the Crow Dog decision was in favor of Indian sovereignty, it is clear from the court's opinion that Indians were held in low regard, and that Indian sovereignty was justified only because of that low regard. Here's how the court put it:

The federal law "tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality."

As the saying goes, with friends like that, you don't need enemies. Before an Indian Nation asks a state to help fight one of its enemies, it should ponder who its friends really are.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.

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