Archives: Articles

IssueM Articles

Top And They Pop

The renovation of tribal casinos is a new industry for designers, builders and the owners of the gaming properties that might have gotten a little long in the tooth—and short on amenities.

Gaming has provided a tribal enterprise for many of the

gaming tribes across the country, and to stay competitive in an overheated market, many tribes are opting to add more hotel rooms, restaurants, spas,

entertainment centers and other amenities that will set them apart from any nearby casino.

In this year’s Tribal Government Gaming, we recognize the forward-thinking tribes that understand you can’t stand still; you must always move ahead.

 

Total Makeover X3

Projects: Ho-Chunk Nation Expansion, Wisconsin
Location: Wisconsin Dells, Black River Falls, Wittenberg
Owner: Ho-Chunk Nation
Designer: HBG Design
Cost: $100 million-plus

Bing, bang, boom. A hot idea can spread across three properties and be linked to one time frame.

The Ho-Chunk Nation launched three recent concurrent expansion and renovation projects, at Wisconsin Dells, Black River Falls and Wittenberg, Wisconsin. Their combined effect visually unites a reinterpretation of the Ho-Chunk brand in a common design language, yet gives each property individuality through design features. Ho-Chunk selected highly decorated HBG Design in Memphis to deliver all three.

Dike Bacon, principal at HBG, said the cost for all three exceeded $100 million and each comprised more than 100,000 square feet. Black River Falls was unveiled in July 2017. Wisconsin Dell followed in December 2017 and Wittenberg was finished in April 2018.

“Brand repositioning can sometimes be different than a simple property expansion, because it requires defining a long-term vision for the brand that is often bigger than a single current project,” he says. “With that said, though, fundamentally the best approach to any expansion is done within the context of how best to express a brand holistically.

“Each of the Ho-Chunk Nation’s completed new projects received bold, new arrival and entry experiences with new porte cochere structures that prominently integrate branded architectural accents and the Ho-Chunk Gaming logo identity,” he adds.

“Building geometry, site positioning and design implementation of the new expansions vary at each property, but the key materiality and color palettes blend across all the properties. Special attention was given to integration of tribal cultural elements in unique, abstract ways.”

Each design stands out because of its contemporary, sophisticated interpretation of Wisconsin’s unique landscape and the unexpected details derived from this inspiration, he indicates.

Wisconsin Dells takes its name from the Dells of the Wisconsin River, a scenic gorge that features striking sandstone formations along the river banks. It was the strong, powerful effect of water sculpted by the passage of time and the “iconic striation” patterns of these regional formations that inspired HBG designers to create bold architectural statements, Bacon asserts.

“We added a grand new hotel lobby with a spectacular two-story interior feature wall crafted from natural, locally sourced birch wood slats,” he says.

“Horizontally stacked and linearly placed in dramatic curved form, this wall design was influenced by the natural striation patterns found on the Dells. The feature wall extends visually through to the exterior toward the full-length window wall and a see-through fireplace feature. A similar effect made of stone extends to the exterior.”

The Black River Falls property is in the birthplace of the Ho-Chunk Tribe—the source from which the tribe’s cultural and capital growth began. In its location in the North Woods, the landscape is shaped by abundant forests lush with towering evergreens.

“This inspiration led what we call the Sunset Tree Wall,” he says.

“Our designers envisioned a sunset on a snow-covered winter morning through the trees of the pine forest. The bottom of the wall mimics a horizon line whereby all shadows move away from the center toward arriving guests. The exterior feature wall is illuminated and visible from the nearby interstate.”

 

Encore, Encore

Project: Potawatomi Hotel & Casino Expansion
Location: Milwaukee, Wisconsin
Owner: Forest County Potawatomi Community
Designer: Cuningham Group
Cost: $80 million

This is the definition of relationship building.

Construct a property, please the client and return for an expansion a few years later.

The Cuningham Group in Minnesota has cherished its relationship with tribal properties since becoming a major industry player in the late 1980s. The company has won numerous awards and designed projects of varied sizes, establishing long-running ties with its clients.

Cuningham’s dynamic with the Forest County Potawatomi Community reflects that trend. Just five years after designing the original property, it enjoys the encore presentation of an expansion.

The Cuningham Group designed an $80 million expansion to the Potawatomi hotel tower that adds 119 rooms and suites, bringing the total room count to 500 and making it the second-largest hotel in Milwaukee. Owned and operated by the Potawatomi Community, the 189,000-square-foot expansion features a spa and additional meeting space. It’s expected to open this summer.

“The heroic tower is located in downtown Milwaukee, and the design gracefully reflects the light chop of the emerald green water of Lake Michigan,” says Tom Hoskens, Cuningham Group principal.

“This has become an iconic gem of Milwaukee’s skyline, and the eloquent addition completes Potawatomi’s vision to be the premier regional destination resort. The new rooms, suites and spa add to the guest experience. The added rooms and amenities provide a wonderful attraction.”

The original Potawatomi Hotel & Casino opened in August 2014 for a cost of $123 million. The tower integrates both traditional Milwaukee architecture and modern design. The design also reflects the area’s culture and geography with subtle nods to the storied history of the Forest County Potawatomi Tribe.

The materials and color of the hotel’s base reflect the character of the industrial buildings throughout Milwaukee’s Menomonee Valley, as well as the existing casino. To reflect the modern entertainment offered in the expanded resort, the hotel tower rises from its masonry base adorned in a combination of green-tinted transparent and opaque glass to take on the look of Lake Michigan’s shimmery waves on a sunny day.

The top floor features a “floating” prow-like roofline which houses several suites. Additionally, a modern glass-enclosed “flame” at the top of the hotel’s tower references the Forest County Potawatomi’s role as “Keepers of the Fire,” and is intended to welcome guests.

For the tribe, it’s the latest stage in the evolution of a business that was launched in 1991 as a 2,000-seat bingo hall.

 

New Sensation

Project: Soboba Casino
Location: San Jacinto, California
Owner: Soboba Band of Luiseño Indians
Master Planner: Friedmutter Group

And now, for the big time.

Soboba Casino has operated in a tent structure since it began in 1995. That started to change in dramatic fashion two years ago, when construction began on a new replacement casino with a 200-room hotel featuring a conference center, pool and gym.

Area residents watched the developments unfold, like magic. The exterior of the building was painted in shades of beige and earth tones last summer. Flooring went down. Electrical power came in.

Then came the finishing touches like moving in furniture, tiling the pool area and providing landscaping.

The process ended with an early 2019 unveiling for a property flush with the Las Vegas feel. Soboba has a roomy gaming floor, modern decor, spacious hotel rooms, and food and drink options ranging from prime rib to lychee martinis.

“We are excited to see this long-awaited dream become a reality,” Scott Cozart, tribal chairman of the Soboba Band of Luiseño Indians, said in a statement. “This beautiful new facility will bring so much to our community and the entire region for many generations to come.”

What a gaming leap. This is an identity change, denoting the property as a destination for gaming, shopping and dining. The project makes a statement.

The location is adjacent to the Country Club at Soboba Springs and less than a mile from the existing casino. That short distance creates a new world.

Friedmutter Group had a major role, as master planner, architect of record, design architect, interior design and construction administration. It provided a one-stop shop in an ambitious redefinition of the casino.

When completed, the new casino resort will replace the older tent-structure casino and offer a wide range of features. That includes 510,000 square feet of new construction and 110,000 square feet of gaming. The finished product features a 200-room hotel tower, 10,000-square-foot lobby/lounge and 30,000 square feet of food and beverage.

The package includes 15,000 square feet of conference space and a 2,000-space surface parking lot.

Soboba will showcase a 480,000-square-foot casino resort and a 90,000-square-foot gaming floor. The lineup includes 2,000 slot machines and 32 table games, along with casino bars, a sports lounge and a high-roller room.

Food venues feature a noodle restaurant, a food court and a cafe open 24/7. The event venue is 15,000 square feet.

The casino not only became the largest tourism driver in San Jacinto County, but provided valuable jobs.

Construction of the resort created approximately 5,000 on-site construction jobs, and those jobs accounted for approximately 850,000 man hours, officials said. There have been more than 650 positions created within the resort, with more expected.

For Soboba, this move appears timely and significant.

 

Score Four

Project: Choctaw Nation Expansion
Location: Durant, Oklahoma
Owner: Choctaw Nation
Architecture: JCJ Architecture
Cost: Estimated at more than $100 million
Estimated completion: 2021

The Choctaw Casino & Resort in Durant, Oklahoma has launched its fourth expansion since opening in 2006. An April groundbreaking is scheduled for perhaps its most transformative project. This one will notably add 1,000 hotel rooms, increasing occupancy from 800 rooms to 1,800 rooms, according to Kristina Humenesky, director of public relations for the property. Some of the new rooms will be suites. The expansion will take about two years to complete.

“This is a very exciting time for us, and we are both delighted and honored to be considered a Top 5 tribal casino by your publication,” Humenesky says.

The project also will increase gaming space and add more amenities such as new pools and a lazy river, parking garage, retail space, conference center, entertainment options and food and beverage. The expansion will bring 1,000 more jobs to Durant.

JCJ Architecture is part of the design-build team.

