Table of Contents
IntroductionThe Indian Gaming Regulatory Act
Economically Speaking..
- The Positive
The Negative
Competition
Conclusion
Footnotes
Bibliography
- Alabama Coushatta Indian Reservation Casino
- Do Casinos Have To Be On Indian Reservations Near
- Indian Reservation Casino Florida
- Indian Reservation Casinos Near Me
- What States Have Indian Casinos
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The law now mandates that Indian reservations still have ultimate sovereignty over most gaming activities, but a tribal-state compact must be signed before a tribe can engage in so-called Class III gaming. The measure would have authorized Nebraska racetracks to add Class III casino gambling. Class III gambling is defined by the U.S. Indian Gaming Regulatory Act (IGRA) as 'house-banked' games, such as slot machines and table games.
Introduction
Scenario exists on the reservation. Native American tribes, and their subordinate tribal entities, do not follow the established business entity template. Tribes may be organized under different sections of federal law and may form subordinate entities, either corporate or unincorporated, under various federal, state, and tribal laws. The prohibitive cost of building casino resorts keeps the majority of Indian reservations off the casino map. Casinos are also separated by classes, and Class III casinos have the most stringent hoops to leap through. In addition, reservations located in remote areas far from major cities do not usually develop casino resorts. All tribally-owned casinos that operate under the Indian Gaming Regulatory Act would be on tribal lands. Some casinos might be technically outside of reservation boundaries, but they would be on tribal trust lands.
Americans love to gamble. In 1995, almost 100 million Americans legally wagered $400 billion and lost $39 billion to the house.[1]'..Americans spent more on legal games of chance than on films, books, amusement attractions and recorded music combined.'(from source dated February 1994)[2] Most of this action took place in major, well-known casinos in Nevada and New Jersey, meaning private, individual pockets (like Donald Trumpís or Steven Wynnís of Mirage Resorts) were filled. Interestingly though, Native American Indians are becoming involved with the glamour and glitz of casinos. Indian reservations across the United States are opening their own casinos. In fact, Foxwoods High Stakes Bingo & Casino of Ledyard, Connecticut, operated by the Mashantucket Pequot tribe, is believed to be the most profitable casino in the Western Hemisphere.[3]'Economic and social problems on Indian reservations in the United States and in other countries are well documented.'[4] Government entities, private research firms, and Indian groups have detailed reports concerning poverty, alcohol and drug abuse, juvenile delinquency, high crime rates, poor educational facilities, and many other problems. Tribal governments push for change and greater Indian self-determination to deal with their people's problems. The argument is that tribes are sovereign entities and are therefore responsible for their own affairs without interference from other governments; and self-determination is a central component of sovereignty.[5]
'Any mention of Las Vegas conjures up images of glitzy casinos with neon facades, a city built by gangsters to prey on the hopes of reckless tourists. Itís an extraordinary place that is also quintessentially American, a mecca for money-worshippers everywhere.'[6] Up until 1988, gambling was only legal in the two states of Nevada and New Jersey. Now gambling is only not legal in the two states of Hawaii and Utah.[7] Traditionally, Nevada and New Jersey were the only states involved in the American gambling industry, now they are feeling the pressure of an additional 46 states entering the gambling arena.
The Indian Gaming Regulatory Act
The Seminole case opened the doors to high-stakes bingo on reservations all over the country. Florida tried to close the Seminole tribe's high-stakes bingo parlor (opened in 1979), but the court ruled that bingo fell under statutes classed as regulatory rather than prohibitory.[10]
The Cabazon case established that once a state has legalized any form of gambling, Indian tribes within that state can offer the same game on trust land without any state interference or restrictions. [Trust land is reserved for and owned by Indians but held 'in trust' by federal government for the benefit of the Indian owners.] This case brought up concerns about tribal regulation of Indian gaming among many groups (i.e. Nevada and New Jersey where gambling is legal, the National Association of Attorney Generals, the National Sheriffs' Association).[11]
In response to the concerns arising, Congress passed the Indian Gaming Regulatory Act (IGRA).[12] This act went into effect on October 17, 1988:
The act is intended to 1) promote tribal economic development, self-sufficiency, and strong tribal government; 2) provide for a regulatory base to protect Indian gaming from organized crime; and 3) establish the National Indian Gaming Commission.[13]The act defines three classes of gambling and gaming: Class I: Social games solely for prizes of minimal value or traditional forms of Indian gaming engages in by individuals as a part of, or in connection with, tribal ceremonies or celebrations. Class II: All forms of bingo, and other games similar to bingo such as pull tabs, lotto, etc. and card games that are explicitly authorized by state law, not including blackjack, baccarat, or chemin de fer. Class III: All forms of gaming that are not Class I gaming or Class II gaming.[14]
Class I gaming is within the jurisdiction of the tribe. Class II gaming is allowed if the state within which the tribe is located allows the gaming to anyone or under any conditions. A tribe is allowed to license and regulate Class II gaming on Indian lands. Class III gaming requires a tribe-state compact. The National Indian Gaming Commission (NIGC) was established to approve the compacts and prevent abuses.[15]The IGRA is having a major impact on intergovernmental relationships among Indian tribes, states, and the federal government. First, the revenues generated have helped spur economic development in Indian country (which, too, supports the goals of tribal sovereignty and economic self-sufficiency). Second, intergovernmental conflicts have started between the tribes and the states over issues involving state sovereignty, criminal jurisdiction, and gambling revenues. Third, the IGRA ensures that the federal government maintains its position of supremacy over tribes and tribe/state relations.[16]
Economically Speaking..
