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Afterword: The Death of Indian Gaming and Tribal Sovereignty
- University of Nevada Press
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209 Afterword The Death of Indian Gaming and Tribal Sovereignty tracy a. skopek and kenneth n. hansen Passage of the Indian Gaming Regulatory act (igra) in 1988 and its provision for the negotiation of tribal-state gaming compacts has put the issue of reservation gaming squarely in the hands of state government. This could be a dangerous thing since states have not always been the best protectors of the civil rights of previously disadvantaged groups. The recent purchase of the Hard Rock Hotel and Casino chain by the seminole Tribe in Florida, as well as the abramoff lobbying scandal, has brought into sharp focus the sheer amount of money at stake for many of the First Nations. While not all reservations are raking in millions per month in revenue, for many of them it is still their most lucrative enterprise. since 1979, with the opening of the first reservation bingo parlor in Florida, tribal governments have been seeking ways to gain access to casino operations and protect those enterprises once attained. Because of longheld practices and tribal status as semisovereign peoples, reservations typically used the federal court system as their means for addressing political and developmental issues. igra, however, has all but rendered that avenue 210 t h e n e w p o l i t i c s o f i n d i a n g a m i n g impractical on the issue of gaming, and so tribal governments are turning to other tactics to accomplish their policy objectives. arguably, the issue of reservation gaming, largely because of the Seminole Tribe and Cabazon decisions , followed by the devolution of jurisdiction under igra, is reshaping the relationship between the First Nations and the states. This is not always for the better, as negotiations are now between unequal parties. This was not the intent of the federal gaming law. In the past, reservations tended to deal almost exclusively with federal institutions, with little formal interaction between the tribal governments and the states (Rolland and Winchell 2002). Now tribal governments are being forced to negotiate with state governments for gaming compacts as prescribed by igra. Because the parameters of igra essentially devolve a large portion of the negotiation process for Class III gaming compacts to the states, this has given state governments a comparative advantage. Following the passage of igra, several reservations sought to sue state governments for failing to negotiate a gaming compact or for acting in what igra terms “bad faith.” igra has a provision that allows tribal governments to seek a judicial finding of bad faith on the part of states for failing to negotiate a gaming compact within 180 days. While this theoretically enables tribes to sue states in federal court, the reality has been in fact much different. In 1996, the U.s. supreme Court struck down this provision in Seminole Tribe v. Florida. The Court ruled that under the Eleventh amendment to the U.s. Constitution , states are immune from action in federal court (Seminole Tribe v. Florida 1996) and that 180 days was not a sufficient period of time for states to negotiate and ratify a compact. This decision effectively removed any legal means under igra to force states to negotiate gaming compacts or enforce the “good faith” provision in a timely manner. Tribal governments have explored other legal avenues in order to bring states to the negotiation table, but again with little effect. some tribes have sought legal recourse in federal court but only with state permission to sue them. Unfortunately for reservations, the recent bent of the federal courts, even before the 1996 Seminole Tribe ruling, has been to essentially dodge the issue of bad faith negotiations, instead choosing to limit their role to clarifying the scope of gaming under state law. In the Mashantucket Pequot Tribe v. Connecticut (1990) ruling, the state of Connecticut was determined to have negotiated in bad faith with the tribe but only [18.222.205.211] Project MUSE (2024-04-17 22:52 GMT) a f t e r w o r d 211 because the Court found that the proposed games were already within the scope of Connecticut law. This is similar to a recent case in Wyoming in which the Northern arapahoe Tribe sought to force the state to negotiate a gaming compact. a federal judge in 2002 ordered the two sides to come to the bargaining table, arguing that state law allowed certain types of gaming. However, on appeal, the...