American Indian Tribal Gaming:

A Brief History of Its Evolution and the Political Debate

Please note that this site is being revised - it should be completed by June 2012.

 

Author: Joely De La Torre, Ph.D., California State University, San Francisco

 

Introduction for the Teacher

This 1-2 day lesson meets various California standards for 8th, 11th, and 12th grade classes (see Standards listed at the end of this guide). It is particularly relevant to the standards for 12th grade US Government and/or Economics courses.

 

Note: When students walk into class, the theme should be written on the board in a prominent place and the overhead with the 5-Minute Journal Write should be on the overhead projector. Ask students to sit down and write for five minutes.

 

Theme: Indian gaming is one of the most successful mechanisms for providing American Indians with both economic stability and a way to exercise tribal sovereignty.

 

5-Minute Journal Write: What is political sovereignty?

 

When students are done writing, open the classroom up for discussion:

  • What does it mean when a nation is sovereign? It has all the rights to govern itself.
  • What is tribal sovereignty? The basic distinction that sets Native Americans apart from other groups of people in the United States is their historic existence as self-governing peoples. This means that they are sovereign. Further, Indian sovereignty is inherent - meaning that it preceded the arrival of European Americans and thus, cannot be taken away or given. As nations, Indians signed treaties with colonial authorities. After the colonial era, the new US Constitution continued to recognize Indian sovereignty in Article 1, Section 8 - known as the Commerce Clause - which declared that: "The Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes."

    However, due to the Marshall Trilogy - three cases from the US Supreme Court handed down between 1823 and 1832 - the legal standard for Indian nations was changed from "foreign nations" to "domestic dependent nations." As such, tribes have not retained absolute political autonomy; instead, they operate as semi-sovereign nations.

    As semi-sovereign nations, what powers do Indian nations retain today? Indians have sovereign powers over their internal affairs which includes the power to determine their form of government; define requirements for tribal citizenship; administer justice and enforce laws; tax tribal members; regulate the domestic relations.

 

Note: When this discussion is finished, begin the lesson content. As the lesson progresses, you will find a series of discussion questions that accompany each part.

 

Lesson Content

 

American Indian Tribal Gaming: A Brief History of the Evolution and Debate

 

According to the 1990 U.S. Census, almost two million people identified themselves as American Indian. Of these, 30.9 percent lived in poverty - that is, they earned $12,674 a year for a family of four. Additionally, their life expectancy rate was 47 years of age compared to the Euro-American average of 78; unemployment rates were often ten times the national average; and Indian Country had higher than the national average rates of teen suicides, alcoholism, and spousal abuse. In the hopes that they could generate new revenues and provide steady and well-paid employment for tribal members, several tribal governments began experimenting with bingo games that offered large prizes. Indeed, after decades of poverty and high unemployment on often geographically remote reservations, Indian people began to see gaming as an integral part of tribal economies and a means to exercise tribal sovereignty. In other words, Indian Nations increasingly have seen gambling as just one more arena in which they should be free to manage their own affairs, unimpeded by either state or federal oversight.

 

  1. Discussion:

     

    What is Indian Country? This term refers to all reservation land currently existing in the contiguous 48 states and the state of Alaska.
  2. Do you think Indian Nations should be free to manage their own affairs, free from either state or federal oversight? Why or why not? Give students some time to brainstorm.

Indian gaming is not new to either Indian people or to Euro-Americans. Indeed, gaming has played a role for hundreds of years in traditional tribal ceremonies and celebrations. As such, Indians were involved in various gambling operating long before Europeans came to America. Likewise, gaming has been a part of United States history from the colonial era through today. Lotteries were critical to funding the Revolutionary War and the colonization of America, and even helped fund the beginning of Harvard and Princeton Universities. Casinos became part of the American gambling landscape in 1931 when Nevada became the first state to authorize such gaming. In 1977, New Jersey followed suit in Atlantic City, and by 1998, the California Legislative Analyst's Office reported that if Indian casinos were counted, a total of 27 states allowed casino-style gambling. Today, gambling is allowed in 48 states and takes many forms - casinos, lotteries, pari-mutuel wagering on horse and dog races, card games, bingo, and charitable fund-raising. ((Pari-mutuel betting occurs when all wagers go into a common prize pool, and management receives a specific "take-out" that is subtracted from the pool.)

