Indian Gaming as “Public Gaming”

Thread: The Big Picture

At times we like to return to "the big picture" of Indian gaming. We've mentioned in other posts that sometimes people seem to conflate tribal gaming with commercial gaming. So what is so different about Indian gaming? It depends on your perspective, of course, but among the reasons are:

Public vs. private sector. Indian gaming is “public gaming” – that is, government-sponsored and government-operated. Indian gaming, therefore, is more akin to a state lottery than to a Vegas casino. The profit motive and revenue use are quite different.

Legal frameworks and policy rationale. The legal framework for Indian gaming sets forth Congress’s specific federal policy goals, which include generating reservation economic development, promoting strong tribal governments, and tribal self-sufficiency. The underlying public policy goals are very different than those for commercial or charitable gaming.

State regulatory role. States have less of a say-so in how Indian gaming is regulated than they do for other forms of gaming. This doesn’t mean that Indian gaming is unregulated; instead, its regulatory structure is unique, as casino-style gaming on reservations involves federal, state, and tribal regulation.

Constitutional rationale. Aha – this is the big one, since last time we checked, there was no mention of gambling in the U.S. Constitution. Yet there is a constitutional rationale for Indian gaming: tribal sovereignty. It's tribal sovereignty, arguably, that presents the most difficult questions for constitutional or Indian law scholars and the "rest of us" alike.

We'll return to this "big picture" issue of tribal sovereignty, so be sure to look out for our thoughts on that.

Menominee a Step Closer to Kenosha Casino

Thread: Indian Gaming in the News (Off-Reservation Casinos)

A month after preliminary approval by the regional BIA office of an off-reservation casino near Beloit, Wisconsin, the same office gave preliminary approval to another off-reservation casino: the Menominee Nation's $800-million Dairyland proposal in Kenosha, Wisconsin. The Kenosha casino's location midway between Milwaukee and Chicago may tap into a lucrative market, and has drawn criticism from the Forest County Potawatomi Tribe, which has a casino in Milwaukee, one of the only operating off-reservation casinos in the country. Would more than one casino in the area saturate the market?

A Kenosha casino has been in the works for a number of years. We wrote about the politics and machinations of off-reservation gaming in Wisconsin in our 2001 article in the Gaming Law Review, "Are All Bets Off? Off-Reservation Indian Gaming in Wisconsin."

A New Jackpot in New Mexico?

Thread: Indian Gaming in the News

The 13 gaming tribes in New Mexico have asked Governor Bill Richardson to renegotiate existing tribal-state compacts, and it appears the tribes and the state soon will announce they’re reached new agreements. Tribes currently pay 8 percent of slot-machine proceeds to the state – roughly $40 million per year. They’re ready to pay more. Why would the tribes voluntarily renegotiate when the compacts don’t expire until 2015? And why would they offer to increase the state’s take?

Tribes are looking down the road – way down – and they see that a little foresight today will forestall major roadblocks in the future. The best way to attract outside investors is to demonstrate a low-risk lending environment. With stable, no-surprises compacts in place, tribes can leverage their existing properties to obtain necessary external financing to further expand their gaming operations and diversify their economies.

The state treasury benefits, as well. That’s why a January 18 editorial in the Albuquerque Tribune lauds the renegotiations as providing a potential “jackpot” for tribes and the state.

Labor Organizations and Tribes Urge California Legislature to Approve Compacts for Off-Reservation Casino

As reported in this press release from early January, the Los Coyotes Band of Cahuilla and Cupeno Indians and the Big Lagoon Rancheria are pushing for state legislative approval of the Barstow compacts, negotiated with Gov. Schwarzenegger in 2005, with support from the Teamsters, Hotel and Restaurant Employees Union, the American Federation of State, County, and Municipal Employees, and the California State Building and Construction Trades. Environmental organizations also have voiced support for the compacts, including the Sierra Club and the Natural Resources Defense Council. Other tribes with casinos in the area have been opposed to the compacts.

For more on tribal attempts to find common cause with organized labor and labor-backed Democrats in California, see this January 18 article in the San Diego Union-Tribune.

One Step Closer to Off-Reservation Casino in Beloit

Hold on a minute. Maybe there will in fact be another “off-reservation” casino. (See our January 13 post on “the fourth and final ‘off-reservation’ casino”.)

Six years after submitting a proposal for a casino in Beloit, Wisconsin, the St. Croix Chippewa and the Bad River Band received word that their proposal has been approved by the BIA's regional office. The next step is review by the BIA's Office of Indian Gaming, which will make a recommendation to Interior Secretary Dirk Kempthorne. And, of course, Wisconsin Governor Jim Doyle also has to approve. Doyle hasn't said whether he'll sign off on the Beloit casino.

The Fourth and Final "Off-Reservation" Casino?

