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21st Century Tribal Sovereignty: Betting on the Future of Gambling

Among people unfamiliar with American Indian law, which is almost everyone, few have given consideration to the concept of tribal sovereignty.  For the vast majority of Americans, tribes and the question of their legal status, like the often desperate conditions of poverty existing on most Indian reservations, have been out of sight and out of mind.  Those few who have encountered the idea that native tribes in North America are sovereign nations are likely to have done so in the context of tribal gaming.

Thanks to a United States Supreme Court decision reaffirming the sovereign status of tribes, and holding that among the sovereign powers of tribes is the operation of gambling enterprises without regard for the laws of the state within which the tribal lands are located, tribe sponsored gaming has proliferated across the United States.  Gaming has dramatically lifted the economic circumstances of many tribes and, along with state sponsored lotteries, transformed American attitudes about gambling.  What was once said by the United States Supreme Court to be “injurious to the public morals”[1] and was confined to the deserts of Nevada and a few floating casinos is now commonplace across the country, and is thought by many to be the salvation of tribal prosperity and dignity.  All of this was made possible by the Supreme Court’s decision in California v. Cabazon Band of Mission Indians.[2]

Other Supreme Court decisions interpreting the equal protection clause of the 14th Amendment surely confirm that it would be unconstitutional for one racial or ethnic group to have immunity from state laws applying to the population in general.  If, in the name of economic development, African or Hispanic American communities sought exemption from state laws prohibiting or regulating gaming, it would be forbidden by the equal protection clause – even if a state affirmatively sought to grant an exemption (which was not the case in Cabazon).  The difference is that tribes are sovereign and other ethnic and racial communities are not.[3]

Even among those familiar with the concept of tribal sovereignty, few would conclude that tribes are sovereign in the same sense that the United States, Canada, Mexico or even tiny Lichtenstein are.  Or if asked whether tribal sovereignty is like state sovereignty within the American federal system, few would think there is any comparison.  If told that there are 565 tribes in the United States plus 225 native entities in Alaska, most people would be even more convinced that tribal sovereignty must be something different.  Perhaps they would understand it as an expression of respect for the historic legacy of North America’s native peoples and a compensatory gesture for the many wrongs done over four centuries of European settlement.

But the language of tribal sovereignty is not different from that of national sovereignty.  Since the founding of the United States, tribes have been described as nations, even those, like the Cabazon Band of Mission Indians which numbered a mere 25 members at the time of the litigation.  Not only has the legal language been that of law of nations, but many present day disputes are resolved in the context of centuries old treaties.

All of this is the subject of The Supreme Court and Tribal Gaming,[4] by Ralph A. Rossum, an account of the history and impacts of the Cabazon case in the context of acknowledged tribal sovereignty.  While much of the book is focused on the case itself, Rossum provides a necessary introduction to the origins and development of tribal sovereignty, to the so-called Marshall trilogy of cases that initially defined the legal relationship between tribes and the federal government, and to the wildly shifting policies emanating from Congress over the last two centuries.  In the course of laying this foundation, Rossum acknowledges a modern effort to define tribal sovereignty in cultural rather than strictly legal terms, but wisely confines his discussion to the legal issues raised in Cabazon.

It all started with a City of Indio police raid on the Cabazon Band’s card club on October 18, 1980.  The Cabazon Band General Council had previously enacted an ordinance authorizing the club.  The Indio City Code prohibited the games that were being played.  The initial question was whether the land on which the card club was located was properly within the City of Indio’s jurisdiction, but quickly it came around to whether the Cabazon Band had authority to authorize gambling in the face of Indio City and California state regulations to the contrary.  California claimed exclusive jurisdiction in the absence of federal preemption.  The Cabazon Band claimed that as a sovereign nation it has authority to regulate gaming.

After several years of litigation and a ruling in the Cabazon Band’s favor at the 9th Circuit Court of Appeals,[5] the case arrived at the United States Supreme Court.  On February 25, 1987, the Court affirmed the 9th Circuit holding, with three dissenting votes.  Writing for the majority, Justice Byron White said that the Court had consistently recognized that tribes retain “attributes of sovereignty over both their members and their territory”, and that “tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.”[6]  Thus, in the absence of federal regulation or prohibition of tribal gaming, or of Congressional authorization of state regulation, tribes have sovereign authority to do as they choose.

Rossum provides an objective description of the facts and legal arguments in the case.  One suspects that he is on the side of the Cabazon Band in particular and tribes in general, but he avoids moralizing about historic mistreatment and dwelling on past discrimination against Native Americans.  Rossum does describe the largely positive impact of gaming revenues on the affected tribes, though he does not claim that the Cabazon decision guaranteed that widespread tribal gaming would follow in its wake.  In fact he underscores that the decision left tribal gaming at the complete discretion of Congress and he debunks the argument that the subsequent enactment of the Indian Gaming Regulatory Act “took away from the tribes what Cabazon had given them”[7] (or more accurately affirmed in them).

