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The Threat of Reservation Shopping

11 April 2005

Anti-gambling activists use it to scare small children. Multi-billion-dollar casinos say this is why they need lower taxes. Even some Indian tribes, especially those with competing businesses, claim it's an attack on tribal sovereignty.

But are there really going to be Indian casinos popping up in the middle of cities across the nation?

The short answer is, "No." The slightly longer answer is, "Maybe a few, but probably not."

Every situation is unique, because every piece of land has its own legal history. And so it is with every tribe.

Still, it is possible to predict whether any particular proposed urban casino will ever be built.

It's best to start by thinking in categories. There are tribes with reservations who want land in better locations and there are landless tribes. There are tribes with compacts and tribes without. And there are federally recognized tribes and tribes with only state recognition, or none at all.

The federal Indian Gaming Regulatory Act ("IGRA") is clear: A tribe must be on the list of federally recognized tribes before it can operate any gaming. This instantly pushes many proposals into the category of wishful thinking. Most tribes fail to gain or regain federal recognition, even after decades of trying.

Even winning back federal recognition is not enough. Some tribes, like the Tiguas in El Paso, regained their tribal status through an Act of Congress. But when they opened a casino, they found that they had unintentionally waived their right to have gambling, because they had agreed to be bound by Texas state laws.

The IGRA limits gaming to "Indian Land." The wording is significant, and not because it did not use the more politically correct "Native American." The legal term had always been "Indian Country." By coining a new phrase and giving it a detailed definition, Congress intentionally left out many pieces of land, such as dependent Indian communities, which might have otherwise qualified for tribal casinos.

Getting Indian Land for gaming can be either easy or impossibly difficult. Existing reservations automatically fit the definition. If a tribe wants to open a Class II (bingo) hall on its land, it almost always can do so immediately, so long as the reservation is in a state that permits charities to have bingo. Class III gaming, slot machines, casinos, parimutuel betting and lotteries, can be slower, because the tribe first has to negotiate a compact with the state.

But it is so difficult for a tribe with an existing reservation to get new, non-contiguous land for gaming that it has only happened three times in the last 16 years.

The Office of Indian Gaming Management in the Department of Interior ("DOI") has developed a checklist, 13 pages of tiny print. There is usually no problem if the land is within the boundaries of the reservation or is merely an expansion. But the situation is radically different if the land is being acquired simply because it is in a better location. And the further the land is from where the tribe is now, the less likely it becomes that the acquisition will be approved.

The checklist requires the tribe to include such things as a pre-acquisition environmental site assessment. The purpose of this and other expensive and burdensome paperwork is to help the Secretary of Interior make a required two-part determination:

1) That the gaming establishment on newly acquired land is in the best interest of the tribe and its members; and

2) That it is not detrimental to the surrounding community.

Officials from the state and local governments and nearby tribes have the right to comment on the proposed acquisition. In practice, if not in law, heated opposition from these officials and their constituents can kill a tribal gaming project.

But the real obstacle is usually the governor. The IGRA is clear: Even if the Secretary approves, the governor has to concur. Courts have held that it is not unconstitutional to give the governor this veto power.

The governor does not have this power if the tribe has no land.

Landless tribes are created by flukes. For example, a court decided that the Lytton Band of Pomo Indians had been wrongfully deprived of its status and its land, and ordered tribal recognition be restored. But houses, stores and even a college had been built on the land, and the court would not order that it be given back.

As the Lytton Band discovered, it is nearly impossible for even a landless tribe to buy new land for a casino. This Band was able to find a compliant Congressman, George Miller, who was willing to sneak an amendment through Congress turning the San Pablo card club into a reservation, bypassing the normal procedures.

But even with land, the Band still does not have a casino, and probably never will, because the IGRA prohibits Class III gaming without a tribal-state compact. Note that it is the state, not just the governor, that must approve a compact. Although, in practice, it is the governor's office that works out the deal, the state legislature and sometimes state courts get involved.

If a state, like California, agrees to talk with a tribe, it must negotiate in good faith. If a state, like Florida, does not want to talk, the U.S. Supreme Court has said it does not have to and the tribe cannot sue the state. No one knows what happens next. Maybe the Secretary of Interior becomes a super-czar of gambling and issues regulations, despite opposition from the state. Or maybe the tribes have a right, but no remedy at all.

