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Gambling and Tribal Recognition Policy

Dave Palermo is an award-winning metropolitan newspaper reporter. He has written about American Indian governments for more than 20 years, working as an advocate for several tribes and tribal associations. He also has co-authored books on gambling and gambling law. He can be reached at dgpalermo@aol.com.

(Blog) Dave Palermo: Gambling and Tribal Recognition Policy

Considering that gambling has pretty much hijacked every aspect of federal American Indian policy, it comes as no surprise it would have a major impact on indigenous groups seeking federal recognition as tribal governments.

And because California is home to 109 of the 366 federally recognized tribes in the lower 48 states, it is only natural the Golden State would be in the eye of the Indian recognition storm.

Scott Gabaldon, chairman of the Mishewal Wappo Tribe of Alexander Valley, had his reasons for attending a 2011 gathering of the National Council of Legislators from Gambling States at the Rio Suites hotel-casino in Las Vegas.

Wappo Indians indigenous to California’s Napa Valley are suing the federal government for terminating their rancheria in 1959. They are seeking a court ruling restoring Wappo’s status as a recognized tribe.

Gabaldon will not acknowledge the tribe hopes to get into the gambling business. But he believes Wappo can contribute to Napa Valley’s vibrant tourism industry.

“The Wappo Tribe wants … to offer a unique diversity” to the Napa economy, Gabaldon said in testimony before the House Natural Resources Subcommittee on Indian and Alaska Native Affairs.

He said Wappo would provide the area with “a destination, retail, recreation, and a sustainable community which reflect our identity as an American Indian tribe.”

Meanwhile, the Tejon Indian Tribe near Bakersfield is celebrating a successful, decade-long battle to gain restoration to the rolls of federally recognized tribes, thanks in part to financial help from Cannery Casino Resorts founder William Wortman.

Many believe the tribe will partner with Cannery and Tejon Ranch Corporation in the development of a casino resort on ancestral land straddling the Interstate 5 Grapevine interchange.

Tribal ChairKathryn Montes Morgan is coy about gambling, telling a TV interviewer a tribal government casino “is so far in the future that I can’t even talk about it now.”

 

AN ARDUOUS TASK

Indigenous groups can achieve status as a federally recognized tribe from Congress, the courts or administratively through the Department of Interior/Bureau of Indian Affairs.

Whatever the means, the legal cliff to federal recognition – affording petitioners trust services of Interior and BIA – is steep and expensive; an arduous task that can take 30 years or longer.

And the chances of success are slim.

Since Interior’s Office of Federal Acknowledgement was established in 1978, 352 groups – 79 from California – have stated their intent to seek recognition through the administrative process. Of those, 265 wrote letters and never followed up their intentions.

Of the remaining applicants, 17 groups were recognized by Interior, nine were restored or recognized by Congress and 10 were resolved through other means.

Over time, the administrative process has become more complicated and the innately political process of one sovereign bestowing sovereign authority on another has gotten even more so.

A recent U.S. Supreme Court ruling limiting the ability of Interior to place land in trust for tribes not “under federal jurisdiction” with passage of the Indian Reorganization Act of 1934 has made things particularly difficult for non-recognized Indian groups.

“The reality in modern times is most tribes don’t make it through the process unless they find developers willing to lend them a bunch of money in exchange for the promise that the tribe will let them run a new gaming facility for them,” tribal attorney Heather Sibbison said.

“That exacerbates the problem further because people on [Capitol Hill] get bent out of shape, thinking these developers are sort of buying tribes. The reality is you can’t get through the process without money.”

Casino developers such as Cannery Resorts and Station Casinos of Las Vegas have provided many indigenous groups with the legal and financial resources to maneuver through the bureaucracy, in California and elsewhere.

The Federated Indians of Graton Rancheria broke ground June 18 for a casino resort in Rohnert Park with a $825 million loan secured by Station. The company advanced the once terminated group of Coast Miwok and Pomo Indians more than $153 million as they fought for federal restoration, which was granted in 2000.

“We believe this is the largest new construction financing ever in the history” of Native America gaming, said Mark Falcone, Station’s executive vice president and chief financial officer.

Station, which previously managed Thunder Valley Casino Resort near Sacramento, is the management partner for the Gun Lake tribal casino in Michigan and the North Fork Rancheria, a restored California tribe that had casino land placed in federal trust two years ago.