“JCJ Architecture has worked with Choctaw Nation for over 10 years. It is an honor to have been selected to undertake this exciting new project,” says Peter N. Stevens, LEED AP, president of JCJ Architecture. “Having worked most recently with the nation on their cultural center, wellness center, public safety headquarters, and maintenance/facilities building, it is a testament to our strong relationship to have been selected for this new endeavor. I believe the creativity, experience and talent of this combined team will bring a truly leading-edge property to the Oklahoma/Dallas-Fort Worth market as well as increased prosperity to the Choctaw Nation and the surrounding community.”

For the Choctaw Nation, it has been a grand ride.

The property in Durant opened in 2006, consisting of more than 100,000 square feet. In 2010, the tribe expanded and added the Grand Tower. The most recent renovation was complete in 2015, adding another hotel tower with a spa, the Grand Theater and the family entertainment center, The District.

Choctaw has built smartly. It expands far enough to accommodate new business without overreaching. Projects both upgrade existing facilities and anticipate the next wave of consumer demand.

Choctaw Casino has grown into a AAA Four Diamond resort. It offers luxurious rooms and suites, and the Spa Tower features a full-service spa and a salon offering hair, nails and makeup services. The three-level convention/entertainment venue offers over 100,000 square feet of meeting and convention space and seating for more than 3,000 people.

Amenities include the Oasis Pool area with four tropical pools and private cabanas, as well as the region’s premier entertainment complex, The District. At The District, visitors can enjoy Tailgaters sports bar, 20 bowling lanes, a 40-game arcade and a state-of-the-art movie theater.

The casino’s spacious gaming complex features more than 4,100 slot machines, 60 table games, and a private poker lounge that includes 30 poker tables.

 

Back to the Sea

Project: Quinault Casino Renovation and Expansion
Location: Ocean Shores, Washington
Owner: Quinault Indian Nation
Designer: Thalden Boyd Emery
Cost: $27 million

Quinault Beach Resort & Casino in Ocean Shores, Washington, embraces a burgeoning gaming-vacation market.

The “play” has been beefed up to entice the “stay” in a new invigorated environment, accented by tribal cultural expression.

Quinault tapped Thalden Boyd Emery to lead the project, completed in June 2018. Jim Morrison, the director of code for TBE, says the expansion and renovation covers 29,000 square feet and features the addition of a buffet and kitchen space, new gaming space, a feature bar, new carpeting throughout the entire gaming floor and conversion of the existing gift shop into a gaming area.

Nick Schoenfeldt, vice president and principal at TBE, believes the project enhances the entire functionality of the establishment.

“We often see tribal properties go through phased growth, and we speculate that Quinault Beach Resort is positioning itself to draw a larger market share as they prepare for continued growth,” Schoenfeldt says. “With this recent renovation and expansion, the Quinault Nation has been able to bring back several machines they previously leased out to other tribes. Now these machines will be able to completely benefit the Quinault Nation. This project provides a noticeable increase in guest options, both in terms of gaming and dining.”

The previous design had few cultural influences. With this expansion, Schoenfeldt says that Quinault symbolism, from new carpeting to welcoming totems, is prevalent throughout the property.

David Nejelski, creative director and principal at TBE, says tribal cultural expression was paramount in the setup.

“Culture and art are two themes that are interwoven throughout the new casino expansion, expressed through inspired designs and finishes as well as unique art pieces,” he says.

“A new custom carpet design creates a bold expression of Quinault identity throughout the casino by using large-scale patterns directly inspired by an unmistakable character found in the traditional artwork.”

Two large, hand-hewn “welcome figures” were custom crafted and positioned near the entry to the buffet, greeting guests and providing a dramatic example of traditional wood-carving skill.

“The ocean-going heritage of the Quinault is celebrated in the design of the new Nawitin Buffet,” he adds. “The rhythm of ocean waves is rendered in a variety of finishes throughout the space, and acts as the backdrop to a large coastal canoe, hand-carved and painted in traditional style. This centerpiece of traditional life acts as the centerpiece of the space. Ornately carved and painted paddles are also on display, further enhancing the cultural connection to the sea.”

The center of the casino floor has a dramatic 360-degree entertainment bar-in-the-round infusing the gaming floor with excitement that incorporates light shows, live music and other entertainment.

Big Money

Skooter McCoy, general manager of the nonprofit Cherokee Boys Club, knows all too well the impact per-capita payments from the Eastern Band of Cherokee’s Harrah’s casino in North Carolina has had on tribal children, including his son, Spencer.

“If you’ve lived in a small, rural community and never saw anybody leave, never saw anyone with a white-collar job or leading any organization, you always kind of keep your mindset right here,” McCoy told Wired magazine.

“Our kids today—the kids at the high school—they believe the sky’s the limit. It’s really changed the entire mindset of the community these past 20 years.”

Tribal government gaming exploded into a $32.4 billion industry with passage of the Indian Gaming Regulatory Act (IGRA) of 1988, enabling American Indian tribes to grow and strengthen their governments and diversify their economies.

But a somewhat controversial aspect of IGRA remains the direct disbursement of casino revenue to tribal citizens, referred to as per-capita payments. Some Cherokee children call it “big money.”

 

Payment Processing

Of the approximately 370 tribes in the lower 48 states, 242 tribes operate government casinos, according to the National Indian Gaming Commission (NIGC), generating revenue largely used to provide community infrastructure, health care, housing, education and other services.

About 130 of those gambling tribes also issue per-capita payments to their citizens, according to the Department of the Interior’s Bureau of Indian Affairs.

Per-capita is a non-issue for large tribes on primarily rural reservations in the Midwest and Great Plains and the massive Navajo Nation, which spans parts of Arizona, New Mexico and Utah. Those tribal casinos are primarily marginal operations intended to generate jobs rather than revenue. Tribal enrollments are too large to justify per-capita payments.

But annual per-capita payments can easily run into five, six and even seven figures for the more lucrative, small-enrollment tribes in urban areas such as the Mashantucket Pequots in Connecticut, the Shakopee Mdewakanton Sioux of Minnesota and the Pechanga, Santa Ynez and San Manuel Indian bands in Southern California.

Modest per-capita payments of $1,000 to $2,000 a year have provided marginal and low-income families with subsidies to make rent, mortgage and car payments and obtain other household necessities. Larger payments from the more lucrative casinos have enabled tribal citizens to launch businesses, create investment portfolios and engage in entrepreneurialism.

“It’s not only helped us with economic stipends each month, but it has given us cause to hope and dream and plan,” a tribal elder for the Dry Creek Rancheria Band of Pomo Indians told a Harvard University research team.

 

Negative Reaction

But critics regard per-capita as a form of welfare, sapping the initiative of indigenous citizens to complete their education and seek out jobs and economic opportunity. Some blame per-capita payments for drug and alcoholic abuse.

Many tribal leaders criticize the payments for depleting gambling revenue that would otherwise be used for government programs and tribal business enterprises.

And per-capita payments have been blamed for negatively impacting community politics and creating an epidemic of tribal disenrollment.

A number of respected tribal leaders have been ousted for decisions impacting per-capita payments to tribal citizens. As many as 81 tribes have purged membership rolls, presumably to increase casino payments, although some contend determining citizenship is a function of a maturing tribal government.

“Per-capita is the most formidable political force in Indian Country right now,” says tribal attorney Gabriel Galanda, a citizen of the Round Valley Tribe of California. “There are examples of tribes unable to get a quorum of the membership to vote in an election without offering a per-cap payment at the door.

“It is a massive influence in Indian Country,” Galanda says, “and not in a good way.”

“Tribal economies and lifestyles built on per-capita payments have almost no chance of long-term sustainability,” Lance Morgan, CEO of Ho-Chunk Inc., a subsidiary of the Winnebago Tribe of Nebraska, told Harvard researchers. “This new form of welfare is just the latest in a cycle of dependency that Indian Country has been trying to break out of for over 100 years.”

By any measure, per-capita payments are a highly complex issue. Assumptions cannot be easily made.

It will be a topic of discussion at the annual conference of the Native American Finance Officers Association (NAFOA) meeting April 14-16 in Portland, Oregon.

“Do per-capita payments provide needed support and help build a local economy or do they undermine culture and tradition by servicing individuals over the community and providing cash payments in lieu of jobs?” the conference agenda states. “With the benefit a few decades of experience and hindsight, our panelists will explore the often-contentious issue of distributing revenue to members/citizens.”

NAFOA Executive Director Dante Desiderio, a Sappony citizen, said the per-capita discussion “should be brought out in the open for leadership to discuss and work together toward a balanced stewardship of a healthy and sustained government while meeting citizen interests.”

But the session will be closed to the press.

“That’s how sensitive this is,” says a tribal official who requested anonymity. “Tribal leaders know they need to talk about it. They’re happy NAFOA is taking it up. It’s an issue we need to address. But it needs to be discussed in private.”

“It’s a very complicated issue,” says Rosebud Sioux Joe Valandra, managing director of VAdvisors and former NIGC chief of staff. “And it becomes very emotional.”

 

Per-capita Politics and Policy

The emergence of tribal gambling has provided Indian communities with discretionary income, many for the first time in their history. It also has created the need to make major government and public policy decisions.

