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Indian Gaming: Tribal Sovereignty and American Politics.

Indian Gaming: Tribal Sovereignty and American Politics, by W. Dale Mason. University of Oklahoma Press, 330 pages, $29.95.

At a gathering of political scientists in 1997, W. Dale Mason's graduate adviser introduced him to an eminent scholar, noting that Mason's award-winning doctoral dissertation was about "Indian gaming." The scholar told Mason that there was someone in the room he had to meet; he called over a graduate student who studied game theory. The student was from India.

The term "Indian gaming" is less likely to be misunderstood these days, as casinos owned by American Indian tribes have become a prominent part of the national landscape. Only 13 years ago, there were no tribal casinos in this country; now these enterprises operate in 24 states. During the past few months, two major trade publishers have released books on the biggest of them all: the Foxwoods Resort Casino, which is owned by the Mashantucket Pequot Tribal Nation and located near Ledyard, Connecticut, just a two-hour drive down from Boston or up from New York City. Both of these books--Jeff Benedict's Without Reservation and Kim Isaac Eisler's Revenge of the Pequots--tell the less-than-rags to more-than-riches story of how a tribe that did not exist in the eyes of the federal government until 1983 created, as the subtitles have it, "the world's largest casino" and "the world's most profitable casino." Meanwhile, Mason's dissertation-turned-book provides the historical context that explains the rise of tribal casinos.

The story Mason tells in Indian Gaming begins nearly two centuries ago, when the Supreme Court established in a series of decisions that American Indian tribes enjoy what Mason calls a "diminished sovereignty." Although state governments can't, of their own authority, make tribes do anything, the federal government's authority over tribes is virtually unlimited. To be sure, Chief Justice John Marshall had a lot to say about how the federal government should exercise this authority. It was to act as a guardian would for a ward, offering "kindness," "relief," and "protection."

For years, the federal government fell short of that kindly role; it did one heinous thing to Native Americans after another. But in the 1970s and 1980s, a combination of forces began turning public policy in a more favorable direction. There was a new assertiveness by organizations such as the American Indian Movement. There also were changes in popular culture that fostered a Dances with Wolves romanticism, Republican presidents who wanted tribes to become economically self-sufficient so that federal subsidies could be cut, and pro-Indian Supreme Court decisions with teeth.

When tribes first turned to commercial gambling in this recent era, usually in the form of high-stakes bingo, the Court prevented state governments from clamping down on them. In a 6-to-3 decision that scrambled the justices' usual alignments (Antonin Scalia and John Paul Stevens were on one side, and William Rehnquist and Thurgood Marshall were on the other), the Court declared in the 1987 case California v. Cabazon Band of Mission Indians that states that permit or, in the case of lotteries, operate gambling in any form can't prevent tribes from having their own gambling facilities.

The states, which had opposed Cabazon, subsequently won a partial victory in Congress. The 1988 Indian Gaming Regulatory Act (IGRA) authorized tribes to sue states that tried to deny them the right to open casinos, but it also restricted the tribes' latitude. IGRA allowed tribes to have casinos only if the state already allowed similar forms of gambling. And it required that before opening a casino, a tribe had to negotiate a compact with the state that spelled out the terms of operation.

As Mason points out, in the 13 years since IGRA was enacted, 189 tribes have gotten into the business of what the law calls Class III gambling--casinos or, in a few cases, offtrack betting on horse races. These operations bring profits of more than $7 billion a year into tribal coffers, an astonishing amount compared with any other moneymaking enterprise that Native Americans have ever owned and operated.

But most of the nation's 557 tribes--indeed, around two-thirds of them--are not part of the casino economy, and many of the tribes that are part of it are barely getting by. Eight tribal casinos account for 40 percent of all the revenue. Geography is one reason why so few tribes have been able to make big money. Many tribal lands are too far from population centers ("feeder markets" in the industry vernacular) to attract enough gamblers from off the reservation. Culture is another reason. Some tribes, like the Navajo and the Seneca, have voted to stay out of the casino business for fear that it would defile their traditions and despoil their lands.

