Sovereignty and Indian Gaming in the United States

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The development of gaming operations on Indian reservations, and the phenomenal success some tribes have had with these operations, has brought a new dimension to the debate over Indian sovereignty. For the first time some tribes now have, through gaming profits, the economic means to exercise their "inherent sovereign powers," among many, the ability to provide essential services themselves rather than having to depend on the government. States, however, have perceived this growth in Indian gaming as a challenge to their sovereignty and have, along with the non-Indian gaming industry, sought to restrict Indian operations. Tribes, in turn, see such attempts to limit their ability to run gaming as infringements on their sovereignty.

GAMING AND INDIAN SOVEREIGNTY

The era of reservation gaming was ushered in by the Supreme Court's decision in the 1987 case Californiav. Cabazon Band of Mission Indians. The Court ruled that a state has no authority to regulate or prohibit gaming on Indian lands if the State otherwise allows gaming. Since few states criminally prohibit all types of gaming ("Las Vegas" nights for charity, for example, are widely permitted), most states, suggests Indian law attorney Linda Epperley, arguably had no power under this ruling to intervene in any type of Indian gaming activity (Epperley 1992: 413).

Congress attempted to give some control over Indian gaming to the states by adopting in 1988 the Indian Gaming Regulatory Act (IGRA). Under the provisions of the Act, states are required to enter into good-faith negotiations with tribes who wish to establish gaming operations. A gaming compact must be reached in this manner between the state and the tribe if Indian gaming operations are to be lawful.

The IGRA, notes attorney Robert Nance, is an "experiment in shared sovereignty" (Nance 1992:71). The Act requires tribes to negotiate compacts with states to conduct gaming. But because states and tribes negotiate as distinct sovereigns, states cannot automatically impose upon tribes limitations on gaming that they impose on their own citizens. Conversely, under the IGRA tribes cannot conduct gaming operations without state input. According to Nance, "by act of Congress, the subordinate sovereigns must negotiate the terms of permitted Indian gaming, neither being free to dictate to the other. Thus, tribes and states must creatively manage to share sovereignty over gaming conducted in Indian country." This "shared sovereignty" approach has come under criticism by opponents of Indian gaming (and of the IGRA in particular) and is at the center of a current movement to impose tighter controls on reservation gambling.

CLAMPING DOWN

At the time of the IGRA's passage, it is unlikely that anyone foresaw the enormous growth potential for Indian gaming. Minnesota Congressman Gerry Sikorski, for example, stood before Congress and described Indian gaming as "a couple of video machines hundreds of miles from Donald Trump and the Vegas strip ... piddling money to the big boys." But by 1993, 25 states allowed some form of gaming on reservations and the profits from Indian gaming had skyrocketed to $6 billion. 175 tribes were involved with gaming.

Trump, as well as state governors and other government officials, was claiming that Indian gaming was out of control, corrupt, and in dire need of stricter governmental regulation. In testimony before a Congressional hearing in October 1993, Trump stated that "it's obvious that organized crime is rampant on the Indian reservations. This thing is going to blow sky high. It will be the biggest scandal since AlCapone, and it will destroy the gaming industry." The FBI refuted these statements and has testified that it has not detected major incursions by organized crime into Indian gaming around the country.

Trump has also filed a lawsuit against Secretary of the Interior Bruce Babbit and Anthony Hope, Chairman of the National Indian Gaming Commission, alleging the unconstitutionality of the IGRA. The suit says that states should have the right to decide whether to allow gambling and that the Act gives Indians casinos an unfair advantage over Trump's and other casinos.

The IGRA has likewise come under attack from members of Congress and state governors seeking to rein in Indian gaming and increasing state control. In 1993 New Jersey Representative Robert Torricelli introduced the Gaming Integrity and State Law Enforcement Act as a means of reforming the IGRA by giving greater oversight power to the states. "What has happened (since the implementation of the IGRA) does not reflect the original intent of the IGRA legislation," he said in testimony before the Senate Committee on Native American Affairs. "Native Americans have established forms of gaming that no other citizens are allowed to operate." Torricelli's bill is to be considered by Congress during the summer of 1994.

