S.477: The Real Game Now Begins

Joe Valandra
March 11, 2013

I have been thinking about the “Indian Land problems” that continue to swirl around DC. We have the ongoing impacts of the Carcieri and Patchak decisions and the seemingly vexing problem of “reservation shopping.” It was my hope that the shopping argument was a placard for negotiating the fix. Now I am not so sure.

This past week Senator Diane Feinstein introduced S.477 (To amend the Indian Gaming Regulatory Act to modify a provision relating to gaming on land acquired after October 17, 1988). This deeply cynical and troubling piece of legislation is aimed at keeping Tribal governments from obtaining justice and fulfilling the promises of the economic development enabled by the Cabazon case.

It is not a big surprise that the Senator has revived and strengthened the misguided concepts embodied in S.477. Briefly, it imposes two substantive analytic hurdles for taking land in to trust pursuant to §2719 of the IGRA—(1) a substantial, direct, modern connection to the land if the land is located within a 25-mile radius of the tribal head- quarters or other tribal governmental facilities (like a casino) of the Indian tribe on the reservation, and (2) demonstrates a substantial, direct, aboriginal connection to land. Number 2 comes along with nearly impossible review standards to be applied by the BIA. I will leave a more in depth and technical review to others. I will focus on the policy implications and motivations.

It is well documented that in implementing US government policy entire Tribal peoples were obliterated and their lands taken. No one can dispute that. The historical evidence (documents and artifacts) for many Tribal people were quite literally forever removed and made impossible to reconstruct. It was also established US government policy to force Tribal governments to move and/or merge onto lands not remotely close to historic homelands and with others that may not have shared any meaningful connection except proximity. Further, languages and relics were systematically devastated and cultures made illegal. The latter was true for all Tribes regardless of location or continuity.

Now I ask, in the face of the desolation imposed by the US government and the passage of time, how are tribes to get past the cruelly intentioned provisions of the Senator’s bill? The short answer is that they are not.
The so-called two-part exception in the IGRA is designed to give landless tribes and newly recognized Tribes a chance to partake in gaming. This was a well thought out provision given the history of the US government of dispossessing or destroying tribal lands and peoples. The current provisions of the IGRA are not perfect but do give Tribes a fighting chance.

It is clear from the floor speech of the senator that she is focused on “reservation shopping.” This is a trumped up rationale similar to her concern over “urban gaming” that is designed to cast a veil over a darker motivation.

The senator, knowingly or not, is serving the interests of Tribes that would specifically benefit from the provisions of S.477—those that have a perceived or measurable economic interest to protect. Since the passage of the IGRA numerous Tribes have invested heavily in their gaming businesses. There is a view among some Tribes that any competition is bad and therefore must be stopped. This is certainly true in heavily populated geographic areas like the bay area of northern California—which happens to be the senator’s home area.

By proposing S.477 the senator seems to be basing her motivation on more benign policy differences rather than on a tribe vs. tribe fight. It is my view that the argument is really about maintaining current economic advantages. Why else would she include a 25-mile radius test in the bill? Historically that was first proposed when the BIA began writing regulations to implement §2719 by one of the Indian gaming associations. In other words, the tribe vs. tribe battle is being publically staked out.

The thoughts I once had that S.477 is a chip to be cashed when the negotiations for a Carcieri and Patchak “fix” appear to be moot. If S.477 finds any traction it will do away with the need to halt a “fix” because the taking of new land in to trust for gaming will have already been effectively stopped.

Joe Valandra, Sicangu Lakota, is principal owner and president of VAdvisors, LLC, chairman and CEO of Tehan Woglake, Inc., and former chief of staff of the National Indian Gaming Commission.