California and the West : In This Poker Game, the Indians Hold the Best Hand

SACRAMENTO — For starters, let’s keep in mind the California Supreme Court did not rule that the Indian gambling initiative is “unconstitutional.” That is, unconstitutional in the common understanding of the word--in violation of the Constitution framed by our nation’s founders.

Nobody who voted for the measure need feel like a duped dummy, snookered into supporting a policy that challenges cherished liberties.

If you thought it was a good vote last November--and an overwhelming 62.4% of the electorate did--it’s still a good vote.

All the California Supreme Court ruled last week was that Proposition 5 violates our Mickey Mouse state Constitution, a massive mishmash of minutiae.

Actually, the Legislature acts “unconstitutionally” every spring when it fails to pass a budget by the state constitutional deadline of June 15. But you don’t hear any zealous prosecutors threatening to send in marshals to seize the lawmakers’ vote buttons or state cars--as U.S. attorneys have been threatening the Indians’ slot machines.

California’s cluttered Constitution bans “casinos of the type currently operating in Nevada and New Jersey.” That’s language from the 1984 constitutional amendment creating the lottery, which made state government California’s biggest gambling house. And it’s just the latest legal hammer used to whack the Native Americans.

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In truth, the Indians--who operate more than 40 casinos in California--could have avoided the constitutional language. They saw the threat and walked smack into it anyway. They panicked, some of their political consultants say.

The Indians underestimated their wide support among a sympathetic public and decided last year not to push for a state constitutional amendment to repeal the anti-casino language. They would have needed to gather 693,230 voter signatures to qualify that initiative for the ballot.

Instead, they lowered their sights and went for a statute initiative that required only 419,260 signatures--even though consultants warned them that a mere statute probably would violate the state Constitution. Indians reasoned that if the measure passed, it at least would send a powerful message to the governor, the Legislature and Washington.

They wound up collecting 1.2 million signatures in only three weeks.

“We decided to just go for it and not look back,” recalls Mary Ann Martin, chairwoman of the Morongo band of Mission Indians, when asked why tribes pushed the constitutionally suspect Prop. 5. Despite the anticipated court reversal, she says, “I think we won a lot. We had an opportunity to educate the voters like never before. They now know our story and our experience. We showed the Legislature and the [other] powers our strength.”

The Morongo band near Banning operates one of the biggest Indian casinos in California. “It has allowed us to provide social services for the tribe and simple things most people take for granted--like sanitary drinking water,” Martin says. “Nobody’s on welfare. A lot of people were. . . . We’re diversifying. We’ve got a Shell station. An A&W.; Now we’re looking at a truck stop.”

Martin is one of the tribal leaders currently negotiating with Gov. Gray Davis and legislative leaders in an effort to settle the Indians’ gambling future. This week is critical. Any deal must be struck by Sept. 10, when the Legislature recesses for the year.

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Here’s the play:

The Indians are collecting signatures for a Prop. 5 repeat--this one a constitutional amendment. It probably would pass big. But they’d rather save the money. The tribes’ last ballot venture cost them roughly $70 million to fight off Nevada casinos that feared competition.

Gov. Gray Davis is offering this deal: He and the Legislature will place a constitutional amendment on the March 7 ballot exempting Indians from the casino ban. Playing good cop-bad cop, he’ll also urge the Clinton administration to call off the prosecutors who are threatening to shut down the casinos. (The last thing Vice President Al Gore needs is for the commander in chief to order a modern-day cavalry charge on California’s Indians.)

In return, Davis insists that the Indians drop their initiative. And they must negotiate tribal gambling compacts--i.e. treaties--with him, as called for in federal law. Then the compacts must be ratified by the Legislature.

Davis’ main concern is retaining gubernatorial power. The top priority of Democratic legislative leaders is guaranteeing union organizing rights. Indians are resisting the surrender of sovereignty.

The political establishment should back off, realizing that at this century’s turn, they can’t beat the Indians.

But the Indians also should grab the best deal they can and run with the money. This time we’re talking about billions, not beads.