Tribal sovereignty/casinos vs. common sense
Tribal “nations” in the United States are encouraged by recent court decisions and have so far avoided attacks on their sovereignty. However, their worries aren't going away because state governments want to exert more authority over Indian Country, and they continue to have reservations about the courts.
Gaming tribes are in good health. In 2022, revenues for the National Indian Gaming Commission increased 4.9% to $40.9 billion. The increase of $1.9 billion year over year is the largest ever noted. Despite their success, politicians and some business gaming interests continue to worry tribal leaders as they attempt to reduce their share through state or federal courts or other legal means.
Haaland v. Brackeen victory
In that instance, a non-indigenous Texas couple claimed justifications for curtailing the tribal gambling rights secured by the Indian Gaming Regulatory Act (IGRA) of 1988. Tribes feared that if the case went against them, it would be used to revoke their gaming rights.
“It’s a ruling that will give people pause about running up to the Supreme Court to water down tribal sovereignty,” says Victor Rocha, conference chair of the IGA. “It’s that aspect that does create a little bit of doubt for a lot of these organizations coming after tribes.”
Tribes are not attempting to establish any bias, according to IGA Chairman Ernie Stevens. Instead, it's about admitting that tribes had independent governments long before the US Constitution existed.
Seminoles rejoice about winning in Sunshine State
A federal appeals court reaffirmed an agreement between the Seminole Tribe and the state of Florida during the summer, giving tribes yet another victory. That arrangement establishes a tribal monopoly by focusing on statewide mobile sports betting. For the expansion of gambling, a commercial casino and poker room are necessary.
The full US Court of Appeals for the District of Columbia decided against reconsidering the case in September 2023. If the ruling is not appealed to the Supreme Court, sports betting might possibly go into effect this month. Future legal issues and other repercussions from the case are anticipated to affect other tribes.
“It was a big shot to all of us, especially some like me who are afraid of eclipses,” Rocha says. “It changes a lot of things for tribes to be thinking about sports betting and compact negotiations. Everything of value that the tribes have is trying to be taken away or negotiated down. There’s a lot of exuberance over this case and I’m seeing a lot of reports that tribes can just start up sports betting. It brings a lot of optimism.”
According to tribal gaming lawyer Scott Crowell of Arizona, the decision has a significant impact. It refutes the claim made in the district court that the IGRA can be used to prevent tribes from participating in sports betting, the newest and fastest-growing segment of the gambling business.
In a box
“That somehow every aspect of the gaming activity needs to occur on Indian lands or if not tribes couldn’t participate?” Crowell says. “The circuit court put an end to that nonsense.
“We’ve had off-track betting compacts with tribes in dozens of states since the earliest years of the Indian Gaming Regulatory Act, and the major aspect of that gaming – the event that determines the outcome of the game – occurs off Indian land.
“That has been dispelled and that’s going to be critical as tribes in each state look at what their opportunities might be with mobile wagering.”
Each state will decide how to handle the situation. A state and tribe willing to enter into an IGRA agreement provides at least one example of how it can be done.
“It felt like the industry was trying to put us in a box,” Rocha says. “They were looking at IGRA as a box to keep the tribes in and this feels like one in which the box has been opened, but it has to be on a state by state case.”
Commercial powering tribal?
According to Crowell, sports betting firms have pushed for the state-by-state approach. In an attempt to legalize sports betting in California, commercial rivals spent hundreds of millions of dollars on a failed vote in 2022. With their involvement, they would have the power to negotiate contracts where they would keep the majority of the profits.
“They like the model because the provision in the Indian Gaming Regulatory Act requires that the tribes be the primary beneficiary and sole proprietary interest and at least 60% of the revenue flows to the tribes,” Crowell elucidates. He wishes for more supply agreements that use corporate technology to support tribal brands.
