Pombo rides again against off-reservation gaming

WASHINGTON – Rep. Richard Pombo took up the gavel against off-reservation gaming again April 5, convening the latest in a series of House Resources Committee hearings aimed at amending the Indian Gaming Regulatory Act.

The bill introduced by Pombo, House Bill 4893, takes dead aim at off-reservation gaming and, in particular, reservation-shopping, the practice some tribes have engaged in of seeking casino sites far from their reservation lands, often at the instigation of non-Indian investors hoping to make a fortune. Casinos in or near urban areas are usually much more lucrative than casinos sited on rural or remote reservations. In some cases, as Steven Worthley, with the California State Association of Counties, contended in written testimony before the committee that “the possibility of significant economic rewards from operating urban casinos has eclipsed any meaningful exploration of whether these tribes have any historical connection to the area in which they seek to establish gaming facilities.”

Local town and county organizations, as well as individual citizens, have registered their distress with Congress. Both Pombo in the House, as chairman of its Resources Committee, and John McCain in the Senate, as chairman of the Senate Committee on Indian Affairs, have responded with proposals that have a chance of becoming reconciled as the new law on IGRA.

But Congress has tried to amend IGRA before, notably in the 108th Congress of 2003 – ’04. One reason McCain and Pombo seem to have a better chance of succeeding in the current 109th Congress has to do with local and electoral politics. California has been called the hotbed state for reservation-shopping. Pombo faces a contestable election there next November, in a year when Republicans nationally are getting themselves into the doghouse over corruption; a spendthrift, ineffectual war; a faltering presidency; and now, possibly, immigration policy reform.

Writing an end to reservation-shopping would be a real plus for Pombo with California voters at election time, if he can manage it. With thoughtful Republicans beginning to worry about their hold on the House majority, Pombo’s GOP colleagues in the House won’t have far to look if they need another reason to reward him with their votes.

The stakes are also high for McCain. More and more, the Arizona Republican is considered a certain presidential contender in 2008. Conservative columnist George Will spelled out the California angle in a recent column: The GOP may come to like McCain as a presidential nominee in part because he may be able to run well in California. That doesn’t mean he can ever be confident about the state’s many electoral votes, a lock for Democrats in recent presidential campaigns. But if he can run well enough to make a Democrat work hard for votes in California, the Democratic campaign won’t be able to work as hard in other states the GOP probably can’t do without. It won’t hurt a bit if McCain can campaign in California as the man who helped to end reservation-shopping.

But cynics need not assume that nothing more than the politics of the vote count compels this year’s concerted effort to amend IGRA. Reservation-shopping appears to be problematic for some small tribes, and for some small non-Indian communities and regions. A significant minority of tribes agree with the congressmen that it is also problematic for the Indian gaming industry at large. Both Pombo and McCain have built up an exhaustive record of considered local experience on the issue. Both have insisted on a relatively open process, and both have proved capable of refining their first-draft legislation when guided by insightful testimony. Both now steer their bills toward a floor vote of their full respective chambers. Come what may of the votes, that’s the way the system’s supposed to work.

That said, Pombo’s bill would make off-reservation gaming all but impossible. Tribes would need gubernatorial approval before they could apply to have the Interior secretary acquire trust land for off-reservation gaming purposes. They would have to submit to a county-wide referendum vote on gaming, win the consent of communities within a 75-mile radius, make impact-mitigation payments to local municipalities, and still get over most of the exhaustive hurdles to off-reservation gaming now in place. The bill does not now include a “grandfathering clause” for tribes currently engaged in getting off-reservation land into trust. McCain’s bill in the Senate does include a grandfathering clause, however; and the two bills will have to become one before they can become law.

The April 5 hearing may be one of the last before Pombo tries to move H.R. 4893 out of committee to the full House. As such, it brought a witness list rich in perspective – stacked against off-reservation gaming, to be sure, but still bringing breadth and focus to a full spectrum of issues both local and not.

Unwittingly perhaps, Michigan Rep. Fulton Sheen made a good argument for federal intervention in Indian gaming under the auspices of Pombo and McCain, proven allies of tribes in times past. What might less–tested characters make of Sheen’s steroidal outpourings? For instance, “The rampant proliferation of tribal gaming is running roughshod over states’ rights and local control and is jeopardizing everything from my own neighborhood to, as the Jack Abramoff scandal has demonstrated, the very integrity of our federal political system.”