Rossum does not lose sight of the issue at hand, which is the relative authority of tribal and state governments.  That question, of course, is not new in the context of gaming.  In 1953 Congress enacted Public Law 280 mandating five states (California, Nebraska, Minnesota, Oregon and Wisconsin) to enforce their criminal laws and exercise civil jurisdiction on reservation lands within their territories.  The law authorized other states to assume criminal and civil jurisdiction at their discretion and without tribal consent.  The 1968 Indian Civil Rights Act amended Public Law 280 to require tribal consent in the non-mandatory states while also making the U.S. Constitution’s Bill of Rights applicable to tribal governments as it is to state governments.[8]  Just a few years before the Cabazon case, the 5th Circuit Court of Appeals held that state jurisdiction under Public Law 280 is limited to criminal/prohibitory laws and not civil/regulatory laws,[9] a distinction drawn upon in Justice White’s majority opinion and discussed at length by Rossum.

Rossum also emphasizes the Supreme Court’s reaffirming of long established canons of construction applicable to Indian law.  In Rossum’s words, “[t]he canons . . . require that treaties, treaty substitutes, statutes, and executive orders. . . be liberally construed in favor of the Indians, that all ambiguities . . . be resolved in their favor, and that tribal property rights and sovereignty . . . be preserved unless Congress’s intent to the contrary is clear and unambiguous.”[10]  Thus, not only do tribes have the trump of sovereignty over the states in which they are located, but they get the benefit of the doubt in the interpretation of all legal agreements affecting them.

The implications for the states are not insignificant.  Growing tribal autonomy over public and private affairs on tribal lands gives states with multiple reservations the appearance of jurisdictional Swiss cheese.  The challenge for states is made even greater by the existence of hundreds of tribes and bands, most with very small populations and without any realistic capacity to perform the burdens of sovereignty.  But as Rossum points out,[11] many states have learned to live with the revenue that comes their way pursuant to compacts with the tribes under the provisions of the Indian Gaming Regulatory Act.[12]

While having sovereign entities within sovereign entities and over 800 sovereign entities in the geographic territory of the United States poses fascinating political and practical challenges, those questions are not Rossum’s concern.  He is focused on the legal history of tribal sovereignty and the law of the Cabazon case.

With that as his mission, Rossum has written a useful and informative book.  His account of Congress’ on again off again approach to tribal independence will inform readers with a general interest in American Indian history.  His description of the Marshall trilogy and subsequent case law is sufficiently detailed to be of interest to lawyers without prior exposure to federal Indian law.

Sometimes it is difficult to know his intended audience.  He provides a social scientist’s precise accounting of the Public Law 280 cases[13] and of cases following on the Cabazon decision,[14] but it is an odd accounting that appears to record as separate cases multiple rulings in the same case.  Perhaps if you have gone to the trouble to count the cases it is hard to resist reporting the results.  Like a civil procedure professor he lists in painful detail the filings in particular cases using the formal names for each.[15]  Like a Latin teacher he makes a point of distinguishing amici curiae (multiple parties) from amicus curiae (a single party) briefs filed in Cabazon.[16]  He describes the five totally unrelated cases decided on the same day as Cabazon.[17]

But these are minor oddities in an otherwise well written and thoroughly researched book that will appeal to a diverse audience.  Perhaps in a future effort Rossum will let us know what he thinks about the long term viability of “sovereign tribes” in a global society and economy, but for this effort he should be commended for providing a clear and interesting explanation of how we got to where we are.


[1] Champion v. Ames,  188 U.S. 321, 357 (1903)

[2] 480 U.S. 202 (1987)

[3] An interesting challenge for another day is explaining the difference, in terms of present day justice, between having your lands conquered by invading armies and being forcefully transported from your native lands to foreign shores.

[4] Ralph A. Rossum, THE SUPREME COURT AND TRIBAL GAMING: CALIFORNIA V. CABAZON BAND OF MISSION INDIANS, University Press of Kansas (2011).

[5] Cabazon Band of Mission Indians v. California, 783 F.2d 900 (9th Cir. 1986)

[6] 480 U.S. at 207

[7] Rossum at 151.

[8] Pub.L. 90-284, 82 Stat. 73 (1968)

[9] Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (5th Cir. 1981)

[10] At 51

[11] At 163-182

[12] Pub.L. 100-497, 25 U.S.C. § 2701 et seq. (1988)

[13] At 74

[14] At 148

[15] e.g at 145

[16] At 105

[17] At 134

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on October 22, 2017 at 07:37:13 am

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