![Indian casinos by state Indian casinos by state](https://s-media-cache-ak0.pinimg.com/236x/fe/bf/92/febf9265004f8760f1e00ff66f7fc4bc.jpg)
Structural hindrance to economic development on reservations: trust land. Trust lands have given tribes a land base and some cultural integrity, but they make it difficult to attract industry and commercial enterprises to the reservation. Trust land can only by leased by industries. Banks are usually unwilling to lend money towards construction on reservations because they may not be able to repossess the structure in a case of default.[20]
The Positive..
In Anne Merline McCulloch's article, she quotes:
According to the Midwest Hospitality Advisors report on Indian gaming in Minnesota, the 13 Indian gaming operations in the State of Minnesota currently employ approximately 5,700 people. Four casinos have become the largest employer for their nearest city, four others are among the top five employers for their communities, and one other is in the top ten. Current employment includes 1,350 Native Americans, or approximately 24 percent of total employees.[22]The report also notes that between 1990 and 1992 the percent of Indian AFDC (Aid to Families with Dependent Children) recipients residing in counties with Indian casinos decreased by 3.2 percent, while recipients in non-casino counties increased by 14.6 percent.[23]
Indian unemployment rates of 30 percent and more are dropping to almost nothing with the emergence of Indian casinos.[24]
Since the enactment of the IGRA, revenues from Indian gaming operations have grown exponentially. Nationwide, total revenues from Indian gaming are projected to top the $6 billion mark, with total profits exceeding $1 billion, in 1995.[25]
To continue with positive aspects, tribes use their profits for the betterment of the reservation and its people. They are building schools/colleges (there are currently 26 tribal colleges nationwide) and community centers, setting up education trust funds/scholarships, investing in alcohol and drug treatment programs, financing new business enterprises (entrepreneurships), and putting in water and sewer systems on the reservations.[26]
The Negative..
Another negative aspect involves an argument researchers debate: those who can least afford to gamble usually are the most affected. 'The poor spent a greater percentage of their income on gambling than the wealthy, giving gambling the same effect on incomes as regressive taxes--the poor are hit the hardest.'[28]
For example, residents of Chelsea, Massachusetts, the poorest city in the state, spend an average of $572 per year on the state lottery, but from that they get back only $80 a person in local aid, according to The Boston Globe. By contrast, the wealthier residents of Lincoln spend only $26 a person on lottery tickets annually, and they get more than that back in local aid.[29]
Opposition
Among Indians, bands have been divided over the gambling issue. Elderly fear losing their traditional values to corruption and organized crime.[30]'..the proliferation of gaming is a spiritual cancer eating away at what is left of the soul of Native American communities.'[31] Many of the younger generation see gambling as an opportunity to advance their people; improve life in their community. '..many are willing to face those stakes [corruption and organized crime] for economic salvation. Casinos are 'one of the first real tools natives have gotten to become self-sufficient,' said Phillip Pelletier, the economic development officer of Fort William First National..'[32]
In 1990, an incident arose among the Mohawks on the Akwesasne reservation, which is located inside the New York state, Quebec, and Ontario borders along the St. Lawrence River near Cornwall, Ontario. The dispute involved six gambling casinos along Route 37, a New York highway. The casinos were illegal under New York law, but their operators insisted that they were on sovereign territory. The contention between the pro- and anti-gambling Mohawks had been holding each other off at gun point. The fighting came to a peak when two lives were taken one night; a Mohawk Indian from each side of the dispute.[33]
Alabama Coushatta Indian Reservation Casino
Donald Trump charged that tribal gaming operations were riddled with crime at a Senate hearing in Washington, D.C. in May of 1993.[34]Trump led some of the U.S. gaming syndicates towards the workings of getting the 1988 Indian Gaming Regulatory Act repealed.[35]..[he] decided to sue the federal government to get the special rights of the Indian tribes revoked.'[36]
In June of 1993, legislation was sought for an amendment to the Indian Gaming Regulatory Act requiring Indian owned casino to record and report all large transactions due to concerns that tribal casinos could be used by organized crime to launder money and evade taxes.[37]
Some state cases of opposition include: KANSAS - the Kansas attorney general successfully sued the governor in blocking legal recognition of a gaming compact that had been reached with the stateís Kickapoo tribe; OKLAHOMA - a court decision blocked implementation of federally approved Indian casino compacts as unlawful under the stateís constitution; WASHINGTON - a federal judge ruled against the Colville tribe in its attempt to compel the governor to negotiate a gambling compact with the tribe, finding such negotiations constitutionally flawed.[38]
