[Sidebar] January 20 - 27, 2000


Casino games

How Rhode Island trumped the Narragansett Indians

by Justin Wolff

Matthew Thomas

Right now, the Narragansett Indians' proposal for a casino in West Warwick is just that, a proposal, an abstract structure propped up by numbers. There have been no ribbon cuttings or construction-site protests. Debates over the casino occur in a colorful array of diagrams and charts, and positions are stated in reams of figures -- percentages, ratios, allotments, and statistics. The numbers, to use a favorite idiomatic expression of both opponents and proponents of the casino, boggle the mind.

It wasn't always just about the math. The fiscal obsessions of casino lobbyists obscure the frenzy of emotions that led to the Narragansetts' current proposal. Before last June, when West Warwick residents turned out to overwhelmingly support the casino in a non-binding referendum, the proposal had spawned hooting and hollering at town meetings, ardent Congressional testimony, and controversial legislation regarding Native American rights. And it won't be just about the math for much longer. The West Warwick referendum assured that a casino bill would get to the State House. The bill, which will reach the House Finance Committee in the next two months, will ask the General Assembly to decide whether the proposal should be put to voters on the November ballot. Regardless of what happens to it, few New Englanders are aware of the political intrigues and power struggles that led to the bill.

Hiding behind the predictable endorsements and criticisms of the casino proposal are several dramas that illuminate the peculiar relationship between the Narragansetts and Rhode Island's politicians. First, when it comes to gaming, the Narragansetts have had terrible luck. Second, Rhode Island has not treated the tribe fairly. And third, over the last several years, the right of Rhode Islanders to vote on gaming proposals has been under siege.

The Narragansetts propose a 250,000-square foot casino -- the same size as Mohegan Sun -- that will feature 3000 slot machines and 150 table games. Backers estimate the casino will generate about $375 million in annual revenue. The state will be entitled to about $63 million, West Warwick to about $19 million. In addition, they promise that the casino will create 3000 construction jobs and will employ 4200 full-time workers by the fifth year. Opponents, naturally, claim the figures are inflated. Not so, says the tribe.

The Narragansetts claim that most people are more interested in why they aren't proposing to build on their reservation land in Charlestown, in southern Rhode Island. Besides being complicated, the answer to that question causes tribal members pain. For many of them, it's a reminder of the kind of injustices they suffered in the 18th and 19th centuries, and it provides a bitter contrast to the ease with which their historical rivals -- the Pequots -- established Foxwoods, the world's largest casino, a scant 30 miles away in Ledyard, Connecticut.

Since the early '80s, the Narragansetts have watched tribes across the country earn staggering profits from casinos. The Pequots and the Mohegans succeeded because federal law made it fairly easy for them to build and because they enticed the state with sweet revenue-sharing deals. After Foxwoods opened in 1992, the Narragansetts began to dream of their own casino. It should have been easy; theoretically, the same federal laws would be on their side. What they could not have anticipated was the vehement opposition to their plans by Rhode Island's leading politicians, especially the late US Senator John Chafee. During the last decade, he and Governor Lincoln Almond used their power to prevent the tribe from cashing in on gaming. According to Matthew Thomas, the chief sachem of the Narragansetts, the embargo on tribal gaming in Rhode Island is a modern form of the colonial massacre. "It goes back hundreds of years," he says. "Nothing has changed."

[Great Swamp] The first European documentation of the Narragansetts was in 1524, when Giovanni de Verrazano visited Narragansett Bay and noted a large native population organized under powerful "kings." Roger Williams acquired land use rights from these sachems in 1636, at the same time that colonists were fighting against Connecticut Indians in the Pequot War. The Narragansetts joined forces with the English against the Pequots and participated in a dawn massacre of Pequot villagers on May 25, 1637. (That massacre is the tragedy that lies at the heart of the moving Pequot Museum, a massive, modern, and savvy historical presentation located at and funded by Foxwoods.)

