WIGA News Clips March 10-11 2005

							                         WIGA News Clips March 10-11, 2005
LOCAL
Bill would set up gambling zones for off-reservation casinos The Daily Herald 3/11/05
Tulalip board election is Saturday The Daily Herald 3/11/05
Locke's deal with tribe too sweet? Seattle Post-Intelligencer 3/11/05
Makah officials ask Cantwell, other officials to waive marine mammal act Peninsula
Daily News 3/11/05
Smoking ban issue best left to voters (Editorial) The Olympian 3/11/05
Court again rejects Skokomish claim The News Tribune 3/10/05

NATIONAL
Reporter's notebook: It's a common misperception that Indians don't pay taxes Billings
Gazette 3/11/05
Frits: Advancing the harmonization of economic sovereignty in Indian country Indian
Country Today 3/10/05


LOCAL

Bill would set up gambling zones for off-reservation casinos

Associated Press

WASHINGTON - A key House Republican wants to restrict Indian gambling's most
controversial trend - tribes moving off their reservations, sometimes into urban areas, to
build casinos.

Instead, House Resources Committee Chairman Richard Pombo, R-Calif., would create
"Indian economic opportunity zones" where numerous tribes could build casinos in one
area, potentially creating small Las Vegases around the country.

The ideas are contained in draft legislation Pombo's committee circulated Thursday in
advance of a hearing Thursday .

Pombo said he is trying to respond to complaints about the spread of off-reservation
gambling.

"I don't want to take an opportunity away from someone, but at the same time I think we
need to have some control over it," he said. "The thinking is if we can collocate a number
of these, it stops some of the conflicts we have from them trying to locate in other areas."

The vast majority of the nation's 411 tribal casinos are on reservations, but as Indian
gambling spreads, tribes are increasingly looking beyond their borders for better
locations. Indian gambling pulled in $18.5 billion in 2004, nearly double the take from
gambling at Nevada's major resorts.

Pombo's draft bill would delete a provision in the 1988 Indian Gaming Regulatory Act
that sets out a narrow set of circumstances under which Indian tribes can build casinos
away from their reservations - even in another state.

In most cases, those criteria require that tribes get agreement from the Interior
Department secretary and the governor of the state where the casino is planned before
moving forward.

Under the draft bill, tribes would be able to build casinos away from their reservations
only in an Indian economic opportunity zone designated by the secretary. The secretary
would be able to create two such zones per state, one on Indian land and the other on
non-Indian land.

The zones would be open for gambling to tribes that don't already have casinos, or agree
to close the ones they have. The bill doesn't limit the size of the economic opportunity
zones or cap the number of casinos allowed in them.


Tulalip board election is Saturday

Herald staff

TULALIP - Tulalip Tribal members go to the polls Saturday to fill three positions on the
tribes' seven-member board of directors.

Three of the seven positions are open, those of Marlin Fryberg Jr., Donald Hatch Jr. and
Melvin Sheldon Jr.

Fryberg and Sheldon are seeking re-election.

Hatch, who served 12 years on the Marysville School Board and 22 years on the Tulalip
board, is not running again this year.

The seven seats are elected at staggered intervals for three-year terms. The board passes
laws that affect the 22,000-acre reservation and about 3,600 tribal members. All adult
tribal members are allowed to vote in the annual elections.

The three candidates with the highest number of votes will win.

This year, there are 17 candidates:

* Helene Contraro, who has worked for Snohomish County and the Tulalip Tribes.
* Marlin Fryberg Jr., is a Tulalip Tribes police detective who has served on the tribes'
housing authority and currently is on the board of directors.

* Glen Gobin, a tribal construction and trucking business owner who has served on a
variety of committees and on the board of directors.

* Kimberly Gobin.

* Anthony "Tony" Hatch, a Tulalip Tribes gaming commissioner and a tribal historian
who teaches the Lushootseed language in the Marysville School District.

* Roy Hatch.

* Charles "Chuck" James, the tribes' former casino director.

* Andrew James.

* Verna Mae James.

* Melvin Jones, a Tulalip Tribal police officer.

* Shirley "Dodie" Jones.

* Harold Joseph Jr.

* L.A. "Cookie" Robbinson, who previously worked at the Tulalip Health Clinic and is a
former tribal housing authority commissioner.

* Melvin "Mel" Sheldon, a commercial fisherman and current member of the board of
directors.

* Dawn Simpson, who previously served on the board of directors.

