The National Indian Gaming Commission and the U.S. Department of Justice now want to dictate tribal policy with regard to tribal government expenditures and with regard to tribal political activities and contributions. They want to outlaw or, at least, put a chilling effect on tribes’ ability to spend funds generated by tribal gaming for tribal governmental activities that Indians have to engage in to protect their right to conduct gaming free from state control and taxation. They want to outlaw, or curtail, tribes’ ability to contribute to political campaigns or campaign organizations that are friendly to protection of tribal rights.
Once again our trustee, the U.S. government (NIGC/DoJ), is representing the interests of state government, federal government agencies and non-Indians in derogation of the sovereign rights of Indian tribes. They want to place restrictions on tribal sovereignty, tribal self-governance and tribal decision-making that Congress refused to put in place in the original Indian Gaming Regulatory Act and that Congress continues to refuse to place on the tribes despite the urging of NIGC, DoJ and state governments.
Does this sound familiar? It does because the same thing happened when the tribes won the Class II cases in federal court. The NIGC and DoJ attempted by administrative fiat and lobbying Congress to take back what the tribes had won. Somewhere down the line the tribes may have a massive claims issue similar to the now all-too-familiar Cobell v. Kempthorn litigation.
Other cases of theft, conversion, misuse or misapplication of tribal casino funds have been brought to the attention of federal officials that involve non-Indians and amounts far exceeding the alleged amounts involved in the Coyote Valley indictments. Perhaps, because those instances involve non-Indians who have the resources with which to fight any criminal charge through political connections or by intimidating officials with a barrage of high priced attorneys, the federal agencies refuse prosecution.
The excuse that we hear from the FBI is that the non-Indian cases did not reach the “thresholds” for prosecution. I guess that would be the non-Indian threshold, because the Indian threshold appears to be the price of a first class upgrade, an expensive dinner, a box seat at the baseball game, a $1,000 political contribution or less. That threshold goes even lower if you count numerous federal prosecutions of tribal leaders that allegedly misapplied or interfered in the processing of general assistance, housing benefits, vehicle purchases, government surplus property or who ate too many dinners at the casino.
The truth of the matter is the Interior inspector general, the FBI and the U.S. attorneys will investigate and prosecute tribal leaders for a few hundred dollars (even when the money is paid back and there was no direct benefit to the tribal leader other than a full belly) while turning a blind eye when the theft involves non-Indians. Lets call it like it is – the only difference is the race of the alleged offender. That should be totally unacceptable to all tribal governments and tribal leaders in this country. If it can happen to Coyote Valley officials, it can happen to you.
The NIGC has taken the position lately that it must cooperate and work hand in hand with its brethren in the “federal family” and that its “partnership” with tribal regulatory agencies comes in a distant third or fourth. The NIGC can utilize its authority under a civil law (IGRA) to supply its federal brethren agencies (FBI and U.S. attorneys) with alleged criminal evidence gained through a civil law process.
Every tribal casino operation and every tribal budget into which the NIGC may trace gaming dollars now becomes subject to the same standards that were used to indict the former Coyote Valley officials. These officials had already received the ultimate sanction with regard to alleged misuse or misapplication of tribal funds from its tribal political constituency – they were voted out of office. This was at least partially based on the suspicions aroused by the ongoing federal investigation that resulted in the recent indictments. The feds want to prosecute these officials further for their own political ends, as well as the political ends of the states, with the aim to restrict tribal self-determination, self-government and political influence. They want to “put us in our place” because we are getting just a little too savvy as to how to use the democratic process like the big corporations do.
The circumstances that led up to this situation involve federal malfeasance and misfeasance of federal agencies that failed to carry out their trust responsibilities to Coyote Valley and its Indian membership. The Department of Interior and its BIA had let tribal government organizational issues, membership issues, election issues and tribal governmental policy issues at Coyote Valley fester for years. This was either because of unwillingness to act or perhaps, just “business as usual” for the BIA – ignore a problem and it will eventually go away or become someone else’s problem.
The California Nations Indian Gaming Association and NIGA should be incensed with the manner that this investigation took place (literally a conspiracy of the “federal family” to get these tribal leaders and make an example of them). They should be incensed with the manner in which the NIGC may use its civil authority to gather alleged criminal evidence against tribal leaders, with the double standard “threshold” for prosecuting tribal leaders versus the unlimited “threshold” for prosecuting non-Indians and with the chilling effect this case will have on tribal spending policies, self-government, political activities and political contributions. I suspect it is the latter two of these that motivated this prosecution in the wake of the Abramoff scandal. But it is also motivated by the NIGC and DoJ desire to further restrict tribal gaming and the tribal political influence that tribes have utilized to prevent NIGC and DoJ sponsored legislation that would place unwarranted restrictions on tribal gaming.
Finally, it is another example of the federal government imposing its paternalism on tribes while ignoring its own trust responsibility to protect tribal assets and protect the tribes’ sovereign authority to “make its own laws and live by them.” Tribes have a sovereign right to make decisions about governmental spending policies and to reasonably interpret the tribe’s own policy and law. The NIGC and DoJ want to be able to dictate how tribes spend money and unilaterally interpret tribal policy and law so that their paternalism can be forced upon tribes via criminal sanctions. They want to disenfranchise tribes from the democratic political processes that are available to every other individual, company, city, state and county government and benevolent organization in the country. Again, tribes become the scapegoat for political/social problems created by the non-Indians.
The Coyote Valley voter constituency has extracted their pound of flesh from the former officials and we as Indians historically have believed in the process of atonement in which once someone is punished they are welcomed back into the circle. These people have been punished by their own people. The federal government wants to punish them further with imprisonment for infractions that involve federal interpretations of tribal policies and law, for infractions based on unilateral “federal interpretations” as to how tribes can spend their money, while applying a double standard to infractions that warrant a “pass” for non-Indians involved in the same alleged activities.
I don’t think tribal leadership should stand silent on this one. Each and every tribal leader should be saying to themselves “there but for the grace of the NIGC, inspector general, FBI and U.S. attorney, go I.”
I don’t think you will see any prosecution of officials from wealthy tribes for flying first class, buying sports tickets, expensive meals or making political contribution, probably because they too have the resources to fight such ridiculous charges. Unfortunately, the former Coyote Valley officials don’t have the resources.
Harold Monteau is a partner in Monteau & Peebles, a majority Indian-owned nationwide firm engaged in the practice of federal Indian law with offices in Missoula, Mont., Washington, D.C., Omaha, Neb., Sacramento, Calif., and Sioux Falls, S.D. He can be reached at www.ndnlaw.com.
