WASHINGTON -- A damaging charge against Supreme Court justice nominee
Harriet Miers is circulating through American Indian e-mail networks: that
in 1999 she was the inspiration for the Texas government's drive to shut
down the casinos of two federally recognized tribes. The allegation is
debatable, but supported by enough circumstantial evidence to make it worth
The allegation is that as chair of the Texas Lottery, Miers was worried
about the declining performance of its major weekly game and attributed the
falloff to competition from the casinos. According to the rumor, she
prevailed on then-Gov. George W. Bush to get then-Attorney General John
Cornyn to bring suit to close the tribal casinos.
Documents to support this sequence are lacking. But there is enough in the
public record, including Miers' own statements, to make it a serious
question for her confirmation hearings -- if any senator can be found to
raise issues of concern to Indian country.
The suits against the Tigua Tribe of Ysleta del Sur Pueblo and the
Alabama-Coushatta Tribe ended their Class III gaming in 2002, abruptly
quenching a glimmer of economic progress for their impoverished members and
throwing hundreds of employees out of work. The episode ranks as one of the
most bitter in a long and growing list of recent state-tribal conflicts.
It also recently figured as one of the most cynical tales in the scandal
surrounding now-discredited Washington lobbyist Jack Abramoff. In 2002 --
well after Miers had left Texas for the White House -- Ralph Reed, a
leading Christian lobbyist, organized a campaign to support the closing of
the Tiguas' Speaking Rock Casino. (Cornyn's campaign was supported by Reed,
who, according to a Senate investigation, was working in tandem with
Abramoff.) After the closure, Abramoff secured a contract from the tribe to
lobby for its reopening. The episode is under investigation by the Senate
Indian Affairs Committee.
But the charge involving Miers is a new and debatable twist. A centrally
placed non-Indian employee of the Tiguas during the 2002 struggle said he
had never heard her mentioned. He said the driving force was Cornyn, who
was strongly supported by Bush.
This prominent participant in the 2002 struggle, who requested anonymity,
said Speaking Rock had been operating in full view from 1993 to 1999
without any reaction from the state government. He said he was convinced
the decision to close it was "political payback" for a contribution the
Tigua Tribe made to the Democratic opponent of George Bush in the 1998
The move also followed Cornyn's election as attorney general. His spokesmen
have always maintained he was taking action against what he saw as an
illegal situation. He based his suit on the Tiguas' 1987 federal
recognition statute which forbade gaming not allowed by the laws of Texas.
The tribe's supporters argued that establishment of the state lottery in
1991 opened the door to the casino.
In 1999, Cornyn launched a campaign to close Speaking Rock and ultimately
succeeded, devastating the tribe's economy. Three years later, the 5th
Circuit Court of Appeals sided with Cornyn, and the U.S. Supreme Court
declined to take up the case.
Cornyn followed his success in closing the Tigua casino by winning election
to the U.S. Senate in 2002. He now sits on the Judiciary Committee, which
will consider the Miers nomination.
But public statements by Miers at a meeting of the Texas Lottery Commission
give some color to the story, or at least help explain how the rumor got
started. The Feb. 29, 2000 sitting took up the disappointing performance of
Lotto Texas, the flagship game producing 60 percent of the state lottery
sales. The year-to-date decline from the previous fiscal year was nearly
Representatives from Gtech, the Texas lottery contractor, told the
commission it was due to a string of "bad luck," or rather good luck, for
lotto players. The minimum jackpot of $4 million had been hit six times in
a row, preventing a rollover into larger jackpots that attracted more
But Miers wasn't satisfied. "I guess I have one additional concern," she
said. "There is an increased competition for these dollars. And whether it
is Internet or casinos or they are close by, or whatever, we do see
competition that was not there earlier. So we need to make sure that we are
making changes responsive to real issues as opposed to factors that we
This statement came five months after Cornyn had already brought his suit,
as did the alarming decline in Lotto Texas sales. So the sequence doesn't
fit the e-mail accusation. But Miers did express concern about casino
competition. Whether this translated into political support for Cornyn's
protracted legal campaign is a serious topic for investigation. And so is
the possibility of prejudice on issues of tribal sovereignty now heading
for the Supreme Court.