Shame on you, Dirk Kempthorne! You recently knocked out a number of applications for off-reservation Indian casinos around the country with one fell swoop, issuing a new rule where none existed before - requiring off-reservation casinos to be located within a reasonable commuting distance from the reservation. While your new rule provides that the interests of the state and local communities are highly relevant, you have not taken this into account in the case of the St. Regis Mohawk Tribe's Catskill casino project in Monticello.
Contrary to your recent action, your predecessor had previously approved the Mohawk project under the Indian Gaming Regulatory Act's two-part determination and asked the governor of New York to concur in the secretary's determination that the project was in the ''best interest of the tribe.'' In its April 2000 Findings of Fact, Interior ruled that although the proposed project is 350 miles away from the Mohawk reservation at Akwesasne, due to the high unemployment rate of tribal members the Mohawk casino project will relieve the problem by inducing many unemployed tribal members to travel to Monticello. This fact was found by Interior as a positive for the economic development of the tribe and was one basis for the secretary's two-part determination.
What you did is wrong legally, morally and ethically. You made up a new rule, with total disregard that your new, ex parte, factual determination is contrary to the long-established record of many tribal applications pending at Interior. And you did it all without notice or the grandfathering of prior applications, which is a clear violation of due process.
In February 2007, New York Gov. Eliot Spitzer concurred that the Mohawks' project was in the tribe's best interest; but 10 months later, on Jan. 4, you made a 180-degree turn without prior notice to the tribe or state. Nor did you follow rulemaking procedures for adopting legislative pronouncements. You simply made up and issued a new ''commutability'' requirement to make it such that the Mohawk project and similar projects nationwide would not see the light of day.
You made up the new rule last Thursday [Jan. 3] and implemented it the following day by dismissing several pending applications without notice of the new rules to the applicants, to even see if they could or wished to comply. You actually have created new legislation, and without congressional approval. Similar legislative proposals advanced by Sen. John McCain and Rep. Richard Pombo never passed. McCain's bill, at least, provided for the grandfathering of existing applications and a deadline for new applications.
Your commutability rule constitutes outright racism against Indians nationwide and is an insult to all Americans. You discriminate against tribal members as a class by adopting a policy intended to keep Indians on the reservation, away from mixing with mainstream America. You are individually violating their rights, as U.S. citizens, to due process and equal protection of law, including the right to pursue equal employment opportunities and the right to travel.
With all this controversy you have generated, you are not worthy of your title, Mr. Secretary.
- Joseph Bernstein
Delray Beach, Fla.