* Daryl Williams, the tribes' environmental liaison officer who works in the Tulalips'
natural resources department.

* Keith Williams.


Locke's deal with tribe too sweet?
Pacts with Puyallups on cigarettes, casino faulted by some

By PAUL SHUKOVSKY
SEATTLE POST-INTELLIGENCER REPORTER
TACOMA -- In the waning hours of Gov. Gary Locke's administration, the Puyallup
Tribe cut two deals with the state that will make it millions but also have prompted
accusations of preferential treatment and sparked at least one lawsuit.

One deal will end a long-simmering battle over untaxed, black-market cigarettes and the
other allowed the tribe to open a new, larger casino next to Interstate 5. The tobacco deal
means tribal smoke shops would continue to sell cigarettes more cheaply than
competitors and the tribal government would collect about $23 million in taxes annually.
The casino deal likely means millions more in gambling revenue for the tribe.

But the state and municipalities got concessions, too, in what the chief of staff for both
Locke and Gov. Christine Gregoire is calling a "win-win for everyone." The state gets to
keep cheap, black-market cigarettes off the market and collects about $10 million in
annual taxes, too. And allowing the casino to move paved the way for construction of a
major container terminal at the Port of Tacoma.

The tobacco deal, which is awaiting legislative approval, is designed to end the cat-and-
mouse game between the Puyallup smoke shops and the state over the smuggling of
untaxed cigarettes. Tribal smoke shops can make big money by selling black-market
cigarettes at cheaper prices than non-Indian retailers if they evade the $14.25 per carton
excise tax.

The state settled cigarette-tax disputes with 17 other tribes since 2001 by negotiating
agreements in which tribal governments agreed to impose the same $14.25 tax paid by
non-Indian retailers and keep the money for tribal health care and education.

In the Puyallup deal, announced Jan. 5 by Locke, the tribe agreed to collect a tax of only
$11.75 per carton. Combining that $2.50 savings with the lack of a sales tax means tribal
shops can charge $5 to $7 less per carton than stores off the reservation.

Unlike the other tribes, which keep the tax money, the Puyallups will give 30 percent of
the excise tax revenue to the state, which will amount to about $20 million every two
years.

"This is a win-win for the state and the Puyallups. But it's a huge loss for the retailer, who
gets shortchanged again," said T. K Bentler, executive director and a lobbyist with the
Washington Association of Neighborhood Stores.

Bentler maintains that Puyallup smoke shops will be able to sell cigarettes at $7.10 less
than other retailers.

"This bill doesn't level the playing field," said Bentler. "This is a sweetheart deal for the
Puyallups. All the other tribes are collecting 100 percent of the (excise) tax. The state is
going to wink and get its $20 million and look the other way."
Kevin Yoo, executive director of the Korean American Grocers Association, agreed with
Bentler, saying: "It doesn't level the playing field for Korean grocers to compete against
the tribal tobacco retailers."

Tom Fitzsimmons, who was Locke's chief of staff and remains in that role for Gregoire,
says the agreement is solid public policy. Forcing up the price of cigarettes will help
achieve the public-health goal of reducing consumption. And black-market cigarettes are
sometimes more dangerous to health than legal smokes, he said.

The deal also will likely end the long pattern of raids on black-market cigarettes, which
was the state's only recourse to recover lost tax revenue from Puyallup smoke shops.

On May 20, 2003, federal agents searched Lyle's Smoke Shop in Fife and seized
$512,356 in cash and more than 2.7 million black-market cigarettes worth $77,685. That
store is now out of business. Even though the agreement means tribal smoke shop owners
would no longer have to worry about such raids, many are opposed to the deal.

Taza Reed of Reed's Smoke Shop calls the agreement "a very bad deal." "In the treaty,
we have the right to free trade," said Reed. "That means in modern terms, we have the
right to sell the public something with no taxes on it. If you come to the reservation, it's
like coming to another country. You shouldn't have to pay that tax."

On most other reservations, tribal governments own the smoke shops. Because they keep
the tax, they can afford to charge lower prices. But Puyallup tribal members own their
own shops. So owners will have to turn over any tax to the tribal government.

Puyallup attorney John Bell -- who negotiated for the tribe -- acknowledged that tribal
smoke shop owners "don't like it. But something had to be done. This battle has been
going on so long and they were subject to raids and seizures (of black-market cigarettes)
and they're tired of that."

Fitzsimmons points out that without this agreement, non-Indian retailers would face an
even bigger disadvantage since Puyallup shops don't pay any excise tax.

