Indian Gambling in Ohio: What are the Odds?

AuthorBlake A. Watson
PositionProfessor of Law, University of Dayton School of Law

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I Introduction

In 1991, as an attorney in the Department of Justice, I helped write a brief urging the United States Supreme Court to decline to consider the State of Connecticut's legal arguments raised in opposition to the plans of the Mashantucket Pequot Tribe to construct and operate a casino.1 At that time, I had never heard of this tribe, and I would wager (no pun intended) that few people outside of Connecticut were aware that-just eight years earlier-the Mashantucket Pequots had obtained federal recognition as a tribe by an Act of Congress.2

The Pequots' Foxwoods Resort Casino opened its doors in 1992, and today is one of the largest casinos in the world, with over 5,800 slot machines, a spacious high-stakes bingo hall, and more than 300 gaming tables.3 According to one estimate, the tribal casino's gross revenue was approximately $1.3 billion in 1999.4 Since 1988, Indian gambling revenues in general have grown from $171 million to over $12 billion perPage 238 year.5 According to a report by Merrill Lynch, American Indian casinos will take in thirty-six percent of national gaming revenue in 2003, a figure that is expected to rise to forty percent by 2006.6

Not all tribes, however, have benefited. According to a December 2002 Time Magazine article, Indian casinos in five states with almost half the Native American population (Montana, Nevada, North Dakota, Oklahoma, and South Dakota) account for less than three percent of all gaming proceeds, while casinos in California, Connecticut, and Florida- states with only three percent of the Indian population-receive forty-four percent of all revenue, an average of $100,000 per Indian.7 The National Indian Gaming Association states on its website that 201 of the 562 federally-recognized Indian tribes are engaged in some form of gambling in twenty-nine states.8 Ohio is among the minority of states that currentlyPage 239 do not have tribal gambling.

Is that about to change? Are tribal casinos coming to Ohio? Because of secrecy and uncertainty, it is difficult to separate rumor from reality, but it does appear that Ohio is being increasingly viewed as a market for Indian gaming. Several years ago, the Wyandotte, Seneca, and Ottawa Indians explored opening casinos in northern Ohio.9 More recently, reports have circulated about an undisclosed tribe wanting to open a casino in Clermont County (east of Cincinnati), and Shawnee Indians have discussed locating gaming and entertainment facilities near Botkins in Shelby County, Urbana in Champaign County, and Waynesville in Warren County.10 The unidentified Shawnee tribe proposing to build a $550 million gaming center near Botkins (about fifty miles north of Dayton, Ohio) is apparently one of the three Shawnee tribes (Eastern Shawnee, Absentee Shawnee, and Loyal Shawnee) located in Oklahoma.

Despite these recent developments, tribal gaming in Ohio is not a "sure bet" for several reasons. First, the controlling federal law-the Indian Gaming Regulatory Act (IGRA) of 198811-requires that such gaming must be conducted on "Indian lands," which includes lands within an Indian reservation and any lands held in trust by the United States for the benefit of a tribe or individual Indian.12 At present, there is no federally-recognized Indian tribe located in Ohio, and there are no Indian reservations or Indian "trust" lands to be found in the state. Interested Indian groups and tribes-as well as their financial backers-hope to change these facts.

What are the odds that Ohio will join the growing list of states wherePage 240 Indian gaming is conducted pursuant to the Indian Gaming Regulatory Act? The answer requires both legal analysis and political guesswork. Under the IGRA, it is possible that a group of Indians situated in Ohio may become a federally-recognized tribe, receive a land base as a reservation, and operate gaming thereon. It is also possible that a federally-recognized tribe located in a state other than Ohio may acquire lands in Ohio and operate a gaming establishment on such lands.

