Archive for September, 2010

Video of Ken Conklin’s 68 minute lecture on the Akaka bill

A series of three 60-minute lecture/discussions were scheduled for the Church of the Crossroads in Honolulu on three successive Sundays in September 2010. The presentations were publicly announced ahead of time. I, Ken Conklin, was the speaker for September 12. My topic was: “Unity and Equality vs. Racial Separatism — Why the Akaka bill is historically, legally, and morally wrong; with bad consequences for all Hawaii’s people including those with native ancestry”

Being a retired professor, I’m accustomed to using lecture notes. I wanted to make the notes available to the audience, including internet web page links that would provide more detailed explanations plus citations of source material. Since the notes ran longer than a single page, and not knowing how many people might attend, I made the notes available on a web page which you can access here

Below, you will find video of the entire discussion.

Ken Conklin’s Akaka Bill Lecture Part 1 from Grassroot Institute on Vimeo.
41 minutes

Ken Conklin’s Akaka Bill Lecture Part 2 from Grassroot Institute on Vimeo.
27 minutes

Jim Marino on Tribal Gaming (Part 7)

Today, we have the final installment of Jim Marino’s series on Indian casino gaming in California (originally published in the Santa Ynez Valley Journal).  If you’ve been following the series, you’ve seen Marino build a case for the inherent problems of tribal gaming–from its end-run around initial state opposition to the damage it can cause a community or local economy.  But perhaps you thought that the federal government would catch any truly serious abuses of the system–especially considering the power of the BIA to regulate tribal gaming in the US.  Not so fast.  As Marino lays out below, the federal government is often unwilling or unable to regulate Indian gaming–a point to ponder for anyone who puts their trust in the compromises and limits outlined by the Akaka Bill when it comes to regulation of a new Native Hawaiian government.

Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 27, 2010

(Part 7)

This is the concluding article in a series of articles on Indian gambling casinos in California. In recognition of the ten-year anniversary of the legalization of some of the Indian gambling in California, I thought it was an opportune time to talk about its origins, the failures and inadequacy of Congress in enacting the Indian Gaming and Regulatory Act in 1988, and the political process and corruption involved in the negotiation and execution of the 59 original compacts, negotiated in California by now deposed governor Gray Davis who received massive contributions for his 1998 election from the illegal Indian casinos operating here before March 2000.

Once Indian gambling was introduced into California I went on to discuss the impacts on communities where they are located and some of the irony of tiny recognized “tribes” of one or two people, or perhaps a handful of members, often tracing only fractional descent [if any] to a real California Native Indian Band and claiming they were sovereign governments because they have been “recognized” by bureaucrats in the Bureau of Indian Affairs. These tiny “sovereign governments” pay no taxes and provide no services or infrastructure to their “tribe”. Rather they depend on the public services and infrastructure paid for by non-Indian taxpayers and the federal government for their welfare.

I discussed how these claims of “sovereignty” were not only used to evade paying the taxes needed to fund local public services and infrastructure, but also used to evade all the many laws enacted for the protection of the public, customers in Indian casinos and businesses, their workers and the environment and quality of life in the host communities.

I discussed the false economy of Indian gambling casinos that promise “jobs” and claim to be a destination “resort” bringing in tourist dollars when, in actuality these are unprotected, transient and generally low paying “jobs” that are created. This job creation is far-outweighed by the fact that the many gamblers losing money at an Indian casino, come from nearby communities where they are not spending those discretionary dollars in non-Indian businesses. These nearby non-Indian businesses often cannot compete with an Indian casino or business that pays no taxes, operates above the laws and which cannot be sued by customers, workers (or anyone else) for their misdeeds because of an outdated court-created legal doctrine giving Indian tribes, their casinos, businesses, agents and employees complete immunity from lawsuit no matter how outrageous their actions or conduct may be.

That in addition to siphoning millions of dollars in discretionary money from gamblers drawn to these casinos from nearby communities these patrons are gambling with money they often cannot afford to lose. That produces increases in crimes of theft, robbery and embezzlement, divorce and family neglect, financial problems, foreclosures and bankruptcies, gambling addictions, substance abuse, even increased suicides that are an inevitable result of the introduction of Indian casino gambling.

I quoted Warren Buffet who astutely pointed out a few years ago that there has always been gambling activities. The problem with Indian gambling casinos is that they have made gambling much more convenient so those losing vast amounts of money do not have to travel great distances to places like Las Vegas to do so.

Finally I discussed the inherent corruption and decay in the political and moral fiber that arises with Indian gambling casinos and which is virtually impossible to measure the negative impacts of that in dollars and cents and which is equally difficult to detect because addicts, corrupt politicians and drug and alcohol abusers rarely admit to such things like gambling away food and rent money or stealing money to gamble more. I knew a foreign car dealer in this area years ago (now deceased). A client and friend who had accumulated a comfortable retirement nest egg, only to lose it all at the Chumash casino. He was a proud man who never admitted to his gambling addiction. Within the past year alone several embezzlers have admitted to stealing thousands of dollars from local employers in this area to fuel their gambling habits at the Chumash casino. Even a reported armed robber arrested in Oxnard admitted to robbery in order to have money to gamble in Indian casinos including the Chumash casino.

In last week’s article I discussed the pervasive undue influence, insidious corruption and political pay-offs inherent with Indian gambling casinos and the avarice of Sacramento politicians ready and willing to accept those gambling dollars, much of which is paid quietly and secretly, funneled and laundered through Political Action Committees and political party channels. Some received in the form of perks, free concert and sports tickets, free chips, spa treatments and free rooms as set out in a recent Los Angeles Times story about the failure of 27 California legislators to report these Indian casino “gifts.”

Besides the failure to enact enough effective laws to control and regulate Indian gambling this concluding article discusses the failure of federal, state and local government to take any meaningful steps to curtail the improper and illegal activities occurring within casino tribes in the course of the daily operations. This is true even where there are enforceable laws, thereby rendering Indian casinos operations virtually lawless.

Here I will pick up where I left off last week. Section 2710(2)(B) of the Indian Gaming and Regulatory Act of 1988 spells out the only five categories where the net proceeds of Indian gambling casinos can be spent. They are:

(i) To fund tribal government operations or programs

(ii) To provide for the general welfare of the Indian tribe and its members

(iii) To promote tribal economic development

(iv) To donate to charitable organizations; or

(v) To help fund operation of local government agencies.

As I related in the last article, the Louisiana Coushetta and the Mississippi Choctaws gave now imprisoned lobbyist Jack Abramoff and his sidekick Michael Scanlon some $85 million dollars to “distribute” to various politicians in Washington D.C. to block the Alabama Coushetta and Texas Tigua tribes from opening a casino nearby that would have competed with their casinos. Besides participating in what amounts to these fairly obvious bribery attempts, where could any Indian tribe justify a scheme like that into any of the five exclusive statutory categories of 2710(2)(B) set out above? Nothing was done to the tribal officials, their lawyers and advisors for this scheme but Abramoff wound up in prison. The whole thing was spun as “overbilling” to the tribal governments by Abramoff and Scanlon. Ultimately the identity of the many recipients of this money was concealed and buried in a perfunctory “investigation” conducted by the Senate Indian Affairs Committee.

