The New Politics of Indian Gaming: The Rise of Reservation Interest Groups

works.

Introduction

The Rise of the First Nations in State Politics

KENNETH N. HANSEN AND TRACY A. SKOPEK

Within the last twenty years, legalized gambling on Indigenous reservations has become a major source of economic development for many of the First Nations and is now calculated to be a multibillion dollar industry.¹ Indigenous-owned casinos earned $26 billion in 2007, with an average 5 percent growth rate. This is compared to earnings of $12.85 billion in gaming revenue for Nevada casinos (500 Nations). What is less well known is that almost overnight a concomitant level of political power has taken shape as the people of Indian Country seek to preserve their recent economic gains. Both developmental and political successes have added a new dimension to the conflict over sovereignty between U.S. states and tribal governments.

In the preface to their edited volume that explores the relationship between tribal governments and the states, Brad Bays and Erin Fouberg (2002) suggest that in this new era of encroachment by states on reservation jurisdiction, tribal governments essentially have only two choices: litigate or cooperate. The courts have historically been the preferred avenue for First Nations seeking redress but are typically slow, frustrating, and often unfriendly to Indigenous issues. This is not to say that litigation no longer happens, because it can be very effective at times. However, the recent trend of devolution of federal responsibilities to the states that culminated in the Indian Gaming Regulatory Act (IGRA) of 1988 has rendered this avenue increasingly unproductive.

Cooperation with states as now prescribed by IGRA requires negotiation to take the form of gaming compacts between tribal governments and the states in which they wish to operate a gaming establishment. Reservations appear to come to the negotiating table at a distinct disadvantage, with the states holding all the cards. Some states like Texas and Wyoming have been unwilling to negotiate gaming compacts at all, arguing that the state constitution forbids casino gaming. Under the law there was very little recourse to force states to even come to the table. However, in 2004 the Northern Arapaho Tribe won their federal court case against the state of Wyoming, the district court ruling that the state had acted in bad faith for refusing to negotiate, which allowed the Arapaho to strike a compact with the Department of the Interior. This illustrates that the often contentious relationship between states and tribes has proved to be problematic for many reservations in a variety of areas, but none more than gaming.

We argue that because of this, tribal governments have begun pursuing a third option to those suggested by Bays and Fouberg. First Nations have engaged in venue surfing similar to that of other more typical interest groups as described by Baumgartner and Jones (1993). They also employ both inside and outside political strategies (Walker 1991) in a sophisticated, strategic manner. With the substantial economic interest in gaming as a catalyst and because of the often unfavorable view of gaming, tribal governments are seeking access to non-Indian political institutions, such as state governments, as never before to expand and protect their interests.

We analyze the hypothesis that as the First Nations become wealthier, they will employ more calculated political tactics, similar to those of interest groups that have more longevity in the political system. For reservation governments, this is matter of survival for their people. The First Nations have three main political goals that are sought through interest group behavior: (1) to reacquire ancestral lands, (2) to maintain or increase economic gains through a favorable regulatory environment, and (3) to preserve tribal sovereignty (LaDuke 2001; Bethel-Fink 2006).² We certainly are not the first to make this argument (see Mason 2000). Our purpose is to expand the relatively small body of literature on Indigenous gaming, governance, and federalism, particularly as it concerns the sovereignty dilemma between tribal and state governments.

THE NEED FOR INDIGENOUS GAMING RESEARCH

In 1999, Steven Aufrecht published an article in the American Review of Public Administration that decried the lack of basic information about tribal governance in the U.S. public administration literature. James Ortiz (2002) did much the same with his piece in Administration & Society on tribal sovereignty. Political science has been likewise somewhat ignorant of issues pertaining to the Indigenous and their political behavior, though not nearly as much as public administration. We hope this book partially remedies this lack of scholarship.

We do not mean to say that nothing has ever been written about Indigenous politics, governance, and the American political system, only that the number of writers on these topics is relatively few compared to, say, those who write on the Congress or federal bureaucracy. Those scholars who have written recently about Indigenous politics have provided a wealth of knowledge (see Anders 1999; Deloria and Lytle 1998; Deloria and Wilkins 1999; Johnson 1999; Mason 1998; Wilkins 2003 and 2007). Unfortunately, their issues have been largely overlooked by mainstream political science and public administration journals. The literature on Indigenous gaming is also relatively sparse (see Anders 1999; Boehmke and Witmer 2004; Mason 2000). Why has this happened?

