Global observers of the American gaming market are often mired in its hyper-segmentation and the patchwork of laws that support it. Fractured into segments that include commercial gaming, racetracks, state lotteries and tribal casinos, the market is estimated to generate combined annual revenues of nearly $150 billion.
While lucrative, the American market can be hard to navigate after factoring in the recent repeal of a federal prohibition on sports betting, and the complexities brought about by the lack of an overarching federal framework to regulate all forms of gambling across the United States.
Of the 50 United States, 45 states (in addition to the District of Columbia, the U.S. Virgin Islands and Puerto Rico) offer lotteries, 29 states host some form of tribal government gaming, and 18 states offer commercial gaming.
For tribes, however, the federal government has played an inextricable role in nearly all aspects of life since the founding of the U.S. in 1776. Today, the federal government still holds a disproportionately larger role in tribal government gaming than in its two industrial counterparts. Despite having the inherent right to game, tribal governments are regulated by the National Indian Gaming Commission (NIGC) and require coordination with numerous other federal agencies, including, broadly, the Department of the Interior, its Office of Indian Gaming, but also the Bureau of Land Management and the Department of Justice, among others.
How did this come to be, and what do things look like now? More importantly, what does the future hold for Native American tribes?
Law of the Land
It would be impossible to understand tribal government gaming without acknowledging its origins as a tribal-led effort to rebuild and work towards self-reliance and self-determination. That effort followed almost 200 years of American federal Indian policy and case law that was designed to formalize, codify and clarify the relationship between the federal government, the Native Americans—who were on the land before European colonization—and the states.
“Thousands of years ago, what people know today as North America, Natives referred to as Turtle Island—and you would see us living in all directions,” says David Bean, chairman of the Puyallup Tribe and vice president of the National Indian Gaming Association. “After contact with the non-Indians, our way of life as we knew it was drastically impacted. These settlers came and occupied this land. They sought to take ownership, take possession of the land.”
“The United States existence, when it first won the war against Great Britain, was very precarious, and many countries around the world did not recognize United States sovereignty,” says Mary Kathryn Nagle, playwright and partner at Pipestem Law. To assert its sovereignty, the U.S. made agreements, or treaties, with tribal nations, to legitimize its place on the global stage.
“The idea that treaties somehow gave status or standing or land to indigenous nations is probably the main fallacy that exists today,” says Andrea Carmen, director of the International Indian Treaty Council.
Nagle adds, “The United States Constitution recognizes that once a treaty is signed and ratified by the Senate, it becomes the ‘supreme law of the land.’”
Establishing Tribal Sovereignty
“Many people view treaties as ‘special rights’ for Indians. They’re not rights given to Native nations,” but agreements between the tribal nations that signed them and the U.S. government, says attorney, activist and author Walter Echo-Hawk, a citizen of the Pawnee Nation of Oklahoma. “Treaties go both ways. This was a two-way street—it was a shared history.”
Making reference to “Indians” only three times, the U.S. Constitution has been open to interpretation by the court system, which at times has “sanctioned tyranny over a minority group in the midst of a democracy, and placed Indians under the absolute power of Congress at a time when Indians could not even vote,” says Echo-Hawk.
Despite this, tribes have asserted their will to survive in a system that was not created by or for them.
Court of the Conqueror
Beginning at the highest level, the U.S. Supreme Court shaped modern American federal Indian policy during the 1830s with the Marshall Trilogy, a series of three U.S. Supreme Court opinions principally authored by Chief Justice John Marshall.
The three opinions laid the legal basis for federal primacy in Indian affairs, which excluded the states from exercising their laws over tribes, and most importantly, established tribal governance authority, establishing the unique dual sovereignty structure that’s still in place today.
In the decades following the Marshall Trilogy, tribes and states tested the boundaries of federal and executive power over all tribal affairs, including land and lives.
A second trilogy of Supreme Court decisions, referred to as the plenary power trilogy, marked another era of thought and federal Indian policy. By most accounts, the decisions of the plenary power trilogy indicated a shift away from diplomatic responsibilities, and toward a custom of ignoring established treaties.
“A lot of people disregard our treaties, and say they’re a thing of the past—that they’ve been broken, so let’s forget about them. They would like to wipe away the treaty history of the United States,” says Echo-Hawk. “But that’s simply not how it works.”
A Path to Gaming
The policies that flowed from the plenary power trilogy were met in the late 1920s by the Meriam Report, a study conducted by the Institute of Government Research to assess the impacts of federal Indian policy. Among its many stark findings: “Several past policies adopted by the government in dealing with the Indians have been of a type which, if long continued, would tend to pauperize any race.”
Principally, the Meriam Report served as a wake-up call to lawmakers, and raised awareness around the structural impediments to the betterment of Indian nations.
“American federal Indian policy has always reflected an oscillation between two forces,” says Jonodev Chaudhuri, former chairman of the NIGC, and now a partner with the Quarles & Brady law firm. “On one hand, you have assimilationist forces, who I think, right or wrong, firmly believe that the best path forward for Indian country is to assimilate into broader American cultural norms. That mindset has created policies such as the assimilation policies of the late 1800s. It has led to policies such as the termination and relocation policies of the 1950s and ’60s. On the other side, there are the self-determination policies that flowed from the Meriam Report.”
