COMM 113 The Representation of The Native American Culture Essay

One of the signature themes in Part 2 of our course focuses on the representation of Native Americans in which we examined the images of Indigenous Americans in three critical areas:  in advertising; as mascots in Sports; and in cinema.

In an essay of 4-5 pages, explain how the imagery of Native people emerged from the crucible of the 19th century, and how these images changed over time in each of the three areas.  What were the primary attributes of Native people in visual images and how did these images evolve?  What were some of the important markers of this transformation, and in what way can we speak of the changes that occurred in the representations of Native peoples in the context of resistance?

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Indian Gaming &
Tribal Sovereignty
THE CASINO COMPROMISE
STEVEN ANDREW LIGHT & KATHRYN R.L. RAND
UNIVERSITY PRESS OF KANSAS
Published by the
© 2005 by the
University Press of Kansas
University Press of Kansas
All rights reserved
(Lawrence, Kansas 66049),
which was organized by the
Library of Congress Cataloging-in-Publication Data
Light, Steven Andrew.
Indian gaming & tribal sovereignty: the casino compromise /
Kansas Board of Regents and
Steven Andrew Light & Kathryn R.L. Rand,
p. cm.
is operated and funded by
Includes bibliographical references and index.
ISBN 978-0-7006-1406-6 (cloth : alk. paper)
Emporia State University,
ISBN 978-0-7006-1553-7 (pbk.: alk. paper)
1. Indians of North America—Gambling. 2. Gambling on
Fort Hays State University,
Indian reservations—United States. 3. Indians of North
America—Government relations. 4. Sovereignty.
Kansas State University,
5. Casinos—United States—Management. I. Title: Indian
gaming and tribal sovereignty. II. Rand, Kathryn R.L.
Pittsburg State University,
III. Title.
E98.GI81.54 2005
the University of Kansas, and
Wichita State University.
338.4’7795*o8997073—dc22
2005010015
British Library Cataloguing in Publication Data is available.
10 9 8 7 6 5 4
1 he paper used in this publication meets the minimum
requirements of the American National Standard for
Permanence of Paper for Printed Library Materials
Z39.48-1984.
Introduction:
What Is Indian Gaming?
Wow, man —Indians have it good!
—Eric, upon arriving al the “Three Feathers” casino, on
television’s South Park1
Indian gaming,2 perhaps more so than any other issue facing Native Ameri­
can tribes in the last half century, is a subject of ever-increasing public fas­
cination and policy debate. In tribal gaming’s second decade of rapid ex­
pansion across the United States, amid popular culture’s recent obsession
with casinos and gambling,3 the mass media’s depiction of contemporary
Native Americans appears to center on a widespread stereotype of wealthy
gaming tribes and rich Indians. On an episode of the popular television se­
ries Malcolm in the Middle, an Alaskan Native opens a casino in her home
and immediately cashes in at the expense of her white customers.1he longrunning Fox series The Simpsons has depicted tribal casinos as being run by
mystical yet practical Native people who wear traditional headdresses and
espouse platitudes in stereotypical accents while micromanaging the bot­
tom line. In one thread of a Sopranos episode, mob boss Iony Soprano and
his crew are surprised to discover that the CEO of a Connecticut tribe s ca­
sino, who “discovered” his Native heritage when the casino opened, wears
an expensive suit, looks “white,” and displays a cutthroat, borderlinecorrupt “I’ll scratch your back if you’ll scratch mine business savvy. And a
particularly pointed recent episode of Comedy Central s animated South
Park series, entitled “Red Man’s Greed,” depicts virulent white community
1
backlash against a tribe due to its intention to purchase and demolish a
town to construct a superhighway leading to the tribal casino’s door.4
These story lines reveal both the place of Indian gaming at the forefront
of popular discourse and the common fundamental misapprehension of
tribal gaming. As the Malcolm in the Middle episode indicates, some Ameri­
cans—at least those who write network sitcoms—seem to believe that any
person of Native American heritage has the “right” to open a casino. This,
of course, could not be further from the truth. Only federally recognized
tribal governments may open casinos and, for casino-style gaming, only
after a protracted negotiation process with state government. Some tribal
casino managers may, at times, don ceremonial dress—but none would
likely do so in the workplace. Most tribal members are just as unrepresenta­
tive of Indian stereotypes as are most Italian Americans unlike Mafiosos.