For their part, many Indian groups have vehemently opposed the moves by Trump, Torricelli, and others to restrict what they see as their legal right to establish and control gaming operations on their tribal lands. These attempts amount to "economic racism," said Barona Band of Mission Indians Tribal Chairman Clifford LaChappa. Other Indian leaders accuse those seeking to restrict Indian gaming of ignorance of Indian law and of being in the pockets of Las Vegas and Atlantic City gambling concerns.

Thus sovereignty - as it is variously interpreted with regard to the gaming issue - remains at the center of concern. On one side, Indians argue that as sovereign nations - a status recognized by federal law - only their should have the right to regulate gaming on their lands and to reap its benefits. Gaming revenues have provided them the economic power to reassert their sovereignty. Tribes have thus established a strong link between sovereignty and self-sufficiency. According to Gaiashkibos, president of the National Congress of American Indians, "Our tribes recognize that gaming is an activity which goes far beyond the debates over the details of the gaming industry itself: gaming involves tribal authority, self-determination, and the sovereignty to control our own destinies. The issues of sovereignty of self-determination are part and parcel of the question of `who should regulate Indian gaming.'"

Supporters of states' rights, on the other hand, argue that gaming-strengthened tribal sovereignty is in fact acting to erode state sovereignty. State governors, in seeking to amend the IGRA, have argued that gaming oversight should be within the realm of state, and not tribal, sovereignty. "States recognize and support the economic self-sufficiency of Indian tribes," said Governor Mike Sullivan of Wyoming, testifying before Congress on behalf of the National Governors' Association earlier this year. "We do not believe, however, that such economic development should come at the expense of state sovereignty or dictate, directly or indirectly, state policy decisions."

THE WAMPANOAGES: A STUDY IN SOVEREIGNTY

There is, of course, no unanimity within Indian tribes as to the threats or benefits of gaming to tribal sovereignty. Some tribes, such as the Alabama-Coushattas of Texas, have flatly rejected proposals to establish gaming on their reservations, citing moral and ethical considerations. Mixed feelings about gaming have also been expressed recently among the Wampanoag nation of Massachusetts. Inspired by the mega-profits earn by the Mashantucket Pequots at the Foxwoods casino in Connecticut, the Wampanoags have been negotiating with the Massachusetts state government to establish their own gaming complex. One study estimated that such as operation could bring in revenues of over $1 billion a year.

Supporters of gaming within the tribe maintain that, as a poor and numerically small tribe, the gaming money would allow the Wampanoags to recover their tribal traditions, many of which have been lost since the Wampanoags' first contact with English settlers in 1620. These supporters argue that by asserted its sovereignty through gaming revenues, the tribe could not only recover its past but also, as other tribes have done, assure its future. "Maybe some people say you deserve to be poor, but I don't ascribe to that," said Jeffrey Madison, the tribe's director of economic development. "We've got nothing. People can get very complacent in their existence, but whether they know it or not, there's a better life out there for our children."

There is, however, a vocal minority within the Wampanoags that opposes the tribe's involvement with gambling. This group says it fears that security and sovereignty will be gained at the cost of tribal integrity. They also express sadness that something as morally dubious as gaming should be the Wampanoags' ticket out of poverty. "As Americans, we should all be ashamed that the state has to take care of its people with gambling," said Gladys Widdiss, a tribe member.

Massachusetts governor William Weld has been generally supportive of the Wampanoags' efforts. His administration is reportedly seeking $100 million from the tribe in exchange for exclusive gaming rights in Massachusetts. Some of Weld's advisors, however, have criticized the attempt to bring legalized gambling to the state. Attorney General Scott Harshbarger has called for comprehensive regulations to prevent corruption before authorizing any gaming operations. Weld's chief legal counsel, Brackett Deniston, has also raised questions about the Wampanoag's financial partner in the project, Carnival Corporation.

