The Cherokee Nation and the Freedmen

U.S. Rep. Diane Watson (D-Calif.) has introduced federal legislation designed to encourage—or some say force—the Cherokee Nation to allow Cherokee Freedmen, the descendants of former black slaves, citizenship in the tribe. The bill would pull an estimated $300 million in federal funding and remove the tribe’s sovereign ability to conduct gaming.

In March, the tribe voted to disenroll some 2,800 Freedmen who were not listed on the tribal rolls “by blood.” Rep. Watson wants the tribe to comply with an 1866 federal treaty that granted the Freedmen citizenship.

Responded Cherokee Nation Principal Chief Chad Smith, "It's clear that the real purpose of this bill is for a California legislator to try to punish the Cherokee Nation for so-called wrongs that are based purely on misinformation." Smith said that there are more than 1,500 Freedmen still on tribal rolls because they have an American Indian ancestor also listed.

As we’ve noted in other posts, tribal enrollment decisions traditionally remain with tribes under the tenets of tribal sovereignty. The U.S. Supreme Court has held as such. In this instance, Rep. Watson is using a very special “incentive” to alter the tribe’s enrollment.

Read more here.

Will Wie Meet the Mohegans?

In yet another example of economic diversification using gaming revenue, the Mohegan Tribal Gaming Authority recently completed a $4.4 million purchase of what now is called the Mohegan Sun Country Club, located some 20 minutes from the Mohegan Sun. The ceremonial kickoff featured 20 members of the LPGA Legends Tour, including a number of members of the LPGA Hall of Fame. The course also will host the Ahmad Rashad Celebrity Players Tour event in August.

Aside from the attractive and lucrative golf packages the Sun now can provide to its guests and Club members, do these specially manufactured “tournaments” indicate there’s more to come? With the prospects for professional tournament-level golf now in the their sights (talks with the LPGA at the site had stalled in prior years), can we expect to see the likes of Michelle Wie or Annika Sorenstam competing for big-time prize money at a Mohegan-sponsored LPGA tour event?

To Per Cap or Not to Per Cap, That’s the (Ballot) Question

Members of the Gila River Indian Community, located near Phoenix, soon will be voting on whether the tribe’s government should provide per capita payments using revenue from its three Community casinos. Since the federal Indian Gaming Regulatory Act specifies the terms for revenue distribution that must be met before a tribe can elect to provide per caps, which include providing for governmental services and a tribe’s general welfare, such payments actually are relatively rare. More than three-quarters of gaming tribes don’t provide them.

Potential Gila River voters are split on the issue. Some believe gaming revenue is best used to provide for public services in what remains a highly impoverished area; others are concerned that thousands of Community members who live off-reservation are not currently receiving the benefits of gaming. If the ballot initiative passes, the Community, which has about 20,000 enrolled members, most likely will become the largest tribal nation that provides per caps.

As we’ve mentioned in this space, there’s a critical difference between a tribe with a few dozen or several hundred members electing to provide per caps and one with many thousands of members. Do the math. Contingent on total casino revenue, the first tribe may be able to provide thousands of dollars per month to its members; the latter tribe may only be able to provide a few hundred dollars per year. The most important question for tribal members voting on the initiative is whether to use gaming revenue in such as way as to obtain the most “bang for the buck,” which would come through leveraging the power of government to provide public or collective goods that benefit the entire Community.

For more, see this June 19 article in the Arizona Republic.

Breaking News in New York

After state court decisions called the Oneida Nation's gaming compact, signed by Gov. Mario Cuomo in 1993, into doubt under state law, the U.S. Department of Interior decided to "review" the compact to determine whether it was still valid. The state courts had held, some ten years after the fact, that gubernatorial agreement to the compact was insufficient to bind the state; instead, state legislative approval was required.

On June 13, Interior Department Associate Deputy Secretary James Cason issued a decision that the compact is valid. The letter explains that under IGRA, a negotiated compact becomes valid upon publication in the Federal Register of the Interior Secretary's approval (including approval under IGRA's "pocket approval" provision: if the Secretary fails to either approve or disapprove within 45 days, the compact will be considered approved). See 25 U.S.C. section 2710(d)(8). Any challenge to a duly approved compact must be made in accordance with the federal Administrative Procedure Act within six years of the publication of the Secretary's approval. The letter states, "Since no one challenged the Secretary's decision in a timely manner or in the proper forum, the 1993 Compact continues to be in effect for purposes of the IGRA."

The Interior Department's decision appears to recognize that federal law should trump state law under these circumstances, even if that "trumping" in this case amounts to a technical statue of limitations. Kathryn's article, "Caught in the Middle: How State Politics, State Law, and State Courts Constrain Tribal Influence Over Indian Gaming," which appears in the current issue of the Marquette Law Review, speaks directly to the issue of state court invalidation of duly negotiated and approved gaming compacts.

Access the Interior Department letter through the link provided here by the Utica Observer Dispatch.

NIGC Announces 2006 Indian Gaming Revenues

Tribal gaming continues to grow. According to the National Indian Gaming Commission (NIGC), Indian gaming was a $25.1 billion industry in 2006, up 11% from 2005. Six percent of the nearly 400 tribal gaming operations earn nearly half of the industry's revenue, each earning $250 million or more, while one in every five tribal gaming operations earns less than $3 million.

This is what we call the "spectrum of success" of tribal casinos: while highly profitable operations in California and Connecticut get attention in the press and serve as poster children for what some members of Congress have called an "out of control" industry, 20% of tribal gaming operations earn just enough to keep the casino doors open, continuing to provide jobs for tribal members and others and raising modest tribal government revenue.

For the NIGC press release, which includes a breakdown of tribal gaming revenue by region, click here.

Kathryn’s Quoted in the San Diego Union-Tribune on the CRIT Case

Kathryn’s the lead expert quoted in this May 14th story in the San Diego Union-Tribune. She comments on the implications of the Colorado River Indian Tribes (CRIT) case for the NIGC’s scope of authority. In that case, a federal court threw out the NIGC’s internal operating rules for tribal casinos, known as minimum internal control standards.

As the dust continues to settle from the CRIT case, California Governor Arnold Schwarzenegger and other state officials have wondered whether newly negotiated compact agreements for five California tribes – the billion dollar revenue sharing deal – will have adequate oversight. Will the renegotiated compacts be valid? And what next?

Two Views of Indian Gaming in Texas

As the state legislature considers passing a bill that would legalize Indian gaming in Texas, the debate inside and outside the capitol continues.

Tribal leaders emphasize that the ability to operate gaming is an aspect of tribal sovereignty, allowing tribal governments to address unemployment and poverty rates that exceed those of the general population in state. According to Alabama-Coushatta Tribal Council Chairwoman Joanne Batise, the tribe has a 46% unemployment rate and a median annual income of less than $11,000. Legalized gambling in the state would allow the tribe to re-open its casino and raise government revenue to help address the needs of its members. After the casinos were closed as a result of a federal lawsuit, tribes had to cut social programs for lack of funding.

But some Texas lawmakers see Indian gaming differently. State Rep. Will Hartnett, according to one account, said he's not interested in legalizing gambling in order to help out a few hundred people. "[Tribal members] will potentially all become millionaires as a result of this bill, and frankly, I'd like to do that for a lot of my people in my district," said Hartnett.

Perhaps a better goal would be single-digit unemployment rates for all communities in Texas, including tribal communities.

Read more here in the Dallas Morning News.