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September|October 2003
Root Causes By Adam Cohen
The Quest to Be Called a Tribe By Michael Nelson
elsewhere

The Quest to Be Called a Tribe

The lure of casinos has raised the stakes for federal recognition.

By Michael Nelson

THE GOLDEN HILL PAUGUSSETTS OF CONNECTICUT will soon hear the results of their latest appeal for federal recognition as an Indian tribe. Last January, the Bureau of Indian Affairs turned down the group for the same reasons it had done so twice before. You "ceased to exist as a distinct community" in 1823, the BIA told the Paugussetts, and you aren't descended from the Indians with that name anyway.

The agency's response disappointed the city of Bridgeport almost as much as it did the Paugussetts. The city's mayor and council had been counting on federal recognition of the tribe to open the door for "the world's largest casino" (in the words of the Paugussetts' "chief") on downtown land deeded to the group by Bridgeport. Within 75 miles of the city, southern Connecticut already has two large and extremely profitable Indian casinos, Foxwoods and Mohegan Sun, which pick up the gambling traffic on the New York-to-Boston corridor. Bridgeport had hoped a casino of its own would pump life and jobs into its struggling city center, where the unemployment rate typically runs well above the statewide average.

Donald Trump, on the other hand, was thrilled by the rejection of the Paugussetts—at least for a while. He'd bankrolled the application of one faction of another group of aspiring Connecticut Indians, the Historic Eastern Pequots, which as a whole tribe won federal recognition in June 2002. Trump was counting on building and operating a new gambling resort on the Eastern Pequot reservation in North Stonington, not far from the two existing Indian casinos. Then he was frozen out in favor of the developer preferred by another faction of the tribe, David A. Rosow, and his partner, the former America's Cup skipper and petroleum heir William A. Koch. Now it's Rosow, Koch, and the Pequots who stand to gain if Bridgeport and the Paugussetts can't compete with them for gamblers.

Meanwhile, polls in Connecticut show strong opposition to building more Indian casinos. Voters say they've had it with the traffic, air and water pollution, crime, and bankruptcies that the state's two Indian casinos have brought. Richard Blumenthal, the state's attorney general, is even appealing to undo the Eastern Pequots' recognition. And Connecticut's two Democratic senators, Chris Dodd and (when he's not busy running for president) Joe Lieberman, are pressing Congress to freeze the BIA's tribal recognition process entirely.

Connecticut has plenty of company. Throughout the country, the high-stakes politics of tribal casino gambling is overwhelming the once low-key process of tribal recognition. Today 221 tribes operate 348 casinos in 30 states, making more than $14 billion a year. Nearly 200 other groups are queued up in the tribal recognition process.

Twenty-five years ago, long before the first roulette wheel was spun in the first Indian casino, the Interior Department (the BIA's parent agency) established rules and procedures for recognizing legitimate but previously overlooked tribes, most of which had done little to assert their Indian identity in Washington until the Native American consciousness movements of the 1970s and '80s. Now, however, the BIA's rules don't work any better from the tribes' perspective than from that of the states. For one thing, the rules base authenticity on the sorts of written records that Indians have traditionally not kept. Old chants and the ancestral stories told by elders count for little in the government's eyes. The BIA's procedures are also a problem, producing such a backlog that a petitioning tribe can wait up to 15 years for a verdict.

Pressure is mounting for a resolution. But Congress isn't addressing any of these concerns—neither those of identity-seeking Indians nor of states like Connecticut that want to shut out fake wannabe tribes and put an end to their casino dreams.

IT WAS IN 1992 THAT CONNECTICUT'S MASHANTUCKET PEQUOTS went into the casino business. Before that, there were no Indian casinos, and tribes made peanuts from bingo and other low-key gambling operations. When the Pequots' Foxwoods Resort Casino turned out to be wildly profitable, the tribe put some of its money into the war chests of friendly politicians. Skip Hayward, the Pequots' chief at the time, was one of the Democratic Party's top 10 donors in 1993, according to the DNC. The tribe's success inspired other groups that had apparently never realized how much their Indian identity meant to them. In the seven years after Foxwoods opened, 94 aspiring tribes—compared to 22 in the seven previous years—applied for recognition, the sharpest spike ever.

The recognition-seekers have often hooked up with investors who pay for research to prove the authenticity of the groups' historical claims, especially if their lands are near population centers ("feeder markets," in casino-talk). Federal law restricts ownership of an Indian casino to the tribe's government, but it allows the tribe to sign a seven-year contract with an outsider to develop and manage the casino in return for as much as 40 percent of net revenues. It isn't unusual for investors to put up $10 million to get in on the ground floor. (That was Trump's investment, which he's suing to recover.) The money goes to pay the salaries and expenses of tribal council members and to hire small armies of genealogists, anthropologists, historians, lawyers, lobbyists, and public relations firms.