And, of course, Native Americans are not “red men,” they do not seek to use
Indian gaming as a form of vengeance against “the white man,”and they are
unable to simply buy and destroy a city. Yet, although easily discredited in
academic circles, these and other misperceptions and overgeneralizations
about tribal gaming exemplify themes that appear to reflect and influence
both public opinion and public policy. As states, tribes, and the federal gov­
ernment struggle to regulate a booming industry within the complicated
context of tribal sovereignty, Indian gaming raises highly significant ques­
tions of law and policy.
Given the increasing importance of answering these questions with the
best information available, however, it is unfortunate that both the general
public and policymakers share a set of fundamental misapprehensions of
tribal gaming. Public opinion is shaped by popular media accounts that
often reflect prevailing stereotypes and fail to contextualize Indian gaming
against the backdrop of tribal sovereignty and the history of tribes’ rela­
tionship with federal and state governments. Subject to similar failings, as
well as the perceived opinions of their constituents and awareness of the
big money at stake in Indian gaming, policymakers focus on the economics
of immediacy rather than on how tribal interests and rights fit into the
bigger societal picture.
I he stakes of Indian gaming are too high to allow stereotypes, a lack of
accurate information, or a faulty calculation of who “wins” or “loses” from
tribal gaming to determine its future. In this book, we demonstrate how the
law and politics surrounding Indian gaming represent a series of compro­
mises—some through mutual agreement, most through federal and state
2
INTRODUCTION
imposition—among competing legal rights and political interests of tribal,
state, and federal governments as well as the nontribal gambling industry.
We describe Indian gaming in detail: what it is, how it became one of the
most politically charged phenomena for tribes and states today, and what
the compromises are that shape its present and will determine its future. We
believe that a clear account of the law and politics undergirding the devel­
opment of Indian gaming, viewed through the lens of tribal sovereignty, is
needed to fully understand tribal gaming today, as well as to create sound
law and public policy governing Indian gaming for tomorrow.
What is Indian gaming, then? As defined by federal law, “Indian gaming”
is gaming conducted by an “Indian tribe” on “Indian lands”—that is, by a
federally recognized tribal government on a federal reservation or on trust
lands. Tribal gaming is different than commercial gambling not because of
race or ethnicity, but because it is conducted by tribal governments for the
primary benefit of tribal members.5
INDIAN GAMING
IS A COMPROMISE:
THE LAW AND POLITICS OF TRIBAL GAMING
“Compromise” results from negotiation that in the end amounts to ei­
ther a mutual give-and-take between equals or a one-sided imposition by
the party with greater power or leverage. The result is either a compromise
of interests or compromised interests. Most Americans seem to view Indian
gaming as, at best, a fairly negotiated compromise that balances federal,
state, and tribal interests or, at worst, an unfair advantage for tribes that
compromises state economic or social well-being. From a tribal perspec­
tive, however, Indian gaming law and policy is the result of one-sided ne­
gotiations” that impose state and federal law on tribes in direct contraven­
tion of tribal authority. In the context of Indian gaming, tribal sovereignty
has been flagrantly
compromised.
We believe that the law, politics, and public policy surrounding Indian
gaming represent an uneasy and frequently uneven compromise—the casino
compromise” we describe throughout this book. This imposed legal and po­
litical compromise, resulting from competing rights and interests of tribal,
state,
and federal governments as well as the nontribal gambling industry, is
explained by three primary frameworks:
federal Indian law and policy, revolv­
ing around the dominant society’s concepts of tribal sovereignty; the law of
Indian gaming, particularly the 1988 federal Indian Gaming Regulatory Act
WHAT IS INDIAN GAMING?
3
(IGRA), which established the rules for how tribes may operate gaming;6 and
the developing politics of Indian gaming. The imperfectly realized casino
compromise has resulted in a rapidly growing industry that, for many tribes,
has rejuvenated tribal government and reservation life while fueling wide­
spread controversy among policymakers and the non-Native general public,
as well as among Native people. We add a fourth foundational frameworkindigenous perspectives of Indian nations on tribal sovereignty. Incorporat­
ing Native views, we use a broader understanding of tribal sovereignty to
argue for replacing the uneven and imposed compromise of Indian gaming
law and policy with a new compromise based on mutual consent and respect.