Other state governments have avoided signing federally required gambling compacts with tribes by invoking the 10th and 11th Amendments. (The 10th asserts a stateís sovereignty and its freedom from being told what to do by Congress. The 11th protects states from being sued.)[39]Other courts have allowed Indians to offer games that are not permitted anywhere else in the state. For example, in California, a federal judge allowed tribal casinos to operate an array of games the state objects of, including video poker and Keno.[40]
Competition
'The national prominence of tribal casinos has also given Indian leaders potential political clout, especially with the federal government.'[44]'Tribal governments realize that a casino is not an end in itself. It is a means to achieve what no state or federal economic development program has been able to achieve for Indian people in 200 years--the return of self-respect and economic self-sufficiency,' says JoAnn Jones, tribal chair of the Wisconsin Winnebago Nation.'[45]
Native American Indian reservations are not international (although they are often compared to Third World nations [46]), but they are not governed by the same laws as the states either. States have no power to tax, regulate, or police casinos run by Indian tribes. Indian gambling revenues are exempt from federal, state, and local taxes! Of course this does not leave state officials or other casino competitors with a good taste in their mouths.[47](New Jersey imposes an eight percent tax on casino revenues which funds senior citizen and handicapped programs.[48])
Donald Trump has also attempted to interrupt the growth of Indian reservation casinos. On April 30, 1993, he filed a civil suit in U.S. District Court in Newark, New Jersey against U.S. Secretary of the Interior, Bruce Babbitt, and Tony Hope, chairman of the National Indian Gaming Commission, claiming that the Indian Gaming Regulatory Act is unconstitutional and gives Indians preferential treatment and an unfair advantage in acquiring licenses for setting up legal casinos on their land.[49][50]
Coincidentally, Trumpís three Atlantic City casinos, Trump Castle, Trump Plaza, and Trump Taj Mahal, are feeling the heat from the Mashantucket Pequotís Foxwoods casino in Connecticut and are fearing the possibility of the Ramapough Indians of Northern New Jersey opening a gambling operation near Atlantic City. 'Unabashed motor mouth Donald Trump lived up to his reputation on Oct. 5 when he told a congressional hearing that organized crime is rampant on Indian reservations. Trump went on to predict that if the trend toward gaming on Native American land continues, ëthis will be the biggest crime problem in this countryís history.í'[51]
From the Nightly Business Report transcript of December 20, 1993, announcer Mikkelson said, '..others say the fate of Atlantic City still rests in the hands of the state,.. And competition is getting closer. Indian run Foxwood Casino in Connecticut is luring high rollers away.'[52]
Guest Hector Mon, Executive Vice President of Harrahís Casino, responded with, 'We do recognize that weíre no longer a regional monopoly and we will have to work harder to keep our customers in the future.'[53]
'Atlantic City Mayor James Whelan said the region recognized that the proliferation of gaming was a 'serious' threat and is taking 'significant' steps to stay competitive. ëWe must change our image from that of a convenient location to gamble back to the destination resort that we once were,í he said,' including improvement to the cityís infrastructure, transportation system and attractions.[54]
Las Vegas Mayor Jan Laverty Jones said officials in that city have long predicted gaming would expand nationally and have taken appropriate measures. 'We have been looking to diversify our economic base so as not to be so dependent on gaming. Weíve been bringing in other businesses and developing the mega-resorts to draw the family market. Though gaming is certainly central here, it is not the only entertainment available, and I think weíve been very successful at letting people know that.'[55]
![Do Casinos Have To Be On Indian Reservations Do Casinos Have To Be On Indian Reservations](https://img.huffingtonpost.com/asset/55b7de9b1d00002f00143018.jpeg?ops=scalefit_630_noupscale)
'..opponents say government-sanctioned Indian casinos like Foxwoods will pull business away from privately run casinos in Atlantic City, Las Vegas and elsewhere.'[56] Other enterprises have complained that Indian gambling has ruined their business. In Wisconsin, Indian reservation gambling began in 1991. By July of 1993 there were 17 Indian casinos in the state. Also in the area, a $17 million dog-racing track had opened in 1990. During 1991 and 1992, it lost $6 million with high probability of being closed in the summer of 1993, taking jobs and tax revenues with it.[57]
Conclusion
In 1988, the Indian Gaming Regulatory Act gave the troubled Indians on the reservations the opportunity to better themselves through their own efforts. The fact that many tribes so far have been successful, and many more are desiring to start their own casinos to grab a piece of the industry is what kills the monopolistic-desirous moguls like Trump. They should not be taking away the window of opportunity that was opened only 8 years ago for the Indians. People like Trump fear loosing their billions of dollars and control of their mostly secluded industry that had little competition before.
