Back From Tahoe, Y'all

Thread: Gambling and Risk-Taking Conference

We recently made several presentations on Indian gaming at the 13th International Conference on Gambling and Risk-Taking in Tahoe, including a special evening symposium on our book, Indian Gaming and Tribal Sovereignty: The Casino Compromise and a presentation on our thoughts for how to “fix” the Indian Gaming Regulatory Act. (Regardless of our recommendations, Congress may be headed in its own direction on law reform. See our thread on the “real deal” concerning “off-reservation” gaming.)

The conference attracts a diverse group, including scholars studying gambling addiction and practitioners who try to mitigate its effects, casino and cage managers, and mathematicians or professional “advantage players” who seek to “beat” the system (or, at least, to shift the odds at blackjack or poker in their favor). Held at a major casino resort and hotel, there was no shortage of opportunities to see presentations on the virtues or vices related to gaming –- or to drop a few dollars at the blackjack tables down the hall from conference panels.

We often get asked how much we won or lost at the latest gaming conference. Check back next time in this thread and we’ll let you know if theory met practice at the tables in Tahoe. (Maybe that’s the “risk-taking” part of the conference?) We’ll also tell you about the type of questions we received at our presentations about Indian gaming.

IGRA’s “Best Interests” Exception

Thread: Off-Reservation Gaming

Back to our crash course on off-reservation gaming.

The federal Indian Gaming Regulatory Act (IGRA) generally prohibits both Class II (bingo, etc.) and Class III (casino games) gaming on Indian lands that are placed into trust by the federal government after Oct. 17, 1988 (the date IGRA was passed by Congress).

One of the exceptions to this general rule is what we call the “best interests” exception. This exception allows a tribe to open a casino on newly acquired land, regardless of whether it has any connection to the tribe’s current or past reservation, when gaming on the land is “in the best interest of the tribe and its members, and would not be detrimental to the surrounding community.”

A seemingly broad exception, to be sure, but one that is very difficult to meet because it requires both federal and state approval.

First, the U.S. Secretary of the Interior must make that determination – that gaming would be in the best interest of the tribe and would not be detrimental to the surrounding community – after consulting with the tribe, the state, local officials, and officials of nearby tribes.

Second, the state’s governor must concur with the Secretary’s determination. In other words, the governor has veto power over an off-reservation casino.

That two-part approval process creates huge political obstacles to the vast majority of proposed off-reservation casinos. Only three tribal casinos operate under this exception. That’s three casinos in 18 years. Many, many more never make it past the “trial balloon” floated to local officials.

People sometimes tend to assume that because “all politics is local,” local politics must be one-of-a-kind. That’s not true in this case. The type of debates over off-reservation gaming that may be occurring in your home town most likely have parallels in many other communities throughout the United States.

More to come in our short course on off-reservation gaming. Stay tuned –- and feel free to comment.

IGRA’s “Newly Acquired Lands” Exceptions

Thread: Off-Reservation Gaming

So, back to the off-reservation gaming thread. The general rule is that a tribe CANNOT open a casino on lands it has just recently bought or acquired, even if the lands qualify as “Indian lands.”

The federal Indian Gaming Regulatory Act (IGRA) generally prohibits both Class II (bingo, etc.) and Class III (casino games) gaming on Indian lands that are placed into trust by the federal government after Oct. 17, 1988 (the date IGRA was passed by Congress).

There are, though, a handful of exceptions to that general rule.

1. The land is located within or adjacent to the tribe’s existing reservation.
2. For a tribe that didn’t have a reservation in 1988, the land is within the tribe’s last recognized reservation and within the state in which the tribe currently resides.
3. The land is placed in trust as the result of the settlement of a land claim by the tribe.
4. For a newly recognized tribe, the land is within the tribe’s newly created reservation.
5. For a restored tribe (this refers to the federal government’s discredited practice of “terminating” tribes), the land is part of a restored reservation.

All of these exceptions, then, have to do with a tribe’s reservation (even #3, as a tribe’s viable land claim often will be based on the illegal taking of reservation lands).

For anyone who’s interested, such as tribal or gaming attorneys or other practitioners, we provide detailed explanations of these exceptions in our second book, Indian Gaming Law and Policy.

So where does off-reservation gaming come in?

Through the “best interests” exception, which we’ll explain in detail next time in this thread.