Three years ago Butch Crawford from Plymouth California and I met with the solicitors for the Bureau of Indian Affairs in their Washington offices. He presented the investigators with a copy of an application for more than $900,000 in grants monies for claimed improvements to be made to Indian fee lands in Amador County. Those lands were actually owned by a group of individual Miwok Indians from the same tribe but a different faction of the tribe. The application had been submitted by the newly elected tribal chairman who was at the time, the spokesperson for the other break away dissident group or faction of the same tribe. The original smaller faction consisting of these individuals and families actually owned the 40-acre parcel of land in fee divided amongst them individually. It was not reservation or trust lands it was privately owned. The $900,000 grant application was submitted by the larger dissident faction of the tribe. Those members owned no land at all, yet the application they submitted was for a grant for “physical improvements to tribal land.” At or about the same time this dissident faction, now constituting the majority of tribal members, was desirous of building a gambling casino. To facilitate that effort they made application to the B.I.A. to bring land near Plymouth Cal., [on which they held an option], into federal trust status to render it eligible for gambling operations. To fit into one of the exceptions allowing gambling on lands acquired by an Indian tribe after 1988 they asserted in that application that they were entitled to do so under the IGRA exception allowing for gambling on land acquired by a tribe after 1988, if they were a “landless” tribe. So for purposes of obtaining a large federal grant for “improvements” on non-existent tribal land, they succeeded in obtaining nearly a million dollars in federal grant money. At the same time and for purposes of trying to qualify to bring the Plymouth land into trust for a gambling casino they stated in their federal application they were landless! The investigative lawyers we spoke with at B.I.A. were not interested in how a group of Indians received a $900,000 grant for land improvements at the same time they applied to buy land and bring it into trust under a legal exception only available for tribes that had no land! The response of the B.I.A. investigative lawyers was that half their 60 or so investigators were still working on the Abramoff case and they didn’t have the manpower or time. This in the face of the fact the Abramoff case had already been concluded and nothing has happened in that case in the three years since that meeting.

In another more local instance, we had a meeting with an agent of the Federal Bureau of Investigation concerning the use of casino credit cards by Chumash government officials. Records indicated charges had been made, among other things, for a $10,000 “diamond ring, breast implants, a funeral,” luxury travel and other clearly inappropriate charges that were made, amounting to tens of thousands of dollars.

He informed us that unless it involved a theft of over $75,000 they would not even open a case file. I pointed out that if a robber went into a bank, pulled a gun and robbed the teller of $1,500 they would put 5 agents on the case and if it happened a few more times that same robber would make the 10 most wanted list. Nothing was ever done by the F.B.I. or anyone else about these improper credit card charges.

The current Chumash tribal chairman Vince Armenta went into the casino a few years ago and sat at a blackjack table with his son and some friends. He demanded chips from the dealer for he and his friends to play “on the house.” When the dealer offered only some one dollar and five dollar chips, he demanded “the greenies” [$25 chips], this was done despite the fact these actions would normally constitute a federal felony under Title 18 entitled “theft from an Indian tribe.” When angry tribal members reported this incident to the National Indian Gaming Commission (N.I.G.C.) investigator in Sacramento he said it was up to the tribal Gaming Committee to deal with it and basically shined the incident off. That tribal gaming committee was chaired at the time by the tribal Chairman’s brother, Raul Armenta and the committee later suspended the blackjack dealer for a week.

On another occasion, the cardroom manager at the time, Tony Armenta, was instructing a gambler who had won over $10,000 dollars playing blackjack, how he could avoid the reporting requirements for any cash transaction over $10,000, required by the United States Banking Act. He informed him he could do so by splitting the winnings with his girlfriend, bringing them below the $10,000 threshold, the casino security officer, called to the cardroom at the time, informed Mr. Armenta that was illegal. When nothing was done that same officer, a former police sergeant, reported the incident to the I.R.S. The agent did nothing except inform the Chumash tribal government, who then disciplined the security officer for reporting this incident to the I.R.S.

Even now when drug trafficking at the Chumash casino is rampant, the County Sheriff is doing little about it, although federal law provides that local and state law enforcement authorities have jurisdiction over all crimes committed on Indian lands. It is the Sheriff’s duty to police all Indian lands, not the security guards employed by the tribe. A few years ago the N.I.G.C. had promulgated a set of rules called the Minimum Internal Control Standards [M.I.C.S.]. The Colorado River Indian tribes filed suit and challenged these rules on the grounds the I.G.R.A. gave no authority to the N.I.G.C. to police class III, full scale casino gambling. Their jurisdiction only extended to the licensing of class II Bingo halls. The 10th Circuit agreed and those M.I.C.S. were held unenforceable.

The only authority left to enforce any rules and regulations other than criminal laws, was through the tribal state compacts. In California this has proven to be a standing joke. Neither the Governor, the Attorney General, or the inept and ineffective State Gambling Control Commission [which at last report had only 3 investigators], has ever done anything. Nor have effective rules been adopted or any enforcement of the compacts been undertaken by any state or federal agency.

A few years ago I testified in front of that Gambling Control Commission at the request of Cheryl Schmit [Stand Up for California] concerning a number of illegal and questionable practices occurring at Indian casinos including the Chumash casino. During a recess the Commission chairman and legal counsel, Herb Boltz, approached me and asked that I document the incidents testified to and send it to him, which I did in a 12-page letter complete with several exhibits and attachments. I did that within a week of that hearing. I never heard another word, not even a thank you for the effort.

Not long ago the Chumash casino brought in a roulette wheel. This is a clear violation of state law because Art. 4 section 19 of the amended Constitution only authorizes slot machines and house-banked card games conducted by Indian tribes by compact and on Indian lands. Use of roulette wheels are also a violation of the compact. One local group took a picture of it and sent it with a letter demanding enforcement of the law to the Gambling Control Commission. After several unanswered letters the State Gambling Control Commission finally wrote a letter to the Chumash tribal government that December, telling them they would be down to inspect the casino in March and suggested they remove the illegal roulette wheel before then.

Several tribes, apparently aware no enforcement action would ever be taken by their friends in Sacramento, brought in craps tables. Craps games are also illegal for the same reasons as roulette. The offending tribes asserted, apparently to the satisfaction of state regulators, that it really wasn’t craps after all because instead of rolling dice on the craps table they had two stacks of six cards each numbered 1 through 6 and the player would turn over one card from each stack constituting the numbers “rolled.”

At a meeting two years ago with George Skibine in Washington D.C. [at the time he was head of Indian Gaming at the B.I.A.] he is now acting commissioner of the N.I.G.C. We discussed a number of issues concerning illegal activities occurring in Indian casinos including tribes operating gambling casinos on ineligible lands. In the course of the discussion he postulated the following incredible and illogical policy which probably best explains why the federal government is doing nothing about all of the illegal activities involved in Indian casino gambling.

Chairman Skibine said this: Our [meaning the N.I.G.C. and B.I.A. and Department of Interior] authority and jurisdiction over Indian gaming comes from the Indian Gaming and Regulatory Act. If any Indian tribe is operating a gaming facility that is not on eligible Indian lands or otherwise not complying with federal gaming laws then it is outside of the provisions of the I.G.R.A. which requires such gambling to be on eligible Indian land in order to be authorized and sanctioned by that Act.

Therefore it is beyond our authority and jurisdiction to do anything about it because if it is outside of the Act it is outside of our jurisdiction. If Indian gaming not being conducted on eligible “Indian Lands” pursuant to the I.G.R.A. then it is up to the State in which it is occurring to enforce State laws against illegal gambling, if that gambling activity is against that state’s laws. This “hot potato” game is thus played when the state claims that enforcement is the responsibility of these federal agencies. The federal government then says it is the responsibility of the state or, as in the Armenta blackjack case, claim that it is a matter for the tribal government to resolve.