 

After the recent introduction of modern gaming in Indian Country, an ongoing and contentious public debate evolved and continues into the 21st Century. The debate originated in the late 1970s when the Seminole Nation paid close attention to a trend within several state governments -establishing gambling lotteries to bring in badly-needed new revenues. Following the lead of such states, the Seminoles opened a bingo parlor. When Florida threatened to close the Seminole operation because it violated state law by offering high prizes, the Seminole sued in federal courts.

 

Thereafter, two distinct court cases - one in Florida and the other in California - shaped the future for Indian gaming: Seminole Tribe vs. Butterworth (1979) and California vs. Cabazon Band (1987). In both cases, the courts ruled as follows:

  • If state law criminally prohibits a form of gambling, then the tribes within the state may not engage in that activity.
  • If state law merely regulates a particular form of gambling, then the tribes within the state may engage in that gaming free of state control.
  • The Indians had the right to conduct gaming operations on their own land, as long as gaming such as bingo or "Las Vegas" nights were not criminally prohibited by the state.

 

Although both cases clearly held that Indians had the right to conduct gaming operating on their reservations, they also ruled that tribal gaming had to comply with the criminal and gaming laws of each state.

 

Consequently by the turn of the 21st Century, the Bureau of Indian Affairs (BIA) reported that 212 Indian tribes in 24 states operated 267 Indian gaming casinos, 60 of which were located in California. Although in 1999, Indian gaming represented less than 10 percent, or $9.6 billion profit, of all gambling within the United States, it was the fastest growing area in the entire gaming industry.


Clearly, gaming on American Indian reservations has become big business. Not surprisingly, the original debate about tribal gaming has also acquired a new direction - the question of which types of gaming will and will not be allowed in Indian Country. This paper discusses the ongoing debate in the public policy arena by

  • discussing the development of tribal gaming - including the relevant legal issues and the federal regulation of gaming on tribal lands;
  • providing various facts about Indian gaming; and
  • examining a case study of the public policy debate in California - as illustrated in the fight to pass two recent initiatives, Proposition 5, the California Indian Self-Reliance Initiative and Proposition 1a, Gambling on Tribal lands: Legislative Constitutional Amendment.

 

Discussion:

  1. What percentage of Indian tribes currently are involved in gaming operations? According to BIA statistics for March 2000, there were 556 federally-recognized Indian Nations in the contiguous 48 states and Alaska. If 212 of these Nations are involved in gaming, then about 38 percent of the federally-recognized nations have gaming operations on their reservations.
  2. What is a federally-recognized Indian Nation? Any Indian nation that has a formal relationship with the United States government is federally-recognized. The 556 tribes that are federally-recognized are eligible for certain benefits and services from the US government. Federally-recognized tribes receive benefits and services from the US government and subsequently, from taxpayers - many of whom include American Indians. The policy and legal basis for most of this assistance is known as the Trust Responsibility. From the late 18th Century forward, Indian tribes signed treaties making peace and ceding lands. Federal courts have interpreted these treaties and other such agreements as creating a perpetual trust relationship with the federal government in accordance with the understandings of the Indians of the time.

    The federal government promised to provide benefits and rights to the American Indian peoples in perpetuity, in exchange for their land and other resources. Additionally, the trust responsibility involved a promise that Indian peoples could continue to hunt, fish, and gather on the land that traditionally had been theirs, even though they had officially ceded it to the US government.
  3. If Indian reservations only account for only about 10% of all gambling revenue within the US, where are the remaining 90% of gaming revenues generated? About 50% come from commercial enterprises located in Nevada and New Jersey - from large casino establishments like those in Las Vegas. The remaining 40% of gambling revenues come from state lotteries.

