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.