Likewise local law enforcement often passes the buck to the state or federal government, who passes the buck back to the state or perhaps to the tribal government. So the answer to the original question, why no one is enforcing the laws that do apply and which are enforceable, it is because no one is willing to do so.

The reasons they are not willing to do so are complex but generally fall into a few recognizable categories. The first is that it is politically incorrect and unpopular to take any action against “Indians” even if they are not really Indians at all, because the public has been indoctrinated about historic injustices to “Indians” centuries ago. Politicians don’t want to evoke the “race card.” The second reason is political corruption plain and simple. The casino Indians are funneling hundreds of thousands of dollars into the pockets of politicians and the bureaucrats who are responsible to regulate and police these tribal casinos and businesses and they are routinely ignoring numerous violations. The third reason is that many of the federal laws are poorly written, lack adequate specific enforcement provisions and directions and the tribal-state compacts that are in place are also poorly written. Even where they contain enforceable provisions, they are never enforced, like the 59 Gray Davis compacts in California. The last reason is that many of the federal agencies that should be taking enforcement actions in these areas are dominated by Indians, or part Indians, even wannabe Indians, or those who are simply “enrolled” members of some tribe someplace, and they ignore the law, stonewall inquiries and investigations, and exercise biased interpretations of the laws and rules that they have been given wide discretion over by enabling statutes, thereby thwarting any effective enforcement. As I mentioned in a previous article, where one would expect the media to expose this scandalous scenario, they don’t and they have haven’t done so, because they are afraid of offending their biggest and most profitable advertisers, Indian gambling casinos.

This concludes the series on Indian gambling in California, meant to be educational, because the more people who know and understand what has happened and is still happening, the more likely people will call for positive changes and perhaps elect ethical and responsible representatives and not politicians or corrupt bureaucrats holding out their hand for casino cash and perks to get elected or re-elected or appointed to the offices that they are supposed to hold to protect and fairly and impartially serve the 38 million people of California.

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Jim Marino on Tribal Gaming (Part 6)

Today, our sixth installment of Jim Marino’s series of articles on tribal casino gaming in California (originally published in the Santa Ynez Valley Journal) looks at the corruption in California that followed the explosion of Indian casinos.  “Tribes” of one person . . . lobbying slush funds . . . it’s all there, proving that money, politics, gaming, and corruption are natural bedfellows.  Those who oppose the introduction of casino gaming to their communities are often wrongly characterized as puritans.  True, opposition to gambling may be a factor for some, but there’s so much more to the issue than just the issue of gambling.  As this article makes clear, no one should walk blindly into creating Indian gaming in their community without knowing more about the social impact of it–from crime rates to the powerful influence of gaming profits on local government.  It’s something to keep in mind as we consider the far reaching implications of the Akaka Bill.  (And recall that–even though the current version of the Bill does not allow for Native Hawaiian casinos, there was a time when such casinos weren’t permitted in California too.)

Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 20, 2010

(Part 6)

In a 5-part series, I outlined what led up to the advent of the Indian Gaming and Regulatory Act of 1988. How Congress engaged in a feeble attempt to wean Indian tribes from total federal dependence and at the same time clarify the 1987 U.S. Supreme Court decision in Cabazon Tribe versus California. How Congress completely failed to take into account the complex and confusing body of Indian law, including the court-created doctrine of Indian tribal immunity from lawsuit.

Then I discussed the tortured history of how Indian gambling found its way into California illegally and the attempts to legalize it by corrupt politicians and Gov. Gray Davis, who executed 59 tribal-state compacts for casinos with several tiny bands of questionable Indian descent, and who had no legally eligible lands on which to build and operate a gambling casino and even allow questionable “tribes” to purchase land near perceived gambling markets in a practice that came to be known as “reservation shopping.”

These often ridiculous policies and events led to the rapid expansion of Indian gambling casinos all over California being thrust into many communities who didn’t want them and which provided no benefit despite the creation of “jobs.” That was because of the many negative impacts of such a casino and the demands placed on public services and infrastructure, which the Indian casinos and businesses used regularly while paying no taxes.

This continuing article is to demonstrate how pervasive the corruption from Indian gambling dollars has become. Although there are many examples, this limited space only allows for the recounting of some of the typical and more outrageous examples of it.

As set out in the earlier series, Gov. Davis owed his election to the massive contributions from Indian casinos operating illegally in California at the time and the massive campaign instituted by those tribes, many of which had only a handful of members, and fractional and often questionable claims to being “Indian” at all. A campaign to enact a tribal initiative to amend the California Government Code known as Proposition 5 was circulated in an attempt to legalize the illegal Indian gambling casinos operating in California at the time.

To repay this largesse, once elected, Gov. Davis negotiated 59 tribal-state compacts through the summer of 1999 with these illegal existing casino tribes and many other questionable groups, several with no eligible land upon which gambling would be allowed under federal law. These compacts had been negotiated behind closed doors under the authority of Proposition 5 enacted in November 1998 at the same time Davis was elected.

These secretive negotiations took place behind closed doors, away from all of the major public forces that usually shape laws, such as city and county governments, unions, law enforcement, women’s rights groups, environmental protection groups, local and consumer rights groups and lawyers’ organizations. Even though the California Supreme Court had struck down Proposition 5 in August 1999, undaunted, Gov. Davis executed these give-away “sweetheart” compacts in September 1999 and had the democratically controlled legislature approve them in October 1999. To overcome the fact there was no statutory authority to execute and approve those compacts after the August 1999 Supreme Court decision, Gov. Davis and the Legislature put a “legislative initiative” on the March 2000 ballot called Proposition 1A. Although this initiative amended the State Constitution to authorize the Governor to negotiate future tribal-state compacts, it was, in effect, an initiative designed to retroactively ratify the 59 compacts signed earlier without lawful authority and without informing the voters.

As if this corrupted set of events was not enough, it was but the opening bell in a bruising round of corrupt practices that followed at both the state and federal level.

Proposition 1A established two funds: The Revenue Sharing Trust Fund and the Special Distribution Fund. The former was a fund established by the state into which those tribes with casinos would pay money. That fund would then make annual payments to “Indian tribes” in California that did not have casinos, or had casinos with fewer than 300 slot machines. Each “tribe” would receive an annual distribution of $1,100,000 over and above the hundreds of thousands they receive in federal welfare and grant monies.

Some of these “tribes” had only one or two members, like the Valley Miwoks and the Buena Vista MeWuks and Mary Ann Martin’s Augustine Band of Cahuilla Mission Indians. She was the only member of that “tribe” and not only entitled to receive a $1.1 million dollar distribution but also hundreds of thousands of dollars each year in federal welfare and grant money for “tribal government,” “tribal economic development,” “tribal housing,” and so forth. Many other bands or tribes had perhaps a handful of members.

The first thing that happened once Indian gambling became openly legal was that these casino tribes began contributing monies large and small to various politicians at the state and local level.

Many of you may recall how Jack Abramoff, the now imprisoned and disgraced lobbyist, got $80 million from one “poor” Indian tribe in Alabama with orders to spread it around Washington politicians, in order to block another Indian tribe’s attempt to open a competing casino. When the scandal finally broke, the Indian tribal governments and liberal media castigated Abramoff and his partner Scanlon for his activities, but carefully concealed the fact it was the Indian tribal governments, lawyers and lobbyists that furnished the tribal ‘pay-off” monies and that Abramoff was just the bag man delivering the tribal gambling monies to the many corrupt politicians he knew and who willingly took it.