Aufrecht (1999) rightly points out the conscious Euro-American bias in traditional public administration theory going back to Woodrow Wilson. He conducted an analysis of thirty-six basic introductory public administration texts, and found that only one mentioned anything about the First Americans in the index. Sections on federalism and intergovernmental relations mentioned nothing about the Indigenous, while six of the texts mentioned the First Nations only in passing and did not include them in the index. This is not just a matter of language, because we looked for all of the terms that might be used to characterize Indigenous people, such as the historical term Indian, the politically correct and already dated moniker Native American, and legal terms including tribal governance, reservations, rancherias, tribal sovereignty, and the like.

Our own cursory survey of American government, federalism, and state and local politics texts yielded some surprising results. In a random sample of twenty-eight American government textbooks, we found mentions of Indians, Native Americans, and related issues in seventeen of them.³ Only a dozen or so had several mentions or addressed Indigenous issues in any depth, and only one discussed gambling—Janda, Berry, and Goldman (2002). Most state and local politics texts do mention Indians or Native Americans.⁴ One, Judd and Swanstrom (2002) mentions the Indian Gaming Regulatory Act (IGRA) of 1988. Of six randomly selected books on federalism, three mention Native Americans, with two containing discussions of IGRA (O’Toole 1993 and Zimmerman 1996).⁵

Publius: The Journal of Federalism has been relatively good about publishing works concerning tribal governance and gaming issues. A piece called Reinventing Federalism authored by Clinton administration officials (Galston and Tibbetts 1994) that appeared during the devolution movement made special mention of First Nations along with state and local governments as part of an effort to encourage bottom-up policy making within the U.S. federal system. Meller and Lee (1997) addressed the issue of native Hawaiian sovereignty, which seems to have picked up steam in the past decade. Publius has also published several articles on tribes and states (Mason 1998; Wilkins 1998) and Indian representation (Berman and Salant 1998), as well as an excellent analysis of the Hodenosaunee (Iroquois) Confederation’s constitution (Lutz 1998).

Political Research Quarterly, perhaps because of its orientation as the journal of the Western Political Science Association, has also been amenable to publishing works about Indigenous issues. Prindeville (2004) wrote an informative article on tribal variance in women’s political behavior among Southwestern Indian nations. Lilias Jarding’s (2004) piece on state-tribal relations and land dispute resolution deals with some of the difficulties in measuring Indigenous attitudes toward politics. Both Publius and PRQ have published articles on gaming issues, which will be discussed in a later section. However, there is still a great need for a critical mass of literature on the interest group behavior of the First Nations to give this particular topic more legitimacy.

RESERVATION GAMING

Gaming in Indian Country is one of the most interesting federalist issues of our time, yet few studies have linked political and administrative theories with current practice. Revenues from tribal gaming ventures continue to grow and outpace those of Las Vegas and its suburbs. Time will tell if the First Nations are able to use gambling to advance their developmental agendas, and if the money generated can facilitate the establishment of permanent, equitable patterns of interaction with both the state and national governments. Being enfranchised in a political system involves more than voting. It entails a high level of mobilization, collective action, efficacy, and activism to participate on an even footing with decision makers.

This analysis has more to do not with whether reservation gaming is good or bad in a normative sense, but whether current policy is effective at helping the First Nations achieve developmental goals. Nevertheless, gaming operations may not be the white buffalo that they are often portrayed as. Mike Khus, a Chumash activist from Central California, says, Like others in my own community, I have mixed feelings about Indian gaming—we have found that money is nearly as toxic to Indians as alcohol (pers. comm., January 25, 2008). Dr. Cornel Pewewardy, who is both an academic and a former tribal administrator for the Picayune Rancheria of Chukchansi Indians in Madera County, California, likewise provides a realistic assessment. He asserts that reservation gaming is mostly good for Indigenous people, provided that the profits are invested in services, such as education, health care, infrastructure, tribal administration, and the like, rather than doled out in large payouts to individuals, many of whom have no background in financial management. Legally, there should be mechanisms to prevent people from falling prey to scavengers (pers. interview, January 28, 2008).

Dr. Pewewardy also argues that tribal councils and administrators often spend a lot of time just trying to keep up with casino management, making the provision of services for tribal members a secondary or subservient role. In those instances, the proverbial cart comes before the horse, in his view. In terms of lobbying, even though neighboring reservations and rancherias might be in competition, they will band together in coalitions for their common interests. Politics then, is cross-tribal. An advantage to this, which disadvantages academics trying to study such efforts, is that it helps to hide lobbying costs from prying eyes (pers. interview, January 28, 2008).

