Do historical land connections add further complexity to 'off reservation' tribal gaming proposals?
Gaming has helped to transform the fortunes of many Native American tribes in the US, but should casino developments be restricted to lands that have an aboriginal or historical connection?
For Native American communities that have historically suffered lower employment, earnings and poorer healthcare than the national average, gaming has been an economic lifeline. Under the 1988 Indian Gaming Regulatory Act, tribes are able to organise gaming activities on their tribal lands and negotiate compacts with the state legislature regarding conditions, regulations and limitations. Although some argue that IGRA infringes tribes’ sovereignty, it has nonetheless enabled them to improve basic services for their members, such as healthcare, housing and education, through the development of gaming businesses. The debate over states’ rights versus tribal sovereignty remains as thorny as ever, particularly in states that do not wish to have any form of gaming but are required, under IGRA, to negotiate tribal compacts. This, they say, is an infringement of their sovereign rights.
The responsibility for taking land into trust for the specific purpose of operating gaming facilities is therefore taken out of the hands of the state and given to the Department of the Interior. It is not, however, a straightforward process of simply applying to build a casino in the most desirable location in the state. A recent case in New Mexico involving the Pueblo of Jemez tribe highlighted both the draw of casino gaming and the importance of historical and cultural ties to tribal land.
The Pueblo of Jemez tribe is one of 19 pueblos in New Mexico and does not presently conduct Class III casino gaming. In 2004, it submitted an application to have around 70 acres of land in trust for gaming purposes at Anthony in Doña Ana County, close to the border with Texas. IGRA includes an ‘off reservation’ exception, and it was under this clause that the tribe hoped to be granted land 293 miles away from its existing reservation. This was rejected in 2008.
Having had its initial application to build a 103,500sq.ft casino turned down, the tribe revised its proposals and resubmitted them to the Department of the Interior. Last month, Assistant Secretary of the Interior for Indian Affairs, Larry Echo Hawk, once again turned down its request.
Unlike its own reservation, developing land nearly 300 miles away called into question the tribe’s ability to govern its new estate. This is a central requirement of IGRA, which stipulates that tribes must be able to exercise “governmental power” over lands in order for them to be considered Indian lands eligible for gaming. Despite efforts by the Pueblo of Jemez to address these concerns by establishing intergovernmental agreements with local jurisdictions near Anthony, this failed to satisfy the stringent federal requirements.
The decision was a landmark moment in a number of ways, not least because it indirectly referenced the need for tribes to have some form of connection to their proposed lands. The Interior’s decision was welcomed by the Fort Sill Chiricahua Warm Springs Apache tribe, which argued that the Pueblo of Jemez “lacked any ability to claim any jurisdiction” over the lands it wished to build the casino on. What’s more, the parcel of land is located within the former legally defined homelands and Indian title lands of the Fort Sill Apaches - a tribe that has long expressed its desire to return to its homelands.
“We are greatly relieved that the Interior Department has put an end to a plan that would have been a very bad precedent," said Fort Sill Apache chairman Jeff Houser. "Our ties to southern New Mexico run deep and the very idea that a tribe from hundreds of miles away might buy land in our back yard, put it into trust status and then put up a casino was shocking to us."
The Fort Sill Apache supports the Pueblo of Jemez in its efforts to capitalise upon gaming opportunities but only on its current reservation or its defined aboriginal territory. To have allowed the development at Anthony would have set a precedent, it said, of allowing tribes to undertake projects in another tribe’s aboriginal homeland.
With the Indian gaming industry worth over $26bn, it is unsurprising that tribes which have struggled economically are seeking to redress the balance and gain a share of the market themselves. As more tribes seek to establish land for developing gaming operations, the issues of governmental control and aboriginal ties will no doubt continue to be points of contention.