One tribal government operating a gambling casino near Palm Springs gave Abramoff $10 million and then later refused to disclose what it was for, even to the tribal membership. State Senator Jim Battin from Palm Springs received tens of thousands of dollars in Indian casino contributions deposited into committees mostly called “The Friends of Jim Battin.” These committees were very generous in handing out tens of thousands of those casino dollars to other Sacramento politicians, lending a new meaning to the expression “it pays to have friends.” When he finally got in trouble with the state F.P.P.C. and they filed complaints against him, he and these Indian casinos set up the “Jim Battin Defense Fund.”

Senator Battin, (now termed out), was a champion of Indian gambling causes of all kinds. A year or two ago, the former chairman of the Indian Gaming Commission, Phillip Hogen, had been trying to change the federal rules defining more clearly what a slot machine was. Casino Indians and slot machine manufacturers had designed machines they called Bingo machines. Bingo under the IGRA is a class II gambling game that can be operated by a tribe without needing a tribal-state compact. Such a tribal-state compact is required for class III casino gambling, including the use of slot machines.

The compact requirement is the only way states can require tribes to pay money for all of the public services and infrastructure they use at the taxpayers’ expense. The compacts are also the way states can impose rules and regulations on gambling tribes. Commissioner Hogen had been trying to change the rules for years and reclassify these “Bingo machines” as facsimile slot machines subject to state control and the tribal-state compact requirements.

Sen. Battin wrote a letter, at the time, to Commissioner Hogen urging him not to change the rule, and he had 20 other Senators sign it. So, here we have fully one-half of our state’s Senators opposing a federal rule change that would be a direct benefit to the State of California, the state that they are supposed to be representing.

As I wrote in an article last year for this Valley Journal titled “Pay to Play,” this Indian casino corruption is rampant. Locally the Chumash and other tribes pushed for a bill early on in the gambling casino saga. They urged adoption of a bill in the Legislature that required local communities to come hat in hand for monies from the special distribution fund that were paid into it by gambling tribes. This money was originally intended to mitigate the negative impacts of casinos on local communities. That bill established local committees, controlled by the very Indian tribes causing the negative impacts who would then either approve or disprove any requests for grants by local governments to be made from the monies that were originally in that fund to mitigate those impacts.

On another occasion when the IRS refused to allow Indian tribes to issue tax-free bonds for gambling casino construction, arguing that such bonds were for public works projects, the tribes went to their friends in Sacramento – and introduced a bill to have the State of California issue tax-free bonds on their behalf.

When the gambling tribes wanted to eliminate any competition, they went to Sacramento again and had a bill introduced to place a long moratorium on the issuance of any more private non-Indian card room licenses that is still in effect. In fact, they just got their buddies in the Legislature to extend it.

When they wanted to eliminate competition from charities conducting Bingo games for charitable purposes, they got their Legislative friends to pass a bill banning the use of these Bingo machines by charities. You remember, the same machines they argued to the federal government were not slot machines at all, but then when they wanted to block their use by charities in California, they claimed that the state should not allow this use because it infringed on their exclusive right to operate “slot machines,” as provided for in the tribal-state compacts and in Art. 4, section 19 of the State Constitution.

Even locally, you may recall, when the Chumash wanted to rename San Marcos Pass/Highway 154 “The Chumash Highway,” they went to another friend of the Indian casino tribes, Assemblyman Coto, who has taken thousand of dollars from casino tribes and is now doing so for a run for the State Senate. Assemblyman Coto represents a San Jose District some 300 miles from here.

After receiving a generous political contribution of several thousand dollars from the Chumash, he introduced a resolution to rename Highway 154 as the Chumash Highway.

This was done without any local notice or knowledge and/or a resolution from the Santa Barbara County Board of Supervisors, which resolution was required by a section of the California Streets and Highways Code. It was then shepherded quietly through the legislature by a number of elected officials in record time, many of whom had received thousands of dollars from the Chumash and tens of thousands from other casino tribes. The community only learned of the resolution when the tribe issued a press release after the fact.

In another recent episode of attempted corrupt influence, in order to further their ambitious acquisition and development plans, the Chumash gave State Sen. Florez a $15,000 “contribution,” and within a month or two he introduced a bill to relieve the Chumash (and ostensibly other Indian tribes) from complying with the limitations contained in the Williamson Preservation Act, apparently knowing they were going to purchase the 1,400-acre former Fess Parker property and other properties still restricted by Williamson Act limitations. Fortunately, that bill was soundly rejected by the Local Government Affairs Committee, with the chairman, State Sen. Cox stating, “You wouldn’t be here, Sen. Florez, if it wasn’t for the Chumash.”

This corruption from gambling dollars is bi-partisan. Two years ago, when four tribes wanted to expand the number of slot machines in their casinos, they not only spent well over $70 million promoting the amended compacts on the statewide ballot, they also gave the State Republican party $5 million. Not coincidentally, the Republican Party then spent about the same amount of money supporting those ballot propositions which were numbered 34-38 and ultimately were approved.

In addition, Indian casino tribes spent more than 35 million to oppose race track efforts to obtain slot machines at their tracks in propositions 93-95 on the ballot in that same election. Such slot machines would have competed with tribal casinos, having exclusive rights to have slot machines.

What is perhaps the most ironic, if not astounding aspect of all this corruption from these Indian gambling casinos and their political contributions, is the fact that these political pay-offs are not legal by federal law. Title 25 section 2710 of the I.G.R.A. provides as follows:

2710(2)(B) net revenues from any tribal gaming are not to be used for purposes other than –

(i) To fund tribal government operations or programs

(ii) To provide for the general welfare of the Indian tribe and its members

(iii) To promote tribal economic development

(iv) To donate to charitable organizations; or

(v) To help fund operation of local government agencies.

The obvious question is into which one of these categories could political contributions and pay-offs possibly fit? How, for example, could an Indian tribe justify putting money into a fund, like the Jim Battin Defense Fund, whose purpose is to defend a politician from state allegations of illegal acts and practices constituting violations of the Fair Political Practices laws?

When I put that very question to former Chairman of the NIGC Phillip Hogen, he could not answer it. That is most likely because such contributions do not fit into any one of these five categories of permissible uses.

That brings me to the last point and that is, where are the provisions to enforce the federal laws and state laws that should be regulating Indian gambling casinos but are not? I thought I could conclude this series in 5 installments but that has proven impossible.

So next time, the final installment: “Why no one enforces the laws intended to limit and regulate Indian gambling.”

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Jim Marino on Tribal Gaming (Part 5)

Today’s entry in our continuing series on Tribal Gaming in California by Jim Marino looks at the false economy of Indian casinos.  For the state, that is.  And any other residents who aren’t fortunate enough to have a profit stake in said casinos.  You know, this has always been one of my particular stumbling blocks.  After all, when one is dazzled by the glitter of Vegas or the sheer amount of cash changing hands in a casino, it’s hard to imagine that they can actually have a negative economic impact on the community.  But, as Marino explains (in this piece originally published in the Santa Ynez Valley Journal), there’s a lot more to the economy of tribal gaming than meets the eye . . .


Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 13, 2010

(Part 5)

Last week I wrote about the many negative impacts Indian casinos imposed on the host communities. I wrote about the underhanded way the 59 tribal compacts were negotiated secretly and executed and then the clandestine ratification of them by the passage of the “Legislative Initiative” called Proposition 1A, months after former Gov. Grey Davis signed them and the Legislature approved them illegally with no Constitutional authority to do so.

I also wrote about the worthless content of these “sweetheart” compacts and how they provided no benefit to the state or local communities, except the massive political contributions these casino tribes now make regularly to the many politicians in the hip pocket of their gambling casino benefactors.

These casinos were thrust into communities under the claim the federal Indian Gambling Act [I.G.R.A.] and the state compacts made them a “done deal” and the local communities had nothing to say about it.

But if they didn’t oppose them, these local communities might get some of the gambling dollars in lieu of the many taxes local and state government could not collect. If the local government did not cooperate, on the other hand, they would get no money and often would be accused of being anti-Indian racists and insensitive to the plight of “Indians” in America. After wielding this political stick, these gambling investors and tribes would then wave the carrot, telling local government they would create “jobs” and thus be a great benefit to the community.

This week I’ll discuss the false nature of these claims and the negative economic impacts on every community that are easily identifiable and those that are more difficult to measure. Lastly, I will discuss the manner in which a literal handful of casino Indians and their gambling cartel have totally corrupted the State of California and its 38 million citizens.

One does not have to be an economist to understand the false economy of gambling casinos in general. The vast sums of money lost there in the name of entertainment are often monies lost by people who cannot afford to lose that money. Slot machines are the favorite vehicle to lose money, accounting for about 85 percent of the profits raked in by all casinos.

The difference between a casino in Nevada and an Indian casino is stark: The gambling casinos in Nevada pay taxes; Indian casinos do not. The Nevada casinos are strictly regulated and policed. Indian casinos are not. Nevada casinos require minimum fair rates of return for slot machines. Indian casinos do not and are free to change out the random operating chips in these slot machines whenever they want.

The tremendous costs of providing public services like police, fire, schools, jails, hospitals, public works, social services, etc., used regularly by Indian casinos and related businesses, and the demands placed on infrastructure like roads, bridges, public buildings, and other facilities, are all paid for by the non-Indian taxpayers because these tribal businesses are exempt from property taxes, bed taxes, sales taxes, personal property taxes, corporate taxes and state income taxes among others.

As an example, the Chumash casino grossing between $250 and $300 million a year in gambling losses, is able to evade approximately $20 million in combined taxes annually. The Chumash put sales tax as an item on bills and receipts and in an amount identical to what the state requires for all others, in order to make customers think the tribe pays the state tax monies. But that money does not go to state and local governments; it is kept by the tribe who recently allocated some $3 million from that fund to buy property in Solvang.

Similarly, the per capita profit distributions to each of the 152 tribal members amounts to about a half-million dollars a year to each tribal member. The state income taxes on that amount of money would be almost $9 million a year that the state does not get.

The amount of money that trickles down into the local economy from the salaries of employees and the costs of goods and services is nowhere near enough to make up for lost tax revenues or to pay the tribe’s fair share of the costs to the community for increased demands on public services and infrastructure. Neither are the occasional gifts tribes like the Chumash make usually to the police or fire agencies which gifts are often less than the $2 million the tribe still receives in federal welfare and grant monies every year.

The 59 Grey Davis compacts had a provision requiring the signatory tribes make a good-faith effort to comply with the California Environmental Quality Act [CEQA]. That provision provided that if tribal compliance was unsatisfactory then the Governor could demand a renegotiation of that provision. Tribal compliance was woefully inadequate, so in March 2003 Gov. Davis sent all the tribes a timely notice of required renegotiation. Not long after that, Gov. Davis was recalled for his inept leadership and Gov. Schwarzenegger was elected to replace him. During that campaign, Gov. Schwarzenegger assured the public he would make the casino tribes pay their fair share of the costs of providing public services and infrastructure to them at public expense, describing these casinos as “ripping the State off.” He also stood on the steps of the Capital, waving a broom and assuring the public he was going to sweep the corruption out of Sacramento. Once elected, he did neither.

In fact, he championed five expanded amendments a year or so later, creating compacts allowing those affected tribes to double and triple the number of slot machines and in doing so, making exaggerated claims as to how much money that would bring the state, it hasn’t come close to the amount claimed. In fact a recent court case in the 9th Circuit has held these tribes don’t have to pay any more money, going back to original giveaway compacts Gray Davis negotiated to pay back the tribes for his election and these five tribes can keep the extra slot machines and the revenue from them.

Shortly after Davis was recalled and just before his term was to end prematurely, he withdrew the notice to tribes demanding a renegotiation of the environmental protection clause in the compacts apparently out of pure spite because the public had ousted him from office and leaving environmental protection for all of the casino communities up to the “good-faith efforts” of the casino tribes in their neighborhood.

So despite the initial bluster and pontificating, Schwarzenegger did nothing to improve the false economics of Indian casinos. Most impartial studies, that is those that are not bought and paid for by Indian casinos, indicate that once the construction phase of a casino is finished, that it costs the host community $3.50 for every dollar the casino brings in.

Another economic myth is that by calling the casino a “resort” it will somehow become a destination location for tourists. This myth is debunked by several studies showing the vast majority of gamblers come from a one- to two-hour drive or fewer than 50 miles and come to gamble only.

Therefore, an Indian casino essentially siphons dollars from the immediate surroundings. Those are dollars and local monies not spent in other non-Indian businesses and entertainment venues where such discretionary income would otherwise be spent. Non-Indian businesses nearby often cannot compete with an Indian business that pays no taxes, is exempt from state and local laws, rules and regulations workers compensation and public liability insurance and cannot be sued for any of its misdeeds, no matter how outrageous they may be.

There are also the intangible and subtle negative impacts which are hard to place a monetary value upon. For example gambling addiction, substance abuse, family neglect, financial problems, bankruptcy and foreclosures, increased crimes of theft and embezzlement even increased suicides. Generally, chronic gamblers and addicts are not willing to stand up and admit they have gambled away food and rent money on the foolish belief they might win something in an unregulated, unpoliced and uninspected Indian casino, making monetary assessment of these negative impacts difficult to calculate.

Lastly, how can one measure the negative impacts of the corruption gambling dollars has brought to government and the impossibility of measuring in dollars the loss of integrity and honesty in state and local governments.

So widespread is this corruption I have written a concluding piece for next week’s Valley Journal.

It is more than clear at this point that Indian casinos are a false economy that creates far more detrimental and negative impacts on every community, and those costs and negative impacts are not offset by the creation of a few largely low-paying, unprotected and transient jobs in Indian casinos and businesses, nor by the purchases of goods and services. Nor do they come close to offsetting the millions in lost tax revenues needed to pay for all the public services and infrastructure used regularly by these casino tribes and their businesses.


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Opposing the Akaka bill — lecture notes September 12, 2010 Church of the Crossroads

A series of three 60-minute lecture/discussions about the Akaka bill were scheduled for the Church of the Crossroards in Honolulu on three successive Sundays in September 2010. The presentations were publicly announced ahead of time. I, Ken Conklin, was the speaker for September 12.

My topic was: “Unity and Equality vs. Racial Separatism — Why the Akaka bill is historically, legally, and morally wrong; with bad consequences for all Hawaii’s people including those with native ancestry”

Being a retired professor, I’m accustomed to using lecture notes. I wanted to make the notes available to the audience, including internet webpage links that would provide more detailed explanations plus citations of source material. Since the notes ran longer than a single page, and not knowing how many people might attend, I made the extended notes available on a webpage and gave its URL to the audience. That webpage is at

The lecture and Q&A session were taped by ‘Olelo TV. It will take a while for editing and scheduling before the program is broadcast.