Massachusetts' two U.S. sentors, Edward Kennedy and John Kerry have not taken a position on the tribe's proposal. However, U.S. representative Barney Frank, whose district contains the town in which the Wampanoags' would locate their casino, strongly supports the tribe's plans. "I will fight anything that makes it impossible for the Wampanoags to reach an agreement with Gov. Weld," he said recently. Despite Frank's support, federal officials estimate that it could be another three years before the tribe can obtain all the approvals needed to establish their operation.

AN INHERENT RIGHT TO SOVEREIGNTY

The second part of this article is (except where noted) based on Stephen L. Pevar's The Rights of Indians and Tribes: The Basic ACLU Guide to Indian and Tribal Rights (Southern Illinois University Press: 1992).

In light of the gaming issue, the question of what exactly is meant by Indian sovereignty needs to be examined. The advent of gaming has not necessarily made the answer to this question any clearer. Part of the problem is that sovereignty is a murky concept in any context. Oppenheim's International Law states that "there exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon."

This lack of "universal agreement" on the meaning of sovereignty is certainly true with respect to its application in the Indian context. There is substantial dissension among politicians, scholars, and among Indians themselves as to just what Indian sovereignty entails. The concept has been subject to both wide and narrow interpretations since Indians first entered into formal relations with European settlers.

There are, however, basic constructs pertaining to the nature and scope of Indian sovereignty that have remained in place and continue to influence perceptions of the issue.

ELEMENTS OF SOVEREIGNTY

The most basic component of any notion of sovereignty is self-government. No entity can be sovereign without the ability to govern itself. Indian nations clearly do have the right to self-government. The Supreme Court first recognized this "inherent right" in the landmark 1832 decision Worcester v. Georgia. The Court ruled that the state of Georgia could not impose its laws on the Cherokee Indian Reservation, noting that:

Indian nations [are] distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.... Indian nations had always been considered as distinct, independent political communities, retaining their original rights, as the undisputed possessors of the soil from time immemorial....The Cherokee nation, then, is a distinct community, occupying its own territory...in which the laws of Georgia can have no force.

This principle was reaffirmed by the Court in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe (1991), in which it stated that "Indian tribes are `domestic dependent nations' which exercise inherent sovereign authority over their members and territories." A number of important powers held by tribes flow from this inherent right of self-government. Among them are (1) the ability to determine tribal membership; (2)regulation of tribal property; (3)regulation of individual property; (4)the right to tax; (5)the right to maintain law and order; (6) the right to exclude nonmembers from tribal territory, (7)the right to regulate domestic relations; (8)and the right to regulate commerce and trade.

FEDERAL POWERS AND INDIAN SOVEREIGNTY

Despite these powers, however, Indian sovereignty is ultimately a "limited" sovereignty. The Supreme Court has described tribal governments as "quasi-sovereign" and "semi-independent." (U.S. v. Kagama 1886). By sheer might, if not, as some argue, by legal justification, the U.S. government retains final authority to "legislate for the Indian tribes in all matters, including their form of government." (U.S.v. Wheeler 1978).

The ostensible legal basis for this power is found in the U.S. Constitution. Article I, section 8, clause 3 (the Commerce Clause) provides that the "Congress shall have the Power...to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Article II, Section 2, clause 2 (the Treaty Clause) gives the President and the Senate the power to make treaties, including treaties with Indian tribes. The Supreme Court held in Worcester that these two constitutional provisions provide Congress with "all that is required" for complete control over Indian affairs. This is the doctrine of "plenary power," the cornerstone of relations between the federal government and Indian tribes. Under plenary power, the Congress has "full and complete" power over all Indian tribes, their government, their members, and their property. This power includes the authority to eliminate tribal powers of local self-government.

In addition to using the doctrine of plenary power, the U.S. courts have upheld the right of Congress to impinge on Indian sovereignty based on two other principles known as the "political question" and "federal trust responsibility" doctrines. The former was invoked in the Supreme Court's decision in Lone Wolfv. Hitchcock (1903). The Court upheld a law that Indians had challenged as a violation of a prior treaty with the Indian nation. The Court supported the statute by stating that the power of Congress over Indian affairs was of a "political nature" and thus a matter for the executive or legislative branches, not the federal courts.