The tobacco deal had another, less tangible benefit, said Fitzsimmons. It created a
cooperative climate between the Puyallups and the governor's office, which helped
broker another deal in which the tribe moved its Emerald Queen Casino from the Blair
Waterway to accommodate a major expansion of the Port of Tacoma.

The port had big plans for the area around the casino. It was building a huge, new
container terminal that would require that Alexander Avenue, the main access road to the
casino, be closed.

The tribe filed a legal objection to the closure of Alexander Avenue. The Puyallups could
have waged a vigorous fight against the road closure at a time when Evergreen, the
terminal operator, was putting pressure on the port to finish work on the site, said Bell.
But negotiations led to the tribe's moving to a prime location on state Route 99 in Fife,
close to Interstate 5.

Among other things, the port agreed to cover revenue losses that came from the move,
put at least $5 million in a tribal fisheries project and support the tribe's application to
state regulators to move the casino.

The casino move required a change in the tribe's gambling agreement with the state, and
Locke had to approve that.

It turned out to be an unusual decision by Locke. He approved the tribe's request to move
the casino to the Fife site on a parcel that does not have the special Indian status called
trust land.

Up until then, all tribal casinos in Washington have been on this special category of
Indian land that is held in trust for the tribe by the U.S. government.

Trust land is not subject to property tax or local zoning as is regular property, called fee
land. Because of this special status, it can be a difficult and time-consuming process for a
tribe to petition the United States to take a piece of property into trust. And very often,
local governments and nearby property owners fight a trust designation. The move to Fife
prompted Chip Mudarri, owner of the non-Indian casino Freddie's Club of Fife, to sue the
state and Locke.

"It has put him into direct competition right next door," said Mudarri's attorney, Joan
Mell. "He's losing business to the slots" because non-Indian casinos are not allowed to
have the machines.

Mudarri argues that Locke couldn't expand gambling by allowing slot machines on fee
land unless he had legislative approval. He didn't.

Non-Indian casinos have long coveted the tribal monopoly on slots, and Mell says the
lawsuit could be settled if her client were allowed to have the machines.

In addition to the governor, the tribe also had to win over the city of Fife. As an incentive
for Fife officials not to oppose the casino in their town, the tribe agreed to make an
annual payment of roughly $1 million to the city from casino revenue.

Based on the testimony of officials from the port, the city of Tacoma and Pierce County,
the state Gambling Commission agreed last summer to recommend to Locke that the
Emerald Queen be permitted to move to Fife.

The deal got even better for the Puyallups. Tribal leaders and Bell also were able to get
their state gambling agreement amended to allow for an increase of roughly 1,000 slot
machines spread between their casinos in Fife and in Tacoma near I-5 and Portland
Avenue.
Slots are the cash cows of casino operations.

And that has paid off for the Puyallups, as it has for both the Tulalips and Muckleshoot
tribes, which have also expanded the number of slot machines in their casinos.

Frank Wright, a tribal member who oversees gambling operations, said the new casino
operations are performing even better than before.

He would not reveal dollar figures, saying only: "We're doing a whole lot better."

P-I reporter Paul Shukovsky can be reached at 206-448-8072 or paulshukovsky@seattlepi.com



Makah officials ask Cantwell, other officials to waive marine mammal act for
whaling, but no bill on table

2005-03-11
by RAUL VASQUEZ

NEAH BAY -- U.S. Sen. Maria Cantwell has been asked to consider federal legislation to
let the Makah tribe waive Marine Mammal Protection Act considerations for whaling.

But the freshman senator hasn't determined how to proceed on any potential bill, her
spokesman said Thursday.

Even though the Makah tribe is the only tribe in the Lower 48 whose original treaty -- the
1855 Treaty of Neah Bay -- specified its right to whale, a 2001 ruling by the 9th U.S.
Circuit Court of Appeals required that the tribe get a waiver from the 1972 marine
mammal act before resuming any whaling practices.

Such an exemption has never been granted to anyone, National Oceanic and Atmospheric
Administration officials said.

On Feb. 14, Makah officials said they were abiding by the court ruling and filed a waiver
application with NOAA in Washington, D.C., asking for permission to hunt a handful of
whales annually.

Just a few weeks later, representatives of the Makah tribe met with Cantwell and asked
her to consider legislation in Congress that would grant the tribe the same waiver to the
marine mammal act.

