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For Time Magazine, Sovereignty 101

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(Perhaps the most basic problem of the TIME Magazine series on Indian gaming is that it completely misunderstands the constitutional structure of Indian country, which is also the most basic flaw of all critiques of Indian gaming. The following excerpt, which originally appeared in Native Americas magazine, attempts to explain the context of tribal sovereignty, undeniably one of the most important principles in Indian Country today.)

Although Indian Country takes different approaches to gaming, it shows near unanimity in support of the political and legal structure that makes Indian gaming possible. As tribal lawyers frequently observe, the casinos are a by-product of the inherent sovereignty of the Indian nations. Sovereignty doctrine underlies the court decisions setting the gaming framework. According to U.S. constitutional doctrine of recent decades, Congress can and has limited tribal sovereignty in applying state criminal law to reservations. But it generally has refused to let states impose their civil law. This distinction is the core of the 1987 Supreme Court case California v. Cabazon Band of Mission Indians.

This case overruled California's attempt to enforce its bingo game regulations on the Cabazon and Morongo band reservations. If the state had banned gambling altogether as a matter of public policy, the outcome would have been different. Such a law would have been "criminal/prohibitory" and within its powers to impose on a reservation. But since California tolerated gambling in bingo games, card rooms and horse race betting and even encouraged it through a state lottery, its bingo statute was "civil/regulatory." Hence, the tribal bingo games were out of state control.

Unwilling to declare that state civil law could never apply to a reservation, the Court left open "fudge factors" in its ruling - but the effect was to open a gaping loophole for all forms of gaming on reservations within the bounds of a state that did not completely outlaw gambling for all its citizens. Congress quickly intervened in 1988 with the Indian Gaming Regulatory Act.

This law set up federal regulation through the National Indian Gaming Commission. It restored some role for the states by authorizing state-tribal gaming compacts for full-scale Las Vegas-style casinos. And it gave tribes legal recourse if a state refused to make a "good faith" effort to reach a compact.

But the doctrine of sovereignty sometimes threw things awry, as in the long-standing impasse between the Seminole Tribe and the state of Florida. The Seminoles of Chief Jim Billie, the pathfinder of Indian gaming, sued Florida in 1991 to force compact negotiations. In 1996, the U.S. Supreme Court barred the suit, ruling that IGRA violated the 11th Amendment guarantee of state sovereign immunity.

The Seminoles decided to press ahead with their casino, defying Florida to sue them. In a 1999 decision, of which the implications are still not widely appreciated, the 11th Circuit U.S. Court of Appeals ruled for the Seminoles, applying "the venerable maxim that turnabout is fair play." If the tribe were unable to sue the state under the 11th Amendment, the state suit by the same token would be barred by tribal sovereign immunity.

The federal appeals panel made it clear that, without a compact, states had no leverage over Indian gaming. IGRA, said the 11th Circuit, "struck a careful balance among federal, state and tribal interests ... A central feature of this balance is IGRA's thoroughgoing limits on the application of state laws and the extension of state jurisdiction to tribal lands."

The nightmare for some non-Native neighbors is that the casinos not only are out of their control, but also are engines for expanding sovereign tribal territory. As Nicholas Mullane, first selectman of North Stonington, Conn., once put it, "There's nothing to stop the Mashantucket Pequots from using the profits from Foxwoods to buy up all of southeastern Connecticut."

The fear is that as the tribes expand their holdings, the land will become part of their sovereign territory, exempt from local regulation and taxation. Neighboring towns are diverting substantial tax money to legal attempts to forestall this menace. The town of Sherrill, N.Y., sued unsuccessfully to foreclose on 12 local properties owned by the Oneida Nation, because the tribe declared them sovereign territory and refused to pay local taxes. A federal judge gave the Oneidas a victory, declaring that repatriated land within the former reservation territory was indeed sovereign land. Three towns in Connecticut took a case all the way to the U.S. Supreme Court to prevent the Mashantuckets from incorporating 165 acres into their reservation. Even after the Court turned down the case in early May 2001, town officials and Attorney General Richard Blumenthal vowed to keep fighting.

The struggle is even more intense on another front?to keep new tribes from winning federal recognition and setting up casinos of their own. The trenches cut right through Connecticut, which has proven it can support highly profitable casinos, and is home to a newly recognized third federal tribe and two more state-recognized tribes with federal claims pending. Blumenthal and three Connecticut towns took a separate suit to the U.S. District Court in Hartford complaining that the BIA's Bureau of Acknowledgement and Research had tried to restrict their input on the "proposed positive" recognition of the Eastern Pequot and Paucatuck Eastern Pequot tribes. The ploy backfired when Judge Alfred Covello ordered an accelerated timetable for the final recognition decision, which resulted in acknowledgement of the new Historic Eastern Pequot tribe, a union of the two applicants.

Fights like these ironically guarantee that any newly recognized tribe will immediately set up its own casino. The expense of filing a petition with the BIA and assembling genealogical and historical material is great. The legal obstacles raise the cost immensely. The Mohegans spent $10 million on their successful recognition campaign, and other petitioners say their costs are similar. For all of the economic development that casinos have brought to gaming tribes, and the real wealth they have bestowed on a few, gaming has plunged Indian Country into a world of high-stakes conflict in which the price of sovereignty is eternal vigilance.

(Part two concludes the series.)