Tribal sovereignty and the battle for Oklahoma

Tribal sovereignty and the battle for Oklahoma

  • Ken Adams, CDC Gaming Reports
May 22, 2022 3:58 PM
  • Ken Adams, CDC Gaming Reports

In 1987, the United States Supreme Court ruled in favor of the Cabazon Band of Mission Indians in litigation against the state of California. In simple terms, California said the Cabazon and Morongo Bands could not operate bingo games on tribal land, as commercial bingo was not legal in California. The court disagreed.

Since the 1970s, tribes in Arizona, California, Florida, New York, and Wisconsin had been turning to bingo to generate revenue. Each of those states objected and took some action and the tribes went to court, but not state court. Federal law governs activities on Native reservations and trust land. Trust land is the result of treaties dating to the formation of the country. When a tribe signed a treaty with the federal government, it gave up its independence, but not its sovereignty. In federal law, an Indian tribe is a dependent sovereign, its land held in trust by the federal government. The land cannot be sold or transferred to a private individual; it is held in trust for the tribe as a sovereign unit.

The Supreme Court’s ruling in the Cabazon case led to the passage of the Indian Gaming Regulatory Act (IGRA). In Cabazon, the court ruled that because California did not forbid all forms of gambling as a criminal act, but allowed and regulated a state lottery, a tribe could operate a bingo game without permission. However, IGRA was intended to limit the ability of tribes to offer gaming without the host state having some input and control. Without a federal law, states argued, Las Vegas-like Indian casinos would spread across the land like wildfire.

IGRA worked to give the states a role in tribal gaming. Before opening a casino, a tribe must sign a treaty, called a “compact,” which dictated the terms and conditions under which casino gaming could be conducted. In the nearly 35 years since IGRA was passed, more than 500 Indian casinos have opened across the United States, earning an estimated $50 billion in revenue in 2021. From a tribal perspective, IGRA has been a tremendous success. From the point of view of the states, the reviews are mixed.

When Arnold Schwarzenegger was governor of California, he thought the tribes were not paying their fair share. In fact, “It is time for them to pay their fair share” was a campaign slogan during his campaign to replace Gray Davis. That fair-share idea had a second life in Oklahoma with Governor Kevin Stitt. When Stitt was elected in 2018, he began his term in office by declaring war against the state’s tribes. The tribal-state compacts were due to expire and Stitt, like Schwarzenegger, wanted 25 percent of tribal revenue. Without a larger share, Stitt was not willing to sign new agreements, an impasse that would force the tribal casinos to close. The 33 Indian tribes in Oklahoma operate approximately 143 casinos. They contended that Stitt need not sign anything; the compacts would renew automatically.

The two sides went to court and the tribes won. But that did not end the animosity or the war. Indeed, in 2020, the Supreme Court ruled in McGirt v. Oklahoma that half of the land in the state belonged the tribes. The ruling meant Oklahoma had no jurisdiction over crimes committed on tribal land, which were subject to federal and tribal jurisdiction, not the state’s. Stitt is still squealing, trying to find a way around the ruling and to impose his will on tribal land.

The existing federal laws and Supreme Court rulings create an interesting possibility in Oklahoma and for all tribes. If the Supreme Court overturns Roe v. Wade as leaked documents suggest it will, abortion will be added to issues belonging to the state. The decision would in fact say that abortion is not a right guaranteed by the Constitution and protected from state laws. Each state will be free to control abortion in the way it deems appropriate. In anticipation of the ruling, Oklahoma has already passed a law prohibiting abortion within the state.

That law will create a question: Are tribal lands within Oklahoma subject to or exempt from Oklahoma’s abortion law? That is not a question an amateur and non-attorney can even begin to answer, nor even any legal expert. It will be decided through adjudication. However, given the ongoing war between Stitt and the tribes, we can predict that at least one tribe will see an economic opportunity in the ambiguous situation. If that happens, it is certain that Oklahoma will take action, sending in the National Guard or a state law-enforcement agency. At that point, a standoff will ensue. It has happened before. Tribes in Arizona resisted both state and federal attempts to close their casinos. A famous incident took place in Arizona where the Fort McDowell Yavapai Nation sought to stop the feds from closing its casino by blockading the casino.

The Fort McDowell standoff was an issue of tribal sovereignty. The tribe desperately needed the revenue from the casino. The majority of tribal members were unemployed and living without running water or electricity. However, more important than the revenue was sovereignty. The right to govern themselves was a key that allowed them to retain their culture and identity.

Victor Rocha, a member of the Pechanga Tribe and publisher of Pechanga.net, had this to say about the incident. “The lesson that Fort McDowell taught Indian Country is that you don’t accept it. You fight. Its fight for its sovereign rights is a lesson that resonates. Even when they come to your home and they kick in the door and take out your stuff, the fight has just started. It was an incredible event and a touchstone for tribal sovereignty.”

Victor’s language is tribal language. It is not the language spoken by state officials. Even though many governors have argued that abortion is not federally protected and should be left to the states to decide, they struggle with that concept for tribes. There is a high probability that Governor Stitt and the tribes of Oklahoma will soon be facing off over yet another issue. Ringside tickets will go on sale soon.