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Will compact ban dilute influence?

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HURON, S.D. - All but one South Dakota tribe has signed gaming compacts that prohibit tribes from making political contributions. Tribal leaders who have already signed the compacts have see few problems with the agreement since most South Dakota tribes contribute few dollars to political campaigns.

However, American Indians who have run for state offices, say the agreements compromise tribal influence and voter involvement in a state where few tribal politicians have made their way into state seats.

Elsie Meeks, a Democrat who ran for lieutenant governor during the state's last gubernatorial race, received a $1,000 contribution from the Oglala Sioux Tribe.

Meeks, an Oglala Lakota who serves on the federal Civil Rights Commission, said she doubts the Oglala Sioux Tribe leaders would have signed the compact if they understood the state's ban on political giving was included as part of the agreement.

"Their relationship is unique, more like a corporation," Meeks explained.

Meeks said while tribal governments shouldn't make contributions to political campaigns, tribal casinos should be allowed to do so just as corporations nationwide may, with limits.

"I think it is unfortunate. It is such a gray area. I do think it is right and just that governmental entities cannot make contributions. At the same time, given that tribes have so little power within state government, how else do we exact any power or influence? We have such little representation.

"That is one of the few influences they can have is promoting candidates that they feel will serve their best interest. It is done across the country," said Meeks.

The Standing Rock Sioux Tribe is the last remaining tribe to negotiate a compact with the state of South Dakota, but tribal attorney Mike Swallow said the restriction has no impact on his tribe which has "never used gaming proceeds to make political contributions. There are other items in the compacts that have been favorable to the tribes.

"Naturally, we all want more machines and we all want more games, but the state is holding the ground on that."

Swallow said North Dakota has not placed similar restrictions on the tribe.

He said South Dakota is agreeing that poker isn't a Class III game as defined under the National Indian Gaming Regulatory Act, so it is no longer subject to the compact.

"We're going to be allowed greater flexibility with regard to blackjack tournaments and the number of tables we are going to be allowed to put out. It is basically going to be dictated by the market.

"When you negotiate, you receive something in return and in turn you give up something. The only thing I can say we're giving up, and I don't even call it giving up, is agreeing not use gaming proceeds for political contributions. The Standing Rock Sioux Tribe hasn't done that anyway. The state's reasoning is that local, county and state governments are prohibited from using governmental funds for political campaigns. They view us as being a government as well and they would like to see us restrict our gaming proceeds for political contributions.

Swallow added, "There has never been any case law to that effect.

"Whether a tribe seeks to influence legislation or lobby on gaming related issues is a different matter from contributing to political campaigns," Swallow said.

"We're not big gaming tribes. We're in the gaming field to provide a recreational opportunity to in gaming South Dakota and provide jobs."

State Sen. Ron Volesky, D-Huron, took issue with the state move and suggested that little by little, the state is diminishing tribal sovereignty in controlling their roles in campaign giving.

Volesky, already campaigning for the 2002 governor's race, said, "They're sovereign nations. They're not county governments, and they're not city councils.

"I think it sets a dangerous precedent in terms of tribal self determination. What makes South Dakota think it should negotiate or dictate in a compact how Indian tribes, whether it be a tribal council or a casino board of directors, should decide how they use their funds. I think it is an internal decision. As long as they are not going to be used for illegal purposes."

"Why is the state of South Dakota so concerned about the political influence of casinos or Indian tribes? If a member has a problem, we do have elections for tribal council seats and tribal chairman. If they are upset, they can elect new people," he said.

Volesky, a member of the Standing Rock Sioux Tribe, said he has never received any contributions to his political campaigns from tribal governments or casino revenue, but he said the decision about how to use gaming revenue should be left up to the tribes.

"I'm troubled about how the governor's office wants to stick its finger in tribal internal affairs. I guess the tribes are hungry for new machines. They are willing to accept these dictates, which is unfortunate. I would guess the compacts should be based on the merits of whether new machines should be given, how they should be operated, regulated and rules of gaming should be in South Dakota. I don't think it should be a forum for how Indian tribes should handle their political contributions," the 46-year-old Huron lawyer said.

Volesky said the move takes away some of the tribes' ability to play a more active role in the political arena.

"We have a little economic development. We get a little economic and political clout and the first the state wants to do is take it away. I find it insulting."

He suggested other issues may be placed on the table as a part of the compact negotiations, including a tribe's right to regulate natural resources or the potential of forcing a tribe's hand by collecting a tax.

