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The Wall Street Journal's derivative fiction

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To be attacked by the April 4 lead editorial in The Wall Street Journal is both a high honor and a thrill. We are honored to be taken as a serious target by one of the greatest institutions in the last 50 years of American journalism. We are thrilled for a reason best expressed by the young Winston Churchill, 'Nothing is more exhilarating in life than to be shot at without effect.'

Anyone who exchanges fire with The Journal should understand its formidable history. Its writers are unmatched for reporting skill, elegant style and personal courage. The late Daniel Pearl followed a path also marked by Publisher Peter R. Kann and International Operations President Karen Elliott House, husband and wife who separately won Pulitzer Prizes for reporting from the Muslim world.

Its editorial page has shaped national policy for three decades. During the 1970s, it laid the intellectual groundwork for the Reagan presidency with the 'supply-side' tax-cut advocacy of Jude Wanniski and Paul Craig Roberts. Its insistence on the moral superiority of the U. S. in foreign policy broke decisively with Henry Kissinger's realpolitik; to this day, it shapes the highest levels of the Administration's national security circle.

Its alumni are setting the highest standards in all walks of journalism. Its former foreign editor, Seth Lipsky, is a special inspiration for a publication such as ours; his vision in launching the Jewish Forward, an English-language revival of the great Yiddish paper Forverts, demonstrated the contemporary possibilities of a sector-focussed journalism. At one point The Journal even had an editorial writer, Edwin McDowell (now with The New York Times), who actually knew a little bit about Indian country. And the editor who pulled it all together, Robert Leroy Bartley, continues to show that he hasn't lost his touch for carefully researched 'high muzzle-velocity' polemic.

So we are a bit alarmed that in our exchanges on Indian gaming, The Journal, for all its history and talent, isn't holding up its end of the conversation. In the past, its editorialists prided themselves on original reporting. Its two latest attacks on Indian casinos, and the two editorial page features last year which fed into them, have been what we would politely call 'derivative.'

The Journal presents a generalized fiction of Indian gaming with the following plot: non-Indian financial interests have patched together tribes of dubious authenticity and corruptly procured their federal recognition through a compliant BIA so that their sovereignty will provide a cover for lucrative, unregulated casinos that are easy prey for organized crime. Anyone who knows the actual circumstances of casino regulation or federal recognition will smile ruefully at the gap between this perception and reality. But it represents a more sinister phenomenon, described by Bartley himself in another context in an April 8 Wall Street Journal column; it is a 'Big Lie,' that 'might prevail through sheer repetition.'

This fiction is not drawn from The Journal's own legwork. It derives from the writings of two men, Jeff Benedict and the Boston Globe's Sean Murphy, as the more recent editorial belatedly makes clear. Benedict is a talented writer and speaker in the grip of an id?e fixe. Murphy is a Benedict wannabe. Both have been refuted, if not discredited, by the work of other reporters on the beat, such as Joel Lang of the Hartford Courant's Northeast magazine.

Benedict wrote a book two years ago asserting that the Mashantucket Pequots of southeastern Connecticut, or at least some of them, were not the descendants of the historic Pequot tribe and that their recognition in 1983 by an act of Congress was somehow a fraud, the end result of which was the enormously profitable Foxwoods casino. Benedict has since retreated from this claim, in the face of decisive refutation by historical documents and the threat of a lawsuit by Mashantucket Pequot chairman Kenneth Reels. He is now running for Congress and campaigning against other tribal casinos, although at last report his voter appeal seems to be slipping rapidly.

Murphy was the lead writer of a long Boston Globe series two years ago that by dint of that paper's large circulation overshadowed more careful reporting by rivals like the New London Day. His constant insinuation was that the political pull of financial backers lay behind the favorable rulings of then BIA Assistant Secretary Kevin Gover, and his interim successor Michael Anderson, on a series of recognition petitions, including three tribes from southern New England. Fed by leaks from Connecticut Attorney General Richard Blumenthal, a Democrat, and vehement opponent of tribal recognition, Murphy and others reported that Gover and Anderson had overridden the negative findings of professional staff in the Branch of Acknowledgement and Research (BAR).