Competition is an inevitable force. It is an entity that appears where success is experienced. Trump-ites should pursue the path of innovation and refinement as a means to prevent downfall. For example, Las Vegas' attempt at family entertainment (however, I'm not sure that family element is an ideal approach - is the mixture of amusement park with gambling, smoking, drinking, and prostitution the kind of environment you would like to take your children to for vacation?).
Tribes able to make large profits from gambling need to secure the welfare of the future through reinvestment within the tribe's people because market saturation might be reached, be it additional Indian casinos and/or lawmakers legalizing gambling to all. They should take advantage of what they have now, because it could be gone tomorrow!
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Date: May 6, 1996
Footnotes
- 1. Chris Ison, 'Gamblingís Toll in Minnesota,' Readerís Digest (April 1996): 101. Return
2. Jon Magnuson, 'Casino Wars: Ethics and Economics in Indian Country,' Christian Century (February 16, 1994): 169-171.Return
3. Richard L. Worsnop, 'Gambling Boom,' CQ Researcher (March 18, 1994): 255. Return
4. Don A. Cozzetto, 'The Economic and Social Implications of Indian Gaming: The Case of Minnesota,' American Indian Culture and Research Journal (Winter 1995): 119. Return
5. Ibid., 119. Return
6. Betsy Reed, 'Americaís New Addiction,' Dollars and Sense (July/August 1994): 18. Return
7. Ison, 101. Return
8. 658 F.2d 310 (1981), cert. denied, 455 U.S. 1020 (1983). Return
9. 480 U.S. 202 (1987). Return
10. Anne Merline McCulloch, 'The Politics of Indian Gaming: Tribe/State Relations and American Federalism,' Publius (Summer 1994): 99-113. How to always win in roulette. Return
11. Ibid. Return
12. 25 U.S.C.A. 2701. Return
13. McCulloch, 99-113. Return
14. 25 U.S.C.A. 2703. Return
15. McCulloch, 99-113. Return
16. Ibid. Return
17. U.S. Department of the Interior, Bureau of Labor Affairs, Indian Service Population and Labor Force Estimates (Washington, D.C.: Bureau of Indian Affairs, 1991): 2. Return
18. Marlita A. Reddy, ed, Statistical Record of Native North Americans (Detroit, Mich.: Gale Research, 1993): 685. Return
19. McCulloch, 99-113. Return
20. Ibid. Return
21. Ibid. Return
22. Midwest Hospitality Advisors, Impact: Indian Gaming in the State of Minnesota: A Study of the Economic Benefits and Tax Revenue Generated (Minneapolis, Minn.: MHA, 1992): II-1. Return
23. Ibid. Return
24. McCulloch, 99-113. Return
25. Cozzetto, 123. Return
26. Ibid., 120,125. McCulloch, 99-113. Return
27. Cozzetto, 126. Return
28. Judy Zelio, 'The Fat New Buffalo,' State Legislatures (June 1994): 38-41. Return
29. Reed, 19. Return
30. Marci McDonald, 'Tribal Gamblers,' Maclean's (May 30, 1994): 32-33. Return
31. Magnuson, 169-171. Return
32. McDonald, 32-33. Return
33. Peeter Kopvillem, 'Tribal Warfare,' Maclean's (May 14, 1990): 14. Return
34. Zelio, 38-41. Return
35. McDonald, 32-33. Return
36. Pierre Briancon, 'Betting with the Indians,' World Press Review (December 1993): 36-7. Return
37. Rogers Worthington, '..and where it stops, nobody knows,' Chicago Tribune (August 22, 1993 Final Edition): Sunday Magazine Section, zone C, p.14. Return
38. Ibid. Return
39. Ibid. Return
40. Thomas J. Maier. 'The Big Gamble; Indian Gaming Law Remains Volatile Issue,' The Record (May 14, 1993): Business Section, p.E01. Return
41. Dick Dahl, 'The Gamble that Paid Off,' American Bar Association Journal (May 1995): 86. Return
42. McCulloch, 99-113. Return
43. Cozzetto, 123. Return
44. Ibid., 120. Return
45. Zelio, 38-41. Return
46. McCulloch, 99-113. Return
47. W. John Moore, 'A Winning Hand?' The National Journal (July 17, 1993): 1796. Return
48. Anthony Birritteri, 'Casino gaming industry prepares for battle of the century,' New Jersey Business (August 1994): Section 1, p.48. Return
