Feinstein Battles With Obama Over Casinos Using 1934 LawJulie Bykowicz and Derek Wallbank
The Mashpee Wampanoag Tribe wants to build an S-shaped casino that would rise from a forested area in Taunton, Massachusetts, and, Indian leaders say, lift them out of poverty.
One hurdle in their way is U.S. Senator Dianne Feinstein, a West Coast Democrat who is seeking to curb tribal gaming expansion in her state of California, which is stalling casino projects throughout the country.
As leverage, Feinstein and other senators are using a 2009 U.S. Supreme Court ruling, Carcieri v. Salazar, that jeopardized the legal standing of about 50 tribes because they weren’t recognized by the Department of the Interior before 1934. Congress could undo the ruling. So far, it hasn’t.
The Mashpee casino would be 38 miles from Boston and 20 miles from Providence, Rhode Island, areas whose residents already have four gambling sites nearby from which to choose.
“What’s happening increasingly, the tribes petition to have lands taken into trust with the intent of getting closer and closer to big cities, so that it’s easier for them to garner people,” Feinstein said in an interview.
The Mashpee, who say they greeted the Pilgrims arriving from England in the 1600s, weren’t federally recognized until 2007 and have no reservation of their own.
Their plan to build a casino is a pathway to economic growth tilled by tribes from Connecticut to Arizona and endorsed by President Barack Obama, who has sought to break a logjam of Indian gaming projects accumulated during the Bush administration, which imposed restrictions on them.
Obama outlined his goal of boosting tribal economies in his fourth annual address to Indian leaders on Dec. 5, 2012, when he said he “was committed to getting this relationship right so that your nations can be full partners in our economy and your children can have a fair shot at pursuing the American Dream.” Native Americans had an unemployment rate of 12.3 percent last year, compared with 6.6 percent for non-Hispanic whites.
Indian gaming advocates and opponents alike see the Supreme Court ruling as one of the last major impediments to bringing tribal casinos to lucrative metropolitan areas.
The Obama administration has expanded the definition of games that can be played at Indian facilities, including Las Vegas-style bingo that state leaders say undermine anti-gambling laws. The Interior Department, which regulates Indian gaming issues, also is easing restrictions on casino operations located outside of a tribe’s historic borders.
If those dynamics are combined with legislation that overcomes the Supreme Court Carcieri ruling, dozens more tribes would have a quicker path through the administration’s eased pipeline to casino approval.
The court decision has provided “a way to slow down the development of off-reservation casinos,” said Adam Bond, an attorney for Taunton-area citizens opposed to the Mashpee project. “If Congress takes it up, they should use it as an opportunity to re-examine whether the policy of tribes opening casinos has accomplished the goal of improving the lifestyle of tribal members. I don’t think it has.”
Tribal governments have responded to the administration’s new approach by donating more than $2.5 million to Obama and Democratic allies for his re-election, according to the Center for Responsive Politics, a Washington-based organization that tracks political money. They gave less than $500,000 to Republican presidential candidate Mitt Romney and his associated groups. The community has also spent $85 million on federal lobbying since Obama took office, compared with $146 million during Bush’s two terms, the data shows.
“There are a lot of considerations that factor into rules governing Indian gaming, but it’s fair to consider that one of the elements of the influence is money,” said Sheila Krumholz, executive director of the center. “It helps grease the skids for them in Washington just as it does for other industries.”
Caught in the crossfire of the fight between Congress and the White House are Indian groups with no interest in gaming. The Sauk-Suiattle Indian Tribe of Washington State asked the federal government in 2009 to add a piece of land about the size of an American football field to its 45-acre reservation at the base of the North Cascades. It’s a sacred tract that the tribe, federally recognized in 1973, wants to use as an access point to its rural land, leaders told the Interior Department.
“The tribe is small, does not have a casino and is located in a rural area of the Cascade Mountains,” the National Congress of American Indians wrote in an October 2009 letter to Congress. “This land into trust application is on hold because of the Carcieri decision.” The request was finally approved in 2011.
The Carcieri ruling focused on the 1934 Indian Reorganization Act. The Supreme Court determined that Congress, by including the word “now” in the act, limited the number of legal tribes to those under federal jurisdiction in that year or earlier. The ruling undermined those recognized since then, making it harder for them to apply for bank loans and conduct other business while also exposing them to lawsuits.
Legislation has been introduced repeatedly to remove the word “now,” and each time it faced resistance led by Feinstein. The senator said in an interview that she and her colleagues “may well” be willing to undo the Carcieri decision -- if such legislation includes impediments to expanded gambling.
Mashpee Chairman Cedric Cromwell, whose tribe is pursuing the Massachusetts casino, said at a 2010 gaming summit in Connecticut that Feinstein is “willing to hold hostage the nationally needed Carcieri fix, and willing to throw newly recognized and disadvantaged tribes from all across the United States under the bus.”
“We are concerned that the senator is using her position as an appropriations subcommittee chair to achieve her local end goal: shutting down forever the possibility of Indian gaming in the Bay Area,” Cromwell said, according to an Indian Country Today news story.