This volume will demonstrate that the disparate peoples of Indian Country have the political will to work the American political system to their own advantage, just like any other set of organized interests. Though the current interest group system has become overtly corrupt, as evidenced by the conviction for bribery of elected officials such as Randy Duke Cunningham, the awarding of no-bid contracts to private corporations well connected to the office of the vice president, and the embezzlement scandal involving lobbyists such as Jack Abramoff, the First Nations are more likely to be the victims of such transgressions than their perpetrators. In fact, it was an administrator for the Jena Band of Choctaws in Louisiana who exposed Abramoff for the thief and con man that he is. The First Nations have simply attempted to play by the rules that currently govern the game, without turning a blind eye its moral dubiousness. Ultimately, the economic development and self-sufficiency of Indigenous peoples should be seen as a positive for both reservation interests and the American people at large, since the result will be less dependence on the U.S. federal and state governments.

GAMING LITERATURE

There are essentially two schools of thought in the literature on Indigenous gaming. The first can be characterized as the intergovernmental politics model, which focuses on issues related to sovereignty, federalism, and political behavior in this context. The second is the public policy model. This view tends to focus on social policies and economic development for tribes within states. Both models have the potential to shed light on reservation gaming politics, and they are not always in conflict, so we do not have a preference for one over the other. Instead, we welcome the diversity of perspectives on these issues, especially when they incorporate our particular notion of interest group behavior. However, the first view tends to dominate the literature.

The definitive work on reservation gambling and political strategies to date is W. Dale Mason’s Indian Gaming (2000). Mason compares two states with large populations of Indigenous people and sophisticated tribal gaming industries—New Mexico and Oklahoma—and how the tribal interests dealt with their respective state governments. Though this work is largely qualitative, it is very analytical and provides a template for others studying this subject. One of Mason’s contributions is defining the scope of the political conflict as it relates to reservation gaming, which is something that scholars such as Schattschneider (1960) and Olsen (1971) note is an important element in interest group politics. More important, however, is the notion that tribal political power has grown greater than that of local governments and is increasingly on par with states (Mason 2000, 243).

This new intergovernmental dynamic is redefining our preconceived notions about federalism in the United States. Tribal sovereignty is not the end of the story according to Mason. The politics employed at both state and national levels in efforts to protect tribal sovereignty are perhaps as vital. In particular, the interest group behavior manifested by the tribes illustrates the multifaceted nature of tribal governance and political behavior. Mason also discusses venue surfing. The case of New Mexico is particularly relevant because it shows how reservations in that state went from participating in the court systems to mobilizing for the 1994 gubernatorial campaign. Gaming revenues are a means to this end, rather than ends in themselves (Mason 2000). The political conflict over these issues is ongoing, which is why this volume is necessary. Mason describes the unique but vulnerable status of Indigenous self-determination: Tribes, though more sophisticated in their use of the political tools available to them, must nonetheless be vigilant in responding to the demands of other powerful actors in that system. Indian tribes have always been at risk when the avaricious urges of the nation desired their natural resources, whether they be land, water, minerals from the earth, or gambling (Mason 2000, 236).

The risk of losing all the gains made by Indigenous communities in recent years is a powerful motivator for them to protect what they have. The First Nations, probably more than any other group in the United States, understand firsthand what it is like to be given something, such as civil rights, only to later see it taken away. In other words, Indigenous people comprehend redistributive politics more than many might give them credit for.

McCulloch (1994), like Mason (1998 and 2000), takes the intergovernmental view of gaming issues when it comes to tribal-state relations. She maintains that states have lost power at the expense of tribal governments, and that the federal government has had to play a mediating role in the ensuing conflict. David E. Wilkins (1998) argues that devolution has unnecessarily complicated the relations between states and reservations and that the federal government should reclaim its role as the lone constitutional authority to deal with indigenous nations (Wilkins 1998, 55). This would certainly simplify things, and it is technically the most constitutional argument, but it is not likely to happen in the current political environment.

As an alternative to the predominating federalist view, Boehmke and Witmer (2004) compare competing models of policy diffusion in an attempt to understand state political behavior related to gaming operations. They contrast ideas of social learning and economic competition to see which is the better indicator of state cooperation with reservations involving the establishment of gaming compacts and casino operations. While both hypotheses provided positive explanations, the social learning measures were better than the economic variables. For instance, as the authors point out in the conclusion, there was no direct measure of economic benefits to the states from tribal-state compacts (2004, 47–48).

Steven Light (2004) attempts to integrate both the intergovernmental and public policy views in an effort to use the Indian gaming issue as a teaching case for public administration students. This demonstrates that these views are not necessarily at odds with each other. His article provides basic information about IGRA and the three classes of gambling permitted under the law, as well as a brief history of the evolution of tribal sovereignty in the United States. He also explains the misperceptions and stereotypes that white Americans have about Indigenous casino operations, such as the notion that all casino Indians are wealthy, like the Mashantucket Pequots. Light blames such disinformation on the news media, which often provide only a shallow perspective on Indigenous issues (2004). The case studies selected for this volume are intended to help break this pattern of disinformation and stereotyping, hopefully replacing the prevailing postmodern images with real information and