Fulfill ruling

If approved by Congress, such a bill -- which doesn't now exist -- could fulfill the court
ruling's requirement and allow the tribe to hunt whales again.
``Oh yeah,'' said Ben Johnson, chairman of the Makah tribe, on Thursday when asked if
the tribe asked Sen. Cantwell for such legislation.

``We asked other congressional representatives as well, including [U.S. Rep.] Norm
Dicks.''

Johnson said tribal officials were in Washington, D.C., for the winter meeting of the
National Congress of American Indians, which ran from Feb. 28 through March 2.

``We meet with [congressional] officials three, four or even five times a year,'' Johnson
said.

When asked about the potential bill's status, Johnson replied:

``We don't know where that is, or if it's going to fly.''


Smoking ban issue best left to voters

Bills to restrict smoking in public places are still alive in the 2005 Legislature. But anti-
smoking activists seem poised to abandon the legislative process and, instead, shift their
focus to a more restrictive initiative that could go before the voters as soon as November.
It's fitting that voters decide this hot-button issue.

 About 20 percent of Washington residents smoke. For years, the American Lung
Association and the American Cancer Society have campaigned against smoking in
public places. They cite studies showing that secondhand smoke represents a health
danger.

According to the Centers for Disease Control and Prevention, 46 million Americans
smoke. Cigarette smoking remains the leading preventable cause of death in the United
States, accounting for approximately 440,000 deaths annually, according to the CDC.
Some states have statewide prohibitions on smoking in public places. The states include
California, Massachusetts and New York.

After an aborted initiative attempt last year, public health advocates in Washington state
turned their attention to the 2005 session. Legislative rules give them until Wednesday to
get floor votes in either chamber.

State law allows smoking in bars, taverns, bowling alleys, tobacco shops and restaurants
without requiring it be restricted to smoking areas.

The Senate bill would require more separation between smoking and nonsmoking
sections and would prohibit minors from entering smoking areas. Employers would have
to disclose to a prospective employee that all or a portion of the facility is designated for
smoking.
Lobbyists for the hospitality industry and state restaurant association testified in support
of the legislation, saying it's more reasonable than an all-out ban of smoking. Supporters
say smoking is a personal choice and individuals and business owners should be able to
decide for themselves whether they want to be in a smoking or nonsmoking environment.

Testifying against the Senate bill were lobbyists for the heart and lung associations, along
with a public health official from King County. They said the only way to protect the
health of the public is to ban smoking in public places.

House Bill 2038 is more restrictive than the Senate proposal. It would enact a statewide
smoking ban in all indoor public places, including bars, taverns, bowling alleys and
skating rinks.

Public health advocates support the House bill, and lobbyists for restaurant and gaming
industries testified in opposition. Supporters say this is an employee health issue -- that
workers should not be forced to work in a smoke-filled environment. Opponents said
employees who object can find a different job if they don't like working in a smoky place
of business. They said tribes would be allowed to set their own smoking rules and that
jobs will be lost as smokers go to tribal casinos.

While both the Senate and House bills have made it past the first legislative cutoff, anti-
smoking activists aren't waiting for legislative action -- or inaction. They have started
collecting money and launched the campaign for Initiative 901, which would ban
smoking in all public places -- including doorways to buildings. Advocates hope to get it
to the ballot for a November vote.

Given the emotions of the smoking issue and the conflict between individual rights and
public health, it's preferable that voters resolve this contentious issue.


Court again rejects Skokomish claim

The Associated Press
Last updated: March 10th, 2005 02:40 AM

The 9th U.S. Circuit Court of Appeals on Wednesday upheld its earlier rejection of the
Skokomish Tribe’s $6 billion claim against the United States, the City of Tacoma and
Tacoma Public Utilities.
The tribe contends construction of two Skokomish River dams have interfered with its
treaty-based fishing rights. Its claim was rejected first by a U.S. District Court judge and
then by a three-judge 9th Circuit panel.

The 11-judge en banc court said in its ruling Wednesday that the district court had no
jurisdiction over the claim against the U.S. government because claims of more than
$10,000 against the United States that arise from a contract with the government have to
be brought in the Court of Federal Claims.
The majority’s ruling did transfer portions of the case to that court.

The decision also held that the tribe was entitled to no damages from the city or Tacoma
Public Utilities.

U.S. District Judge Franklin D. Burgess had found that Tacoma followed federal
regulations for licensing the dams and that the statute of limitations had expired on other
claims made by the tribe.