Gover and Anderson both issued detailed statements rebutting Murphy's insinuations that their actions were inappropriate. Anderson said that one charge 'contained allegations that border on a reckless disregard for the truth.' But The Wall Street Journal writer missed the rebuttals because the Globe inexplicably refused to print either one. Instead, the April 4 Journal editorial transformed Murphy's hints and nudges into a bald statement of fact, and a totally false one. In the first of a series of derivative assertions, The Journal writes, 'Political figures in both parties have abused the federal tribal recognition process, which has granted groups of dubious lineage official tribal status and with it the right to open casinos.'

The true criticism of the BAR is exactly the opposite. Federal recognition of Indian tribes is excruciatingly slow. Serious petitioners have waited more than two decades, facing increasingly stringent demands for evidence. In exasperation with his staff, Gover set up some common sense standards, for instance that a state government's official recognition of a tribe for 300 years should count for something. The tribes that received his go-ahead all have serious histories. The Eastern Pequots and Paucatuck Eastern Pequots, for instance, have possessed the state-recognized Lantern Hill reservation in North Stonington, Conn., since 1683.

Only one of those 'abusive political figures' has come to light in this lemma, Thomas Wilmot, who organized fund-raisers for the Clintons. Wilmot, it happens, was backing the Golden Hill Paugusetts, who have not been recognized and who are taking their case to federal court. At one point in the '90s, Gover was a lawyer for the Golden Hill band. It lost that round, and when Gover came to the BIA he recused himself from its case.

The backers of the Eastern Pequots say they were totally in the dark about BIA's internal workings on their case, not even learning until recent months that Gover had changed his mind several times about their petition. And now it emerges, that, contrary to the inaccurate press reports, the BAR staff never did reject the Lantern Hill tribes; they merely asked for more evidence.

Indian Country Today has seen and reported on what we consider corruption in this case, but it lies in the conduct of the professional staff at the BAR. At least one researcher who helped the Eastern Pequot leaders prepare their petition jumped sides after leaving the BIA and was paid as a consultant for the law firm fighting their recognition. Other unnamed current BAR staffers have clearly been leaking information to Attorney General Blumenthal and the Perkins, Coie ('I' is cq) law firm, which are building careers on their determined opposition to tribal recognition.

No one outside of these pages seems interested in discussing a serious abuse of the process from this direction, and that is the attempt by entrenched gaming interests to prevent the recognition of legitimate tribes which might turn into potential competitors.

The Journal, following Murphy, also asserts, without substantiation, that Indian gaming is under-regulated, unsupervised, and ripe for infiltration by criminal elements. Contrary to this derivative assertion, Indian gaming is more comprehensively regulated than any other gaming in the United States.

The regulation of Indian gaming is expressly provided for in the Indian Gaming Regulatory Act, which starts from the premise that: 'Indian tribes have the exclusive right to regulate gaming activity on Indian lands, if ... [it] is conducted in a state which does not, as a matter of criminal law and public policy, prohibit such gaming activity.' In recognition of this authority, Congress sought to create a regulatory framework that Indian nations could use for their gaming enterprises. This was accomplished by establishing a compacting mechanism that gives state governments significant input regarding the scope and nature of tribal casino operations, and by creating a new regulatory agency, the National Indian Gaming Commission (NIGC).

When Congress established the NIGC, it envisioned a limited role in Indian gaming for this federal agency. Congress contemplated that the NIGC would have an initial role in regulating Class II gaming, ie., bingo, tip jars, pull-tabs, and certain electronic games. Eventually, however, the NIGC's role with respect to Class II gaming would be phased out. As to Class III gaming, casino gaming, the IGRA provides that the Indian nations and states were expected to resolve all regulatory issues without direct NIGC participation. Thus, it is clear that Congress never intended the NIGC to perform a regulatory function similar to the one assigned to the Nevada State Gambling Commission or the New Jersey Casino Commission. This function was to be carried out by the tribes and the states. Consequently, no purpose can be served by comparing these agencies other than to perpetuate the fiction that Indian gaming is unregulated.

