Implications of Tribal Gaming Sovereignty in Regard to Sovereignty

by Marietta Hamill

The pairing of casino gaming and tribal sovereignty poses a challenging contradiction without a clear solution. Whereas other facets of tribal sovereignty–such as tribal health sovereignty–could theoretically operate entirely within the scope of Indigenous ideas, values, and goals, tribal gaming is locked within the regulations and restrictions of the United States federal government. Further, it is created within a system of socioeconomic values, otherwise known as capitalism, imposed by settler colonialism which cannot inherently prioritize or even acknowledge Indigeneity. At the same time, gaming is an exercise of tribal sovereignty in which Tribes leverage their legal and political power to maintain their overall self-determination. Access to gaming fosters access to and control of other facets of sovereignty such as healthcare, education, infrastructure, cultural preservation, and immense economic resources.

In their 2004 paper and 2005 book, Light and Rand examine whether tribal gaming is an exercise of sovereignty, considering the destructive ways in which gaming can affect tribal sovereignty as well as its benefits. Tribal gaming is potentially a powerful exercise of sovereignty; however, they emphasize the balance between gaming and tribal sovereignty is delicate and all the negative and positive impacts of gaming must be considered when structuring the future of tribal sovereignty. Two of the primary negative impacts they notice center around the perception of Indigenous peoples and the fact that tribal gaming is regulated and restricted based on the politics and ideological contexts of the United States government.

Tribal gaming sovereignty is an exercise exclusively wielded by Indigenous peoples. However, perceptions of tribal gaming by the non-Indigenous public and policymakers impact the strength of tribal gaming sovereignty. Popular forms of media, such as television, perpetuate biases against Indigenous gaming by presenting distortions of Indigenous people through the “Casino Indian” trope. In opening their works, Light and Rand detail these tropic depictions from popular media and point to television shows such as “The Simpsons,” “Malcolm in the Middle,” and “Sopranos” which reference Indian gaming. In each depiction, Indigenous peoples are stereotyped and homogenized: they appear as greedy, conniving people who either are caricatures of Indigenous bodies and culture or look suspiciously white. Television shows such as “Sopranos” even insinuate the casinos are not actually run by Indigenous peoples but white people who “discovered” their heritage–potentially referencing a famous Donald Trump quote from 1993 in which he states, “[The Pequots] don’t look like Indians to me and they don’t look like Indians to Indians.” 

Mohler (2020) also references this particular episode of “Sopranos,” “Christopher,” in her analysis of Indigenous representation as related to casinos during the era of “Peak TV”–beginning in the late 1990s. Here, she notes the dichotomy between the Native Americans protesting Columbus Day and the ruthless, business-savvy Chief Doug Smith, who runs nearby casinos. As is insinuated throughout the episode, Chief Smith's heritage is somewhat dubious as he conveniently "discovered" his Mohonk blood shortly before taking over the casino business. Although he is a fictional character, Chief Smith plays into the real fears of the American dominant public, particularly its wealthy members–including the aforementioned Donald Trump. Though television is a relatively new form of media, Mohler (2020) points out it is simply the most recent version of much older tropes. In “Peak TV” Indigenous characters are often relegated to the neoliberal version of the “savage Indian” trope. Instead of savagery based on war-mongering attitudes, savagery is based on the economic cunning, greed, and mobster-like criminality of so-called chiefs/casino CEOs. As she remarks, these characters serve to reflect and substantiate the "dominant American identities and socioeconomic anxieties"(Mohler, 2020).

In a dominant society which still uses Indigenous people as mascots it is hardly surprising that such objectionable depictions of Indigenous peoples and tribal gaming exist in “Peak TV” but this does not denote a lack of overall harm (Allchin, 2020). The presence of these characters directly impacts how Indigenous peoples are viewed by the broader public leading to interpersonal harm and dangerous policy. From local leaders to the current President of the United States Donald Trump, harmful depictions of tribal gaming and Indigenous peoples continue to influence people every single day to undermine tribal sovereignty in their politics and speech. The perception of the “Casino Indian”–no matter how inaccurate–has weakened the idea that tribal gaming could effectively strengthen and maintain Indigenous sovereignty. Given gaming’s negative impact on Indigenous images in the United States, it seems dubious that gaming could positively contribute to furthering Indigenous self-determination. 

