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If you were to look at the tribe’s history as a time-lapse video, it would be mind-boggling, the changes that have happened in a relatively short time,” says Kari Smith, COO and general manager of Cache Creek Casino Resort, owned by the Yocha Dehe Wintun Nation of California.

During the Gold Rush of the mid-1880s, the Yocha Dehe Wintun were forced off verdant ancestral lands onto a barren rancheria, where they struggled to survive. In the 1940s, they regained part of their land in the Capay Valley. In the 1980s, they opened a modest bingo hall.

Today, the tribe of fewer than 80 people operates a multimillion-dollar casino resort, a winery and a farm. It’s the biggest employer in Yolo County, providing livelihood to some 2,500 people, tribal and otherwise.

Far from the bingo hall of old, Cache Creek—located about halfway between San Francisco and Sacramento—has a 75,000-square-foot gaming floor, a four-diamond hotel tower with a second in the works, a spa, two pools, 10 restaurants, a 700-seat event center and an 18-hole championship golf course.

Today, Cache Creek is “shifting from being casino-centric to a more resort-amenities property,” says Smith, “focused on making sure we continue to have not only the best casino product, but can attract all kinds of travelers.” The addition of 31,000 feet of “functional, flexible” meeting space will fill a regional need for smaller-group convention space, and allow the resort’s marketing team to book groups from well beyond the Sacramento Valley.

It seems that what happens in Vegas—the growth of amenities, far beyond gaming—happens at tribal resorts, too. But which attractions make the most sense, and offer the greatest return on investment?

Gaming First

Unlike in Las Vegas, at many tribal resorts, gaming remains the big draw and dominant revenue source. “We focus first on people who enjoy gambling,” says Smith, “and add amenities that will be decision-makers in winning their decision to come here.”

WinStar World Casino and Resort, the largest casino in the world

The same can be said of the biggest tribal resort in the U.S.—the biggest casino, period—WinStar World in Thackerville, Oklahoma. WinStar, which also started as a bingo hall, now also attracts visitors from around the world, as well as the immediate vicinity, including Arkansas, Louisiana and Texas (the latter still has no legal casinos).

Clearly, WinStar caters to gamblers, with a 300,000-square-foot casino floor, divided into nine plazas representing Paris, Beijing, Rome, Madrid, London, Vienna, Cairo, New York and Rio.

According to General Manager Jack Parkinson, gaming drives visitation, with concerts second, “but WinStar patrons have diverse motivations for visiting—the common thread is that each is looking for a solid experience. Gaming and non-gaming support each other in meeting today’s patrons’ expectations.”

To be sure, for many tribes, gaming is the cornerstone—the foundation that’s enabled them to grow and prosper. Harrah’s Cherokee in North Carolina, which had its roots in a bingo hall and opened as a video-poker-only facility in 1997, is now in the midst of a $300 million expansion that will add a fourth hotel tower, an 85,000-square-foot convention center, a sportsbook, additional retail and dining and other amenities.

“It’s an amazing thing, to see a hotel tower going up so quickly,” says Brian Saunooke, regional vice president of marketing for Harrah’s Cherokee, which also runs a sister resort in Murphy, North Carolina, about 50 miles away. “We currently have a little less than 20,000 square feet of meeting space. Our new conference and convention center is going to open up a lot more opportunity for us to host bigger trade shows, and our sales team is out in the markets to get those confirmations for 2021 and beyond.”

One study of the restaurant industry divided food-and-beverage outlets into “amenities” and “attractions”—the former being types of eateries that are expected, the coffee shop or burger joint, and the latter acting as differentiators.

At Harrah’s Cherokee, “consideration is given to the traditional offerings you see at other casino resorts,” says Saunooke. “We’ll do research within our markets, but also look at the industry nationwide, what’s working in other areas that might work here. Beyond that, we do a lot of listening to our customers, not only through surveys, but also one-to-one relationships they have with our employees.”

Second to gaming, the resort’s hotels are most in demand, “so much so that we have to turn away quite a bit of business,” says Saunooke—hence the decision to invest in another tower, which will add more than 1,800 guest rooms and suites.

Market research also taps potential guests, says Saunooke, “to better understand their preferences, the price points that should be represented, the brands they’d like to see.”

Gaming generates “the lion’s share of profits” at Cherokee, but non-gaming and gaming go hand in hand.