Opponents like The Wall Street Journal compare the budget of the National Indian Gaming Commission, which is $8 million a year, to the budgets of the New Jersey and Nevada gaming commissions, which near approximately $80 million a year, as a way of insinuating that not enough money is spent to regulate tribal gaming. However, this comparison does not make sense since the NIGC is not the primary regulatory authority for Class III Indian gaming. In fact, in the eastern area, more money per capita is spent on the regulation of Indian gaming operations than on their non-governmental gaming counterparts. The Wall Street Journal did not report the fact that Indian governments invest upwards of $150 million annually to regulate its gaming industry, because it did not take the time to learn the attributes of Indian gaming regulatory structure.

It is through the compact negotiation process that state governments are given a meaningful voice in the manner in which gaming will be conducted in Indian country. Virtually all gaming compacts are detailed and specific, setting forth rules governing games to be played, the application of various laws, operational standards to be followed, fees and reimbursements to be paid, and the respective roles of state and tribal authorities. The compacting process has been immensely successful in ensuring the integrity of Indian gaming while preserving the inherent sovereign rights of Indian nations to regulate their own legal and commercial affairs.

To the best of our knowledge, no state agency has suggested that the regulation of Indian gaming is inadequate or that there is rampant corruption on Indian reservations that requires additional federal or state intervention. IGRA contemplates a scheme of joint regulatory jurisdiction, shared equally by state and tribal governments ? a structure that has worked effectively to safeguard the integrity of Indian gaming. Indian Country Today, like the many Indian nations that own and manage gaming and other business enterprises, has a deep and abiding interest in the integrity and legitimacy of Indian business, since American Indian economic interests that are clean and honorable are seen as being essential to ensuring a respectable and sustainable tribal recovery. In this respect, Indian Country Today is to the emerging American Indian economy what The Wall Street Journal is to Wall Street. We have both covered Indian gaming issues, but with one notable difference. Our audience will not tolerate derivative, unsubstantiated assertions.

For example, take the isolated attempts by organized crime to infiltrate Indian gaming. The one specific incident cited by The Journal and The Globe concerns isolated attempts by organized crime to gain control over the gaming activities of the Rincon Indian Band of California. A 1993 criminal prosecution resulted in numerous convictions of associates of a Chicago-based crime family. When In 1997 Pittsburg and Ohio crime organizations attempted another infiltration, the Justice Department again performed its task and successfully prosecuted 17 defendants, resulting in numerous criminal convictions. This incident, now five years old, hardly constitutes a deluge of criminal emigration to Indian country.

The Journal cites two other reports (from other papers). The Minneapolis Star-Tribune reported links to 'East Coast Mafia families' but the unnamed alleged connection is retracted in the same sentence. The St. Petersburg Times, surprise, alleged dirty dealings in the Seminole Tribe. The Journal apparently hasn't kept up with that lurid story, since it didn't mention that, regardless of the merits of the accusations, the Seminole Tribal Council later deposed its long-time chief, James Billie. When all these stories play out, we believe they will document the effectiveness of the existing regulatory system and of the high levels of cooperation among state, federal and Indian nation governments.

In the interest of balanced reporting, we wonder why The Wall Street Journal has avoided the findings of the U.S. Justice Department. In a statement before the Senate Committee on Indian Affairs, Bruce G. Ohr, Chief of the Organized Crime and Racketeering Section of the Department of Justice, responded last year to previous insinuations by The Wall Street Journal that organized crime had infiltrated Indian gaming. At that time, a July 18, 2001 Journal commentary referred to a letter from Reps. Christopher Shays, R-Conn., and Frank Wolf, R-Va., stating 'the influence of organized crime on Indian gaming is alarming.' However, Ohr stated to the Senate committee that outside of a few isolated incidents, 'The Department has found no evidence of a systematic infiltration of Indian gaming by elements of organized crime.' Ohr concluded: 'Indian tribal gaming has proven to be a useful economic development tool for a number of tribes, who utilize gaming income to support a variety of essential services.'