 

The Development of Tribal Gaming

 

After the US Supreme Court recognized the rights of Indian nations to conduct gaming operations on their own land as long as such operations were not criminally prohibited by the state, Congress provided guidelines about how such operations would be regulated. Over the past decade, jurisdiction over gaming on tribal lands has been shared as follows:

  • Only Indian Nations can own and operate Indian gaming facilities on their lands.
  • States can only regulate any Class III gaming that is defined through Tribal/State compacts. (See below discussion for Class III gaming classification.)
  • The federal government enforces all rules relating to Indian gaming and prosecutes any violations of state gambling laws on Indian lands. The National Indian Gaming Commission has the power to assess civil penalties for violations of the Indian Gaming Regulatory Act (IGRA) and may close any Indian gambling operation if it violates IGRA. (See below for a discussion of IGRA.)

 

The Regulatory Authority of Indian Nations

 

To guide Indian nations with their regulatory authority, Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988. IGRA essentially acknowledged that because many tribes already operated gaming facilities, clear standards immediately had to be put into place. Additionally, Congress found that:

 

A principal goal of Federal Indian policy is to promote tribal economic development, tribal self-sufficiency, and strong tribal government; …and Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity. (25 U.S.C. Sec. 2701)

 

Under IGRA regulations, tribal gaming is separated into three different legal classifications.

  • Class I is designated as the social or traditional gaming played in ceremonies and remains under tribal jurisdiction.
  • Class II includes bingo and similar games using pulltabs or punchboards, regardless of their technology mechanisms, and any non-banking card games that are not explicitly banned by state constitution. These games falling under tribal jurisdiction are further regulated through the National Indian Gaming Commission.
  • Class III includes all other forms of gaming that do not fall into the first two categories. These electronic games of chance call for a tribal-state compact or agreement, approval by tribal ordinance, and the approval of the chairpersons of the National Gaming Commission.

 

IGRA requires the following:

  • tribes must negotiate with states concerning games to be played and regulation of gaming activities;
  • tribal governments must be the sole owners and primary beneficiaries of gaming; and
  • tribal gaming must promote economic development for tribes.

Also concerned with the regulation and well being of Indian gaming is the National Indian Gaming Association(NIGA). Established in 1985 as a non-profit organization of Indian Nations and other non-voting associate members of tribes and businesses engaged in tribal gaming enterprises, NIGA seeks to

  • advance the economic, social, and political lives of Indian peoples;
  • preserve the general welfare of tribes striving for self-sufficiency through gaming enterprises; and
  • maintain and protect Indian sovereign governmental authority in Indian Country.

 

The Regulatory Authority of the States

 

Because the tribal gaming operations occur within the boundaries of the various states, Congress established a way that Indian Nations and the states could communicate about regulatory responsibilities. Known as the compact process, each Indian Nation must negotiate a compact with the state which may include:

  • terms regarding cooperation with the criminal justice system;
  • agreements about payments to the state to cover the costs of enforcement or oversight;
  • decisions about any tribal taxes that must be paid to the state;
  • procedural remedies for breaking the compact; and
  • standards for operating gaming.

 

IGRA is very clear about the process for creating a tribal-state compact. The process begins when a tribe wishing to open a Class III gaming enterprise on its land requests the state to enter into negotiations to reach agreement on a compact. The Act specifies that "[u]pon receiving such a request, the State shall negotiate with the Indian tribe in good faith" to reach such an agreement. Although the statute requires the state to negotiate in good faith with the tribe, Congress recognized that not all states would necessarily comply, especially since many had already indicated their vehement objections to Indian gaming within their borders. Thus, Congress provided the tribes with a remedy against recalcitrant states by endowing the federal district courts with jurisdiction to hear claims by the tribes that states had failed to enter into negotiations, or to conduct those negotiations in good faith. If the court found that the state failed to negotiate in good faith, as required by IGRA, the court was authorized to order the state to conclude a compact with the tribe within 60 days, or - failing agreement - to submit, along with the tribe, its last best offer for a compact to a federal mediator who would choose between the two.

 

Since IGRA's passage, the states have continued to challenge it. Not satisfied with their role in negotiating with tribes as equal sovereigns, states have demanded more regulatory control. Governor Roy Romer of Colorada articulated the conflict in 1993 when he led a delegation of governors to Washington to protest IGRA:

 

What happens within a state ought to be decided by that state's citizens…. A state ought to make that decision for itself and it ought not to have a dictate from the Federal Government as to what should be the form of gaming and gambling within that state.

