High-ranking members of several major tribal gaming bodies cautioned the gaming industry Wednesday that significant hurdles remain on the path to legalized sports gambling.
During a panel discussion at the Sports Betting USA conference in New York, Debbie Thundercloud, chief of staff of the National Indian Gaming Association, said any sports betting discussion needs to recognize tribal compacts with states.
Thundercloud appeared on a panel that was moderated by Victor Rocha, the publisher of Pechanga.net and president of Victor Strategies. The panel also featured Mark Macarro, chairman of California’s Pechanga Band of Luiseno Indians; and Jonodev Chaudhuri, chairman of the National Indian Gaming Commission.
Following a brief overview of the factors that led to the establishment of the National Indian Gaming Act of 1988, the panel shifted to a consideration of the issues that accompany any potential amendment or repeal of the contentious Professional and Amateur Sports Protection Act (PASPA) of 1992. A challenge to PASPA by New Jersey will be heard by the U.S. Supreme Court on December 4.
Paramount among the concerns stated by the panel was the notion of tribal sovereignty and autonomy. Thundercloud was particularly vocal about the issue, saying “we want the sports betting discussion to recognize our existing compacts with states, to recognize exclusivity clauses, (to make sure that tribes have) access to the customers that are going to be available for sports betting, and to make sure that there’s an economic benefit to the tribes.”
Maccaro cited the failure of iPoker.com as one example of tribal impact, expressing a belief that one of the elements that had caused the venture not to succeed was that there was no “expressed willingness to include tribes at every level of discussion.”
He mentioned the commerce clause of the U.S. Constitution to underscore the weight of the relationship between sovereign tribes and the U.S. government, calling it a “vaunted principle” and clarifying that it is the equivalent of the government’s relations with foreign lands or “the several states.”
Chaudhuri said that the power of Congress to relate Indian affairs – the plenary power – predates the establishment of the United States itself.
Further examples of the granular complexity of the issue emerged when Chaudhuri introduced the various work-arounds that states have historically entered with tribes in order to obtain some revenue from tribal gaming, which states are forbidden to tax.
These work-arounds include exclusivity clauses, wherein a state will guarantee a tribe’s right to a piece of the state’s gaming market by refusing to approve any gaming establishment that might act as competition to that tribe’s operation. These are “binding agreements,” Chaudhuri said, which those states thinking about the potential for legal sports betting “have to agree to.”
Any legalization of sports betting will necessitate a new amendment or restructuring of the Indian Gaming Regulatory Act, a fact that Maccaro introduced as particularly problematic since the Act has never been amended since its ratification.
“Once it’s open, it’s open,” Maccaro said, alluding to tribal concerns about the matter.
Maccaro added that tribes expect sports betting to be classified Class III, a category of gaming that requires a compact between tribes and states. Furthermore, the tribes are not evenly scattered among the states, and some states – Alabama and Florida were cited explicitly – refuse to negotiate with the tribes at all. Minnesota, for example, has a unique agreement that forbids the possibility of tribal compact amendment into perpetuity.
Maccaro said there is “no uniform way” of dealing with these issues. He speculated what measures Congress might take following the Court’s decision, mentioning the fact that 2018 is a midterm election year, the chances of a Democratic wave, and the potential for a contentious issue such as gaming to be shut down in the face of midterm elections.
“It would be our hope that the Supreme Court would strike the entire PASPA law down,” Thundercloud said.
