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Texas attacks Native sovereign bases


Now comes the State of Texas, set to mow down Indian economic futures. Texas Attorney General John Cornyn, backed up by court decisions, intends to pull the plug on the idea that Indian sovereignty can supersede state law. This week the Tigua Indian Tribe of the Ysleta del Sur Pueblo's casino in El Paso lost its bid to stay open when a panel of the U.S. 5th Circuit Court of Appeals upheld the ruling of a lower court that the tribal casino was illegal under Texas law.

This is a case driven by great intensity. The casino closing is expected at least by Feb. 7, on which date the court opens the way to enforcement for the lower court's ruling. Nevertheless, the attorney general's office is filing a motion for an immediate release of the Mandate early this week. Release of the Mandate allows the attorney general's office immediately to enforce the original court order to close the Tigua's Speaking Rock Casino. Texas, as signaled by President George W. Bush's own statements during the presidential campaign, believes strongly that state law supersedes Indian sovereignty.

In other states, a more pragmatic form of Republicanism recognizes the potential uses of Indian gaming and other business enterprise initiatives to act as "economic rotors" in areas of the state seriously affected by the slowdown in trade and commerce. The Tigua case, however, smells of wanton anti-Indian motivation. Before Attorney General Cornyn's lawsuit in 1999, which ultimately resulted in the now threatened demise, the casino operated by virtue of the tribe's federal recognition status. The attack on the Tiguas' economic base comes at a time when the state of Texas is endorsing its own gaming ventures, such as racetracks and casino parks. The Alabama-Coushatta tribe's own fledging casino is next up on the state's attorney general's initiative to stamp out Indian gaming operations in Texas. That case was only waiting resolution of the Tigua case.

Attorney General John Cornyn, whose doggedness to deny the Tigua's sovereign rights borders on the vindictive, recently announced his candidacy for a seat in the United States Senate. It remains to be seen how his campaign to criminalize an economically beneficial Indian gaming enterprise in Texas, which will cost over 800 jobs and as many as 2,200 collateral jobs, as well as some $55 million in vendor sales to El Paso businesses, will affect his political aspirations.

The Tiguas have vowed to take their case to the U.S. Supreme Court, but realistically, there are few options for them. The high court earlier refused to hear an appeal from the Tiguas on their case against then-Gov. Ann Richards to force her to negotiate a compact on their gaming initiative. The 5th Court of Appeals ruled against the Tigua on that case as well. Whatever strategy the beleaguered tribe follows, it deserves the support of all of Indian country. It is hugely important to draw the line of protection around essential economic strategies that are only now, for the first time in hundreds of years, beginning to develop serious economic potentials in tribal America.

The state argues that the Tigua agreed to abide by Texas gaming laws at the time of their federal recognition in 1987, with the Restoration Act. This debated issue appears the most difficult obstacle for the Tiguas to overcome in the courts. As such, it underscores the importance for indigenous peoples of always taking the utmost care never to give up fundamental principles. A right never negotiated away is a right retained. Once given away in too simple or easy language during treaty or compact making, or recognition processes, rights are virtually impossible to regain fully. Nevertheless, federally recognized tribes have the right to demand good-will negotiations from all states in the Union in putting together "compacts" or agreements to run gaming enterprises. This has been a major covenant of Indian life in North America for the past generation.

The covenant that allows Indian peoples some flexing in their economic development was won by tribal governments in the past 20 years, and was part of the strong Native self-governance initiative that became federal policy in the 1970s. This resolved, in part, that retained Indian sovereignty could open certain regulatory avenues to tribal businesses. When tribes pursued clearer definitions of their sovereign rights, through court decisions and congressional fiat, expanded opportunities to rebuild their hugely depleted economic bases emerged.

Through gaming and other self-regulated initiatives, both of the national political parties, including many prominent Republicans (Richard Nixon, George Bush Sr., John McCain), endorsed the economic rebuilding made possible by these Indian gains. The present administration could find a good precedent even in Richard Nixon's July 8, 1970, "President's Message to Congress," which declared the end of termination as policy and ushered in a new direction in Indian policy that favored increased tribal autonomy.

The development of these important economic opportunities for American Indian tribes came at a time when Indian resources via the federal government were seriously declining. During the Reagan administration and later during the Clinton years, urban and federally based social welfare programs were severely cut back. Many Native families, in the flow and residue of federal relocation and social reorganization policies, were further dislocated. Social safety nets disappeared while training and other employment initiatives also faded.

Now, the general economy has taken a serious dive and misery is gaining ground. Tribal governmental services are severely strained, a malaise of the times shared with neighboring towns and counties. Corporate investment is deserting middle America and jobs are routinely cut by the tens of thousands. El Paso politicians and many residents are expressing outrage at the threats against the Speaking Rock Casino. The smell of anti-Indian discrimination is in the air. There is a lot of economic hurt in the surrounding population. The casino has been making all the difference.

The worst of this case is the lack of real need for the Texas attorney general to pursue it so vigorously. Across Indian country, the unrelenting approach of Attorney General Cornyn against two small yet potentially viable tribes in Texas is seen as indicative of a suspect anti-Indian intensity, perhaps stemming from the pressure of powerful forces, but in any case, intolerant of the freedom of American Indian governments. It gives serious cause for concern (shades of Slade Gorton!) that a person with such a callous anti-Indian approach might end up as a U.S. Senator from Texas. A more encompassing approach might have seen the Tigua and Alabama-Coushatta as willing partners to the development needs of the state. Such an approach, considering Attorney General Cornyn's ties to the White House, might have made good on President Bush's subsequent campaign pledge to support Native self-government and economic development.

The Tigua case needs to be known and supported. Indian country should help the beleaguered Tigua and other Native nations of Texas to state their case nationally, and in the U.S. Congress. They are exactly in the same situation as a great many tribes seeking to improve their economic options through the responsible exercise of their liberty and freedom ? seeking, too, an end to so many broken promises ? and the possibility that justice can still prevail.