Beyond every word’s being demonstrably false (with the possible exception of the reference to his neighborhood), they also get in the way of the serious case Sheen eventually builds – that non-resort gaming drains underperforming local economies by drawing expenditures away from local taxed businesses to the untaxed tribal casino, with consequences for state and county capacity.

Though at a certain level such economic reinvestment can’t be objectionable – no worse on the community purse than the corner store lotto, with tribal profits trimming the state’s social services bill by a little – economic theory suggests that on a larger scale it could give way to disinvestment, depending on circumstances. Absent off-reservation gaming, local, tribal and state authorities have every occasion to manage that dynamic under IGRA; but off-reservation scenarios introduce a skew factor.

Sheen’s research can’t be assumed any more reliable than his rhetoric, and in any case it’s the last thing most tribes will want to hear, not when they’ve only just established prosperous casinos following decades of often vicious marginalization and economic racism from surrounding towns. But they’re hearing it in Congress, where Sheen has added his local backing to a bill introduced by Rep. Mike Rogers, R-Mich., demanding an immediate national moratorium on new casinos. At a minimum, therefore, Sheen presents a case that behooves rebuttal.

The Shinnecock Indian Nation of New York, represented by Chairman Randy King, asked Pombo for a couple of changes to H.R. 4893. One would “add affirmative language that clarifies that Indian land actually occupied continuously for all of recorded history be given the same treatment as federal reservations created much more recently.” The bill would then avoid penalizing undoubted tribes for the vagaries of history and the Interior Department.

The Shinnecock also asked for nuance in the consideration of in-state off-reservation gaming activity. “Despite the fact that IGRA intends to allow tribes to game on land that has been theirs through the centuries, we do recognize political realities. One reality is that in some communities, powerful local groups and people may marshal political power to attempt to deny a tribe its rights. Given this reality, we believe that H.R. 4893 should preserve the ability, in closely circumscribed circumstances, for a tribe to agree upon alternate locations for economic activity. We believe that land claim settlements, when limited to the state in which the tribe is located, would allow tribes facing serious or insurmountable opposition to achieve economic stability, while still preventing inappropriate manipulations of the system.”

The Shinnecock here basically ask, as they did elsewhere in written testimony, not to be penalized for the actions of others.

Pombo is prepared to expand the radius of a casino’s impact, for purposes of the impact-assessment process, from 10 miles under IGRA at present to 75 miles. Pombo also calls for a county-wide referendum vote in favor of new tribal casinos. The two measures may seem reasonable in view of casino marketing efforts that reach far beyond a 10-mile radius; but in the view of the North Fork Rancheria of Mono Indians, the changes would be devastating. Five tribes are within the rancheria’s 75-mile radius, including two with established casinos that oppose Mono plans for a third.

Chairman Elaine Fink doubted that any tribe could meet the 75-mile radius test, let alone any tribe in California. As for the referendum, “We elect our officials to make the tough decisions concerning land use and development ... A referendum simply creates another opportunity for competitive interests to spend hundreds of thousands of dollars in creating a high profile political campaign that ultimately has little to do with what the residents of the affected community want.”

The Scotts Valley Band of Pomo Indians in California has been terminated and re-recognized by the federal government, but without benefit of its former rancheria. The band has carried out the rigorous requirements of IGRA that permit tribes that were landless and/or unrecognized when the law was passed to obtain trust land for gaming purposes (the so-called “after-acquired lands” exception, the after meaning after IGRA’s passage in 1988).

Chairman Donald Arnold beseeched Pombo to add a “grandfathering clause” to H.R. 4893, permitting tribes already engaged in land-into-trust applications to pursue the process without being subject to the bill’s new rules. Arnold asked that his people not be penalized for the “reservation-shopping” of others. IGRA’s exceptions to the overriding guideline that tribes must have gaming lands in trust as of the law’s 1988 passage, he argued, “were not intended for recognized tribes with established land bases to improve their competitive environment, and therefore these tribes should not be attempting to use the exceptions for such purposes.”