Steve Quoted in New York Times Re. the Pequots/Mohegans

Here's a story about an interesting -- if outside the norm for most gaming tribes -- development in Connecticut. We're pleased to note that Steve is quoted in this New York Times story, reprinted in the International Herald Tribune.

The story is about the efforts of the highly successful Mashantucket Pequots (Foxwoods Resort and Casino, the world’s largest casino) and the Mohegans (Mohegan Sun) in Connecticut to invest in massive casino developments in Philadelphia, Kansas, Massachusetts, and elsewhere. The tribes are providing financing, venture capital, and management expertise. They’re partnering not only with other tribes, but also with major commercial gambling conglomerates like MGM Mirage.

Click here for the link in the September 22 edition of the Times.

If you are unable to access the article on the Times website because of registration issues, click here for the September 21st edition in the International Herald Tribune.

Constitution Day

Most Americans know that July 4th is our nation's birthday. Surveys show that far fewer know that September 17th is the birthday of our system of government, the date in 1787 on which 39 of the 55 original delegates to the Philadelphia Convention completed and signed the U.S. Constitution. This year therefore marks the 220th anniversary of the signing of the Constitution.The Constitution embodies principles which inform our system of government and our relationship to it, including a commitment to the rule of law, the separation of powers and checks and balances among the three branches of government, federalism that marks the distinctive and cooperative authority of the federal government and the states, and the ideals of liberty, equality, and justice that undergird individual civil rights and liberties.In 2004, federal law designated every September 17th as Constitution Day. Any educational institution that receives federal funds is mandated to celebrate Constitution Day by offering an educational program on or around the holiday. Constitution Day encourages Americans to remember the significance of the Constitution in establishing our system of government, securing our individual civil rights and liberties, and providing the means to keep government accountable to the people in times of war and peace.

Constitution Day also is an opportunity to reflect on tribal governments' role in the American political system. The U.S. Constitution assigns authority to Congress to "regulate commerce . . . with the Indian tribes." This power has been interpreted by the U.S. Supreme Court as exclusive to the federal government, meaning that there is no state role (unless, of course, Congress delegates authority to the states, as it did in IGRA through the tribal-state compact agreement).

The Supreme Court also has interpreted Congress's power under the so-called "Indian Commerce Clause" as plenary, or absolute and complete, and has upheld federal laws that have little to do with the regulation of commerce with the Indian tribes. As political scientist David Wilkins has asked, should our democratic system of government allow Congress to have unlimited, and perhaps absolute, power to regulate tribes? Or is there a better way to think about the federal government's relationship to tribes? There's certainly much to debate on Constitution Day. See, e.g., David Wilkins, American Indian Sovereignty and the U.S. Supreme Court (1997).

Fla. AG adopts restrictive interpretation of "scope of gaming"

According to state Attorney General Bill McCollum, Governor Charlie Crist would overstep his authority if he negotiated Class III games beyond those games specifically permitted by Florida law.

Presumably, Crist has been negotiating additional games, such as blackjack and craps, in exchange for a state cut of the Seminoles' gaming revenue. McCollum's opinion suggests that such a deal may be challenged on state law grounds, as similar deals have been challenged in Wisconsin and New York. If all Crist can negotiate is slots, then that will hamper his ability to demand multi-million-dollar payments from the tribe.

Since revenue-sharing is allowed only where the state gives the tribe something of value beyond what the tribe is entitled to under federal law, Crist may be left with only the number of slots allowed as his bargaining chip. That "give" shouldn't entitle the state to as much "take" as would bargaining over additional games that the tribe would have exclusive rights to operate.

Read more here.

Issues amiss in Mass.

Mashpee Wampanoag leader Glenn Marshall has given up his duties as tribal chair amid reports that he lied about his military record and had been convicted of rape in 1982. Predictably, this scandal is influencing the public debate over Indian gaming in Massachusetts, leading one columnist to conclude that IGRA is "one of the worst pieces of legislation ever to come out of Congress."

See "Liar's Poker," by Boston Globe columnist, here.

For background on Marshall, see "The Gambling Man" in Boston Magazine, here.

Class III Gaming in Texas and State Power

Although it seems to have flown under the radar screen, the recent Fifth Circuit decision in State of Texas v. USA (No. 05-50754) decision threatens to eviscerate the federal government’s attempts to prevent tribes from being politically subordinate to states.

The decision clearly frustrates the Kickapoo’s efforts to bring Class III gaming to Texas. But more significantly, it places into question the Interior Secretary’s attempt to bring balance to the politics of negotiating tribal-state compacts by promulgating regulations to compensate for the 1996 Supreme Court decision in Seminole Tribe v. Florida, whose implications for state political power over tribes we've discussed in other posts.

The court’s analysis was rather technical –- it relied on the complicated Chevron legal doctrine for judicial review of agency discretionary authority –- but its political implications are broader for the tribes/states across the U.S. The possibility of an appeal is next, and that in turn would go to the important question of Interior Secretary’s authority under IGRA.

Read the court’s opinion here.