Several years later, in 1675, a military force of colonists from Massachusetts and Connecticut massacred a group of Narragansett men, women, and children at Great Swamp, in South Kingstown. Following the massacre, the tribe was confined to reservation lands in southern Rhode Island. For the next 350 years, the Narragansetts were subjected to the same kind of savage persecution as most tribes in the country. In the 18th century, for example, the state abolished the position of sachem and forced the tribe to settle dubious debts by returning reservation land.

In 1978, the tribe settled a land suit it had filed against the State of Rhode Island. Like so many land deals between tribes and states, this one has proved a lemon for the Narragansetts. They received 1800 acres of swampland, one half of the acreage they sought, and subjected themselves to certain state laws in return. These state laws, it turns out, have kept them from building a casino. After some more wrangling, the Narragansetts received federal recognition on April 11, 1983.

Between 1600 and 1700, the tribe's population fell from about 10,000 to a mere 500. Today, the tribe has about 2700 members, most of whom live in the state. The Narragansetts are headquartered out of a modest building in Charlestown and live around a reservation that has a health center, a simple church, several homes, and a cluster of trailers in a cul-de-sac. According to the most recent US Census report (1990), the per capita income of the Narragansetts is 40 percent less than that of the average Rhode Islander, and 26 percent of the tribe lives below the poverty line.

Reservations remain mysterious places to most Americans -- sovereign nations, supposedly, that before gambling depended almost entirely on federal aid. Reservations operate according to a set of arcane laws and Supreme Court rulings dating to 1831, when Chief Justice John Marshall upheld Indian sovereignty. He ruled that state law does not apply on reservations and that a tribe is a "distinct political society . . . capable of managing its own affairs and governing itself." However, Marshall insisted that tribes were subject to federal laws. At the same time, because reservations lack natural resources, the court ruled that the federal government is obligated toward Indian nations. "One fact that is not in dispute," Marshall ruled, "is the federal government's responsibility for the welfare of the Indian tribes and their members . . . . All observers agree that, in this regard, the federal government's record has been poor, at best."

[] Over the years, the government has tried to promote a few mainstream economic activities in Indian communities, like agriculture, natural resource development, and various forms of industry and commerce. These efforts failed, and in some cases, according to one government report, "have had a disastrous impact on tribes." Nevertheless, federal expenditures on behalf of Native Americans declined from 1975 to 1999. Now, nearly one of every three Native Americans lives below the poverty line and suicide rates on reservations are nearly triple of those elsewhere in the country. "In Indian country," US Senator and presidential candidate John McCain stated in a Senate debate in 1995, "a good, safe home is a rare commodity . . . . Simple conveniences that the rest of us take for granted remain out of the grasp of many Indian families."

Gambling was the wild card that reversed many tribal fortunes and toppled the fragile foundations of Indian governance.

Gaming has existed in this country since the colonial period. Lotteries helped fund the Revolutionary War, westward expansion, and prestigious institutions like Harvard and Princeton. Indian gaming, originally part of tribal ceremonies, existed before Europeans came to America. Faced with acutely depressed economies, tribes turned to gambling as a primary revenue source in the late '70s. A few prescient tribes saw that gaming would not only replenish their economies, but that proceeds could be used for cultural preservation and investment in other development projects. At a time when state lotteries proliferated, several tribes in Florida and California began raising revenues by operating bingo games offering larger prizes than those allowed under state law. When the states threatened to close the operations, the tribes sued in federal court. In two rulings -- Seminole Tribe vs. Butterworth (1979) and California vs. Cabazon Band (1987) -- the courts said that if a state outlaws a form of gambling, then tribes within that state may not engage in that game. However, if a state regulates a form of gambling, then tribes within that state may engage in that game free of state control. In essence, the courts formally recognized the right of Indians to conduct gaming operations on their own land, as long as gaming was not prohibited by the state.

