By Daniel Cobb, Ph.D., The University of North Carolina, Chapel Hill
Tribal nations have survived through more than 500 years of colonial encounters. In fact, they have not settled for survival alone. Since the late 1970s, they have inaugurated an era of recovery and revitalization—one that has tested the limits of individual rights and tribal sovereignty. Let’s take a look at some critical sites of contemporary struggle.
Gaming and Economic Development
One of the most important but misunderstood elements of the Native renaissance is gaming.
Gaming has been the single most successful means of promoting economic development in reservation communities since it took off in the late 1980s. Reservations were dependent on a transfer economy, meaning they relied on funds coming from the federal government or other public assistance programs, rather than generating revenue from private or tribal-owned enterprises.
The Florida Seminole brought gaming to the fore when they opened a high-stakes bingo operation on their Hollywood Reservation between Fort Lauderdale and Miami in 1979. By the mid-1980s, 120 other tribes had followed suit.
Learn more about the commonly held views of Native Americans.
Regulating Tribal Gaming
State governments reacted defensively. Florida and California, for instance, insisted on the right of states to regulate tribal gaming, and their actions sent the matter to the Supreme Court. Thus, the Indian Gaming Regulatory Act was passed. The Indian Gaming Regulatory Act of 1988 defines three classes of gaming.
Class I includes traditional social and ceremonial games that were to be regulated, if at all, exclusively by tribal governments. Other games of chance—such as bingo and cards and high-stakes gambling, as in casinos—constitute what is known as Class II and Class III gaming.
The act requires tribes engaging in Class II or III gaming to adopt ordinances subject to federal approval. It also established the National Indian Gaming Commission to serve in a regulatory capacity. The legislation, then, recognized the right of tribal governments to engage in gaming on trust land as an exercise of tribal sovereignty, while simultaneously limiting it.
But the limits didn’t end with the classification system.
This is a transcript from the video series Native Peoples of North America. Watch it now, on Wondrium.
Compacts with States and Economic Growth
The Indian Gaming Regulatory Act required that tribes involved in Class III gaming enter into compacts with states. States, of course, are not allowed to tax tribes. But, by requiring compacts, which inevitably include some component of revenue sharing, the legislation basically allows for taxation by another name.
However, despite the wrangling, tribal economies experienced explosive growth. The total annual revenue generated by gaming rocketed from $5.4 billion in 1995 to $26.5 billion in 2009.
All across the United States, tribes have contributed to the employment of Indians and non-Indians, invested in the infrastructure of surrounding communities, and helped to revitalize depressed economies.
It’s important to note, too, that the Indian Gaming Regulatory Act limited the way in which tribes can use revenue generated by gaming. Some tribes issue per capita payments to individual members of the tribe, but the majority of the money goes into infrastructure, social welfare, health, housing, scholarships, and investment in other economic development opportunities.
Misperceptions about Native Gaming
Unfortunately, public misperceptions of gaming, the overemphasis on conflict between tribes and states, and the media’s tendency to portray tribes as getting rich quick mask the reality of the important work gaming revenue does within and beyond tribal communities.
It’s important to note, too, that the billions of dollars generated annually by Indian gaming do not get distributed evenly across Indian Country. Nor has the much-needed revenue alleviated the dire state of many reservation economies.
For every successful casino, there have been more that only produce modest results. And, especially in remote areas, plenty of travel casinos have failed. What’s more, some of the most profitable casinos of the past are facing declining revenues, in part due to market saturation.
Learn more about allotment and assimilation.
Right to Religious Freedom: Peyote Way
Another area of testing the limits of tribal sovereignty was the individual right to religious freedom. Peyote, a spineless cactus that has sacramental use, when ingested, some would say has hallucinogenic properties.
By the early 20th century, the peyote religion, also known as the Peyote Way, had spread all across the West. In 1918, the Native American Church incorporated, in part, to give the peyote religion protection under US law.
All the while, state and federal lawmakers attempted to pass legislation to regulate the use, possession, and transportation of peyote. This trend culminated in peyote being included in the Controlled Substances Act of 1970. The Native American Church was supposed to be exempted, but this didn’t prevent authorities from harassing Native people, and they were still subjected to prosecution.
The American Indian Religious Freedom Act
In 1978, Congress enacted the American Indian Religious Freedom Act to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise…traditional religions.”
But did AIRFA protect the sacramental use of peyote?
That question was at the heart of Oregon v. Smith, a pivotal Supreme Court case decided in 1990. In a stinging defeat for free exercise of religion, the court ruled that the State of Oregon could fire and refuse unemployment compensation to two Native men for failing a drug test due to their religious use of peyote.
Reuben Snake, a Ho-Chunk leader in the Native American Church, emerged as one of the most articulate defenders of the peyote way in the wake of Oregon v.Smith. And he proved instrumental in pushing Congress to amend AIRFA in 1994 so that it specifically protected the sacramental use of peyote.
While passage of the 1994 amendment turned out to be a victory for the free exercise of religion, it also underscored how unreliable the federal system had become—and remains—when it comes to the limits of religious freedom.
Common Questions about Gaming and Religious Freedom of Native Indians
Reservations were dependent on a transfer economy, meaning they relied on funds coming from the federal government or other public assistance programs, rather than generating revenue from private or tribal-owned enterprises.
The Indian Gaming Regulatory Act was passed in 1988.
In 1978, Congress enacted the American Indian Religious Freedom Act to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise…traditional religions.”