The element of exclusivity
Crowell goes on to say that exclusivity is the key to the deal's economics between the Seminoles and the state of Florida. Contrast this with Arizona, where 10 tribal licenses and 10 additional ones allowed businesses like DraftKings, FanDuel, and BetMGM as well as sports teams to obtain a license.
It is quite evident that a model exists for a willing tribe and state. However, it doesn't address the issue of whether or not states should permit statewide mobile sports betting while excluding tribes. Oregon adopted that strategy, according to Crowell. Only the lottery, it was believed, could provide statewide mobile gaming. Additionally, it used the District Court ruling as justification to deny tribes their request to alter the compact to include statewide mobile betting.
DraftKings and the lottery signed into a contract under which the operator would get 49% of net revenue. Additionally, DraftKings' portion increases to 85% if the state signs a compact with a tribe that permits mobile sports betting. It increases to 95% if there are four compacts among Oregon's nine tribes.
“It’s crazy they are locking in this position that says ‘we’re going to create an Oregon state lottery and lock the tribes out’,” Crowell says. “The Oregon Lottery might wind up dreading that they entered into that agreement.”
A problem arises if a state allows residents to wager from anywhere inside its borders but declines to participate into a pact akin to the Seminoles' arrangement. According to the IGRA, they should be required to enter into good faith negotiations for a compact change that would let the tribes provide the same game.
Could Oklahoma feel the effects of the Florida ruling?
Attorney and IGA executive director Jason Giles is interested in how tribal gambling and Governor Kevin Stitt will interact in Oklahoma. The governor may allow commercial operators to set up shop in the state but is not interested in legalizing sports betting.
“Although Governor Stitt is very hostile, the legislature still appears very friendly and was poised to authorize sports wagering for the Oklahoma tribes,” Giles explains. “[But they] were trying to do it without consulting with the […] tribes, which is what led to the failure of the legislation.
“This Seminole decision now gives the Oklahoma tribes and Oklahoma Legislature a model that I think works. Like many states such as California, Minnesota, Wisconsin, and Washington state, they have been able to preserve tribal exclusivity to casino-style games.
“For those who have the tribal exclusivity, the Seminole model would work well in terms of establishing the legal framework to go forward.”
Even if mobile betting is permitted for tribes, Crowell notes that there are financial obstacles to be addressed. He uses North Carolina as an example, where legalized mobile sports betting on a state-wide basis. Tribes had the choice of being geofenced on the reservation or taking part in a licensing competition with commercial businesses for one of the 12 licenses.
Tribal sovereignty is still under legal attack
Giles believes that the most recent court decisions discourage further assaults on tribal sovereignty. He cites an example in Washington state where tribes prevailed in federal court in February when a judge denied a claim by card room owner Maverick Gaming seeking to overturn a statute granting tribes exclusive rights to sports betting.
The US Court of Appeals for the Ninth Circuit has taken the case on appeal. Giles anticipates that it will proceed to the Supreme Court, where anything is possible. It's a court that hasn't always been kind to tribes, that has overturned earlier decisions, and that could ultimately imperil sovereignty.
Getting ready for difficulties to come
A formerly-inactive task group to safeguard tribal sovereignty has been resurrected by IGA and the National Congress of American Indians, and it held its inaugural meeting over the summer.
To restore allegedly "stolen lands," the Department of Interior wants to simplify rules governing tribal properties held in trust.
Another, mostly opposing, set of viewpoints
Long-time Las Vegas-area based advantage player “LV Bear,” who does not want his real name used for fear of repercussions against him, has written on the subject for years. Bear has previously commented, “The folly of tribal sovereignty has been debated for decades. It is long past time to get rid of the failed idea. The country has spent untold billions trying to help the Indians, yet most reservations are still drug and alcohol-ridden, dangerous, poverty-stricken slums. The handouts and special privileges, including casino operation, given to the Indians disincentivizes them to work or to assimilate into mainstream society. I hope the U.S. Supreme Court puts a thoughtful end to this misguided system that has been such a miserable failure."