“A significant percentage of our business comes from customers who visit the resort, stay in the hotel and go to a concert, then play on the slot machines or table games,” Saunooke says. “So an in-demand hotel or concert adds to a busy casino floor, and a busy casino floor boosts the restaurants and retail shopping. They work together.”

A Buyer’s Market

In Las Vegas, according to the Center for Gaming Research at the University of Nevada, Las Vegas, the shift to non-gaming started in 1999. By 2017, Strip casinos’ non-gaming revenue had risen from 52 percent to 66 percent.

Casino Del Sol’s 5,000-seat AVA Amphitheater

While tribal resorts are reaping more revenues than ever from non-gaming, Kimberly Van Amburg, CEO of Casino Del Sol in Tucson, points out that the Vegas model doesn’t always apply in Indian Country.

“Vegas is an international resort and national conference destination; accordingly, hotels and restaurants and conference centers grew up around it to service the millions of people who visit every year. Sometimes people point to Vegas and say a tribal casino in Minnesota is going to follow that model, percentage-wise. Well, not necessarily.”

Casino Del Sol, owned and operated by the Pascua Yaqui Tribe, had its origins in a bingo club that opened in 1982. Today, it’s a destination resort in the Sonoran Desert, complete with a golf course, a spa, a ballroom that doubles as conference space, and the 5,000-seat AVA Amphitheater. In 2019, the tribe added an RV park and the 151-room Estrella hotel, with a pool and water slide, fitness center, arcade and additional meeting rooms.

Whenever the tribe ponders an addition, says Van Amburg, “We ask two things: will it be profitable on its own and, will it enhance gaming? When the answer to both questions is yes, we’re much more likely to move forward with the project. The bowling alley, movie theater and golf course are profitable, but they’re intended to bring people into the gaming facility.”

Deana Scott, CEO of Reno-based Raving Consulting, avoids any generalities about non-gaming in tribal resorts. “In some markets, you can differentiate through additional amenities, but in others, it doesn’t make sense. I’ve been to properties with 100 games and a snack bar, and they’re doing just fine. There’s no reason to add a hotel or table games if the market doesn’t demand it.”

While each added amenity must be financially viable, the loss leaders or break-evens of old—affordable buffets, for example—aren’t out of line, if they support overall profitability and the guest experience.

“The last thing you want to do is build a buffet thinking it’s going to make money, and it loses $100,000,” Scott says. “But you can go into it saying, in our market, from a strategic point of view, a buffet is a marketing opportunity, and we’ll justify the cost as a marketing expense.

“In the early days, it made a lot of sense to have all these loss leaders, because gaming was such a big revenue driver. But in today’s competitive environment, a more mature, more demanding customer is looking for other reasons to make a trip. A lot of homework has to be done before throwing out the newest amenity. It has to fit into the overall mix, and you have to justify it financially.”

According to Saunooke, developers and marketers “need to make sure we have each step of a customer’s journey considered, so the different amenities flow together naturally and create a higher value proposition for guests who are deciding where to spend their discretionary income. Specifically, Cherokee is creating that overall package for customers who are looking for a lot of different things to do on a trip, not just play the slot machines.”

“We’re no longer in the business of putting a nickel in a machine and pulling a slot,” according to Greg Sarris, tribal chairman of the Federated Indians of Graton Rancheria, who own the Graton Resort & Casino in Sonoma County, California.

In a January interview with the San Jose Mercury News, Sarris said, “Casinos have evolved to serve everyone, even people who don’t gamble. We want everyone to feel welcome here.”

Q&A: Suzanne Trout
Chief Marketing Officer, Foxwoods Resort Casino

Tribal Government Gaming: Non-gaming is the dominant revenue-generator in parts of the commercial casino world, notably in Las Vegas. Is that also true of large-scale tribal resorts, such as Foxwoods?

Suzanne Trout: The dominance of non-gaming revenues in Las Vegas took time, as new resort amenities were built out and the audience for non-gaming grew. The same is true for Foxwoods; the transition is happening over time.

But in local and regional markets, our more limited audiences still keep gaming revenues on top. We’re finding that through expanding our resort offerings, we’re increasing the leisure/retail customer mix in our hotels; from social and digital campaigns to new brand positioning and initiatives, attracting new resort guests is a priority.

Foxwoods has a long list of recreational activities: a zip line, virtual-reality amusements, TopGolf, kart races. How much research goes into choosing what to invest in?

