Tribal sovereignty at center of casino battles

Don Thompson

Thursday, Jan. 16, 2003 | 9:53 a.m.

GEYSERVILLE, Calif. -- High on a hilltop overlooking miles of Alexander Valley vineyards and the sparkling Russian River, at the dead end of a twisting narrow access road, two circus-like tents front a parking lot carved from the steep slope.

Inside, 269 slot machines clang and chime around the clock, powered by diesel generators until power lines can be installed. Gamblers' waste goes into a temporary septic system because a sewage treatment plant isn't ready. Senior citizens bused 75 miles north from San Francisco file past hard-hatted construction workers into a complex banned by the local agricultural zoning code.

The state's top law enforcement official, acting on behalf of Gov. Gray Davis, wasn't enough to stop the River Rock Casino from opening last fall, once the Dry Creek Rancheria Band of Pomo Indians refused to halt construction over alleged building, safety and environmental violations.

"The tribe just said 'Stuff it. Stuff it, governor, stuff it, attorney general,' " said Alexander Valley Association President Karen Passalacqua, who has led local opposition. "They were nervy enough just to do whatever the hell they wanted."

Attorney General Bill Lockyer and Davis ran smack into tribal sovereignty, a wall of legal independence that has thwarted state and local officials across the nation.

It's an example of proliferating nationwide conflicts between tribes and communities -- fights both sides say may be leading to a new definition of Indian sovereignty.

That battle is now being waged in the courts and Congress.

The clash between tribes' rights and those of surrounding communities has been around for ages. Indeed, tribes' independence from most state oversight dates from a U.S. Supreme Court ruling that has stood for 170 years.

Tribal sovereignty is rooted in the principle that Indian tribes were sovereign nations assimilated by the United States. Many tribes have treaties with the government recognizing special status and guaranteeing special rights.

But sovereignty began receiving new attention as casinos sprouted with Congress' approval of the National Indian Gaming Act in 1988.

"It exploded these sovereignty issues nationwide, and it exploded them in ways that people had never even thought of," said Guy Martin, whose Washington, D.C., law firm now represents communities in tribal disputes in about 20 states. "We're coming upon a time when we could be forced to reconsider the entire issue of Indian sovereignty."

In fact, a trio of Supreme Court decisions, two of them last year, narrowed tribes' ability to restrict intrusion by states on law enforcement and tax issues.

"Indian Country recognized the U.S. Supreme Court was really on a rampage against tribal sovereignty," said Tracy Labin, an attorney with the Native American Rights Fund. "Certainly tribal gaming is something that catches everyone's attention, but very quietly the U.S. Supreme Court is just chipping away."

Tribes have responded with a coordinated effort to improve their track record before the court. They're also proposing national legislation to protect their sovereignty, a proposal opponents say would give tribes rights they've never had.

"The biggest sovereignty contest is between tribes and states, because the tribes are trying to set themselves up as equal to states," Martin said.

Among examples:

The Skull Valley Goshutes plan to use part of their Utah reservation for a nuclear waste dump despite the state's best efforts. The small impoverished tribe hopes to earn as much as $3 billion by storing 40,000 tons of waste for 40 years.

Connecticut lawmakers repealed their Las Vegas Nights law this week in an attempt to block additional casinos there, prompting promises of court challenges to what tribes say is discriminatory legislation.

New York state and county officials are negotiating with the Oneida Indians of New York, Wisconsin and Canada over a proposed $500 million settlement for a quarter-million acres of tribal land that New York state purchased in the 18th and 19th centuries.

Washington state's Lummi and Suquamish tribes are claiming jurisdiction over former reservation land, leading to sovereignty disputes.

Similar disputes are under way with Wisconsin's Oneida and Mohican tribes.

The Agua Caliente Band of Cahuilla Indians' refusal to adhere to California campaign contribution reporting laws has brought a lawsuit over where tribal sovereignty ends and the state's rights begin.

The debate has reached a peak in California now that state officials are attempting to renegotiate gambling compacts hastily drafted by the governor's office in 1999.

The Dry Creek Band followed its compact to the letter, say both the tribe and the attorney general's office. State officials concluded there was nothing they could do beyond requiring the tribe to sit down and talk about the alleged building, safety and environmental violations -- talks that still are ongoing six months later even as site improvements eliminate many of the earlier problems.

"I guess that's the question: Should public safety override tribal sovereignty in a case like this?" Passalacqua asked. "I don't think it was ever the intent that this little 75-acre rancheria, which was originally meant for homeless Indians, should be a 24-hour-a-day, seven-day-a-week casino."

Indian sovereignty, she argues, "is an idea that got out of control."

The tribes are simply playing the hand they were dealt by white society, countered Doug Searle, a consultant who has opened casinos for three tribes over the last 10 years.

The Dry Creek Band was stuffed away on a hillside, literally out of sight and mind from white residents in the fertile plain below. The land had little agricultural or commercial value, leaving the 704-member tribe impoverished.

"The first time I came up here, I can tell you I honestly started crying," Searle said. "You would not believe that we as Americans would let people live like that."

He said the tribe has strived to minimize the visual and environmental impact of its casino on a hill, and to seek joint marketing efforts with local wineries, restaurants and lodges.

"Some of the opposition locally tried to come up with every hurdle they could," Searle said. "You're given a right by the federal government, but then you've got to go through all of these amazing loopholes to get the right that's been given to you."