Tribal Sovereignty and Federal Indian Law and Policy
Indian gaming differs from any other form of gambling in the United
States because it is grounded in the exercise of tribal sovereignty. For many
reasons, most non-Native people simply do not know much about tribes
or Native Americans. Many policymakers have an extremely limited work­
ing knowledge of federal Indian law, and even less of an understanding ot
how and why tribes have a distinct legal status in the American political
system. The further notion that tribes possess an inherent right of selfdetermination that predates the existence of the United States truly is a
foreign concept for non-Native people. Our first
purpose in this book,
therefore, is simply to inform—to explain that tribal sovereignty exists and
what it means. This descriptive step is the first move toward informed law
and policymaking in the context of Indian gaming.
The second step is to explain how and why Indian gaming, as public pol­
icy, as an industry, and as a political phenomenon, is what it is today. The
legal definition of tribal sovereignty rooted in federal Indian law has con­
siderable explanatory force in accomplishing this purpose. Indeed, our ac­
count throughout much of this book necessarily relies on this definition of
tribal sovereignty. One simply cannot understand the past and present of
Indian gaming without it.
I he third step is to demonstrate how tribal sovereignty presents an op­
portunity in the context of Indian gaming. We draw upon Native concep­
tions of tribal sovereignty to develop a broader view of Indian gaming’s
success and to suggest policy reform. Indeed, as we argue in the concluding
chapters, there perhaps is no greater opportunity today than Indian gaming
to transcend the federal definition of tribal sovereignty to allow for the
eventual emergence, and ultimate authority of, tribes’ inherent right of
4
INTRODUCTION
self-determination. This is the third step toward informed law and policy­
making on Indian gaming and for the future of intergovernmental rela­
tions more broadly.
As it is commonly understood, sovereignty is a nation’s independent
and supreme authority to govern its citizens and interact with other na­
tions. Sovereignty connotes political legitimacy and autonomy rooted in
self-governance, the freedom and independence of a nation to determine
its future. Sovereignty can be both absolute and nonabsolute, reflecting
the divergence between political theory and the coexistence of nations in
the real world. Absolute in its extent and character, the supreme and inher­
ent nature of sovereignty cannot be denied. Yet in practice, the scope of
sovereign authority may be limited by mutual concession or by political or
legal imposition.
Tribal sovereignty stems from tribes’ status as self-governing indigenous
nations with legal, political, cultural, and spiritual authority/ At the heart of
tribal sovereignty is tribes’ inherent right of self-determination. Tribes au­
thority to determine membership, establish and enforce laws, provide for
the health and welfare of members, protect and nurture tribal traditions
and culture, and interact with federal and state governments all stem from
tribal sovereignty. In short, tribal sovereignty is the freedom of tribes to
choose their future.s
The federal legal doctrine of tribal sovereignty, however, reflects a much
narrower view of tribal sovereignty embedded in more than two hundred
years of byzantine federal Indian law and policy. Though U.S. law ostensibly
recognizes tribes’ inherent sovereignty as nations, the defining aspect of the
federal legal doctrine of tribal sovereignty is that tribal sovereignty may be
limited or even extinguished by Congress. I his should be incompatible
with the concept of sovereignty, yet this is federal law as it currently exists.
In this way, the federal legal doctrine of tribal sovereignty has compromised
the inherent authority of tribes. Understood in this dual sense, tribal sove­
reignty is the key variable driving Indian gaming, yet its realization is com­
promised: sovereignty fundamentally informs federal Indian law and po icy,
but it also effectively is undercut by that same law and policy.
We rely on two conceptions of tribal sovereignty: the federal definition,
which is grounded in federal Indian law, and indigenous perspectives, w
deny the extent of federal authority and are rooted in tribes in erent r g
of self-determination. The tension between these two conceptions is yet o .
be resolved. The federal definition compromises tribal self- etermination,
WHAT I S INDIAN GAMING?
5
as many Native scholars have asserted. We are persuaded by the torce of the
arguments supporting indigenous conceptions of sovereignty and agree
that ideally tribal self-determination should inform all intergovernmental
relations with tribes. In the context of Indian gaming, this ideal has not yet
been realized; rather it is the federal definition that has shaped the law and
politics of Indian gaming today. Throughout much of this book, we resort
to the federal definition of tribal sovereignty for its explanatory power, but
we believe that indigenous perspectives should shape the future of tribal
gaming, an idea that we develop in the book’s conclusion.