We conduct market research before adding amenities, keeping in mind that any one of these attractions on its own is not as significant as the whole. Foxwoods’ expansive campus has afforded opportunities to really differentiate our resort, such as the Tanger Outlets. The Mashantucket Pequot Museum & Research Center, the largest Native American museum in the world, is next-door, as well as two championship Troon golf courses.

The beauty of a resort with this much to offer is our guests can create their own experiences. Some come to see A-list entertainers such as Darryl Hall and John Oates or Kesha. Others visit for a night out with dinner and blackjack. We’re seeing more group getaways—golf, spa, shopping—and guests celebrating special occasions.

How does it all contribute to your hotel occupancy?

We’ve seen occupancy grow over the years. Demand remains high, and we’re seeing more diversity in who’s booking, including groups, families, and consumers traveling from further distances.

On August 13, 2013, Rick Hill, chairman emeritus of the National Indian Gaming Association (NIGA), was asked to present a history of tribal government gaming and the role that NIGA has played in protecting and promoting gaming, both before and after the passage of the Indian Gaming Regulatory Act (IGRA) in 1988.

At the time, IGRA was 25 years old, and Chairman Hill’s speech was both a renewed call to action and a prayer of gratitude to those who had created and sustained NIGA across the decades.

While his presentation was not recorded, this article is based on extensive written notes and a copy of the remarks made by Chairman Hill that day. I hope those who knew Rick Hill will hear his voice here, and those who didn’t can appreciate the legacy of NIGA through his words.

After an introduction by Sheila Morago, executive director of the Oklahoma Indian Gaming Association (OIGA), who invited him to give this address, Chairman Hill’s speech started out in a way that reflected his humility and humor. In only a few short words, he compelled those who were standing in the back of the room to put down their phones, move toward the podium, and listen.

“B-23… I-19… O-31…

“Hello, everyone, I thought Sheila asked me here tonight to call bingo numbers. The Catholic Church is still mad because we stole their sacred sacrament, bingo.

“Some of you may remember (poet and musician) Gil Scott-Heron, when he said, ‘I had said I wasn’t gonna write no more poems like this. I had said I wasn’t gonna write no more words down about people kicking us when we’re down. But the dogs are in the street. The revolution will not be televised.’”

As NIGA (#indiangaming1985) celebrates 35 years in 2020, we simultaneously mourn the loss of Rick Hill, who would undoubtedly have had the perfect words to share with Indian Country this year at the 2020 NIGA Indian Gaming Trade Show & Convention.

In what is sure to be one of many tributes to Chairman Hill, this article is meant to carry honor to him, to his family and to the Oneida Tribe, and to highlight the sacrifices they all made so he could dedicate himself to the work required to sustain NIGA across the decades.

NIGA’s Roots as a BIA Advisory Group

Frank Duscheneaux is considered by many to be the “father of IGRA,” (along with IGRA’s “mother,” Virginia Boylan). He believes it was Hazel Elbert who first recognized the need for a tribal advisory group to advise the Bureau of Indian Affairs (BIA) on Seminole bingo and other forms of gaming being offered across Indian Country. Elbert started in 1967 and worked her way up to acting commissioner at the BIA. According to Duscheneaux, in the late 1970s, Elbert “put together a tribal advisory group, and the tribal representatives there took over a meeting in Oklahoma City.”

NIGA Chairman Emeritus Rick Hill with current Chairman Ernie Stevens

Rick Hill’s 2013 speech picked up the narrative from there. He recalled how the BIA “called an emergency meeting to gather facts about high-stakes bingo after a lot of complaining by the states. Mark Powless was elected chairman of what was being called the National Indian Gaming Task Force. Shortly after that, Senator Daniel Inouye organized a meeting to tell the tribes that if we do not get organized, we are going to get rolled by the states. Powless went coast to coast, visiting tribes to get recommendations for the task force.”

Hearings were soon held by the Senate to assess the impact of high-stakes bingo, which was estimated to be generating $100 million for tribal governments by then. According to Chairman Hill, “Tribes got tired of being the ‘think tank’ for the BIA, so tribal leaders convened a national meeting to discuss the need for protective legislation, and to establish the National Indian Gaming Association.”

NIGA’s first meeting in 1985 was a humble event: the first NIGA board and a group of tribal leaders met in a single hotel room with two small beds, since there were not sufficient funds (or participants) for a conference room.