For example, should casino revenue be used for the welfare of the entire community, building governmental infrastructure, launching business enterprises and providing health care, housing and social services?

Or should the funds go to individual families who are most in need? About 40 percent of indigenous Americans live on economically depressed reservations where poverty is rampant and unemployment can range from 40 percent to 60 percent or higher.

“Per-capita payments help citizens meet urgent needs. Many reservation populations are poor, and individuals and families are chronically short of cash,” wrote the Native Nations Institute and the Harvard Project on American Indian Economic Development in a 2007 policy paper.

But “channeling all tribal revenues into tribal government encourages the idea that it is the government’s job to provide for all the needs of its citizens—a form of dependency,” the report goes on to say. “Tribal citizens are shareholders in the tribal estate. This is their money. It should be given to them.”

Others argue that jobs, housing, education and health care are items most aptly provided by well-funded and administered tribal government programs.

“Per-capita payments draw away resources that should be invested in such services, making it harder to provide them to citizens,” Harvard researchers say.

The per-capita inequality is glaring. Although most tribes keep their financial information a closely guarded secret, the Shakopee Mdewakanton Sioux per-capita is believed to be approaching $1 million a year.

Meanwhile, the Blackfeet Nation in Montana sets aside a $75 per-capita payment at Christmas for its 17,000 members to buy presents without going into debt.

The roughly 16,000 members of the Eastern Band of Cherokee receive about $12,000 a year. The Mississippi Band of Choctaw Indians, with about 11,000 members, limit per-capita in their tribal-state compact to $1,000 per year.

 

Disbursements To Minors

Per-capita payments to minors are generally held in trust until the child reaches the age of 18. Depending on the tribe and amount of per-capita, the person could at that age collect a sizable sum.

Fears young adults receiving large disbursements would lapse into idleness and drug abuse apparently have not materialized to a great degree. Studies show dropout rates for students with the Eastern Band of Cherokee improved when their families began receiving income subsidies.

But there is anecdotal evidence of increasing high school dropout rates tied to large per-capita payments.

“After we started per-capita payments (of $2,000 per month) it seemed everybody lost motivation,” a Southern California tribal leader told Harvard researchers. “We had a high dropout rate, around 85 percent.”

According to studies—most notably a 2010 report by Duke University Medical School for the National Institute of Health—young Native American adult recipients of income subsidies encounter few psychiatric disorders. But there have been incidents of violence linked to drugs and gangs on a handful of California reservations with lucrative casinos.

Modest per-capita payments normally are used to pay off debts and nominal household expenses. Research suggests that mental health issues and socially damaging behavior for school-age children increase with the excessive accumulation of wealth.

The First Nations Development Institute encourages crafting per-capita distribution programs to promote education, savings and investment programs. Some tribes require the recipient to undergo financial training. Others require incremental payments over a period of time.

“Considering the potential for negative consequences of children coming into one-time moderate-to-large amounts of capital as young adults, ages 18 to 25 years, it is a profound responsibility to assist youth to better understand the economic choices they have gained through accounts established by tribes for their futures,” Karen Edwards and Sarah Dewees write in “Developing Innovations,” a study for the Native Assets Research Center.

“Many children in tribes today do not remember historical ‘hard times’ and do not have a point of reference as to what life was like when their parents, grandparents and ancestors had to sacrifice just so their children would survive shortages of food, shelter and other basic necessities,” Edwards and Dewees write.

 

An Alternative To RAPs

IGRA requires that tribes seeking to make per-capita payments submit a revenue allocation plan (RAP) to the Department of the Interior for approval. The RAP must ensure the tribe has adequate funding for its tribal government, tribal economic development and donations to charitable organizations and local governments.

In addition, the RAP must include information and criteria for accounting of disbursements as well as dispute resolution and utilization or creation of a tribal court system.

The primary criticism of per-capita is its divisive impact on politics and the fact it diverts revenue from government, social services and economic development programs.

Per-capita payments to individuals are subject to taxation. But the Tribal Welfare Exclusion Act of 2014 states that tribal government payments to citizens for certain benefits—such as health coverage, housing, elder care, education and cultural programs—are exempt from taxation.

“Tribes are currently weighing a recent alternative,” Desiderio says of the Welfare Exclusion Act. The legislation, Desiderio says, “offers a way to provide programs and services that are exempt from income taxes, making them attractive alternatives to individual distributions for both the government and the individual.”

The demand RAPs place on the funding of tribal government programs can also impact bank underwriting of tribal debt.

“The decision to continue or increase per-capita payments is not without consequences,” Desiderio says. “Banks and rating agencies may weigh the per-capita obligations when underwriting loans or assigning credit scores. So the decisions may impact future growth.

“With the benefit of a few decades of experience and hindsight, our panelists will relate their experiences, lessons learned, and what issues may be in store for the future,” Desiderio says. “For example, with slowing revenue from a mature gaming industry and an exploding youth population, how do tribes meet future expectations? We will also look to the academic community to weigh community impacts.”

 

A Critical Review

The architects of IGRA regret the negative impact per-capita payments have had on tribal politics and enrollment. Individual disbursements were not a controversy when the act was passed because tribal government gambling was not expected to become a billion-dollar industry.

“There was no argument for or against it (per-capita payments),” says Alex Skibine, an Oklahoma Osage and University of Utah law professor who served as deputy counsel for the House Committee on Interior and Insular Affairs when IGRA was drafted. “There was no real debate. We wanted to include some kind of limits to control the tribes’ spending. We wanted to make sure the needs of the tribe were met.”

“I put the provision in there,” says Frank Ducheneaux, an Oglala Lakota and legal counsel to Interior and Insular Affairs. “The concern at the time was the taxability of the payments.

“I never imagined a tribe would disenroll people solely on the grounds they didn’t want them to have per-capita distributions. Disenrollment wasn’t a big issue back then.

“I’m opposed to disenrollment, particularly when it’s related to per-capita. I don’t like it. Tribal membership can be a valuable right,” Ducheneaux says. “But I don’t think the federal government can tell a tribe it can’t make per-capita payments out of its gaming revenue.”

“Frankly, we did not forecast how successful some of those casinos would become and how fast it would occur,” Skibine says. “We didn’t know the economics of gaming, the way it was going to develop.

“If you look at some of the big tribes in the Midwest and Great Plains, they may never meet the needs of their tribal members,” Skibine says, a Department of Interior requirement before a tribe can issue per-capita payments. “We didn’t realize a lot of the more successful tribes would be the very, very small enrollment tribes in urban areas. We didn’t think in those terms.

“Those are the ones who became the most successful the quickest. They are able to meet the needs of the tribal members very quickly,” largely because government and social services are provided by non-Indian communities.

“We didn’t think issuing a per-capita was going to be that easy,” Skibine says.

 

Looking to the Future

“I am not a fan of per-capita payments. But I would also defend the right of tribal governments and tribes and their communities to make those decisions for themselves,” says Bryan Newland, chairman of the Bay Mills Indian Community of Michigan and a former counsel with the Department of the Interior.

“I would never want the federal government as a matter of federal policy to say, ‘Hey, you can’t spend your gaming revenues that way.’

“But I think it leads to a lot of complex political problems in a lot of tribal communities. It can create all kinds of problems for tribal governments and tribal communities.

“But if you have all of your nation-building done along with your operating infrastructure and government, and you’re meeting the needs of your community, what else are you going to do with the revenue?

“If you are a seasonable employee or you’re disabled or retired or you’re a minimum-wage worker, even $1,000 a year makes a big difference. When you ask me about how I feel about per-caps, I say they are a double-edged sword.”

Many tribal leaders pursuing economic and governmental expansion and diversification may rue the day they approved a per-capita payment plan. Amending a RAP can be a politically volatile endeavor.

“The political issue for most tribal leaders is once you start a RAP you can never stop,” Valandra says. “Yet, what if economic circumstances change and as a tribe you don’t have the revenue you once had? What do you do?

“When you get into guaranteed income, people depend on it. If something happens and the tribe can no longer maintain the payments, not only is it a political death knell for the current administration, but it has a lot of ramification for the tribal economy.”

“The thing about a per-capita is once you put them out there, they can only increase, politically,” Skibine says. “Anybody wants to freeze them, they’ll get voted out of office.”

“A lot of tribes throughout the country have built successful businesses, particularly those that haven’t chosen to allocate most of their gaming revenue to per-capita distributions, but have instead chosen to build tribal assets,” says Kristi Jackson, chairman of TFA Capital Partners, an investment banking firm servicing tribal and commercial gambling and leisure industry clients.

“Those tribes that do say that if you can, politically, don’t initiate a per-cap. It’s interesting to hear that perspective.”

A Class of Its Own

The history of Class II electronic bingo under the Indian Gaming Regulatory Act of 1988 is one of conflict. Originally introduced as an “electronic enhancement” of traditional bingo under IGRA’s Class II rules, electronic bingo machines would evolve through an effort by suppliers to multiply potential bingo-card patterns and work the math, displaying bingo results as the reel results in games that looked identical to the slot machines in commercial casinos.