The Law and Politics of Indian Gaming
One cannot understand the practicalities of Indian gaming without under­
standing IGRA, a complex and comprehensive federal statutory scheme gov­
erning the regulation of tribal gaming at three levels of government—tribal,
state, and federal—and critical subsequent legal developments. IGRA grew out
of a federally mandated political compromise between state and non-Indian
gaming interests to control the spread of gambling, on the one hand, and tri­
bal and federal interests in promoting reservation economic development, on
the other.1 hrough IGRA, Congress delegated power to the states to regulate
casino-style Indian gaming—in its view, a clear and perhaps necessary com­
promise between state power and tribal sovereignty, but in the view of many
tribes, a clear compromise of tribal sovereignty. In addition to shaping and
compromising the role of tribes, IGRA created and defined the role of state
law and state actors, thus providing the framework for Indian gaming across
the United States.
Today, the public policies governing Indian gaming are shaped as much
by politics as by applicable law.9 Indeed, following the U.S. Supreme
Court s 1996 invalidation of IGRA’s legal cause of action allowing tribes to
sue states,10 Indian gaming policy has evolved through political compro­
mise and compromised politics as much as through litigation and law re­
ft rm. This trend threatens to accelerate as the compromise between state
power and tribal authority plays out.
Tribal Sovereignty and Indian Gaming
Tribal governments right to conduct gaming on reservations stems from
their political authority as preconstitutioiral sovereign nations. IGRA, fre­
quently and wrongly identified as the source of tribes’ right to open casinos,,i
6
INTRODUCTION
actually creates a set of limitations on tribal authority, compromising inher­
ent tribal sovereignty. In particular, under IGRA, tribes that choose to game
must submit to federal and, for casino-style gaming, state regulation.
In practice, then, tribal sovereignty plainly is compromised in the context
of Indian gaming: the decision to open a casino is an exercise of a tribe’s sover­
eign authority, yet under federal law, tribal casinos must submit to federal
and state regulation, circumscribing tribes’ sovereign rights. Thus, tribal casi­
nos represent tribes’ decisions, or at least acquiescence to Congress’s man­
date, to compromise their inherent sovereignty in order to pursue gaming as
a strategy for economic development. But far beyond Congress’s intentions as
represented by IGRA, subsequent legal developments have dramatically in­
creased the political power that states wield over tribal gaming. This has exac­
erbated the compromised nature of tribal sovereignty in the context of In­
dian gaming, making gaming tribes’ sovereign rights vulnerable to state
power and public opinion alike.
This compromise of tribal sovereignty is at the heart of our theoretical
framework and the three steps we follow in this book. First, tribal sovereignty,
even in this compromised form, is misunderstood and ignored by
the general public and policymakers alike. Second, compromised sover­
eignty underpins, and thus explains, the current law and politics of Indian
gaming. Third, indigenous views of tribal self-determination hold promise
for a practical solution to compromised sovereignty in the context of In­
dian gaming—a compromise without compromising, an argument we de­
velop in the concluding chapter.
INDIAN GAMING IS BIG BUSINESS
In less than three decades, accompanied by the explosive growth in legal­
ized gambling in the United States, Indian gaming has become big business,
generating nearly $17 billion in revenues in 2003. At the same time, tribal
gaming accounts for less than one-quarter of gambling industry revenues
nationwide.’2 Twenty-five years ago, Indian gaming consisted of a few
tribes high-stakes bingo halls and card rooms in a handful of states. Seeing
gainings marked impacts on tribal economies, other tribes followed suit but
were met with state efforts to shut down their casinos. In 1987. the U.S. Su­
preme Court ruled that so long as gambling did not violate state public pol­
ity tribes could operate gaming establishments free of state regulation.13 On
WHAT IS INDIAN GAMING?
7
the heels of the Court’s decision, Congress passed IGRA, which both en­
couraged tribes to pursue gaming as a means of reservation economic devel­
opment and created an extensive regulatory scheme governing tribal gaming
operations. Today, 30 states are home to more than 350 tribal gaming estab­
lishments operated by over 200 tribes that decided to pursue gaming as a
strategy for economic development.14
Indian gaming, however, is far from the only game in town. The steady
growth in tribal gaming tracks the growth in the legalized gambling indus­
try generally: no longer confined to Las Vegas, Reno, and Atlantic City,
gambling has spread across the United States. The vast majority of Ameri­
cans have gambled at least once. One can place bets on dog and horse races
in 43 states, buy lottery tickets in 40 states, gamble for charity in 47 states,
and play at commercial casinos in 11 states. All but two states allow some
form of gambling.is The nation’s 443 commercial casinos produced nearly
double the revenue of Indian gaming—just under $29 billion — in 2003.
