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Indian Gambling

By Lakshmi GopalkrishnanPosted Friday, Nov. 28, 1997, at 3:30 AM ET

Illustration by Nina FrenkelGambling as an enterprise among American Indian tribes has exploded in recent years. The first operation started in 1979. Today, 280 operations are conducted by 186 gambling tribes across 28 states; the 1996 take is estimated at $6 billion. Indian tribes are now locked in competition: Three Wisconsin tribes have filed a suit claiming they were denied a casino license in 1995 because wealthier tribes beat them to Democratic campaign coffers. It appears likely that an independent counsel will be appointed to investigate Interior Secretary Bruce Babbitt's handling of the affair. What is the legal basis for gambling on Indian reservations? What accounts for the explosion in the number and size of such operations? Who controls the gambling spigot: the tribes, the states within whose boundaries the reservations lie, or the federal government?

The concept of tribal sovereignty. The "Cherokee cases" of the 1830s framed tribe-state-union relations thus: The tribes were neither foreign nor subject nations; they were "domestic dependent nations," "wards" to the union's "guardian." Since the reservations were federal protectorates, state law had no force on their territory.

Exceptions to the rule. Tribal immunity from state law is not absolute. Tribes have, on occasion, opted for a blurring of boundaries (asking that state cops patrol reservation land, for example). And several court decisions since Cherokee have authorized exceptions to the state-exclusion principle. A state may, for example, make enforceable laws governing tribes if Congress delegates authority to that state.

Congress has used its delegation power to transfer its authority to states on several occasions. For example, Public Law 280 (1953) gave several states complete criminal and some civil jurisdiction on reservations. Even without the specific delegation of authority, state law may still be considered valid if it doesn't flout federal goals. Click here for an example.

Limits on state control. Gambling did not become an issue until 1979, when the Seminole tribe of Florida identified bingo as a means of alleviating poverty on the reservation. The tribe's decision put it in direct conflict with Florida's rather restrictive bingo statute. Crying PL 280, Florida went to court--and the court ruled in favor of the tribe. Its reasoning: Bingo was not universally prohibited in Florida; nonprofit organizations were exempt. Therefore, the state had no right to regulate bingo on the Seminole reservation.

The Seminole victory was the first in a series, and Indian gambling thrived over the next several years.

Enter Congress. The Indian Gaming Regulatory Act (1988) sought to set regulatory standards and arbitrate outstanding tribe-state conflicts. IGRA confirmed the tribes' "exclusive" right to regulate reservation gambling as long as the gambling activity in question did not violate federal or state law.

The act also divided Indian gambling into three classes. Of these, tribes were given control of the first two (traditional/ceremonial games, bingo, and some card games). But Class III operations--casinos and the like--required that the tribe enter an agreement, or "compact," with the state.

IGRA Illustration by Nina Frenkelobliged the state to enter negotiations in good faith, failing which a tribe could sue in federal court. But when the Seminoles, victorious in 1979, sued Florida after being denied compact negotiations in 1996, they lost.

Predictably, IGRA has come under fire from all directions. Incensed tribes have pointed out that the court's ruling stripped them of their safety net, making their sovereignty moot. The Department of the Interior is exploring alternative procedures that would let tribes negotiate compacts directly with the secretary, cutting the states out of the equation. This July, Sen. John McCain introduced the Indian Gaming Regulatory Act Amendments Act of 1997 in the Senate, seeking, among other things, to establish an independent U.S. agency that would set minimum federal regulatory standards for reservation gambling.

Meanwhile, a few tribes keep the bulk of the gambling prize: The General Accounting Office reports that of the 126 tribes operating gambling facilities as of Dec. 31, 1996, eight accounted for 40 percent of total revenues. Moreover, Tribal Allocation Priority funds, as federal payments to tribal governments are known, are divvied up based on tribe size and population density rather than income, meaning that tribes with big gambling incomes often get federal subsidies as big as those with none.

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Lakshmi Gopalkrishnan is the copy editor of Slate.
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