The foremost weakness of tribal gaming sovereignty, however, is that tribal gaming is regulated by the U.S. federal government. No part of the required process to be “allowed” to conduct gaming within the U.S. favors the exercise of sovereignty, at least not a sovereignty that attempts to venture outside of the legal definitions created by the U.S. (Anon, n.d.-d). For Tribes to partake in gaming as laid out by IGRA they must first be federally recognized; they must then meet further designations: the gaming activities must take place on “Indian lands” within “Indian Country” and have attained those classifications before October 17, 1988 (National Indian Gaming Commission, n.d.). Of course, all of these are definitions/designations which were formed by and are maintained by the U.S. federal government, not Indigenous peoples themselves (Tribal Governance, n.d.). In the context of gaming and the larger sphere of Indigenous sovereignty and rights, terms such as “Indian lands” and “Indian Country” only serve to limit the power of Tribes. Although they “give” jurisdictional power to the Tribes, in many cases these jurisdictional powers still overlap with State and federal jurisdiction. Should Tribes meet the previous requirements, they then must submit a tribal gaming ordinance to the National Indian Gaming Commission (NIGC) who will review the Tribes’ proposal and decide whether or not to allow them to conduct gaming (National Indian Gaming Commission, n.d.). Tribes must also contact their State(s) of residence and begin the process of developing a tribal-state gaming compact. Although this process was previously governed by only the federal judiciary, it is now governed by a legally tenuous mix of federal courts and the Secretary of the Interior.

The insidious exchange of portions of tribal sovereignty for access to economic power–gaming–is what Cattelino (2010) refers to as the “double-bind of need-based sovereignty.” The double-bind of sovereignty is a location of intermediate power where Tribes are simultaneously rewarded for entering the economic system and punished for succeeding within it. Cattelino describes it as follows:

…American Indian tribal nations (like other polities) require economic resources to exercise sovereignty, and their revenues often derive from their governmental rights; however, once they exercise economic power, the legitimacy of tribal sovereignty and citizenship is challenged in law, public culture, and everyday interactions within settler society. (Cattelino, 2010:235-236)

Although many Tribes assert that gaming is as a result of exercising their sovereignty, they still face reductions to its potential simply by inserting themselves into the political-economic system gaming is governed by. As soon as wide attention was brought to the “issue” of Tribal gaming in California v. Cabazon Band of Mission Indians, the federal U.S. government was quick to assert it was the governing body and would continue to be. Furthermore, the passing of IGRA catalyzed the attention of jealous businesspeople and politicians who felt it was unfair that new competitors were entering the market with “help” from the federal government. It is for this reason individuals such as Donald Trump try to cast doubt on the indigeneity of those involved in the gaming industry. As Cattelino (2010) points out, a reduction of indigeneity–assimilation–therefore erodes any argument for the inherent sovereignty of Indigenous peoples. After all, if Indigenous peoples are just like everybody else, it is unreasonable for the federal U.S. government to give them any unique attention or “help.”

The States, in particular, have taken advantage of the federal judiciary to transfer tribal powers over gaming to themselves while still maintaining the benefit of Tribes’ access to IGRA. In attempting to understand the paradox of tribal gaming sovereignty, Baucom (2005) recounts the history of States interfering with tribal gaming or influencing the federal government to grant themselves more power over tribal affairs. He begins with California v. Cabazon Band of Mission Indians in which California argued that such gaming was criminal prohibitory in nature–which gave them the right to restrict it. The Supreme Court disagreed with this designation, ruling the gaming establishments in question were not criminal prohibitory in nature, but civil regulatory–which would leave restriction up to the federal and tribal governments. 

California v Cabazon Band of Mission Indians exposed a larger underlying issue with gaming in that it could potentially span the jurisdiction of multiple governmental powers. While tribal sovereignty should in theory mean the Tribes are able to regulate and restrict gaming, their designation as a ward of the U.S. federal government as per the Marshall Trilogy meant the U.S. government ultimately had the judicial power to create and enforce gaming regulation. As components of the U.S., though, State governments complicate the matter even further. To rectify jurisdictional questions and abate State demands, Congress created and passed the Indian Gaming Regulatory Act (IGRA) in 1988. Upholding Cabazon, IGRA “recognizes the prohibitory/regulatory distinction as a measurement for state jurisdiction over gaming” (Baucom, 2005). However, it also tries to move away from relying on the unstable/uneven balance between State and tribal interests as a statutory scheme, instead utilizing a gaming classification system. 

Interestingly, these classifications and their remedial provisions only reinforce Tribe-State imbalances. Each classification has its own requirements; class III requires the creation of a tribal-state gaming compact. To create a tribal-state gaming compact, Tribes must reach out to their State(s) of residence and propose a compact under which they are conditionally allowed to conduct class III gaming. Often, this requires the Tribe gives up some part of their gaming benefit, such as revenue, as a condition of being uniquely allowed to conduct class III gaming (Indian Gaming, n.d.). IGRA requires States negotiate “in good faith;” if negotiations are not in good faith, Tribes are permitted to sue States in federal court (National Indian Gaming Commission, n.d.). While this provision could theoretically tip the balance of power in favor of Tribes, it actually reduces any sovereignty they might have held in negotiations by requiring that mediation be conducted through the U.S. federal government, not on the terms of the Tribe. By placing the “location” of mediation under the same entity which wrote the law in the first place, the power of the States in negotiation is inherently increased because they compose the federal government and Tribes do not.