Stemming from the Meriam Report are “the self-determination policies that are reflected in the Indian reorganization acts, such as the Indian Child Welfare Act and the Violence Against Women Act,” says Chaudhuri. “These self-determination principles all reflect the idea that, not only should tribes have jurisdictional authority over activities within their lands, but tribes themselves are best suited to understanding the needs and solutions for matters within their lands.”
It wasn’t until 1988 that the U.S. Congress clarified a critical part of that relationship by formally addressing gaming on Native American (Indian) reservation land with the landmark Indian Gaming Regulatory Act (IGRA).
“IGRA came on the heels of the California v. Cabazon decision,” says Chaudhuri. By the late ’80s, some tribes across the country were beginning to engage in forms of gaming, and tribes including the Morongo and the Seminole were beginning to test Congress’ authority over gaming. In the Cabazon decision, the U.S. Supreme Court “upheld the inherent authority of tribal nations to regulate gaming activities on their own lands.”
IGRA: Before & After
For many, the origins of tribal government gaming start with IGRA. But John Tahsuda, principal deputy assistant secretary of the Department of the Interior, says, “Before IGRA was enacted, the Department of the Interior had virtually the sole responsibility, other than criminal prosecution, for working with the tribes on any business, including what became Indian gaming.
“Coming out of IGRA, in its wisdom Congress decided to divvy up those responsibilities a little bit. But one of the important roles kept with (Interior), which was handled by the assistant secretary for Indian Affairs Office, was the land aspect of Indian gaming. And we can’t have Indian gaming without land, right?”
Chaudhuri says, “IGRA didn’t happen by accident. At the time, there were voices on both the pro-tribal sovereignty side as well as, frankly, the anti-tribal sovereignty side, trying to sway Congress to inject language in one direction or the other that reflected historical policy fluctuations.”
IGRA was a direct response to U.S. Supreme Court decisions confirming the inherent right of tribes to game. But even during its creation, there were institutional voices that wanted to “severely restrict tribal sovereignty, so that gaming—to the extent that it was conducted by Indian nations at all—would be primarily overseen by state governments.”
Fortunately, other voices, including those of the tribes and tribal leaders, strongly advocated that “the principles of self-determination and sovereign control over tribal economic matters needed to be maintained and retained in any Congressional action,” says Chaudhuri.
While the pro-tribal voices won out, Chaudhuri contends that IGRA still reflects “several compromises and several nods to folks who were coming from the perspective of advocating for state regulation. And those compromises are best reflected in the three classes of gaming that were created, and the role of states that IGRA carved out in the compacting process.”
It’s important, he says, to remember that “IGRA, first and foremost, states that the purpose of the statute is to support tribal self-sufficiency, tribal economic development and strong tribal government.”
Land Into Trust
One major point of contention in modern American federal Indian policy, one that’s complicated by IGRA, is the process of bringing land into trust.
Patrice Kunesh, former assistant vice president and director of the Center for Indian Country Development at the Federal Reserve Bank of Minneapolis, agrees. “We have almost 70 million acres of reservation land, and 60 million are in trust,” she says. “We’ve just had over a million acres being consolidated through the land buy-back process. But from my experience and my review, these lands are locked, and we cannot really tap into them because of so many bureaucratic processes and review by the Bureau of Indian Affairs.”
The process shouldn’t be daunting, says Chairman Ernie Stevens of the National Indian Gaming Association. “It’s a normal process that will continue to bring prosperity, and not just to Indian Country.” Pointing to recent figures, Stevens adds, “Indian gaming is supporting 700,000 jobs. That’s a whole lot of folks that may not be Indian, but they’re a part of the Indian gaming family.”
Complicating the matter, says Tahsuda, are “very limited provisions in IGRA that allow a tribe to look at other opportunities off their immediate reservation.” They’re referred to “off-reservation,” but as Tahsuda says, “There are three exceptions in IGRA which I don’t really consider off-reservation, but have to do with tribes that just got recognized, or were restored and never had the opportunity in recent times to have their reservation—tribes who had land taken illegally, and can present a land claim. Those are three concepts that Congress considered, and thought were fair to include in the act when they promulgated it in ’88.”
Moving Forward
“The future is not yet written,” says Chaudhuri. “The future could be dictated by advocates for more state control, whether it’s in the sports-betting arena or whatever the next policy discussion is down the pike. Or it could be driven by folks who understand—just as folks who understood the Meriam Report understood—that self-control, self-regulation and empowerment of tribal nations to truly exercise their sovereignty can govern a successful path forward, not just for Native nations, but for the American public as a whole.”
Part of that goal will be to tackle the myth of the “rich Indian,” says Stevens. In reality, he says, “The ‘rich Indian’ is the one who can go to the museum and get the real story, who can go to local tribal facilities and learn about their culture and their language, and go to language class and learn how to make their own tribal regalia.
“That’s the wealth. Our culture and our religion are things that are very important to us.”