Americans spent more at commercial casinos than they did at amusement
parks and movie theaters combined. All told, nontribal gaming is a more
than $50-billion-a-year industry.16
For those tribes that have chosen to open casinos, the overriding impe­
tus has been relatively consistent: socioeconomic adversity. Reservations
historically have had some of the most difficult living conditions in the
United States. Many Native Americans, particularly those residing on reser­
vations, were poor, unemployed, and living in overcrowded and inadequate
housing in communities with minimal government services. In some areas,
reservation unemployment topped 80 percent, even as neighboring nonIndian communities experienced historically low unemployment rates. At
the start of a new century, conditions on many reservations still lag signifi­
cantly behind those of the general population in the United States, yet there
have been marked improvements for many Native American communities,
largely due to gaming revenue.17
many tribes, gaming profits are a significant source of government
revenue, strengthening tribal governments and bringing about a renaissance of sorts on reservations throughout the United States. On balance,
nontribal jurisdictions benefit from tribal casinos as well. States with In-rTpera,i°n, as well as the numerous nonreservation commucil! b nefiK r”‘t3!^ ^ Kawi
“””omic and sodecreased Duhi°m
i” gaming’ ranBlnS from
increased tax revenues to
sed public entitlement payments to the disadvantaged, is
8
INTRODUCTION
INDIAN GAMING IS A SPECTRUM
A number of overgeneralizations prevail in media accounts of gaming
tribes today—that all tribes game; that all members of gaming tribes are
wealthy, like the Mashantucket Pequots in Connecticut; that federal recogni­
tion of tribes is all about casinos; that tribal gaming is a policy failure because
it has not lifted some tribes from poverty; and that tribal sovereignty unfairly
advantages tribes.>9 Although popular media accounts tend to lump tribes to­
gether, providing a pan-Indian narrative of tribal gaming, there is consider­
able variation among tribes and tribal experiences with casino-style gaming.20
As a strategy for reservation economic development and a means to raise tribal
government revenue, many tribes have chosen to exercise their sovereign right
to own and operate casinos. Today, about 85 percent of the 225 or so tribes in
the 48 contiguous states conduct some form of gaming operations on their
reservations.21 However, many other tribes have decided not to pursue casinostyle gaming or, in some cases, any form of gaming. Only about one-third of
the approximately 560 tribes in the United States recognized by the federal
government conduct casino-style gaming on their reservations.22
Conceptually, tribes fall along a full spectrum of Indian gaming, rang­
ing from tribes in states that prohibit gambling, where Indian gaming
simply is not an option, to gaming tribes whose economic success is un­
disputed, such as the Mashantucket Pequots. Tribes that game do so with
varying profitability, falling along a smaller spectrum of economic suc­
cess, but also see other forms of success, as our two case studies in Chap­
ter 5 demonstrate. Although Indian gaming falls along a full spectrum of
tribal experiences, from tribes without casinos to those with highly profit­
able ones, we focus on gaming tribes because that is what the law and poli­
tics of Indian gaming focus on—and that is where the crucible of law and
politics produces public policy affecting gaming tribes.
Not All Tribes Have Casinos
For some tribes, gaming simply is not an option because their reserva­
tions are located in states that disallow any form of gambling.23 For others,
isolated locales or lack of financial
resources may restrict their ability to
open or sustain a casino. Even in the absence of these practical limitations,
a few tribes have chosen not to pursue gaming enterprises based on tribal
values and beliefs.24 Perhaps the most cited example is the Navajo Nations
past rejection of gaming—but that may change.
WHAT IS INDIAN GAMING?
9
The Navajo Nation is both the largest tribe, with over 250,000 enrolled
members, and the largest reservation in the United States, covering 17.5 mil­
lion acres in northwest New Mexico, northeast Arizona, and southeast Utah.
