Feinstein wades into urban gaming fight

By Malcolm Maclachlan | 12/02/10 12:00 AM PST
Opponents of urban casinos in the Bay Area have a powerful ally in Washington:  U.S. Sen. Dianne Feinstein.

Feinstein, a Democrat and California’s senior senator, has proposed changes in the law that would make it harder for tribes to take new lands into trust.

It’s a seemingly obscure legal designation that has serious implications for just about any tribe that would want to build an urban casino.

Under Feinstein’s changes, a tribe would have to show both a “substantial direct aboriginal connection to the land” and “substantial direct modern one.”

While many tribes have argued a historical connection to lands they wish to acquire and use for gaming, showing a current connection to empty urban land may be more difficult. She has reportedly explored attaching the language to appropriations bills that would be passed in the current lame-duck session of Congress, but has yet to get it into legislation.

Not surprisingly, groups opposing new urban casinos have hailed Feinstein’s moves, while many tribes are on record against her proposal.

“We’re pleased that someone on the federal level is looking at off-reservation gaming,” said Joan Garrett of the group Citizens for Sustainable Point Molate.

Garrett’s group has been fighting efforts by the Guidiville Tribe of Pomo Indians to build an urban casino on the 290-acre waterfront spot, the site of a former Navy refueling station, and Garrett confirmed they have been in contact with Feinstein’s office. The tribe’s CEO, Michael Derry, has a different interpretation of Feinstein’s actions.

“She’s attempting to amend IGRA, which has not been done in 22 years,” said Derry, referring to the 1988 Indian Gaming Regulatory Act, the federal law which established the legal framework for tribal gaming.

 “She’s attempting to do a backroom deal, hide the ball and sneak in some legislation,” Derry added. “We are opposed to it. Most of Indian country is opposed to it.”

Sen. Byron Dorgan, D-N.D., has been pushing legislation that would allow a far more liberal approach to allowing tribes to take new land into trust. The Obama administration supports the basics of Dorgan’s legislation, indicating that Feinstein may have a tough time getting the changes she wants into law.

However, Feinstein has a couple of cards in her back pocket. First is the backing of Sen. Harry Reid, D-Nev., the Senate majority leader who eaked out a six-point win over Republican Tea Party challenger Sharon Angle in November. Reid reportedly had heavy support from Nevada’s casino gaming interests, which generally oppose increased tribal gaming in neighboring California. Reid is also on record saying he wants to legalize Internet poker in the United States, and is rumored to be preparing a bill rider to do just that.

Second, Feinstein chairs the Senate Subcommittee on Interior, Environment, and Related Agencies. In other words, she has a significant hold on the purse strings of  the Department of Interior, which includes the Bureau of Indian Affairs and must approve all land into trust applications. Interior has reportedly been working with Feinstein on her proposal.

Feinstein threw down the gauntlet publicly over the weekend in a Nov. 17 editorial in the Contra Costa Times titled “Must stop reservation shopping once and for all.” She argued that when the voters passed Proposition 1A in 2000 with 65 percent of the vote, they were voting for gaming only on existing tribal lands.

“Today the spirit of this proposition could be violated by major casinos proposed around the state on lands that are not ‘Indian lands’ - some of which are more than 100 miles from tribal headquarters. This is ‘reservation shopping,’ in which tribes from rural areas seek federal approval to acquire lands in trust in densely populated urban areas.”

Her efforts to change the land into trust requirements, though, have been going on for weeks, if not longer.

According to several stories in Indian Country Today and other news outlets that follow tribal gaming, the issue blew up at both the 67th annual conference of the National Congress of American Indians, which took place Nov. 14-19 in Albuquerque, N.M., and at the Global Gaming Expo, which happened simultaneously in Las Vegas. Both featured vigorous debates between those who want to limit new off-reservation gaming and those who support it.

Federal lawmakers have been looking at clarifying the land into trust requirements since the Supreme Court decided Carcieri v. Salazar in favor of the state of Rhode Island in February of last year. The state had longstanding dispute with the Narragansett Indian Tribe over attempts to collect taxes from tobacco sales at a tribal smoke shop and the tribe's repeated attempts to build a casino. The tribe has an 1,800-acre reservation, but under a 1975 deal with the state, this land did not have legal exemptions that would have allowed the tribe to open a casino or conduct tax-free retail transactions.

The issue came to a head in 1991, when the BIA granted approval for the tribe to take 31 acres into trust to use to pursue these commercial activities without being taxed by the state. The state sued, lost and appealed this land application, eventually ending up at the Supreme Court in 2008.

When the court handed down its six-member majority decision, it had implications far beyond a single casino and smoke shop. They held that the 1934 Indian Reorganization Act applied only to tribes that were federally recognized at that time, and that the BIA did not have the authority to approve land trust applications for tribes that didn’t meet this requirement.
This is a distinction, incidentally, that disproportionately affects California tribes, many of whom were recognized after 1934. There are several tribal groups in California currently seeking federal recognition.

Federal legislators immediately began looking into a legislative fix to the “Carcieri” case, named for Rhode Island Gov. Donald Carcieri. The administration and Dorgan, chairman of the Senate Indian Affairs Committee, have been pushing what is now known as the “Clean Carcieri” fix. This refers to legislation that would reinstate the federal government’s ability to take tribal land into trust for all tribes, not just ones recognized before 1934, and without demanding the specific claims on the land that Feinstein would impose. This would essentially reassert the status quo that existed before the case.

It appears unlikely that either approach would pass before next year, leaving current urban casino efforts in limbo. In the meantime, anti-casino groups continue to fight the Point Molate project and another proposed casino, this one by the Federated Indians of the Graton Rancheria. That tribe has been fighting heavy opposition to a proposed casino in Rohnert Park, a city of 41,000 located 50 miles north of San Francisco. That land has been taken into trust. On Oct. 1, the National Indian Gaming Commission granted the tribe clearance to build a Class II bingo style casino if they wanted; they need a state compact if they want to build a more lucrative, Class I slot machine-based facility.

Meanwhile, the voters weighed in on the Point Molate project on election day. Measure U, an advisory asking Contra Costa County voters if they approved of the proposed casino project. Fifty-eight percent voted against the casino plan, though this vote carries no actual legal implications.

The Guidiville Tribe’s Derry discounted the vote, noting that it came in a low-turnout midterm election, and that local card rooms supported Measure U heavily.
“I wouldn’t call it a mandate by any means,” he said.

Garrett, meanwhile, said that voters saw through the tribe’s empty promise of jobs, which offered no guarantee that locals would be hired. She added that if the tribe does manage to open an urban casino, it would provide an incentive for other tribes to attempt to do the same thing.

“This has been ground zero for the whole issue,” she said.