 

The Regulatory Authority of the Federal Government

 

One of IGRA's first duties was to establish a new federal agency - the National Indian Gaming Commission (NIGC) - which was given broad oversight powers to regulate Indian gaming activities. As a regulatory agency, NIGC is charged with

  • providing a way to regulate gaming that will protect it from the influences of organized crime;
  • ensuring that Indian tribes are the primary beneficiaries of the gaming operation; and
  • assuring that gaming is conducted fairly and honestly by both the operators and the players

 

To meet these goals, the NIGC is authorized to conduct investigations; undertake enforcement actions, including the assessment of fines and the issuance of closure orders; conduct background investigations; conduct audits; review and approve tribal gaming ordinances and management contracts; and issue such regulations as are necessary to meet its responsibilities under the IGRA.

 

Balancing this regulatory authority between the Indian Nations, the states, and the federal government has been difficult. The tribes regard themselves as sovereign nations and view gambling development as just one more area in which they should be free to manage their own affairs, as well as free from state or federal oversight. During the Congressional hearings on the implementation and enforcement of IGRA, Leonard Prescott, former chairman of the National Indian Gaming Association (NIGA), explained that the Association was founded

 

...to protect the sovereign right of Indian tribes to govern their own affairs, including gaming activities, on their own lands from unwarranted intrusion or limitation by State or Federal law…. Let the record be clear. IGRA did not confer any rights on Indian tribes to engage in, or regulate, gambling. We already had those rights. IGRA took away some of our rights to serve the economic interests of the non-Indian gaming industry.

 

To NIGA, then, IGRA itself interferes with the tribal right of self-government. However, most tribes believe that, despite their qualms about IGRA's limitations on their powers, they have worked in good faith with the state and federal governments under the IGRA framework to get their gambling enterprises underway.

 

Discussion:

  1. Why does Congress direct Federal Indian Policy? Under the Commerce Clause of the Constitution (Article I, Section 8, Clause 3), tribal nations are recognized as independent political entities with which Congress has the ability to regulate commerce and negotiate treaties. Thus, only the federal government can make a treaty with an Indian Nation and only Congress can enact laws regarding Indian policy. The states cannot make laws affecting the Indian Nations within their state boundaries. In the case of Indian gaming, only Congress can pass laws affecting gaming. One of the purposes of IGRA - a Federally-mandated act - was to create a mechanism whereby the Indian Nations and the states could work together to create mutually-agreeable gaming operations on reservation land.
  2. Does IGRA allow Indian Nations to operate any type of gaming activity they wish? No, IGRA specifically requires that any gaming activity must not conflict with Federal law, nor can it violate a state's criminal law or conflict with its public policy.
  3. Do you think IGRA does or does not interfere with the right of tribal self-government? Should IGRA have that power?

 

Indian Gaming Facts

 

Among its other responsibilities discussed above, the National Indian Gaming Association (NIGA) also operates as a clearinghouse and educational, legislative and public policy resource for tribes, policymakers and the public on Indian gaming issues and tribal community development. In this capacity, NIGA has compiled a useful list of Indian Gaming Facts that were current as of 1999:

 

Revenue:

  • Tribal Governmental gaming revenue in 1999: $9.6 billion - less than 10% of total gaming industry. (Compare this figure with the Government Accounting Office's report of $4.5 billion in net revenues for 1996.)
  • Many Tribes operate gaming facilities primarily to generate employment.

Employment:

  • Total number of gaming-related jobs: 200,000.
  • National percentage of Indian to non-Indian employees: 75% non-Indian, 25% Indian.
  • In areas of high unemployment like North and South Dakota, 80% of Tribal governmental gaming employees are Indian.

 

Pathological gaming:

  • Indian Tribes have model programs for problem gamblers. In many areas, like Arizona, North Dakota and Connecticut, Indian Tribes are the primary funding source for such programs.

 

The controversy over Indian gaming often centers around economic issues - especially in terms of whether or not tribal gaming really improves economic development on the reservations and how the revenues are distributed. Under IGRA's regulations, all revenues must be used for economic development but per capital payments to tribal members are also allowed. The National Indian Gaming Association's figures on per capita payments in 1999 are useful:

  • Three-fourths of gaming tribes devoted all of their revenue to tribal governmental services, economic and community development, to neighboring communities, and to charitable purposes. These tribes did not give out per capita payments.
  • Only about one-fourth of tribes engaged in gaming distributed per capita payments to tribal members (47 Tribes).
  • Tribal members who received per capita payments paid federal income tax on such payments.