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"What's next and where does it end?" he asked.

"I'm the first one who believes in campaign finance reform, but I guess I'm a little irked as to why it should start with Indian tribes."

The language changing the compact was drafted by the Sisseton-Wahpeton Sioux and the Flandreau Santee Sioux tribes. Later other tribal attorneys worked a uniform compact that was extended to the remainder of the tribes across the state, said Mike Mueller, a spokesman for the governor's office.

The section of the compact that addresses the use of tribal gaming revenues says, "The tribe agrees that none of the funds generated by gaming under the compact shall be used by the tribes or its agents to influence the outcome of any local, state or federal election conducted within the state of South Dakota."

Muller said inclusion of the paragraph merely obligates the tribes act just as any other governmental entity within the state.

He said the move was in part a response by the state to limit the use of gaming revenue to promote ballot issues and candidates after the city of Deadwood funneled money into an organization attempting to influence outcome of a vote tied to the $100 bet limit. Voters later chose to raise the limit.

Jennifer Fyten, an attorney for the Flandreau Santee Sioux Tribe, said most South Dakota tribes don't have the income to put much into political campaigns.

"That's a phenomenon that has developed in states where the tribal casinos have been wildly successful. We have much bigger concerns to worry about, for services for our people, than contributing to campaigns. We're trying to take care of things at home."

The new language isn't a sticking point for the tribes, said Terry Marks , secretary of the Crow Creek Gaming Commission.

"We don't have a problem with that. It isn't going to affect us."

"Once they saw what we are getting at here is a level playing field and a show of mutual respect, then a lot of the anxiety and suspicions seemed to go away," Mueller said.

"We changed the language in a number of places to modernize the compact Mueller said the Department of the Interior has closely scrutinized the compacts and has accepted five compacts, including the political campaign provision, so far. The federal agency said the limit doesn't prohibit voter education or other nonpartisan activities.

Nationally, tribal contributions have increased considerably, especially since the passage of the 1988 Indian Gaming Act that opened the way for reservation casinos. The Center for Responsive Politics, a group that tracks campaign financing, says contributions from tribal gaming sources have increased from about $117,871 in 1992 to $2,827,682 last year. Between 1992 and 1996, the center said contributions from tribal gaming grew from 8 percent of total gaming contributions to 26 percent of those contributions.

In 1996, Democrats received 87 percent of tribal gaming contributions, while they received only 47 percent of non-Indian gaming contributions," a study posted on the center website showed.

The state's move could have an impact on tribal members seeking state office with minimal resources. Tom Van Norman, a Democrat who was the most recent tribal member to win a state House seat, reported receiving $5,000 from the Cheyenne River Sioux Tribe.

Reports from the South Dakota secretary of state's office show contributions were made to a few legislative candidates from some out-of-state tribes. Among those listed are the Mille Lacs Band of Onamie, Minn., Mississippi Choctaw from Philadelphia, Miss., and the Oneida Nation from New York.

"It isn't frequent, but a few tribes have given money directly to candidates,'" said Chris Nelson, election supervisor at the state secretary of state's office.

Election laws don't prohibit such contributions, he said. "They aren't really corporations, and they aren't individuals."

State and local governments generally are bound by the principle that public money can be used only for public purposes, although state law seems to lack a single, specific statute that says that.

"As a general proposition, they can't use money for campaigns, for candidates or issues," Deputy Attorney General Larry Long said. "You can find that principle in a variety of contexts."

Those contexts include Supreme Court and circuit court decisions and past attorney general rulings, he said.

A 1941 Supreme Court decision in a Beadle County case said the county couldn't use money to influence an election.

A 1988 opinion by then Attorney General Roger Tellinghuisen encompasses cities, counties and school districts and says they can't use public tax dollars to influence elections.

"The government should not take sides in election contests or bestow an unfair advantage on one of several competing factions," that opinion stated. Noting the state Constitution guarantees that elections shall be free and equal, the Tellinghuisen opinion included this passage:

"Further, the use of public tax dollars for purposes of influencing election results implicates the rights of those who dissent from the government supported position. Dissenters who are in effect compelled to finance the expression of views with which they disagree have reason to complain and may assert an infringement of First Amendment rights."

"The governor's position simply is that no government can speak for all its citizens, so it shouldn't be using public money to influence political decisions," Mueller said "That puts them on the same level playing field as city, county or school boards."