The need for compromise: introducing Indian gaming and commercial casinos to Massachusetts.

• Author: Flanagan, Caitlin E.

"In rejecting the compromised nature of the federal legal doctrine of tribal sovereignty and reaching a new compromise among sovereigns, state, tribal, and federal political actors may craft fair and effective Indian gaming law and policy. A compromise reached by sovereign governments need not compromise either the interests of non-Indians or the future of Native Americans." (1)

1. INTRODUCTION

   Casino gambling is a contentious issue between American Indian tribes seeking sustainable economic development and states attempting to increase revenue while controlling a controversial industry. (2) In 1988, Congress enacted the Indian Gaming Regulatory Act of 1988 (IGRA) to preserve tribal business while affording states a measure of control in an effort to balance tribal sovereignty with state interests. (3) Despite Congress's effort, state and tribal interests continue to conflict as states threaten the IGRA's effectiveness and tribes find ways to establish gaming independently from the states. (4) A prime example of this interplay between states and tribes is unfolding in Massachusetts where the Commonwealth and two Indian tribes seek to establish gaming on their own terms. (5)

   Central to the dynamic between tribes and federal government is the sovereign status of Indian tribes. (6) Tribal sovereignty stems from the existence of tribes as independent nations long before the creation of the United States. (7) Under tribal sovereignty, tribes have an "inherent right of self-determination" that includes the right to self-govern. (8) This sovereign right to self-determination, however, is not absolute. (9) Accordingly, a tribe's "distinct legal status" as a sovereign nation is crucial to understanding the Indian gaming phenomenon. (10)

   Both the United States Supreme Court decision in California v. Cabazon Band of Mission Indians (11) and the IGRA illustrate the importance of tribal sovereignty in shaping Indian gaming law and Congress's ability to restrict tribal rights. (12) Initially, tribes began experimenting with gaming as a way to raise revenue. (13) In Cabazon, the Court considered whether California could force two federally recognized tribes operating bingo games to comply with state bingo regulations. (14) Somewhat surprisingly, the Court ruled against the application of state law on tribal land as a means to curb crime anticipated as a result of unregulated gambling. (15) The decision led Congress to pass the IGRA, rein in the potentially unchecked expansion of unregulated gambling, and uphold "tribal self-sufficiency and economic development." (16) Through the IGRA, Congress attempted to promote these two goals by fashioning a compromise between competing tribal and state interests. (17)

   In the wake of the IGRA, Indian gaming has expanded exponentially due to its ability to jumpstart economic development on reservations and its potential for immense financial success. (18) In Massachusetts, because casino gambling is currently illegal, no Indian tribes operate gaming facilities. (19) Before the federal government legally recognized the Mashpee Wampanoag, a Massachusetts tribe, the tribe expressed interest in pursuing casino gaming. (20) Upon receiving federal recognition, the Mashpee quickly negotiated an intergovernmental agreement with the Town of Middleborough to build a destination-resort casino. (21) Another Massachusetts tribe, the Aquinnah Wampanoag, have also actively pursued their own gaming facility. (22)

   Per the IGRA's requirements, Massachusetts must legalize casino gaming before any tribe can open a casino through the federal process. (23) Massachusetts Governor Deval Patrick supports casino gaming in the Commonwealth and has proposed legislation to place three commercial casino licenses up for bid. (24) Patrick's proposed legislation reserves at least one of the licensed casinos for a tribe. (25) As a result, casino gambling and Indian gaming may come to Massachusetts; however, it is unclear whether the Mashpee or the Aquinnah will bid on a state license or, alternatively, continue with the federal application process. (26) Ultimately, the Massachusetts legislature must consider whether to legalize casino-style gaming in the form of tribal casinos or commercial casinos, while remaining cognizant that a federally recognized tribe may establish any gaming operation permitted under Massachusetts law. (27)

   Part II of this Note will examine the legal relationship between the federal government and American Indians in the historical context of Indian gaming. (28) Further, this Note will recount Massachusetts's gaming history, culminating in the recent state and tribal efforts to establish casino gaming. (29) In light of developments in other states, Part III will anticipate the different forms that Indian gaming and commercial gaming may take in Massachusetts. (30) Finally, this Note will assess the goals of the IGRA as they pertain to Massachusetts's potential gaming developments and also predict which scenario represents the most effective compromise between the tribes and Commonwealth. (31)

