"We do a recall, election and take over. Let's discuss." – Jack Abramoff, February 14, 2002
In professional sports “the playbook is a sacred hardbound diary of trust. It's an accumulation of decades' worth of knowledge, tweaked and perfected, sectioned off by scribbles and colored tabs.”
Looming large in Indian Country right now, there’s another kind of playbook; a dark one. The plays were originally designed by Jack Abramoff during his infamous stint at Ysleta Del Sur, Coushatta and Saginaw Chippewa. For the last two decades, Casino Jack’s playbook has been enhanced with the knowledge of other lawyers, lobbyists and executives, especially those in the Indian gaming industry. Even Native lawyers are now picking up and deploying the playbook.
The plays are shrewdly designed to divide and conquer Tribal Councils and communities from within, while federal trustees stand on the sidelines. The first few plays are as scripted as an NFL team’s opening drive.
Play 1—Create a Tribal Leadership Dispute. Whether through “recall, election and takeover,” or some form of Tribal Chairman fiat or General Council coup d’état and resulting insurrection, the Abramoffs of the world—the bad guys—know that if Tribal governmental factions can be created, it will paralyze all interested parties, including all levels of federal government, tribal and state law enforcement, and financial institutions. In turn, those pivotal players will not immediately know who to treat as the “rightful Tribal Council” for purposes of government-to-government relations, law and order, or financial security.
The bad guys will begin their takeover by setting their sights on weak persons or institutions in the Tribe, and then exploiting those weaknesses to drive a deep wedge into the heart of the community. They will tap, even bribe, a weak Chairman, or a group of dissident members, or notoriously unethical Tribal officers or employees. P.L. 280 jurisdictions are particularly vulnerable to such organized crime given perennial inter-agency law enforcement indecision and inaction.
In the face of a takeover, the United States must “recognize the last undisputed officials” as tribal officials—meaning the officials in office immediately before the leadership dispute was manufactured—for government-to-government purposes, until the dispute can be settled pursuant to tribal law and procedure. Alturas Indian Rancheria v. Acting Pacific Regional Director, 54 IBIA 1, 8 (2011). But the bad guys know that the Bureau of Indian Affairs will be slow to make that declaration.
The bad guys also know that if the BIA does ever declare the Tribe’s last undisputed officials as rightful leadership, they can immediately appeal any decision that goes against them and stay its effect for up to three years, given the current backlog at the Interior Board of Indian Appeals. 25 C.F.R. 2.6(b). While the appeal lumbers along, and the bad guys declare that the decision has no effect pending that appeal, they mount a concerted war of attrition against anybody who stands in their way.
Play 2—Seize the Palace. Concurrent with the eruption of the Tribal leadership dispute, the bad guys immediately exert control over the Tribe’s casino and other cash-generating enterprises—by violent force if necessary.
The bad guys know that in a war of attrition, a war chest is required—and there is no deeper war chest than replenishing Indian casino coffers. They seize the gaming money to pay themselves and to recruit an army of others. Recall the following emails from Abramoff to his colleagues: "I want all their MONEY!!!" “We're charging these guys up the wazoo . . . Make sure you bill your hours like a demon.” This is precisely the state of mind of the bad guy-lawyers, who are sure to extract an enormous retainer up front so that they get paid no matter what ultimately happens to the Tribe.
The bad guys then deny gaming per capita payments to their opponents to prevent them from accumulating any war chest of their own, while increasing those payments to other Tribal members to attract them as allies. Per capita monies are especially leveraged to buy votes in Tribal Council elections, or recall or initiative drives. All of this is done in disregard of any Tribal revenue allocation plan and the Indian Gaming Regulatory Act.
Because what the bad guys really know is that the National Indian Gaming Commission Chairman will largely sit on the sidelines until the inert BIA decision-making process finally runs its course, and that in the meantime the NIGC will not take any meaningful steps to shut down an illegal gaming operation or otherwise stem illegality. Recall that in Bay Millsthe states argued that the “Commission only rarely invokes its authority to enforce the law against Indian tribes.” The states appear to be right. As we also saw in Bay Mills, the entire U.S. Department of Justice—from local U.S. Attorneys and FBI Special Agents, to everyone at Main Justice—sits idle too, despite its clear statutory criminal and civil authority to intervene. Indian country could use Phil Hogen and Tom Perrelli right about now.
All the while, the bad guys run roughshod over the Tribe’s entire gaming operation. This increasingly includes heavily armed “security” personnel surrounding the casino, paid with gaming monies and tasked to by any means necessary, prevent legitimate Tribal officials from resuming control over the casino.
Play 3—Cause a Tribal Membership Dispute. The bad guys know that if they style the Tribal leadership dispute as a membership dispute, nobody will touch it. They know that under banner of Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), federal, state and local officials will simply say: “Sorry, the matter is internal to the Tribe. Tribes are sovereign and self-governing.”
The bad guys know that they can claim to disenroll any Tribal Councilperson or member who is not aligned with them, without suffering any legal recourse. They know that the federal and state courts will almost surely not get involved. They also know that they can denounce an Indian court as illegitimate and flout any Ex parte Young efforts to prospectively enjoin their “ethnic cleansing” efforts.
Tribal disenrollment is already at an “epidemic” level according to Professor David Wilkins; applying the Abramoff Playbook only accelerates the self-genocide.
Play 4—Rush to the Media. The bad guys hurry to create headlines that further cause folks in positions of power to stay out of it. The news stories they generate—through paid-for press releases via PRNewswire—will speak of “tribal disenrollment” and “tribal factions.” They will allege some form of wrongdoing by their opponents, to the point of slander or libel. They understand that federal and state officials, cops and judges, as well as local community members and business leaders, will read the resulting headlines. In turn, those readers will fall back on preconceived ideas about what is happening within the Tribe, leading them to either pick the bad guys’ side or stay out of it completely.
Play 5—Make Political Rounds. The bad guys rush to visit officials at all levels of government, starting at nearby towns and counties, and extending to state and national capitols. Aided by the first four scripted plays, the bad guys spin their talking points into the minds of anybody who innocently gives them a meeting, and further cause folks to either pick their side or “stay neutral.” They especially lobby BIA superintendents and career staff to delay the agency’s recognition of the last undisputed Tribal officials, knowing that all other government officials will await that determination before they might be inclined to do anything.
Play 6—Exploit National Tribal Silence. The bad guys know that Tribal leadership and disenrollment disputes are taboo in forums like the National Congress of American Indians and National Indian Gaming Association. They leverage this silence to further advance their cause. Even worse, the bad guy-lawyers write large checks on behalf of their firms or other affiliates, even other inter-tribal trade associations, to sponsor large inter-tribal meetings. National Indian groups unknowingly accept that dirty money and promote those sponsorships, which allows the bad guys to infiltrate the groups’ most inner circles, where they spread their message to ensure continued inaction. With their most powerful potential critics—other Tribes’ leaders—hushed, it becomes even easier for the bad guys to persuade federal officials to either do nothing or tread slowly.
This is really happening, and these are only the first six scripted plays. Today’s Abramoffs are already tweaking and perfecting new plays, without any shame or repercussion. Nobody formidable is standing in their way.
Unless there is a dramatic change of mind and heart within Indian country and its extended federal family, it is only a question of time before the bad guys hit another Indian community. And absent a change in the status quo, the good guys may soon be left with no other choice but to preemptively call plays from the Abramoff Playbook in self-defense of what is right—and what is truly Tribal.
Gabriel S. Galanda is the Managing Partner of Galanda Broadman, PLLC, an American Indian-owned law firm dedicated to advancing and defending Indian rights.