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:
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.
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.
What is Indian Country? This term refers to all reservation land currently existing in the contiguous 48 states and the state of Alaska.
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:
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
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:
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.
IGRA requires the following:
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
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:
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.
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
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.
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:
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:
NIGA has also compiled a useful list of negative and positive aspects of tribal gaming.
The Positive Aspects of Tribal Gaming:
Negative Aspects of 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 - firstname.lastname@example.org.
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.
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:
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
Their victory, however, was short lived. Two court cases challenged Proposition 5, charging that it:
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:
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.
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.
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:
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.
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.
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.
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.