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Indian casino liquor: Licensing impacted by anti-Indian forces

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In 1830, President Andrew Jackson acted to remove American Indians from
their ancestral homeland. He wrote:

"There your white brothers will not trouble you, they will have no claims
to the land, and you can live upon it, you and all your children, as long
as the grass grows or the water runs, in peace and plenty."

That was a lie. The rape of Indian land continued until reservations were
sited on truly inhospitable territories. In this century, battlegrounds
shifted to where neighbors of those reservations continue to attack based
on jealousy, greed and racial animosity. One forum is the California
Department of Alcoholic Beverage Control administrative hearing.

Compelled by the need to remain competitive with non-Indian casinos and
other entertainment businesses, Indian gaming enterprises seek licenses to
serve alcohol to their patrons. In the local newspapers published on the
eve of ABC hearings, "neighbors" were allowed free reign to speak.

These "neighbors," whose testimony is propelled by organized core groups,
have -- without facts -- told the newspapers that the casino generated
drunks, fostered prostitution, was a nuisance, and made the tribe so rich
the tribe could just "buy ... [the neighborhood] all up without thinking
about it."

None of the anti-Indian group's allegations stood up in the ABC hearing
process, but facts didn't stop them from repeating their charges over and
over again. They have a powerful ally in Gov. Arnold Schwarzenegger, who
has been quoted as saying about (among other tribes) the San Manuel Band of
Mission Indians' efforts concerning Propositions 68 and 70 in October 2004:
"It is tremendous greed. They want to rip off the people ... Pull the wool
over people's eyes."

Relative to San Manuel, a nearby city council member editorialized: "Third
and most important, the racial monopoly that exists for legalized gambling
in California must be eliminated."

This new battleground gave a voice to some organized residential neighbors
who could see the casino up on the hill near the new homes tribal members
built. Neighbors were angry and jealous, and they didn't like the tribe's
financial successes. They had no other legitimate forum in which to object.
We propose that the protest testimony against an ABC license was directed
at the fact that the tribe was finally embarking on a lucrative enterprise
on the barren land the federal government marched them to a century or so
ago. Some "neighbors" object simply because they didn't like American
Indians (or at least successful ones).

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Residents in the area get to testify, and loudly, against tribal rights to
self-sufficiency because the U.S. Supreme Court decided this issue in Rice
v. Rehner. However, there are several recent California ABC administrative
cases that clearly spell out this jurisdiction is limited and must be
exercised in accordance with underlying principles of federal Indian law.

For example, in the San Manuel case (tried by the authors of this article
and decided by the ABC in September 2005), protestors argued that city of
San Bernardino zoning regulations precluded issuance of an ABC license on
the reservation. Nevertheless, local zoning ordinances have no application
to land use and regulation by sovereign Indian nations on reservation
territory.

In San Manuel, 62 protesters tried to keep a liquor license out of the
magnificent new San Manuel Casino. We, as tribal attorneys, pointed out
during the administrative hearing that the core of these organized
protesters had been attacking tribal rights, screaming against every phase
of the project at anyone who would listen, even when there was no reference
to liquor. The core group tried the city council, the city planning
commission, the mayor, the police chief, state legislators and the local
press. None of these agencies could intervene. But now, under California
law, the ABC had to listen. Among other theories, some protesters argued
that local zoning laws precluded issuance of an ABC license on tribal land.

However, the tribe argued and the department correctly determined:

"Whether or not the Tribal lands are located within or without the city
limits of San Bernardino, the City of San Bernardino has no land use
jurisdiction on the Tribal lands and its municipal zoning ordinances as to
that territory are invalid."

"It was not established that either the City of San Bernardino or San
Bernardino County has jurisdiction to impose a zoning ordinance on the
Tribal lands ... Any zoning ordinance of either local agency purporting to
restrict land use on the Reservation is invalid."

The anti-Indian group in the San Manuel case also raised standard
allegations concerning crime, nuisance, traffic congestion and noise. These
appeared predicated on thinly veiled hatred rather than fact. The
anti-Indian protesters raised these standard issues but also attempted to
invade the exclusive province of state/tribal relations governed by the
compact. Had the ABC allowed that incursion, another vestige of tribal
authority and jurisdiction and therefore sovereignty would have been
eroded. Such sovereignty, already unfairly limited by federal law, must be
eternally and vigilantly guarded.

Absent a state constitutional amendment that would exempt reservation
territory from ABC jurisdiction (where there would necessarily be a
modification of tribal compacts by mutual consent), or a reversal of Rice
v. Rehner, California will maintain its regulatory authority over liquor
sales on reservations. Limited as they are, tribal rights and the indicia
of independence must be defended at each line of battle, or these rights
will be lost just as surely as the land taken during Andrew Jackson's time.

Solomon, Saltsman & Jamieson is a law firm whose attorneys practice in the
areas of alcoholic beverage control law, ABC Appeals Board cases and all
related land-use matters. The firm represents several American Indian
tribes in California.