Former Chairman of the San Manuel Band of Mission Indians Criticizes Recent Events

The San Manuel Band of Mission Indians were the only tribe out of five who rejected the MOA to its compact with Gov. Arnold Schwarzenegger believing that the nonbinding side agreements agreed to by the other four tribes set a bad precedent. The future of their amended compact is unclear.

This piece by Deron Marquez, former Chairman of the San Manuel Band of Mission Indians and Ph.D. Candidate at Claremont Graduate University, sheds more light on their decision.

http://216.109.157.86/press_release/Someday%20Fading%20Inevitable%20070307.htm

DERON MARQUEZ: Someday Fading Inevitable

Someday, it may be said that fading to completion was inevitable. In 1856, Indian Affairs Commissioner Alfred Cummings foresaw the treaty making process as a direct relationship to slowly erode the political fabric known as “Tribe.” The time and terrain were vastly different then and tribal leaders acted to secure the “people;” securing their existence, their way of life, physically and spiritually and by executing treaties, attempting to hold off encroachment, both geographical and political. Treaties are a composition of compromises between two separate governmental parties and the complex story of the U.S.–Tribal treaty life is well documented. Tribes agreed to and executed their provisions only to have the U.S. ignore or refuse to fulfill their end of the deal.

As of late, by a federal act, tribes are forced to negotiate new forms of treaties with state governments. Under the Indian Gaming Regulatory Act (IGRA), discussions between the two governments are supposed to center around a “Class III” scope; scope of gambling activity (Las Vegas style games) and scope of regulation (of Class III). The federal government, at the request of state governments, opened this process for new treaties (called “compacts”) that once held to the limits stated above, but recent compacts include labor provisions, taxation of gaming activity, state oversight beyond gaming activities, mandatory waiver of sovereignty and the list goes on. Like before, tribal leaders agreed to such language as means to secure their people and this time, their Tribal Nation. It must be stated that some compacts hold true to the proper form intended by the IGRA, but those are too few.

The language of these new treaties are to be “negotiated” by heads of states, but are mostly handled by attorneys representing the heads. Typically, negotiations are dictations and the elected leaders rarely engage during dictation. In some cases, the agreed upon language is sent to the state legislative branch for approval, meaning a “for” or “against” vote. Until now, ratification of existing compacts was their only activity, if they were involved at all.

Today, in California, the legislature is re-defining the act of compact negotiation by making language changes and piling on additional requirements as a condition of approval. Other tribes in the United States should take notice since, as the saying goes, “as California goes so goes the nation.” Tribes in California, enjoying compacts until 2020, have agreed to new terms that extend the state of California’s jurisdiction deeper into the reservations, in some cases extending county jurisdiction in the process. For example, building codes are no longer tribal priority; the codes must meet or exceed building codes from city or counties where the facility is located. Plus, all change orders are to be submitted to the State of California. California’s “revenue share” percentage will increase, in some cases, by over 300% and this will only cease if, in the “geographic area,” a “50 table” minimum card room operation commences in “any one location” or if California sanctions non-Indian Class III operations. In which case, the tribes will pay the state for regulation and 12.5 % on all machines above 2000. Exclusivity, the once-sacred arrangement required for federal approval of states “sharing” in tribal revenues, is apparently not so exclusive anymore.

The 2006 compact amendments are now making their way to the Department of the Interior for scrutiny with a unique hitch. While the California Senate approved the new language it received from the Governor, the Assembly did not. As a condition of Assembly approval, the tribes had to agree to “extra-compact” provisions related to labor, regulation and revenue, among others broad issues. Unwilling or unable to push aside this demand, these tribes chose to relinquish current precedent by essentially negotiating compact language with three state bodies: the Executive branch, state Senate and Assembly. San Manuel chose to forgo this arrangement because it meant accepting a lesser sovereign status in exchange for more time and machines.

As the former Chairman of San Manuel, I, first, understand the tribal governments’ “business” desire for more machines in order to dramatically increase the bottom line of some of the largest operations in California. Second, I understand the extra provisions outlined in these “side arrangements” are primarily current practices of these tribes and do not represent a substantial new burden on these tribes or their operations. Therefore, since tribal governments in California are already practicing these activities and have provided California Assembly Speaker Nuñez with illustrations of such practice during Assembly negotiations, it begs one question: Why formalize them with additional language and side agreements? Is there an epidemic in these areas that demands California’s involvement and if so why didn’t the governor’s team address it? The Speaker was also seeking more organized labor friendly language and more environmental oversights. Accepting these demands has now created a framework wherein Tribal governments wishing to execute compacts under IGRA will now have a new “California” process to worry about: a multi-layer negotiation process where the state legislative branch can maneuver around the governor and attach their desires to the existing compact rather than simply signal their approval or disapproval.

When I was Chairman, I used to marvel at the concessions being made by Tribal governments seeking to secure their first compacts. I would even voice my concerns, a proper act or not, that these “non-compact” tribes were sacrificing their sovereignty, our sovereignty because we are all held hostage by the latest negotiated composition. The recent actions to unfold in California are simply wrong and if one believes that the unfavorable language ends at the agreed upon time, I ask you: When was the last time Tribal governments ever received, after willfully forfeiting it, their sovereign status back? Perhaps IGRA finally does give birth to that “someday” and bleaches out the last faded fabric resembling Tribal governments.