NATIONAL

Reporter's notebook: It's a common misperception that Indians don't pay taxes

Jodi Rave
REPORTER’S NOTEBOOK

American Indians endure some common stereotypes: Drunk, lazy Indians get a free
education, free housing and are free from paying taxes.

American Indians are drunks? I've made a choice not to drink alcohol.

American Indians are lazy? I go to work every day.

American Indians get a free education? I have a $25,000-plus student loan debt.

American Indians get free housing? I have a veteran's home mortgage.

American Indians don't pay taxes? Each year I pay my fair share of state and federal
taxes.

If you haven't heard any of these complaints, then you haven't been exposed to some
common misconceptions about American Indians.

Today, the last stereotype is standing front and center. It's tax season. And the e-mails
sent to my account remind me about those who don't understand the tax system, Indians
and Uncle Sam.

Far too many reporters neglect stories about American Indian communities, especially
when the story moves into the complex political and economic arenas of Indian Country.
It can be daunting - a bit like trying to find your way through a corn maze only to find it
leads to another.

But like any long walk, it can be invigorating, even though it might take some work to
get familiar with the pathways.
Let's take on the topic of how taxation applies to federal, state and tribal jurisdiction on
Indian lands.

A lack of understanding about taxation has led those who believe the stereotype to
complain: "Those Indians should pay their fair share of taxes." It's a misconception that
deserves further examination.

As individuals, we all pay federal income taxes. That includes American Indians who live
on reservations. That is a federal mandate without boundaries. When the April 15 federal
tax deadline approaches, Indian people will be at the post office.

On the other hand, tribal citizens living on the reservation - on nontaxable trust lands -
are not subject to local or state property and income taxes. That's because they fall under
tribal jurisdiction, not the state's.

And that's what causes some to feel that American Indians aren't paying their fair share.

Yet tribal governments could easily claim the same. That's because non-Native
businesses and non-Natives living within reservation borders don't pay taxes to the tribes.
That money goes to local and state governments.

Indians - both tribes and individuals - pay state and local property taxes within
reservation boundaries if the land is not held in trust by the federal government. That
leaves tribal governments with a weak to nonexistent tax revenue base. The base is weak
because 56 million acres - 45 million acres for tribes and 11 million acres for individuals
- of Indian-owned land is nontaxable because it's held in trust by the federal government
through the Interior Department.

Tribes try to make up lost tax revenues by creating businesses, such as casinos. Those
enterprises are no different than state-owned lotteries, which don't pay federal income
taxes, either.

This much should be clear: American Indians are not free from paying taxes. The larger
issue is a matter of who has the right to tax whom, which has created taxation quandaries
that won't go away any time soon, even after April 15. In fact, one of the ever-looming
battles between states and tribes today centers on taxation disputes.

States with successful tribally owned or tribal citizen-owned businesses want to collect
taxes from them. Topping their tax wish list are tobacco and petroleum-related sales on
reservation trust lands.

If just one reporter at every daily newspaper across the country wrote an American Indian
tax-related story - and gave it jurisdictional context - that would mean some 1,456 stories
might help inform the public about how American Indians and tribal governments pay
taxes, and why they don't.
After the tax stories, those same reporters might take on other Indian stereotypes.

Meanwhile, I'll keep coming to work so I can continue paying off my student loan and
housing debt.

And, of course, I'll be filing my taxes.

Jodi Rave reports on American Indian issues. She can be reached at (800) 366-7186 ext. 299 or jodi.rave@
missoulian.com. She wrote this column for the journalism Web site poynter.org.



Frits: Advancing the harmonization of economic sovereignty in Indian country

Posted: March 10, 2005
by: Paul Frits

At a recent conference on gaming law that focused extensively on the relationship
between Indian country and its local and state neighbors, one speaker stood out by
emphasizing that every tribe and every situation is different. It is trite but important to
endorse this simple observation in the context of tribal sovereignty because of the
invaluable treasure of diverse Native cultures and customs that have populated the
Americas since time immemorial, and because sovereignty and collective identity feed
into each other.

Professor Joseph Kalt complemented this observation in an important way at the recent
RES 2005 conference when he reported some of the findings of the Harvard Project on
American Indian Economic Development. Kalt stated that the impetus for, and
sustainability of, modern tribal economic development - sometimes referred to as
''economic self-determination'' or ''economic sovereignty'' - are wholly dependent on the
legitimate implementation and development of a tribal community's collective values.
These are achieved through:

* Accountable public decision-making;

* The exercise and assertion of sovereignty (i.e., collective self-determination in the
interests of community survival) as a driver of a distinct social culture within the
community and of responsive governance institutions in that community;

* A match between the social culture of the community and the self-directed, self-
legitimized institutions of the community; and

* Leadership possessed of vision, knowledge of the tools with which to implement vision
and the capacity to educate the community in those regards.