49. Worthington, 14. Return
50. Judith Evans, 'Calculated Gamble; Trump cries foul over Indian casinos,' Newsday (May 4, 1993 City Edition): Business Section, p. 41. Return
51. Thane Peterson, 'Bury His Mouth at Wounded Knee,' Business Week (October 18, 1993): 42. Return
52. The Nightly Business Report (December 20, 1993): Community Television Foundation of Southern Florida, Inc. Return
53. Ibid. Return
54. Theresa J. Post, 'Casino gambling on a roll, creating new markets for trade; tourist industry,' Travel Weekly (May 10, 1993): 1. Return
55. Ibid. Return
56. Maier, 64. Return
57. Moore, 1796. Return
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The development of gaming operations on Indian reservations, and the phenomenal success some tribes have had with these operations, has brought a new dimension to the debate over Indian sovereignty. For the first time some tribes now have, through gaming profits, the economic means to exercise their 'inherent sovereign powers,' among many, the ability to provide essential services themselves rather than having to depend on the government. States, however, have perceived this growth in Indian gaming as a challenge to their sovereignty and have, along with the non-Indian gaming industry, sought to restrict Indian operations. Tribes, in turn, see such attempts to limit their ability to run gaming as infringements on their sovereignty.
GAMING AND INDIAN SOVEREIGNTY
The era of reservation gaming was ushered in by the Supreme Court's decision in the 1987 case Californiav. Cabazon Band of Mission Indians. The Court ruled that a state has no authority to regulate or prohibit gaming on Indian lands if the State otherwise allows gaming. Since few states criminally prohibit all types of gaming ('Las Vegas' nights for charity, for example, are widely permitted), most states, suggests Indian law attorney Linda Epperley, arguably had no power under this ruling to intervene in any type of Indian gaming activity (Epperley 1992: 413).
Congress attempted to give some control over Indian gaming to the states by adopting in 1988 the Indian Gaming Regulatory Act (IGRA). Under the provisions of the Act, states are required to enter into good-faith negotiations with tribes who wish to establish gaming operations. A gaming compact must be reached in this manner between the state and the tribe if Indian gaming operations are to be lawful.
The IGRA, notes attorney Robert Nance, is an 'experiment in shared sovereignty' (Nance 1992:71). The Act requires tribes to negotiate compacts with states to conduct gaming. But because states and tribes negotiate as distinct sovereigns, states cannot automatically impose upon tribes limitations on gaming that they impose on their own citizens. Conversely, under the IGRA tribes cannot conduct gaming operations without state input. According to Nance, 'by act of Congress, the subordinate sovereigns must negotiate the terms of permitted Indian gaming, neither being free to dictate to the other. Thus, tribes and states must creatively manage to share sovereignty over gaming conducted in Indian country.' This 'shared sovereignty' approach has come under criticism by opponents of Indian gaming (and of the IGRA in particular) and is at the center of a current movement to impose tighter controls on reservation gambling.
CLAMPING DOWN
At the time of the IGRA's passage, it is unlikely that anyone foresaw the enormous growth potential for Indian gaming. Minnesota Congressman Gerry Sikorski, for example, stood before Congress and described Indian gaming as 'a couple of video machines hundreds of miles from Donald Trump and the Vegas strip .. piddling money to the big boys.' But by 1993, 25 states allowed some form of gaming on reservations and the profits from Indian gaming had skyrocketed to $6 billion. 175 tribes were involved with gaming.
