My Kingdom for a Casino

Walter Olson, Forbes, May 8, 2006

If you thought Jack Abramoff was suspect, look at the latest land claims filed by Indian tribes.

As everyone now knows, courtesy of Jack Abramoff, sleazy tactics abound in the fight over where and whether Indian tribes build casinos. Too bad more attention hasn’t been paid to one of the worst abuses: tribes’ filing of massive land-claim lawsuits against property owners, to be traded off in settlement in exchange for casino rights.

The new wave of Indian land litigation began in the Northeast but has now spread around the country. Claims by the Miami Indians spill over large portions of Illinois and Indiana. The Eastern Shawnee want 4 million mislaid acres in Ohio. New York’s Onondaga, Oneida and Cayuga have claimed the land under such cities as Syracuse and Binghamton. In Colorado the Cheyenne-Arapaho managed to top that with a filing for 27 million acres including Denver. Near Allentown, Pa. the Delaware Indians failed in a bid for a tract that includes Binney & Smith’s famed Crayola factory.

In virtually all these cases tribes have made clear that they would settle for a casino permit.

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How could this have happened? Until lately Anglo-American law sought a careful balance between the goal of restoring wrongfully taken property to its rightful owners, on the one hand, and the equally valid goal of securing everyone’s property against the danger that a claimant will show up some day to assert a speculative defect in title. Hence doctrines aimed at preventing old disputes from staying alive indefinitely: statutes of limitation, adverse possession, “acquiescence” in unchallenged political boundaries.

In a series of rulings over the past 30 years, however, the U.S. Supreme Court has decided that Indians are wholly different from other land claimants. Law professors have cheered: What cause is more romantic than that of dispossessed Indians? (Somehow owners of small farms in upstate New York never seem to merit the underdog label.) The rulings also constitute a stunning victory for a scrappy cadre of Legal Services lawyers; a few of these antiestablishment types have found themselves, over the arc of a career, gradually transmuted through their tribal connections into highly paid casino promoters, in a transformation worthy of a Balzac or Stendhal novel.

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