The Hawaiian Government Reorganization bill, H.R.2314 and S.1011, is also known informally as the Akaka bill. The bill is highly controversial. It has been pending in Congress for ten years. In the current 111th Congress, it has passed the House of Representatives and is awaiting action in the Senate. President Obama has said he will sign it if it passes.

There are three major conflicting viewpoints about the bill.

A series of three lecture/discussions on three successive Sundays will explore the three viewpoints (see below for names and viewpoints of the presenters). The dates are September 12, September 19, and September 26, 2010. These presentations will take place 9-10 AM each of those three Sundays in Weaver Hall at Church of the Crossroads (United Church of Christ), 1212 University Ave., Honolulu, Hawaii 96826. Phone (808) 949-2220 The public is welcome.

Flyer on church website:

1. Sunday Sept 12.
Kenneth R. Conklin, Ph.D. opposing the bill on grounds of civil rights and support for unity and equality. Why the Akaka bill is historically, legally, and morally wrong; with bad consequences for all Hawaii’s people including those with native ancestry.

2. Sunday Sept. 19
Supporting the bill — Esther Kia’aina, Chief Advocate of the Office of Hawaiian Affairs.

3. Sunday Sept. 26
“Passage of the Akaka Bill will be detrimental to the cause of a Sovereign Hawaiian Nation” – Kekuni Blaisdel M.D., Kanaka Maoli Independence Working Group & Dexter Keaumoku Kaiama, Attorney at Law, Hui Pu.

Series is sponsored by the Church of the Crossroads in cooperation with the Association of Hawaiian Civic Clubs, Ka Lei Maile HCC and the Kailua Hawaiian Civic Club.

United Church of Christ
1212 University Ave.
Honolulu, Hawaii 96826
Phone (808) 949-2220
Weaver Hall
Adult Education Hour 9:00am – 10:00am
Public is welcome

Jim Marino on Tribal Gaming (Part 4)

Today’s entry in our ongoing series by Jim Marino on the development of tribal gaming in California deals with the immediate aftermath of the passage of Proposition 1A–the ballot measure that was a de facto legalization of tribal casino gambling in California.  For Hawaiians, this is an interesting study in how special interests can lobby and maneuver their way to their ends, regardless of popular sentiment on the issue.  Not to point any fingers or anything, but my experience in Hawaii politics doesn’t fill me with confidence that our own state’s politicians would be immune to the kind of machinations that were so successful in bringing gaming to California.  Also of interest, a short discussion of the impact of tribal sovereign immunity (which protects Indian tribes from certain lawsuits) and the societal impact of casinos.

Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
May 6, 2010

(Part 4)

As I discussed in last week’s article, Proposition 5 was struck down as unconstitutional by the California Supreme Court in August 1999. Undaunted by that fact, two months later in October 1999, Gov. Davis and the Legislature approved the 59 tribal-state compacts Davis negotiated in secret and without proper public input.

Then, to overcome the fact that these 59 compacts had been executed and approved by the Legislature without lawful authority, Gov. Davis and the Legislature put a second “Legislative Initiative” on the ballot in March 2000 called Proposition 1A. Although that Proposition was written as a Constitutional amendment to authorize the Governor to negotiate future compacts with Indian tribes with casinos in California, it was, in effect, intended to ratify the 59 illegally signed compacts approved 5 or 6 months earlier – and to do so without informing the voters, who approved Proposition 1A, of the real purposes of that initiative.

Just as soon as Proposition 1A was approved by voters in March 2000, the 59 compacts were submitted en masse to the Secretary of the Interior, who approved all of them without checking either the legitimacy of the tribes who signed them or the eligibility for gambling on the land that was identified as the sites for these 59 or more casinos.

As a result, several faux tribes who did not and still do not have eligible lands for any class II or class III gambling, as defined by the IGRA 25 USC section 2703 and 2719, were given class III gambling casino compacts by Gov. Davis.

As set out in an earlier installment, one of the most glaring problems created by the I.G.R.A. was its failure to provide for local input and control over gambling casinos that were thrust into their midst by the I.G.R.A. and by these tribal-state compacts.

Many of these 59 tribes, then armed with the Gray Davis “give-away” tribal-state compacts, began constructing casinos and acquiring lands to construct large mega-casinos. In some cases, they undertook to expand their existing gambling casinos far beyond the small and modest casino operations that existed in communities on existing Indian lands, and that were pointed to by the casino tribes during the campaigns for Proposition 5, and then later Proposition 1A as evidence of their need to continue these modest enterprises.

It became immediately apparent what a mistake it was to have approved Proposition 1A. The worthless compacts negotiated by Gov. Davis paid nothing to the state. These Indian casinos and businesses began placing tremendous demands on public services and infrastructure, yet they were immune from the taxes that pay for those things. Therefore, the non-Indian taxpayer had to shoulder that cost and received nothing from the casino profits and still don’t.

The provisions in these compacts requiring that the tribes would either participate in the State’s Workers Compensation system or establish an equivalent system, complete with impartial independent tribunals to protect their employees, was immediately ignored. These compacting tribes, neither participated in the State system nor adopted a comparable system, leaving injured employees with no effective recourse at all. The State and the various state agencies like the Attorney General and the Gambling Control Commission made no effort at all to force the casino tribes to abide by any compact terms, particularly those terms that were actually enforceable at law. The compacts have a provision 11, which allowed the State to sue a tribe to terminate the gambling compact for a violation of its terms but this has never been done. Injured citizens, workers or communities could not sue upon these compacts because the only rights to sue in these compacts for enforcement of the terms that were set out therein were limited to disputes between the State and the affected tribe. Again local governments, communities and non-Indian citizens had no say so. The term and condition, contained in these 59 virtually identical compacts, requiring protections for injured, damaged or cheated customers was likewise ignored by these casino tribes. Instead when customers sought relief for injuries or other tort damages, violations of law or breaches of contract, the tribes uniformly denied such claims and informed customers they could not sue the tribe, its casino or any other tribal business because of the court-created legal immunity doctrine (discussed in earlier segments of this series).

When anyone did sue them, the tribes would successfully move the court to dismiss the lawsuits and all claims, on the basis the tribe was immune from lawsuit. If injured employees or customers tried to sue the State or others as some did, based on the tribal-state compact provisions that were included, ostensibly for their protection, the State and tribes claimed the compacts created no “third-party rights” i.e., no rights for anyone but the State or the affected tribe. In one case, three injured employees I represented sued the State and the Governor instead of the Chumash tribe and casino, asserting the complete failure of the State to enforce the compact provisions, which were included to protect them. The State’s attorneys then removed the case from State court to federal court, asserting the case raised a “federal question” even though Worker’s Compensation law is a matter of state law and was the subject of a term set out in the compa ct.

Once removed to federal court, the State’s Attorney General then asserted that the Indian tribes were necessary or indispensable parties to the action, and moved the federal court to dismiss the case on the basis the Indian tribe or tribes, who were necessary or “indispensable parties,” could not be joined in any case because they were immune from lawsuit. Plaintiffs would have to join the tribe as a party, so this Catch-22 argument went, and the plaintiffs could not do so because the tribe and its businesses had immunity from all lawsuits. The case was thus dismissed and affirmed by a three-judge panel of the 9th Circuit Court of Appeals. The U.S. Supreme Court refused to grant a writ of certiorari to hear the case.

