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According to the 1990 U.S. Census, almost
two million people identified themselves as American Indian. Of
these, 30.9 percent lived in poverty - that is, they earned $12,674
a year for a family of four. Additionally, their life expectancy
rate was 47 years of age compared to the Euro-American average of
78; unemployment rates were often ten times the national average;
and Indian Country had higher than the national average rates of
teen suicides, alcoholism, and spousal abuse. In
the hopes that they could generate new revenues and provide steady
and well-paid employment for tribal members, several tribal governments
began experimenting with bingo games that offered large prizes.
Indeed, after decades of poverty and high unemployment on often
geographically remote reservations, Indian people began to see
gaming as an integral part of tribal economies and a means to
exercise tribal sovereignty. In other words, Indian Nations increasingly
have seen gambling as just one more arena in which they should
be free to manage their own affairs, unimpeded by either state
or federal oversight.
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Indian gaming is not new to either Indian people
or to Euro-Americans. Indeed, gaming has played a role for hundreds
of years in traditional tribal ceremonies and celebrations. As
such, Indians were involved in various gambling operating long
before Europeans came to America. Likewise, gaming has been a
part of United States history from the colonial era through today.
Lotteries were critical to funding the Revolutionary War and the
colonization of America, and even helped fund the beginning of
Harvard and Princeton Universities.
Casinos became part of the American gambling
landscape in 1931 when Nevada became the first state to authorize
such gaming. In 1977, New Jersey followed suit in Atlantic City,
and by 1998, the California Legislative Analyst's Office reported
that if Indian casinos were counted, a total of 27 states allowed
casino-style gambling.
Today, gambling is allowed in 48 states and takes
many forms - casinos, lotteries, pari-mutuel wagering on horse
and dog races, card games, bingo, and charitable fund-raising.
((Pari-mutuel betting occurs when all wagers go into a common
prize pool, and management receives a specific "take-out"
that is subtracted from the pool.)
After the recent introduction of modern gaming
in Indian Country, an ongoing and contentious public debate evolved
and continues into the 21st Century. The debate originated in
the late 1970s when the Seminole Nation paid close attention to
a trend within several state governments -establishing gambling
lotteries to bring in badly-needed new revenues. Following the
lead of such states, the Seminoles opened a bingo parlor. When
Florida threatened to close the Seminole operation because it
violated state law by offering high prizes, the Seminole sued
in federal courts.
Thereafter, two distinct court cases - one in
Florida and the other in California - shaped the future for Indian
gaming: Seminole Tribe vs. Butterworth (1979) and California vs.
Cabazon Band (1987). In both cases, the courts ruled as follows:
• If state law criminally prohibits a form
of gambling, then the tribes within the state may not engage in
that activity.
• If state law merely regulates a particular form of gambling,
then the tribes within the state may engage in that gaming free
of state control.
The Indians' had the right to conduct gaming
operations on their own land, as long as gaming such as bingo
or "Las Vegas" nights were not criminally prohibited
by the state.
Although both cases clearly held that Indians
had the right to conduct gaming operating on their reservations,
they also ruled that tribal gaming had to comply with the criminal
and gaming laws of each state.
Consequently by the turn of the 21st Century,
the Bureau of Indian Affairs (BIA) reported that 212 Indian tribes
in 24 states operated 267 Indian gaming casinos, 60 of which were
located in California. Although in 1999, Indian gaming represented
less than 10 percent, or $9.6 billion profit, of all gambling
within the United States, it was the fastest growing area in the
entire gaming industry.
Clearly, gaming on American Indian reservations has become big
business. Not surprisingly, the original debate about tribal gaming
has also acquired a new direction - the question of which types
of gaming will and will not be allowed in Indian Country
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The Cabazon and Morongo Bands of Mission
Indians in California were involved in a dispute with the State
of California and Riverside County over the profitability and legality
of their lucrative Indian bingo and card games business. The tribes
believed that they had a right to administer their gaming operations
as sovereign entities, independent of state and municipal restrictions
that effectively prohibited their activities.
California and Riverside County sought to stop Cabazon and Morongo
from conducting high-stakes bingo and card games by arguing that
Public Law 280 gave the State of California the right to enforce
Penal Code 326.5 which only allows the games if operated by a charitable
organization who cannot be paid for their services and requires
that all profits be held in "special accounts and used only
for charitable purposes." (California v. Cabazon Band of Mission
Indians et al., 480 U.S. 202,107 S. Ct 1083). The County of Riverside,
in addition, sought to impose their County Ordinances 558 and 331,
which prohibited draw poker and other card games.