California’s Napa Valley, a 90-minute drive from San Francisco, is the heart of U.S. wine country. The Mishewal Wappo Tribe of Alexander Valley also claims part of the land as its ancestral home.
The tribe is considering a casino project, a prospect that has complicated its bid to regain federal recognition, the first step to obtaining tribal land.
“I write to inform you of my firm opposition to any action by the Department of the Interior that would facilitate the development of an Indian casino within the Napa Valley Agricultural Preserve,” Feinstein wrote in a Feb. 7, 2012, letter to then-Interior Secretary Ken Salazar.
Lawmakers are “trying to stop us before we even get our foot in the door,” Mishewal Wappo Tribe Chairman Scott Gabaldon said in an interview. Because his tribe is not federally recognized -- a holdup he attributes to casino opposition -- members don’t have access to federal money for education, health care and elder care, he said. “We don’t get anything. Will we game in the future? I don’t know. But right now we have nothing.”
Feinstein is joined in the showdown by other Democratic senators seeking to deter additional gaming in their states.
Senator Sheldon Whitehouse, a Rhode Island Democrat, said in an interview that he would support Carcieri legislation “as long as we get our Rhode Island exception.”
Whitehouse wants to ensure that the Narragansett Indian Tribe of Rhode Island, federally recognized in 1983, isn’t able to open a casino. The Interior Department’s 1998 placement of land into trust for the Narragansett was the basis of the Carcieri v. Salazar case; Donald Carcieri was Rhode Island’s Republican governor at the time of the Supreme Court ruling.
Rhode Island officials have another reason to block new casinos in next-door Massachusetts: economics.
A New England casino report this year shows that most patrons of Rhode Island’s two slot parlors, the commercially owned Twin River and Newport, are Massachusetts residents. “Despite being located in Rhode Island, Twin River is now more than ever dependent on spending by Bay Staters,” Clyde Barrow, director of the Center for Policy Analysis at the University of Massachusetts at Dartmouth, wrote in a statement accompanying his study.
In June 2012, the Mashpee asked the Interior Department to take 170 acres into trust for the project. Indian leaders submitted a memorandum to “demonstrate that the tribe has been continuously under federal jurisdiction since 1789,” documents that they say will overcome the Carcieri hurdle. The Taunton-area group opposing the casino project gave Interior paperwork it says shows the tribe wasn’t recognized before 1934.
Frustrated tribal groups, some of whom have no interest in casinos, have worked the halls of Congress and written dozens of letters pleading for help to overcome the court ruling.
Will Micklin, a vice president of an Alaskan tribal council and a business consultant to other tribes, said Indian nations everywhere have stories about Carcieri delays.
“These long waits -- it just squanders opportunity,” Micklin said in an interview last week while he was in Washington attending a lobbying event of the National Congress of American Indians. “It’s lost revenue, it’s people not wanting to make investments. It’s not good for the tribes.”
Within months of the Supreme Court ruling, some lawmakers pledged to pass legislation undoing it. Tribal leaders had an important supporter on their side: the president.
“With some tribal nations unable to put their land into federal trust, we’re pushing Congress to pass the Carcieri fix right away,” Obama said at the Tribal Nations Conference last December in Washington.
Former Senator Byron Dorgan, then-chairman of the Senate Indian Affairs Committee and a North Dakota Democrat, in 2010 introduced a “Carcieri fix,” and his panel approved it. The Senate never voted on it. The Indian Affairs Committee, under Senator Daniel Akaka, a Hawaii Democrat who succeeded Dorgan as chairman, approved the fix again in 2012. Majority Leader Harry Reid, a Nevada Democrat, put the bill on a priority list for the end of the year; again, it didn’t make it to a Senate vote.
“It should’ve been easy in my judgment,” said Dorgan, now a senior policy adviser at Arent Fox LLP, a Washington law firm.
While it waits for Congress, Obama’s Interior Department is trying to work around Carcieri.
In the case of the Cowlitz tribe of Washington State, which was recognized in 2000, Interior released 123 pages to justify its determination that the tribe had been under federal jurisdiction since before 1934, satisfying the parameters of the Carcieri ruling. Tribal leaders plan to break ground next year on a $510 million casino in Clark County, Washington.
The administration also approved a land request for a disputed California casino project that Feinstein had fought. A Las Vegas company, Station Casinos LLC, financed a tribe’s purchase of land outside Fresno, more than 40 miles southwest of the rural area where members of the North Fork Rancheria of Mono Indians live.
Senator Maria Cantwell, the new chairwoman of Indian Affairs and a Washington Democrat, told the NCAI in February that passing a Carcieri fix was “one of the top priorities” for her panel this year. Seven months later, there’s no Senate bill, and two House bills are stuck in committee. Cantwell in an interview this week reiterated that a Carcieri fix was a “priority” while giving no details about plans for passing it.
Representative Tom Cole, an Oklahoma Republican and as a member of the Chickasaw Nation, the highest-ranking member of Congress who is a registered American Indian and a supporter of the change, said moving the legislation has been “like trying to line up a Rubik’s cube.”
“It would be very nice to see the Republican House on the same side as the Obama administration against the Democratic Senate,” he said in an interview. “I love the politics of that.”