Pioneering tribes, notably the Seminole Tribe of Florida, showcased Class II slot machines during the 1990s as the technology improved to make them appear more slot-like. The Seminoles’ expanding use of Class II games ultimately led the tribe into legal roadblocks, including a 1996 lawsuit by the state of Florida attempting to enjoin the Seminoles from offering the games, which the state claimed were in reality “electronic or electromechanical facsimiles of games of chance,” prohibited under Class II of IGRA.

While that particular lawsuit was dismissed on tribal immunity grounds, the Seminoles and other tribes would win subsequent legal and bureaucratic battles over the nature of Class II electronic bingo machines, including an extended battle with the National Indian Gaming Commission, the federal agency overseeing Indian gaming. Former NIGC Chairman Philip Hogen spent much of his 2002-2009 tenure attempting to establish technical standards for Class II that would draw what he called a “bright line” distinguishing Class II games from Class III casino slots.

Some of those standards were the very elements preventing Class II from enjoying earnings approaching Class III slots—such as a rule requiring multiple “touches” by the player to complete each play on the slot, simulating the “daubing” of a bingo card. As his term was nearing its end in 2008, Hogen announced that NIGC was dropping the most controversial standards initially proposed for Class II games, including multiple touches.

Ironically, by that time, the Seminoles had moved on to Class III, negotiating a compact with Florida that was finalized in 2010, giving the tribe the right to offer Class III slot games. Across the country in California, a few other of the most successful gaming tribes in the U.S. were earning profits mainly from compacted Class III slot machines—which had been deemed a necessity as the young California tribal industry competed with nearby Nevada.

Meanwhile, game developers working for leading suppliers of both Class II and Class III slot machines refined the technology and game math, allowing Class II slot games to perform and play ever closer to the game experience provided by their Class III counterparts.

Today’s Class II market is served not only by a few longtime Class II stalwarts, but by a collection of well-capitalized suppliers that benefited from major mergers and acquisitions. The former Global Cash Access merged with traditional Class II supplier (and fast-growing Class III company) Multimedia Games to form Everi; AGS acquired veteran Class II supplier Cadillac Jack. Slot giant Aristocrat acquired Tennessee-based Class II company VGT.

The resulting financially powerful companies have joined large suppliers like IGT and Scientific Games, which have long supplied Class II Native American markets, and smaller but well-established Class II suppliers such as Georgia’s Eclipse Gaming, in steadily improving the technology of Class II to the point where the two styles of games are now more similar than ever.

“It’s tremendous what’s happened over the last five years,” says Andrew Burke, senior vice president of slot products for AGS. “Everything, from internet speed—because everything is linked up—is just so much faster than it was 10 years ago. The ability to port complex math models from Class III into Class II, and to create Class II unique math models, shows that the technology has really opened up. The game play itself is almost indistinguishable. If you put a bank of Class II games in the middle of a floor of Class III games, in a market that’s never had Class II, a player would never know the difference.”

“I’ve been in Class II probably 18 years, and yes, (technology) has narrowed the gap,” says Tim Minard, CEO of Eclipse Gaming. “There have been significant improvements in technology. Class II has evolved into high-performing entertainment.”

Knute Knudson, who was a South Dakota lawmaker when IGRA was passed, joined International Game Technology in 1992 as vice president specializing in serving Native American markets. Over his 27 years at IGT, Knudson has witnessed the entire evolution of the Class II gaming machine. He says IGT and other suppliers have “closed the gap” in game play between Class II and Class III “unequivocally.”

“Some of the best ways to demonstrate that are play functionality, and specifically, game speed,” Knudson says. “For example, our Class II game will complete a play cycle in 2.5 seconds, which is exactly the play cycle for a Class III game.”

 

Adding Class II

The evolution of Class II technology has provided content for a growing market, as even tribes in markets that allow both Class II and Class III are increasing Class II in their game mix.

“Markets like Oklahoma that have had Class II continue to add it,” says Burke at AGS. “And there’s a mandate that any part of their floor should be at least 50 percent Class II. The new markets are starting to try it that haven’t historically tried it—markets like Arizona, Indiana, the new Four Winds property—and we’re hearing about a lot of new projects like that. They’re actually trying Class II for the first time in a lot of cases, which I think is great.”

“And you find interest in just about all jurisdictions,” adds IGT’s Knudson. “There’s a variety of reasons for that, the first of which is, of course, the quality of the Class II, and the machine performance.”

Jesse DeBruin, senior vice president of gaming operations for Everi Holdings, notes that while Class II growth is not evident in all markets that include both classifications, the industry overall is increasing its footprint of Class II games.

“In California over the past two-plus years, the majority of those tribes have renegotiated their compacts, and a lot of those tribes have reduced or eliminated our Class II footprint,” DeBruin says, citing state removals of caps on Class III games as the primary reason.

“However, we’re also seeing a lot of new Class II-only facilities go up,” he says. “You have Four Winds in Indiana. You have Texas casinos, you have Alabama casinos. You also have a lot of states where they consider Class II a significant part of the roadmap, and they want to continue to expand and grow Class II.”

Minard of Eclipse Gaming, a longtime Class II supplier with presence in some Class III markets, says the growth of Class II is not over. “I believe that Class II will become continually more relevant,” he says, “as we continue to come up with more exciting and different games for that market.

“The advantage of Class II is that there’s a ton of titles out there; everybody’s developing, and there’s a lot of familiarity. But not every one of those games has a Class II version.”

There is, in fact, still much more variety in Class III game libraries, which is why tribes in markets like California and Florida continue to add them. However, James Starr, president of VGT, says Class II suppliers are working diligently to close the gap.

“We have an opportunity to expand Class II hardware and content to provide variety similar to that available in Class III,” Starr says. “We as well as other manufacturers are slowly making progress toward delivering more of the form factors and content for Class II. Now, Class II options are better, and technology is definitely better.

“Historically, Class II technology and products have been perceived as inferior. Some in the industry have caught on to the fact that the technology has advanced rapidly, particularly in the last three or four years.”

He says the acquisitions have fueled the acceleration of development on the Class II side. “Some people perceive that Class II is still where it was 10 to 12 years ago. That’s one of the things we’ve had to work hard to overcome, historical expectations, and it’s our biggest challenge going forward.”

 

Class II vs. Compacts

Although technological advancement has made the play experiences of Class II and Class III nearly identical, gaming tribes in many states where both classifications are authorized still lean on the traditional Class III games. That may be changing, but compacted tribes are sure to continue to take full advantage of the ability to offer any and all new slot games from the major suppliers, not to mention a full complement of table games.

In addition to variety, Minard of Eclipse Gaming notes that while very close, Class II games are not yet identical in play to traditional Class III slots. “The speed in which you can do the ball calls and bingo results has created just a nominal speed difference,” he says. “I think the math models are still a little bit different, but bingo still has a finite amount of outcomes. So, there are things you can do with Class III that are maybe a bit more challenging with Class II.”

One more difference that is not normally noticed at the larger casinos but is still a Class II rule: At least two players must be active for a Class II bingo game to proceed, so on a near-empty floor, a Class II machine may pause after the spin button is pushed to wait for another player to join the server-based bingo game.

Minard stresses, though, that improvements in processing speed are all but wiping those differences out, from the player’s perspective. The evolution of Class II has made them a viable substitute for Class III where both classifications are available, he says.

VGT’s Starr offers Oklahoma as a prime example, where there is significant Class II growth in what he estimates is the largest hybrid Class II/Class III market today. “We have seen a trend the last few years in Oklahoma where it’s crept up from around 40 percent Class II to over 45 percent today,” he says. “You also are starting to see some markets like California and Washington add some Class II—not at the rates you’re seeing in Oklahoma, but even in some states like Wisconsin, you’re seeing some Class II, more as a trial. As we become successful, I’m sure they’ll add more.”

The value of Class II to gaming tribes in hybrid jurisdictions lies not only in their play and earning power, but in the leverage they give tribes in negotiations when it comes time to renew Class III gaming compacts. After all, there is no revenue sharing for Class II games, so the closer the play experience comes to Class III, the more viable it is to load a slot floor with Class II and pay nothing to the host state.

“There are active compact negotiations in a number of jurisdictions,” says IGT’s Knudson. “Negotiations continue in Oklahoma. Some major markets expire very soon. Class II is an extremely important negotiating tool, because compacts obviously are not necessary for Class II products to be utilized.”

“I’m watching tribes go through (negotiations) right now in Oklahoma,” says AGS’ Burke. “I can tell you Class II gives them that leverage, because they are 100 percent serious about going all Class II if they don’t get what they want.

“The tribes have been able to look at the states with a straight face and say, ‘Hey, if you don’t want to negotiate with us and play ball with us, we’ll just go this other route.’ I think that’s why it’s important to them that they keep 50 percent of their floor in Class II, in case they need to make a switch fast.”

 

Accelerating Game Development

The growth of Class II—and the refinement of bingo math models to the point where play is nearly identical to Class III—has led to parallel efforts in game research and development as suppliers strive to fill the gap in available content between the two classifications.

All of the suppliers serving both classifications now design new games to be launched in both classes simultaneously, as well as new games specifically tailored to Class II and customers in specific markets.