Trump, as well as state governors and other government officials, was claiming that Indian gaming was out of control, corrupt, and in dire need of stricter governmental regulation. In testimony before a Congressional hearing in October 1993, Trump stated that 'it's obvious that organized crime is rampant on the Indian reservations. This thing is going to blow sky high. It will be the biggest scandal since AlCapone, and it will destroy the gaming industry.' The FBI refuted these statements and has testified that it has not detected major incursions by organized crime into Indian gaming around the country.
Trump has also filed a lawsuit against Secretary of the Interior Bruce Babbit and Anthony Hope, Chairman of the National Indian Gaming Commission, alleging the unconstitutionality of the IGRA. The suit says that states should have the right to decide whether to allow gambling and that the Act gives Indians casinos an unfair advantage over Trump's and other casinos.
Do Casinos Have To Be On Indian Reservations Near
The IGRA has likewise come under attack from members of Congress and state governors seeking to rein in Indian gaming and increasing state control. In 1993 New Jersey Representative Robert Torricelli introduced the Gaming Integrity and State Law Enforcement Act as a means of reforming the IGRA by giving greater oversight power to the states. 'What has happened (since the implementation of the IGRA) does not reflect the original intent of the IGRA legislation,' he said in testimony before the Senate Committee on Native American Affairs. 'Native Americans have established forms of gaming that no other citizens are allowed to operate.' Torricelli's bill is to be considered by Congress during the summer of 1994.
Indian Reservation Casino Florida
For their part, many Indian groups have vehemently opposed the moves by Trump, Torricelli, and others to restrict what they see as their legal right to establish and control gaming operations on their tribal lands. These attempts amount to 'economic racism,' said Barona Band of Mission Indians Tribal Chairman Clifford LaChappa. Other Indian leaders accuse those seeking to restrict Indian gaming of ignorance of Indian law and of being in the pockets of Las Vegas and Atlantic City gambling concerns.
Thus sovereignty - as it is variously interpreted with regard to the gaming issue - remains at the center of concern. On one side, Indians argue that as sovereign nations - a status recognized by federal law - only their should have the right to regulate gaming on their lands and to reap its benefits. Gaming revenues have provided them the economic power to reassert their sovereignty. Tribes have thus established a strong link between sovereignty and self-sufficiency. According to Gaiashkibos, president of the National Congress of American Indians, 'Our tribes recognize that gaming is an activity which goes far beyond the debates over the details of the gaming industry itself: gaming involves tribal authority, self-determination, and the sovereignty to control our own destinies. The issues of sovereignty of self-determination are part and parcel of the question of `who should regulate Indian gaming.'
Supporters of states' rights, on the other hand, argue that gaming-strengthened tribal sovereignty is in fact acting to erode state sovereignty. State governors, in seeking to amend the IGRA, have argued that gaming oversight should be within the realm of state, and not tribal, sovereignty. 'States recognize and support the economic self-sufficiency of Indian tribes,' said Governor Mike Sullivan of Wyoming, testifying before Congress on behalf of the National Governors' Association earlier this year. 'We do not believe, however, that such economic development should come at the expense of state sovereignty or dictate, directly or indirectly, state policy decisions.'
THE WAMPANOAGES: A STUDY IN SOVEREIGNTY
There is, of course, no unanimity within Indian tribes as to the threats or benefits of gaming to tribal sovereignty. Some tribes, such as the Alabama-Coushattas of Texas, have flatly rejected proposals to establish gaming on their reservations, citing moral and ethical considerations. Mixed feelings about gaming have also been expressed recently among the Wampanoag nation of Massachusetts. Inspired by the mega-profits earn by the Mashantucket Pequots at the Foxwoods casino in Connecticut, the Wampanoags have been negotiating with the Massachusetts state government to establish their own gaming complex. One study estimated that such as operation could bring in revenues of over $1 billion a year.
Supporters of gaming within the tribe maintain that, as a poor and numerically small tribe, the gaming money would allow the Wampanoags to recover their tribal traditions, many of which have been lost since the Wampanoags' first contact with English settlers in 1620. These supporters argue that by asserted its sovereignty through gaming revenues, the tribe could not only recover its past but also, as other tribes have done, assure its future. 'Maybe some people say you deserve to be poor, but I don't ascribe to that,' said Jeffrey Madison, the tribe's director of economic development. 'We've got nothing. People can get very complacent in their existence, but whether they know it or not, there's a better life out there for our children.'
There is, however, a vocal minority within the Wampanoags that opposes the tribe's involvement with gambling. This group says it fears that security and sovereignty will be gained at the cost of tribal integrity. They also express sadness that something as morally dubious as gaming should be the Wampanoags' ticket out of poverty. 'As Americans, we should all be ashamed that the state has to take care of its people with gambling,' said Gladys Widdiss, a tribe member.