But tribal gaming was expanding rapidly, and NIGA soon had 50 member tribes and provided testimony to Congress about tribal regulatory authority and the purposes of tribal gaming. At that time, NIGA also established an alliance with the National Congress of American Indians (NCAI) committee on Indian gaming.

After the 1987 Cabazon decision clarified tribal regulatory authority, and the 1988 Indian Gaming Regulatory Act provided a remedy for Johnson Act restrictions on slot machines through the vehicle of a tribal-state compact, the state of Minnesota signed the first compacts that, according to Rick Hill, “kept the focus on the economics of it—jobs.” Fittingly, the first two chairmen of NIGA were from tribes in Minnesota.

After Hill was elected NIGA’s third chairman in 1992, NIGA hired its first full-time staff, starting with Tim Wapato as the first executive director, Gay Kingman as director of public relations and Chuck Robertson as policy analyst. There were no records, no office beyond a kitchen table, and NIGA was in debt with no budget.

As Hill described it, “We had to build NIGA at the same time we maintained the fight. We set up the NCAI-NIGA Task Force, and created a board with 12 regions, two from each region. It was the perfect size, since we had exactly 12 chairs in the room. At that time, we decided that the mission of NIGA would be to promote tribal sovereignty and protect the principles of IGRA.”

Early Challenges

Once NIGA hired staff, Hill recalled, “Tim Wapato had to travel to many of our member reservations to ask for contributions. Early donations came in from Shakopee, Mashantucket Pequot, Oneida, Morongo, Prairie Island, Sycuan, Fort McDowell and SoDak. I remember that SoDak (an early equipment manufacturer, later bought by IGT) gave NIGA a big check to keep the doors open, but there were no cellphones, so I had to wait in the hotel room to see if we were going to get the check or not. I was afraid to leave, in case the call came while I was out of the room.”

Of course, at the same time NIGA was building its operations to protect tribal gaming, local governments and commercial casino operators were pushing for legislation to limit tribal jurisdiction or tax tribal gaming.

Long before Donald Trump became known for his one-liners, NIGA defeated two proposals that NIGA staff aptly named the “Harper Valley PTA legislation,” which would have included local governments in the tribal-state gaming compacting process, and the “Donald Trump Protection Act,” formally the congressional attempt in 1997 to extend the Unrelated Business Income Tax (UBIT) to tribal gaming.

As Hill recalled, “This legislation would have imposed a federal tax at a rate of 35 percent onto tribal governments engaged in Class II or Class III gaming. NIGA led an uprising from Indian Country to defeat the measure by one vote in the House, based on the fact that governments cannot tax other governments.

“Congressman JD Hayworth from Arizona stood by the tribes and Congressman Charlie Rangel said, ‘Is General Custer in the Room? Why are we going after the Indians?’”

In order to differentiate tribal gaming from corporate gaming during the UBIT threat, NIGA crafted a powerful and award-winning advertising campaign to defeat the measure with the slogan, “We Build Schools, You Buy Yachts.”

In addition to managing the legislative blowback after IGRA, NIGA attorneys, tribal gaming commissioners and tribal casino operators formed the NIGA-NIGC MICS (minimum internal controls) Taskforce to support the creation of a new federal regulatory agency, the National Indian Gaming Commission. Five years after IGRA, in 1993, Tony Hope was appointed the first NIGC chairman and Jana McKaeg and Joel Frank were appointed the first NIGA commissioners.

That same year, the Mashantucket Pequot Tribal Nation signed the first gaming compact to include revenue sharing. In the 1996 Seminole decision, the Supreme Court strengthened states’ rights and “gutted some parts of IGRA.”

In another blow, Proposition 5 passed in California in 1998, and was then overturned. In his 2013 speech, Chairman Hill summed up this decade of the backlash against tribal gaming with his typical flair: “The federal and state governments are not afraid of organized crime, they are afraid of organized Indians.”

Federal Studies a Threat

By now, Chairman Hill’s historical overview was on a roll. He outlined the two years of travel and outreach that he and then-Executive Director Jacob Coin spent following the National Gambling Impact Study Commission (NGISC), to be sure they included the voices of Indian Country in its final report.

Then, he thanked those tribal leaders who continued to fight for tribal rights through a second study commission sponsored by the states: the Public Sector Gambling Study Commission, where he was appointed as a member.