DeBruin says Everi devotes its efforts to creating content that will earn in either class. “It’s something we’ve prided ourselves on, in terms of our approach with our tribal partner customers,” he says. “We do not have separate development teams. We design a game with Class II operators in mind, and then release it, across Class II and Class III. That allows us to leverage our game design in all markets. It gives us flexibility.”

Burke says AGS follows the same procedure, on the slot platform the company developed on the bones of the operating system it inherited from the former Class II-heavy Cadillac Jack. VGT’s Starr, similarly, says all Class II development is now under the same Aristocrat team that produces Class III titles.

Knudson says IGT designs class II-specific content, along with Class III content that can be ported over to Class II. “We’re putting a lot of the very successful games from Class III into Class II, and we’re also designing very specific games just for Class II,” he says.

One result of all this new R&D effort is a growing library of products that follow the same trends as the Class III market. Lately, that means progressive slots. All the manufacturers are proliferating the progressive footprint in Class II markets, particularly in the area of local-area progressives.

“What you’re seeing more and more now is technology where there’s not only the wide-area progressive, but you’re also seeing the single-site local-area progressives,” says VGT’s Starr. “And those tend to be the games players want to play the most. Particularly, we’re seeing a trend toward those single-site progressives because they tend to hit more frequently.”

Many of the progressives now in the Class II market are in the style of multiple progressives popular in Class III markets right now. “I think the shift to multi-level progressives in Class II is really driven more by the shift of progressives in general,” comments Burke. “The whole gaming market has shifted that way, to the point where if you don’t have games with progressives, you’re in trouble.”

As in Class III, there is plenty of room for innovation in the Class II market. Eclipse Gaming, for instance, offers an “Anyline Progressive” that awards players regardless of the pay line on which a winning progressive lands. “Entertainment obviously is becoming a little more of a factor in Class II,” says Minard. “You see bigger splash, bigger cabinets, more unique cabinets, better lights, better graphics… The math still makes such a difference, but the visual aspects of these games are improving more and more.”

The acceleration of Class II content introduction is supported by the same R&D efforts that support the Class III libraries of all manufacturers—small suppliers like Eclipse as well as the industry leaders. “We do player focus groups,” Minard says, “and we have advisory councils that include players, but mostly consist of slot directors from around the country. We do that regularly; we’re always soliciting feedback.

“And being small, we can be nimble. We’ve been in business 10 years, and we’ve earned a good share of the marketplace. We’ve got over 100 titles, and we have a good stable base of customers that like to play our games.”

The larger, post-merger companies like Everi and AGS, while combining design efforts and growing in Class III markets, mirror that same attitude of managing their market share, their legacy companies having served Class II markets for decades.

“For a company like ours that started as a Class II company, we have a design philosophy in mind, where we’re designing for Class II and Class III customers together,” says DeBruin. “Suppliers that started as Class III might not have the same approach. Everything we offer in Class III, for the most part, we offer in Class II. That’s not always the case with other manufacturers.

“So, I think casinos will continue to look for both Class II and Class III, where they can. I think Class II is certainly here to stay, long-term. I think it’s going to continue to be of critical importance to tribes. It really allows them to maintain their independence… You still have some jurisdictions out there and some states out there that have zero compacts, and it’s purely Class II—Texas, Alabama—so, from a macro level, Class II will continue to be of critical importance to customers.”

“Class II will continue to grow as a percentage of the overall slot product,” agrees IGT’s Knudson. “While I don’t think you will see double-digit increases on an annual basis, I think it’s possible we could see increases on an annual basis in Class II.”

“We were happy to see a few Class II-only properties opening up just in this last year, like Four Winds South Bend in Indiana and Prairie Flower in Iowa,” adds VGT’s Starr. “While there is an expansion of Class II-only properties, we have seen more Class III facilities giving Class II a trial. As we continue to improve Class II quality, more Class III properties continue to add Class II games.”

“I think there’s still this stigma and this thought that technology in Class II is old and antiquated,” says Burke at AGS, “so, I think a lot of people just aren’t aware of how far it’s come.

“I see it growing. I see it becoming a way for tribes to expand their businesses. I think you should see big California operators start to explore smaller Class II facilities on their reservations. The technology is there to do that. The business is there to do that. So, I think that as they mature their businesses, Class II is a natural way to grow it.”

Going to the Dark Side

When the state of Arkansas expressed an interest in legalized casino gambling, it came as no surprise that the Quapaw and Cherokee Indian Nations of neighboring Oklahoma would finance the ballot initiative that got the industry up and going.

When MGM Resorts International built a $1 billion hotel casino in Springfield, Massachusetts, near the border with Connecticut, it made perfect sense for the Mohegan and Mashantucket Pequot tribes to pursue a competing project in East Windsor.

And when the Poarch Band of Creek Indians sought an investment opportunity to capitalize on its casino resort and entertainment interests in Alabama, the tribe’s Wind Creek Hospitality invested $1.3 billion in Sands Casino Resort Bethlehem in Pennsylvania.

“We’ve proven ourselves when it comes to gaming and hospitality,” says Robert McGhee, vice chairman of the Poarch Band, which operates three hotel casinos in Alabama and more than a dozen non-gambling hotels in the Southeast and Caribbean Islands.

American Indian tribes are parlaying skills and experience gained through 30 years of operating tribal government casinos on Indian lands with a growing list of commercial casino ventures in the United States and overseas.

Rather than operating casinos under the Indian Gaming Regulatory Act (IGRA) of 1988, which exempts tribes from state taxes and allows them primacy in regulating their gambling operations, tribes are wading into the commercial gaming sector.

The move off the reservations is to be expected. With the growth of the $32.4 billion tribal casino industry to some 500 gambling operations in 29 states, opportunities on Indian lands have dissipated.

“With some exceptions, the Indian gaming market is fully developed,” says Bryan Newland, chairman of the Bay Mills Indian Community of Michigan and a former counsel with the Department of the Interior. “There are tribes seeking to become new entrants into the gaming market. But by and large, most federally recognized tribes that want to engage in gaming are already doing it.”

 

Opportunity Knocks

About 250 of 370 tribes in the lower 48 states operate reservation casinos. Another 80 or so receive funds from tribal casinos or lease machines. Others are too remote or lack land upon which to build casinos.

“Most of the opportunities in Indian Country have already been developed,” agrees Kristi Jackson, chairman of TFA Capital Partners, an investment banking firm servicing tribal and commercial gambling and leisure industry clients. “It’s more difficult to get land into trust, the regional markets may already be saturated and the spread of commercial gaming is making things less advantageous. There are fewer opportunities.”

The Cherokee Nation of Oklahoma purchased commercial racetracks in Oklahoma and Texas.

Mohegan Gaming & Entertainment, an enterprise of the Mohegan Tribe of Connecticut, owns and/or operates Resorts International in Atlantic City, Mohegan Sun Pocono Race Track and Casino in Pennsylvania and tribal hotel casinos in Washington state and Louisiana. It also is partners in the development of Project Inspire, a gambling resort in South Korea.

Tribes are also outsourcing management expertise and investing in partnerships with other tribes seeking the remaining opportunities in Indian Country.

The Seminole Tribe of Florida, owners of the multibillion-dollar Hard Rock International, operates the former Trump Taj Mahal in Atlantic City and is in partnership with the Menominee Tribe of Wisconsin, Enterprise Rancheria of California and others.

The Chickasaw Nation is financing the 42,000-square-foot Golden Mesa Casino being built by the Loyal Shawnee in the Oklahoma Panhandle near Guymon.

Expanding their gambling interests beyond Indian lands is also part of efforts by tribes to diversify their economies.

“I think there’s going to be more tribes buying gaming assets,” Jackson says. “I also think there’s going to be more tribes buying real estate and businesses related to what they’ve been successful doing. There is a need in most cases to look beyond the boundaries of the reservation and do things that will diversify their economy.

“Tribes may go far afield from what they’ve been doing, from gravel operations to construction management to other kinds of businesses that are not related to hospitality or entertainment,” she says. “We’re working with several tribes, actively. And the common thread is the realization that they have grown as far as they can with gaming on the reservation.

“I will say an absolute trend is the diversification away from home-based gaming.”

 

Confronting Competition

Tribal commercial casino efforts in Arkansas, Connecticut and elsewhere are partly intended to confront or prevent potential competition.

Such is the case with the Quapaw and Cherokee Nation efforts in Arkansas, which last year passed a ballot initiative to legalize four commercial casinos, two at existing racetracks and two others in Pope and Jefferson counties.

Quapaw’s Downstream Casino Resort enterprise and the Cherokee Nation’s Cherokee Nation Businesses (CNB) operate tribal government casinos along the East Oklahoma border with Arkansas.

“Their goal and part of my goal was to protect the western side of the state of Arkansas from expanded gambling, which would encroach on the market of Downstream Casino Resort and the Cherokee Nation,” Quapaw Chairman John Berrey says.

Berrey says the Quapaw also wanted to invest in the tribe’s ancestral lands in Jefferson County.

“Our strategy is to try and get back to where we’re from,” Berrey says. “It’s a mandate from the tribe to get back home.”

The Cherokee Nation, forced out of its ancestral lands in the Carolinas in the 1800s, hopes to expand its market.

