The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Thursday, October 16, 2003
 

The Indian casino racket: the (elegantly argued) case for the defence


The New Republic has a piece (October 15) [1] by Jacob Levy of Chicago U which puts forward, in a disarmingly elegant fashion, a case against those who oppose the present Indian gaming regime.

He rightly points out that the Indians could get started in gaming only because of the (utterly anomalous) quality of domestic sovereigntypossessed by the tribes - the fact that a proper settlement with the Indians, including a constitutional amendment removing such a legal relic, was not made long ago is the white man's own fault.

He also rightly identifies corruption as the main objection: but then pulls out two large and ripe red herrings:
First, gambling is a "vice" business. Second, there seems to have been mob activity in the development of legal casinos, i.e. in early Las Vegas.
before admitting that these have nothing to do with the real cause for concern: the use of gaming revenues for political funding.

The point on corruption is this: the politicians have a need for big money (for campaigns, if not for supporting a lavish lifestyle). They need to identify an industry which throws off large amounts of cash (either sales revenues or taxpayer money) ;and where government (licences, regulation and so forth) is the main barrier to entry.

In Japan, notoriously it's public sector construction projects that are the main vehicle: the slice off the top is the primary purpose of the operation and the way it gets shared round is dealt with with great care. The resulting building, bridge or road is purely incidental - and often of no practical value. It has already served its purpose.

In many countries, natural resources play the same role. The state owns the mineral rights - politicians are only human.

Indian casinos work the same way: in California, I believe, the cash flow is around $5bn a year. As I understand it, despite the sovereignty rules, a tribe cannot begin gaming operations without the consent of the state [2]. That there is a quid (several million quid, in fact) for the quo is only natural.

There are other difficulties: only a minority of tribes - many of them with few members - have gaming operations. The discrimination - based on location of tribal lands - from the perspective of Indian socio-economic development, is utterly irrational, palm-tree social justice. And the same sort of racial classification nonsense arises as with Jim Crow or apartheid in identifying the membership of gaming tribes - and thus who is entitled to share in the bonanza.

The real problem is the legal status of the Indians - which is every bit as anomalous in quality, though obviously without nearly such noxious consequences, as that of slavery in antebellum America.

(And because those consequences aren't so serious - in their impact on the average voter - the Wall of Wampum unleashed by Indian gaming tribes on the political process will be sufficient to keep excising the anomaly strictly a matter of academic controversy. Except, of course, that the combination of PC and the thought of wampum endowments might well prudentially guide campus debate onto other matters.)

[Point to ponder: the extent to which wampum was at the bottom of the passing of the loathsome 1990 NAGPRA, the cause of so much grief in the Kennewick Man case...]

Whilst on Indian matters, I've seen no further sign of opposition to S 578, the Tribal Government Amendments to the Homeland Security Act (earlier piece on October 7). Very strange: even with wampum, there's a limit to how many it'll go round.

  1. I thought all their stuff was subscription-only. No sign of sub barriers with this piece, at least.

  2. Under the Indian Gaming Regulatory Act of 1988 (IGRA), now 25 USC 2701-2721. This law, I read, acts as a restriction on the tribe's right to run casinos in exercise of their domestic sovereignty, rather than the being the basis on which they found such a right.

UPDATE

As an example of special interest whinging, take this 1994 letter of complaint from the National Indian Gaming Association to CBS on a report on the Mashantucket Pequots and their slice of the action.

The Mashantucket Pequots, as I understand it, are the poster-boys for Indian gaming. Their operation, located between Hartford, CT and Providence, RI, has done wonders for the local economy, according to a 2000 report (PDF) by the Connecticut Center for Economic Analysis.

(There is a short Swiss article with one or two morsels about the Pequots; and a long article from January 2003 in the New Haven Advocate with some useful, local 5Ws stuff on the downsides of the MP operation.)

The inescapable fact is, however, that the MPs have a licence to print money issued by Uncle Sam - taking all branches and levels of government together. The fact they run an efficient outfit, and Connecticut punters like to lose their money there - on top of the tax revenue they're forgoing because the Indians are operating under a privileged status - only increases the Connectitut voters' losses, compared with an equally efficient but fully taxable operation that might be there in its place.

Some further online materials on the subject:

A 2002 Maryland U study (PDF) on the economic impact of Indian casinos in general.

A 2003 article (PDF) in the Univerity of Pennsylvania Law Review by Alva Mather on Federal recognition of Indian tribes.

A 1990-99 chronology of Indians and the law.

A 2003 Stanford thesis, written by an Indian - a Lac du Flambeau Ojibwe and Lakota - on sovereignty in practice. It touches on the blood quantum system - which is the Bureau of Indian Affairs' method for determining who is, and who is not, a member of a particular tribe. (The Cherokee and one or two others use a different system, apparently.) I can't find anything in detail on the blood quantum system - clearly a natural point of weakness - try this page from what looks like a history of racial classification.

[Note also the use of the expression paper Indian which seems to refer to Indians, recognised as members of a tribe, who live off the reservation.]

A 2000 article in the Kansas Journal of Law & Public Policy on indigenous political participation and tribal sovereignty.

A handy timeline (with links) of US Indian policy from 1789 on.

Useful (for neophytes like me!) course notes from Humboldt State on Federal relations with the Indians.

Finally, there's a piece which purports to quote (single source alert!) from a letter (March 10 2003) from Connecticut Attorney-General Richard Blumenthal to Senate Indian Affairs Committee Ranking Member Daniel Inouye on S 297 (the Federal Acknowledgment Process Reform Act of 2003) - which seems designed to gain recognition for all sorts of spurious tribes, with a view to casinos, land claims and other shakedowns. Blumenthal commends the more modest measure (S 463) sponsored by Sens Dodd and...Lieberman.

Methinks a Paul Revere of the new millennium had better be saddling up right now.


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