In the mid-1990s, the tribe twice voted down referenda to build a casino. Op­
position to a tribal casino was strongly influenced by Navajo beliefs that gam­
bling can corrupt and destroy.” In 2002, Arizona voters approved Proposi­
tion 202, which allotted casino and slot-machine rights to both the Navajo
and the Hopi, who also have rejected gaming in the past. The referendum al­
lowed each tribe to open its own casinos or to lease its rights to other tribes in
the state. Recently, the Navajo announced plans to build a casino near Albu­
querque in the Tohajillee Reservation, a small satellite of the main Navajo res­
ervation.26 Despite tribal teachings against gambling, many Navajo hope that
gaming may help raise the living standard of a people whose unemployment
rate is 44 percent and whose per capita income is just over $6,000. “We
thought we would be better off economically if we could do the same thing
that other tribes have done in the area,” said Tohajillee chapter president Tony
Sacatero. Even if you don’t have a casino here, people are still going to go
someplace else. Hut if you build it here, the money is going to stay here.”-‘
Not All Tribes’ Casinos Are Successful
Although common sense dictates that the spectrum of economic success
should include tribal casinos that do not earn enough to stay open, this ap­
pears to be a relatively rare occurrence.” One recent cautionary tale is that
of the Santa Ana Pueblo in Albuquerque, New Mexico. In 2003, the tribe
was nearly $90 million in debt on a number of economic ventures, includ­
ing its casino. The tribe attributed declining profits at the casino to the nege economic impact of the September 11,2001, terrorist attacks, the overownturn in the state and national economy, and increased competition
rom other gaming tribes. For now, Santa Ana Pueblo has kept its casino
open, in part with a $75-million loan from the Sandoval County Commis­
sion.* One might expect, however, that as legalized gambling continues to
P
in t e United States, competition from commercial as well as tribal
casinos may drive some tribal casinos out of business.3o
The Spectrum of Success
speamm n
“?***^ SUCKSS is
end of the
7
gammg enterprises earn less than $,o milion in an”
‘ °f
annual revenue, and a quarter of Indian gaming operations earn less
10
INTRODUCTION
than $3 million each year—often just enough to keep the casino open and
provide modest funding for tribal government programs. On the other end of
the spectrum, only about forty tribal casinos—just over one in ten—take in
two-thirds of all Indian gaming revenue, each earning over $100 million annually.3i Further complicating measures of economic success, the calculus
involves a complex weighing of social and economic variables that determine
Indian gaming’s relative costs and benefits to tribes, localities, and states.
In some states, Indian gaming is limited to bingo and similar games be­
cause state public policy or other law prohibits casino-style gaming. For ex­
ample, although Alaska is home to some 225 tribes and Native villages, it
has only a handful of tribal gaming operations, offering mainly bingo and
pull-tabs.32 State law currently prohibits casino-style games, although state
policymakers recently have considered a casino in Anchorage. Extraordi­
narily rural locales and limited reservation lands in the state, however, may
further restrict any possible expansion of tribal gaming in Alaska.33 In
Oklahoma, another “bingo-only” state, state legislators recently considered
allowing tribes to offer some casino games, including video blackjack and
video poker. Industry experts expect that Indian gaming revenues would
increase dramatically with the introduction of even limited casino-style
gaming in Oklahoma.3″* Typically, of course, casino games, particularly slot
machines, earn more revenue than does even high-stakes bingo.
In terms of simple economics, the spectrum of success for tribal casinos
appears obvious—one merely need compare a rural bingo hall to a Las
Vegas-style casino near a metropolitan area. We tell two stories in Chapter 5
to illustrate the spectrum’s poles: those of the phenomenal profitability of the
Pequots’ Foxwoods Resort Casino in Connecticut and the modest-at-best
economic success of Plains Tribes’ casinos in North Dakota. But the two sto­
ries reveal that, for tribes, success may take more forms than profits. Using in­
digenous perspectives on tribal sovereignty to further examine success, we
consider the effects of even modest casino profits on tribal government and
reservation life. For many tribes, gaming revenue can provide the financial
oceans for self-determination—for tribes to choose their own futures.
INDIAN GAMING
PUBLIC OPINION
IS
CONTROVERSIAL:
AND PUBLIC POLICY
Due in large part to the vast sums of money changing hands, the perceprion that gambling is a vice, prevailing stereotypes, and tribes’ complicated
WHAT I S INDIAN
GAMING?
