Governor Is Double-Dealing on Indian Gaming

Gov. Arnold Schwarzenegger is at it again. He used false and inflammatory rhetoric against California’s Indian tribes to attract recall votes, and that rhetoric is getting a replay as he tries to force those tribes to pay their “fair share” of gaming revenues to the state. He insinuates that the tribes have undeserved wealth and excessive political influence -- thinly veiled appeals to the worst sort of prejudices.

California has a tragic record of dealing with Indian people. At the time of the Gold Rush in 1848, California’s Native American population was close to 150,000, and Native American groups occupied almost all of the state. By 1860, a decade after California statehood, the Native American population had plunged to about 30,000, and most of them had lost any claim to their ancestral lands.

The government and people of California were no bystanders to this demographic disaster, which cannot be attributed to disease alone. California Indians were hunted like game animals during the first decades of statehood, and thousands were killed. The state’s first governor, Peter Burnett, famously declared “a war of extermination will continue to be waged between the races until the Indian race becomes extinct.” And in 1852, faced with 18 federally negotiated treaties that would have reserved lands for California’s Indians, the state rallied to prevent Senate ratification.

In light of California’s history of holocaust, the governor shouldn’t be whipping up anti-Indian sentiment to serve political ends. But are his claims against the tribes well-grounded despite the unfortunate rhetoric? The answer is no.

The flawed premise of the “fair share” notion is that tribes are like businesses and should pay a tax to the state. But because Indian nations are sovereign governments, and their casinos are government enterprises, federal law expressly prohibits state taxation of tribal gaming.

As governments regulated by the federal Indian Gaming Regulatory Act, Indian nations must put the revenue from their gaming enterprises to specified public uses or pay it to tribal members. Now, much of the money goes to early childhood programs, fire departments, law enforcement, health care and language renewal programs. Some of these programs are supposed to be covered by federal or state funds, but a study I coauthored in 1996 showed that California tribes have been systematically shortchanged when it comes to their fair share of such funds.

As to the charges of undeserved wealth and excess political influence, they conveniently ignore history.

Indians in California were stripped of millions of acres of lands because of the failure to ratify the federal treaties. As one scholar has noted, California tribes were literally “pushed into the rocks” -- onto remote and unproductive territory. Gaming is the first activity that has been able to sustain California’s Native American people under these circumstances. After 150 years of privation, it’s difficult to characterize the resulting income as undeserved.

And it was citizen support, not campaign contributions and Sacramento influence, that won the tribes the right to set up casinos on their lands. In two initiatives, California voters overwhelmingly agreed to allow Indian gaming in the state.

At the same time, the tribes signed compacts with the state that set aside $130 million of gaming revenues to mitigate specific costs associated with the casinos. Now Schwarzenegger claims that he will renegotiate to extract a far larger sum. But these agreements are in force until the end of 2020, and the tribes are under no obligation to renegotiate. So he is threatening to support an initiative that would allow racetracks and card clubs to install slot machines, thereby presenting the tribes with new competition if they don’t pay larger sums.

There are serious problems with the governor’s plan, however. The state’s demands appear to be based on the budget deficit, not on specific gaming costs. And that amounts to a tax, which won’t pass legal muster.

Apart from such legal concerns, the strategy should fail because it echoes another abhorrent practice from times past. In the 18th and 19th centuries, the United States repeatedly made treaties promising lands and rights to the Indians, only to decide later that the rights could be sacrificed and the land was needed for non-Indians. At that point, the treaty promises counted for nothing.

If the governor tries to force new compacts just because he wants more from the Indians than the government bargained for, he will be harking back to morally bankrupt practices from our nation’s past.