Efforts to prevent or control Indian gaming by Rep. John Sullivan, Sen. Dianne Feinstein and Sen. John McCain are fueled by the passage of the IGRA of 1988.

Attack of the Indian-Gaming Fighter, and How the Blowback Against Tribal Gaming Has Evolved

Rob Capriccioso
4/4/12

From “not in my backyard” complaints to state and federal politics to flat-out racism, there are plenty of reasons why opponents of Indian gaming are waging war.

With an explosion of tribal gaming in recent years and accompanying intertribal competition, perhaps the most strident calls to curb gaming are coming from tribes themselves. Along the way, federal legislators are more than happy to turn the conflicts into a firestorm that few in the industry likely want. In this fight, party and geography are irrelevant.

Sen. Dianne Feinstein (D-California), a vocal leader of the current crop of federal antagonists, said this month that she is willing to block one tribe’s quest for a casino in her state because she wants to protect California wine country. Feinstein has even issued proposals to more strongly regulate Indian casinos nationwide while ignoring the non-Indian variety—a move that would impede tribal sovereignty. Her plans have stalled, but tribal advocates are increasingly concerned that to get a legislative fix for the antitribal Supreme Court Carcieri v. Salazar land-into-trust decision of 2009, tribes may be willing to negotiate with her.

Over in Arizona, Republican Sen. John McCain once strongly backed tribal casinos as a means of combating poverty and increasing self-determination. Now he has grown increasingly concerned about his public image on the issue. His support of gaming has yielded negative press coverage, so he is leading a push to clamp down on so-called “off-reservation” casinos. McCain also wants to make it difficult for tribes to acquire more land. Curiously, despite this newfound opposition, The New York Times noted during his 2008 presidential run that he enjoys gambling, sometimes at existing Indian casinos.

More recently, Rep. John Sullivan (R-Oklahoma) introduced an anti-Indian casino bill in February that pits local governments against Indian nations, offering a legalized way for non-Indian communities to take Indian money. In this regard, it is noteworthy that many tribes nationwide have already successfully developed their own revenue-sharing agreements with localities. So the legislation is seen in tribal circles as a slight to Indians, implying they don’t have much business savvy.

The attacks from Feinstein, McCain, Sullivan and others inside and outside the Beltway all differ in their rationales. But they all result from the passage of the Indian Gaming Regulatory Act (IGRA) of 1988. Before IGRA, states and local groups were the main challengers: Throughout the 1980s, many states tried unsuccessfully to outlaw early Indian bingo halls and, later, more-advanced operations. After the California v. Cabazon Band of Mission Indians Supreme Court ruling, which paved the way for IGRA, states tried well into the 1990s to tax Class III Indian gaming. That failed, too. Nonetheless, states have continued to try to regulate Indian gaming in a way that would allow them to gather regulatory fees on Class III tribal gaming.

The battle from states is not over, said Gabriel S. Galanda, a member of the Round Valley Indian Tribes and a partner with Native affairs law firm Galanda Broadman: “States are still looking to tax Class III Indian gaming, and they are increasingly doing so by targeting net Indian gaming revenues at the point those dollars cross the reservation line or pass out of exclusive tribal hands.”

Since IGRA, the real players in the Indian gaming opposition field have been members of Congress. When the law was new, it was easier to understand who was opposing what and why, said Marie Howard, former longtime Democratic staff director of the Office of Indian Affairs of the House Committee on Natural Resources. There were “true nonbelievers” of gaming in general, she said, such as Rep. Frank Wolf (R-Virginia). Then there were legislators like Rep. George Miller (D-California) who were not thrilled with the idea of tribal casinos, but who were willing to stand up for a tribe’s sovereign right to pursue them. Now there are legislators like Feinstein who say they support tribal sovereignty, but who want to limit gaming for some tribes. It is hard to determine the method in the madness of these new voices.

What is most striking is that it is no longer outsiders who seem to have the most power in framing attacks on Indian gaming. That power now lies, ironically, with the 30 or so wealthy and well-connected tribes that are playing hardball behind the scenes, lobbying legislators to get the best outcomes for their casino deals, including limiting competition from nearby tribes.

“In my 30 years on the Hill, that to me was the saddest thing to see,” Howard said. “Prior to gaming, it was unheard-of for a tribe to come to D.C. to lobby against another.”

One tribe striving for strengthened individual sovereignty is “a good thing,” said Steven Andrew Light, co-director of the Institute for the Study of Tribal Gaming Law and Policy. But things get complicated when legislators use the resulting strife as fuel for reforming or clamping down on the whole system. They end up possibly harming tribal sovereignty for everyone. It has been widely whispered in Indian country, for instance, that Feinstein’s machinations have been aided by tribal lobbyists who are trying to get the best deal for their clients. Meanwhile, the greater good of getting a clean Carcieri fix focused on protecting land rights and sovereignty—and not opening IGRA for changes—has been ignored.

“Carcieri has changed everything all over again,” Howard said. “If there is more congressional involvement on gaming as a result of negotiations over a legislative fix for Carcieri, all tribes will have to be prepared for the ramifications.”

Galanda said that the Salazar v. Patchak case now before the Supreme Court is likely to spur more anti-Indian gaming sentiments in Congress and the courts. The case centers on whether the federal government properly took Michigan’s Allegan County into trust for the Gun Lake Band of Pottawatomi to build a casino. An anti-tribal ruling could end seeing similar cases filed against tribes by the country.

“If that case goes against Indian country,” said Galanda, “virtually anybody will have standing to legally challenge a federal agency action relating to Indian gaming development.”

“The overriding problem is that nontribal interests are using the time-tested strategy of divide-and-conquer,” said Joe Valandra, former chief of staff of the National Indian Gaming Commission, regarding both the Carcieri and Patchak cases.

Howard suggested that when a legislator wants to limit Indian gaming alone, Indian country should ask itself, “Who is influencing them and why?” The “politics is local” adage is always a factor, she added. Some legislators, like Rep. Darrell Issa, (R-California), will go out of their way to support local tribes but not national interests.

Lost in all the varying shades of federal opposition and tribal tinkering is the fact that some individual Indians continue to resist gaming, believing it is a culturally inappropriate way to pursue self-determination and sovereignty. “From the get-go, those folks have had the most difficult row to hoe,” Howard said. “The federal government’s relationship is with the tribal government, and if the tribal government feels it is the will of its people to support gaming, individuals who disagree have a hard time being heard.”

At the same time, Indian gaming advocates don’t believe the complex problems facing gaming on the federal level are going away any time soon. In fact, as more tribes build successful casinos, the issues stemming from competition will probably grow worse.

“As this industry and regulation has grown and matured, tribes have increasingly found it difficult to maintain a unified political and business front,” Light said. “At just about any gathering of gaming tribes, the question of how to maintain a unified front comes up. And I have yet to hear a satisfactory answer.”

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