Tribal leaders convened at the Indian Gaming Association's (IGA) mid-year conference and expo at Foxwoods Resort and Casino in Connecticut to address ongoing concerns within tribal gaming. This comes despite a strong performance in the sector, with the National Indian Gaming Commission reporting a 4.9% increase in revenues for 2022, totaling $40.9 billion, marking the largest year-on-year gain of $1.9 billion ever recorded.
However, many tribal leaders voiced their anxieties about potential encroachments on their gaming rights from political entities and commercial interests through legal avenues. A significant source of relief came in June when the U.S. Supreme Court upheld the Indian Child Welfare Act (ICWA) in a majority opinion, which reassured tribes concerned about how the ruling in Haaland vs Brackeen could impact tribal sovereignty.
The case involved a non-native Texas couple contesting the preference given to Native American families in child placements, invoking arguments that also threatened to restrict tribal gaming rights established under the 1988 Indian Gaming Regulatory Act (IGRA). Victor Rocha, the IGA conference chair, expressed optimism about the ruling, suggesting that it might deter future legal challenges to tribal sovereignty. "It’s a ruling that will give people pause about running up to the Supreme Court to water down tribal sovereignty," Rocha stated. IGA Chairman Ernie Stevens emphasized that tribes are merely asserting their rights as sovereign governments predating the U.S. Constitution.
Another notable victory occurred over the summer when a federal appeals court reinstated a gaming compact between the Seminole Tribe and Florida, which permits statewide mobile sports wagering, effectively granting the tribe a monopoly. This decision was further solidified on September 11 when the U.S. Court of Appeals for the District of Columbia opted not to rehear the case, paving the way for sports betting to potentially commence this month, barring further appeals to the Supreme Court. Rocha highlighted the importance of this win for tribes, noting its implications for future negotiations and opportunities in sports betting.
Scott Crowell, a tribal gaming attorney, remarked on the significance of the ruling, asserting that it dispels the misconception that games must occur strictly on Indian lands for tribes to participate. "We’ve had off-track betting compacts with tribes in dozens of states since the earliest years of the Indian Gaming Regulatory Act," Crowell pointed out. This ruling could open avenues for tribes to explore mobile wagering in their respective states, emphasizing the growing importance of sports betting in the industry.
However, the approach to sports betting will vary by state. Crowell noted that states could provide models for agreements under IGRA, but commercial sports betting operators also have their interests at stake. After a failed referendum in California to permit sports wagering, Crowell expressed a desire for more collaborations where tribal brands could benefit from commercial operators while adhering to IGRA’s revenue-sharing requirements.
The uniqueness of the Seminole deal lies in its exclusivity, contrasting sharply with states like Arizona, where tribes share licenses with major commercial operators, significantly limiting their revenue share. "Even though the tribes have half the licenses, they might have 5% or 10% of the revenue," Crowell explained.
The broader implications of such decisions could influence how other states approach mobile sports betting, affecting Oklahoma's tribal gaming landscape as well, according to Jason Giles of the IGA. The interplay between Oklahoma's tribes and Governor Kevin Stitt remains tense, especially as he leans towards allowing commercial interests while stalling tribal participation. Giles sees the Seminole decision as a potential framework for Oklahoma tribes, who have historically held exclusive rights to casino games.
Despite these developments, challenges to tribal sovereignty remain persistent. Giles cited a recent lawsuit in Washington where a judge dismissed a claim by a commercial operator aiming to nullify tribal exclusivity in sports wagering. While the appeal may reach the U.S. Supreme Court, Giles expressed concerns that the court's track record could pose risks to tribal rights.
Rocha remarked on the emotional impact of these issues on Native American communities, especially regarding the ICWA, emphasizing the need for vigilance to protect the gains made. "In Indian Country people were weeping in victory saying we can preserve our future," he stated. He rallied support for continuous advocacy to secure tribal rights amid a landscape that could shift unpredictably due to political dynamics.
The IGA and the National Congress of American Indians have revitalized efforts to safeguard tribal sovereignty, holding meetings to strategize responses to commercial challenges. With growing partnerships between commercial and tribal operators, room for mutual benefit exists, as highlighted by the entry of companies like FanDuel and DraftKings into tribal markets.
Ultimately, the struggle for sovereignty encompasses more than just gaming, affecting the cultural and social fabric of Native communities. Giles warned that the changing tides of politics could threaten the gains achieved through recent court rulings, urging an ongoing commitment to advocating for tribal rights.
