The fight against the state: Propositions 5 and 1A


Sacramento, Calif. ? For years Indian gaming establishments were most likely small bingo halls that seldom pulled in much more in revenue than the local Catholic Church and barely even attracted the attention of neighbors or the government. In the 1980s, however, tribes began to abandon bingo, expanding instead into larger operations that featured card games and electronic machines.

This change led to inevitable problems with neighbors who began to fear the expanding establishments and adopted a NIMBY (not in my backyard) stance. Backed by changed public attitudes, tribes began to flex some political muscle on a national scale that resulted in the signing of the Indian Gaming Regulatory Act (IGRA) by President Reagan in 1988.

In the 1990s, when expanded gaming again came under threat by conservative Governor Pete Wilson, California tribes found a common enemy and a common cause. Wilson was also a force behind the largely reviled Pala Compact, which sought to severely restrict the rights of tribes to game and allowed for only basic concessions that many tribes saw a limitation on their constitutional right to sovereignty.

Some tribal establishments were, however, proving profitable. With their newfound revenues, the tribes in 1998 launched an all out public relations campaign in solid support of Proposition 5. But a judge subsequently threw out the measure.

Then Proposition 1A sought to add an amendment to the state constitution to safeguard Indian gaming. Throughout the campaigns, the tribes' collective resources, embodied in the California Nations Indian Gaming Association, found a spokesman seemingly made for televised commercials. Pechanga tribal chairman Mark Macarro appeared as the embodiment of what Indian gaming should be. Honest, intelligent and hardworking, Macarro entered Californians' living rooms. (Macarro did not respond to repeated requests for an interview.)

It was during this time that another major figure emerged in the battle to safeguard Indian gaming. Victor Rocha, a Pechanga tribal member and a cousin of Macarro, was a self-described "news junkie." At the time Rocha was a self-employed musician who had kicked around the Los Angeles and New York music scenes for over a decade. Rocha also discovered he had a love of computers and began to synthesize this with his love for news.

Rocha's daily e-mail updates of the latest news stories to the folks working on the Proposition 5 campaign proved to be an invaluable service. Soon more and more people in the campaign were asking Rocha to include them on his e-mail lists. When the campaign was over, some thought Rocha's work was done as well.

"During the victory party several speakers got up and jokingly told me that it was time to quit sending e-mails, but I had other ideas. I knew that my work had just begun," said Rocha.

After the campaign victory, Rocha turned his e-mailed news stories into pechanga.net, a web site linking to many American Indian news stories posted in online newspapers. Though pechanga.net focuses largely on gaming issues, about half of the site on any given day is dedicated to other Indian matters. Rocha adds to the mix with an occasional unusual story about some oddity. Though never crass he also occasionally mixes it up with politicians advocating anti-Indian issues and has sparred via the Internet with gaming foes.

One of Rocha's occasional sparring partners is Cheryl Schmitt, the co-director of Stand Up for California, an anti-gambling group. Schmitt campaigned against Propositions 5 and 1A and is frequently seen attending public meetings regarding Indian gaming.

She has often raised the ire of tribes who are fearful of her conservative views and feel that she is often unfairly targeting projects just because they are American Indian.

"You don't see Cheryl Schmitt taking on the business interests of other ethnic groups," said Victor Rocha.

Schmitt however believes that she is not a typical gaming foe. In the strange world of politics barriers often break down and positions mellow. Though Schmitt has been characterized as anti-Indian by gaming proponents she has also sparred with other "citizens' rights groups," over such issues as the Auburn Rancheria plan to build a casino on the eastern fringes of the Sacramento metropolitan area. Schmitt supported the tribe while the others did not.

Schmitt insists that she accepts the fact that Indian tribes have a legal right to open gaming establishments but only wants to ensure, in California's increasingly urban and crowded environment, that neighbors' concerns are addressed by the tribes when building large structures. She also claims to want to distance herself from the anti-Indian sentiment of some of the other property rights groups.

"I got a call the other day from some group over in Sonoma County who opposed a tribe building tribal housing next to them. I was shocked and at first I wondered whether or not I should even be talking to these people, but instead I decided to educate them about tribal rights, especially when they just want housing for their people," said Schmitt.

Regarding one of the most contentious issues of the day, however, that of potential urban casinos, Schmitt fears that loopholes in the law and new technologies might complicate things. Indian gaming in California only requires a compact with the governor by tribes wishing to open a Class III, or Nevada style gaming operation. Schmitt feels the distinction between Class III and the lower stakes Class II Indian gaming, which is supposed to involve at least a minimal amount of skill, is becoming increasingly fuzzy. New technologies in gaming manufacturing have created machines that act as virtual slot machines.

Ironically Schmitt feels better about Class III gaming establishments because of the regulatory guarantees that are required in the compacts with the governor. She fears that urban areas could become dotted with Class II operations.

When asked why she then supported the Auburn casino on the outskirts of the Sacramento urban area, Schmitt said that the idea of this casino is a misnomer since it officially lies outside of urban boundaries. She added that the Auburn tribe agreed to strict environmental standards and has agreed to pay large amounts of money to the Placer County government to mitigate local impacts through a Memorandum of Understanding signed between the tribe and Placer County.

Much has been made in the California media about several tribes who have attempted to move into urban areas. The Lytton band of Pomo Indians has tried to take over an old card room in San Pablo, not far from San Francisco and some 50 miles from their land base. The tribe managed to circumvent normal BIA channels for taking land into trust by sneaking a rider onto a congressional bill sponsored by George Miller, D-Calif.

Recently, another band of Pomos from near Clearlake tried to acquire land near downtown Sacramento for their own casino. Oakland Mayor and former California governor Jerry Brown suggested that a building on the old Oakland army base, directly across the Bay Bridge from San Francisco be given to an unrecognized Bay Area tribe for use as a casino. This has caused worry not only among the typical anti-gaming activists, but also in other tribes fearing that such moves will both cause a loss in business for the more remote casinos and also generate enough bad publicity to endanger the widespread public support tribes have thus far enjoyed.

For the tribes attempting to acquire the land, they feel they have no other choice, since they lost much of their land in the terminations. They believe that urban casinos represent the best business options for them and a rightful restitution of lost land.

Consider the San Pablo case. Attorneys for the Lytton tribe insist that everything be done legally and repeatedly point to the many consultations in which the tribe participated to address local concerns. They also point out the project's solid support in the San Pablo community and the legal precedents that enable them to circumvent the tortuous BIA process of taking land into trust.

Gaming consultant Lombardi thinks Schmitt and other property rights groups are overstating the problem with urban casinos. He said that in order even to open a Class II establishment, tribes have to deal with land-into-trust issues that may take years to resolve and are often subject to myopic interpretations of the law. Lombardi noted that Indian gaming in California is the most regulated industry in America and, with the compact process, the governor still holds the bottom line.

Though operating on sovereign land, tribes have had to make numerous concessions to the state government. Indian gaming in California is subject to scrutiny from at least two state regulators. One is the state Attorney General's Office which operates the Division of Gambling Control; the other is a newly created body in the governor's office called the Gambling Control Commission, which is mainly staffed with semi-retired politicians and government workers.

Some, like Macarro, have criticized the fact that there are two regulatory bodies and have argued that even Davis's office and state Attorney General Bill Lockyear's office do not know the authoritative scope of the two regulatory bodies.

"Mark my words: Governor Davis, and any other future governor in California will never allow a casino in downtown Los Angeles or in the Bay Area," said Lombardi.