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Let the Games Begin: A poor proposal in Pennsylvania

Could Indian gaming expand to Pennsylvania? Legislation proposed in that state's Senate seeks to authorize a pair of Indian casinos, although some in that chamber said the plan has no chance of success. Purported terms of this proposal, however, do merit closer examination.

The bill, proposed by Sen. Vince Fumo, D-Philadelphia, would create a gaming oversight board to issue licenses for slot machines at the state's six horse tracks as well as for seven "slots-only" casinos. The board would also be allowed to permit up to two Indian casinos in the state. All of these operations would be subject to state regulation and taxation at an incredible 34 percent of their take.

Applicants for the Indian casinos must be federally recognized tribes that do not already operate casinos in other states. They must also demonstrate that they once resided within what is now Pennsylvania and waive both their gaming rights under IGRA, as well as their sovereign immunity. Furthermore, the tribes would have to renounce existing land claims.

The Fumo bill is reportedly tailored to appeal specifically to the Delaware Tribe of Eastern Oklahoma and the Delaware Nation. Both are federally recognized descendants of Lenape Indians who lived around Delaware River at the time of European contact.

Earlier this year, the two Delaware tribes announced their intent to file a federal lawsuit to recover 315 acres near Easton, Northampton County, they say was stolen from their ancestors two centuries ago.

A report in the Philadelphia Inquirer said the proposal "would spare the Delaware Tribe and the Delaware Nation years of legal battles in the uncertain pursuit of federal approval to run gambling halls." Yet what Pennsylvania is really saying to the tribes is "our way or the highway" - accept this deal or we'll fight you in court.

Last May, Governor Edward G. Rendell, a Democrat, rejected Indian gaming, calling it "not good" for the state. It seems, however, that neither Pennsylvanians nor their leaders have little if any clue about the nature of Indian gaming. Articles in both the Inquirer and the Allentown Morning Call refer repeatedly to Indian gaming as being "unregulated," which, as readers of this paper certainly know, could not be farther from the truth. Residents and politicians of the Keystone State would be well advised to educate themselves on the realities of Indian gaming - actually reading the Indian Gaming Regulatory Act and a few back issues of Indian Country Today would be a good start.

As sovereign entities, tribal governments are of course free to negotiate with other governments and to enter any type of arrangement - economic or otherwise - deemed worthy. But tribes must be particularly wary of any deal that smells even vaguely of a compromise on their sovereignty. We need only look at the recent experiences of the Narragansetts in Rhode Island and Maine's Penobscots and Passamaquoddies to see why this is important.

Nerves are still raw in Rhode Island after a deplorable state police raid last July on a tribal smoke shop to confiscate untaxed cigarettes. The state said that the 1978 land claim settlement with the tribe provides for state jurisdiction over tribal lands. The tribe, which received federal recognition in 1983, vehemently disagrees. Narragansett efforts to gain a statewide referendum on casino gaming, required by some devious 1996 federal "midnight rider" legislation introduced by a former Rhode Island senator, remain stymied.

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Just over a month ago, voters in Maine soundly rejected a joint Passamaquoddy-Penobscot casino by a 2-1 margin. Such a plebiscite, unnecessary under IGRA, was required under a land claim settlement agreement the tribes signed with Maine in 1980.

The Delawares have made past efforts to enter the gaming arena, but potential deals in New Jersey and Kansas both collapsed. Their desire for economic development is commendable. But in dealing with a state that appears to have no understanding whatsoever as to the purpose of Indian gaming (i.e. to finance tribal not state governments) the tribes are advised to tread lightly. Pennsylvania is concerned only with creating a revenue stream and has no interest in tribal welfare; Harrisburg should thus not be allowed to infringe on tribal sovereignty.

After being pushed out of their homelands in southeastern Pennsylvania, New Jersey and Delaware, the Lenape moved westward. While two smaller bands went to southern Ontario, the main party settled first in western Pennsylvania, then moved on to Ohio and Indiana. At this point, a group split from the main party and migrated south into Texas. This group eventually settled in Anadarko, Okla. in the 1870s and is now known as the Delaware Nation of Western Oklahoma or the Absentee Delaware; today this federally recognized tribe numbers roughly 1,500 people.

The larger group of Lenape moved on to Missouri and then Kansas before finally settling in its current location of Bartlesville, Okla. in 1868. Today, this group numbers approximately 10,500 (4,000 of whom reside in Oklahoma) and is known as the Delaware Tribe of Eastern Oklahoma. This group, after years of being considered a part of the Cherokee Nation, received separate federal status in 1996.

Other bands of Lenape descendants continue to reside in New Jersey and Pennsylvania. None of these groups enjoy federal recognition. Lenapes also reside in Ontario.

Cayuga Catskill casino?

The week of Dec. 1 brought good news for the Cayuga Nation of New York. The BIA's eastern regional office in Nashville approved the tribe's land-in-trust application for a Catskill casino. The bureau's main office in Washington is slated to review the application and make a final determination sometime during the upcoming holiday season.

While this is certainly a welcome step for the Cayugas, they still face the hurdle of securing a Class III compact. In October, the tribal leadership offered a comprehensive deal to settle the tribe's land claim and establish tax parity provisions at the tribe's gas/convenience stores in return for a compact for one of three authorized Catskill casinos. No public response has come from Albany.

The St. Regis Mohawk tribe has already received preliminary approval for its Catskill land-into-trust application, pending completion of a successful environmental impact statement. Other tribes believed in the running for a Catskill compact include the Oneida Nation of New York, the Stockbridge-Munsee Band of Mohicans, and the Oneida Tribe of Wisconsin.

Albany recently set March 1, 2004 as the deadline for beginning tax collection on reservation sales of fuel and tobacco to non-Indians. As the state has tied this issue to both land claim settlement and casino compacts, look for the "Catskill Casino Follies" to hopefully be resolved by then.