The ensuing rush by tribes to open casinos was chaotic. Basic perceptions about reservations turned upside down. No longer did Native Americans see them as infertile places of confinement; reservations became havens that promised to cultivate great fortunes and shield tribes from greedy state governments. The greatest irony of Indian gaming -- and perhaps in the long run, its greatest tragedy -- is that during a very brief period, tribes went from being the most economically disenfranchised groups in the country to aggressive capitalists spouting conservative rhetoric about unfair taxes and overregulation. But to see Indians as somehow above vulgar profiteering, as guardians of whatever holistic spirituality we lost long ago, is condescending and racist, precisely the same kind of thinking that has kept them depressed for so long. The courts recognized this fact time and again: if states can profit from gaming, they ruled, Indians can profit from gaming. It's a right.

In 1988, Congress formally recognized but limited the right of Indians to conduct gaming operations with the passage of the Indian Gaming Regulatory Act (IGRA). The act mandates that tribes and states negotiate and sign compact agreements concerning games to be played and the specifics of regulation. It also ensures that tribal governments are the sole owners and primary beneficiaries of gaming and recognizes tribal gaming as a way of promoting economic development. Finally, IGRA mandates that states and tribes enter into the negotiations in "good faith."

From the beginning, tribes were wary of the compact mandate, fearing that it allowed states to bully them with capricious requests. Some states, for example, ask tribes to drop outstanding land claims before they will negotiate. Though the statute clearly says that states cannot assess more money than it costs to set up and monitor regulatory infrastructure, they have managed to get big pieces of the pie. Connecticut, for example, secured 25 percent of the earnings of the Pequot and Mohegan tribes, which adds about $294 million to its annual budget. As first-generation compacts come up for renegotiation in other parts of the country, states that have opted for vote-getting tax cuts covet lucrative agreements like Connecticut's. Nevertheless, many of the nation's 2.4 million Indians have come to look upon IGRA as a heroic piece of legislation. It guarantees that tribes can game and that states will negotiate with them. Today, there are approximately 260 Indian casinos in 28 states. And for the most part, gaming -- a $7.4 billion industry -- is saving Indian communities.

According to the Web site of the National Indian Gaming Association (NIGA) in Washington, D.C., "Gaming has replaced the buffalo as the mechanism used by American Indian people for survival." Jacob Coin, executive director of NIGA, told the Phoenix, "Gaming enterprises create jobs, they supplement dismal tribal budgets, and they enhance education and health care. These are facts. It is clearly the only answer that works. In the absence of gaming there have never been any viable options for economic development in Indian communities." And the "good faith" mandate has had one unforeseen benefit. "These gaming compacts," Coin says, "have prompted unprecedented dialogue between states and tribes."

But from the beginning, Chief Sachem Matthew Thomas says, Rhode Island politicians scoffed at the "good faith" mandate. "At first, we proposed a bingo hall for our reservation," Thomas explains, "but in late 1992 [the year Foxwoods opened], we announced we wanted to go full-scale and all hell broke loose." At that time, then-Governor Bruce Sundlun felt that the Rhode Island Indian Claims Settlement Act of 1978 -- the act that returned tribal land but subjected the Narragansetts to certain state laws -- overrode IGRA and prohibited the tribe from building a casino. In response, the tribe filed a federal suit against the state, claiming that IGRA superseded the 1978 legislation and required the governor to negotiate a compact.

In March 1994, a federal appeals court affirmed the right of the Narragansett Indians to build a casino on tribal land. Not willing to accept the verdict, the state appealed the ruling to the Supreme Court in July 1994. The court refused to hear the case, thus upholding the tribe's rights under IGRA. But even before the Supreme Court refusal, Sundlun reversed himself. He realized he was beat, and after that point, Chief Thomas says, "Sundlun behaved like a gentleman and agreed to negotiate a compact."

In August 1994, the Narragansetts and Sundlun agreed to move the proposed casino from their reservation to West Greenwich, which is more attractive because it's right off I-95. But the move required that the proposal be approved in a statewide referendum. That casino was rejected by voters in November 1994. The tribe, however, did not concede defeat, confident that with IGRA on their side and a commitment to keep the casino on their land, one day they would be allowed to conduct gaming.