These two study commissions revealed the breadth and depth of the opposition to tribal gaming. A partial list of opponents included the National Governor’s Association, the Western Attorneys General, multiple city mayors, the Leagues of Cities, religious groups, anti-Indian groups, commercial gaming companies in Las Vegas and New Jersey, Donald Trump, the National Coalition Against Legalized Gambling and the dog and horse racing industries.

These were busy times at NIGA, with Chairman Hill and others offering support for Proposition 101 in California, Proposition 202 in Arizona, and for the tribes in New Mexico as they threatened to block the interstate highway to protect their rights.

Beyond gaming, NIGA also supported the battle to unseat Senator Slade Gorton in Washington state, who pushed for “means testing” of tribal governments as a way to limit their federal rights and the government’s treaty obligations. Gorton’s defeat was a high point for Indian Country, and underscored NIGA’s philosophy that there was great strength in working together.

Again, Chairman Hill’s brilliant sense of humor as he retold these stories summed up this era in NIGA’s history perfectly: “You want a lifetime of work? Educate the white man about tribal sovereignty.”

Post-NIGA Activity

On a high note, with victories in California, Arizona and Washington, Chairman Rick Hill retired from NIGA in 2001, after nine years of nonstop travel and testimony. In a testament to his leadership through difficult times, he was the first tribal leader named to the American Gaming Association’s Gaming Hall of Fame, and was personally inducted by the AGA’s founder, Frank Fahrenkopf.

In the NIGA election of 2001, Ernie Stevens, Jr. was elected to follow Hill as chairman of NIGA. Like Hill, Chairman Stevens carries the legacy of all the NIGA founders who came before him. In closing his speech in 2013, Chairman Hill made a spontaneous roll call of those NIGA board members with whom he had worked. This list is not comprehensive, but reflects the names he mentioned spontaneously that day:

“Keller George, Jacob Viarrial, Clinton Pattea, Mark Powless, Jerry Hill, Frances Skenandore, Milo Yellowhair, Tim Martin, Tom Acevedo, Chairman Milanovich, Stan Crooks, Kurt Bluedog, John McCoy, Marge Anderson, Wendall Chino, Audrey Kohnen/Bennett…Steve Geller, Frank Fahrenkopf, the NIGC chairs, Tony Hope, Phil Hogen, Monty Deere, Harold Monteau…” And the list goes on….

Of course, Hill’s engagement with tribal government gaming did not end when he retired from NIGA. Rather, his work continued to reflect the best of tribal economic development and diversification. He played a lead role in the creation of the Four Fires hotel project in Washington, D.C., and the Three Fires project in Sacramento. He returned to tribal leadership as elected chairman of the Oneida Tribe back home in Wisconsin, and he continued to support his successor at NIGA, Stevens, his lifelong friend and athletic rival.

In 2019, now NIGA Chairman Emeritus, Hill was as busy as ever. One of his most high-profile projects was securing funding for a documentary called Bright Path, about Jim Thorpe, a Sac and Fox tribal member and Olympic champion, arguably the greatest athlete who ever lived. As a humble leader whose style was to lift up others, Rick was relentless in his pursuit of support for the film. He could be seen wearing (and distributing) sweaters with the letter “C” on them, in order to remind others that Thorpe attended Carlisle Indian School, where his athletic prowess was first on display.

In spite of these uplifting projects, Rick saw clearly that popular and political support for tribal sovereignty was never secure, and the legal attacks would keep coming, whether on tribal identity and families (the Indian Child Welfare Act) tribal land claims (the Carcieri decision), or tribal voting rights. As recently as the NIGA Tradeshow in San Diego in 2019, he asked me once again the one question that frames them all: “How can tribes expect to get a fair trial in a court that sits on stolen land?”

Rick Hill passed away on the Oneida Indian Reservation on December 13, 2019. Indian Country will never be the same. His humor, brilliance, generosity and wit were the foundation of NIGA during a turbulent time in tribal gaming’s history. They are an enduring legacy, both for those who knew him and those who came after, but continue to benefit from his tireless commitment to tribal rights.

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.”

As tribes across the country work to leverage gaming resources into economic diversification projects, the importance of the economic development corporation cannot be overemphasized.

Although there are a variety of creative approaches to structuring economic development, there are common themes behind some of the most successful: persevering through early struggles and setbacks before finding the right balance between tribal oversight and corporate independence, and the right development strategy, one that takes advantage of inherent advantages or opportunities.

