Sovereignty is the most important term used in Indian Country today. Sovereignty gives Indian Tribes the ability to have self-rule on reservation lands. Culture, language, religion and self-governance are the most crucial parts of Indian tribal sovereignty.
Tribal governments operate pursuant to a government-to-government relationship. There are three forms of governments recognized by the U.S. Constitution; 1) the federal government; 2) state governments; and 3) Indian sovereign nations. Historically, the Supreme Court has recognized Indian nations not as private organizations, but as autonomous governments. These governments possess sovereign powers over their lands and the members of their tribes.
President Ronald Regan stated, "….the constitution, treaties, laws, and court decisions have consistently recognized a unique political relationship between Indian tribes and the United States."
These words ring true today. The relationship between Indian nations and the State of California is unique. Respecting this relationship is paramount to maintaining open communication and understanding in an ever-changing business and political climate.
Self-governance reaches far beyond gaming and the business interests. Self-governance is a spiritual and cultural entitlement which protects and maintains the well-being of Indians and ensures their prosperity and success for years to come.
Off-reservation land acquisition is not politically popular and because federal policy provides a clear role for local and state government involvement, it is quite rare. Since 1988, according to the National Indian Gaming Association (NIGA), there have been only three instances in which off-reservation land has been taken into trust for gaming purposes through the Section 20 process, totaling a mere 78 acres. Thus, a vast majority of Indian gaming operations are currently located on land that has been reservation territory for many years. Venue shopping (or "reservation shopping") has been proposed many times but rarely occurs. In spite of its rarity, Congress is considering legislation that would prevent Indian tribes from purchasing land outside their reservations to build casinos.
During Propositions 5 and 1A, the California voters were clear in their support for gaming on existing Indian lands. Indeed, the fact that Indian gaming in California is not in urban areas is one of its most popular features.
The hottest discussion today in Indian Country is off-reservation land into trust for gaming. To illustrate the magnitude, Indian Nations outside of California express major concerns with the public perception of tribes seeking out non-reservation land or non-ancestral land for the purposes of gaming.
Tribes seeking approval to take land into trust for off-reservation tribal gaming must secure the consent of the Secretary of the Department of the Interior and the state governor. This approval is usually contingent on, among other factors, support from the affected communities. The tribe usually negotiates funding for the infrastructure impacts of the proposed gaming establishment and often agree to revenue sharing with local and state governments.
When Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988, it envisioned gaming as a tool to promote tribal economic development and self-sufficiency. The Indian gaming industry has grown since its passage. It has expanded from small bingo halls in the late 1980s to an $18.5 billion industry. There are currently 411 tribal casinos and gaming halls in 28 states.
Most of the existing Indian casinos and gaming halls operating today were authorized under IGRA's stipulation that tribal gaming take place only on lands located within or contiguous to the boundaries of a tribe's reservation as it existed on October 17, 1988.
However, in an effort to leave the door open for gaming by tribes with outstanding land claims and those seeking federal recognition as a sovereign tribe, Congress authorized in IGRA limited exceptions to the "reservation as it existed on October 17, 1988" policy. These exceptions are as follows:
Because most pre-IGRA tribal reservations are in relatively rural areas, few current gaming operations are located in or adjacent to major urban centers. Over the last decade, there have been an increasing number of proposals to locate Indian gaming operations near interstate highways or major urban areas. In fact, most of the off-reservation proposals were for projects near major urban areas or interstate highways.
- If the land is taken into trust for the tribe as part of a settlement of a land claim,
- If the land is restored to an Indian tribe whose status had been newly recognized by the federal government; or
- If the Secretary of the Department of the Interior and the Governor of the affected state "sign-off" on the land-into-trust for gaming proposal.
No one could have predicted the IGRA exceptions being used by a few tribes and developers in a practice that has come to be known as "reservation shopping". Reservation shopping is a tactic some tribes are using to purchase property or settle land claims away from a tribe's current reservation for the sole purpose of conducting gaming. Reservation shopping has raised several significant public policy issues such as:
SPECIAL DISTRIBUTION FUND
- Pitting tribes against each other in pursuit of limited gaming revenues and market share;
- The use of land clams to secure off-reservation gaming sites;
- Conflicts between gaming proposals and state and local governments;
- Private developers financing off-reservation tribal casinos; and
- Conflicts with existing state constitutional and statutory laws and citizen initiatives relating to gaming.
The Indian Gaming Special Distribution Fund (SDF) was created in 1999 under the tribal-state compacts. The SDF is fully financed by tribal governments that operate casinos with more than 200 gaming devices as of September 1, 1999.
The SDF provides critical funding for local governments and special districts impacted by tribal gaming. The SDF also funds gambling addiction programs, the Division of Gambling Control and the regulatory body of the California Gambling Control Commission.
Monies disbursed to local governments provide local law enforcement, fire and emergency services, environmental impacts, water, land use, roads, recreation and youth programs.
Payments to the SDF are made on a quarterly basis. Tribes that pay into the SDF are to be consulted in the disbursement process to identify and prioritize grants made to local governments.
REVENUE SHARING TRUST FUND
The Indian Gaming Revenue Sharing Trust Fund (RSTF) was created to assist both non-gaming tribes and tribes that operate casinos with 350 devices or less to maintain self-reliance and become economically stable.
The RSTF allows for the payment of $1.1 million to the tribes that fit the description above. There are 70 tribes eligible for RSTF payments. 56 of these tribes have no gaming activities. 14 of these tribes have operations of less than 350 devices.
These monies are used to provide government services, educational grants, provide for the welfare of individual tribal members, and promote economic development.
H.R. 3742 by Kildee would amend the Indian Reorganization Act (IRA) and reaffirm the authority of the Secretary of the Interior to take land into trust for Indian tribes.
In February 2009, the Supreme Court issued its ruling in Carcieri v. Salazar which stated that the Secretary of the Interior lacks authority to take land into trust under the IRA for Indian tribes that were not under federal jurisdiction at the time of its passage in 1934.
This decision directly goes against the longstanding policy of the United States to assist Indian tribes in protecting and creating a land base sufficient for them to provide services to tribal members. This also confuses and imposes new requirements to the process tribes must go through for acquiring land in trust.
The US Constitution states that the federal government has jurisdiction over Indian tribes and through treaties and agreements has a trust responsibility to protect Indian trust lands for all recognized Indian tribes.