The various pacts setting up tribal sovereignty were made long before anyone entering into those pacts considered that one day the Indians would be building large casinos and soliciting non-tribal members to come onto “their” land. The concept of “tribal sovereignty” was enacted long before it was considered that tribal members and their employees will routinely commit violent crimes against non-tribal members of the public, but will not have any legitimate law enforcement agencies to arrest and prosecute the casino-employee perpetrators. Or run these casinos with no legitimate regulatory oversight, with most of the Indian “gaming commissions” mere puppets for the casinos themselves, sometimes using the very same people in conflicting positions.
In the Soboba case, the Riverside County Sheriff essentially said the “reservation” is too dangerous for non-tribal members to enter. Deputies are turned away by these self-important tribal “leaders.” How much more ridiculous can it get?
The absurdity of tribal sovereignty gets worse and worse as the Indian casinos take more advantage of the public with virtually no regulation over their (mis)conduct. Other tribal business entities have hidden behind sovereignty as well. Being forced to use the tribal kangaroo courts to settle civil disputes prevents many legitimate businesses from wanting to do business with the Indians, to the detriment of the tribes as well as the businesses. Why do we stand for this? What can we do at this point?
In a discussion on BJ21.com Green Chip, Biglad made the following observations:
(The) tribal leaders are both stupid and greedy. They can’t see the forest for the trees… There are a few exceptions. If they were smart, they would assimilate their business and commercial operations into mainstream America. They have been given an opportunity to improve their communities, but most fail to do so. We should eliminate the sovereign nations around the country. The current reservations should be given the status and borders of a county in the state they are in, and be subject to the same laws as the rest of us. If they do a good job, the current tribal leaders will continue in power as elected officials. If they don’t, then they will be voted out like any politician…
Do enough of our politicians have the intestinal fortitude to take on the challenge of ending this favoritism towards Indians and the special privileges they have been handed? Largely the Indians have squandered their golden opportunity. It is time for them to become productive members of the mainstream United States, not be part of imaginary “sovereign nations.”
Changing the status of the reservations to counties within the states they’re located in (parishes in Louisiana) makes sense and is a good first step. Sadly, I doubt if many of our politicians have the courage to get the system moving towards eliminating the present inequities and special, favored treatment given to this small minority of folks. Without some action, Indian casino thugs will continue to commit crimes against patrons with impunity, and will continue to resist legitimate law enforcement. These things are to the detriment of all of us, Indians and non-Indians alike. Ask anyone who lives in close proximity to an Indian “reservation” about the crimes committed and the problems caused by the residents of the reservation, and all the taxpayer money wasted on trying to solve those problems. Prepare to sit and listen for hours. It’s a sad situation.
RIVERSIDE, CA – The Riverside County Sheriff called on federal authorities to shut down the Soboba Casino, saying that the tribal council had ordered security officers to block or delay his deputies from entering the troubled reservation, where five members have been shot to death during confrontations with his department.
RIVERSIDE, CA – Despite the threat of arrest and possible closure of their casino, leaders of the Soboba Band of Luiseño Indians said that they would continue stopping law enforcement officers at the gates of their reservation unless they were responding to an emergency.
No doubt the Indian tribes were at one time sovereign and even now the tribes are sometimes described as being sovereign. The blunt fact, however, is that an Indian tribe is sovereign to the extent that the United States permits it to be sovereign — neither more nor less. [364 F.Supp. at 194.]
This book provides the clearest and most complete account to date of the laws and politics of Indian gaming. Steven Light and Kathryn Rand explain how it has become one of today’s most politically charged phenomena: at stake are a host of competing legal rights and political interests for tribal, state, and federal governments. As Indian gaming grows, policymakers struggle with balancing its economic and social costs and benefits.
“Tribes’ fight for sovereignty continues amid continuing challenges” , Buck Wargo, igamingbusiness.com, September 19, 2023.
“Tribal Sovereignty Needs to End” , LV Bear, thebeargrowls.com, August 21, 2008.