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The Bedeviling Paradox of IGRA

In 1987 the U.S. Supreme Court in California v. Cabazon upheld the right of sovereign Indian nations to conduct gaming on Indian lands free of state control when similar gaming is permitted by the state elsewhere. A year later, Congress passed the Indian Gaming Regulatory Act (IGRA). Paradoxically, IGRA further recognized the sovereignty of Indian nations while at the same time restricting it by giving states the power to negotiate gaming regulations and the extent of gaming played on Indian lands through the tribal-state compacts.

A trail of paradoxes has followed IGRA through its almost 25 years of existence. The gaming success stories of a few Indian nations has raised awareness of indigenous history, culture and sovereignty, and resentment at the success of those nations, particularly by states that continue to try to grab more revenues from Indian casinos. U.S. federal courts consistently have upheld the constitutionality of IGRA against state attacks, but have eroded tribal sovereignty in cases involving Indian land rights and other aspects of Indian sovereignty. Although Congress enacted IGRA “as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments,” some legislators are still trying to undermine it. And while some Indian leaders say IGRA compromised tribal sovereignty, most agree that it has provided Indian nations with an unprecedented opportunity to build their nations and provide social services for their citizens.

A few prominent tribal leaders recently agreed to share their views on these important issues:

Ernie Stevens Jr., Chairman of the National Indian Gaming Association
In 1987, the Supreme Court in California v. Cabazon rightly found that the ability to conduct gaming on Indian lands is the inherent right of tribal governments, and IGRA was enacted one year later. It represents a careful balance of tribal, federal and state interests. So, for the most part, IGRA did not come from Indian country.

Over the past 20-plus years the act has worked well to strengthen tribal governments and provided many tribes the opportunity to achieve economic self-sufficiency. However, one aspect of the act is flawed: Requiring tribes to negotiate with states in order to conduct “casino-style gaming” was a difficult thing for Indian country to accept. Most tribes had no prior relationship with state governments, and the few relationships that existed were not positive.

The Supreme Court’s decision in Seminole Tribe v. Florida broke the careful balance of interests in IGRA, in favor of the states. If Indian country were seeking legislation today, we would look for provisions to force states to the negotiating table.

Some states are making unreasonable demands for revenue-sharing—they cannot be permitted to balance their budgets on the backs of Indian country.

The relationship and legal standing of Indian tribes with the United States is ingrained in the U.S. Constitution, and hundreds of treaties and federal laws and regulations. But for most of the past two decades, the Supreme Court has refused to try to understand Indian country, tribal sovereignty and the unique legal obligations of the U.S. toward Indian tribes. Instead, the court has gone out of its way to strengthen the rights of the individual states.

The answer is education. We have to toot our own horn, which isn’t part of most tribal cultures. We have to continue to drive home the benefits of Indian gaming, which provides non-Indian communities with hundreds of thousands of well-paying jobs and provides state and local government treasuries with billions of dollars in the form of indirect payroll, income, sales and other taxes.

Just as not all tribes have the benefit of a wealth of natural resources, such as timber, water or land, not all tribes have been able to use gaming as a tool to benefit their economies. A number of tribes have taken the initiative to use gaming revenues to help other tribes that can’t or don’t participate in gaming. A great example is the provision in some gaming compacts to establish a trust fund that provides funding for essential government services for non-gaming tribes.

James C. Ramos, Chairman of the San Manuel Band of Mission Indians
The U.S. Supreme Court ruled in 1987 in the Cabazon case that tribal governments have a right to conduct gaming activities on their lands without interference from state and local governments. It was the state and local governments that pursued federal gaming legislation, and the tribes agreed to compromise.

No one can disagree that IGRA was, and is, a serious infringement on the sovereignty of tribal nations. It provided state governments with unprecedented leverage to affect the rights of tribes. Senator John McCain of Arizona characterized the situation best when he said during legislative discussions over IGRA that whatever the state governments and the commercial gaming industry have are theirs to keep, but what the tribes have is subject to negotiation.