“Arkansas, being an adjacent state, would be a logical extension of our operations here in Oklahoma,” says Chuck Garrett, vice president of CNB, the economic arm of the tribal government with gambling, health care, aerospace, technology and other enterprises.

The two tribes contributed more than $6 million to the initiative campaign. Arkansas citizens in November voted 54 percent to 46 percent to adopt Ballot Issue 4, a constitutional amendment allowing four casinos in the state.

Quapaw’s Downstream Development Corporation is looking to open a casino and 12-story hotel in Pine Bluff, in Jefferson County, as early as 2020.

The Quapaw casino would offer all gambling options, including a sports book, but Berrey says sports wagering is not a major focus of casino operation because it has a low profit margin.

The Cherokee Nation, meanwhile, has aspirations of building a casino resort near Russellville in Pope County, not far from where the tribe operates nine casinos in northeast Oklahoma. The tribe failed in attempts to get an initiative on the 2016 ballot.

Developing a casino in Pope County may be problematic.

Pope County voters approved an ordinance requiring county officials to hold a referendum before issuing letters of support for a casino. The ordinance is likely to be challenged in the courts.

The tribe also faces competition. Gulfside Casino Partnership, operator of a hotel-casino in Gulfport, Mississippi, is seeking state approval of a $250 million resort in Russellville.

“We are excited to make a significant economic investment in the Arkansas River Valley with this first-class resort,” Terry Green, co-owner of Gulfside, said in a press release.

“This project will create more than 1,500 new jobs and generate millions of dollars in taxes, improving the county’s infrastructure and its overall quality of life.”

Cherokee leaders fear a commercial operation would seriously impact business.

“A significant portion of our market originates in northwest Arkansas, and if an operator other than Cherokee Nation was to gain a foothold, that would threaten jobs at Cherokee casinos,” CNB CEO Shawn Slaton told the Cherokee Phoenix newspaper.

“It could also decrease, for the first time ever, revenue that ultimately funds health care, housing, education and other tribal services,” Slaton says. “CNB will always go to whatever lengths necessary to protect Cherokee jobs and not only preserve, but continue to increase the dividend paid to the Cherokee Nation, which funds critical services for Cherokee Nation citizens.”

 

Tribal War with MGM

The Mohegan and Mashantucket Pequot tribes of Connecticut have similar concerns about MGM Grand’s $1 billion facility in Springfield, Massachusetts.

The casino entertainment company has lobbied heavily against the tribes’ efforts to develop a commercial casino in East Windsor to prevent the state from losing jobs and revenue to the Springfield resort.

Tribes have assured state officials the East Windsor project would not impact tribal-state casino regulatory compacts that pay the state 25 percent of their slot revenues, or more than $270 million for the last two years.

But MGM has lobbied the Department of the Interior and the Trump White House, stalling the East Windsor project. MGM officials contend the East Windsor project, along with a proposal to establish another casino in Bridgeport, should be open to public bidding.

Now that former Interior Secretary Ryan Zinke has resigned, tribal leaders expect the approvals could be finalized.

State Senator Cathy Osten has submitted a bill, co-sponsored by other legislators, that would eliminate the need for federal approval of the East Windsor project, newly titled “Tribal Winds.”

The tribes say the casino—estimated to cost $250 million to $300 million—would open 18 to 24 months after construction begins and generate $75 million annually in state revenue.

“We’re ready to go when you are,” Mohegan tribal Chairman Kevin Brown told a legislative committee in January. Brown stepped down from his position in February, but remains on the tribal council.

 

A Problematic Process

As a concession to states, the commercial casino industry and anti-gambling interests, authors of the Indian Gaming Regulatory Act (IGRA) largely limited casinos to tribal lands in existence when the act was passed by Congress in 1988.

But the federal law did allow Section 20 exemptions for newly recognized and restored tribes and property acquired in a federal lands claim. The exemptions were intended to provide “equal footing” for tribes not eligible for gambling when the act was passed.

IGRA also allows tribes to develop casinos on trust land off existing reservations, a process referred to as “two-part determinations” because it requires approval from the governor and proof a casino is in the best interest of the tribe and not harmful to nearby Indian and non-Indian communities.

But getting approval from Interior and the Bureau of Indian Affairs under any Section 20 exemption is a long and expensive endeavor, often fraught with politics and likely to result in years of litigation.

“It’s a high bar to clear,” says Newland. “You have to incur millions of dollars of expense to compile the material needed to get through the bureaucratic process. Then if you get a favorable decision, there’s the legal cost to defend the decision in court.

“The process has become very difficult.”

The process grew more complex with the 2009 U.S. Supreme Court ruling in Carcieri v. Salazar, which limited Interior’s authority to place land in trust for tribes.

Justices in Carcieri ruled that Interior could not place land in trust for tribes not “under federal jurisdiction” with enactment of the Indian Reorganization Act of 1934.

Justices, however, did not define “under federal jurisdiction,” giving anti-gambling groups and tribes opposed to new competition legal ammunition to contest Section 20 petitions.

Carcieri caused a lengthy and expensive bureaucratic process to drag on even longer and become even more costly.

“The opposition from existing tribal casinos was not anticipated, nor was Carcieri,” says attorney Alex Skibine, who served as deputy counsel for the House Committee on Interior and Insular Affairs when IGRA was drafted.

The Supreme Court ruling in Carcieri allows opponents to question whether Interior has the authority to place land in trust for gambling.

Congress has rebuffed efforts to enact a legislative “fix” to the Supreme Court ruling in Carcieri.

“The problem is not with IGRA,” tribal attorney Judith Shapiro says of the difficulty in acquiring land for casinos. “The problem is with Carcieri.”

“The easy ones have already been done,” Shapiro says of the trust land casino development in the early years of IGRA. “There hasn’t been a lot of growth. That’s been true for a long time.”

Pamunkey tribal Chief Robert Gray says he would consider operating a casino in Norfolk, Virginia under commercial law rather than struggle through IGRA’s long, complicated and expensive process.

“As a federally recognized tribe with both the right to engage in gaming activities and the financial backing to make it happen, we believe that if the commonwealth is ready to authorize gaming, our project should be part of it,” Gray said in a statement.

“To consider other projects without taking into consideration the Pamunkey casino in Norfolk and the potential of additional Pamunkey casinos in Virginia would fail to take a much-needed comprehensive approach to gaming.”

Jackson says gambling under IGRA may be problematic, but it still provides opportunity for indigenous Americans, particularly newly recognized, restored and landless tribes.

“There are plenty of examples around the country where the revenues from gaming are providing services tribal members would otherwise not have access to,” Jackson says.

Section 20 projects are becoming a rarity.

“Instead of 20 a year,” she says, “there may be one or two.”

 

A More United Industry

The nationwide campaign to legalize sports betting aligned the lobby and trade organizations for the commercial and tribal segments of the legal gambling industry, the American Gaming Association (AGA) and the National Indian Gaming Association (NIGA).

Eleven of the larger casino tribes eventually joined the AGA.

While there are significant differences between commercial and tribal government gambling, there are many policy issues that unite the two segments of the casino industry.

“We made a very consequential decision, and we’re not uniting for the sake of uniting,” says NIGA Chairman Ernie Stevens. “We’re uniting because it’s important to our future.”

Where There’s Smoke

The research and experience of casino operators in jurisdictions around the world suggest that restrictive smoking policies have deleterious effects on gaming volumes. However, very few research studies on the social and economic impacts of nonsmoking constraints have been conducted in gaming facilities owned by tribal governments.

In spite of a relative lack of empirical research, informal outreach across tribal casino operations in California reveals that most tribal casino operators share similar concerns about whether nonsmoking constraints hurt gaming volumes.

Starting in 2008, a coalition of public health professionals began working with two tribes in California to establish smoke-free policies at their casinos. The coalition collected data on air quality and surveyed both patrons and staff at tribal properties. Employees and patrons alike expressed concerns about the risks of regularly breathing secondhand smoke, including an increased risk for lung cancer, stroke and heart disease. While doing their research, public health professionals found that 63 percent of casino patrons surveyed indicated that they would visit more often or equally as often if the casino went completely smoke-free.

After receiving these research results in 2014, tribal leaders from one of the tribes, along with 100 percent of tribal membership, supported adopting a nonsmoking policy at their casino. Ultimately, the tribe decided to make their new casino completely smoke-free, only the second casino in California to do so.

After going nonsmoking in 2014, the tribe’s casino began to see revenues fall, since many casino guests in this repeater-market property enjoyed smoking while they gamble. Ultimately, the tribe and its casino management team modified its policy to remain 70 percent non-smoking. The hotel, restaurants, poker room and Events Center remained smoke-free. The tribe and casino management also committed to ensuring that popular games and machines are available in nonsmoking areas, and to upgrading their overall filtration systems.

This early tribal case, along with prior work in commercial casino jurisdictions, reveals that the No. 1 reason for allowing smoking in tribal casinos (or commercial casino properties) is the widely held belief by casino operators that nonsmoking constraints negatively impact gaming revenues. However, rarely have these claims been studied empirically in more than one property, across several variables and over a significant period of time.