Native American economic development entities are typically governed by a board of directors appointed by the tribal council. Councils approve of overall strategic plans and levels of capitalization and dividend policies. However, day-to-day operations, including personnel matters and investment decisions, are most effective when left to the corporate board and staff. Quarterly reports keep the council informed.

Board member requirements are varied. In some cases, all board members must be tribal council members, while in others tribal council members and officials are not permitted to serve on the board. Frequently, tribes require a mixture of council persons, other tribal members and outside business or economic development professionals.

The two most popular corporate structures are tribally chartered corporations under Section 16, and federally chartered corporations under Section 17. The Section 17 structure has been recommended, due to the perception that it creates a more solid legal base, although that perception appears to be fading, as tribally chartered corporations have been very successful in attracting financing and accessing grants and government contracts. The disadvantage of incorporating as a Section 17 is that it can be a lengthy process to get approval from the Department of the Interior, and it is typically more expensive to establish with respect to legal fees.

If properly structured and strategically developed, Native American economic development entities can successfully overcome challenges—even tribes in remote locations with limited resources and local markets.

TRAILBLAZERS

Mandaree Enterprise Corp.

The Mandaree Enterprise Corp. (MEC) is a tribally owned company, established in 1990 and funded in 1992 with $32,000 from the Mandan, Hidatsa and Arikira Nations (MHA) of North Dakota.

4 Bears Casino & Lodge in North Dakota

From 1992 until its “graduation” in 2001, MEC was in the Department of Defense Mentor/Protégé program with Northrop Grumman Corp. Through this program, MEC received technical and engineering assistance and business/personnel management development.

Throughout the next several years, MEC put various multimillion-dollar contracts in place. MEC’s primary business initially was fabricating cables, wire harnesses and printed circuit boards for front-line military weapon systems. In 1998, Mandaree Enterprise diversified into Information Technology Services; clients include the Social Security Administration, Environmental Protection Agency, Department of Agriculture and Data Dimensions Corp.

MEC has also taken what it learned from the mentor-protégé relationship with Northrop Grumman and applied it in its very own, native-focused mentor-protégé program.

Mille Lacs Corporate Ventures

Mille Lacs Corporate Ventures (MLCV) was created by the tribal government of the Mille Lacs Band of Ojibwe, to manage the business affairs of the tribe. It is one of the earliest Native American economic development entities, having been established in the early 1990s as a tribally chartered corporation under Title 16. The corporation’s six-member board of directors is appointed by the band’s chief executive, but ratified by the Band Assembly.

The non-removeable Mille Lacs of Ojibwe has a rich history and culture that dates to a time before Minnesota became a state. Since that time, the language, culture, traditions and beliefs have been proudly and indelibly woven into the fabric of the region. As explained by Joseph Nayquonabe, CEO of MLCV, “Ojibwe people have long influenced and contributed to all aspects of life—art, cuisine, nature, fashion, music, education, spirituality and the economy. These economies developed based on countless generations of learning from each other, and for each other. That continues today with Mille Lacs Corporate Ventures, generating economic stability and opportunity for all people in the region.”

As a company, MLCV has carefully invested time, talent and resources to build a social and economic foundation. It has amassed a portfolio that spans five industries—gaming, hospitality, marketing and technology, in-district investing in and around the reservation, and government contracting.

Some notable businesses within its portfolio are Grand Casino Mille Lacs (above) and Grand Casino Hinckley, two of Minnesota’s premier entertainment destinations; the InterContinental St. Paul Riverfront Hotel; the DoubleTree by Hilton Downtown St. Paul; the DoubleTree by Hilton Minneapolis Park Place; and the Embassy Suites by Hilton Oklahoma City Will Rogers Airport—all managed by Maadaadizi Investments, a wholly owned subsidiary of MLCV. Maadaadizi was formed to provide a full-service investment platform to accelerate economic diversification in acquisition, development and ongoing management.

MLCV’s enterprises help fulfill its mission: to improve the quality of life of Mille Lacs Band members, East Central Minnesota and the communities in which they do business.

Ho-Chunk, Inc. (Winnebago Tribe of Nebraska)

Tribally chartered in 1994, Ho-Chunk, Inc. (HCI) has a clear mandate to separate business decisions from political considerations, as the corporation’s founding document states: “Ho-Chunk, Inc. was established so that tribal business operations would be free from political influence and outside the bureaucratic process of the government.”

