— Walter Echo-Hawk , attorney and member of
Oklahoma ’ s Pawnee Nation
It wasn ’ t until 1988 that the U . S . Congress clarified a critical part of that relationship by formally addressing gaming on Native American ( Indian ) reservation land with the landmark Indian Gaming Regulatory Act ( IGRA ).
“ IGRA came on the heels of the California v . Cabazon decision ,” says Chaudhuri . By the late ’ 80s , some tribes across the country were beginning to engage in forms of gaming , and tribes including the Morongo and the Seminole were beginning to test Congress ’ authority over gaming . In the Cabazon decision , the U . S . Supreme Court “ upheld the inherent authority of tribal nations to regulate gaming activities on their own lands .”
IGRA : Before & After
For many , the origins of tribal government gaming start with IGRA . But John Tahsuda , principal deputy assistant secretary of the Department of the Interior , says , “ Before IGRA was enacted , the Department of the Interior had virtually the sole responsibility , other than criminal prosecution , for working with the tribes on any business , including what became Indian gaming .
“ Coming out of IGRA , in its wisdom Congress decided to divvy up those responsibilities a little bit . But one of the important roles kept with ( Interior ), which was handled by the assistant secretary for Indian Affairs Office , was the land aspect of Indian gaming . And we can ’ t have Indian gaming without land , right ?”
Chaudhuri says , “ IGRA didn ’ t happen by accident . At the time , there were voices on both the pro-tribal sovereignty side as well as , frankly , the anti-tribal sovereignty side , trying to sway Congress to inject language in one direction or the other that reflected historical policy fluctuations .”
IGRA was a direct response to U . S . Supreme Court decisions confirming the inherent right of tribes to game . But even during its creation , there were institutional voices that wanted to “ severely restrict tribal sovereignty , so that gaming — to the extent that it was conducted by Indian nations at all — would be primarily overseen by state governments .”
Fortunately , other voices , including those of the tribes and tribal leaders , strongly advocated that “ the principles of self-determination and sovereign control over tribal economic matters needed to be maintained and retained in any Congressional action ,” says Chaudhuri .
While the pro-tribal voices won out , Chaudhuri contends that
IGRA still reflects “ several compromises and several nods to folks who were coming from the perspective of advocating for state regulation . And those compromises are best reflected in the three classes of gaming that were created , and the role of states that IGRA carved out in the compacting process .”
It ’ s important , he says , to remember that “ IGRA , first and foremost , states that the purpose of the statute is to support tribal self-sufficiency , tribal economic development and strong tribal government .”
Land Into Trust
One major point of contention in modern American federal Indian policy , one that ’ s complicated by IGRA , is the process of bringing land into trust .
Patrice Kunesh , former assistant vice president and director of the Center for Indian Country Development at the Federal Reserve Bank of Minneapolis , agrees . “ We have almost 70 million acres of reservation land , and 60 million are in trust ,” she says . “ We ’ ve just had over a million acres being consolidated through the land buy-back process . But from my experience and my review , these lands are locked , and we cannot really tap into them because of so many bureaucratic processes and review by the Bureau of Indian Affairs .”
The process shouldn ’ t be daunting , says Chairman Ernie Stevens of the National Indian Gaming Association . “ It ’ s a normal process that will continue to bring prosperity , and not just to Indian Country .” Pointing to recent figures , Stevens adds , “ Indian gaming is supporting 700,000 jobs . That ’ s a whole lot of folks that may not be Indian , but they ’ re a part of the Indian gaming family .”
Complicating the matter , says Tahsuda , are “ very limited provisions in IGRA that allow a tribe to look at other opportunities off their immediate reservation .” They ’ re referred to “ off-reservation ,” but as Tahsuda says , “ There are three exceptions in IGRA which I don ’ t really consider off-reservation , but have to do with tribes that just got recognized , or were restored and never had the opportunity in recent times to have their reservation — tribes who had land taken illegally , and can present a land claim . Those are three concepts that Congress considered , and thought were fair to include in the act when they promulgated it in ’ 88 .”
Moving Forward
“ The future is not yet written ,” says Chaudhuri . “ The future could be
28 TRIBAL GOVERNMENT GAMING 2020