It's all, well, a gamble. Thomas Wilmot, the wealthy real-estate developer from Rochester, N.Y., who has bankrolled the Golden Hill Paugussetts, will have thrown away more than $4 million if the BIA's rejections of the group's petition stand. But what a windfall if the Paugussetts get recognized. Often the big money is in the consulting fees, hotels, restaurants, and golf courses that go with the 40 percent contract. An investor group headed by the South African casino magnate Sol Kerzner has made an estimated $800 million from the Mohegan tribe's casino, Mohegan Sun.

The investors haven't shown any interest in the bands of Indians who want recognition but don't want gambling. Of the hundreds of groups waiting in line at the BIA, one of the largest and arguably the most authentic is the Houmas, whose members were classified as "colored" in the 1800s when Louisiana's census form had only two boxes for race. To groups like the Houmas, tribal recognition is about ethnic pride. And it entitles them to a share of the $8 billion-plus spent by the federal government each year on health, education, housing, and other social programs for Indians.

Federal recognition also brings a strong measure of sovereign control over reservation lands. The Supreme Court ruled in the 1832 case Worcester v. Georgia that a tribe is free from interference by the state government whose land surrounds it (unless the federal government deems otherwise, as it has in the case of state criminal laws).

The tribe's relationship with the federal government, Chief Justice John Marshall wrote in a related case, is like that of "a ward to his guardian"—that is, a relationship of fiduciary trust in which Washington is allowed to make decisions for the tribe, with the caveat that those decisions must be in the tribe's best interest. For many years, the federal government was anything but a kind benefactor to the tribes. That history of oppression and extermination is too familiar to need recounting. In the 1970s and '80s, however, things began to improve. Indian-power organizations like the American Indian Movement and the Native American Rights Fund emerged. Movies like Dances with Wolves replaced images of savages scalping white settlers with those of nature lovers overrun by white greed-heads.

To reduce the tribes' reliance on federal funds (if not out of concern for Indian rights), Republican presidents Richard Nixon and Gerald Ford subsidized economic development on the reservations. When the initial beads-and-pots enterprises failed to make real money, the Reagan Administration encouraged the tribes to spend their subsidies on bingo halls.

Those ventures had legal ballast because of the Supreme Court's earlier rulings favoring tribal sovereignty. Then, in the 1987 case California v. Cabazon Band of Mission Indians, the justices opened the door to casinos by declaring that states that permit or conduct gambling can't prevent tribes from offering gambling as well. Because the issue didn't divide liberals from conservatives along the usual lines—social conservatives didn't like Indian gambling but economic conservatives did, and liberals split as well—the court's decision scrambled its usual alliances. William Rehnquist and Thurgood Marshall were among the six justices who ruled that tribal sovereignty should trump the right of California and other states to regulate gambling, and Antonin Scalia and John Paul Stevens were unaccustomed bedfellows in the minority.

Cabazon didn't mean much to most Indian tribes. Because Indians had been so effectively driven onto lands that white people didn't want, the typical reservation is nowhere near a feeder market. Almost half of the nation's 1.8 million Indians live in the remotest areas of sparsely populated Montana, Nevada, Oklahoma, and the Dakotas, and their share of total tribal casino revenues is 3 percent. But for those tribes more fortunately situated—in, say, California, Wisconsin, or Connecticut—Cabazon was a license to print money.

State governments complained that the Supreme Court had made it too easy to open a casino, and in 1988 Congress tried to rein in Cabazon with the Indian Gaming Regulatory Act. IGRA permitted a tribe to operate a casino only if its home state already allowed a comparable form of gambling: casinos, racetracks, or a lottery. But the restriction turned out to be less than effective. In 1990, the federal Court of Appeals for the Second Circuit said that Connecticut had to let tribes operate round-the-clock casinos because the state let charities hold occasional "Las Vegas Night" fundraisers. Two years later, it was Hello, Foxwoods.

SO HOW DOES A GROUP OF INDIANS become a federally recognized tribe? There's a fast track by which Congress can recognize a tribe by law. In 1983 Senator Dodd of Connecticut helped persuade Congress to recognize the Mashantuckets when the tribe agreed to drop a lawsuit claiming title to much of the southeastern part of his state. But with town governments and citizen groups digging in to oppose any more tribes, Congress these days much prefers to punt to the BIA.