For three years, IGRA would hold true, but provisions intended to give the Tribes more bargaining power would prove to be a weak spot which States would quickly exploit. In 1991, the Seminole Tribe of Florida sued Florida in federal court for failing to negotiate the required tribal-state compact in good faith. Florida attempted to dismiss the motion to sue by asserting it had sovereign immunity as per the Eleventh Amendment. However, district courts denied the motion and concluded the State’s sovereign immunity had been explicitly abrogated by Congress in IGRA. Florida appealed the decision in the Eleventh Circuit, which reversed the original ruling, finding that Congress did not have the authority to abrogate a State’s sovereign immunity in the specific case of IGRA. 

Due to Seminole, “tribes lost the most efficient (and possibly the only) way to ensure the states followed IGRA’s provisions”(Baucom, 2005). Although Tribes still would have been forced to seek mediation in a governing body which lacked Tribal representation, IGRA pre-Seminole at least ensured States could be scrutinized or potentially made to negotiate more power to the Tribes. Without the provisions which allowed Tribes to sue States in federal court, Tribes would either be forced to find new ways of negotiating–likely losing or weakening other facets of sovereignty in the process–or give up class III gaming. Given how profitable class III gaming is, Tribes which were not able to negotiate a gaming compact would likely find themselves back in the very positions in which they started prior to IGRA.

Seminole also opened IGRA up to scathing judicial review which questioned its overall legitimacy. After the decision in Seminole, lower courts then had to decide whether the rest of IGRA was still valid if Congress had unconstitutionally allowed Tribes to sue States; it was not considered in the Supreme Court’s decision. Beginning with United States v. Spokane Tribe of Indians in 1998, the Ninth Circuit ruled on whether the rest of IGRA was severable from the unconstitutional provisions. They found the rest of IGRA would remain valid but questioned if Congress would have passed IGRA if they knew States could not be sued by Tribes. However, this still left questions about what Tribes were meant to do if States refused to negotiate. As alternate solutions, the Ninth Circuit suggested 1) the Tribes notify the Secretary of the Interior and ask them to mediate or create regulations or 2) the Tribe could ask the U.S. to sue the State on their behalf (Baucom, 2005). 

Yet, neither of these options return any negotiation power back to the Tribes or allow them to fully exercise their sovereignty as both require seeking aid from the federal U.S. government. While they could provide Tribes with a new route to utilizing IGRA, these suggestions do not empower the Tribes with any sort of fair representation, nor do they truly take tribal interests into account. The alternatives provided by the Ninth Circuit provide only short-term solutions for the issue of the Tribes versus the States. Without changes that allow Tribes to choose the grounds for negotiation or their own elected representatives in mediation (i.e. not the unelected Secretary of the Interior), Tribes are left in the same situation as before Seminole. The only way in which to exercise their sovereignty in negotiations for tribal gaming is to hire good legal counsel.

Indeed, the United States’ disinterest in properly representing the Tribes was demonstrated clearly in United States v. 1020 Electronic Gambling Machines. In this case, the Spokane Tribe of Indians asserted the U.S. Attorney General had a responsibility to represent them in suing the state of Washington after the State repeatedly refused to negotiate a gaming compact. However, the district court (and the U.S.) concluded the Tribe had “no basis for imposing specific trust duties upon the United States” (Baucom, 2005; 38 F. Supp. 2d 1213 (E.D. Wash. 1998), 2025). As a result, Tribes were left with only three options if States refused to negotiate: relying on the Secretary of the Interior to mediate the conflict, acquiescing to any of the State’s demands to conduct class III gaming, or not partaking in class III gaming. No matter what Tribes choose, however, tribal sovereignty is not strengthened through gaming as all these options result in the Tribe ceding legal and political power in favor of potential economic gain.

In conclusion of his analysis, Baucom (2005) admonishes the ongoing judicial decisions and State attitudes which continue to reduce tribal authority and power. He cautions that while IGRA was supposed to provide a balance between State and tribal gaming interests, it has instead provided an opening for States to consume rights the Tribes were supposed to be granted. Tribes should have been able to more effectively exercise their sovereignty with gaming but have experienced more restrictions being placed upon them.

References

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