People who dealt with or entered into contracts with these casino tribes and businesses found out that if the tribe stiffed them for the bill, they could not sue, again based on the court-created doctrine of legal immunity for Indian tribes and their businesses discussed in last week’s article.

This use of the tribal legal immunity doctrine to evade legal responsibility is one of the most flagrant and outrageous impacts of Indian gambling and business expansion. This doctrine is exacerbated by the fact that these tribes, their casinos and businesses, can also operate outside of all state and local laws (except alcohol-control law). Laws that were enacted over many years to protect customers, workers, the environment and quality of life.

They are able to evade these laws under the silly fiction that these tiny bands or tribes of fractional Indian descendants (some with only one or two members) are “sovereign governmental entities” of their own with governmental status, all just because bureaucrats at the Bureau of Indian Affairs have “recognized” or officially “acknowledged” them as a tribe, band or community of Indians.

As discussed earlier, before conferring the right to unregulated casino gambling on these “Indians,” neither the State of California nor the federal government made any effort to determine if the tribes who were given gambling compacts were legitimate tribes or whether the land on which they constructed casinos, or were seeking to do so, were legitimate and were located on legally eligible “Indian Lands” as defined under federal law [25 USC 2703 or 2719]. To this day, more than half of the 59 tribal-state compacts and Indian casinos operating in California, were and are probably still, operating illegally.

One of the common methods that gambling promoters and investors, using an “Indian tribe” as a front to introduce gambling casinos into a community, is the promise of “jobs.” Often they target communities that are economically depressed because they know local government, unions, Chambers of Commerce, businesses and others often jump at the chance for anything that creates “jobs.”

This Indian gambling casino explosion was so sudden and extensive, that a few years ago a developer ran a full-page ad in the Palm Springs newspaper advertising that he had investors willing to bankroll “Indian casinos” and tribal recognition and listing a toll-free number. At the request of Arizona Sen. John McCain, David Crosby, testifying as a witness, put that advertisement in the Congressional record during a hearing of an Indian Affairs Sub-Committee being held 4 years ago, specifically to review Indian gambling policies on local communities.

Sen. McCain promised those of us attending that hearing, several times over, that the IGRA had to be amended in order to provide for more local control over Indian gambling casinos. Despite those hollow promises, nothing has been done yet, years later. As evidenced by that ad, the stampede to turn California into another gambling Mecca like Nevada got so bad that promoters and gambling investors were literally trolling for “tribes.”

Because most local governments, elected officials and their attorneys knew virtually nothing about Indian Law, gambling law or the false economics of gambling casinos, they did not know how to deal with the flood of Indian casinos the State had improperly authorized. They were easily convinced by tribes and investors that locating an Indian casino in their community was a “done deal,” and they had nothing to say about it because it was all a matter of federal law and furthermore, it would be good for the community economy anyway. The casino tribe might even agree to pay them something in lieu of the many taxes they don’t pay if they cooperated, but if the local government didn’t play ball and support the casino proposal, they would get nothing.

As a result of all this subtle blackmail, gambling promoters and investors, along with ersatz Indian tribes have been able to locate casinos in numerous communities even though they are not wanted, produce no benefit and only create a host of problems as well as place untold demands and costs on all government and public services and all infra-structure without paying the taxes needed to fund them.

In talking with many people who voted in favor of Proposition 1A, every single person I spoke with expressed the fact that they believed they were voting at the time, to allow the existing Indian tribes in California to simply retain the low-key gambling operations they had at the time and solely on their own lands. No one expressed to me any understanding that a vote in favor of that Proposition 1A was authority for dozens of tiny Indian tribes made up of fractional or questionable Indian descendants to be able to build huge Las Vegas style mega-casinos anywhere they wanted to. In fact, the many people I spoke with indicated they also expected any Indian gambling casino to remain on their existing Indian lands.

What has in fact occurred is that those existing tiny and modest casinos have been replaced with glitzy giant casinos measured in hundreds of thousands of square feet and thousands of gambling devices.

There are casinos that have ruined entire residential neighborhoods like the San Manuel Casino rising above single-family homes in a housing tract, which homes then lost most of their value because of the nearby gambling operations. Neighbors complained about noise, traffic, drunkenness, open drug trafficking and even having to pick up beer cans and used hypodermic needles from their front lawns.

Virtually every casino community has now experienced increases in crime ranging from shoot-outs, murder, theft, robbery, embezzlement, gang activity, substance abuse and drug trafficking, drunk driving, auto accidents and fatalities, gambling addictions, credit problems and bankruptcies, family neglect, even suicides, and the list goes on. Recently, Highway 154 ominously being called “the Chumash Highway” has experienced several auto accident fatalities, not to mention the officially unexplained suicide jumpers from the Cold Springs Canyon bridge. Only a few weeks ago, a gang shoot-out erupted amongst the slot machines at the Jackson Rancheria casino located in Amador County.

Not long ago, Sheriffs deputies were involved in a running gun battle outside the Soboba Casino where at least two suspects, who were tribal members, were shot and killed and the Sheriff refused to respond to calls there anymore. One deputy Sheriff working a special overtime detail at the Chumash Casino in Santa Ynez arrested 36 drug violators in only six weeks time, most of them felonies involving methamphetamines being used, possessed and sold around the casino.

In another case, an elderly couple were walking in the parking lot of another Southern California Indian casino near San Bernardino and a thief whizzed by on a motorcycle and snatched the woman’s purse in the parking lot. The motorcycle grazed their car during the theft. They reported the incident to casino security guards, expecting that the crime would be reported to the Sheriff’s Department. They found out later, when they made an insurance claim for the damage to their car, this incident was never reported to the police. This is but another of the many negative impacts of Indian casinos, the fact that the primary duty of Indian casino security staff is to conceal any negative incidents that occur or insinuate the false claim that some kind of “sovereign status” permits them to deal with criminal acts when it does not.

Another problem is the failure and refusal of many local media outlets to report the crime, corruption and negative incidents occurring regularly at Indian casinos because those casinos are the biggest television, radio and newspaper advertisers they have. So the so-called “free press” has in effect, been co-opted by the fear of offending these gambling casinos who are their best advertising customers.

The increased demands on public service and infrastructure created by Indian gambling casinos are immeasurable and are detrimental to the surrounding areas near these unregulated casinos, which have been or are being located in, or near, highly populated areas.


This article was originally published in the Santa Ynez Valley Journal.

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Jim Marino on Tribal Gaming (Part 3)

Today, we continue with the third part of our guest series on the development of Indian casino gaming in California, by Jim Marino.  (This series originally ran in the Santa Ynez Valley Journal.)

Sometimes it seems as though the issue of gaming is an unspoken controversy that advocates of the Akaka Bill are desperately trying to avoid.  As though the fact that it is not allowed under the current version of the bill is a sufficient guarantee forevermore.  But, as today’s installment demonstrates, a state can move from no casino gaming of any kind to a flood of Indian casinos in a surprisingly short time–and with little to no real input from the public.  Those who are concerned about Akaka being the path to Hawaiian casino culture would do well to take note of California’s experience. . .

Santa Ynez Valley Journal
By Jim Marino, Guest Columnist
April 29, 2010

(Part 3)

The first week I discussed what led up to the enactment of the IGRA. Last week I wrote about all of the antiquated, ambiguous and contradictory aspects of federal Indian law and policy in existence, when the ill-advised Indian Gaming and Regulatory Act [IGRA] was enacted by Congress, in a feeble attempt to provide an economy for Indian tribes.