NIGA has also compiled a useful list of negative and positive aspects of tribal gaming.

 

The Positive Aspects of Tribal Gaming:

  • Increased self-esteem through the revitalization of culture and identity.
  • Increased self-sufficiency through increased revenues.
  • Increased funding of cultural maintenance programs.
  • Improved infrastructure development and maintenance (i.e. new houses, community centers, healthcare benefits, senior centers, educational centers, day care, roads, firehouses, law enforcement, etc.)
  • Reduction of Indians and non-Indians from welfare.
  • Creation of ten of thousands of new jobs.
  • Increased local and state government tax revenues.
  • Improved maintenance of land and other natural resources.
  • Population growth.

 

Negative Aspects of Tribal Gaming:

  • Gambling addiction problems may arise.
  • Conflict between states and tribes over gaming compacts.
  • Greed (i.e. Inter-tribal conflicts over resources).

 

Discussion:

  1. Can you add any other possibilities to the lists of positive and negative aspects of tribal gaming?
  2. Given all these facts, what is your position on tribal gaming?

Note: These are, of course, designed to be open-ended questions. If students have questions that you cannot answer, feel free to contact the web page author, Dr. Gayle Olson-Raymer at Humboldt State University - go1@humboldt.edu.

 

Case Study of the Public Policy Debate about Tribal Gaming in California

 

Until recently, Indian gambling in California consisted almost exclusively of bingo and card games - Class II activities that did not require Indian tribes to enter into a state compact. But by 1997, tribal gaming in California was big business. The total casino revenue generated directly by Indian gaming in California was approximately $1.4 billion and the total economic impact of tribal gaming in was approximately $4.4 billion per year. By the turn of the 21st Century, 47 Indian casinos were in full operation and 61 state compacts had been signed.

 

At the same time that tribal casinos were increasingly becoming part of California's economic landscape, the relationships between Indian governments and federal and state governments became strained. Remember, under federal law, the State of California has no legal authority to enforce its gambling laws on Indian land. Instead, regulation is the responsibility of the various Indian nations operating in compliance with federal IGRA regulations and under the federal jurisdiction of the National Indian Gaming Commission.

 

The tension created by the State's inability to regulate tribal gaming has been heightened by the growing involvement of California Indians in the political process. Widespread tribal involvement in California politics began with efforts to pass Proposition 5 and Proposition 1a. In both endeavors, tribal leaders related their struggles to establish tribal gaming in California to their struggles to achieve greater tribal sovereignty.

 

The Battle over Proposition 5 - Tribal Government and Economic Self-Sufficiency Act of 1998

 

Before the November 1998 election, 41 gambling facilities operated within California's 38 counties. A great deal of debate existed over the legality of most tribal gambling operations since they were operating without a compact as required by the Indian Gaming and Regulatory Act. Consequently, former Governor Pete Wilson requested that tribes cease their operations until a tribal-state compact could be achieved. To support his request, the Governor argued that gaming operations violated the terms of the 1988 Indian Gaming and Regulatory Act (IGRA) requiring the negotiation of a state compact. In response, the tribal governments argued that the Governor had refused to negotiate in "good faith" as is required by IGRA.

 

Governor Wilson sought to remedy this issue by negotiating a compact on March 6, 1998, with only one California tribe, the Pala Band of Mission Indians. What became known as the "Wilson-Pala Compact" was not accepted by most California tribes because it limited tribal sovereignty, promoted the economic interests of a few tribal entities, and was achieved via a secret negotiation process between Governor Wilson and the Pala Band. As Daniel Tucker, Chairman of the Sycuan Band of Mission Indians told the National Gambling Commission on July 29, 1998:

 

The State has attempted to force Tribes to accept an agreement and terms they had no role in negotiating. This compact would impose its terms on all California Tribes, as stated earlier. This is in violation of the Federal Indian Gaming Regulatory Act, which states: "Compacts shall be specific to Tribes who make the election and shall not be construed to extend to other Tribes." There was no representation of other Tribes in this agreement. This is a set echo of past tactics when federal agents were finding a few Indians to sign deplorable terms and then coerce other Tribes to follow. American government is founded on the principal that all people have a voice in a government, yet more than 100 Tribes did not have a voice in these negotiations. This agreement by the State and the U.S. Attorney is government by duress and intimidation. It does not support the spirit of the Federal Indian Gaming Regulatory Act.