The important surprise in the Harvard Project's report was the indication that it is not
material wealth that is the foundation upon which sustainable economic sovereignty is
based, but rather other key aspects of self-determination and self-governance. These
reside more in the nature of collective identity and collective organizational processes
that best facilitate sustainable economic sovereignty.

These issues are of critical importance not only to individual tribes in their deliberations,
but to Indian country as a group of interested societies and governments. They are so
important because, as Kalt noted, tribal sovereignty is under attack in the courts, in the
policies of competing non-tribal governments and in many aspects of the surrounding
non-Indian mainstream community's political ethos, where individual rights have
replaced collective rights as a priority.

Indeed, the tribal governments with whom this writer discussed these issues, casino
owners or not, proudly identified sovereignty as a core value that would in no way be
compromised and would be protected at all costs.

One need only refer to a column written last year for Indian Country Today by Anthony
Pico, chairman of the Viejas Band of Kumeyaay Indians, in which he stated: ''As the
Viejas Band of Kumeyaay Indians moves forward on the path to economic viability, I
have come to learn some valuable political lessons. The first is that sovereignty is the
most important attribute we have, and that the purpose of tribal government programs and
enterprise is to enhance our sovereign right to self-governance.''

Winning the war

The enduring challenges associated with a historical war waged by tribes against
institutionalized educational deprivation, entrenched poverty, collective dispossession
and displacement, and cultural and social genocide have begun to give way to the tenuous
promise of an emerging era of peaceful self-regeneration for Native people. Many Indian
nations are availing themselves of economic springboards - including but not limited to
gaming - which have permitted them to pursue the complex path toward the kind of
economic self-determination that the Harvard Project considers.

In this emerging environment of cautious optimism, a great tribal challenge is to balance
individual historical identity and modern interests with inter-tribal solidarity in
addressing the shifting policy framework that will define the future of economic
sovereignty in Indian country.

That balancing process will probably define the nature and scope of economic
sovereignty throughout Indian country in view of a plethora of minefields that mar the
path forward. The core minefield is the challenge to tribal sovereignty that threatens to
narrow the emerging recognition of economic sovereignty that only began to appear a
short time ago.

Other minefields include not only external threats but also internal challenges, including:

* The danger of being relegated to the collective status of an otherwise legally and
politically indistinguishable minority interest;
* The danger of being shamed in the mass media for emerging tribal government and
Native entrepreneurial success stories;

* The insidious danger of once again being divided and conquered in response to
unwarranted measures that would attempt to split apart common tribal economic policy
interests;

* The danger of falling prey to the illusion that a limited window of cash flow from
profit-rich sectors will, in itself, substitute for the implementation of the culturally-
informed procedural and organizational institutions that build and sustain a socially
cohesive community;

* The danger of reliance on such a cash flow as a substitute for a diversified economic
development strategy;

* The danger of failing, today, to reinforce a collectively fertile Native economy by
failing to seed the promising start-up opportunities of tomorrow conceived by Native
entrepreneurs and sister nations alike; and

* The failure to affirm that common tribal ground must be sought, as a collective priority,
to define a broader community of policy and economic interests, and to identify those
unacceptable policies pursued by competing non-tribal authorities and institutions which
would inappropriately limit American Indian economic sovereignty and self-
determination.

Perhaps the advisability for Indian nations to ardently pursue such solidarity is best
exemplified by a meeting of Western governors in Denver at the end of this month at
which the agenda is expected to focus on issues relating to the recognition of Indian
lands, including lands for use in tribal casino developments. This subject matter is
perhaps a classic case for consideration of the themes of sovereignty, collective Native
interests and tribal solidarity raised above.

The challenge to inter-tribal harmonization

State governments, which are generally suffering from the hangover of monumental
fiscal deficits, tend to hold American Indian nations ransom to substantial participation
fees in relation to proposed new casino compacts, in an unbalanced bargaining
environment endorsed by certain court decisions. Such decisions have held that state
governments, by merit of governmental immunity, are not accountable to observe ''good
faith'' standards, much less the fiduciary trust obligations borne by the federal
government.

