WASHINGTON — By springtime, Bill Iyall figures the Cowlitz Tribe in Washington will have 152 acres of new land in place and can make plans to break ground for its new casino in 2015.
Iyall, the tribal chairman, is confident that a plan to have the federal government hold the land in trust for the tribe will survive legal challenges, thanks to strong backing from the Obama administration. He says that’s how it should be.
“We are a ward of the federal government, and we’re their trustee, and they’re supposed to take care of us,” Iyall said.
Casino opponents, though, fear President Barack Obama and his team are going too far to take care of the 566 federally recognized tribes and to promote their gambling interests.
Last month, the Obama administration defended a Michigan tribe before the U.S. Supreme Court, arguing that the tribe had sovereignty similar to a foreign country and that the state should not be allowed to shut down its off-reservation casino.
And now Obama wants Congress to change a law that prevents tribes that were recognized by the federal government after 1934 from getting new trust land, which could pave the way for more casinos.
The issue is particularly big along the West Coast, causing divisions from Washington to California.
The Golden State is at the epicenter of the U.S. tribal gaming industry, which includes more than 420 gaming establishments run by 240 tribes in 28 states. They pull in annual revenues of $27 billion a year, according to the National Indian Gaming Commission, the federal body charged with regulating the casinos.
With 70 tribal casinos in California alone, “you reach a point where … enough is enough,” California Democratic Sen. Dianne Feinstein told the Senate Indian Affairs Committee in November.
“My concern is that California tribes — some of them — are no longer content with casinos on Indian lands,” she said, providing examples of nine tribes trying to open off-reservation casinos in California, Wisconsin, Arizona, Michigan, Oregon and Washington.
Feinstein, who declined to be interviewed for this story, told the Senate panel that all of the casinos in her state have opened in just the past 15 years. And she said that the size of the tribal gaming industry in California is now twice as big as any other state and is approaching the scale of Nevada’s $10 billion-a-year gambling operations.
Feinstein is irked that the Department of Interior approved a plan by a Butte County tribe to build a casino 50 miles away, near Sacramento, even though it was rejected by local voters. And with more than 100 federally recognized tribes in the state, she wants Congress to put a stop to “reservation shopping” proposals aimed at getting casinos near population centers.
In an interview, Kevin Washburn, who heads the Bureau of Indian Affairs, said that democracy is working well in California, noting that voters approved tribal gaming in 1998. He said that casinos have helped tribes economically and that he knows of no studies indicating how many casinos are optimal.
Others say the issue of how many casinos the state should have is a case of supply and demand.
“That ought to be determined by consumers,” said California Republican Rep. Tom McClintock. “As long as they’re complying with local laws, using their own money and not forcing anybody to do or buy anything against their will, I’ve got no objections.”
Washburn said gaming is the exception in the drive to get more land into the hands of tribes, even though the issue gets much public attention. Of the nearly 1,500 land acquisitions approved since 2009, he said, fewer than 20 have been for gaming projects, while the majority have been for agriculture, infrastructure, schools, police stations and health care facilities.
Washburn described the administration’s philosophy when he testified before the Senate panel on Nov. 20.
“What we are doing here is trying to ensure that tribes have home lands, so tribes can thrive as well,” he said. “… A lot of acres, millions of acres, were taken from tribes, so their American dream is a little more cloudy than it is for the rest of America.”
Defending the right of tribes to expand, Washburn said that cities or counties aren’t quizzed hard when they want to move into unincorporated areas. “If you ask a county why it is going to do that, it is going to say because it wants to take care of its community,” he said.
Supreme Court cases
Two Supreme Court cases are driving much of the current debate.
Later this year, the court will decide whether the state of Michigan has the legal authority to shut down an off-reservation casino run by the Bay Mills Indian Community.
“A tribe should not have greater immunity than foreign nations,” John Bursch, Michigan’s solicitor general, told the high court Dec. 2. “There’s no dispute that if France opened an illegal business in Michigan, casino or otherwise, it would have no blanket immunity.”
The second case, a 2009 ruling known as the Carcieri decision, angered tribes by putting the brakes on land acquisitions for tribes that were not recognized by the federal government by 1934. Tribes complained that the ruling created two sets of tribes and has slowed economic development.
Aided by Washburn, Washington Democratic Sen. Maria Cantwell, chairwoman of the Senate Indian Affairs Committee, wants Congress to pass a so-called “Carcieri fix,” which would essentially override the 2009 decision.
Cantwell said the ruling caused a “chilling effect” for tribes wanting to put more land into trust. She said that tribes lost 90 million acres of land from 1887 to 1933 as a result of forced assimilation and that Congress responded with the Indian Reorganization Act of 1934 to give land back to tribes.
And of the 10 million acres that has been put into trust for tribes since then, she said, less than 1 percent has been used for gaming.
Gambling opponents say that reversing the ruling would open the floodgates for more casinos.
“If you do that, it’s really a national expansion of gambling,” said Cheryl Schmit, director of Stand Up For California, a statewide organization fighting against more casinos. She said the Obama administration is “acting clearly as an advocate for the tribes to expand all of their services and entitlements.”
In November, California voters will decide the fate of the proposed $250 million North Fork tribal casino in Madera County, in the Central Valley and the Sierra Nevada mountains north of Fresno County. Opponents organized to get the off-reservation casino qualified for a referendum on the ballot after it was approved by California legislators earlier this year.
Schmit said lawsuits are in progress to stop the casino. And she predicted that if it’s allowed to open, it will be quickly followed by an additional 30 casinos in California.
Dennis Ehling, a Los Angeles attorney with the firm Blank Rome who advises gaming clients, said more tribes are trying to open casinos near population centers after the Obama administration in 2011 rescinded a Bush-era “commutable distance” standard, which banned off-reservation casinos if they were not within easy driving distance of reservations.
But he warned that tribes could face a backlash, noting that the House of Representatives already took a rare vote in September to try to block an off-reservation casino in Arizona that had been approved by the Obama administration. And he said the Supreme Court could easily frustrate tribes by putting limits on sovereign immunity, saying it doesn’t extend to economic activity.
“When they extend into these off-reservation places, they have to enter into the political realm again to get what they want,” Ehling said. “And there’s always winners and losers when you do that.”
After fighting to get land for decades, Iyall hopes to be a winner by March, after the court cases have run their course. He’s eager to get going, with plans to build not only a casino but a hotel, retail shops, restaurants and housing on the land near La Center.
He’s happy that the president’s team has helped.
“The Obama administration is there to follow the rules as they’re set out,” Iyall said. “And the rules are defined to help tribes because tribes are a trust ward.”
He said the issue of putting land into trust would be moot if tribes had kept their land in the first place, noting that the now landless Cowlitz tribe lost thousands of acres to white settlers, with no compensation.
“I mean, if we had those resources today, we probably wouldn’t be talking about this issue, that’s for sure,” Iyall said.
