COMMENTARY: Patchak and Payouts – As we find ourselves in times of trouble, speaking words of wisdom
Published: September 23rd, 2017
At the Capitol in Oklahoma City, a special session of the Legislature begins Monday morning.
Oklahoma faces a budget crunch – in other words, business as usual. It is a distressing situation, arising in part from the inability of an overwhelming Republican majority in state government to follow through on promises made in the elections of 2012 and 2016 to “right-size” (reduce) government and concentrate on core functions of government.
In the context of scurrying around for money to cover policy ineptitude, many ideas are floating.
The least worthy of all recent suggestions raised at N.W. 23 and Lincoln is to allow the state’s Indian tribes opportunities more gambling opportunities.
Tracking closely with that idea is the scuttlebutt in the halls of power that some legislators want to “cover” for a land problem facing the larger Indian tribes, most notably the Chickasaw Nation.
There have been whispers for years in legal and political circles, concerning the means through which casinos began popping up all over southern and Eastern Oklahoma in the most opportune places – in areas that had not been Indian territory for a century.
Of the 120 casinos located in Oklahoma, roughly half of them are located on such newly acquired sites for a handful of tribes – even though the Indian Gaming Regulatory Act prohibited such location decisions/permits except in specific circumstances.
Many believed the legality of these casinos, long protected by a combination of dubious decisions at the Bureau of Indian Affairs (BIA) and the notable power and influence of the largest tribal entities would never be challenged.
That began to change when the Supreme Court ruled in 2012 that such sites may be challenged legally.
In an 8-1 decision in “Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,” the High Court allowed a legal challenge to a casino location and permitting process (http://www.scotusblog.com/case-files/cases/match-e-be-nash-she-wish-band-of-pottawatomi-indians-v-patchak/).
Here is the gist of the decision, in the words of an elegant case summary at the Supreme Court of the United States blog:
“In this case, the federal government took certain land into trust for an Indian tribe, which means that it took ownership of the land to allow the tribe to use it. The tribe planned to build a casino on the land. The Supreme Court held that a neighbor could sue the government to stop the casino project on the ground that the law did not permit the government to take the land into trust for this particular tribe.”
In deliberations on the matter, the late Justice Antonin Scalia wondered what the impact on casino land processes would be if falsehoods were perpetrated in said process. He asked explicitly, right out loud, the question that has long haunted this issue in Oklahoma: “What if they lied?”
Although the case did not pivot around that dramatic (in retrospect) moment, his colleague Justice Elana Kagan reflected there was no doubt the federal government would be held to the letter of the law if any other matter were under consideration.
Over the years, there have been efforts by smaller tribes to challenge decisions that put them in a comparative disadvantage in the process.
The latest is the filing, by the Comanche Nation of Oklahoma, in a lawsuit against the latest proposed Chickasaw casino (located on good real estate just north of the Red River, which would add to the two dozen locations that tribe (wealthiest of all the oklahoma tribes) already operates.
Despite the litigation, the Chickasaw have pressed on in their customary manner, which might be described as smiling as they do whatever they please, regardless of the impact on other Native enterprises.
A reading of the pleadings in the case finds assertions that the deeds to all casinos comparable to the new situation have been (and are) suspect at best.
Massive gains for the big tribes (amounting to billions of dollars) have resulted from this defective approach to land trust and related areas of the law within Oklahoma. That is money which should, instead, belong to the smaller tribes – and in specific instances to the state of Oklahoma.
Even as the state considers an expansion of revenue by allowing the tribes to have roulette and dice games (a decision many of us could not support), absolutely nothing should be done to fix the problem of tribes with dubious operations. The State stands in a perfect position to await further developments in courts of law, and to retrade existing compact(s) with those same tribes.
At stake could be billions of dollars that should be used in appropriate instances for state revenue needs (and as a way to avoid tax hikes on individuals and businesses in the state), to improve per capita disbursements for tribal members (the aforementioned billions rest in bank accounts not subject to scrutiny as the corpus grows daily) and better tribal programs.