California, the Indian Giver

Ordinarily, I am opposed to casino gambling in any form. In the Midwest, where I hail from, riverboat casinos have long been touted as a miraculous cure-all for the economies of ailing rustbelt cities, but somehow the windfall never seems to materialize. What does seem to materialize are fortunes for the select few who run these casinos, a handful of low-skill, minimum-wage jobs, and a proliferation of pawn shops in the periphery of the casino's landing dock. These shops no doubt deal the trinkets local senior citizens pawn when they have finished gambling away their Social Security checks.

When it comes to Native American casinos, however, my ordinary objections to gambling are softened on the grounds that these casinos provide a means of living for a segment of the American population forced into poverty by the brutality of white settlement. But a story in Saturday's New York Times gives me reason to raise questions about this one situation in which my heart finds a soft spot for casino gambling. It seems that one state government has now seen fit to make financial arrangements with Native American casinos that amount to taxation in all but name. Such an arrangement not only violates the sovereignty of Native American reservations but effectively dupes locals into accepting gambling where they otherwise would not.

Seeking to solve his state's $34 billion budget deficit, California Governor Gray Davis is attempting to renegotiate the casino-gambling compacts with the various Native American tribes that live in California. The Times notes that Governor Davis is "hoping to exploit dissension among the tribes and the desire among some to expand their gambling business." In so doing, Governor Davis hopes to raise the state's gambling-related revenue from $100 million to over one and a half billion dollars. I am disturbed that California seeks to solve its budget deficit by taking money away from desperately poor Native American tribes that rely on the casinos for their survival. I am also disturbed that what I regard as essentially a form of societal aid to poor Native American tribes will now effectively become just another taxable business.

Presently, California's only leverage in dealing with Native American casinos is its legal power to grant licenses for slot machines and other gambling devices. These gambling devices are most likely those used in "games of chance," so called to distinguish them from "games of skill" such as blackjack and poker, which the public dubiously considers to be a lesser form of gambling. California's ability to use this leverage raises significant questions about the relationship of wider American society to remaining Native American tribes.

American law prohibits the taxation of Native Americans who live on reservations for a clear, straightforward, and just reason: the reservations are not part of the United States. Legally, Native American reservations are not considered part of the United States, but rather as sovereign entities in which American law does not apply. That Native American tribes are not subject to American law was recognized in the Constitution, which grants Congress the right to regular commerce "with foreign nations, among the several states, and with the Indian tribes."

This clause of the Constitution is at the heart of the nebulous relationship the federal government often has with the Native American tribes. The clause defines Native American tribes not as states of the Union, or as foreign governments, but as distinct entities whose exact status is far from clear. The Constitution thus envisages Native American tribes neither precisely as foreign nations nor precisely as part of the American body politic.

This arrangement strikes me as ultimately untenable, from both a public policy perspective and from the perspective of Native American rights. On the one hand, states must put up with the existence of large tracts of land within their borders that are not subject to their laws and that may therefore pursue policies at odds with legitimate state interests. On the other hand, the Constitution's definition of the status of Native American tribes smacks of paternalism, and the federal government has often pursued heavy-handed policies designed to obliterate Native American tribal identity, such as Andrew Jackson's forced relocation of the Seminole tribe from its ancestral lands in Florida to what is now Oklahoma.

What, then, would be a fair solution? It seems to me that this clause of the Constitution should be amended not to contain any specific mention of the Native American tribes at all. Such an amendment would effectively redefine Native American tribes as foreign nations; the federal government would have to negotiate with these tribes in the same way it negotiates with the governments of Canada or Ireland. Or, alternatively, these tribes could be given the option of formally joining the United States--becoming subject to all of its laws, including state anti-gambling laws. Either system would be fairer to these tribes than the uncertain status that allows politicians to trumpet casinos as a cheap means of providing much-needed income to Native Americans, then turn around and steal the income from those casinos when they find it convenient.

J.R. Wilheim is a Columbia College senior concentrating in religion and history.