Saturday, January 22, 2005


"Feinstein to attempt to block big tribal casino in San Pablo."

Indian gaming in the United States is regulated by a crappy law know as the Indian Gaming Regulatory Act. I say a crappy law for several reasons; as tribes are sovereign entities relations with tribes are Constitutionally required to be carried out by the Federal government, the law in this case kicks the relationship down to the state level. One problem this creates is that states in which Indians reside are much more hostile towards those resident tribes than the federal government as a whole (if such a thing can be imagined), so regulatory responsibility is delegated to entities considerably more antagonistic toward individual tribes than Congress. A good analogy would be for the Federal government to have passed Civil Rights legislation in principle, but left the particulars of rights and enforcement to the states. It was the individual states which were the problem in the first place, right?

Yet another problem is that a tribe must first secure a gaming compact with the state. This doesn't appear to be a problem, except that every compact which I've seen contains "revenue sharing" provisions. This is another way of saying "tax," except that as sovereign entities tribes cannot be taxed by the states, so a different term had to be used. The compact provision of IGRA allows states to hold gaming tribes hostage by withholding approval until a suitable "sharing" agreement can be reached. In colonial times this would have been known as taxation without representation. Tribes must bear the expenses of starting and maintaining a gaming enterprise, and the states do not provide services on reservations (this is a federal responsibility), so this is basically free money for which the state does nothing in return.

But back to Feinstein. Unhappy with the way in which gaming is being handled by the State of California - which incidentally has extorted an unprecedented 25 percent "share" of revenues - Feinstein is attempting to procedurally hamstring the casino plans. In a quoted statement Feinstein says "If you're going to put a gaming casino of a sovereign nation in the middle of an urban community, the urban community should have a say." Californians twice approved casino gaming when it was up for referendum.

Beyond that, the Senator seems to have a rather tenuous grasp of the meaning of "sovereign." Sovereign means not having to gain an urban community's approval in advance of your actions. This attitude is not particularly surprising, as it is endemic to the US in general, sort of a "now you see it, now you don't" approach to tribal sovereignty. Tribes can have gaming regardless of state practices because they're sovereign, but they have to get state approval because, well, they're not sovereign.

This is part of what I meant earlier when I said federal Indian policy needs to be thrown out and rebuilt from the ground up.