HCI’s five-member board of directors currently contains two Tribal Council members and three at-large members. Tribal member Lance Morgan is the original and current chief executive officer. The corporation provides the Tribal Council with an annual report, audited financial statements and an annual development plan. For its part, the Tribal Council appoints board members, formulates the long-term development plan of the corporation and approves annual operating plans. This separation of business from politics frees tribal council members to focus on questions of governance, and enables the business experts at HCI to focus on maximizing the profitability of the corporation.

Initial capitalization (first three years, 1995-97) was provided by casino revenues at a total of $9 million, and HCI was permitted to reinvest 100 percent of its profits for the first five years. As a result, HCI developed a diversified investment and development portfolio of active and passive investments, both on and off the reservation. Initially, HCI targeted opportunities where the economic conditions were the most favorable, which generally meant off-reservation, in metropolitan areas.

Once HCI created a stable income stream from its off-reservation investments, it was able to leverage its existing businesses to create solid on-reservation development. This wasn’t simply a matter of money, but also the development of management expertise. It began its development activities in the franchise business (hotels), so that it could develop managerial talent under the tutelage of an experienced franchiser and eventually move to more sophisticated business activities. This took place as HCI exited some of its hotel investments and focused on its distribution, internet, technology and retail businesses.

S&K Technologies, Inc. (Salish and Kootenai)

Grey Wolf Peak Casino in Montana

The Confederated Salish and Kootenai Tribes have a successful track record with enterprise development, including several profitable businesses.

S&K Technologies, a federally chartered corporation (Section 17) founded in 1999, is a group of 10 companies within three business units, specializing in professional business solutions to government agencies and commercial clients. It was established with a board of directors appointed by tribal council and comprises seven members, with no requirement for council or tribal representation. Staggered terms are for four years.

The strategy for S&K Technologies has been to leverage SBA 8(a) status in the fields of aerospace, avionics, environmental restoration, security and IT. Primary corporate goals are to grow each company, to provide a sustained dividend to the CSKT, and to secure employment opportunities, both on and off the reservation.

The tribes also operate several other successful businesses and have had a long history of economic development, including Eagle Bank, S&K Electronics, Mission Valley Power, a long-running timber operation and S&K Gaming LLC, which operates two tribal casinos.

The proliferation of separate ventures has prompted the tribe to set up an Economic Development Department (in 2008) to coordinate communication and planning between the existing tribal business entities and tribal council, explore new business opportunities and provide due diligence.

Siyeh Corp. (Blackfeet Nation)

Glacier Peaks Casino in Montana

Siyeh Corp. is a federally chartered corporation (Section 17). The six-member board of directors is appointed by a tribal council, although council members are not allowed to serve. Requirement to serve on the board is a four-year degree or business management experience.

When the Blackfeet Nation was organized under the Indian Reorganization Act (IRA) in 1935, it was established as both a political entity and business corporation. The nine-member Blackfeet Tribal Business Council manages both the political and the business affairs of the nation.

After decades of failing to establish viable business enterprises—a combination of a remote location, and a lack of business expertise on the part of an essentially political body—the council set up the independent Siyeh Corp. in 1999, to separate business development from tribal politics.

The corporation’s mission is “to generate business, produce revenue, spark job creation and advance economic self-determination.” It operates five enterprises, including the tribe’s Glacier Peaks Casino. It thus far has concentrated on local development, having acquired or developed a cable television company, a local internet provider and a heritage center with cultural products.

Mississippi Band of Choctaw Indians (MBCI)

An exception to the trend of separating political from business functions is the Mississippi Band of Choctaw Indians, which began self-directed economic development in the late 1960s, under the leadership of the late Chief Phillip Martin. In this case, it was the vision and business acumen of the tribal chief that drove successful economic diversification for nearly four decades.

MBCI was federally recognized in 1945, but still had unemployment of 80 percent into the late 1960s. Economic development on the MBCI reservation began in 1969, when the tribe set up a construction company to build the low-income homes being funded by a federal program. The strategy was to make a small profit while also teaching skills to tribal members.

Building on this success took many years, but by 1979, the tribe was able to attract Packard Electric to open a non-union automobile parts manufacturing plant on the reservation. This was followed in 1981 by a 120,000-square-foot American Greetings Corp. factory, which was financed by Industrial Revenue Bonds, creating 250 jobs. In 1985, the tribe opened a factory manufacturing automotive speakers in partnership with the Oxford Speaker Company. Three other manufacturing plants opened in the 1980s and 1990s, including another printing company and a plastic molding enterprise.