The federal government, for its part, purports to exercise its fiduciary trust duty by
endorsing tribal compacts which grant participation rights to states, and the related
recognition of ''new'' Indian lands for casino development purposes, only in
circumstances where a tribe receives ''valuable consideration'' from the state, over and
above the inherent value of the gaming license contemplated by the compact. Such
''valuable consideration'' is usually characterized as a preferred location benefit and/or a
general or limited ''exclusivity'' benefit of some kind.

The slippery slope towards a degraded and inequitable compact negotiation process, in
which such so-called ''benefits'' continue to be more and more limited (usually at the
expense of a group of tribes thrust into a competitive position against each other for the
resources of location and other market advantages) and in which state demands for
percentage participation concessions continue to grow in size, is threatening to accelerate
rapidly, contrary to the common interests of Indian country.

It is of concern that such states are benefiting from what some have termed ''excessive''
participation fees which seem to be moving in an even more excessive direction with
each successive new compact.

The view that such state participation levels are excessive is best illustrated with
reference to the fact that a currently popular state participation rate of 25 percent of gross
revenues (or ''win'') is substantially in excess of the combined levy of most state corporate
tax rates plus any state-imposed gaming licensing fee rates (currently just over 6 percent
in Nevada) charged to non-tribal commercial gaming companies. This prompted one
speaker at the conference to comment that even though tribes are not legally subject to
state taxes as a function of sovereign immunity, they would be better off, fiscally, to have
acceded to such taxes as a standard because they are now being cornered into the position
of paying even higher participation fees due to inequities in the respective bargaining
positions.

A noteworthy point made by Seattle attorney Deborah Juarez is that many tribal casinos,
existing and planned, have only secondary or tertiary locations and only moderate
margins which could suffer undue hardship under excessive state participation demands,
and the absence of state exclusivity guarantees.

Accordingly, one alarming concern is that a state may indirectly lead successful
incursions into the field of tribal sovereignty, notwithstanding that, as many advocate,
economic sovereignty in particular should be better compartmentalized and respected in
view of historical injustices and simply on principle. After all, gaming is a tribally-
operated economic development project of a type whose legitimacy was based on court-
made authority (under the 1988 Cabazon case) which recognized the sovereign right of
tribes to be free from state interference in their gaming economies.

However, this concern over sovereignty does not even consider the additional, significant
background issue arising from the fact that various states are purporting to grant
compacts and locations in satisfaction of outstanding tribal land claims and to demand, in
addition to the benefit of the extinguishment of any state liability related thereto,
''excessive'' participation fees.
It is advisable, then, that any compact negotiation process and Indian land set-aside
negotiation should involve the isolation and theoretical compartmentalization of each and
every type of ''benefit'' granted by a state. In this way, a tribe may evaluate and
differentiate a ''fair'' allocation of each such ''benefit'' to either the ''land claim'' account
under which it should be receiving benefits as of right (and respecting which it should not
theoretically be expected to grant gaming revenue percentage rights to states), or the
''compact'' account, under which it may (or may not) be receiving benefits of location,
exclusivity or other ''market advantage'' respecting which the tribe may be legally asked
to grant gaming participation concessions.

(Note that on a purely logical analysis, such a benefit would properly be considered a
''benefit'' for ''concession-giving'' purposes only if the benefit were to provide market
advantage over and above the sovereignty-protected platform the tribe should otherwise
enjoy by merit of the location of its traditional tribal lands or existing reservation.)

Kevin Washburn, a University of Minnesota School of Law professor, made the point in
his address that compact agreements need to be rigorously rationalized in terms of the
quantification of ''benefits'' granted by a state under any such negotiation for purposes of
BIA approval, in order to ensure standards of fairness in the bargaining process between
tribal nation and state, and in order to arrest the ''slippery slope'' danger through prudent
BIA exercise of administrative powers and duties.

I would further suggest that American Indian nations might be well-advised to take the
initiative and assert sovereignty by collectively establishing recommendations as to
quantification standards regarding the measurement of ''benefits'' to evaluate fair and
reasonable state participation levels in order to arrest the acceleration of the slippery
slope.

In any event, the following questions have been raised by tribal leaders as a result of the
foregoing concerns:

* Where is the recognition of tribal sovereignty today?

* Where is the established legal canon of construction that provides that statutes such as
the Indian Gaming Regulatory Act (IGRA) should be construed in a manner consistent
with the historical government-to-government relationship and the fiduciary trust
obligation, such that it is broadly and liberally applied in favor of tribal interests?