What does that agency require of an aspiring tribe? Some of the criteria for recognition are easily met, like providing a copy of a group's current constitution. But others can be extremely difficult to satisfy. For example, proving authenticity requires a tribe to show that it "has existed as a community from historical times until the present." Most tribes don't have neat stacks of documentary records filed away over the centuries; until recently, written records haven't been at the core of most Indians' governing traditions. So the teams of experts hired by the petitioning tribes search for shreds of evidence in old newspapers, court records, letters, diaries, artifacts, paintings, and photographs. Yet even if such proof exists, it's often hard to find and difficult to interpret. That's why some applications total 100,000 pages, and why bankrollers like Thomas Wilmot and Donald Trump come in so handy.

The BIA also makes things tricky by not defining some of its standards. How long a gap in the tribal record is okay before it amounts to a break in historical continuity? The BIA won't say, and its past decisions have been inconsistent. What percentage of an aspiring tribe's current membership must "descend from a historical Indian tribe?" The BIA won't be more specific than declaring that 100 percent isn't necessary, not even by settling on a quantifying term like "most" or "some." During the Clinton years, when the agency's staff thought it had established that 48 percent wasn't enough, the BIA's boss (the assistant secretary of the interior for Indian affairs) ruled in one case that it was.

The chain of review for tribal recognition runs from the assistant secretary to the department's Board of Indian Appeals and then to federal court. The staff members who make the frontline decisions, however, work in a small BIA office called the Branch of Acknowledgment and Research. A decade ago, the BAR had 17 historians, genealogists, and anthropologists who had the time to meet with each applicant. "People would come in and bring their stuff," recalled Kay Davis, a former BIA staffer. "We could sit down and talk to them."

Budget hawks cut the department down to 11. Then came the casino-inspired spike in applications, and what had seemed like sensible fat-trimming left the bureau stretched frantically thin. Now the BAR staff, who have no secretaries, have to cope with Freedom of Information Act requests and lawsuits filed by the aspiring tribes to speed up the recognition process. That means finding and copying thousands of documents. "Never did I imagine," BAR head Lee Fleming said recently, "that I would become a glorified Kinko's operator."

What to do about all of this? The self-styled reformers in Congress have divergent proposals. Dodd and Lieberman, representing a state that has all the gambling it can stand with two Indian mega-casinos, want the BIA to stop recognizing tribes until it introduces new rules that allow opponents to object to a petition at an earlier point in the process. Senator Ben Nighthorse Campbell of Colorado, a member of the Northern Cheyenne tribe who chairs the Senate Select Committee on Indian Affairs, wants instead to speed things up for the groups whose applications are stalled. Congress should create a politically appointed commission to replace the BAR, he says, because that would make it more difficult for opponents to intervene.

Meanwhile, the BAR remains overloaded. Building the bureau back up to its previous size, hiring clerks instead of genealogists to run the copiers—these are obvious fixes. So is taking the General Accounting Office's suggestion to set standards for the evidence required for recognition so that groups won't have to guess.

But as long as the reformers on both sides are more interested in rigging the outcome of the petition process than in rethinking its merits, even modest improvements are probably out of reach. Nor would such changes solve the underlying political problem with tribal recognition—the tension between giving long-neglected tribes their due and opening the door to more casinos in places that don't want them. To resolve that tension, Congress has to change the law.

When lawmakers passed IGRA in 1988, they didn't intend to create a massive tribal casino industry. Congress thought it was approving bingo halls and a few scattered casinos in remote areas. But IGRA was written vaguely, inadvertently opening the door for casinos on Indian land even in states that don't, as a matter of public policy, permit casinos, even if they do allow lotteries and racetrack betting. The law had another unintended effect: It allowed a tribe on a reservation in a no-casino state to ask the federal government to accept land in trust on the tribe's behalf in a gambling-friendly state. The Wyandottes, a tribe in northeast Oklahoma hamstrung by the state's no-casino laws, persuaded the BIA to accept land on its behalf in Kansas, where it plans to open a casino soon.

What Congress now needs to do is narrow the law to authorize Indian casinos only in the small number of states—11, at last count—that also allow non-Indians to own and operate casinos. The new rule wouldn't apply to the tribal casinos that are already up and running, since there's no need to stir up that legal and political hornet's nest. But it would apply to tribes that haven't already opened casinos—and, more importantly, to the groups waiting in line at the BIA. Their wait would become shorter, and the chances for legitimate tribes seeking recognition brighter, if the pot at the end of the rainbow was filled with sovereign pride instead of $100 chips.

Michael Nelson is a professor of political science at Rhodes College in Memphis, Tenn., and the author of The Politics of Gambling in the South (forthcoming in 2004).

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