Tuesday, March 25, 2008

Reservations Rebuffed: Off-Reservation Gaming Policy

3.23.08

Reservations Rebuffed

By Shawn Zeller, CQ Staff

Tribal casinos, which have bulked into a multibillion-dollar industry since Congress first gave them its blessing two decades ago, now possess all sorts of economic and political clout — but not enough, it seems, for them to go off the reservation.

American Indians marooned on reservations far from population centers have long pressed the Interior Department to grant them the authority to launch gambling operations closer to where the people willing to risk their money live — and rake in the sort of revenues that the more fortuitously situated tribes have enjoyed.

These tribes argue that the mass repatriation of Indians onto federal reservations in the 19th century was originally an unjust process driven by little more than federal fiat and so shouldn’t form any basis for sound policy now. What’s more, they argue, tribes now flush with gambling money, such as Connecticut’s Mashantucket Pequot Tribal Nation, came into possession of optimally sited reservation land via controversial treaties that often had little or nothing to do with the location of ancestral land.

But in January top Interior officials wrote to rebuff 11 tribes that were waiting on applications to acquire new land for casinos. (Eleven others were told their applications were incomplete.) At the same time Interior made public a new policy that, in the tribes’ view, makes it nearly impossible for them to win approval for any desirable off-reservation site.

Their letters contended that siting casinos too far from existing reservations would not produce meaningful employment opportunities to tribe members — a claim the petitioning tribes hotly dispute.

“When I received the notice, I hit the roof,” says Lorraine White, chief of New York’s St. Regis Mohawks. “It is completely contrary to our belief about the law.” The Mohawks, whose reservation is on the Canadian border, have plans with Empire Resorts Inc. to construct a 125-table, 3,500-slot-machine casino 350 miles to the south in the Catskill Mountains — less than a two-hour drive from Manhattan — and had secured the backing of local leaders and the state of New York.

What usually does off-reservation casinos in is opposition from local communities, as opposed to policy judgment calls from Washington. But the sweep of this year’s rejections by Interior suggests the federal consensus is hardening further against off-reservation gambling. And Interior’s new policy “makes impossible what was already nearly impossible,” says I. Nelson Rose, a law professor at California’s Whittier Law School who specializes in gambling.

In setting the policy, Interior cited a 1934 law intended to promote reservations as economic hubs for tribes. Under that law, the department says, it must subject off-reservation sites to greater critical scrutiny — the more so if they’re far removed from a tribe’s reservation. Applying that reasoning to the pending casino operations, Interior ruled that gaming facilities that are not within commuting distance of a reservation, apparently about 75 miles, could undermine reservation life.

“Interior essentially said they know better what’s good for the tribe than the tribe does,” says Tom Shields, a spokesman for California’s Los Coyotes Band of Mission Indians, who have been seeking for years to build a casino in Barstow, 150 miles north of their reservation and a couple of hours by car from Los Angeles. That tribe’s plan has overwhelming local support, Shields contends, but it was among the 22 nixed in January.

Interior spokesman Shane Wolfe said he could not comment on the policy change because of pending litigation. Wisconsin’s St. Croix Chippewa filed suit in federal district court in Washington in December charging Interior with violating Congress’ intent in the 1988 law sanctioning Indian gambling.

The Mohawks also filed suit in January but have since dropped the case, White says, in order to step up efforts to lobby Congress on the issue. West Virginia Democrat Nick J. Rahall II , the chairman of the House Natural Resources Committee, introduced a bill this month that would mandate a consultative process with Indian tribes before Interior could adopt further changes.

The federal government has “a moral obligation” to consult with the tribes, Rahall says; the Bush administration’s handling of the issue, he adds, evinces “a clear disregard for that legal, political and moral responsibility.”

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