Kathryn’s Quoted in this Article – and Gives Important Context

Thread: Indian Gaming in the News

Kathryn is quoted in this June 21 article by Rick Armon that appeared in the Akron (Ohio) Beacon-Journal. The article discusses the most recent edition of economist Alan Meister’s take on the national economic impact of Indian gaming. What’s significant about Kathryn’s response to being asked to comment on these figures – which generally track the trajectory of what the National Indian Gaming Commission (NIGC) and the National Indian Gaming Association say about tribal gaming – is the context she adds to Indian gaming’s seeming across-the-board success.

As Kathryn notes, everyone is aware that Indian gaming “is flourishing in terms of national profits.” But just focusing on the total – in excess of $22 billion in 2005, according to Meister’s study – obscures an enormous variation in tribal experiences with Indian gaming.

In a forthcoming article in the Virginia Journal of Social Policy & the Law, we discuss the NIGC’s latest national economic impact figures (again, similar to the numbers discussed in the Beacon Journal), which illuminate what we call Indian gaming’s “spectrum of success.” Hence the rest of Kathryn’s quote in the Beacon Journal, in which she observes that across the U.S., “some tribes are making phenomenal profits . . . and there are other tribes that are barely in the black.”

Feel free to take a look at the NIGC figures. You’ll begin to get a idea why it doesn’t make a whole lot of sense to see the entire tribal gaming industry as one big, monolithic entity.

We’ll post more on the spectrum of success soon.

IGRA’s “Indian Lands” Requirement

Thread: Off-Reservation Gaming

The legal requirements for off-reservation gaming take some explanation. We’ll break it down into digestible bits.

To begin, the federal Indian Gaming Regulatory Act (IGRA) allows “Indian gaming,” a legal term of art that is defined as gaming (either “Class II” bingo-type games or “Class III” casino-style games) conducted by an “Indian tribe” on “Indian lands.” (What is an Indian tribe deserves its own thread; we’ll save that topic for later.)

“Indian lands” have a specific legal definition under IGRA. They include reservation lands, as well as trust and restricted lands over which a tribe exercises government authority. Not all land owned by a tribe will qualify as “Indian lands” under IGRA. (We explain this point, along with case law, in our second book, Indian Gaming Law and Policy.)

In other words, just because a tribe buys land doesn’t mean the tribe can open a casino on that land.

In fact, there are only a handful of circumstances in which a tribe can open a casino on land it acquires. We’ll walk through those exceptions next.

Off-Reservation Gaming Defined

Thread: Off-Reservation Gaming

What is “off-reservation” gaming? The term, which gets a lot of play in the media and public debate, refers to a tribe’s efforts to open a casino on Indian lands that are not part of, or adjacent to, the tribe’s reservation.

How can a tribe open a casino on land that is not part of its reservation?

Only through a very difficult-to-meet exception set out in the federal Indian Gaming Regulatory Act (IGRA).

From the public debate over off-reservation gaming, you might think that a tribe could open a casino on any street corner in your hometown. Not so. In fact, not even close to being so.

Next time in this thread, we’ll begin a step-by-step explanation of the “real deal” on the law of off-reservation gaming.

What Is Indian Gaming Today?

What is Indian gaming today?

Rapidly growing. In 2005, the tribal gaming industry grossed nearly $20 billion. More than 230 tribes operate some 400 gaming enterprises in 30 states, from phenomenally profitable Las Vegas-style casinos to barely-in-the-black rural bingo halls.

Constantly changing. In a little over two decades, the industry has grown from a handful of operations to some 400 casinos and bingo halls, all governed by a complex and dynamic mix of federal, state, and tribal law.

Impacting lives. Tribal gaming often is credited with lifting many Native Americans out of extreme poverty, while critics charge that its impacts include increased crime and gambling addiction.

Controversial. Indian gaming is in the news every day, and everyone has an opinion.

What is Indian Gaming Today?

The first blog on Indian gaming and the legal, political, and public policy issues raised by the industry. Steve is a political science and public administration professor; Kathryn is a law professor. Together, we’ve been researching and writing on Indian gaming for more than a decade. Through this blog, we’ll bring you the latest news on tribal gaming, with our take on it – what we think is the “real deal” on Indian gaming today.

We’re raring to go, so please check back in the next couple of days for our next blog posting and other updates to our website. Get regular updates from IndianGamingToday.com, including new blog postings, by joining our mailing list. Just enter your name and email address in the handy textboxes on the left side of our home page at IndianGamingToday.com.