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Carlson: Having your cake

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Chris Carlson
Carlson Chronicles

The refusal of Idaho’s gaming tribes to abide by the 2002 initiative to distribute 5 percent of each year’s annual gross revenues to school districts surrounding the reservation, and to disclose how much each district receives, could lead to a lawsuit. That it could foster more animosity among Idaho’s largely white population is a foregone conclusion.

The essence of the debate is encapsulated by two phrases: a) The public has an absolute “right to know,” especially where its tax dollars are involved; and, 2) “trust, but verify!” In addition it reconfirms the old saying about true tragedy being the conflict between equally valid rights, not the conflict between right and wrong.

The immediate issue regards questions that have been raised about the Coeur d’Alene Tribe’s original pledge of support for the 5 percent commitment until recent years when some surrounding districts privately acknowledged not having received any more donations. The pledge, contained in the initiative voters ratified in 2002, was viewed as the key part of the quid pro quo that permitted the gaming tribes to utilize more slot-like machines in their casinos.

Idaho’s executive director of the State Lottery is supposed to monitor and enforce tribal compliance with this feature of the initiative but in reality the oversight is non-existent. There are two obvious flaws in this scheme.

First, without an annual outside audit by an independent and reputable auditing firm how does one know with any confidence what gross receipts really are from which the 5% is calculated against? Second, Tribes have taken the position that they do not have to disclose who the recipients of this tribal education largess are and how much they may have been granted. Ipso facto, how is the public to know that the original deal is truly being honored?

Some tribes (the Coeur d’Alenes and the Nez Perce) say “trust us” and the Lottery’s executive director says he does. To many that is a dereliction of duty and the state is stinting on its responsibility to monitor and enforce compliance. Other tribes, notably the Shoshone/Bannocks, say their compact with the state and its governor trumps the initiative. Since it does not reference the 5%, they do not have to contribute nor are they.

One historic role of newspapers is protecting the public interest by asking tough questions and demanding transparency by any governmental entity whether federal, state, local or tribal. Without access to the vital facts, the temptation to forget public responsibility and enhance private pockets can be overwhelming.

Additionally, tribal funds directed to school districts get co-mingled with the property taxes, bond proceeds and declining state funding that underwrite public education today. Hence it follows that no entity should be claiming a special privilege to withhold information from the public. Newspapers as a group believe, correctly, that the public’s right to know and have information verified trumps any special privilege.

It is this penchant for tribal governments to claim exemptions from state and federal laws that the rest of us must follow that is the source of much angst between otherwise peaceful “neighbors” hoping to co-exist harmoniously.

It is said we are a nation of laws and no one, not even a President, is above the law. Idaho’s failure to enforce its monitoring and verifying function only serves to further undercut that key principle to a successful and orderly democracy.

Likewise, when a U.S. attorney, like Wendy Olson, tosses up her hands and does not uphold the primacy of one’s property right, an essential underpinning of American jurisprudence, she is sending an unfortunate signal that a treaty signed in the 1860’s may take precedence over a bedrock right.

The issue in that instance is a tribe’s claim to an unfettered right to access “usual and accustomed” hunting and fishing sites wherever they exist whether on lands within reservation boundaries or “ceded lands” referenced by a treaty even if it means crossing another’s private property without having to ask the property owner’s permission. This is a recipe for conflict if there ever was one.

Compounding this escalating set of confrontational and conflicting circumstances is the continuing abdication by the state to ensure the primacy of state and federal laws. Indeed, if anything Idaho is acquiescing to a delegation of enforcement of some laws and regulations to tribal governments. Tribal water standards are sometimes more strict than those of state or federal agencies and fears are they may be applied not just on reservations but on adjacent lands.

This pattern of having their cake and eating it too could result in the unintended consequence of renewed calls for Congress to extinguish all treaties, eliminate dual citizenships and coerce assimilation into the American melting pot. Or it could lead to the extension of the Alaska model wherein tribes are enrolled in regional Native corporations governed by American business law.

The bottom line is this: Idaho’s tribes, both gaming and non-gaming, ought to recognize it is in their collective long-term interests not to claim exemptions from laws made for all, and focus on that which unites neighbors, not divide.

A native of Kellogg, a former teacher at Kootenai, and a former journalist, Chris Carlson served as press secretary to former Idaho Governor Cecil D. Andrus for ten years. He is the founding partner of the Gallatin Group, is now retired and he and his wife, Marcia, reside at Medimont.

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