Thread: Off-Reservation Gaming

The St. Regis Mohawk Tribe is one step closer to opening an "off-reservation" casino in the Catskills. The $600 million project will cover 30 acres next to the Monticello Gaming and Raceway, owned by Empire Resorts. The casino will include traditional and electronic slots as well as blackjack, roulette, and craps.

The Tribe is proceeding under IGRA's "best interests" exception for gaming on newly acquired lands, which requires the Interior Secretary to determine that the casino would be in the Tribe's best interests and would not be detrimental to the surrounding community. The state's governor must concur with the Secretary's determination. In April 2000, the Secretary made a positive determination, and the casino project passed environmental impact analysis this past week. The next step will be for Governor Pataki to concur, which, as a longtime supporter of a Catskills tribal casino, he is expected to do. The Tribe then will need to negotiate a tribal-state compact for casino-style games.

Prof. I. Nelson Rose predicts that with the current political controversy over "off-reservation" gaming, the St. Regis Mohawk casino may be the last one to pass through IGRA's "best interests" exception. With only four casinos in 18 years under this exception, and with the built-in veto power of the state governor, we have urged Congress to think twice before limiting or eliminating this exception. The political controversy is simply not supported by the facts, and the "best interests" exception may prove to be a useful tool for rural tribes in reaping the benefits of Indian gaming.

Aww, Harry . . . . Stick to Spinal Tap!

Thread: The Media and Indian Gaming

Yet another example of the Pequots' influence over public perception of Indian gaming . . . .

Comedian Harry Shearer talks about his novel, Not Enough Indians, a satirical take on Indian gaming and tribal recognition inspired by tales of the Pequots. Fiction is fiction, of course, but Harry's description of his "research" doesn't sound too promising.

We love Harry for his hilarious turns in The Simpsons and This is Spinal Tap, but tapping into peoples’ complete misreading of the Pequots’ story seems a little too easy, doesn’t it?

Thread: Current Events in California

The fallout is continuing from a federal appellate court’s decision late last year that the National Indian Gaming Commission lacks jurisdiction to regulate Class III Indian gaming. The case’s true impacts remain unclear, but in California, it appears to have thrown into question the pending approval of recently renegotiated gaming compact between Governor Arnold Schwarzenegger and five of the state’s more successful gaming tribes.

Although the deals met their last-minute demise at the end of the legislative session, they were to be reintroduced in the coming months. Pursuant to the court decision, some tribes have indicated they won’t allow the NIGC’s regulators into tribal casinos. The Schwarzenegger administration is being pressured to ensure additional regulatory safeguards are in put in place before the compacts are sent up for legislative approval. This spells “renegotiation” yet again.

Tribal representatives remind California policymakers that they can, and do, regulate their own casino operations, as the state has agreed. “Also, the NIGC is not the only federal agency that oversees tribal gaming,” wrote California Indian Gaming Association Chairman Anthony Miranda. “For the record, tribal gaming is also overseen by several other federal entities, such as the Department of Justice, the IRS, the FBI, the U.S. attorneys and the Treasury Department.”

Some tribes indicate they’ll continue to welcome federal regulators. "We just think that it's good business for our patrons to feel comfortable that they're playing games that are fair and honest," said Alison Harvey, spokeswoman for the California Tribal Business Alliance.

Court decisions have real-world political and policy impacts. California continues to prove it.

The Passing of a Landmark Figure

Obituaries sometimes are the best way to find out the backstories behind the most momentous events. Individuals make all the difference.

Art Welmas, Cabazon Band tribal chair whose leadership on tribal gaming rights resulted in the landmark U.S. Supreme Court decision California v. Cabazon and triggered the passage of the federal Indian Gaming Regulatory Act, died last month.

Additional coverage of Welmas' death and legacy can be found here.

Tribes Subject to Campaign Finance Law, Part II

As we discussed in our most recent post, in a narrow 4-3 ruling, the California Supreme Court recently held that Indian tribes are subject to the state’s campaign finance disclosure law. The ruling affirmed the ability of the state’s Fair Political Practices Commission to sue the Agua Caliente Band of Cahuilla Indians for failing to comply with the law’s reporting requirements.

The issues the case presented were described in Michael Gardner’s December 22nd article in the San Diego Union-Tribune, in which Steve was quoted.

Should the U.S. Supreme Court agree to hear the case on appeal, two points to bear in mind: first, as the dissent argued in this case, the U.S. Supreme Court unequivocally has rejected the idea that any authority other than Congress or a tribe itself can abrogate or waive a tribe’s immunity from lawsuit; and second, when Congress doesn’t speak to the matter, the assumption is that Congress intended tribal sovereign immunity to apply – not the other way around.

Nevertheless, if the Supreme Court takes on this case, tribes across the U.S. undoubtedly will watch it closely, for not only will the case signal the direction the Roberts Court will take on matters related to tribes, but the relative breadth or narrowness of any opinion will have implications not only for how California, but also other states, can regulate tribal campaign contributions.

The case is Agua Caliente Band of Cahuilla Indians v. Superior Court, S123832.