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OLCC Gives Unfair Break to Tribal Casinos
The Oregonian, Portland, Oregon Opinion By: Arnold Buchman Monday, June 21, 2004 The Oregon Liquor Control Commission, Oregon's hard-liquor monopoly, sells booze to bars and restaurants at markups ranging from 103 percent to 108 percent. Tribal casinos pay only a 5 percent markup. The OLCC's justification for putting Oregon's non-Indian businesses to such a huge competitive disadvantage? In return for the cheap liquor for their casinos, the tribes agree to abide by state liquor laws -- such as not serving people under age. Otherwise, says the OLCC, the sovereign casino-operating tribes could get their booze direct from distributors at the same price as the state and do whatever they want, free from state regulation. Assuming, for the sake of argument, that distributors, who clearly are subject to state law, could legally sell directly to unlicensed casinos, this reasoning ignores the state's authority under federal law (Title 18 USC Section 1161 and Title 28 U.S.C. -- 1360) to enforce its liquor laws against tribes operating casinos and individuals serving liquor in them. With respect to the Florence casino tribe, any claim to sovereign immunity from such state authority is specifically abrogated by the tribe's federal restoration act, 25 USC Chapter 14, Subchapter XXX-D, Section 714e. Either way, the tribe's "agreement" adds nothing to what the law already requires. In compacting with the Florence casino tribe, this governor has ignored the Article XV, Section 4(12) state constitutional prohibition of casinos. Interestingly, when same-sex marriages recently became an issue in Oregon, Gov. Ted Kulongoski found the need for the "clarity, uniformity and finality . . . that . . . can only be reached by a Supreme Court of Oregon decision as to whether Oregon's [marriage] law . . . violates the Oregon Constitution." He immediately asked the Attorney General "to identify the specific ways by which that important issue can most quickly reach the Oregon Supreme Court for final resolution." However, in claiming that the constitution's prohibition against casinos does not apply to him, Governor Kulongoski apparently has asked the Attorney General to block court consideration of this important constitutional issue with pettifogging procedural barriers. The governor' s pick-and-choose adherence to his Article V, Section 10 constitutional duty to "take care that the laws be faithfully executed" is again demonstrated by his giving the casino tribes an unwarranted free pass on the liquor markups -- part of the liquor laws to which their claim of sovereign immunity is specifically abrogated -- levied on everyone else. In doing so, the governor ignores yet another constitutional mandate: the Article I, Section 32 requirement that all taxes be uniformly levied. Tribal casinos play an increasingly significant role in the state's economy, seriously competing with local non-Indian owned businesses and dissonantly affecting commerce. They employ significant numbers of non-Indians and cater to a non-Indian clientele. As Supreme Court Justice Antonin Scalia pointed out in the United States Supreme Court's 1994 decision of Nevada v. Hicks, a state's sovereignty does not end at a reservation's border when the state's interests outside the reservation become implicated in what is happening within the reservation. The principle that Indians have the right to govern themselves requires "an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other." The unruly growth of casino gambling confirms that this need for accommodation goes both ways. It simply is time to recognize that casino operation is neither vital to a tribe's self-governance nor an essential attribute of its sovereignty. If, rather than kowtowing to paper sovereigns by gratuitously extending commercial advantages, the governor and his OLCC followed the provisions of the state constitution, they would acknowledge the spirit of the Article I, Section 20 proscription against "granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens." That might not encourage continued political contributions from the casino tribes, but it would be welcomed by Oregon's taxpayers and all of its citizens who adhere to the old-fashioned notion that the state's fundamental law applies to its governors. Arnold Buchman of Florence is a spokesman for a group opposing development of a tribal casino in the community. http://www.oregonlive.com/public_commentary/oregonian/index.ssf?/base/editorial/1087844959210541.xml |
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