IGRA has worked for 30 years, but there are challenges on the horizon

April 18, 2018 11:05 PM
  • Nick Sortal, CDC Gaming Reports
April 18, 2018 11:05 PM
  • Nick Sortal, CDC Gaming Reports

Indian gaming has boomed since the U.S. Congress passed the Indian Gaming Regulatory Act 30 years ago, but speakers on a panel Wednesday at the 2018 NIGA Tradeshow pointed to the larger growth of commercial gaming as a driver of change.

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In short, tribal casinos are going to be challenged with new compact negotiations, partially because 22 states have added commercial gambling since IGRA was passed in 1988. That makes negotiating geographic exclusivity no longer an option for the tribes.

“A number of compacts (are) coming up… it’s my opinion that tribes and states are going to have to start thinking outside the box about what an economic benefit might look like,” said Zeke Fletcher, an attorney and member of the Grand Traverse Band of Ottawa & Chippewa Indians in Peshawbestown, Mich.

Larry Roberts, a former acting assistant secretary in the Bureau of Indian Affairs, noted that Indian gaming took hold in the late 1980s after legal rulings that gave tribes the right to offer gambling. The Reagan administration ultimately worked out the compromise known as IGRA: tribes would negotiate compacts with their states, and the U.S. Department of Interior would then sign off on them after ensuring there was some benefit to the states.

That was the background for the Indian Gaming Regulation Act at 30 session, which tried to provide a forecast of how IGRA will function in the future.

Roberts, based in Washington, D.C., noted that only five states had either commercial casinos or card rooms prior to 1989. Twelve more states had licensed casinos by 2000, and ten more states have added commercial gambling since then. He also pointed to similar growth in Las Vegas, naming thirteen major casinos properties that have opened since 1990.

“For some time, I think there was a concern and a discussion about whether Indian gaming was going to last (or) whether Congress would step in and end it,” Roberts said. “Because gaming as a whole has expanded, the risk (of IGRA going away) is lower than it might have been in previous years.”

Fletcher noted that most tribes now have compacts and legal rulings that have introduced the process euphemistically called “revenue sharing.”

“Call it what it is. It’s a tax,” Fletcher said. “So you have to have the state provide some meaningful concessions that provide a substantial economic benefit to the tribe.

“The geographic exclusivity has dissipated. It’s not a meaningful concession to offer two or three counties.”

Fletcher said negotiations are also difficult because IGRA prohibits provisions that don’t relate directly to gaming.

Moderator Andrew Adams III showed a map of casinos on tribal land, spoke about the inherent importance of land, and pointed out that the words “Indian lands” are used 72 times in the IGRA document.

“IGRA at its core is concerned about Indian land, who exercises jurisdiction over that land, and thus, who can offer some form of gaming on that land,” he said. “And any questions or conversations or questions or amendments to IGRA almost always evolve around the definition of Indian lands, the authority to acquire new lands for the benefit of the tribe, and the types of games they would like to offer.”