Over the past 50 years, MBCI has pursued a diversified portfolio of business operations. Today, the tribe operates multiple enterprises that were formed under Tribal Ordinance 56, which created a separate Tribal Business Division, including casinos, hotels, golf courses, commercial laundry, organic farming, a nursing home and real estate management, among others.

MBCI also created a tribally chartered corporation to pursue federal contracting opportunities. This entity currently includes several subsidiaries that are involved in construction, electrical subcontracting and a variety of other service-oriented work, primarily for federal customers. MBCI is ranked among the Top 10 private employers in Mississippi, with 5,000 full time employees.

MORE RECENT DEVELOPMENTS

Citizen Potawatomi Community Development Corp. (CPCDC)

Created in 2003, the CPCDC’s mission is to “provide access to capital through loan fund support and business development services.”

Its services include micro-business loans, commercial loans, employee loans, business development assistance and financial education and credit counseling. The program began with an initial capitalization of $1.65 million, which grew to $2.78 million within three years.

Part of CPCDC’s success has to do with its structure, and the separation of tribal politics from loan decisions. CPCDC is governed by a seven-member board of directors: six are tribal citizens, and the seventh is a representative from the First National Bank & Trust.

Loan decisions are made by a four-person Loan Committee, a standing committee of the board of directors consisting of a CPA, a business owner, CPN’s bank and a tribal citizen. Loan committee members are not allowed to hold a tribal leadership position.

Potawatomi Business Development Corp. (PBDC)

Tribally chartered in 2003 by the Forest County Potawatomi (FCP), the PBDC was capitalized in 2004 with $5 million, and received an additional $5 million per year for the next four years. Potawatomi developed a diversified investment and development portfolio of active and passive investments, both on and off the reservation.

The PBDC has a five-member board of directors, comprised of three tribal members and two other tribal citizens. The FCP Tribal Council appoints board members and approves annual operating plans and long-term implementation plans of the corporation. Corporate staff oversees day-to-day management and makes all major strategic decisions.

Transparency, accountability and communication are all key to the success of the PBDC. The PBDC provides the tribal council with an annual report, audited financial statements and an annual strategic development plan. In addition, the PBDC reports at quarterly general council meetings and for tribal newspaper articles and periodic newsletter mailings. A member of the executive council is also invited to attend all monthly PBDC board meetings.

STRATEGIES AND RESOURCES

These examples provide a good representation of the variety of successful approaches to structuring tribal economic development agencies. Mille Lacs is a first-generation model, with the board dominated by council members. Siyeh Corp. and Citizen Potawatomi CDC have chosen to make a clear separation between the board and the tribal council. A balance between council or other tribal members and outside business experts, such as at PBDC and Ho-Chunk, Inc., allows for tribal oversight while fostering a variety of perspectives and expertise.

The case studies of the Mississippi Choctaw and Ho-Chunk, Inc. illustrate two opposing strategies to building economic development. In contrast to HCI’s “outside-in” approach, the Mississippi Choctaw gained its initial experience developing housing and industrial parks on the reservation, eventually expanding off-reservation well after it had established its economic development infrastructure and resources. As the Choctaw experience shows, successful on-reservation development frequently involves asking, “What are we buying and paying for that we could provide for ourselves?” and providing the support needed to locate the resources to take advantage of such opportunities.

Historically, Native Americans have not enjoyed the best possible deals when leveraging their natural resources and assets against federal, state, industrial, agricultural or other commercial activities. The Native-to-Native movement is one opportunity to overcome this disadvantage by dealing directly with other tribes in the buying and selling of products and resources, and to establish native trading and business networks.

There are several organizations established to promote business relationships between tribes and tribal enterprises, including the National Center for American Indian Enterprise Development (sponsor of the annual RES conferences); the Office of Native American Affairs, Small Business Division; the Native American Business Enterprise Center; the National American Contractors Association; the American Indian Business Network; and the American Indian Chambers of Commerce, which operate throughout the country.

Another common tool used by tribal development corporations involves federal contracting through the SBA 8(a) program, designed to help small businesses that are owned and controlled by socially and economically disadvantaged individuals and economically disadvantaged Indian tribes and Native Hawaiian Organizations, helping them compete on an equal basis in the mainstream of American economy. The program strives to promote the viability of such concerns in the marketplace by providing such available contract, financial, technical and management assistance as may be necessary.