For two years, the Narragansetts and state politicians haggled over the casino. Then, in October 1996, John Chafee, who disliked the idea of building a casino without voter approval, clobbered the tribe with an audacious backdoor maneuver. Using his clout in Congress and the support of Governor Almond and US Senator Claiborne Pell, Chafee convinced his peers to pass an appropriations bill that included a controversial rider. Using the 1978 settlement act as its legal crutch, Chafee's legislation excludes the Narragansett Indians from the protections of IGRA. It says, in essence, that the Narragansett lands will not be considered Indian lands for the purpose of gaming. This obliterates the precedent dating to 1831 -- and in the case of the Narragansetts, affirmed by the Supreme Court in 1994 -- that state law does not apply on reservations.

Now, if the Narragansetts want to build a casino in Rhode Island, they must go about it like any commercial firm, meaning the matter must be approved by voters. The Narragansetts became the only federally-recognized tribe in the United States not to enjoy the rights mandated in IGRA and repeatedly upheld by the Supreme Court. They were stunned.

"I don't think a lot of people understand what happened," Chief Thomas says. "In the middle of the night, our rights were taken away. You can't kill me by putting a gun to my head anymore, but you can kill me by taking away my right to economic development. You have to understand," the chief implores, "that before Chafee's action, we had done everything we were supposed to do under federal law, and the courts had affirmed our rights. So when that rider went through, after we had spent millions of dollars fighting to prove our rights, well, it's just . . . you don't think it could happen today."

Guy Dufault, a tribal spokesman, has been involved with the casino matter since 1992. He says that the revered Chafee blew it. "What Chafee did," Dufault argues, "was to vote for IGRA in 1988 and take credit for being a forward-thinking politician who supports Indian tribes. Then he turns around and acts on the kind of narrow, parochial interest that IGRA was designed to prevent."

In 1997, the Supreme Court said that Chafee's rider was a legislative matter and refused to rule on its constitutional integrity. US Representative Patrick Kennedy opposed Chafee's gambit, but was powerless to prevent it. Last February, Kennedy reintroduced his Narragansett Justice Act, which seeks to restore the tribe's IGRA rights, but it didn't pass the House of Representatives in 1998, and it's unlikely that it will in 2000. "It's tough for Kennedy," Dufault explains. "He's a young member of the minority in Congress trying to overturn a piece of legislation proposed by a Republican icon."

Jacob Coin, the NIGA head, says that Chafee's move surprised many people in Washington and that its reverberations were felt all over the country. "The Chafee amendment did concern us a great deal," he admits. "Certainly it's an anomaly in the way that states deal with tribes. Hopefully, it won't set a precedent."

After Chafee's rider, the tribe wanted to move forward and get a casino proposal on the ballot, as they are now obliged to do. Because of Governor Almond's strong opposition, however, nothing has panned out.

According to Dufault, Almond is the casino's biggest enemy. Because of a personal aversion to gambling, the governor has vowed to veto the casino bill should it pass the General Assembly this year. Lisa Pelosi, spokeswoman for the governor, says, "The governor will use his bully pulpit to oppose this casino. His first strategy is to try to prevent the General Assembly from passing the bill. But if they do, he will veto it."

Almond's position is curious, to say the least, considering that Rhode Island is a gaming state. In fact, gaming is Rhode Island's third largest source of revenue. In any convenience store you can buy lottery or scratch tickets, and you can bet on games or play video slots at Lincoln Park or Newport Jai Alai. The state pocketed $133 million from the lottery in the last fiscal year. If nothing else, there is the appearance of hypocrisy in the governor's position. "With the exception of Bruce Sundlun," Dufault says, "the politicians in this state have demagogued the issue. It's fashionable for politicians to be against gaming. They talk about not wanting gambling in the state yet they love the lottery revenue. It reeks."

Pelosi counters that the governor's position does not constitute hypocrisy. "While the governor does not deny that the state needs lottery revenues, if we could start over again, he would prefer to fund the state without them," she says.