The Journal makes another derivative assertion that is not only false but close to character assassination of the two preceding heads of the BIA, Kevin Gover and Michael Anderson. We don't defend everything they have done; in particular we think Anderson committed a serious impropriety and lapse of judgment in returning to the BIA two days into the new Administration to sign a cover letter on a report that he had completed just hours before the end of his term. It seems clear that he was attempting to correct a last-minute oversight and that administrative intent was clear in the 76-page report favoring recognition of the Duwamish Tribe. (Paperwork was entirely in order on another last-hour decision favoring a Nipmuc petition.) At that point, however, it would have been better to walk away clean.

But The Journal is totally out of line to say that a recent report by the Interior Department's Inspector General found that Gover and Anderson 'abused their authority by granting recognition to six tribes, despite objections from BIA professionals.' The report made no such statement, nor did an earlier report from the General Accounting Office, which The Journal conflates in its account.

The Inspector General's report provides fascinating detail about the level of hostility between the Assistant Secretary for Indian Affairs and the professional staff at BAR. One of its witnesses stated that during the late hours of January 19 she expected someone would 'get slapped.' Clearly the BAR staff resented the Assistant Secretary's disregard of its work. But everyone agrees that the final decision lay well within the authority of Gover and Anderson, the policy-making officials at the political level. Anderson in fact told the Inspector General's staff that the BAR was 'an information-gathering body that has overstepped its authority and needs to be put back in check.'

The Inspector General's tone is hostile to Gover and Anderson. That and some factual lapses raise questions in our mind about that body's agenda, especially since it appears to have been guided in its work by U. S. Rep. Frank Wolf of Virginia, another vehement opponent of tribal recognition. But there is no finding of abuse of authority there or in the GAO report because the legal authority to make the final decision clearly belonged to the Assistant Secretary. We believe that both Gover and Anderson were correctly concerned with bringing common sense and justice to tribes who have undergone a hundred years of federal attempts to terminate them.

That so many Indian nations survived this ethnicidal assault speaks strongly for their resiliency and their potential for future contribution to the culture and economy of this continent. Any paper serving the financial community should be trying to build bridges to these peoples, instead of erecting a wall of racial stereotypes and derivative slanders. And that brings us to an interesting metaphor in the very name of The Wall Street Journal, the history of Wall Street itself.

In 1643, Dutch settlements in Indian country were centered in the colony of New Amsterdam, on what all of us today know as Manhattan Island. The Director Governor of the Dutch colony, William Kieft, saw the Algonquin Indian nations around the area as obstacles in the way of colonial expansion. In particular Kieft had little use for the Indians of the lower Hudson River Valley and on Long Island since they did not provide him with furs and farmed land coveted by his settlers.

Kieft's opportunity to solve his 'Indian problem' arrived on the night of February 25, when a group of Wappinger Confederacy Indians arrived at the border of New Amsterdam believing they had received promise of security by his soldiers. Instead, Kieft's men surrounded two of the Indian camps, one at Corlaer's Hook on Manhattan Island and another at Pavonia in eastern New Jersey, and massacred a total of eighty Indian men, women, and children. The butchered remains were taken back to New Amsterdam, where, writes Cornell University Scholar Robert W. Venables, 'one burly Dutch woman gleefully booted some of the Indian heads down the street.'

Governor Kieft's plans for colonization, however, were tenuous since his colony's total population only stood at about 1,200. As a result, he quickly constructed a log palisade along the northern limits of the tiny New Amsterdam settlement. To quote Venables, 'The military road that ran behind the palisade to supply any defenders has retained its name to the present day: Wall Street.'

It is from this inauspicious origin that The Wall Street Journal derives its now famous appellation. We are not the ones raising barriers or launching racial attacks. When The Journal accuses us of 'playing the race card, ? the refuge of scoundrels,' we agree with the premise but not the specific application. Nowhere in our editorials have we called The Journal writers 'racist.' Yet another inaccurate intimation.

Instead we implore them to abandon a tradition of denying American Indian existence and impeding economic relations. We encourage The Journal editorial staff to tear down its crooked wall of misinformation, to replace its derivative assertions with a serious look at a new world of mutual opportunity.