Indian sovereignty challenged by state in past

Thursday, October 22, 1998

Indian sovereignty challenged by state in past

GAMBLING: Proposition 5 affirms respect between state
government, tribes

By Chad M. Gordon

From the earliest days of our nation, Indian tribes have been
recognized as "distinct, independent political communities." As
such, they are qualified to exercise powers of self-government, not
by virtue of any delegation of powers from the federal government,
but rather because of their original tribal sovereignty. This
November, California voters have the opportunity to uphold the most
basic tenet of democratic self-government: that people have the
inherent right to govern themselves and to make basic decisions
affecting their collective well-being. Proposition 5, the tribal
gaming initiative, affirms that basic principle for California
Indians.

The United States has long recognized tribes as separate
governments through U.S. Supreme Court decisions, Congressional
acts and Presidential Executive Orders declaring a
"government-to-government" relationship. The policy respecting and
maintaining such a kinship partially affirmed that these tribal
nations kept their own governments and laws long before the United
States existed.

While many Americans today are quick to categorize American
Indians within racial and ethnic groups, their unique governmental
status as sovereign nations grants them a very distinct legal
position. As sovereign nations, tribes are generally free from
state regulation of internal affairs. For example, states may not
regulate the conduct of Indians within reservations, because such
regulation would interfere with the power of tribes to govern
themselves and their territories.

Although the United States has acknowledged tribes as separate
governments, a long history of discriminatory federal and state
policies has resulted in California Indians having among the lowest
income, education levels, housing quality, and health of any
population group. Gaming has become one of the few means of
remedying this situation. It provides employment, and the resulting
revenue further provides much-needed services for tribal
people.

Throughout the nation, gaming has helped many tribes eradicate
the effects of centuries-old policies of oppression, cultural
devastation, and marginalization. Gaming has aided tribes in
gaining economic self-sufficiency. It has revitalized their
cultures, provided adequate health care and expanded educational
opportunities. The overwhelming majority of California tribes view
gaming not only as helpful but essential to the continued
well-being of their communities.

Given that tribes’ sovereign status is unmistakably the most
fundamental asset they have in governing themselves and providing
for their people, why have Californians been asked through
Proposition 5 to decide whether tribal gaming should be
allowed?

When tribal gaming in California began to surface as a viable
means to effectuate greater opportunities and welfare for Indian
people, the state was not willing to adhere to the principle of
letting the tribes regulate themselves. A lengthy history of court
battles ensued between Indian people and the state government over
who had the power to set the limits and parameters of tribal
gaming.

In 1987, the Supreme Court established that Indians have the
right to offer limited gaming on reservation lands. Subsequent
pressure by the states upon the federal government culminated in
the enactment of the Indian Gaming and Regulatory Act of 1988
(IGRA).

Under IGRA, states may prohibit tribal gaming if the particular
games involved are entirely prohibited within the state. If,
however, the state allows a particular form of gambling that is
similar to any tribal gaming within the state, it must enter into
good faith negotiations with the tribes in an effort to sign a
compact.

In California, the controversy centers on what is traditionally
the most lucrative game for any type of casino: video gaming
machines. Gov. Pete Wilson consistently holds that since slot
machines are categorically banned by the California Penal Code, he
does not have to come to the bargaining table with any tribe that
endeavors to use the tribes’ video gaming machines. Yet Wilson’s
definition of a "slot" appears to be very broad, since many of
California’s own video terminals for the state lottery are
virtually indistinguishable from what he considers an "illegal
slot."

Many tribes are anxious to discuss the matter with Wilson. The
governor, on the other hand, decided that before any negotiations
can take place, a tribe must agree in advance to terms that
seriously impinge on tribal authority over matters close to the
heart of tribal sovereignty: the environment, employment, and the
size of the casino.

By insisting on applying a pre-packaged and partisan compact
across the board for all tribes, Gov. Wilson has exhibited
resistance to recognizing tribes as governments. Apparently unknown
to Wilson, part of respecting sovereignty is the ability to deal
with tribes as distinct, separate governments and peoples.

By intimidating and pressuring smaller tribes, issuing one-sided
compacts and refusing to meet with tribes using gaming machines
similar to the California lottery, Gov. Wilson has exhibited a
myopic and despotic stance that shirks his responsibility to meet
and confer with the tribes in good faith as mandated by the
IGRA.

Proposition 5 will put an end to this standoff by allowing
tribes to use properly configured video terminal games while
continuing to restrict Indian casinos to federally designated
tribal land.

The Initiative will create new revenue-sharing programs that
will dedicate part of the revenues from Indian gaming to help
non-gaming tribes, support local programs in communities near
Indian casinos, and establish emergency medical services throughout
California. The Initiative also gives the state government a new
role in regulating Indian gaming, maintains extensive existing
regulation by the National Indian Gaming Commission, and requires
gaming Tribes to reimburse the state for all regulatory costs.
Proposition 5 is an effective and fair compromise that properly
affirms tribal autonomy while acknowledging state concerns about
proper controls.

Throughout history, the state and federal governments have used
their power to take away the land, resources and even the lives of
California Indians. Although numerous native people lost much that
was sacred, dignity and pride as a people have never been
sacrificed. While the government always called their intrusions
into the lives and cultures of native people "legal," the Indians’
efforts in defending their homelands and culture were always deemed
"illegal." Gov. Wilson has evidenced a penchant for repeating
history.

Any negotiations between sovereign Indian nations and the state
and federal governments should require mutuality and respect for
different cultural values. Perhaps the best solution may be found
in the wisdom of the Iroquois wampum belt presented to Europeans
during the Encounter era: "The two rows will symbolize two vessels,
traveling down the same river together. One, a birch bark canoe,
will be for the Indian people, their laws, their customs and their
ways. The other, a ship, will be for the white people and their
laws, their customs and their ways. We shall each travel the river
together, side by side, but in our own boat. Neither of us will try
to steer the other’s vessel."

Passage of Proposition 5 will enable tribal governments to
continue doing what they have done for thousands of years and
affirm what every sovereign nation has an inherent right to do.
That right is to decide what is best for their people and maintain
the health and welfare of their communities. A vote for Proposition
5 is a vote to honor California’s government-to-government
relationship with the California tribes.

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