To paraphrase the Rolling Stones, "You can't always get what you want, but
sometimes you get what you need." Here at Let the Games Begin, we might
reword this bit of wisdom thusly: "If you don't get what you want, keep
asking for it."
For the past two years, I have asked for specific "gifts" that would go a
long way toward delineating and defining certain murky aspects of the
Indian gaming industry to the benefit of all involved. Indeed, as casino
revenues in Indian country continue to grow year over year, greater
scrutiny shadows tribal gaming. Resolution of critical issues will help an
industry segment build greater credibility in the eyes of the general
public, which doesn't always understand Indian gaming.
In 2004 I asked for three things and struck out. Last year, I sought only
two and was again shot down. So, with the perseverance (or perhaps the
naivete?) of a kid who really wants that new bike for his birthday, this
year I only ask for one: How about a model Class III compact?
As noted last year, devising a comprehensive set of guidelines to cover the
myriad potential contingencies arising in the possible
government-to-government relationships between 50 states and some 560
tribes is a complicated task. A viable model, at least from the tribal
perspective, might be found in a compact signed in January 2004 between the
state of Iowa and the Meskwaki Indian Tribe.
The Indian Gaming Regulatory Act says that no state may impose any sort of
tax upon a tribally owned gaming facility; to do so would be a direct
encroachment upon tribal sovereignty. Yet officials from cash-strapped
states continue to demand "their share" of the Indian gaming pie. As more
tribes, for whatever reasons, have conceded to revenue sharing, such
voluntary payments have evolved in a de facto quid pro quo.
Some states have granted regional or statewide gaming to tribes in return
for a share of the pot. Tribes voluntarily agreeing to pay revenue to a
particular state certainly ought to get something more from that state than
the right to conduct gaming. This is simply because IGRA, in recognizing
inherent tribal sovereignty, has already bestowed such rights and has
devised mechanisms to create three tiers of regulatory oversight and to
provide for tribal-state compact negotiations.
Under the U.S. Constitution, the several states do not have the sovereign
standing to grant or take gaming rights from tribal governments. But the
compact negotiation process gives governors a chance to fairly represent
state and local interests in the formulation of a compact during the
government-to-government negotiations with a tribe.
The Meskwaki/Iowa compact, which is fair to both parties and true to the
spirit of IGRA, contains no provisions for revenue sharing; but this does
not mean that the tribe gets off scot-free.
The Meskwakis will pay for expenses incurred by the attorney general, the
Department of Inspections and Appeals, the Department of Public Safety and
other state agencies. The Meskwakis will contribute toward treatment for
problem gamblers and will recognize garnishes ordered by state courts
against employee salaries. The tribe will recognize international building,
plumbing, fire and mechanical codes and will enter good-faith negotiations
with local governments for providing fire and police protection and other
Everybody wins -- the tribe can expand its existing casino (in operation
since 1992) and improve its economic base; and yes, the state derives
benefit as well. No, Des Moines doesn't get a chunk of Indian money, as do
several other state capitals. But Iowa doesn't get an additional burden
placed on its shoulders -- local governments are compensated, regulatory
expenses are covered.
Patrons may gamble in clean, safe and highly regulated (by federal, state
and tribal officials) facilities. Jobs and money flowing into the
neighboring non-Indian community benefit the local economy as well.
Because the compact has a 15-year limit, both sides benefit here as well.
The tribe can seek long-term financing for capital expansion against 15
years of unencumbered casino revenue while Des Moines can revisit the
entire deal or parts of it upon expiration.
Again, each particular detail of this compact may not be applicable or
suitable in all cases -- this is where the negotiations come in. But if
states and tribes can negotiate in good faith, using this compact as a
guide, future tribal gaming operations will function solely for the
economic benefit of the tribe with, of course, fair compensation to states
and localities for legitimate regulatory and municipal services.
Asking that states accept and respect tribal sovereignty has not been easy.
Given the rapid expansion of Indian gaming in recent years, we recognize
that there may be fewer new compacting opportunities. As older compacts
come up for renewal or renegotiation, states "addicted" to tribal gaming
revenues will certainly prove reluctant to give them up.
But we hope that more states will consider the words of Steven Young,
director of the Iowa Department of Inspections and Appeals, as quoted in a
statement dated Jan. 6, 2005:
"The relationship between the state of Iowa and the Sac and Fox Tribe of
the Mississippi in Iowa rests upon mutual trust and the recognition that
each has a primary duty to protect both the gaming public and the integrity
of gaming. The approved compact respects the sovereign status of the tribe
and recognizes the principal goal of federal policy is to promote tribal
economic development, tribal self-sufficiency and strong tribal government
... this compact is mutually beneficial to the state of Iowa and tribal
This is compacting within the spirit and intention of IGRA. Is it too much
to ask for?