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A viewpoint by Thomas D. Elias: Did Indians speak with forked tongues on gaming?

January 06, 2001

As more than five dozen California Indian tribes hustle to open new or expanded casinos this spring, it's becoming increasingly clear some spoke with forked tongues while winning overwhelming voter approval of Proposition 1A last spring. The ballot measure authorized moves that soon will see Indian casinos here using more slot machines than all the gaming parlors of Nevada combined.

Here's what the Native Americans said last spring, when their measure coasted through on the wings of more than $50 million in tribally financed television, radio and newspaper advertising:

"(Proposition 1A) provides for tribal cooperation with local governments and for tribal environmental compliance."

That's straight from the ballot argument signed by the chairmen of three casino-owning tribes.

Earlier, the tribes also signed a compact with the state promising to make "a good-faith effort to incorporate the policies and purposes" of state and federal environmental laws into their casino developments.

Here's what they're saying now, as state Attorney General Bill Lockyer tries to get them to comply with the California Environmental Quality Act and its federal counterpart, the National Environmental Policy Act:

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"Neither the procedures, nor the acts themselves, CEQA or its federal companion, apply to Indian tribes." That statement comes from Glenn Feldman, a lawyer representing the San Pascual tribe, now building a casino on its reservation in San Diego County.

Lockyer has notified the San Pasqual reservation and at least two other tribes that their projects don't comply with CEQA. Also in dispute are a gambling hall expansion and renovation at the Rincon reservation elsewhere in San Diego County and a casino being built by the Me-Wuk band in Tuolomne County. The tribes' essential answer to the Lockyer complaint: "So what?"

Deputy Attorney General Marc Le Forestier used the language of the 1999 compact when he wrote San Pasqual demanding that "the tribe must make a good-faith effort to incorporate (the environmental laws)."

Le Forestier said San Pasqual's environmental report contained little to back up its claim of "no significant adverse effect on the environment."

The other two casino projects to which Lockyer objects also presented no evidence about their impact on water quality, sewage disposal and the effects of the grading needed in order to build.

Disregarding Lockyer's objections, construction has proceeded.

Environmentalists may be distressed, but they can't do much about it.

There's good reason for the Indians' rush. Proposition 1A set a May 15 deadline for new slot machines it legalized to be in operation. To make that deadline, the tribes need casino buildings, even if they're not in their permanent form.

Meanwhile, even Le Forestier concedes the tribes don't have to comply with the letter of every environmental law. Nor can local authorities do much about the under-way construction, as their role is restricted by the gaming compact to "commenting."

Don't expect Gov. Gray Davis, who negotiated the compact over 16 days in late 1999, to step in, either. Indian tribes were major contributors to his 1998 election campaign and much of the $25 million or so he has on hand now for his 2002 re-election drive also came from them. It's not logical to expect he'll crack down by sending in bulldozers to rip down half-built casinos.

In fact, his office won't say much about the issue at all, referring questions to Lockyer.

That means the California tribes have created a de facto version of the old Turkish law that stated that once a roof was erected, no one could rip down a new building no matter how many other laws it defied. This led to many overnight roof-raisings across the Middle East.

In this case, the casino roofs are not being raised overnight. Rather, they are going up over a period of months while lawyers haggle over whether they are legal or not. Once up, don't expect them to come down.

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