This Article explores the options available under the IGRA to Indian groups and tribes seeking to establish gambling establishments in Ohio. Part II of the Article begins by looking at gambling in Ohio in general, and Part III summarizes recent proposals for Indian gaming in the state. The origins and basic provisions of the IGRA are set forth in Part IV of the Article. The most pertinent portion of the statute, section 20, is the subject of Part V. Section 20 of the IGRA generally prohibits tribal gaming on land acquired in trust after October 17, 1988 (the statute's effective date), but provides several exemptions to the prohibition.13 In view of these exemptions, it appears that there are three possible ways under the IGRA that tribal gambling could come to Ohio.14 First, if a group of Indians in Ohio were to become federally recognized, the tribe could conduct gaming on lands that were taken into trust as part of the tribe's initial reservation.15A second option is for a currently-recognized tribe to conduct gambling on lands in Ohio that are taken into trust as part of a settlement of a land claim.16 A third possibility is for an out-of-state tribe (such as one of the Shawnee tribes in Oklahoma) to petition the Department of the Interior to place land located in Ohio in trust for the tribe.17 However, the statute and implementing regulations limit the Secretary's discretion to grant such requests and-most critically-if the tribe proposes to use the acquired lands for gaming purposes, the Governor of Ohio must affirmatively agree to the proposal.18

If Indian gaming is allowed in Ohio pursuant to the IGRA, important questions remain regarding the types of gambling that will be permitted. Part VI of this Article addresses this issue, focusing in particular on the possibility of negotiating tribal-state compacts that require the tribes to share gaming revenues with the state.

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II Gambling in Ohio: A Quick History

Gambling in Ohio is constrained by the Ohio Constitution,19 regulated by state statutes,20 and subject to federal law.21 In Mills-Jennings of Ohio, Inc. v. Department of Liquor Control,22 Justice Douglas of the Ohio Supreme Court aptly summarized state efforts to regulate gambling:

The effort to control gambling in this state is a never-ending fight. Historically in Ohio the gambling instinct was considered as an evil in and of itself. As early as the year 1790, by a law passed by the Governor and Judges of the Northwest Territory at Vincennes, it was provided that 'any species of gaming, play or pastime whatsoever' whereby money may be won or lost was prohibited. Likewise the use of billiard tables 'or other gaming tables, or any other machine' for gambling was prohibited. Effective October 1, 1795, it was provided thatPage 242 tavern keepers or inn holders were prohibited from permitting 'cards, dice, billiards, or any instrument of gaming to be made use of' on the premises operated by them as such tavern or inn.

The first Constitution of Ohio, adopted in 1802, made no direct reference to lottery or gambling. In 1805, the General Assembly passed an Act making various forms of gambling illegal. In 1807, it was made an offense to conduct a lottery 'without a special act of the legislature.' From 1807 to 1828 the General Assembly passed a number of Acts providing for the raising of money, by way of lottery, to make public improvements. In 1830, the General Assembly prohibited the further use of lotteries or schemes of chance for any purpose and this prohibition was carried over into the Constitution adopted in 1851. Section 6, Article XV of the Constitution of 1851 provided that 'lotteries, and the sale of lottery tickets, for any purpose whatever shall forever be prohibited in this State.' It is interesting to note that when the people of the state adopted the Constitution of 1851, nothing therein was said of gaming or gambling as such, or in the Amendments to that Constitution later adopted. The prohibition of the Constitution was against lotteries and the sale of lottery tickets only. As we have seen, the adverse attitude of the General Assembly toward the use of gambling machines or devices was so pronounced, and their use so adverse to the policy of the state, that it apparently was thought unnecessary to write any prohibition thereof into the Constitution. It was only because the legislatures had seen fit to employ the scheme of a lottery for public and private purposes that the people considered it necessary to prohibit lotteries in the Constitution. This is clearly demonstrated by the enactment of Ohio's first anti-gambling provisions, on February 14, 1807, under the title, 'an act, for the prevention of certain immoral practices.' Every '. . . species, kind or way of gambling at hazard or chance, under any pretense whatever, for money or any other article of value, and betting thereon,' were prohibited. Thus, at the time of the Constitutional Convention of 1851, all gambling, whether games or schemes of chance, was illegal in Ohio.23

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