A COMMENT ON THE SUBJECT OF GAMING IN INDIAN COUNTRY

Abstract

At the outset, I should say that this is one of the best papers I have read on the subject of Indian gaming. However, this says less about the present article than it does about the sorry state of research on this subject. Be that as it may, I will use this opportunity to comment on a disagreement I have with the authors, and to underscore several key points in this paper that deserve more attention than they receive. The disagreement I have with these authors stems mostly from their misinterpretations of federal policy regarding American Indians. Particularly unfortunate are their comments about what the Constitution says and does not say about this population. Individually, these mis-steps are rather small. Taken together, they render a view of federal policy that reinforces a seriously distorted perspective common in academia and the public alike. That is, American Indians are unique because they are the recipients of special dispensations from Congress and the courts that grant them certain rights and privileges not enjoyed by other Americans. In fact, nothing could be further from the truth. American Indians do occupy a special legal and political niche in American society. They occupy this niche by virtue of their prior occupation of the land that now belongs to the citizens of the United States, and because they were once fully self-governing people separate and apart from the U.S. Government. The authors write that [tribal] sovereignty [is] granted by the U.S. In fact, there is no mention whatsoever in the Constitution about sovereignty for American Indians, and the authors should consult the original document if they disagree. To the contrary, the sovereign rights of American Indians predate the Constitution. In many if not most instances, their subordinance to the federal government was neither voluntary nor welcomed. This much is fairly well known. Less well understood is that treaties, laws, court decisions, and other instruments of federal policy grant nothing to American Indians. However, they do curtail and otherwise limit the rights and authority enjoyed by tribal communities before the creation of the United States. Treaties, for example, stipulate what will not be taken away from American Indians in consideration for cessions of territory--hence, the term reservation. In the context of federal litigation and congressional legislation, an Indian victory seldom if ever represents a true gain. In truth, it only represents the preservation of the status quo, that nothing further has been lost, and that the sovereign powers of tribal communities have not been further eroded. Although tribal sovereignty is rooted in 19th-century constitutional case law, as the authors write, they fail to point out that this also entails a struggle that is far from settled and embraces a number of relatively recent legal opinions and legislative actions. The conflicts over casino gaming are just one such venue for these struggles. The Indian Gaming Regulatory Act and the court decisions preceding it did not grant tribal governments the authority to offer casino gaming. They possessed this authority in advance of the Act, just as Nevada did when it opted to casinos in Las Vegas. However, the Act did impose limitations and restrictions that did not exist prior to it. One example is the requirement that tribal governments negotiate compacts with state governments. Thus, when the authors write that in the Seminole Tribe v. Butterworth case, Florida was ordered by the courts to permit the Seminoles to have bingo, and to extend similar rights to Indian tribes, they are making an egregious mis-statement in attributing these powers to Florida. Indeed, Florida was ordered to cease its interference in Indian gaming, which is quite a different matter than having the authority to grant permission. The court decision affirmed that Florida had no legal jurisdiction in this matter. …