Native American Gaming: Contemporary – Selected Developments
Every state with organized and recognized Native populations has had a special history with its tribes over gambling, with one exception – Utah. As that state has no legal gambling, the federal law is clear that the tribes in the state may not have any Class II or Class III gambling operations. Tennessee and Hawaii, also states without any non-Native gambling (except a provision for pari-mutuel betting in Tennessee), have no Native lands. Certain state situations deserve extra attention.
Negotiations in Connecticut took many unusual turns on the way to creating the largest casino in the world, Foxwoods. Originally, the Mashantucket Pequot tribe sought a compact so that they could have table games only, as the state did permit charities to use table games in their fund-raising events Gov. Lowell Weickert refused to negotiate, however, claiming that the games were commercially illegal in the state. The tribe won a court mandate ordering the governor to negotiate. He refused. A mediator was appointed, to whom the tribe and the governor both submitted proposed compacts. The governor’s proposal actually included provisions for allowing the games. The mediator selected the governor’s proposal. The state then appealed the selection, asking the secretary of the interior to reject its own proposal. The secretary instead signed the proposal, which became the compact. The state lost its further court appeals.
It was clear that the state did not permit anyone – charities or commercial operators – to have slot machines. Also, the IGRA clearly says states cannot tax tribal gaming. Nonetheless, in 1993 the state and its governor reached a “side agreement” with the tribe to allow them to have as many slot machines as they wanted, providing they paid the state 25 percent of the revenue for the machines.
The agreement was never approved by the secretary of the interior (it could not be; it was patently illegal), but the casino offers 5,500 slot machines for its customers. The 25 percent tax was called a monopoly fee that would go to the state only as long as the Mashantucket Pequots had a monopoly on the machines (which could not be possible, as the law would allow machines only if they were permitted for others). The monopoly ended in 1996 when a second tribe opened a casino, and the 25 percent share was renegotiated with the governor’s office, without the approval of federal authorities. The state of Connecticut receives nearly $200 million a year as its share of the tribes’ slot revenues. The state certainly has not sought to appeal the slot agreement. While of dubious legitimacy, the gambling situation in Connecticut has widespread support.
The most protracted battles over Native American gambling have occurred in California, one of the states to pioneer Native American gambling. After the federal court rulings in the Seminole and Barona cases in the early 1980s, gambling expanded on California Native lands. The tribes went beyond bingo and player-banked games and started offering games that appeared to have the qualities of Class III games. After 1988, California governors George Deukmejian and Pete Wilson declined to negotiate compact agreements to allow tribes to have Las Vegas–style slot machines and house-banked casino games, however, claiming that casino-type gambling was unconstitutional in California. As all enforcement of gambling laws on tribal lands was placed into the hands of the federal government, the governors could not demand closure of tribal casinos. An impasse ensued for several years during which the tribes expanded machine operations, operating as many as 15,000 of them outside the boundaries of the federal law.
Eventually the tribes turned to the ballot to win their compacts. In 1998 they sponsored Proposition 5, and in 2000 they sponsored Proposition 1A. Governor Wilson opposed Proposition 5; Gov. Grey Davis helped design Proposition 1A, and he supported it. Both passed, but a court ruling held that a 1984 constitutional ban on casinos precluded enforcement of Proposition 5. Hence, Proposition 1A was initiated as a constitutional amendment. The measure allows individual tribes to have casinos with up to 2,000 slot machines in each, with an overall state limit of approximately 43,000 machines. This represents a doubling of the number of existing machines in the state.
The 1998 Proposition 5 in California presented the greatest threat to Nevada casinos since the Kefauver hearings of the 1950s. The Native Americans in California wanted a compact and felt they were being stonewalled by Governor Wilson. But in their proposition they did not stop at merely asking for a compact. They asked for wide-open unlimited casino gambling on all 100-plus reservations in the state. The Native interests put almost $70 million into the campaign—one tribe in San Bernardino contributed $26 million of the amount. Nevada casinos responded with $25 million in opposition. Money won the contest, as the voters gave the proposition over 60 percent approval. Unfortunately the proposition was in the form of a legislative initiative, and the courts found it to be constitutionally defective. Nevada paid for the court challenge. The tribes quickly gathered and lobbied the California governor for support of a constitutional initiative to grant them compacts. The new compact (Proposition 1A) limited the numbers of slot machines that the tribes could have and provided for more definitive regulations – including the possibility of having labor unions for employees. Nevada interests had been stung by the amount of money that the Natives were willing to spend on the campaign in 1998. They were happy with the Proposition 1A compromises, and they were happy that they did not have to advance money against casinos again – a position that makes them feel somewhat hypocritical – but a position they had to take. It is possible that 1A will now allow the casinos of Nevada and the Nevada political establishment to build important bridges to California tribes.
Native American Gaming: Contemporary – A Canadian Note
The situation in Canada has some parallels to that in the United States. Native peoples (or First Nations) in Canada are the poorest residents of the country. They want to have gambling operations to help them deal with problems arising from their impoverished situations. There is no national Canadian law on Native gambling, unlike the situation in the United States.
It had been well established that all relationships between Native bands (tribes) and non-Native peoples must be conducted with the federal government in Ottawa. In 1985, however, the federal government delegated all authority over gambling to the provinces. Since then the Native bands have felt like political footballs, as provinces say “go talk to Ottawa”, and Ottawa says “go talk to the provinces”. In the mid-1990s, however, several provinces entered into agreements somewhat similar to compacts in the southern U.S. states. Tribal casinos are operating in Alberta, Saskatchewan, Manitoba, and Ontario. Disagreements persist between bands and provincial authorities in several of the other provinces.
A unique arrangement was negotiated in Ontario, as one band (Rama) was permitted to have a casino at Orilla, as long as it shared revenues with other bands in the province. Another casino in Ontario, the Blue Heron Casino in Port Perry, has also been authorized to operate under the control of a Native band. The tribes in the United States have generously shared their revenues with many charities in many communities. No tribe, however, has willingly allowed any other tribe to have a precise share of its gaming revenues.
In 2000, the Alberta government provided guidelines for Native casino operations. At the same time, the Manitoba government held hearings and took advice from people throughout the province before designating five communities as sites for Native casinos. In one case there was no band in the community, and arrangements had to be made to create First Nation land for the casino. Saskatchewan created four Native casinos when it established its own provincial casino in Regina. All participate in revenue-sharing provisions.