By James E. Marino
You recently editorialized about an earlier piece written by Frank Parlato concerning the inequality between Indian-owned and operated businesses and those non-Indian businesses trying to compete.
In your editorial, you posed questions about how this unfair advantage enjoyed by Indian tribal businesses could be remedied. The solution to this problem was directly addressed by the U.S. Supreme Court in the 1998 case titled “Kiowa Tribe of Oklahoma vs. Manufacturing Technologies Inc. (523 U.S. 721).
In that case, a unanimous nine-judge court concluded that the court-created doctrine of legal and tax immunity for Indian tribes was created in a 1921 case for entirely different purposes and to protect small, dependent and nascent Indian tribes.
The justices reasoned that in this day and age, when Indian tribes and tribal governments own and operate huge business empires and huge and varied multi-million dollar corporate holdings, that application of this immunity doctrine in such cases, was clearly an improper anachronism.
In the end, however, six of the nine justices of the court opined that the problem these court cases created by allowing Indian tribal immunity to e extended to these business enterprises, should be fixed by Congress.
Justice Stevens, writing for the three judge minority, put it succinctly saying: “Why should an Indian tribe have greater immunity than the United States, all the several states and every foreign sovereign nation?”
The court did not stop at that point, however, and they suggested a simple solution to Congress in order to eliminate this unfair business largesse’. They suggested that Congress amend the Foreign Sovereign Immunity Act to include Indian tribes and their business enterprises. That federal law provides that any foreign sovereign nation like France, England, Japan or Costa Rica, who did business in this country, with this country or with any citizen of this country, is obligated to obey all federal, state and local laws, pay all the same taxes and is amenable to be sued in all the courts of the land for their misdeeds just like every other domestic busines.
That case was decided 10 years ago, and Congress has done nothing.
There are two primary reasons for this. First, it has been politically incorrect to curb any activities of Indian tribes, even when their true identity is suspect or they are nothing but a front for other non-Indian busines empires.
The second reason is that the vast sums of money available through gambling casinos and resulting from legal and tax-immunized businesses, allow cotributions to be made to Congressmen and senators, lobbyists and their ilk, invitably has prevented any ovement in Congress to fix this incredibly unfair advantage.
It cannot be overlooked in this contet that the landmark McCain/Feingold federal campaign reform, reporting and Contribution Limitation Act conspicuously omits any limitation on Indian tribal contributins to politicians, thus ensuring that nothing is likey to be done to limit tribal business exploitation of this outdated sovereign immunity doctrine to the detriment of other non-Indian businesses.
James E. Marino is an attorney in Santa Barbara, Calif.