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Tribal Governments in 2010 - Tribal Gaming
Patrick Murphy, a former executive at Mystic Lake Casino, led the sessions on tribal gaming. The sessions covered a brief history of the development of Indian gaming and included a discussion about future issues and trends.
Legal history
Tribal gaming is a relatively new phenomenon in Indian Country. The Supreme
Court in Californian v. Cabazon Band of Mission Indians (480 U.S. 202,
1987) established that Indian tribes may conduct any gaming activities
not specifically prohibited by state law. While the Cabazon decision
referred only to states in which Public Law 280
Tribal Gaming and Minnesota
In 1989, the state of Minnesota signed 22 compacts with Indian tribes. The negotiated agreements limited tribal gaming to such activities as blackjack and video slot machines, and excluded other activities such a pari-mutuel betting. The Minnesota compacts have no expiration date. Tribal gaming is now conducted on all of Minnesota's 11 Indian reservations.
Gaming has produced an influx of money for the tribes and for the states. In Minnesota, gaming is the seventh largest employer and produced $1.5 billion in revenue in 1992 alone. This revenue was generated without the imposition of any new taxes or public investment by the state. Moreover, increased revenues have resulted in a significant decrease in state and county expenditures for welfare and other social service programs. For example, in the first two years following the expansion of gaming in Minnesota, welfare expenditures decreased approximately 16 percent in those counties where Indian gaming was present. Murphy further suggested that the changes that gaming has brought to the tribe's economic status has certainly influenced changes in the relationship between the state of Minnesota and Indian tribes.
Gaming and Its Effect on Tribal Government
Tribal gaming has not only affected state-tribal relations, it has also had an effect on the internal affairs of tribal governments. The increase in tribal revenue has raised the issue of the accountability of Indian leadership. While accountability is not new for tribal governments, Indian gaming has made it more pronounced. Murphy stated that with increased revenue comes the responsibility of informing tribal members about casino revenues and how these revenues are spent. In some cases, Indian communities have become internally divided around the distribution of wealth. The question of whether to distribute casino profits to individual tribal members in per capita payments, or to reinvest revenues in tribal education and infrastructure has become a contentious issue within the tribes.
Murphy suggested that with the advent of gaming, considerable change has occurred for a few tribes within the last five to seven years. He pointed out that there has never been an entire race of people who have experienced such an increase in wealth in such a short amount of time.
"We are just beginning to see how that has changed people on an individual basis, a relational basis and a tribal basis," he said. Murphy believes that because of the extreme wealth that the Mystic Lake Casino of the Shakopee Mdewakanton Dakota creates, Minnesota might serve as a laboratory for examining how these changes will affect Indian tribes. It is important to consider what Indian gaming has done to the tribe as a people and what it has done to the tribe's tradition of sharing and helping others.
Another important consequence of gaming that Murphy noted is that tribal enrollment has become more controversial as people with (and even without) Indian blood attempt to gain member status in financially successful tribes. Yet, Murphy pointed out, only a very small number of tribes have the luxury of making enough profits to distribute substantial wealth to their individual members. Tribes such as the Shakopee Mdewakanton Dakota in Minnesota and the Mashantucket Pequot in Connecticut represent only a tiny fraction of tribes conducting gaming and enjoying significant profits. The majority of Indian tribes continue to struggle with poverty on reservations. Furthermore, the operation of casinos has generated a range of employment and equity issues. Some participants voiced concern that tribes with casinos ought to pay a higher wage.
The Future of Gaming
Murphy stated that the future of tribal gaming still remains unclear. In his view, gaming has been the first real economic development program to work on the reservation and it has been much more successful than policy makers could have imagined. As a result, congress has attempted to introduce amendments to the IGRA to give greater leverage to states. The Minnesota legislature has also considered and rejected proposals to act unilaterally to ad an expiration date to tribal gaming compacts. Most significantly, the federal Supreme Court held in Seminole Tribe v. Florida (801 F. Supp. 655; S.D. Fla. 1992) that the IGRA's enforcement clause which allows states to be sued in federal court for failure to "bargain in good faith" violated state sovereign immunity under the Eleventh Amendment of the U.S. Constitution. It is not clear to policy makers and tribal governments what effect this decision will have on the IGRA. It is likely that negotiations between tribes and states for gaming compacts will be a continued requirement. However, if states refuse to negotiate, tribal options would be to either petition the Secretary of the U.S. Department of the Interior directly, or act on the basis of the Cabazon rule and simply establish gaming activities not prohibited by state legislation.
According to Murphy, conflict between states and tribes over tribal gaming seems inevitable. State and tribes often compete with each other for gambling revenues. Moreover, states often oppose tribal gaming because they cannot tax these revenues. As a consequence, gaming compact negotiations are likely to include more aggressive state requests for tribal payments and other arrangements in lieu of taxes more favorable to the states.
A future tribal consideration is that as the gaming market becomes saturated, individual casinos may see a reduction in their consumer base. For this reason, many tribes are currently diversifying their investments and decreasing their economic reliance on gaming in order to secure a more stable financial future for tribal members.
Murphy offered the following recommendations related to gaming and sovereignty in 2010. Tribes should focus on what is fundamental to Indian survival for future generations. He stated that culture and heritage are very important. "It is who we are, where we have been and where we need to go." Moreover, it is important to focus on the essential political realities. Sovereignty, he said, is not a result of wealth, nor is it a result of power. Sovereignty is an inherent characteristic of any government. It exists and will continue to exist regardless of whether a tribe is rich or poor.
1. 18 U.S.C.A. 1162. 28 U.S.C.A. 1360. P.L. 280 is now in effect in the states of Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin. It provides for these states to assume general criminal and some civil jurisdiction over Indian reservations within the state. Tribes retain limited criminal and general civil jurisdiction, but because of a lack of resources have generally not fully assumed these responsibilities.
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