— Robert Gray , chief of Virginia ’ s Pamunkey tribe , noting it would consider operating a commercial casino rather than jump through federal hoops to take land into trust for gaming
A Problematic Process
As a concession to states , the commercial casino industry and anti-gambling interests , authors of the Indian Gaming Regulatory Act ( IGRA ) largely limited casinos to tribal lands in existence when the act was passed by Congress in 1988 .
But the federal law did allow Section 20 exemptions for newly recognized and restored tribes and property acquired in a federal lands claim . The exemptions were intended to provide “ equal footing ” for tribes not eligible for gambling when the act was passed .
IGRA also allows tribes to develop casinos on trust land off existing reservations , a process referred to as “ two-part determinations ” because it requires approval from the governor and proof a casino is in the best interest of the tribe and not harmful to nearby Indian and non-Indian communities .
But getting approval from Interior and the Bureau of Indian Affairs under any Section 20 exemption is a long and expensive endeavor , often fraught with politics and likely to result in years of litigation .
“ It ’ s a high bar to clear ,” says Newland . “ You have to incur millions of dollars of expense to compile the material needed to get through the bureaucratic process . Then if you get a favorable decision , there ’ s the legal cost to defend the decision in court . “ The process has become very difficult .” The process grew more complex with the 2009 U . S . Supreme Court ruling in Carcieri v . Salazar , which limited Interior ’ s authority to place land in trust for tribes .
Justices in Carcieri ruled that Interior could not place land in trust for tribes not “ under federal jurisdiction ” with enactment of the Indian Reorganization Act of 1934 .
Justices , however , did not define “ under federal jurisdiction ,” giving antigambling groups and tribes opposed to new competition legal ammunition to contest Section 20 petitions .
Carcieri caused a lengthy and expensive bureaucratic process to drag on even longer and become even more costly .
“ The opposition from existing tribal casinos was not anticipated , nor was
Carcieri ,” says attorney Alex Skibine , who served as deputy counsel for the House Committee on Interior and Insular Affairs when IGRA was drafted . The Supreme Court ruling in Carcieri allows opponents to question whether Interior has the authority to place land in trust for gambling . Congress has rebuffed efforts to enact a legislative “ fix ” to the Supreme
Court ruling in Carcieri . “ The problem is not with IGRA ,” tribal attorney Judith Shapiro says of the difficulty in acquiring land for casinos . “ The problem is with Carcieri .”
“ The easy ones have already been done ,” Shapiro says of the trust land casino development in the early years of IGRA . “ There hasn ’ t been a lot of growth . That ’ s been true for a long time .”
Pamunkey tribal Chief Robert Gray says he would consider operating a casino in Norfolk , Virginia under commercial law rather than struggle through IGRA ’ s long , complicated and expensive process .
“ As a federally recognized tribe with both the right to engage in gaming activities and the financial backing to make it happen , we believe that if the commonwealth is ready to authorize gaming , our project should be part of it ,” Gray said in a statement .
“ To consider other projects without taking into consideration the Pamunkey casino in Norfolk and the potential of additional Pamunkey casinos in Virginia would fail to take a much-needed comprehensive approach to gaming .”
Jackson says gambling under IGRA may be problematic , but it still provides opportunity for indigenous Americans , particularly newly recognized , restored and landless tribes .
“ There are plenty of examples around the country where the revenues from gaming are providing services tribal members would otherwise not have access to ,” Jackson says . Section 20 projects are becoming a rarity . “ Instead of 20 a year ,” she says , “ there may be one or two .”
A More United Industry
The nationwide campaign to legalize sports betting aligned the lobby and trade organizations for the commercial and tribal segments of the legal gambling industry , the American Gaming Association ( AGA ) and the National Indian Gaming Association ( NIGA ). Eleven of the larger casino tribes eventually joined the AGA . While there are significant differences between commercial and tribal government gambling , there are many policy issues that unite the two segments of the casino industry .
“ We made a very consequential decision , and we ’ re not uniting for the sake of uniting ,” says NIGA Chairman Ernie Stevens . “ We ’ re uniting because it ’ s important to our future .”
28 TRIBAL GOVERNMENT GAMING 2019