Negotiating in good faith usually means the state has to give every tribe the same rights, such as the same payment rates and the same number of slot machines. But governors have discovered that the Secretary will approve compacts giving the state a large share of gaming revenue, if a tribe has an exclusive right to gambling in a locale.

Gov. Schwarzenegger signed a compact with the Lytton Band, letting the tribe have 5,000 slot machines, which would have been the largest urban casino in the world. The state's take was to be 25%, so long as the Governor did approve any casino within a 35-mile radius.

But this compact, like most others, had to be approved by the Legislature, which, in this case, is worried about traffic. Even reducing the initial casino to "only" 2,500 slots -- still as big as a Las Vegas casino -- did not appease opponents.

And the Secretary's approval is no longer a rubber stamp. The Secretary wants to see the normal safeguards for the environment, tribal members and the community.

So, just because someone announces that they are gong to open an Indian casino near, say, Disneyland (a real proposal), understand that wishes really sometimes do not come true.

© Copyright 2005, all rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I Nelson Rose, Whittier Law School, Costa Mesa, CA

Recent Articles
Best of I. Nelson Rose
I. Nelson Rose

Professor I. Nelson Rose is an internationally known scholar, public speaker and writer and is recognized as one of the world's leading authorities on gambling law. A 1979 graduate of Harvard Law School, he is a tenured full Professor at Whittier Law School in Costa Mesa, California, where he teaches one of the first law school classes on gaming law.

Professor Rose is the author of more than 300 books, articles, book chapters columns. He is best known for his internationally syndicated column, "Gambling and the Law ®," and his landmark 1986 book by the same name. His most recent book is a collection of columns and analysis, co-authored with Bob Loeb, on Blackjack and the Law.

A consultant to governments and industry, Professor Rose has testified as an expert witness in administrative, civil and criminal cases in the U.S., Australia and New Zealand, and has acted as a consultant to major law firms, international corporations, licensed casinos, players, Indian tribes, and local, state and national governments, including Arizona, California, Florida, Illinois, Michigan, New Jersey, Texas and the federal governments of Canada and the United States.

With the rising interest in gambling throughout the world, Professor Rose has spoken before such diverse groups as the F.B.I., National Conference of State Legislatures, Congress of State Lotteries of Europe, United States Conference of Mayors, and the National Academy of Sciences. He has presented scholarly papers on gambling in Nevada, New Jersey, Puerto Rico, England, Australia, Antigua, Portugal, Italy, Argentina and the Czech Republic.

He is the author of Internet Gaming Law (1st & 2nd editions), Blackjack and the Law and Gaming Law: Cases and Materials.

I. Nelson Rose Websites:

www.gamblingandthelaw.com

Books by I. Nelson Rose:

Compulsive Gambling and the Law

> More Books By I. Nelson Rose

I. Nelson Rose
Professor I. Nelson Rose is an internationally known scholar, public speaker and writer and is recognized as one of the world's leading authorities on gambling law. A 1979 graduate of Harvard Law School, he is a tenured full Professor at Whittier Law School in Costa Mesa, California, where he teaches one of the first law school classes on gaming law.

Professor Rose is the author of more than 300 books, articles, book chapters columns. He is best known for his internationally syndicated column, "Gambling and the Law ®," and his landmark 1986 book by the same name. His most recent book is a collection of columns and analysis, co-authored with Bob Loeb, on Blackjack and the Law.

A consultant to governments and industry, Professor Rose has testified as an expert witness in administrative, civil and criminal cases in the U.S., Australia and New Zealand, and has acted as a consultant to major law firms, international corporations, licensed casinos, players, Indian tribes, and local, state and national governments, including Arizona, California, Florida, Illinois, Michigan, New Jersey, Texas and the federal governments of Canada and the United States.

With the rising interest in gambling throughout the world, Professor Rose has spoken before such diverse groups as the F.B.I., National Conference of State Legislatures, Congress of State Lotteries of Europe, United States Conference of Mayors, and the National Academy of Sciences. He has presented scholarly papers on gambling in Nevada, New Jersey, Puerto Rico, England, Australia, Antigua, Portugal, Italy, Argentina and the Czech Republic.

He is the author of Internet Gaming Law (1st & 2nd editions), Blackjack and the Law and Gaming Law: Cases and Materials.

I. Nelson Rose Websites:

www.gamblingandthelaw.com

Books by I. Nelson Rose:

Compulsive Gambling and the Law

> More Books By I. Nelson Rose