Massachusetts governor William Weld has been generally supportive of the Wampanoags' efforts. His administration is reportedly seeking $100 million from the tribe in exchange for exclusive gaming rights in Massachusetts. Some of Weld's advisors, however, have criticized the attempt to bring legalized gambling to the state. Attorney General Scott Harshbarger has called for comprehensive regulations to prevent corruption before authorizing any gaming operations. Weld's chief legal counsel, Brackett Deniston, has also raised questions about the Wampanoag's financial partner in the project, Carnival Corporation.
Massachusetts' two U.S. sentors, Edward Kennedy and John Kerry have not taken a position on the tribe's proposal. However, U.S. representative Barney Frank, whose district contains the town in which the Wampanoags' would locate their casino, strongly supports the tribe's plans. 'I will fight anything that makes it impossible for the Wampanoags to reach an agreement with Gov. Weld,' he said recently. Despite Frank's support, federal officials estimate that it could be another three years before the tribe can obtain all the approvals needed to establish their operation.
AN INHERENT RIGHT TO SOVEREIGNTY
The second part of this article is (except where noted) based on Stephen L. Pevar's The Rights of Indians and Tribes: The Basic ACLU Guide to Indian and Tribal Rights (Southern Illinois University Press: 1992).
In light of the gaming issue, the question of what exactly is meant by Indian sovereignty needs to be examined. The advent of gaming has not necessarily made the answer to this question any clearer. Part of the problem is that sovereignty is a murky concept in any context. Oppenheim's International Law states that 'there exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.'
This lack of 'universal agreement' on the meaning of sovereignty is certainly true with respect to its application in the Indian context. There is substantial dissension among politicians, scholars, and among Indians themselves as to just what Indian sovereignty entails. The concept has been subject to both wide and narrow interpretations since Indians first entered into formal relations with European settlers.
There are, however, basic constructs pertaining to the nature and scope of Indian sovereignty that have remained in place and continue to influence perceptions of the issue.
ELEMENTS OF SOVEREIGNTY
The most basic component of any notion of sovereignty is self-government. No entity can be sovereign without the ability to govern itself. Indian nations clearly do have the right to self-government. The Supreme Court first recognized this 'inherent right' in the landmark 1832 decision Worcester v. Georgia. The Court ruled that the state of Georgia could not impose its laws on the Cherokee Indian Reservation, noting that:
Indian nations [are] distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.. Indian nations had always been considered as distinct, independent political communities, retaining their original rights, as the undisputed possessors of the soil from time immemorial..The Cherokee nation, then, is a distinct community, occupying its own territory..in which the laws of Georgia can have no force.
This principle was reaffirmed by the Court in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe (1991), in which it stated that 'Indian tribes are `domestic dependent nations' which exercise inherent sovereign authority over their members and territories.' A number of important powers held by tribes flow from this inherent right of self-government. Among them are (1) the ability to determine tribal membership; (2)regulation of tribal property; (3)regulation of individual property; (4)the right to tax; (5)the right to maintain law and order; (6) the right to exclude nonmembers from tribal territory, (7)the right to regulate domestic relations; (8)and the right to regulate commerce and trade.
FEDERAL POWERS AND INDIAN SOVEREIGNTY
Despite these powers, however, Indian sovereignty is ultimately a 'limited' sovereignty. The Supreme Court has described tribal governments as 'quasi-sovereign' and 'semi-independent.' (U.S. v. Kagama 1886). By sheer might, if not, as some argue, by legal justification, the U.S. government retains final authority to 'legislate for the Indian tribes in all matters, including their form of government.' (U.S.v. Wheeler 1978).
The ostensible legal basis for this power is found in the U.S. Constitution. Article I, section 8, clause 3 (the Commerce Clause) provides that the 'Congress shall have the Power..to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.' Article II, Section 2, clause 2 (the Treaty Clause) gives the President and the Senate the power to make treaties, including treaties with Indian tribes. The Supreme Court held in Worcester that these two constitutional provisions provide Congress with 'all that is required' for complete control over Indian affairs. This is the doctrine of 'plenary power,' the cornerstone of relations between the federal government and Indian tribes. Under plenary power, the Congress has 'full and complete' power over all Indian tribes, their government, their members, and their property. This power includes the authority to eliminate tribal powers of local self-government.