As you may recall from last week, the controversial Indian gambling law was enacted by Congress without even considering the impact the existing body of federal Indian law and policy would have. This resulted in the authorization of tax free, lawless and unregulated casino gambling by Indian tribes and related businesses in which patrons, workers and the nearby communities are, in effect, deprived of all their legal and Constitutional rights and cannot sue for injuries or damages occurring in those casinos and businesses. I also wrote of how that Act has also enabled these tiny often questionable tribes to make hundreds of millions in profits, while still collecting federal welfare and grant monies that are monies needed by real Indians still living on remote reservations and living in conditions of abject poverty.

This week’s article deals with how Indian gambling was legalized in California and some of the impacts of the IGRA and the Indian casinos it spawned in California, has had on nearby non-Indian communities.

To give Congress the benefit of the doubt, Congress created the only method that States had available to them in order to control and regulate Indian casino gambling under the IGRA. That mechanism was the requirement that prior to engaging in Class III gambling casinos the tribe and state government would have to enter into a compact (or contract). They did this by including section 2710 d.(3) in Title 25. Under that provision, Indian tribes seeking to engage in class III casino gambling were required to negotiate and have the affected state approve, a compact. If the state lawfully approved a compact, then it was lawfully in effect according to State law.

Following the enactment of the IGRA in 1988 many bands of Indians in California, some with only one or two members, began operating class II Bingo games with unlimited money pay-offs. The Santa Ynez Chumash built a cinderblock building as a “Bingo casino” funded at least in part by the Las Vegas singer Wayne Newton and other Las Vegas gambling investors and apparently did so under questionable circumstances. It soon closed down amongst rumors and controversy, but with a view toward reopening in the future.

Class II “Bingo” gaming under the IGRA does not require a tribal-state compact, only a license from the National Indian Gaming Commission [NIGC] and is in effect unsupervised gaming beyond licensing and annual audits. Before the Supreme Court struck down the provision in the IGRA, giving the tribes the right to sue the state when they claimed the State was not negotiating in good faith, California tribes threatened the State with several suits if the State did not negotiate compacts for full-scale Class III casino gambling. The California Constitution Art. 4, Section 19, prohibited full-scale casino gambling including slot machines, blackjack, craps, roulette and so forth.

Because slot machines generally make up 85 percent of the revenue any casino brings in, the tribes were threatening lawsuit if the State would not negotiate for slot machines and banked card games like blackjack. (Remember the Cabazon case discussion earlier. The State had the absolute right to refuse to allow all forms of gambling by any Indian tribe, as long as those types of games were also prohibited for everyone else in the state to operate.) Slot machines had been illegal in California for years and use, possession or transport was a violation of the California Penal Code.

One lawsuit brought by Indian tribes in the 1990s claimed the lotto terminals the State had licensed to bars and cocktail lounges all over the state were, in effect, state run “slot machines.” Therefore, the tribes claimed they had a right to install slot machines in their casinos. The court denied that assertion but was highly critical of the definition of “slot machines” set out in the California Penal Code. As a result, the state pulled all these machines from bars all over the state and stored them in a warehouse, where I believe they still sit today.

Many tribes like the Santa Ynez Chumash simply ignored the law prohibiting slot machines and the requirement of a tribal-state compact in 25 USC 2710 d (3) requiring such a compact before Class III gambling could be allowed. Then one night in 1995, the Chumash moved more than 600 slot machines into the cinderblock former Bingo casino and began illegally offering slot machines to the public and position player backed blackjack games. The installation of these slot machines also constituted a violation of the Johnson Act, a federal law prohibiting the unlawful transportation, use, procurement and possession of slot machines. After all, the delaying litigation was exhausted in 1997. The State Attorney General and federal authorities including the F.B.I. informed the illegal casino tribes like the Santa Ynez Chumash that they intended to raid them, seize the slot machines, all monies and other illegal fruits of the illegal gambling operations and even arrest the operators. The tribes then launched a public initiative-drive entitled Proposition 5 in 1998.

Proposition 5 was an initiative to amend the California Government Code to allow Indian tribes to operate slot machines on Indian lands in California. Besides sponsoring that initiative the tribes, many of whom were operating illegal casinos with slot machines at the time, like the Santa Ynez Chumash, pumped millions of dollars into an advertising campaign to depict pictures of poverty-stricken Indian tribes self-sufficient.

In addition to this advertising campaign, these casino Indians pumped millions into the campaign coffers of Grey Davis, a career politician who was running for Governor in 1998. In November 1998, Proposition 5 was approved by the voters and Grey Davis was elected Governor. Commencing in 1999, Gov. Davis began negotiating gambling compacts with California Indian tribes, all of which was done behind closed doors. None of the traditional power groups in California such as local governments, taxpayers groups, law enforcement organizations, environmental groups, trial lawyers, workers compensation and consumer lawyer groups, women’s rights groups, union and others were allowed the opportunity to participate in the discussions and influence the terms of these tribal-state class III gambling compacts.

As a result, the compacts Gov. Davis agreed to were weak, giveaway compacts with many provisions so poorly written that they were virtually unenforceable. These compacts provided no revenue at all to the state and made no provisions to mitigate the significant negative impacts the flood of Indian casinos that resulted would have, and subsequently did have, on local communities.

In the meantime, Proposition 5 was challenged in a lawsuit and in August 1999 the California Supreme Court ruled that Proposition 5 was unconstitutional because it only amended the Government Code not the State Constitution, which contained the prohibition on casino gambling like slot machines and house banked card games in Art. 4, sec. 19.

Undaunted by the Supreme Court’s striking down Proposition 5, Gov. Davis executed some 59 of these giveaway tribal state compacts and then had the State Legislature approve them in September and October 1998. He made no effort to determine if the tribes he was negotiating with, and granted gambling compacts to, were lawfully created Indian tribes or if the land on which their casinos or proposed casinos were to be sited were legally “Indian Lands” eligible class for III gambling under federal law. In fact, many of these questionable Indian tribes were on land or acquired land that was clearly not eligible to build and operate any class II or class III gambling casinos under the IGRA.

To remedy the fact that these compacts were executed and approved when there was no longer any legal authority to do so, the Legislature put a “Legislative initiative” on the ballot for March 2000 the following year at Gov. Davis’ behest, some 6 months after they were executed and approved. That initiative, called Proposition 1A, by its language proposed to amend the California State Constitution Art. 4, sec. 19, to authorize the Governor to negotiate future compacts with California Indian tribes. The voters were never informed that a vote in favor of Proposition 1A would, in effect, retroactively ratify the 59-weak giveaway, virtually unenforceable compacts that Gov. Davis has already signed without legal authority and which were approved at his instance by the State’s Legislature. It is not coincidence that so many State legislators also received hundreds of thousands of dollars in campaign contributions from these casino tribes, often funneled throu gh campaign committees and PAC’s with unassuming names. My favorite was the one calling itself “The California Native Peace Officers Association.” That PAC was funded by $5,000,000 million entirely from the Pechanga Indian Casino and the State Correctional Officers Union and was distributed to key politicians in Sacramento. The use of PACs is one of the ways politicians use to disguise receipt of gambling monies by disguising them through innocent-sounding groups. Once legalized in 2000 by Proposition 1A, the onslaught of Indian casinos in California began.


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