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On December 9, 1986, the California v. Cabazon
Band of Mission Indians et al. argued in the Supreme Court on appeal
from the United States Court of Appeals from the Ninth Circuit.
On February 25, 1987, the Supreme Court made it's ruling. The logic
of Cabazon revolved on the question of whether California's laws
regarding bingo operations were civil or criminal law. The United
States Supreme Court decided that California's law regarding bingo
were in fact, not criminal, but civil/regulatory, because California
did not prohibit all bingo operations.
In addition, the Supreme Court pointed to California's many other
state sanctioned forms of gaming such as the state lottery and held
that the tribes were free to conduct their games free from the state
and county restrictions.
The Cabazon decision is important because it implies that any state
permitting gambling is powerless to prevent tribes from conducting
the same business. The Court decided that California and Riverside
County could not enforce their anti-gambling laws on the Indian
reservations involved in the case. While the federal government
had given California the right to enforce criminal prohibitory laws
on Indian reservations within the State when it passed Public Law
280, the State and County anti-gambling laws were not criminally
prohibitory.
However, while the Court held that California and Riverside County
could not ban bingo and card games, it should be noted that the
decision does not say that such games are beyond regulation by other
entities. In fact, the Court said, "the Federal Government
has the authority to forbid Indian gambling enterprises." There
also seems to be little doubt that the tribal government could ban
such games from their own reservations if they so desired.
Prior to the approval of Proposition 5 and the subsequent Proposition
1A, the California State Constitution and various other state laws
limited the types of legal gambling in California. The State Constitution
specifically: • Authorized the
California State Lottery, but prohibited any other lottery.
• Allowed horse racing and wagering on the results of races.
• Allowed bingo for charitable purposes (regulated by cities
and counties).
• Prohibited Nevada- and New Jersey-type casinos.
Other State laws allowed gambling in card
rooms. Card games (such as poker) could be played only if the
card room did not have a stake in outcome of the game. State law
specifically prohibited many games (such as twenty-one), and it
also prohibited the operation of any slot machine or other gambling
device
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Passage of the IGRA did not mark the end of
disputes or controversy between the state and the tribes. In California
the governor and the tribes attempted to negotiate gaming contracts
as prescribed by state and federal law. At the heart of the issue
was the tribes' desire to continue to offer slot machine gambling
in their casinos, even though it was outlawed by the California
Constitution at the time. Although Governor
Wilson negotiated a compact with the Pala Band of Mission Indians
in San Diego County on March 6, 1998, which was to be a model
compact for the other tribes, the strict limit it placed on the
type and number of lottery-style machines was anathema to California
gaming tribes. In record time and with record spending, the tribes
qualified Proposition 5 for the November 1998 ballot, taking the
issue of Indian gaming to California voters.
In November 1998 California voters passed Proposition
5, the "Tribal Government Gaming and Economic Self-Sufficiency
Act of 1998," a statutory initiative, which required the
governor to approve any tribal casino proposal. It placed no limits
on the number of casinos statewide or the number of gambling machines
and tables each casino could operate. It lowered the gambling
age to 18, and allowed the tribes to continue using the video
slot machines that the state and federal governments had deemed
illegal. Under terms of the initiative, tribal casinos would be
self-regulated, governed by a tribal-appointed gaming board.
There would be no direct state or local involvement
in casino operations. The initiative set up a fund designed to
reimburse local governments for their costs associated with casino
operations. It also allocated two percent of casino net profits
to non-gaming tribes.
The campaign to qualify and pass Proposition
5 was the most expensive in history at the time--$90 million in
total spending. In addition to money spent to qualify and pass
the initiative, California Indians spent another $5 million backing
political candidates including Governor Gray Davis, Attorney General
Bill Lockyer, and Assemblyman Tony Cardenas (D-San Fernando),
who became chair of the Assembly Budget Committee. Despite the
fiscal investment the California Supreme Court struck down Proposition
5 on August 24, 1999. The Court said that the proposition violated
the 1984 state Lottery Act, an initiative constitutional amendment
that banned casino-style gambling in California.
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