Station also is partners with the once terminated Mechoopda Indian Tribe of Chico Rancheria, which was federally restored in 1993 and is seeking casino land near Chico, Calif.

 

A FLAWED PERCEPTION

The notion Indian groups are seeking federal recognition for the sole purpose of raking in casino riches has added fuel to the growing public and political perception of Native Americans not as culturally rich communities, but greedy purveyors of gambling.

“It makes me wince to hear people on Capitol Hill complain about the role developers play in the process,” Sibbison said.

“Look, I don’t like the role developers play in the process, either. But the reality is the administrative process is so lengthy, convoluted and expensive, unless you can borrow money from somebody to do it you can’t get it done.

“It has gotten to the point the only people willing to lend these tribes money are big casino developers.”

The ability to operate as a government on tribal land, providing housing, health care, education and other services to tribal citizens, is regarded by indigenous Americans as a far greater benefit than gambling revenue.

Tribal casinos in 2011 generated $27.2 billion. The combined federal budget for the BIA and Indian Health Service combined didn’t amount to $7 billion.

“The perception of tribes [as purveyors of gambling] is unfair,” said BIA Director Kevin Washburn. “Nearly every state sells lottery and Powerball tickets. We don’t think of states merely as purveyors of lottery tickets. Nevertheless, lotteries are an important source of revenue for state governments.

“That’s the way we should look at gaming for Indian tribes. Gaming is just one tool some tribes use to fund government operations.

“To some degree gaming has hijacked all Indian policy. That’s true. I’m not sure we’ll ever get away from that. Gaming is the big gorilla in the room in any discussion of Indian policy, which is sometimes a shame because gaming is not the most important activity that tribes do by any means.

“I think gaming has been a very important tool for a large number of tribes, to fund governmental operations. That is largely what gaming was intended to do and what the Indian Gaming Regulatory Act was intended to spur.”

 

TACKLING REFORM

Don Young (D-Alaska), chairman of the House Subcommittee on Indian and Alaska Native Affairs, is concerned that Interior “has wrestled control over Indian recognition from its rightful, constitutional authority: the Congress.

“The basic problem with tribal recognition is that decisions are ultimately made by political appointees and not by elected officials like Representatives and Senators, who are accountable to voters for the decisions they make.”

It’s difficult to believe bestowing sovereignty can be anything but political.

Kevin Washburn hopes to reform an administration process he suspects may be flawed.

“Some people think it’s simply not a just policy,” Washburn said. “Some people will tell you there are groups that should be recognized as tribes but they couldn’t make it through the process. That’s concerning.

“I’m not sure there’s injustice going on but if there is we need to look at that. At a minimum we need to have a process that people believe is just.”

Regardless, gambling will likely continue to play a major role in the process.

The Mashpee Wampagnoags who greeted the Pilgrims in the 1600s, got its federal recognition less than six years ago and hopes to build a casino in Taunton, Mass.

The Federated Tribes of Cowlitz who opened their arms to Lewis & Clark got its federal recognition in 2002 and is awaiting court permission to build a casino near La Center, Wash.

Much has been written of the tortured history American Indians in California; the Spanish missions and the genocide surrounding the Gold Rush and European settlement, when militias indiscriminately stalked and murdered indigenous peoples.

In 1851 there were some 8,000 Wappo Indians in Napa Valley, many near the present-day towns of Yountville, St. Helena and Calistoga.

Today the Mishewal Wappo, the last remaining band, numbers about 340. “Napa Valley” is derived from the Wappo language, meaning “land of plenty.”

U.S. District Court Judge Edward Davila set July 25 for a ruling on Wappo’s lawsuit and a potential decision on the tribe’s request for federal recognition.

“We’re fully prepared to go to summary judgment,” Gabaldon told the Napa Register. “Let’s get it on,”

The Sebastian Indian Reservation near the Grapevine was established for displaced Indians following an 1851 treaty that was never ratified. The Tejon were driven from the reservation a few years later when it was decided the land was too valuable to be used by Indians.

Tejon Ranch was eventually sold to the Harry Chandler family, publishers of the Los Angeles Times. They refused to let Indians resettle the property.

The current owners say they will entertain an offer from the Tejon Tribe to acquire part of their ancestral lands. If placed in federal trust, the land could be used for a casino resort.

“The past is the past,” tribal Chair Montes told the Bakersfield Californian. “You have to move on.” 

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