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Coin: Tribes 'hijacked' by states demanding revenue

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Indian cars" still sit rusting amongst the weeds on tribal reservations and rancherias throughout California, home to the nation's largest tribal government gaming market. The blessings of tribal gaming have yet to trickle down to many of the more than 4,000 Hupa and Yurok Indians in the far north, where rays of the rising sun piercing forests of majestic redwoods often reflect off aging trailer homes on cinder blocks.

The myth of the rich Indian. The notion that all Indians have become millionaires is certainly not evident on many reservations and rancherias in California and throughout the country. There persists a long backlog of needs in Indian country where, despite a binding trust obligation by the federal government, the nation's First Americans are deprived of basic services and programs readily available to all others.

Thousands of Indians in California lack running water and electricity, jobs, educational opportunities, adequate health care, hope.

The memories are still fresh: Arnold Schwarzenegger's face flashing on the television screen during the October gubernatorial recall election. "Indians must give their fair share," Schwarzenegger told viewers. Our fair share?

Schwarzenegger said he will not negotiate new tribal-state gaming compacts unless tribes pitch in significant revenues to the state. He said he will not renegotiate components of existing 20-year compacts unless tribes pay an increased portion of their gaming revenues directly into the state's general revenue fund, an apparent violation of the Indian Gaming Regulatory Act of 1988.

It's a too common refrain. Desperate, cash-strapped governors are turning to tribes in an effort to remedy budgetary problems; often using the compact process under IGRA to extort revenue from tribes equally desperate to provide needed governmental services to their members.

"There could be happier things," Raymond Torres, chairman of the Torres-Martinez Desert Cahuilla Indians said upon signing a compact with outgoing Gov. Gray Davis, "but this is a step in the right direction."

The Torres-Martinez agreement and three other compacts signed by Davis before leaving office all call for the payment of tribal gaming revenues directly into the state's general fund. Schwarzenegger pledges to extract an even bigger share of tribal revenues.

Torres and other tribal leaders cannot be blamed for having succumbed to the extortion demands of state governments. When your people are impoverished, you play the hand you're dealt.

State and local governments have been able to violate the Federal law and demand a share of tribal revenues only because the Supreme Court struck down the provision of IGRA that permitted tribes to sue states for failure to bargain or not to bargain in good faith. A state demand for revenue sharing would, under the terms of IGRA, be bad faith bargaining in and of itself.

Following the law

Since IGRA was passed nearly 15 years ago, Interior has approved some 250 Class III (casino-style) gaming compacts in 24 states. Tribal gaming, in accordance with IGRA, has provided "a means of promoting tribal economic development, self-sufficiency and strong tribal governments."

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Section 11 of IGRA reads, "compacting provision of IGRA shall not be interpreted as conferring upon a state or any of its political subdivisions authority to impose any tax, fee, charge, or other assessment upon an Indian tribe, and that no state may refuse to enter into compact negotiations based upon the lack of authority in such state or its political subdivisions to impose such a tax, fee, charge, or other assessment."

"To date, the Department has only approved revenue sharing payments that call for tribal payments when the state has agreed to provide valuable economic benefit of what the department has termed 'substantial exclusivity' for Indian gaming in exchange for the payment," Aurene Martin, acting assistant secretary of the Interior, told the Senate Subcommittee on Indian Affairs on July 9.

"As a consequence, if the department affirmatively approves a proposed compact, it has an obligation to ensure that the benefit received by the state under the proposed compact is appropriate in light of the benefit conferred on the tribe.

"In general, the department has attempted to apply the law to limit the circumstances under which Indian tribes can make direct payments to a state for purposes other than defraying the costs of regulating Class III gaming activities.

"Accordingly, if a payment exceeds the benefit received by the tribe, it would violate IGRA because it would amount to an unlawful tax, fee, charge, or assessment. While there has been substantial disagreement over what constitutes a tax, fee, charge or assessment within this context, we believe that if the payments are made in exchange for the grant of a valuable economic benefit that the governor has discretion to provide, these payments do not fall within the category of prohibited taxes, fees, charges, or other assessments."

Enough is enough

"Because of gaming, some tribes have been very successful, employing thousands of people, both Indian and non-Indian, and reducing poverty and the welfare rolls in their areas," said Sen. Ben Nighthorse Campbell, chairman of the Subcommittee on Indian Affairs. "This success has attracted the attention of other governments, cash-strapped and hungry for new revenues.

"Many states are looking to gaming tribes to help eliminate their deficits, and some states are reportedly refusing to enter or renew compacts required under IGRA until tribes agree to revenue sharing provisions.

"Congress never envisioned that kind of pressure would be applied to tribes," Campbell said. As a result, he called for amendments to IGRA "to ensure that tribal gaming revenues are first used to meet the needs of tribal governments and their members. Only after satisfying those needs, would states and tribes be able to negotiate a revenue-sharing agreement."

Frank Ducheneaux, former counsel to the House Committee on Interior and Insular Affairs, said, "Nothing is said (in IGRA) about supporting state or local governments. It is true (IGRA) provides that one allowable use of net gaming revenue by Indian tribes is to help fund operations of local government agencies, but this is a discretionary decision of the tribes involved.

"It was the clear intent of Congress that states, in negotiating compacts, not be able to hijack tribal revenues by requiring revenue sharing provisions."

Jacob L. Coin is executive director of the California Nations Indian Gaming Association, an association of more than 50 Indian nations in the state. He is a member of the Hopi Indian Tribe, Tobacco Clan, from the Village of Kykotmovi in Arizona.