Dufault recalls how the tribe decided on West Warwick in January 1999, just when it was most dejected. "The chief said to me that he was tired of fighting the politicians, that he wanted to find people to support us. That's why we're in West Warwick. They opened their arms. We all decided to do a vote to make sure the people were for this before we moved forward. On the hottest day of the summer -- a day so hot that Almond closed the state offices -- more people turned out to vote in West Warwick than had turned out for the last presidential election. And we won, by a two-to-one margin. For the first time, the chief felt that the people were behind him."

But the Narragansetts were still playing with a fixed deck. In 1998, before the West Warwick referendum, the General Assembly passed a law that gave it the authority to decide whether a casino proposal gets on the ballot. Previously, a town council resolution was enough. The General Assembly assured the Narragansetts that this was not to keep their proposal from voters, but to prevent shoddy, half-baked proposals from slipping through and spoiling the ballot. But the legislation means that the proposal may never get to Rhode Island voters, something that even Chafee assumed to be a right of the tribe. To get on the ballot in November, the casino proposal must clear the General Assembly with a two-thirds majority to survive the governor's veto.

Even to some casino opponents, Almond's veto threat is unjust. Patrick Kennedy opposes gambling and would prefer to see other economic development initiatives proposed for the Narragansetts. Nevertheless, his position, according to spokesman Larry Berman, is that "the issue should be on the ballot and should be voted on by the people of Rhode Island."

If the chair of the Senate Finance Committee, Michael Lenihan (D-East Greenwich), can influence his colleagues, the proposal won't make it. "I am opposed to the casino," he says. "I oppose it on fiscal grounds. It drains off disposable income and doesn't add value like manufacturing, which creates jobs and goods. Also, I oppose it because of the social problems and the rise in crime casinos create. The increased tax revenue that comes with a casino goes in large part to dealing with those problems. The state is responsible to all of the people, not just the Narragansetts."

The tribe's argument is that no matter what one might think about casinos, it's an issue for voters, not the General Assembly or the governor, to decide. Dufault can't imagine the General Assembly standing in the way. "That would be an unbelievable power grab," he says. "They can't deny the right of the people of Rhode Island to vote on this issue. That would be lethal in an election year. One thing people need to know is that the Narragansetts have been knocking on the front door since 1992, and every time, the state changes the locks."

State Representative Timothy Williamson (D-West Warwick), the bill's sponsor in the General Assembly, makes a similar plea. "All I can say to people who are on the fence about this is, even if you're against it, do you want to make the decision, or do you want someone else making it for you? I am not in the business of telling people how to spend their money."

The General Assembly, however, will not be swayed by this logic. Like Representative Lenihan, Antonio J. Pires (D-Pawtucket), chairman of the House Finance Committee, has pledged to be practical. "The only question from my point of view," he explains, "is, does it make sense to taxpayers?"

David Kenik

David Kenik, who co-chairs an opposition group called CasiNO! 2000, believes the General Assembly will kill the bill. If it doesn't, he supports the governor's right to veto it. The figures have become so twisted, Kenik says, that the public is not equipped to do the math. "I think that the General Assembly will realize that this issue is too complicated a matter to put to voters. Voters don't do their research. It's too sophisticated for the general public to figure out."

No matter how boggling the numbers may be, the Narragansetts have earned the right to let state voters figure them out. And even though the odds are not in their favor, on Tuesday afternoon, casino backers held a peppy press conference. At Spring Hill Suites -- a West Warwick hotel located a few hundred yards from the proposed casino site -- the tribe predicted the proposal's success in the General Assembly and introduced the casino's new financial backer, Boyd Gaming Corporation of Las Vegas, who helped the Choctaw Indians in Mississippi turn the Silver Star Resort & Casino into a profitable gaming enterprise. When asked if the partnership would help the proposal get past the General Assembly, Williamson could only say that Boyd's impeccable reputation won't hurt. What he meant was, if we're lucky.

Justin Wolff can be reached at jwolff[a]phx.com.

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