In the spring of 2018, my colleague at San Diego State University, Dr. David Kamper, and I applied for funding from the California Department of Public Health to pursue a rigorous, scientific and objective evaluation of such claims about the impact of nonsmoking constraints on machine volumes in tribal casino operations, with the larger aim of supporting tribal casino operators to make informed decisions regarding nonsmoking policies at their properties. Last fall, we received the news that our funding request has been granted.

While employee and patron surveys have been conducted at a handful of tribal casinos in California, this survey data has never been triangulated with gaming volume data. Our SDSU study will be the first of its kind by introducing game performance analysis of smoking versus nonsmoking sections into the assessment of nonsmoking constraints on tribal casino operations. In addition to performing several analyses of game performance, our study will look at the changes in smoking versus nonsmoking section performance over time to examine whether any negative effects on gaming performance following the introduction of nonsmoking constraints become smaller over time, revealing an adaptation effect.

Over the next four years, we will collaborate with between six and nine tribal governments and casinos in California. Several data collection strategies will be employed. For the game performance analysis, tribal casino operators (most likely slot operations managers) will be asked to complete a data input sheet covering at least six months of data for both smoking and nonsmoking sections.

The data input sheet will ask for information ranging from the number of working games to the gross coin-in to the total win and the total slot player head count. Operators will also be asked to provide information related to property-specific events that may affect game performance independent of nonsmoking constraints, such as anniversary parties, lottery drawings or concerts.

In addition to collecting gaming data, we will with tribal casino operators conduct intercept surveys to gauge the importance of the nonsmoking section in the patronage decision. Also, we will conduct surveys with employees to gauge the importance of the nonsmoking section in their employment and/or job selection decision.

These surveys should also provide insight regarding views, opinions and attitudes toward nonsmoking sections. The data will be collected using employee and patron surveys used in prior research on this topic in order to do comparative analysis.

We expect that the findings from the game performance analysis will indicate the dollar value of any difference in the game-level performance across the smoking condition and whether such differences are statistically significant, including whether they signal an adaptation effect over time. Patron and employee survey data will provide a broader perspective on the value and effect of nonsmoking sections on casino patronage and casino employment decisions, while also providing something of a triangulation function.

The research collaboration we are developing with tribal casino operators in California is also meant to serve as a model of research for other projects that are supported by the Sycuan Institute on Tribal Gaming at San Diego State University. That is, we strive to encourage research that produces actionable results for tribal governments and tribal casino operators while also encouraging the use of empirical data to inform business and government decision-making.

We look forward to sharing the results of this important work as it becomes available, and encourage any interested tribes to reach out to us to participate in this historic project.

Looking Back to Look Ahead

On February 14, I was invited to speak at a symposium, hosted by the Brookings Institute, to discuss what’s next for the tribal gaming industry. Brookings economist Randall Akee brought together a variety of experts and speakers from the United States federal government, tribal governments, academia, and other governmental and non-governmental institutions, all of whom reflected on the first 30 years of gaming under the Indian Gaming Regulatory Act (IGRA) and opined on expectations for the next 30 years to come.

The main takeaway: data matters.

It is no secret that federal law and policy have historically oscillated between two contrasting approaches to Indian affairs. At times, the federal government has enacted laws that detracted from or diminished tribal sovereignty and self-determination.

For instance, with the passage of the Allotment Acts at the turn of the 19th century and into the first decade of the 20th, we witnessed a significant diminishment of the inherent right of tribal nations to make their own laws and be governed by them.

The passage of the Indian Reorganization Act (IRA) in 1934 marked a distinct shift away from assimilationist policies of the Allotment Acts towards restoring tribal sovereignty and self-determination. But this shift did not take place in a vacuum. While many events and facts shaped the motivations and intentions of lawmakers at that time, there can be no question that the Merriam Report served as a significant catalyst for the IRA of 1934.

The 847-page Merriam Report, commissioned by Brookings (then known as the Institute for Government Research), collected data from tribal communities across the United States and studied the economic and cultural impacts that the Allotment Acts had on American Indians. The data showed clearly that the assimilationist policies and laws in place at the time had not led to economic prosperity in Indian Country, but instead, had increased poverty and removed valuable resources from tribal nations and their citizens.

This Brookings-commissioned work was invaluable, and the report quickly became the basis for drafting and passing IRA, an act that sought to restore the tribal sovereignty and self-determination that the Allotment Acts had taken away.

As we reflect on the first 30 years of IGRA today, we can learn a lot from the numbers. From our perch as the federal regulators of Indian gaming, we at the NIGC have been direct witnesses to what has effectively been a three decades-long referendum on the viability of tribal stewardship over the industry. From that perch, we have observed firsthand the conclusive benefits of supporting tribal sovereignty in both the operation and regulation of the industry.

In the last 30 years, Indian gaming has brought Indian Country unprecedented economic development and growth. Today, Indian gaming constitutes a $34.2 billion dollar industry that funds critical tribal governmental programs. Tribal nations are the 13th largest private employer in the U.S.

Additionally, Professor Akee shared that the residual economic effects of the Indian gaming industry cannot be understated. In his research, he has found that over the past 30 years, overall education attainment has increased with graduation rates up by 40 percent, and there is an increase in the likelihood of youth continuing on to vote and become engaged in civic activities.

To be sure, IGRA was the result of a compromise, as it created a role for states in Indian gaming that states previously had never held. At the same time, because Congress crafted IGRA from three foundational principles—tribal economic development, tribal self-sufficiency, and strong tribal governance—the act created a regulatory framework that places tribal self-determination front and center. For the last 30 years, tribal self-determination has guided the NIGC’s regulatory actions and enforcement of IGRA’s mandates and prohibitions.

The NIGC’s primary mandate, therefore, has been to regulate in a manner that strengthens tribal sovereignty and affirms tribal nations as the primary regulators of their own gaming operations.

Much of the success of IGRA’s first 30 years can and should be attributed to the fact that tribes themselves serve as the primary regulators of Indian gaming.

We have seen how the implementation of IGRA has led to one of the most successful industries in the country, if not the world. And I can confidently say that the success of this industry is due to IGRA’s placing the highest level of importance on the principles of tribal sovereignty and self-determination. NIGC has followed suit and incorporates these principles in all that we do.

On several recent occasions, I have been hearing a similar, reoccurring question: “What will the next 30 years of IGRA and Indian gaming look like?” The short answer is we have 30 years of reliable facts demonstrating the successes of Indian gaming, which will shape and push Indian gaming policy into its future.

Ultimately, what lies in store for Indian gaming has yet to be written, and it is up to the decision-makers of Indian policy and the Indian gaming industry itself to ensure Indian gaming continues to see the successes we have witnessed to date. Given our observations of the tangible benefits of adherence to self-determination principles in the creation and implementation of IGRA, advancement of these principles should define future policy discussions, including topics of the day, such as sports betting or internet gaming.

The remarks of those who spoke at Brookings this past February clearly demonstrate that IGRA is one of the most successful and relevant laws to date in Indian Country. After 30 years of IGRA, I am confident that both the NIGC and the Indian gaming community are on the right path.

At the same time, we are mindful of IGRA’s self-determination goals at every turn. As a result, we understand that our regulatory responsibilities require us to collaborate, consult and coordinate with tribal nations at all times, which strengthens tribal self-governance and, as a result, strengthens the industry itself. We are excited to enter into the next 30 years of Indian gaming.

Protecting Tribal Sovereign Immunity

Suppose a federal employee began drinking at work on federal property and caused an accident on his way home. The victim of this accident could certainly bring a suit against the federal employee, but would that victim ever consider suing the United States government? The United States and the 50 states have laws and regulations protecting their sovereign status and ability to be sued. This is a right of the sovereign that goes back to the days of kings.

Indian nations, as sovereigns, possess the same sovereign immunity from suit that federal and state governments possess. Tribal sovereign immunity is a recognized doctrine of federal law based on the status of Indian tribes as sovereigns whose existence predates the United States.

Recently, within the past two years, the Supreme Court has limited tribal sovereignty and jurisdiction vis-à-vis non-Indians. This challenge may also represent an opportunity that can be addressed through the use of risk management, risk pools, tribal tort reform and federal legislation affirming the authority of Indian tribes to establish our own laws on tort reform.

Native peoples are the original inhabitants of the Americas, endowed by our creator with inalienable rights to life, liberty and the pursuit of our ways of life. From the beginning of time, our grandmothers and grandfathers founded our nations’ tribal governments to preserve our native rights, safeguard our rights to freedom and liberty, and exercise self-government to protect native lands, culture and future generations.

When Europeans first landed on American shores, they sought out Native Americans for advice, friendship, and to secure permission to live in America. The Dutch came to New Netherlands (now New York) in 1609 under orders to negotiate with tribes for land. The English colonies sought recognition of their colonial lands taken from neighboring Indian nations, but recognized Indian tribes as the original owners of the soil.

In his Statement on American Indian Policy (1983), President Ronald Reagan explained the historic nation-to-nation relations between the United States and Indian nations:

“When European colonial powers began to explore and colonize this land, they entered into treaties with sovereign Indian nations. Our new nation continued to make treaties and to deal with Indian tribes on a government-to-government basis. Throughout our history, despite periods of conflict and shifting national policies in Indian affairs, the government-to-government relationship between the United States and Indian tribes has endured.”