For tribes that are both fortunately located and willing to trade traditional culture for modern casinos, politics has been the key to whether they have been able to cash in--as the case of the Mashantucket Pequots illustrates. Politically, the Pequot tribe played its hand well in setting up Foxwoods. As both Eisler and Benedict tell the story, the Pequots benefited enormously from the groundwork laid by Tom Tureen, a white public-interest lawyer who in 1980 used the threat of litigation to persuade Congress to give two Maine tribes, the Passamaquoddies and the Penobscots, nearly $82 million. The basis of Tureen's legal claim was the requirement of the Indian Nonintercourse Act of 1790 that every sale of tribal land be approved by federal treaty. Maine had never sought such approval, which put two-thirds of all the land in the state at legal risk. Neither, Tureen discovered, had Connecticut when it sold off most of the Pequots' land in 1856.

But were there any Pequots left? The tribe was, as Eisler points out, "the very first to be exterminated" by the English and Dutch during colonial days. In a bit of heavy-handed foreshadowing, Herman Melville named Captain Ahab's doomed ship the Pequod after the "celebrated tribe of Massachusetts Indians, now extinct as the ancient Medes." But a couple of hundred acres of Pequot land in southeastern Connecticut remained untouched and, well into the twentieth century, a woman who claimed Pequot ancestry lived on them. When she died in 1973, her grandson, Richard "Skip" Hayward, a knockabout welder, moved onto the land and encouraged all of his relatives to do the same. Eisler regards Hayward as being perhaps one-sixteenth Pequot on his mother's side. As far as Benedict is concerned, Hayward's--and his grandmother's--Pequot credentials are entirely bogus.

Tureen was able to parlay the Hayward family's claim to tribal status into federal recognition and a $900,000 settlement from Congress, which the tribe used to buy several hundred more acres. In 1987 Hayward benefited from the Cabazon ruling and from Connecticut's enactment of a law that allowed schools and charitable organizations to hold "Las Vegas Nights" offering casino games with noncash prizes. The push for the bill had come from Mothers Against Drunk Driving (MADD), which was hoping to attract kids to stick around the school on prom night instead of getting on the roads. But because of Cabazon, the MADD bill opened the door to full-scale casino gambling on Pequot land. When Connecticut governor Lowell Weicker refused to negotiate a casino compact with Hayward, Tureen invoked the provision of IGRA that allows tribes to sue recalcitrant states and won in federal court. Foxwoods opened in 1992.

As easy as the Pequots had it in their political dealings with the governments in Hartford and Washington, they haven't been spared the turmoil of politics within the tribe. The stakes, of course, have become enormous. With advice from veteran casino executives from Atlantic City and ample financing from a Malaysian billionaire who had always wanted a stake in an American casino, Hayward was able to take full advantage of his superb location and freedom from federal and state taxes. Foxwoods grew within a few years to include 24 restaurants, three hotels, 17 shops, a golf course, a state-of-the-art Pequot museum, and profits of more than $1 billion per year.

Eager to grow his tribe as well as its business, Hayward invited Narragansett Indians from Rhode Island, whose bloodlines were intertwined with the Pequots' in complex and ancient ways, to move onto the reservation. (Under federal law, each tribe gets to determine who its members are.) Hayward offered each of them the same share of Foxwoods's profits as his own Pequot family members received: free housing, day care, health care, and college tuition, along with an annual dividend of $50,000 and, if they wanted it, a job in the business. Needless to say, the Narragansetts accepted this invitation in great numbers, swelling the tribe's ranks from a few dozen to roughly 650. It wasn't long, however, before the Narragansetts' leader, Kenneth Reels, did a head count and decided he had the votes to unseat Hayward as tribal chairman. Both Eisler and Benedict regard Reels as small-minded and thuggish, but neither of them doubts his ability to count votes. He was elected in 1998.