11
status as sovereign nations, tribal gaming is at the forefront of public dis­
course today concerning Native Americans, having prompted federal, state,
and local policymakers and the popular media to pay attention to the ac­
tions of tribes to a degree far greater than at any other time in recent his­
tory. Not all of this attention is positive. Indeed, despite what appears to
some observers to be a demonstrable, even stunning, public-policy success,
Indian gaming is more controversial than ever.35 As the Mashantucket Pequots have learned, criticism and backlash often accompany tribal gaming
profits. The Pequots’ Foxwoods Resort Casino is the most financially
suc­
cessful casino in the world—and the Pequots themselves may be the most
intensely scrutinized tribe in the United States. The Pequots have attracted
vast national media attention and have inspired three recent expose-style
books purporting to debunk the Pequots’ status as a federally recognized
tribe. Questions surrounding the Pequots’ authenticity and their newfound
wealth fuel criticism of the tribe, as well as of the federal recognition pro­
cess and Indian gaming generally.
Although discussed less frequently in lieu of more dramatic and con­
troversial narratives like the tale of the Pequots, tribes with only modestly
successful casinos, such as those scattered throughout the Great Plains, are
scribed in the mainstream media as providing further evidence of the
failure of Indian gaming as public policy. In North Dakota, for example,
es continue to struggle with what by non-Native community standards
are staggering reservation unemployment and poverty rates and other
socioeconomic adversity.
in thp f°00′
decried tbe
Poverty of many Native Americans
years after th s f H m’nd”bogglin8 wealth” of a few gaming tribes: “[Twelve]
icv the 0
11C Cra government made gambling a staple of its Indian poltin’ues to be A
P°rtrait
°f
school dron 1 °”lmated
America>s
by d,sease>
tensive two-part expose of InH- ‘
most impoverished racial group con-
unemployment, infant mortality, and
‘**-“•—rpublished an ex-
ma«azlne ln *>°*
tune” and asserting that tribalIf”””8’ labeUng ” the “wheel of misf0r”
Native investors but “n
A i ?”°S extenslvely benefit wealthy nonaccounts IGRA thus
cess of tribes like the Pe
°V
‘°
tHe
POOr’,i7 According to
thesC
A* gaming and its specific focus on the suc-
SUPP°Sed failure of tribes like those on
the Plains have inspired den^”!!
inspired demand for policy reform at the state and federal
12
INT”ODUCTION
levels. In Chapter 6, we critique this discourse as ignoring the significance of
tribal sovereignty. We draw on both the limited federal definition of tribal
sovereignty—criticism of Indian gaming often ignores even this narrow and
artificial construction of tribal authority—and indigenous perspectives on
tribal sovereignty to reveal pervasive popular misapprehensions of Indian
gaming and tribal governments.
INDIAN GAMING IS
AN OPPORTUNITY:
A PROPOSAL
In this book, we set out a theoretical framework, grounded in tribal sover­
eignty, for understanding Indian gaming. We believe that tribal sovereignty
provides the necessary foundation for informed and effective law and poli­
cymaking in the area of Indian gaming. In Chapter 1, we explain tribes’
unique status in the American political system—that tribal sovereignty ex­
ists, and what it means. We rely on the narrow federal legal doctrine of tri­
bal sovereignty to describe the development of current Indian gaming law
and policy in the following chapters, explaining how law and politics shape
the realities of Indian gaming today.
In the book’s latter chapters, we return to indigenous views of tribal sover­
eignty: tribal nations’ inherent right of self-determination. We draw upon
Native conceptions of tribal sovereignty to form the theoretical foundation
for exploring current empirical evidence of socioeconomic impacts of tribal
gaming. Furthering the move toward an explanatory account of Indian
gaming from a law and policy perspective, we critique public opinion and
public policy based on the spectrum of success of Indian gaming, from the
Pequots to the Plains. We examine the prevailing discourse surrounding tri­
bal gaming by situating the issues within the framework of tribal selfdetermination. Rather than asking what appear to be the two standard
questions that are the starting point for most discussions—Who is benefit­
ing or losing from Indian gaming? or more simplistically, Is Indian gaming
good or bad?—we ask, Does Indian gaming embody the exercise of tribal
sovereignty? That is, does it further tribes’ freedom to choose their own fu­
tures? We believe that in large part it does—or, at least, it can.
In the concluding chapter, then, we set forth a proposal for a new com­
promise, one between sovereigns with mutual benefits to each. We argue
that tribal sovereignty, seen as tribes’ right of inherent self-determination,
provides the necessary foundation for assessing whether Indian gaming in
WHAT I S INDIAN GAMING?
