PokerPulse Letters - Kahnawake Gaming Op Ed Piece

From: legal
To: letters@wpgsun.com
Sent: Sunday, March 09, 2008 4:52 PM
Subject: Kahnawake Gaming Op Ed Piece

Re: Joseph Quesnel, Why gaming is big on reserves - March 8/08


I was pleased to see Joseph Quesnel's op ed piece, Why gaming is big on reserves (March 8/08), although it wasn't especially helpful to maverick Mohawk entrepreneurs hosting Internet gambling sites in Kahnawake, Quebec. Although Mr. Quesnel prefaced his remarks with the phrase,"Without getting into the sovereignty issue," there just is no avoiding it. The U.S. Trade Representative (USTR) is currently in negotiations with eight countries, including the 27-member European Communities (EC), Japan and - wait for it - Canada over its right to continue asserting sovereignty by prohibiting remote gambling. In view of these negotiations, it would not be unreasonable for the U.S. to poke Canada in the chest about Mohawk servers which, after all, breach Canadian gambling laws as much as America's. (See LegalAtPokerPulse.com).

To recap: Canada's First Nations are not permitted to 'contract out' of Canadian law, which prohibits Mohawks from doing what they're doing, which is also why other Canadians aren't doing it, too. Nor do they enjoy the protection of U.S. Tribal Gaming Compacts. The fact that feds on both sides of the border have not yet prosecuted Kahnawake has more to do with the risk of creating an international incident between Canada and the U.S. than with offending the very narrow liberties afforded by First Nations self-government.

The decision may have been the result of economics. Both countries have discretion to prosecute based to a large extent on budgetary constraints. More likely, however, the U.S. has been acting in deference to Canada, which is still negotiating land claims in Quebec, which might also explain Canada's reluctance to pull the plug until now.

If Kahnawake wants to hang on to its no doubt profitable Internet enterprise, leaders should focus not on sovereignty but on clear evidence that shows gambling is a traditional native right. There is certainly no shortage of literature referring to games of chance practised by various tribes from ancient times onward. We document many of them at the Roll & Shuffle under First Nations.

"Indeed, two Tribal Councils in B.C. assert that gambling in the form of the traditional "bone" or "stick" game is an existing aboriginal right within the meaning of s. 35 (of the Constitution Act, 1982).

The Kootenay Indians, whose reserves and traditional lands straddle the international border in southern B.C., spell their gambling game "Katgahat" which means Kootenay stick game.

The Gitksan on the Skeena River still observe and maintain a traditional chieftain position whose Indian name is "Gambling Chief." His power and position of Chief derives from his skill and cunning in the bone game. This Chief participates equally with other Gitksan Chiefs of high rank in their potlach which is the Indian institution equivalent to a legislative council.

The Kitimats call the bone game "Lahal" and it is still practised as a cultural sport along the Fraser River involving whole communities competing against each other in teams. Traditionally, the Gitksans gambled for the right to win spoils of war which then became the common property of the house (or clan) of the chief who won it. The communal ownership of gambling winnings is in keeping with the fundamental and unique Indian philosophy of communal ownership of property." (Footnote from Submission to Task Force on Gaming on Reserves by Vina Starr and Micha Menczer at p. 174-175). More here.

Following the decision in Delgamuukw by the Supreme Court of Canada, courts will hear even oral testimony from native claimants and give it equal weight with jurisprudence. Here is a perfect opportunity to test that finding.

A second compelling argument in Kahnawake's favor is the very real incursion of global warming. It makes better sense environmentally for those inclined to gamble to do so online with an Energy Star-rated computer rather than by flying or driving to a brick and mortar casino, where the heat and lights blaze 24/7 and, in exotic locations like Costa Rica, almost all the profits leak away to foreign owners. Of the two arguments, the green one now gaining worldwide attention may be the most compelling. PokerPulse recently developed a Gamble Green campaign, in which we will donate a portion of our earnings to the David Suzuki Foundation to combat climate change. (See Green Gamble for excerpts from a variety of publications that explain global warming, how to measure a carbon footprint and how international trade facilitates solutions).

In the wake of residential school settlements that have literally taken out organized religion in Canada, there may be understandably little sympathy for First Nations claiming a special and exclusive right to such a lucrative business. But if they do the homework to show their business is both eco-friendly and an important traditional feature of a unique culture, Mohawks may be able to persuade the feds to open up Internet gambling in Canada once and for all.

Yours truly,

L.M. Murray
Editor
LegalAtPokerPulse.com and
The Roll & Shuffle
Gamble Green Headquarters
http://www.pokerpulse.com
Vancouver, Canada

 

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