— Frank Ducheneaux , an author of IGRA
A Critical Review
The architects of IGRA regret the negative impact per-capita payments have had on tribal politics and enrollment . Individual disbursements were not a controversy when the act was passed because tribal government gambling was not expected to become a billion-dollar industry .
“ There was no argument for or against it ( per-capita payments ),” says Alex Skibine , an Oklahoma Osage and University of Utah law professor who served as deputy counsel for the House Committee on Interior and Insular Affairs when IGRA was drafted . “ There was no real debate . We wanted to include some kind of limits to control the tribes ’ spending . We wanted to make sure the needs of the tribe were met .”
“ I put the provision in there ,” says Frank Ducheneaux , an Oglala Lakota and legal counsel to Interior and Insular Affairs . “ The concern at the time was the taxability of the payments .
“ I never imagined a tribe would disenroll people solely on the grounds they didn ’ t want them to have per-capita distributions . Disenrollment wasn ’ t a big issue back then .
“ I ’ m opposed to disenrollment , particularly when it ’ s related to per-capita . I don ’ t like it . Tribal membership can be a valuable right ,” Ducheneaux says . “ But I don ’ t think the federal government can tell a tribe it can ’ t make per-capita payments out of its gaming revenue .”
“ Frankly , we did not forecast how successful some of those casinos would become and how fast it would occur ,” Skibine says . “ We didn ’ t know the economics of gaming , the way it was going to develop .
“ If you look at some of the big tribes in the Midwest and Great Plains , they may never meet the needs of their tribal members ,” Skibine says , a Department of Interior requirement before a tribe can issue per-capita payments . “ We didn ’ t realize a lot of the more successful tribes would be the very , very small enrollment tribes in urban areas . We didn ’ t think in those terms .
“ Those are the ones who became the most successful the quickest . They are able to meet the needs of the tribal members very quickly ,” largely because government and social services are provided by non-Indian communities .
“ We didn ’ t think issuing a per-capita was going to be that easy ,” Skibine says .
Looking to the Future
“ I am not a fan of per-capita payments . But I would also defend the right of tribal governments and tribes and their communities to make those decisions for themselves ,” says
40 TRIBAL GOVERNMENT GAMING 2019
Bryan Newland , chairman of the Bay Mills Indian Community of Michigan and a former counsel with the Department of the Interior .
“ I would never want the federal government as a matter of federal policy to say , ‘ Hey , you can ’ t spend your gaming revenues that way .’
“ But I think it leads to a lot of complex political problems in a lot of tribal communities . It can create all kinds of problems for tribal governments and tribal communities .
“ But if you have all of your nation-building done along with your operating infrastructure and government , and you ’ re meeting the needs of your community , what else are you going to do with the revenue ?
“ If you are a seasonable employee or you ’ re disabled or retired or you ’ re a minimum-wage worker , even $ 1,000 a year makes a big difference . When you ask me about how I feel about per-caps , I say they are a double-edged sword .”
Many tribal leaders pursuing economic and governmental expansion and diversification may rue the day they approved a per-capita payment plan . Amending a RAP can be a politically volatile endeavor .
“ The political issue for most tribal leaders is once you start a RAP you can never stop ,” Valandra says . “ Yet , what if economic circumstances change and as a
“ We didn ’ t realize a lot of the more successful tribes would be the very , very small enrollment tribes in urban areas . We didn ’ t think in those terms .”
— Utah law professor Alex Skibine , who served as deputy counsel for the House Committee on Interior and Insular Affairs when IGRA was drafted tribe you don ’ t have the revenue you once had ? What do you do ?
“ When you get into guaranteed income , people depend on it . If something happens and the tribe can no longer maintain the payments , not only is it a political death knell for the current administration , but it has a lot of ramification for the tribal economy .”
“ The thing about a per-capita is once you put them out there , they can only increase , politically ,” Skibine says . “ Anybody wants to freeze them , they ’ ll get voted out of office .”
“ A lot of tribes throughout the country have built successful businesses , particularly those that haven ’ t chosen to allocate most of their gaming revenue to percapita distributions , but have instead chosen to build tribal assets ,” says Kristi Jackson , chairman of TFA Capital Partners , an investment banking firm servicing tribal and commercial gambling and leisure industry clients .
“ Those tribes that do say that if you can , politically , don ’ t initiate a per-cap . It ’ s interesting to hear that perspective .”