 

Only a few tribes agreed to the compact terms. It is generally believed by most California tribes that with the exception of the Pala, these tribes were pressured into accepting Wilson's offer.

 

During the summer of 1998, the legislature approved the Wilson-Pala compact as Senate Bill 287. Consequently, the dissenting tribes were in a difficult position: because the Governor refused to provide tribes with compacts and because operating a casino with video gaming machines required such a compact, federal attorneys could confiscate the existing video gaming machines at California Indian casinos. Such an action would have been economically devastating for the tribes and would have resulted in the loss of tens of thousands of jobs. Consequently, the drive for Proposition 5 began.

 

Proposition 5 asked the voters to decide on the following question: Should the State of California be required to make compacts with Indian tribes permitting specified gambling activities on Indian lands, in facilities owned and regulated by the tribes themselves, with limited state oversight? It was supported by a coalition that included over 80 gaming and non-gaming tribes representing the vast majority of the 108 tribes in the state; over 200,000 individual California citizens; and hundreds of civic, academic, law enforcement, and business organizations from throughout the state. Its primary purpose was to create the tribal-state compacts California tribes needed to keep the gaming they currently operated. As such, Proposition 5:

  • allowed California Indian tribes to keep the gaming they currently operated at Indian casinos on their own land;
  • dedicated up to six percent of the net revenues from gaming machines at Indian casinos to support programs that benefit non-gaming tribes and Californians statewide; and
  • gave the state government a new role in regulating Indian gaming by providing for state laws with strict gaming regulatory procedures and health and safety standards for Indian casinos and requiring gaming tribes to reimburse the state government for all regulatory costs so that there would be no cost to California taxpayers.

 

Opponents of the initiative argued that Proposition 5 would result in a dramatic expansion of unregulated and untaxed casino gambling throughout California. Their advertisements portrayed California Indians as extremely wealthy in comparison with other Indians who were poor and hungry, suggested that Indians would disregard the environment when constructing their casinos, and claimed that the passage of Proposition 5 would encourage casinos to open up everywhere. Some ads showed other California Indian tribes urging voters to vote no on Proposition 5 and to support the Pala compact.

 

Nonetheless, the majority of California tribes triumphed, winning the election by a wide margin of 62.38 percent. The proponents of Proposition 5 were successful because the tribes

  • had the resources to operate an intensive media campaign;
  • operated a media campaign that educated California voters about the plight of California Indians through infomercials and television ads; and
  • demonstrated the importance of tribal self-determination and sovereignty to the non-Indian citizens of California.

 

Their victory, however, was short lived. Two court cases challenged Proposition 5, charging that it:

  • exceeded the scope of the initiative power by requiring the governor to enter into tribal gaming compacts;
  • violated California's Constitution, article IV section 19, subdivision (e), which prohibits "casinos of the type currently operating in Nevada and New Jersey;" and
  • was preempted by the federal Indian Gaming Regulatory Act.

 

On August 23, 1999, the Supreme Court in Hotel Employees Union v. Davis overturned Proposition 5 finding that it violated the state constitution, which strictly forbids certain types of casino games. Later that day, Governor Gray Davis held a teleconference with nearly 30 tribal leaders meeting in Coronado, California. Several days of intense negotiations followed between representatives of the Governor and tribal leaders on the compact provisions. Negotiations concluded on September 9, 1999, and the next day individual tribal government leaders and the Governor signed 59 gaming compacts. The basic terms of these compacts are as follows:

  • California Indian tribes may continue limited gaming at Indian casinos on federally-designated reservation lands.
  • Permitted games include slot machines, house-banked card games, lottery games and pari-mutuel wagering.
  • Revenues from Indian gaming must be shared with non-gaming tribes to support education, health care, housing and economic development programs on reservations that do not operate casinos.
  • All tribes must prepare an environmental report on any potential impacts to areas outside the reservation when planning for any new construction related to an Indian casino, as well as allow the public to comment on the report and make good faith efforts to mitigate any impacts.
  • Indian gaming must be strictly regulated by tribal governments, the state of California, and relevant federal government agencies.
  • All reservations may have a maximum of two gaming facilities and may not have more than 2,000 slot machines.
  • Gaming tribes must pay a percentage of their revenues to state and local governments; such funds will support local programs and services in nearby communities as well as reimburse state and local agencies for costs related to regulating Indian casinos.
  • Employees working in most non-management jobs at Indian casinos will be allowed to join labor unions if they choose to do so.
  • The minimum age for a patron at an Indian casino will be 21 in any area where alcohol is served and 18 in areas where no alcohol is served.
  • The terms of the compact will be valid for 20 years with the option to extend. Changes may be re-negotiated after three years, but must be jointly agreed to by both the tribes and state, and approved by the federal government.

 

Thus, although Proposition 5 had been overturned, most of what it proposed was negotiated between the State of California and the majority of California Indian Nations. However, the compact agreements could take effect only if voters determined it was in the best interests of the state. So began the battle to pass Proposition 1a.

 

The Battle over Proposition 1a - Gambling on Tribal Lands: Legislative Constitutional Amendment

 

Sponsored by the majority of California Indian Nations, Proposition 1a sought to modify the state Constitution's prohibition against casinos and lotteries by authorizing the Governor to negotiate compacts subject to legislative ratification for operating slot machines, lottery games, and banking and percentage card games by federally recognized Indian Tribes on Indian lands in accordance with federal law; and by authorizing slot machines, lottery games and banking and percentage card games to be conducted and operated on tribal lands subject to the compacts. In short, the proposition would validate the compacts negotiated between Governor Davis and 60 Indian nations, thus allowing the opening of two casinos on each of the 107 Indian reservations in California and authorizing the negotiation of further gambling compacts with federally recognized tribes.

 

Proponents of Proposition 1a argued that it was a simple constitutional amendment which provided clear legal authority for California tribes to conduct specific regulated gaming activities on their own land; that it simply allowed federally- recognized California tribes to continue to have gaming on federally designated tribal land, as provided by federal law; and that it would allow Indians to continue their progress toward achieving economic self-reliance and tribal sovereignty.

 

Opponents of Proposition 1a argued that the social costs of increased gambling in tribal casinos were too great. Such costs included gambling addiction, increased debts, theft, bankruptcies, suicides, ruined credit, and the weakening of family life. Furthermore, they argued that with 107 federally-recognized Indian nations operating in California - and another 42 seeking such recognition - over 300 tribal casinos could potentially be built; that cities and local jurisdictions would have no input on the locations of the casinos; that 18 year-olds would be allowed to gamble; and that no state or federal taxes would be collected on casino profits.

 

On March 7, 2000, the voters of California voted overwhelmingly to support proposition 1a with 4,295,280 voters in favor 2,359,478 against.

 

Discussion:

  1. After examining the arguments for and against Propositions 5 and 1a, how do you think you would have voted?
  2. Has this information about the political battle in California over tribal gaming changed your perception of Indian gaming? Why or why not?
  3. Do you think tribal gaming in California contributed to greater Indian sovereignty? Why or why not?
  4. What potential do you think exists for conflict between Indian nations that have tribal gaming and those that do not - especially those that are not federally-funded or are seeking such status? How has the compact agreement addressed this potential problem?

Conclusion

 

After little more than a decade, tribal gaming has been remarkably successful. If we use California as an example, it is clear that gaming has:

  • provided tribes with a real economic development program;
  • moved many Indian nations closer to the achievement of greater tribal sovereignty; and
  • elevated the political status of California Indian tribes who were nearly invisible in many parts of the state before the expansion of gaming but have become an influential part of the social and political fabric of the state.

 

Indeed, California Indians now participate in conversations on health care, transportation, education and housing.

