The disgraceful conduct of lobbyist Jack Abramoff and his cronies has created a firestorm of controversy about the role of lobbying and big money in politics, and the impact of influence-peddling on public policy decisions. Indian tribes were Abramoff’s victims and in no way responsible for his misbehavior or the unethical actions of the lawmakers he bought. Yet it looks like Indian tribes may pay a high price for Abramoff’s shenanigans.
Some lawmakers have concluded that tribes must be punished for spending big money to get their voices heard in Washington, D.C. Sen. John McCain, a former friend to Indian tribes, has now introduced legislation to wrest control of Indian gaming away from tribal governments and into the hands of the National Indian Gaming Commission.
When the Indian Gaming Regulatory Act was passed in 1988, neither the tribes nor Congress imagined the phenomenal success it would become. (If Congress had, it is quite likely that the act never would have passed in the first place.) Most people assumed that the tribal “casinos” would be smoke-filled pole barns offering high-stakes bingo and not much else. Tribes proved them wrong, developing highly successful and sophisticated gaming operations that now serve as the primary engines for economic growth in rural communities throughout the United States. That has made some people very upset.
When some politicians began blaming the tribes for the Abramoff scandal, their “blame the victim” message struck fertile ground among the chronic Indian-bashers who seized the opportunity to declare righteously that “someone has to get these tribes under control.” Soon after, McCain introduced Senate Bill 2078, an amendment to IGRA that has enraged tribal leaders and become the rallying cry for every Indian-hater in the country.
There are so many things wrong with S. 2078 that it’s difficult to list them all within the limits of an opinion column. First off, the bill is legislation in search of a problem. Virtually all of the bill’s most onerous provisions are unwarranted and unnecessary because they present a “cure” where no illness is present. Here are just a few examples.
S. 2078 would transfer authority for contract approvals from tribal governments to the NIGC, on the premise that unscrupulous developers or vendors might defraud or take advantage of tribes. Is McCain aware that the largest fraud ever perpetrated upon America’s Indian tribes (or perhaps the second largest, next to the original land thefts) was not by a “developer” but by the U.S. government, which still cannot account for millions of dollars held in trust for tribes in payment of their land, water and mineral rights? Where was Congress when that robbery was going down? For that matter, where was Congress when dozens of tribes were shaken down and forced to “share revenue” with states that held guns to their heads during compact negotiation? Why isn’t McCain trying to protect tribes from that kind of victimization and exploitation?
S. 2078 would transfer authority for budget allocations from tribal governments to the NIGC, on the premise that tribes are incapable of making responsible choices about revenue allocations. Has the federal government considered dictating how states or local communities make their budget decisions? What is the rationale for permitting state legislatures total autonomy over their spending, but denying constitutionally recognized sovereign nations the same right? When was the last time a state entered into a treaty with France or England?
S. 2078 would take regulatory authority over Indian gaming away from tribes and give it to the NIGC, despite Congress’ intent that tribes would be the primary regulators of their own gaming operations. This, despite the fact that there have been no scandals, no problems, and not a single shred of evidence that the integrity of Indian gaming has ever been seriously compromised. There is no similar effort to regulate state lotteries or privately operated gambling. Apparently, it is only Indian tribes that are incapable of regulating themselves.
S. 2078 would eliminate the two-part process for transferring land into trust for gaming purposes, forever denying landless tribes the opportunity to develop gaming programs on lands they might acquire in the future. While the Minnesota Indian Gaming Association has opposed off-reservation gaming for many reasons, we have also opposed any legislation that would eliminate this option completely, no matter the circumstances.
Perhaps the most egregious flaw of S. 2078 is the conspicuous absence of a remedy for the problem caused by the Seminole case. Every year, dozens of Indian tribes are held hostage by states extorting revenue-sharing in exchange for new or renewed compacts. This doesn’t even come close to the “good faith” negotiations envisioned when Congress crafted the compact process. Since the Supreme Court struck down the alternative compact process in the Seminole case, tribes have been at the mercy of greedy state governments. Given McCain’s presumably sincere desire to protect tribes from exploitation, we’re shocked that he hasn’t addressed this fundamental problem in S. 2078.
There is a great irony in the debate over S. 2078. In the 1987 Supreme Court California v. Cabazon Band of Mission Indians decision, the court acknowledged the retained right of tribes as sovereign nations to engage in gaming without state interference as long as gaming in some form was legal in that state. State governors and attorneys general demanded that Congress limit this right so they would have more control over Indian gaming within their boundaries. Congress acceded to those demands and IGRA was born. The whole point of the compact process was to give state governments at least limited authority over tribal gaming.
Now S. 2078 proposes to hand over regulatory authority to the NIGC, potentially rendering toothless many of the existing tribal/state compacts. If the federal government is going to control Indian gaming so completely, why bother with the compact process at all?
Having introduced the draconian S. 2078, McCain now may find himself lost in the land of unintended consequences. He has alienated Indian tribes, his former friends and political allies. He has squeezed state governments out of the tribal gaming regulatory process. He has become the poster boy and fearless leader for all those Indian-haters who prefer their Indians poor, dependent and subjugated. He has taken his first step on the 2008 campaign trail by stepping on the necks of Indian people. Maybe he didn’t mean to, but if S. 2078 passes, what he meant to do won’t matter.
John McCarthy is the executive director of the Minnesota Indian Gaming Association.