* Do the IGRA and/or the policies underlying its application need to be re-engineered in
order to better address these issues?

* And are states being permitted to ''double dip'' by simultaneously resolving liabilities
pertaining to historical land claim disputes while benefiting from increasingly excessive
participation in tribal casino revenues in exchange for integrated, so-called ''benefits''
which ignore tribal sovereignty, historical injustices and, some would say, the mutual
respect that is supposed to characterize government-to-government relations?
State rationalization: back to treaty theory

It is interesting to note the rationalization message of one speaker, an adviser to a
governor who has been particularly expressive in his view that his state is only trying to
restructure an environment in which tribal interests will be required to pay their ''fair
share.'' The rationalization, in this adviser's words, was based on a treaty theory endorsed
by Dr. Henry Kissinger and based on the European peace treaty model that followed the
Napoleonic wars of the 1800s. The theory propounds that any post-war treaty settlement
must be expressly designed to leave both sides at the table with certain reservations, such
that while being substantially satisfied and invested in maintaining the bargained peace,
neither side has been wholly appeased, in order to avoid a one-sided settlement that
would result in an unstable dynamic in which the wounds of war would fester and give
rise to a renewal thereof.

Responding to this view at a subsequent public address at the same conference, an
interesting comment emerged from Mark Van Norman, executive director of the National
Indian Gaming Association. Van Norman noted that the historical framework and
theoretical mindset for the treaty theory endorsed by that governor was more or less
contemporaneous with the historical framework and governmental mindset in which the
Emperor Napoleon purported to sell to the United States those North American lands
contemplated by the Louisiana Purchase ... and that the Louisiana Purchase, which was
conducted without consent or consultation on the part of American Indians, was
conducted with total disregard for the realities of the sovereign tribes' continuous use and
occupation of those lands since time immemorial.

The suggestion is that the genesis of this governor's underlying theoretical basis for
supporting state incursions into asserted American Indian sovereignty on the issue of
participation in Native casino revenues is not only archaic, but also inappropriate in
worldview and, at the very least, historically insensitive to the tribal perspective. These
concerns over the fact that this archaic worldview seems to be informing the state
perspective on issues of current vital interest to Indian country is also surprising, from the
perspective that it appears to be used to justify efforts to re-characterize the reality of
casino-related state government-to-tribal government relationships, from a strictly
pragmatic state deficit reduction campaign into some kind of post-war stabilization effort.
And, incredible as it seems, the implication is that this state is the unstable loser of the
''war'' that has inspired the aggressively shifting position of that state and some other
states in respect of the IGRA ''treaty,'' such that the failure of the state to rebalance in its
own favor a progressively greater entitlement respecting tribal casino revenues, will
somehow contribute to a failure in the peace supported by that ''treaty.''

Let us revisit the questions of war and peace, what is the war, and where can the peace be
found for present purposes.

On war and peace, and winning the peace
If the Native view of the ''war'' is that it has been, for centuries, a war against educational
deprivation, poverty, collective dispossession and displacement, cultural and social
genocide, breaches of trust and other documented injustices; and if it is true that there has
been a tenuous emergence into a limited victory over the alleviation of some of these
conditions in some places for some of the Native community; and if the opinion
represented by this state referred to above is that a new treaty dynamic needs to emerge
from this Native ''victory'' which is necessary to secure the peace; one must wonder
whether the Native message to this state and all others involved should not be that Native
nations would collectively prefer to ''win the peace'' than accede to yet another ''treaty''
with uncertain parameters and a divisive and slippery slope.

If this is the case, and the Native community would prefer - as some have advocated - to
pursue the reform of the IGRA and/or the rules, policies and procedures pertaining to the
implementation of IGRA as would be required to better respect inherent tribal
sovereignty and require a more accountable state standard for the process of
implementation of compacts under IGRA, then that process might be saved from the
danger of descending into a commercial morass in which sovereign American Indian
nations are reduced to being allocated preferred casino locations in exchange for their
ability to produce the highest financial bid: a result that would reflect anything but tribal
economic sovereignty.

Would it not be the higher achievement to win the peace, in the interests of American
Indian sovereignty and solidarity, in the interests of the historical tribal entitlement to
federal fiduciary respect, in the interests of the correction of historical injustices and in
the interests of stability and legitimacy in the historical government-to-government
relationship? We must recognize, however, that history informs us it is often more
challenging to win the peace than to win the war. This, if nothing else, could well be the
rallying message in favor of concerted tribal solidarity as these issues unfold in Indian
country.