Gaming at Sea -- On Vacay, That Is

We just returned from a week-long cruise, where we were reminded of gambling's ubiquitous nature. Bingo, of course, is a mainstay of cruise ship social activities, and this ship also featured an unusually large casino with slots and table games. There was a large group on the ship, traveling compliments of Detroit's Greektown Casino. Also on board with us were not one but two ex-spouses of casino developers.

On the last morning, we eavesdropped on a conversation between two couples on the merits of the Mashantucket Pequots' Foxwoods Resort and Casino and the Mohegan Tribe's Mohegan Sun -- one couple preferred Foxwoods, the other Mohegan Sun.

And we ourselves won a raffle -- the prize was dinner with one of the ship's officers, who explained how and why the ship's casino was as big as it was (the Asian market, he said).

Catskills Casino? Kathryn & Steve Quoted in the Village Voice

Want the latest on the Saint Regis Mohawk Tribe’s proposed $600 million off-reservation Catskills casino in New York state? The idea of tribal casinos in the Borscht Belt is nothing new—former New York Governor George Pataki had pushed such development for some time, entertaining the possibility of revitalizing a near-dead region by creating hundreds or thousands of jobs and pumping millions of dollars in revenue sharing into the state’s coffer. But since Pataki’s recently elected successor Eliot Spitzer gave his blessing to the Mohawks’ Las Vegas-style casino in February, tongues haven’t stopped wagging.

What’s the big deal?

Well, one part of the big deal is the tribe’s management partner, Empire Resorts, which owns the land and in return for successfully shepherding the casino project through to completion stands to receive 30 percent of annual net revenues plus other fees. Award-winning Village Voice investigative reporter Tom Robbins recently detailed Empire’s history of financial scandals, alleged maltreatment of other tribes, and political cronyism in its ties to various New York state officials.

Kathryn and Steve both are quoted in the Voice, explaining why it is that the Mohawk casino may be a big deal, but is far from a done deal. Check it out here.

Oklahoma Band to Game in Arkansas? Kathryn Quoted Here!

The Tahlequah, Oklahoma-based United Keetoowah Band is seeking to open a $131 million hotel and casino on land in Fort Smith, Arkansas. The Band is a landless tribe and is seeking federal approval of its petition to take a 10-acre parcel of land into trust so the tribe can take the additional steps necessary to build the gaming facility.

Kathryn is quoted in this recent article in the Arkansas Times Record, providing important background on the complicated legal and political hurdles the tribe must jump.

Interestingly, competing petitions are now circulating, both pro and con. The idea on both sides is to inform U.S. Interior Secretary Dirk Kempthorne what the local community thinks about the proposed casino. The local developer says a large majority is in favor; a Fort Smith anti-casino group says the opposite. The question of whether these opinions actually matter in the Secretary’s determination is hard to say, and depends in part under what exception to IGRA’s general prohibition on newly acquired lands the tribe will be pursuing.

Second-Class Sovereignty for Virginia Tribes?

On Tuesday, the U.S. House of Representatives passed a bill that would grant federal recognition to six tribes in Virginia, coinciding with the 400th anniversary of the Jamestown settlement. But federal recognition comes at a price: the bill conditions the tribes' recognition on their waiver of gaming rights.

In our book, Indian Gaming and Tribal Sovereignty: The Casino Compromise, we discuss how Indian gaming has politicized the federal tribal recognition process. For many critics, federal recognition is a "license" to operate a casino, rather than an appropriate acknowledgement of a tribe's status as a sovereign government. By conditioning the Virginia tribes' recognition on waiver of gaming rights, members of Congress may think that they've hit upon a happy compromise: the tribes get recognition, and Virginia gets a guarantee that the tribes can't open casinos. But we think that Congress is using the legislative recognition process to fiat a second-class tier of tribal sovereignty: federally recognized tribes without all of the inherent rights that historically have been acknowledged through recognition.

It's important to remember that tribal rights are not granted to tribes by Congress; instead, they stem from tribes' status as separate, sovereign governments. And, by the way, the Virginia tribes have long been recognized by the state, and before that, entered into treaties as sovereign governments with England. To condition their recognition on the abrogation of gaming rights is a victory of politics over principle.

Read more in the Washington Post, here. Also see this story in Indian Country Today, here.

Filmmaker Juanita Giles has a forthcoming documentary on Virginia tribes' efforts to achieve federal recognition. (More on this in a later post.) View a preview at http://www.11pictures.org/

Lastly, here's NPR's All Things Considered story on the Monacan Indian Nation (3/25).

“Reconsidering” a Compact: Indian Gaming and State Law

In New York, the Oneida Indian Nation and the state missed the deadline to seek postponement of the Interior Department's reconsideration of the compact governing the operation of the Oneida Nation's Turning Stone Casino and Resort. The compact was called into doubt after the New York Supreme Court ruled in a separate case that tribal-state gaming compacts must be ratified by the state legislature. Further complicating matters is the impact of the 2005 U.S. Supreme Court decision in City of Sherrill v. Oneida Nation, which cast doubt on whether some lands owned by the Oneida Nation qualified as "Indian lands" under IGRA's definition. Of course, at the heart of the (re)negotiations is revenue-sharing: it seems that New York is demanding a price for a compact that would comply with state law. The Interior Department is expected to make a decision by mid-June, acknowledging that this will be the first time the Department has "reconsidered" a compact in light of subsequent legal developments.

Kathryn has an article forthcoming in the Marquette Law Review that explores a similar situation in Wisconsin. State courts, rather than federal courts, increasingly are setting the legal terms for Indian gaming, often through cases in which the tribe may not even be a party. The practical implication is that a tribe may rely on a compact duly negotiated with the state's governor, only to have the compact later invalidated by a state court. More often than not, the state uses the legal uncertainty to demand a share of the tribe's casino revenue. In the article, Kathryn argues that this runs counter to Congress' intent in IGRA as well as basic principles of federal Indian law.

Read more in the Utica (NY) Observer-Dispatch here.