In addition to using the doctrine of plenary power, the U.S. courts have upheld the right of Congress to impinge on Indian sovereignty based on two other principles known as the 'political question' and 'federal trust responsibility' doctrines. The former was invoked in the Supreme Court's decision in Lone Wolfv. Hitchcock (1903). The Court upheld a law that Indians had challenged as a violation of a prior treaty with the Indian nation. The Court supported the statute by stating that the power of Congress over Indian affairs was of a 'political nature' and thus a matter for the executive or legislative branches, not the federal courts.
The federal trust responsibility doctrine is one of the most important elements of Indian law. Simply stated, the trust responsibility is the legal obligation of the U.S. government to protect Indian lands, resources and right of self-government. This obligation stems from the idea that promises made by the U.S. government in treaties with Indians - promises which included the creation of reservations and the protection of tribal members by the government and the giving up of land by the Indians - create a 'trust relations.' The Supreme Court has noted that the promises made in this way create 'a duty of protection' toward the Indians. (U.S. v. Kagama 1886).
The courts have extended the trust responsibility so that federal statutes, agreements and executives orders can create trust obligations in the same way a treaty can. The government, however, is not obligated to perform a specific act under the trust responsibility doctrine unless a treaty, statute, or agreement expressly imposes or clearly implies that obligation. Moreover, a trust responsibility is in effect 'self-imposed' by the government. It can terminate a trust relationship with an Indian tribe at any time, with or without the tribe's consent. Thus, although theoretically a tool for protecting Indian rights, the trust responsibility has also been used the government to take away Indian lands and resources and restrict tribal governments in the name of protecting Indians.
STATE POWERS AND INDIAN SOVEREIGNTY
The U.S. Constitution gives Congress rather than the states exclusive authority over Indian affairs. Thus, generally speaking, unless Congress has authorized a state to apply its laws within an Indian reservation, it may not do so. States in fact have very little authority to regulate reservation Indians. The Supreme Court has noted that, 'the policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history.' (McClanahan v. Arizona State Tax Commission 1973.) The inability of states to tax or regulate the affairs of Indians has caused considerable resentment on the part of some states' residents towards Indians. These feelings are currently evident in the debate over Indian gaming.
As a general rule, states do not have the right to regulate the activities of reservation Indians. The Supreme Court affirmed this rule in Worcester v. Georgia by declaring that state laws 'can have no force' within an Indian reservation unless Congress has authorized the state to apply them there. The Court has since moved away from this absolute position, stating recently that 'there is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members.' (White Mountain Apache Tribe v. Bracker 1980). Thus, a state law authorized by Congress is valid, but some state laws can be applied within Indian country even if not expressly authorized by Congress. Nearly every law, however, that states have attempted to enforce within Indian country has been struck down by the courts, except for those explicitly authorized by Congress.
The Supreme Court now uses a two-part test to determine which state laws can be enforced in Indian country without congressional approval. The parts of this test are known as the 'federal preemption test' and the 'infringement test.' The former stipulates that a state law that is inconsistent with federal law is not valid. If a federal law, for example, prohibits states from taxing Indian land, a state tax on that land violates the presumption test. The infringement rest, established by the Court in 1959 in Williams v. Lee, provides that a state may not infringe 'on the right of reservation Indians to make their own laws and be ruled by them.' This principle protects the inherent right of Indian tribes to be self-governing.
A state law must pass both of these tests in order to be valid. State laws affecting reservation activities must also be viewed against a 'backdrop' of tribal sovereignty, the inherent right of the Indian tribe to govern itself. The Supreme Court explained in 1980 (Bracker) that 'traditional nations of Indian self-government are so deeply ingrained in our jurisprudence that they have provided an important `backdrop' against which' the state law in question must be viewed.
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CONCLUSION
Although there is a wide difference of opinion among both Indians and non-Indians as to its costs and benefits, gaming on reservations has grown rapidly since 1988 and will likely continue to do so for some time. Thus the sovereignty issue will remain one of great significance for tribes as well as for state governments affected by newly-empowered assertions of Indian sovereignty. Ultimately, the issue is - as are all questions of sovereignty - one of control. Who will control the profits earned by Indian gaming? Tribes argue that they, as sovereign nations, have the right to determine the allocation of this money. States will continue to argue that it is their prerogative to restrict and control Indian gaming so that it does not get 'out of hand' or become contaminated by Mafia influence. Tribes counter that such concerns are misplaced; gaming is within their dominion, and thus they will take responsibility for whatever consequences may occur. Both sides seek to assert their control and, ultimately, to protect their sovereignty.
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Article copyright Cultural Survival, Inc.
CSQ Issue:
June 1994