13
fact is successful and reveals more common interests and goals of tribal and
nontribal governments than does a simple economic bottom line. We pro­
pose that tribal sovereignty should drive both public discourse and public
policymaking concerning Indian gaming. Tribal gaming presents a signifi­
cant opportunity to give practical meaning to tribal self-determination and
to reshape how tribal sovereignty is recognized and realized through legal
and political processes. In rejecting the compromised nature of the federal
legal doctrine of tribal sovereignty and reaching a new compromise among
sovereigns, state, tribal, and federal political actors may craft fair and effec­
tive Indian gaming law and policy. A compromise reached by sovereign
governments need not compromise either the interests of non-Indians or
the future of Native Americans.
14
INTRODUCTION
Indian Gaming and
Tribal Sovereignty
Tribal sovereignty is more than a legal doctrine, it is our
existence and our continued survival.
—Coeur d’Alene tribal leader David Matheson1
Indian gaming is fundamentally different from most forms of gambling,
from church bingo nights to the slots at Las Vegas s MGM Grand Casino,
because it is conducted by tribal governments as an exercise of their sovere ign
rights. Tribal sovereignty—a historically rooted concept recognizing
tribes’ inherent rights as independent nations, preexisting the United
States and its Constitution—informs the primary legal and political foun­
dation of federal Indian law and policy and thus of Indian gaming. Yet tri­
bal sovereignty, whether viewed through the lens of federal law or the per­
spectives of indigenous peoples, is perhaps the most misunderstood
aspect of Indian gaming.
We explore tribal sovereignty from two different perspectives, the fed
e r al
definition found in the legal doctrine of tribal sovereignty and
broader indigenous conceptions centered on tribes inherent right of self
determination. As defined by federal law, tribal sovereignty is limited by
federal authority; that is, Congress may narrow or even extinguish tribal
sovereignty. Tribal governments and tribal members maintain deeply
beld convictions about the origins, meaning, and immutability of triba
sovereignty that fundamentally are at odds with the federal legal doctrine
Nevertheless, federal Indian law and policy continue to constrain triba
17
self-government and self-determination. In the realm of Indian gaming law
and policy, tribal sovereignty has been compromised.
WHAT IS TRIBAL SOVEREIGNTY?
As political scientist and legal scholar David Wilkins notes, there is “a be­
wildering array of interpretations of the nature and extent of tribal sover­
eignty.”2 Although at the heart of tribal identity, sovereignty as a legal and
political doctrine is “one of the most misunderstood concepts within West­
ern jurisprudence.”3 Some adhere to the doctrine of tribal sovereignty
found in federal law; others strive to bring meaning to the term beyond leg­
islation, regulation, or the U.S. Supreme Court’s interpretation. Sover­
eignty is “the heart and soul” of Native people, according to Comanche tri­
bal leader Wallace Coffey, and “no one has jurisdiction over that but God.4
The import and scope of the term, for many, precludes simple definition.
Law prolessor Robert Porter, on the other hand, has stated succinctly that
tribal sovereignty “simply means freedom, the freedom of a people to
choose what their future will be.”5
Indigenous perspectives on tribal sovereignty capture both the tangible
and intangible aspects oi sovereignty and emphasize its inherent and undiminishable nature. Native views provide a fuller and more accurate picture
of tribal sovereignty than does the federal legal doctrine. Many nonNatives, however, are unaware of even the limited and flawed version of tri­
bal sovereignty found in the federal definition. In this first descriptive step
of exploring tribal sovereignty in the context of Indian gaming, we begin
with the lederal legal doctrine to introduce the explanatory power of the
ederal definition in shaping tribal gaming law and policy and to provide
contrast for broader indigenous perspectives on sovereignty.
The Federal Legal Doctrine of Tribal Sovereignty
he federal legal doetrinc of tribal sovereignty, or what most frequently
erroneously referred to in federal law and jurisprudence as well as the
the no it
7C ^ Simply.”tribal sovereignty,” incongruously refers to both
nations’ .”h ^t3tUS °f
litical statut V
eraltw h’t d
tnbes as
yu°,f

Precnstitutional and extraconstitutional
that P°’
^ laW that defines and
f
tribaI
SOVerei
nt
with
the fed’
°
S y
C°nflati°n
l° m°St peoPle> including Policy”
makers, and fruTtratine to 1
g

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