Victor Rocha says that conservative groups are attacking Indian countries because they don’t support sovereignty and tribal gaming rights.
Rocha, chairman of this convention and a member of Pechanga Band of Luiseno Indians, asserts that “we’ve been sleeping one eye opened since Columbus arrived.”
This is just the latest of many threats that we have had to face. This could be a major issue, as it would mean that the tribes’ exclusive relationship with government is lost.
Tribal gaming is experiencing a rapid recovery in the US as it recovers from Covid-19.
The tribes are renovating their property to create resorts that rival Las Vegas, adding hotel rooms and entertainment to the mix.
The National Indian Gaming Commission released a report in 2022 that shows the total gross gaming revenues of tribal tribes reached $39bn for the fiscal year 2021. The increase is 40% over the fiscal year 2020, and 13% above that of 2019.
This $39bn number, which is the highest ever recorded, comes close to the GGR of $53bn reported for commercial gaming.
Layout of the Land
In 29 states, 243 tribes are federally recognized and operate 510 gaming facilities. There were 43 gaming operations that reported gaming revenues of more than $250 million, which accounted for over 50%.
Since Congress passed the Indian Gaming Regulatory Act of 1988, which regulated the gaming activities on Indian lands, tribes have made great strides. As long as the federal and state laws do not prohibit gaming, they have the authority to regulate it. This helps to continue progress with the revenue generated that is used for housing, education, healthcare and other necessities.
At the time IGRA was enacted, Indian casinos generated about $121m gross gaming revenues while Nevada casinos recorded $4.1bn.
Tribal becomes commercial
Tribes have seen their numbers grow over the past 35 years. They are now leveraging their success by diversifying, expanding beyond their reservation and buying commercial casinos.
In April of last year, the San Manuel Band of Mission Indians from Southern California opened the Palms Las Vegas again under their ownership. In May 2021, it acquired the property for $650m from Red Rock Resorts.
The Seminole Tribe of Florida, via its Hard Rock International division, took control of The Mirage in December last year from MGM Resorts International, for a little over $1 billion. There are major renovations planned for the Las Vegas Strip, which will include a hotel shaped like a guitar.
In some states tribal exclusivity in gaming continues to be threatened.
California Tribes defeated a ballot initiative to allow sports betting by MGM Resorts International and other companies in November. Commercial operators have spent millions to gain a share of sports betting in California, a state that allows tribes to offer blackjack and slot machines as per negotiated agreements and voter approval in 1998.
Even though 82% of voters in Novembre opposed commercial gaming’s role in sports wagering, these same executives have said that they may bring this issue before the voters again in 2024.
Susan Jensen is the executive director of California Nations Indian Gaming Association. She says that the threats facing tribes throughout the US are similar to those faced by tribes living in California.
In November, California’s tribes successfully fought for their rights.
Recent court casess
Tribes in Washington State won in February when the judge dismissed Maverick Gaming’s lawsuit. The case was brought against a Washington state law which only allowed tribes to provide sports betting. This case was appealed, and it could end up in the US Supreme Court.
Rocha, referring to the recent court cases that tribes face says: “They’re saying this is an entire race and it’s not legal.” Maverick wants to redefine tribal government as a race and remove sovereignty from tribes, says Rocha.
They are sending a message from 10,000 miles that they’re taking this case to the Supreme Court. We’re worried because it’s a conservative reactionary court. Roe v. Wade, the 1973 Supreme Court decision that legalised abortions in America, is not safe. Are we then? “That’s what people are asking.”
The US Supreme Court will rule on the November Haaland V. Brackeen hearing. The high court will be deciding whether Native American families are given preference when it comes to fostering and adopting under the Child Welfare Act.
A non-native Texas family brought the case, using similar arguments to those used against tribal sovereignty in gaming. The case is viewed as a way to take away gaming rights.
Jensen, who spoke about the topic at the Raving Next Gaming Conference in New Mexico recently, said: “It’s scary to think what it could mean.” States can begin preparing. We have already written some legislation in California to cover the case of an adverse ruling. “We’re keeping that in our back pocket.”
IGRA is criticised
Tribes are not just upset by court cases anymore. Some tribes criticize IGRA because they see it as an infringement of sovereignty. Tribes have no right to implement IGRA if gambling or sports betting is prohibited in states that allow other types of gambling.
In Idaho, tribal casinos located in Washington are competing with tribes in Idaho for sports wagering. However, the state must approve any such betting.
Laura Penney said, “We’re not going to stop looking for ways. Maybe there’s a way we can offer sports betting.” She was speaking at the New Mexico Conference.
We are investigating that. Some say that it is just a bonus, but in reality it enhances the overall gaming experience. It is possible to amend our gambling compact in order to allow sports betting. “It’s necessary to remain competitive and to bring revenue to our facility.”