The tribes in New Mexico and Oklahoma that Mason studied have had more difficult--and more typical--political experiences with their state governments. In both states, tribes not only had to act as sovereign governments pursuing their right to open casinos; they also had to act like interest groups. In the early 1990s when Bruce King, New Mexico's Democratic governor, stonewalled a number of compact-seeking Pueblo tribes on the grounds that the only casino gambling his state allowed was the occasional charitable Las Vegas Night, the state's mostly Democratic tribes united in support of King's Republican opponent in the 1994 election. The Republican, Gary Johnson, won--thanks in no small measure to the tribes' $189,000 in campaign contributions. He quickly authorized them to open casinos on their lands. When the state supreme court ruled that the governor had exceeded his authority by not getting the legislature to approve the casino compacts, the tribes again pooled their resources, hired lobbyists, waged a paid media campaign, bought 10 of 40 tables at the Democratic legislators' annual fundraiser, and secured a new compact with bipartisan support that met the court's approval. Ten tribal casinos were soon up and running.

Mason's theme that sovereignty without politics isn't enough is illustrated in his chapter on Oklahoma. Oklahoma's tribes had almost as good a legal claim as New Mexico's to get into the casino business. What's more, Oklahoma has the largest Indian population in the country--more than 260,000 in a state of only 3.4 million people. But Oklahoma's 39 tribes remained disunited by long-standing feuds and rivalries, and a hostile state government was able to tie them in legal and political knots.

Mason's work certainly has the most intellectual heft of anything yet published on tribal gambling, but it also suffers a bit in its transmutation from dissertation to book. Sentences like the following are all too common: "While Henshcen and Sidlow made a contribution to the field much beyond Kingdon, they did not go far enough in their own research." Well, yeah, and if you turn back 200 pages to the only other references in the book to Henschen, Sidlow, or Kingdon, you can sort of figure out what he means. But that's a bit much to ask of the reader.

Liveliness of presentation is certainly not the problem with either of the books about Foxwoods. Both Eisler and Benedict have written page-turners. They each tell essentially the same story, with Skip Hayward as the main character. For Eisler, Hayward is a lovable rogue. For Benedict, he's a scam artist. Both authors agree, however, that Hayward's recent toppling by Kenneth Reels threatens disaster for the Pequots. Reels won by promising million-dollar salaries to tribal council members and higher "dividend payments" to every member of the tribe, a pledge that has required the tribal government to squander much of its casino profits and borrow heavily.

Unfortunately, none of these books makes much of the Supreme Court's 1996 decision in Seminole Tribe v. Florida. In that case, the Court invoked the 11th Amendment to invalidate the section of IGRA that allows tribes to sue states that refuse to negotiate casino compacts--the very provision that gave the Pequots the legal leverage they needed to open Foxwoods. Stonewalling states are now virtually immune to legal challenges.

Politics, however, can still clear a path to additional tribal casinos. The tribes that got their casinos before the Court shut the legal door have plowed some of their profits into lobbying, advertising, and campaign contributions in order to protect their position. Hayward, for example, was identified by the Democratic National Committee as early as 1993 as one of the party's top 10 donors, and his continuing six-figure donations made him a repeat guest at Bill Clinton's White House coffees.

California tribes demonstrated in 2000 that sometimes states can be convinced to legalize Indian casino gambling of their own volition. With the support of Democratic Governor Gray Davis (and a campaign war chest in the tens of millions), the tribes played on Anglo guilt to persuade the state's voters to pass a proposition granting tribes exclusive authority to offer casino gambling in California. By this time next year, an estimated 40,000 to 100,000 tribe-owned slot machines are forecast to be up and clanging. Foxwoods--and Las Vegas--look to your laurels.

MICHAEL NELSON is a professor of political science at Rhodes College in Memphis, Tennessee. His most recent books are The Elections of 2000 and, with John Lyman Mason, Governing Gambling: Politics and Policy in State, Tribe, and Nation.
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Title Annotation:Review
Publication:The American Prospect
Article Type:Book Review
Date:May 21, 2001
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