Today revenue-sharing with state governments appears to be more the rule than the exception as states continue to look to tribal government gaming as revenue sources to help balance their budgets. Federal court decisions that address tribal rights have undulated for and against tribes over the years, like federal law and policy. Unfortunately, we are now in an era in which tribes are avoiding the Supreme Court, if at all possible. The plenary power doctrine is morally wrong, but the Supreme Court for now has decided that it’s the law of the land. We have some hope that the United Nations Declaration on the Rights of Indigenous Peoples will lead to better decisions from the federal courts, the Congress, and the Executive Branch, and new possibilities in international bodies.

Meanwhile it is up to each tribal nation to invest their gaming revenues wisely with an eye to the future. We have to work to secure reliable and diverse revenue streams for our tribal nations well into the future. In California, IGRA and the compacts with the tribes have ensured that all tribes, whether they have gaming or not, receive financial benefits from tribal government gaming. San Manuel has been particularly focused on assisting other tribes in need, when possible. We believe we have a strong cultural imperative to help other tribal communities in need, when we can.

If we have learned anything from our history as tribal nations, it is that anytime tribal nations had something of value, someone was waiting in the wings to take it away from us! Why should our governmental right to game be different?

Ray Halbritter, Oneida Indian Nation CEO and Representative
The IGRA that passed in 1988 is not the IGRA that exists now because of the courts. Included in IGRA was the provision that if states did not negotiate a gaming compact in good faith with the Indian nation, they were subject to lawsuits by the Indian nations—which is what happened with the Mashantucket Pequots, who negotiated the first gaming compact. The courts ruled that the provision whereby the states could be sued under IGRA was unconstitutional because it violated the states’ sovereign immunity. So now a state can act in bad faith and there’s no legal recourse.

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Unfortunately, this country has forgotten the historical and legal status of Indian nations and that’s what causes a lot of confusion, misunderstanding and tensions. Indian nations have responsibilities to their own people, and they’re sovereign governments, whether people like it or not. States are trying to extract as much revenue from Indian people as they can with gaming compacts. The ironic part of all this is while states are spending their time focusing on limiting our ability to do economic business it only hurts them because when Indian nations are not able to provide for their people they have to go for tax dollars for support.

There’s no way we’re ultimately going to win in these courts because they serve the ethnic majority of the country. Look at the Sherrill decision [the Supreme Court denied Oneida’s claim of land guaranteed by the 1794 Canandaigua Treaty]—our claim was denied because “the expectations of the community” were going to be disturbed. Well, aren’t we part of the community? The Indian interest is completely disregarded.

What really rankles a number of Indian people is that there were agreements made and laws passed that the federal government is not living up to. The 1794 Treaty of Canandaigua is the oldest treaty still recognized as valid by law by the U.S. From 1794 to this very day someone in Washington, D.C. every year puts in a purchase order for treaty cloth and sends it up to us. People say the treaty is old, well, the U.S. Constitution is even older and it says treaties shall be considered the supreme law of the land.

Throughout all the years when non-Indians were settling on our land and violating federal law and the treaties, no one did anything about it. You don’t have to be a lawyer to see that we as Indian people cannot do anything that disturbs the expectations of the white communities around us. And that’s unfortunate because it violates the principles upon which this system was built, such as ‘justice is blind.’ Supreme Court Justice Black said, ‘Great nations, like great men, should keep their word.’ It’s the word and very fiber of America at issue here.

In my view there are two answers to the problems we face. We cannot forget who we are. We exist today as Indian people not because the courts recognize us. It’s because we believe in ourselves and carry on from one generation to the next. If I, as an Oneida, walked away and forgot I was an Indian, I would disappear, as all Indian people would.

We were created by the Creator. He put that life and fire into us and we have a right to be here by virtue of our own creation and existence. We must not forget who we are and we must pass down who we are from one generation to the next.

Anthony Pico, Chairman of the Viejas Band of Kumeyaay Indians
Instead of looking back, I think tribes would be best-served by looking forward and continuing a unified approach to protecting sovereignty and Indian gaming as the path to economic independence and self-reliance.