2. HISTORY

   1. Federal Indian Law

      The special legal status of American Indians is a fundamental aspect of Indian law's history. (32) As federal law considers Indian tribes to be separate and sovereign nations, the legal relationship between tribes and the United States involves international legal principles such as treaties. (33) When federal Indian law was in its infancy, Chief Justice John Marshall dubbed tribes "domestic dependent nations." (34) This dichotomy between tribal sovereignty and federal control has persisted in varying degrees since 1831 when Marshall introduced the concept. (35) Therefore, consistent with their special legal status, tribes have sovereign rights, yet are also subject to federal law and oversight. (36)

      1. Tribal Sovereignty

         American Indian tribal sovereignty is considered inherent because independence and self-governance have naturally characterized tribal existence since time immemorial. (37) Sovereignty means that where federal law is silent, tribes can exercise "exclusive power over their members and their territory." (38) Although the U.S. Constitution confers the federal government considerable power over tribes, it also acknowledges the tribes' separate status by virtue of historical independence. (39)

         Over the last few hundred years, however, colonization, westward expansion, and varying political agendas have altered and at times threatened American Indian tribal existence both physically and legally. (40) In the first half of the nineteenth century, even as federal authority over tribes increased, the tribes' right to self-governance remained intact through the Supreme Court's application of international legal principles. (41) The Court viewed the tribes' capacity to enter into the treaties as affirmations of the tribal governments' authority. (42)

         The tribes' natural possession of sovereignty and the right of self-government also accounts for the specific efforts to ensure their perpetuation. (43) Nonetheless, these rights are not absolute. (44) While the Court has used principles of international law to preserve tribal self-government, the same principles also belie the trust doctrine, which supports the federal government's control over tribes. (45)

      2. Trust Relationship

         Although tribes are entitled to sovereign status, the federal government enjoys "paramount authority." (46) The trust relationship between the federal government and Indian tribes comprises the "cornerstone of Indian law." (47) The necessary corollary of this relationship is diminished state authority over Indian affairs. (48)

         Despite the absence of a definition for the trust doctrine, the consensus is that the doctrine, at a minimum, obligates the federal government to protect tribes and their assets. (49) While the trust doctrine's origins are disputed, the Supreme Court largely influenced the doctrine's development through the Marshall Trilogy. (50) As part of this jurisprudence, Chief Justice Marshall analogized the relationship of tribes and the United States as that of a "ward to his guardian." (51) Over the years, the federal courts have used the doctrine to both expand and limit federal power over tribes. (52) Today, the trust doctrine remains "a basic principle" often invoked in federal Indian legislation. (53)

   2. Indian Gaming Law

      1. Indian Gaming Pre-Cabazon

         The federal government's current position has been one of "self-determination." (54) The "self-determination" policy urges tribes to formulate economic development strategies amidst an environment of high poverty rates, social problems, and few sustainable business options. (55) Indian gaming shifted from its historical American Indian traditions, as tribes began to expand gaming as a response to both the federal "self-determination" policy and a resultant need to create "viable strategies for reservation economic development." (56)

         In the late 1970s and early 1980s, tribes in Florida and California introduced high-stakes bingo operations on reservations. (57) Tribes beset by poverty favored high-stakes bingo because bingo involves low start-up costs, minimal environmental impact, and significant revenue potential. (58) In operating these bingo halls, however, tribes usually defied state gaming regulations. (59) Tribes often assumed that federal Indian law prevented state regulation and that, therefore, the state gambling regulations were inapplicable to their bingo operations. (60)

         Florida and California, however, claimed Congress granted them authority to regulate tribal gaming and sought to penalize Indian bingo operations that violated state law. (61) In two significant cases, the federal circuit courts ruled against state assertions of regulatory power over Indian bingo operations. (62) Consequently, more tribes began to view gaming as a feasible economic strategy. (63) Despite the federal courts' rulings, states...