In Florida, the issue of sports betting is being litigated in court. In a case pending before the US Court of Appeals, District of Columbia, the court is deciding if it will reverse a judge’s decision to invalidate a 30 year agreement between Florida with the Seminole Tribe of Florida.
The Seminole Tribe would have a monopoly on sports betting, and mobile gambling could even be allowed. This agreement would allow the tribe to also add roulette and craps.
A group of plaintiffs brought the case, including owners of commercial casinos and poker rooms, who argued that voter approval was required to expand gambling.
The future of tribal gaming agreements could be affected by the decision made in this case. It hinges on the US Secretary for the Interior who is responsible for overseeing the development and implementation of IGRA.
Bureau of Indian Affairs
Since then, the Bureau of Interior Affairs (which is under the direction of Deb Haaland and the Secretary of Interior, Native American), has proposed new regulations that will allow tribal members to bet on mobile devices and via the internet away from their reservation.
Rocha says, “The tribes were restricted by IGRA. They are now looking and needing these proposed new [Bureau of Indian Affairs Regulations] in order to stay up with industry.” The ability to wager on mobile devices is an alternative.
Some sources, however, argue that the proposed regulatory changes may cause pushback. Some sources suggest that an upgrade to IGRA would be more efficient.
Value of Class II Gaming
Some tribes have shifted their focus away from state compacts to seek federal oversight.
The Rincon Band of Luiseno Indians announced in January that it was leaving the Class III gaming. The tribe will no longer be allowed to play slot machines, electronic games, or table games. Instead, it must sign a compact with the state that would allow bingo, non-banked gaming and other games that fall under the National Indian Gaming Commission. The tribe would be able to save on state taxes and fees, and avoid being subjected to compact gaming regulations.
Rocha says, “They’re flexing their sovereign muscles.” They don’t need to sign a contract. They won’t have a partner in the state government. Tribes have always had a problem. Our show is themed around Class II. If you’re imaginative, Class II gaming is a great way to extend gaming without the government as your partner.”
State Compacts
The US Supreme Court has ruled that states are not required by IGRA to negotiate compacts with good faith and to allow their lawsuits. Glenn Feldman says that this changes the compact negotiations.
A lawyer from Arizona successfully represented Cabazon Band of Mission Indians in the US Supreme Court over high-limit bingo. This 1987 decision led to the passage and approval of IGRA, which paved the road for tribal casinos.
He says, “That is a flaw in the Act which has returned to haunt tribals.”
Many have proposed a fix through Congress or the Department of Justice and Department of the Interior suing states for tribes under the compact. This is considered to be a very long shot.
William Wood is an attorney for tribal governments and an associate professor at Southwestern Law School. He says, “I believe that many people are watching to see how the Brackeen Case will be resolved this year.” Wood and Feldman appeared together at a conference on tribal gaming at the University of Nevada Las Vegas last week.
Feldman says that initially, there were hopes the Supreme Court would be a majority of tribalists. However, this has not been the case.
Expanding in one area can impact operations in another
Tribes are concerned that new gaming options could impact operations in other states. Texas is the prime example, as the state legislature has been deciding on whether or not to permit gaming. They have rejected previous attempts.
Las Vegas Sands Corporation spends millions on lobbying to expand.
If Texas allowed gaming, residents would be impacted. They have been driving to Oklahoma, Louisiana, and New Mexico for many years. Some have proposed that the tribes should be permitted to open casino in Texas if this happens.
In the Lone Star State, there’s already an established tribal presence. The US Supreme Court granted permission to the Ysleta del Sur Pueblo Tribe near El Paso, and the Houston-area Alabama-Coushatta Tribe of Texas in June 2022 for electronic bingo games to be played on tribal lands.
It’s theirs, not ours
Jan Jones Blackhurst (chief executive in residence of the University of Nevada Las Vegas International Gaming Institute, and member of Caesars Entertainment’s board of directors) stressed the importance of tribe gaming at the UNLV Conference.
She said that it takes care of health, housing, education and other needs for current and future tribal members. Commercial gaming, on the other hand, is focused on next quarter’s profits.
Caesars Casinos which runs tribal casinos stayed away from the battle for legalising sports betting in California, unlike commercial operators.
Jones Blackhurst, speaking at the conference, said: “We are respectful and understand that it is not ours. It’s theirs.” Jones Blackhurst went on to say that commercial gaming should be more attentive to the way tribes run themselves and build their communities, and to the importance of their success for the members and those around them.
She added that tribes will go off-reservation to use their success and ability to succeed to create better businesses.
Jones Blackhurst stated, “I see how the law has made it difficult for tribal gaming to be successful and for some tribes, it’s been impossible.” It has occurred to me that commercial gaming could learn from tribal gaming. They should study how they operate and what their vision is.
Buck Wargo, a journalist specializing in gaming and business journalism based out of Las Vegas. Former reporter at the Los Angeles Times, Buck Wargo has a degree in Middle Eastern Studies. He holds a Middle Eastern Studies degree from the University of Texas.