Tribes need to be very careful about what we take to the courts because the results can have significant unintended consequences on all tribes. Historically, the courts have approached Indian legal issues with a “one size fits all” perspective. Of course, that’s not the case, and our issues and challenges are as diverse as our many nations. IGRA is not perfect, but it has conferred certain benefits and protections on Indian country, and Indian leaders must be ever-vigilant to protect IGRA from what seems like a constant assault from various interests. We cannot let our guard down and we must remain as unified as possible against outside interests that would undermine the protections that we’ve fought so hard for.

Bruce “Two Dogs” Bozsum, Chairman of the Mohegan Tribe
Since the 17th century, the Mohegan Tribe has had a “good neighbor” policy with the surrounding non-Native population, but we are also always aware of protecting our sovereignty and tribe first. It is a balancing act, but we seek to find the methods that make for a good and fair community for everyone.

In recent times, the Mohegans have waged battles against state efforts to conduct our business—including free slot play policies, a smoking ban and the possible state implementation of Keno games outside the tribal casinos. We have reached a solution on all three issues, and in most cases we had to compromise very little. I believe that is because we have a good relationship with our state government—a relationship that we work very hard to maintain.

We now stand with some of our fellow New England tribes in fighting the recent Carcieri decision by the Supreme Court—even though the end result could be more regional competition for our gaming business. The late Mohegan leader Harold Tantaquidgeon always said, “It’s harder to hate someone you know about.” Indian leaders must demand that legislators in their local area meet with them on these issues, as part of an effort to protect our gaming rights—and we should also continue to forge relationships outside our community and in the larger non-Native nation. I have been encouraged by the Obama administration’s effort to reach out to Indian country, but we have a long way to go.

Although we believe it was restrictive, IGRA can work for the benefit of Natives and non-Natives. The casino-resort model can have benefits that outweigh the downside that its opponents are so quick to point out.

IGRA has allowed our own tribal community to grow, and we would like to see that be the case for all Indian nations. The key is cooperation among the Indian nations with the nation at large and finding the best way for everyone.

Brian Patterson, President of United South and Eastern Tribes, Inc. (USET), Oneida Indian Nation citizen
When discussing IGRA, I have to consider the Oneida Nation’s history. In 1977 we bolted two single-width trailers together and opened a high stakes bingo ‘palace.’ We netted $147 the first weekend and we were on a roll! In 1985 we opened a high stakes bingo hall and had great success, but with people who had faced multiple generations of trauma and poverty it led to political divisions and the bingo hall closed after about a year and half.

The council and clan mothers spent years in discussion before and after IGRA passed in 1988. We discussed every moral and ethical issue about Indian gaming, including icons in our heritage that are interpreted to prohibit gaming, but every issue we debated came down to the central theme of our people having endured countless generations of poverty and the trauma attached to that. We said Indian gaming would be a window of opportunity and that we would diversify our economic foundation. It took years to come to a consensus and in 1993 we opened our doors to Turning Stone Casino.

Indian gaming should be an American success story of an impoverished people pulling themselves up by their bootstraps and addressing the social and economic needs of their people. Instead it’s painted as a special interest, with so many negative connotations. I’m sure Indian country would rather do something else, but gaming has proved to be the sole source of major economic development to lift up and build economies in Indian country. But my heart goes out to tribes that have not enjoyed the prosperity of successful Indian gaming, tribes such as USET’S land settlement tribes.

The courts are a whole other issue. While Indian country and Indian people continue to evolve and progress in their thoughts and actions, the courts are stuck in an attitude of paternalism that has continued down through the centuries. Our interests are not being advanced in the courts.

To me the answer lies in the international arena beyond the U.S. borders. That’s really where Indian country has to lead itself to take our place in the world economy and in relationships with other sovereign nations.

I think if we opened IGRA it would allow for attacks to be openly engaged, so it’s best to leave it alone. But should we challenge Congress’s plenary power? The answer is yes. We owe it to the vision and integrity of our ancestors and to the future generations. Congress is not holding up the original vision of the Constitution and the statutes and the treaties. USET will take on the great task of reexamining and redefining the trust responsibility from an Indian point of view and pursuing self-determination as we see it best.