Modern Indian gaming was born when tribal governments refused to follow state laws in the 70s and 80s. There is no reason to think modern Indian Internet gaming will arrive any differently. If Indian Country hopes to remain at the forefront of gaming, it will have to have a role in Internet gaming this year. And that role will not be given to tribes; it must be taken. Had the Cabazon and Morongo Tribes waited for Congress to give tribes the unobstructed right to game, there’s a real chance that the 422-casino, $26 billion dollar industry would have never materialized. See California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Indian gaming exists because tribal governments opened gaming facilities and dealt with the consequences afterward. Tribes took what was rightfully theirs. Had they simply asked for recognition of their gaming rights from states or Congress, they would never have received them. Like anything worthwhile, it took a fight.
Call it breaking state laws (which we know have never applied to tribal governments), or exercising tribal sovereignty, the result was the same. When tribes took what was theirs, Congress, and the states reacted. IGRA was born, and the rest, though fraught with intergovernmental dispute, is history. There is no reason to think that tribes can enter the Internet gaming market any differently. Indeed, according to Professor Robert O. Porter, “Tribal disobedience,” the “process by which Indigenous people engage in ‘disobedient’ actions against the colonizing government in order to protect and defend their inherent and treaty-recognized rights,” is absolutely necessary to ensure the survival of tribal sovereignty.
Certainly, it’s naïve to think that Indian Country will get a seat at the table simply by asking for one. First, states will never treat tribal governments with the requisite respect for such a seat to mean anything. And the federal government doesn’t do anything it doesn’t have to do. Second, the Internet gaming table isn’t even set. We know it’s coming, but we don’t know how. We think it will be federally regulated, by Commerce or Treasury, but as of now we don’t know whether the NIGC will be consulted before it comes, let alone have any role in regulating it. None of the bills before Congress contemplate the NIGC having any role, even though gaming on Indian lands is subject to IGRA.
On Friday, the Department of Justice made public for the first time its new opinion that interstate Internet lotteries do not violate the Wire Act. And that, probably not coincidentally, was right after Nevada regulators on Thursday paved the way for intra-Nevada online poker. Whatever its form, nationally regulated Internet gaming will change gaming permanently and unrecognizably, and it is thus crucial that tribes get involved now. Regulated online gaming will do for gaming what email did to college. Or business. It’s hard to fathom what Internet gaming will mean. But put simply: it will change everything.
State-sanctioned handheld lotto is just the beginning. Your Monday night football picks, with your season winnings to date, might appear automatically on Facebook, with your online poker or blackjack daily or lifetime winnings appearing in your profile. People will still play in casinos. But there’s a real chance that brick-and-mortar casino numbers will pale in comparison to the daily drop we will see among 20-somethings on their iPhones. New markets flocking to regulated online gaming will be born overnight. And players who frequent tribal casinos may still do so. But new players may never set foot in one, choosing instead to play regulated online slots on their bus rides, roulette while waiting for movies to start, or, as was common at one law school in 2006, online poker during Contracts class.
The regulated online gaming burst may coincide with the bust of tribal exclusivity. Pressure from non-tribal gaming is growing, coupled with hemorrhaging state and local budgets. And there’s simply too much at stake for non-tribal casinos to pack up and go away. Two Oregon businessmen are at it for the fourth time outside of Portland. And the old saw about leveling the playing field comes up about every two years in Washington State. Eventually something will stick.
What’s the answer for Indian Country? In addition to pursuing non-gaming economic development, tribal governments accustomed to steady growth at their brick and mortar casinos have to appreciate what gaming will look like in 2015, 2020, and beyond. Some tribes have already stuck a toe in the water, launching free poker sites and laying the infrastructure for pay poker. It may not be the first tribe who submits an ordinance that includes Internet poker to the NIGC that blows open Internet gaming. But if tribes begin doing so, the NIGC will have to act, and Congress will respond. And if tribes can offer gaming online without triggering IGRA or NIGC/DOJ involvement, Congress will react. It will take an event like Seminole v. Butterworth, or California v. Cabazon, or maybe even some missteps like the Bay Mills off-reservation casino. But when the gaming pundits and lawyers suggest asking for a “seat at the table,” recall that tribal governmental gaming has never been given anything. If tribes are to have a seat at the Internet gaming table, they must take it.
Anthony Broadman is a partner with Galanda Broadman PLLC in Seattle, and focuses his practice on issues critical to Indian Country. He can be reached at anthony@galandabroadman.com or 206.321.2672.
