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December-12-2007,
The Kahnawake Gaming Commission is Operating Within the Law in Canada...By Hartley Henderson

Various reports have been circulating lately in the U.S. and Canadian media questioning whether the Mohawks of Kahnawake are operating illegally by hosting gambling websites on their reserve. Some media seem to suggest that the Mohawks are simply running Mohawk Internet Technology (MIT) to be a thorn in the side of the Quebec and Canadian governments and do not have the right to operate as they do. The Mohawks naturally disagree, citing sovereign rights given them in the Canadian constitution. To understand the issue, one must first acquaint themselves with how and why the Kahnawake Gaming Commission (KGC) came into being, what rights they are afforded as a First Nation group within Canada and what exactly the reserve is offering in the way of gambling services.

Kahnawake is a native reserve just south of Montreal, Quebec. The community has a little less than 10,000 inhabitants and is under the full control of the Mohawk council. Like any independent jurisdiction, Kahnawake has schools, a transportation system, a police force, a fire department and social and community services all operated and funded by the Mohawk council. The Mohawk's rights to self government were granted to them in section 35 of the Canadian Constitution Act of 1982 which stated that all aboriginal treaties and rights are recognized and affirmed. Prior to 1982, the sovereignty of the aboriginal people of Canada was accepted in common law and was upheld by the Canadian courts. Hence the affirmation in the constitution assured the Mohawks and all aboriginal groups that any rules they were living by in the past were accepted going forward by the Canadian government.

Gambling has always been of interest to some of the Mohawks, but many others have rejected it. In fact in the 1990s there was an internal struggle among the Mohawks on the Akwasasne reserve which straddles the Canadian and U.S. border over the issue of gambling. While many Mohawks at Akwasasne felt this could be a vibrant source of revenue, other Mohawks on that reserve were vehemently opposed. In fact the issue led to a bloody conflict. At Kahnawake, on the other hand, gambling was not allowed to develop into a similar struggle. Clearly the leaders at Kahnawake were hoping to raise money for the reserve by way of a land based casino and decided to use a democratic process to decide the issue. They put the issue to a referendum and the motion for a casino was defeated in 1994 by a 724 to 627 margin. The close vote was a sign to the leaders of Kahnawake that the residents didn't necessarily have objections to revenue generation by way of gambling, they simply didn't want a physical casino on the reserve and the resulting social issues that often arise from one. So in 1996, the KGC was given the directive to oversee all gambling projects on the reserve and the obvious direction was to develop a system to promote wagering via internet servers. By doing so, the much needed revenue would be generated for the reserve without the concerns the inhabitants had with regards to a physical casino on the land.

In 1998 the Mohawk Council created Mohawk Internet Technologies. MIT is solely owned and operated by the Mohawks themselves and is overseen by KGC. While the two companies are connected, they operate independently to ensure that there is an arms length transaction between the regulatory commission and the actual company running the servers. KGC charges an annual licensing fee which goes to pay for the cost of regulation and monitoring, and MIT charges an additional monthly fee to the gaming operators which pays for server space and bandwidth. In exchange for the fees, the gaming operators can use the servers hosted on the reserve to run their gambling sites with the knowledge that as long as all gambling activity originates from the reserve it is legal. Unlike some other jurisdictions, MIT's technology is state of the art, offering uncapped bandwidth, high speed Ethernet connections at 100mps and full technical support. The Mohawks constantly monitor the bandwidth to make sure it is adequate and update the servers whenever necessary. MIT does its best to ensure that only reputable and reliable companies can operate on the reserve and it demands that the licensees provide a full audit of their operations to ensure that they are meeting strict regulations demanded by the reserve, which includes integrity of the software and proof that issues related to underage and problem gamblers are being addressed. MIT reserves the right to revoke any licenses if they are not satisfied the gaming companies are living up to their commitments. The company has had some licensees that were bad apples, as has been the case in all jurisdictions including Nevada, but for the most part MIT has been very successful in ensuring licensees are legit. In fact, at the 2000 GIGSE conference in Montreal an MPP from the Ontario government called MIT "a huge success".

Some reports stateside have suggested that the Canadian and Quebec governments do not believe the MIT servers are legal in Canada, but they are afraid to confront Kanawake over the issue after the disaster at Oka Quebec in 1990 where a policeman was killed following a dispute between the Quebec police and the Mohawks. The Oka crisis has been seen as a black eye to both Canada and the Quebec government and clearly both governments would prefer to work with the Mohawks than to confront them if possible. But if it is indeed the case, and the governments of Quebec and Canada won't tackle the issue of gambling at Kahnawake because of fear, one certainly wouldn't know that based on comments made by Chuck Barnett from MIT. Mr. Barnett told MajorWager readers:

"Despite what some writers not familiar with Kahnawake or its neighboring communities may suspect, we (Kahnawake) actually have a very robust and healthy relationship with the province of Quebec, and have agreements intended to ensure the continuing harmony with our neighbors."

Furthermore, in a phone call to the Ministry of Indian and Northern Affairs Canada, a representative for Chuck Strahl, the Minister of Indian Affairs and Northern Development, stated that they feel the issue of native gambling is strictly provincial and the federal government has no jurisdiction regarding what the Mohawks do on their own land. Needless to say, those two comments seem to be a far cry from the interpretation that was made by those who have suggested that the governments deem MIT as illegal, but won't confront them because of "fear".

Even further, in a recent case Mitchell Horne was denied a license by the Kahnawake Gaming Commission and Horne took up the issue with the Quebec Supreme Court. The court had the option at that time to address whether MIT was operating legally, but instead chose not to even consider it, essentially stating that the Kahnawake Gaming Commission was operating in its best interests as is afforded them under the gaming law. In doing so, the Quebec government indirectly acknowledged the Mohawks sovereign rights with regards to hosting gaming servers on the reserve.

It is true that the CBC recently reported a story claiming "Kahnawake's resident cybercasino giant fined for illegal gambling," but the story was misleading. While they claimed that Golden Palace, the largest cybercasino operating in Kahnawake, was fined for illegal gambling, the claim just wasn't true. Cyber World Group was fined, but they are not the same as Golden Palace, and more importantly they were not operating at MIT. Instead, Cyber World Group had an office in St. Laurent which is on the island of Montreal and that is what they were fined for - operating in Quebec proper. No one is questioning whether it is legal to operate a casino operation off of the reserve. Canadian law in that respect is clear as day. Only the provinces or agencies of the provinces can operate gambling venues. But throughout Canada there are casinos operating legally on tribal lands. This right is afforded to the natives by the constitution. Furthermore, the same rights are given to native gaming stateside, including internet wagering. The UIGEA provided an exemption to First Nation groups in the United States to provide internet gambling services. Unfortunately it appears the biased media stateside is content to overlook that double standard in an effort to try and implicate the Mohawks of Kahnawake. Regardless, the bottom line, as Mr. Barrett pointed out, "I can easily say there have been no policing actions from external police forces here relative to this or any other i-gaming related issue."

Smear campaigns, misrepresentations and hypocritical arguments may make some of the media feel better, but it doesn't change the fact that the Mohawks of Kahnawake have the sovereign right to offer various services on their own land including hosting gaming servers.

12-12-2007
Hartley Henderson
MajorWager.com
henderson@majorwager.com

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