In the bigger picture, there are looming challenges to tribal sovereign immunity, especially in cases involving tort liability to third parties arising in the commercial context. Often the challenges to tribal sovereign immunity arise in cases where small-dollar claims are at issue—$25,000 in some cases.

In the Kiowa and Bay Mills decisions, the Supreme Court questioned whether tribal sovereign immunity should extend to third-party tort victims. The Supreme Court explained: “There are reasons to doubt the wisdom of perpetuating the doctrine (i.e., tribal sovereignty)… This is evident when tribes take part in the nation’s commerce. Tribal enterprises now include ski resorts, gambling, and sales of cigarettes to non-Indians… In this economic context, immunity can harm those who are unaware that they are dealing with a tribe.”

In Lewis v. Clark (2017), the Lewises were traveling on I-95 in Connecticut south towards New York City, and were struck in the rear by Clark, an employee of a tribal gaming authority. The Supreme Court held: “in a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated. That an employee was acting within the scope of his employment at the time the tort was committed is not, on its own, sufficient to bar a suit against that employee on the basis of tribal sovereign immunity.”

While the Lewis case does not represent a significant diminishment of the doctrine of tribal sovereign immunity, another case might develop into more dangerous limitations. Accordingly, the question arises, should Indian tribes now act to forestall, to the extent possible, such “common law” activism by the Supreme Court vis-à-vis tribal sovereign immunity?

The challenge to tribal sovereign immunity may also be an opportunity. State and local governments have undertaken risk management programs and established risk pools to spread the cost of insuring against third-party tort claims over a period of years and even among small governments.

At least 33 states’ acts limit, or “cap,” the monetary amount for damages that may be recovered from judgments against the state, and at least 29 states (often in combination with a cap) prohibit a judgment against the state from including punitive or exemplary damages.

The Federal Tort Claims Act has been extended to cover Indian tribes and tribal employees in some circumstances under Public Law 93-638 contracts. Yet, in the commercial context, there is little statutory limit on the exposure of tribal sovereign immunity.

As Indian nations, we have always been forward-looking, whether it was land, environmental, or resource protection. Indian Country is not about to let the Supreme Court drag us back to the days when the federal government told us what was best for our communities. Now is the time to be proactive and search for a common ground to protect tribal sovereignty.

Operating risk pools provides an avenue for tribes to pool their economic interests to better manage insurance costs, identify risks early and cooperate on risk management. If tribes can evaluate the intertribal risk pool approach as a model, federal legislation might be sought to limit tribal government exposure by affirming an elective tribal law system of limited waivers of sovereign immunity.

NIGA is committed to taking this sovereignty discussion to the next level of action, and made it a prime topic of interest at our annual trade show. Tribal leaders are eager to start the discussion of how to protect tribal sovereignty in the 21st century.

Indian Country Online

One of the sources of incremental revenue for commercial casino companies has been online gaming. In New Jersey, the struggling Atlantic City casinos were thrown a lifeline with iGaming. Revenue has steadily risen and has helped bolster the bottom lines of those once-struggling casinos. The total monthly gross gaming revenue in New Jersey for online gaming alone is about $35 million, which, if it were a separate casino, would make it the second-highest-grossing casino in the city.

And sports betting is doing its part as well. Just six months into its legalization, New Jersey is taking more than 70 percent of its revenue from mobile betting.

Despite the fact that online betting and mobile wagering are abundant, Atlantic City casinos are also attracting new customers to their brick-and-mortar facilities by offering points and comps via their online rewards club that can only be redeemed inside the casino property.

The question of how tribal government gaming can benefit from online gaming and sports betting is complicated.

Since the vast majority of tribal casinos are located on relatively remote reservations, usually a long drive for customers, tribal leaders are reluctant to give them a choice of playing from a mobile device or a computer. Even though a tribal casino could conceivably derive revenue from iGaming, it is more important to be able to bring that customer to the actual casino. Because usually it’s more than just one person, and usually they do more than just gamble.

So I understand that reasoning.

On the other hand, there are more and more opportunities for people to play online—legally or illegally.

Sports betting is spreading like wildfire across the country. At this time, there are eight states where sports betting is legal and almost 20 where there is legislation to make it so. But in states where tribal gaming is pretty much the only game in town, tribes are shutting down the train. Even when legislation would limit sports betting to tribal facilities.

Now as I said, I understand the reasoning in requiring a customer to visit your somewhat remote tribal casino to gamble, but if sports betting is limited to the tribes, why not incorporate it? Especially if you can add mobile sports betting to your list of offerings.

I also understand that there are concerns about tribal sovereignty, and while I don’t discount the importance of that issue, there are some ways around it—ways to establish a sports betting business outside of the reservation. Not being an attorney, I wouldn’t venture a suggestion about how that could be accomplished, but I know some brilliant tribal lawyers who could get the job done.

The Choctaws in Mississippi have found a way. Yes, I know that they already operate in competition with commercial casinos and must introduce sports betting just to keep pace, but they were able to get over the sovereignty issue, as well as the off-reservation questions. And I’m sure they’ve got a mobile solution in their plans once that becomes legal in the state.

And the Santa Ana tribe in New Mexico has proactively installed sports betting at its Santa Ana Star casino, determining that they have the right under their compact with the state. That’s still to be determined, but sports betting there continues.

But let’s talk about the overall picture, and how tribal gaming is almost completely discounting interactive gambling—at its own peril, I believe.

You can’t bury your head in the sand and pretend that it isn’t happening. Because it is. And without any participation or negotiation from the tribal side, it could be a serious mistake.

We’ve all got these devices called cellphones or tablets that rule our lives these days. You can’t book a plane ticket, check into a hotel room or make a restaurant reservation without one. And they keep getting more and more sophisticated. There’s an app for everything, including lots for gambling.

Tribes that are ignoring this coming technology tsunami are fooling themselves. Yes, you need to balance the issues of in-person gambling and entertainment, along with the sovereignty issues, but iGaming and mobile sports betting are coming. Tribes need to be prepared.

Yes, getting tribes on the same page is very difficult—almost impossible. So maybe tribal members have to think for themselves and decide what is best for their individual tribes.

Let’s end this column with one word: Blockbuster. Used to be one on every corner, but now they’ve disappeared from the landscape because the owners didn’t believe Netflix would work. Who ever heard of mailing a DVD to customers? But that was just the start for Netflix and new technology. Let’s not let tribal gaming become the Blockbuster of the 21st century.

TBE Architects

During the past 45 years, the Native American-owned firm of TBE Architects (Thalden Boyd Emery) has become one the best-known casino-hotel architects in America. Empowered with the tag line “All Hospitality All The Time,” TBE Architects has a depth of experience like no other Native American-owned architecture firm. Its passion in architecture and design has led to working with more than 113 tribes and First Nations, designing more than 200 casino projects and more than 400 hotels.

The firm, with its highly experienced staff of professionals, combines the Native American background and architectural expertise of Chief Boyd, chief executive officer and principal; the creative hotel and casino design expertise of Rich Emery, president and design principal; the design acumen of David Nejelski, creative director and principal; and the management talents of Nick Schoenfeldt, vice president and principal.

Since 1971, TBE Architects has been designing resorts, hotels and casinos for the hospitality and gaming industries. The firm’s approach of creating “Ordinary to Extraordinary” is based on developing unique and exciting visions and bringing them to life. The firm has built a reputation for delivering projects on time and on budget. TBE Architects provides full architectural services including master planning, engineering and interior design.

TBE Architects is an active Associate member of the National Indian Gaming Association, the California Nations Indian Gaming Association, the Arizona Indian Gaming Association and the Oklahoma Indian Gaming Association.

To learn more, visit thalden.com or contact Linda J. Roe, vice president, client development at 602-321-6207.

Scientific Game

Scientific Games is dedicated to being the industry’s only complete global solutions provider with products that will enhance the entire gaming operation, both on the casino floor and behind the scenes.

As an innovator of creative content and technology, Scientific Games continues to set new standards in the gaming industry, leading the way in the design, manufacturing and distribution of premium gaming content and products.

The company’s products stem from the proven, successful brands Bally, Barcrest, Shuffle Master and WMS. Scientific Games’ compelling content and proprietary solutions engage players and empower customers because of cutting-edge technology, decades of extensive industry knowledge and market research insights that provide a deep understanding of player and casino demand and preference.

  • Customers count on Scientific Games for:
    • Electronic gaming machines for commercial and tribal casinos, video lottery, central determination, licensed betting office, arcade and bingo markets across the globe.
  • • An extensive library of proprietary and licensed brand game content that includes some of the hottest entertainment brands, designed to maximize player enjoyment and operator’s return on investment.
  • • A cutting-edge family of gaming platforms featuring the latest technology, engineered with both the player and operator in mind, to take player attraction and engagement to new levels.
  • • Engaging, proprietary table games, table game progressives, card shufflers and chip sorters.
  • • Innovative electronic table games, including fully electronic, multi-terminal and multi-game configurations linked to virtual, hybrid and live games.
  • • The most robust suite of casino system products and solutions that allows operators to manage all aspects of their business while maximizing operating efficiency, player engagement and ultimately, revenue.

For more information, stop by NIGA Booth 934 or visit scientificgames.com.