In January, Churchill Downs filed a lawsuit challenging a law in Maine allowing tribes to operate internet gaming. In the complaint, Churchill Downs via its subsidiary, Oxford Casino Hotel, argues that the legislation violates equal-protection provisions within both the U.S. and Maine constitutions. Churchill Downs says it is being shut out of a market in which it would otherwise seek to operate, asserting that the state has effectively created what it calls a “race-based monopoly.”
Ah, the race card. It seems like a stretch. But it does bring to mind a 300-year-old argument: What are those Indians anyway? When European explorers and settlers first arrived on the American continent, it was occupied. From the northern to southern tips and from the eastern to western shores, people lived here — groups of people, nations united by language, culture, and economy, but one very different from the other.
To the Europeans, the natives were uncivilized, heathens, an inferior race. Well, not all Europeans. Rousseau, Voltaire, de Tocqueville, Montesquieu, and Engles saw instead sophisticated, rational, and very civilized humans. As the conquest continued, relationships between the tribes and settlers became more complicated. They occupied the same space and had to dance. But they were, and have remained to this day, strangers.
The newly formed union of the 13 colonies developed policies toward the tribes through treaties, in which the United States related to the tribes as sovereign nations. In American jurisprudence, a treaty has the force of law. Thus, the hundreds of treaties the federal government executed, if ratified, became law and formed the basis of federal Indian law.
Over the last 250 years, Congress has passed other laws governing the relationship between the two entities. For example, the Act for the Preservation of Peace with the Indian Tribes, Trade and Intercourse Acts, the General Allotment Act, Indian Reorganization Act, the Termination Acts, and Indian Gaming Regulatory Act are all examples of federal legislation and they each illustrate a changing attitude toward tribes and Indian people. Numerous Supreme Court decisions have also added to the body of federal Indian law.
If a court decision had a broad enough implication, Congress frequently took up the issue to define and limit the interpretation. Such was the case with Indian gaming. In California v. Cabazon Band of Mission Indians, the court ruled that the state of California could forbid an activity, but if not explicitly forbidden, the state could not regulate the activity on an Indian reservation. The activity in question was gambling. The Cabazon Band operated bingo and card games. The result meant that California could not restrict Indian gambling operations. With that ruling, tribes nationwide could begin operating high-stakes bingo and even slot machines. California panicked, as did other states, rushing to Congress and demanding relief.
The states did get relief, but not exactly what they had hoped for. The states had hoped for total control. Instead, Congress mandated a negotiated treaty, a compact between a state and a tribe. In states where gambling was not forbidden, the Act required the states to negotiate in good faith. That was t38 years ago. Today, over 500 Indian casinos generate $40 billion a year in gross gaming revenue, but not in Maine.
While federally recognized, the tribes in Maine, due to the Maine Indian Claims Settlement Act of 1980, fall under state regulation. That kept them out of the casino business until last year, when Maine passed a law permitting igaming in the state to benefit the tribes. That is what Churchill Downs is contesting. The outcome of the litigation could have national implications and that worries other tribes. Any attack on sovereignty or the status of tribes is threatening to the 571 recognized tribes in the country.
The National Indian Gaming Association meets annually to discuss issues relevant to gaming tribes. This year, the conversations were dominated by futures markets and their threat to Indian gaming. Futures are a threat on two levels. First, whatever bets are placed in the futures market are not placed in other books, including tribal operations. Secondly, the futures process skirts the regulatory framework that protects and secures a place for legalized operations, again including tribal sportsbooks. In general, a threat to one tribe is a threat to all tribes and that includes the prediction markets and the lawsuit in Maine.
Although federal Indian law is as old as the country, the status of the tribes is not fixed. In the 1880s, the Dawes Act sought to take land away from the tribes and convert it into a “fee simple” status, like all commercial real estate. Tribes lost millions of acres of land as a result, creating checkerboard reservations. Land is essential to tribal status; tribes are recognized by the federal government as a “sovereignty” entity with land held in trust by the government for the tribe. Until 1880, the tribal reservation seemed to be fixed and permanent. In the 1950s, numerous tribes had their status terminated; it meant that for practical and governing purposes, the tribe ceased to exist.
That is why the tribes are so protective of their status. Even though tribal sovereignty has been recognized and protected for 250 years, it can always be overturned by the Supreme Court or Congress. It has happened before. Churchill Downs wishes to change the definitions and make the case one of race, not of nation. That undermines the concept of sovereignty and would disrupt the entire body of law and the status, culture, and identity of native Americans. Tribes have good reasons to be vigilant. In the past, treaty breaking has often been a congressional sport.