Topics on the current California legislative agenda include the addition of California Indian history into school curriculum, making it easier for tribes to apply for government-to-government funds, and tribal health-care enhancement.

 

Despite these gains for California Indians, conflict between state government and tribes seems inevitable. Equally as inevitable is conflict between other states and tribes involved in gaming. As these conflicts continue, one thing is certain - increasing revenues of tribal gaming ensures that American Indians will gain greater political influence at the local, state, and federal levels. In so doing, many Indian Nations will also gain greater political sovereignty.

 

 

Standards addressed in this lesson

 

Eighth Grade

 

8.3 Students understand the foundation of the American political system and the ways in which citizens participate in it, in terms of … (6) the basic law-making process and how the design of the U.S. Constitution provides numerous opportunities for citizens to participate in the political process and to monitor and influence government (e.g., function of elections, political parties, interest groups)... .

 

In this lesson, students learn about how American Indian Nations have increased their participation in the local, state, and federal political process by lobbying for passage of legislation allowing tribal gaming.

 

Eleventh Grade

 

11.1 (Students analyze the significant events surrounding the founding of the nation and its attempts to realize the philosophy of government described in the Declaration of Independence, in terms of … (3) the history of the Constitution after 1787 with emphasis on federal versus state authority and growing democratization… .

 

In this lesson, students learn about how in their efforts to legalize tribal gaming, American Indian Nations have become increasingly involved in the ongoing conflict between federal versus state authority.

 

11.10 Students analyze federal civil rights and voting rights developments, in terms of … (5) the diffusion of the civil rights movement from the churches of the rural South and the urban North, including the…effectiveness of the quest of American Indians, Asian Americans, and Hispanic Americans for civil rights and equal opportunities.

 

In this lesson, students learn about how American Indians have continued their quest for civil rights throughout the 20th Century and into the 21st Century by supporting the growth of tribal gaming on reservation lands.

 

11.11 Students analyze the major social problems and domestic policy issues in contemporary American society, in terms of … (5). the persistence of poverty and how different analyses of this issue influence welfare reform, health insurance reform and other social policies; (6) how the federal, state and local governments have responded to demographic and social changes such as population shifts to the suburbs, racial concentrations in the cities… .

 

In this lesson, students learn about how tribal gaming has helped to alleviate some of the poverty and unemployment issues in Indian Country, as well as how the federal and state governments have responded to the growing demographic shifts of Indians back to the reservations due to the increase of employment opportunities related to gaming.

 

Twelfth Grade

 

12.5 Students summarize landmark U.S. Supreme Court interpretations of the U. S. Constitution and its amendments, in terms of… (3) the effect of the interpretations of the U.S. Constitution… .

 

In this lesson, students learn about U.S. Supreme Court decisions that determine the legality of tribal gaming and change various state interpretations of gambling within their borders.

 

12.6 Students evaluate issues regarding campaigns for national, state, and local elective office, in terms of … (3) the role of polls, campaign advertising and the controversies over campaign funding; (4) the means that citizens use to participate in the political process (e.g., voting, campaigning, lobbying, filing a legal challenge, demonstrating, petitioning, picketing, running for political office)… (6) trends in voter turnout… .

 

In this lesson, students learn about the increasing political involvement of American Indians in state elections - not only as political contributors and lobbyists for tribal gaming measures, but as voters who are turning out in larger and more influential numbers.

 

2.7 Students analyze and compare the powers and procedures of the national, state, tribal, and local governments, in terms of (1) how conflicts between levels of government and branches of government are resolved; (2) the major responsibilities and sources of revenue for state and local governments; (3) reserved powers and concurrent powers of state governments; (4) the Ninth and Tenth Amendments and interpretations of the extent of the federal government's power; (5) how public policy is formed, including the setting of the public agenda and how it is carried out through regulations and executive orders; (6) the process of lawmaking at each of the three levels of government, including the role of lobbying and the media… .

 

In this lesson, students learn about specific conflicts between tribal, state, and federal governments over the issue of tribal gaming, how revenue earning and distribution shape these controversies, the role of state regulatory power in determining what is and is not legal in terms of tribal gaming, the federal government's regulatory role in tribal gaming, and how policy and law making were altered by the lobbying and other political efforts emanating from the American Indian community.