The role of the U . S . federal government in tribal government gaming
By Jesse Robles
Global observers of the American gaming market are often mired in its hyper-segmentation and the patchwork of laws that support it . Fractured into segments that include commercial gaming , racetracks , state lotteries and tribal casinos , the market is estimated to generate combined annual revenues of nearly $ 150 billion .
While lucrative , the American market can be hard to navigate after factoring in the recent repeal of a federal prohibition on sports betting , and the complexities brought about by the lack of an overarching federal framework to regulate all forms of gambling across the United States .
Of the 50 United States , 45 states ( in addition to the District of Columbia , the U . S . Virgin Islands and Puerto Rico ) offer lotteries , 29 states host some form of tribal government gaming , and 18 states offer commercial gaming .
For tribes , however , the federal government has played an inextricable role in nearly all aspects of life since the founding of the U . S . in 1776 . Today , the federal government still holds a disproportionately larger role in tribal government gaming than in its two industrial counterparts . Despite having the inherent right to game , tribal governments are regulated by the National Indian Gaming Commission ( NIGC ) and require coordination with numerous other federal agencies , including , broadly , the Department of the Interior , its Office of Indian Gaming , but also the Bureau of Land Management and the Department of Justice , among others .
How did this come to be , and what do things look like now ? More importantly , what does the future hold for Native American tribes ?
Law of the Land
It would be impossible to understand tribal government gaming without acknowledging its origins as a tribal-led effort to rebuild and work towards self-reliance and self-determination . That effort followed almost 200 years of American federal Indian policy and case law that was designed to formalize , codify and clarify the relationship between the federal government , the Native Americans — who were on the land before European colonization — and the states .
“ Thousands of years ago , what people know today as North America , Natives referred to as Turtle Island — and you would see us living in all directions ,” says David Bean , chairman of the Puyallup Tribe and vice president of the National Indian Gaming Association . “ After contact with the non-Indians , our way of life as we knew it was drastically impacted . These settlers came and occupied this land . They sought to take ownership , take possession of the land .”
“ The United States existence , when it first won the war against Great Britain , was very precarious , and many countries around the world did not recognize United States sovereignty ,” says Mary Kathryn Nagle , playwright and partner at Pipestem Law . To assert its sovereignty , the U . S . made agreements , or treaties , with tribal nations , to legitimize its place on the global stage .
“ The idea that treaties somehow gave status or standing or land to indigenous nations is probably the main fallacy that exists today ,” says Andrea Carmen , director of the International Indian Treaty Council .
Nagle adds , “ The United States Constitution recognizes that once a treaty is signed and ratified by the Senate , it becomes the ‘ supreme law of the land .’”
Establishing Tribal Sovereignty
“ Many people view treaties as ‘ special rights ’ for Indians . They ’ re not rights given to Native nations ,” but agreements between the tribal nations that signed them and the U . S . government , says attorney , activist and author Walter Echo-Hawk , a citizen of the Pawnee Nation of Oklahoma . “ Treaties go both ways . This was a two-way street — it was a shared history .”
Making reference to “ Indians ” only three times , the U . S . Constitution has been open to interpretation by the court system , which at times has “ sanctioned tyranny over a minority group in the midst of a democracy , and placed Indians under the absolute power of Congress at a time when Indians could not even vote ,” says Echo-Hawk .
Despite this , tribes have asserted their will to survive in a system that was not created by or for them .
26 TRIBAL GOVERNMENT GAMING 2020