Is Industry Growth for Indian Gaming Taking a Downturn?

After a short holiday break, we better get right back to it!

After years and years of rapid growth that has outpaced the legalized gambling industry more generally, is Indian gaming revenue heading for a downturn?

According to Lyle Brennan, CEO of Lakes Entertainment, Inc., "Indian gaming is not a growth business." Lakes Entertainment hasn't signed a management deal with a tribal casino in three years.

Of course, IGRA's limitations on management contracts are meant to encourage tribes to operate their own casinos. Under IGRA, management contracts must be approved by the NIGC, and may run only for 5 years (or 7 years in extraordinary circumstances). Additionally, new tribal casinos may be more likely to require approval for gaming on newly acquired lands -- meaning that the opening of the casino is less of a sure thing.

Yet with the recent agreement negotiated between the Seminoles and Governor Crist of Florida to move forward with Class III gaming, there should be more growth in that state – assuming the political and legal wrangling over the compact eventually comes to a halt.

Read more here.

Does the Florida Compact Hold Lessons for Massachusetts? Steve Quoted in Boston Globe

Sunday’s Boston Globe argues that the politics of the recent compact agreement in Florida may hold some lessons for the state of Massachusetts in its consideration of an expansion of legalized gambling – and its consideration of how and whether that expansion will incorporate casino-style gaming operated by the Mashpee Wampanoag.

Steve’s quoted in that article, noting that the state’s public policy toward gambling generally really is the key to understanding the prospects for Indian gaming (under the federal Indian Gaming Regulatory Act), or the Mashpee being able to bid for a commercial license (not technically “Indian gaming”).

The recent federal acknowledgment or “recognition” of the Mashpee represented a “tipping point” for state policymakers, Steve states.

Click here for the article in the Globe, which provides an intriguing look at some of the potential parallels—and differences—between Florida and Boston.

Breaking News: Florida and the Seminoles Sign Compact Agreement

Breaking news out of Florida that may signal the end of more than 15 years of negotiations: Florida Gov. Charlie Crist and Seminole Tribal Chairman Mitchell Cypress have signed a tribal-state compact that would allow the tribe to operate Class III games and guarantee the state a massive cut of casino revenue.

The 25-year deal would require the tribe to pay a $50 million signing fee to the state up front—that is, assuming federal approval—and then a minimum of $100 million per year. As of the third year, the state would receive between 10 and 25 percent of the gaming revenue.

The Seminoles will be granted the exclusive authority to operate casino-style games, including slot machines, baccarat, and blackjack. The compact also provides for the forfeiture of the state’s share of tribal casino revenue if the state allows for the expansion of legalized gambling on non-tribal land other than existing pari-mutual facilities in Broward and Miami-Dade counties. This creates a clear disincentive for the statewide expansion of legalized gambling.

While a breakthrough, there still are political hurdles to clear, including federal approval and possible state legislative disapproval of the governor’s actions.

For more, click here.

Patrick's Plan for Casinos in Massachusetts -- Kathryn's Quoted in Cape Cod Times

The Mashpee Wampanoag are proceeding with their plans to open a casino on newly acquired trust lands under IGRA, rather than bidding on one of the commercial casino licenses in Gov. Deval Patrick's proposal.

The tribe is seeking over 600 acres in two parcels of trust land as its initial reservation. Under IGRA, although gaming generally is prohibited on trust land acquired after 1988, an exception is made for land taken into trust as the initial reservation of a tribe.

The tribe is hoping for a quick decision, but Kathryn cautions that when gaming is an issue, it's more likely that the Interior Department's dual land-into-trust and gaming processes will take longer.

Read more here: Tribe Gambling on Federal Agency, Cape Cod Times

Interior Dep't Sets Nov. 15 as Deadline for Florida Compact with Seminoles

In a letter to Gov. Charlie Crist, Assistant Secretary for Indian Affairs Carl Artman warned that if the state fails to reach a compact with the Seminole Tribe by November 15, "the Department will issue Class III gaming procedures."

Reportedly, the state and the tribe are close to finalizing a deal that would require the tribe to pay the state some $100 million annually.

Said Crist, "I want to make sure we're protecting (taxpayers') interests first, Florida's interests first ... We'll do the right thing."

According to the tribe's attorney, neither the state nor the tribe would prefer the administrative procedures to a compact. The state's preference for a compact is obvious, as the administrative procedures would not include any revenue-sharing provision requiring the tribe to make payments to the state. The tribe's preference presumably is because the compact is likely to allow a wider range of casino-style games than are expressly allowed under state law.

Our prediction: If a compact is reached, expect it to be challenged by Florida lawmakers opposed to the expansion of casino-style gaming. If a compact is not reached and the Interior Secretary issues administrative procedures, expect a federal lawsuit mimicking Texas' successful challenge to the Secretary's statutory authority to issue such procedures in Texas v. U.S., 497 F.3d 491 (5th Cir. 2007).

Read more in Forbes at Feds Set Indian Gaming Deadline

UND School of Law Student Wins Shannon Bybee Award for Indian Gaming Paper

One of the students in Kathryn's Indian Gaming Law course at the University of North Dakota School of Law recently won a national award for his paper on Indian gaming. Current 3L student Chris Rausch won the Shannon Bybee Scholarship Award, awarded to the two best research papers in the area of gaming law written by law students.

The award is sponsored by the International Association of Gaming Advisors.

Chris's paper, "The Problem with Good Faith: The Indian Gaming Regulatory Act a Decade after Seminole," was published in the Gaming Law Review. See 11 Gaming L. Rev. 423 (2007).

Great job, Chris! We’re glad to see more students having the opportunities to learn about the burgeoning area of gambling law, including Indian gaming. Back in 2001, Kathryn was one of the first to offer a course on Indian gaming law; others have followed suit. At the time, she had to put together her own materials to teach the course.

Now, we’re pleased to announce that we’re just finishing up our casebook, Indian Gaming Law: Cases and Materials with Carolina Academic Press. Click here for info and the chance to preorder the book with the publisher's web discount. It’ll be out this January, and should be an indispensable reference tool for teachers--indeed, we've written an accompanying Instructor's Manual, too--and those practicing in the field.