The federal trust responsibility doctrine is one of the most important elements of Indian law. Simply stated, the trust responsibility is the legal obligation of the U.S. government to protect Indian lands, resources and right of self-government. This obligation stems from the idea that promises made by the U.S. government in treaties with Indians - promises which included the creation of reservations and the protection of tribal members by the government and the giving up of land by the Indians - create a "trust relations." The Supreme Court has noted that the promises made in this way create "a duty of protection" toward the Indians. (U.S. v. Kagama 1886).

The courts have extended the trust responsibility so that federal statutes, agreements and executives orders can create trust obligations in the same way a treaty can. The government, however, is not obligated to perform a specific act under the trust responsibility doctrine unless a treaty, statute, or agreement expressly imposes or clearly implies that obligation. Moreover, a trust responsibility is in effect "self-imposed" by the government. It can terminate a trust relationship with an Indian tribe at any time, with or without the tribe's consent. Thus, although theoretically a tool for protecting Indian rights, the trust responsibility has also been used the government to take away Indian lands and resources and restrict tribal governments in the name of protecting Indians.

STATE POWERS AND INDIAN SOVEREIGNTY

The U.S. Constitution gives Congress rather than the states exclusive authority over Indian affairs. Thus, generally speaking, unless Congress has authorized a state to apply its laws within an Indian reservation, it may not do so. States in fact have very little authority to regulate reservation Indians. The Supreme Court has noted that, "the policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history." (McClanahan v. Arizona State Tax Commission 1973.) The inability of states to tax or regulate the affairs of Indians has caused considerable resentment on the part of some states' residents towards Indians. These feelings are currently evident in the debate over Indian gaming.

As a general rule, states do not have the right to regulate the activities of reservation Indians. The Supreme Court affirmed this rule in Worcester v. Georgia by declaring that state laws "can have no force" within an Indian reservation unless Congress has authorized the state to apply them there. The Court has since moved away from this absolute position, stating recently that "there is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members." (White Mountain Apache Tribe v. Bracker 1980). Thus, a state law authorized by Congress is valid, but some state laws can be applied within Indian country even if not expressly authorized by Congress. Nearly every law, however, that states have attempted to enforce within Indian country has been struck down by the courts, except for those explicitly authorized by Congress.

The Supreme Court now uses a two-part test to determine which state laws can be enforced in Indian country without congressional approval. The parts of this test are known as the "federal preemption test" and the "infringement test." The former stipulates that a state law that is inconsistent with federal law is not valid. If a federal law, for example, prohibits states from taxing Indian land, a state tax on that land violates the presumption test. The infringement rest, established by the Court in 1959 in Williams v. Lee, provides that a state may not infringe "on the right of reservation Indians to make their own laws and be ruled by them." This principle protects the inherent right of Indian tribes to be self-governing.

A state law must pass both of these tests in order to be valid. State laws affecting reservation activities must also be viewed against a "backdrop" of tribal sovereignty, the inherent right of the Indian tribe to govern itself. The Supreme Court explained in 1980 (Bracker) that "traditional nations of Indian self-government are so deeply ingrained in our jurisprudence that they have provided an important `backdrop' against which" the state law in question must be viewed.

CONCLUSION

Although there is a wide difference of opinion among both Indians and non-Indians as to its costs and benefits, gaming on reservations has grown rapidly since 1988 and will likely continue to do so for some time. Thus the sovereignty issue will remain one of great significance for tribes as well as for state governments affected by newly-empowered assertions of Indian sovereignty. Ultimately, the issue is - as are all questions of sovereignty - one of control. Who will control the profits earned by Indian gaming? Tribes argue that they, as sovereign nations, have the right to determine the allocation of this money. States will continue to argue that it is their prerogative to restrict and control Indian gaming so that it does not get "out of hand" or become contaminated by Mafia influence. Tribes counter that such concerns are misplaced; gaming is within their dominion, and thus they will take responsibility for whatever consequences may occur. Both sides seek to assert their control and, ultimately, to protect their sovereignty.

Article copyright Cultural Survival, Inc.

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