by Niv Sultan
In April, another skirmish broke out in Indian Country when the Kalispel Tribe of Indians filed a federal lawsuit to stop the Spokane Tribe of Indians from building a casino. The Kalispel claim the gaming operation would draw business away from their own casino, located only two miles away from the would-be Spokane one, and thereby imperil their tribe’s continued well-being.
The latest conflict over immensely profitable gaming facilities located on tribal lands is unlikely to be the last, what with so much at stake. According to the National Indian Gaming Commission (NIGC), the Indian gaming industry brought in almost $30 billion in revenue in 2015 (the latest year for which data is available), marking a growth spurt after increasing gradually over the last decade.
No wonder tribes push back, in Washington as well as at home, when their rivals move to launch or expand gaming operations. And while there are winners and losers in just about every such conflict, one group seems to do well no matter the outcome: lobbyists. Spending on lobbying by gaming tribes hit a record high of more than $26.5 million in 2015, the same year that tribal gaming revenues experienced their highest growth in recent years. The lobbying outlays dipped a bit last year but still remained over $25 million.
Gaming proceeds aren’t distributed evenly across the board. The top 6 percent of the roughly 500 Indian gaming facilities accounted for approximately 40 percent of total gaming revenue in 2014, the latest year for which such data is available. The bottom 36 percent of gaming facilities generated $10 million or less per year.
Still, even revenue on the lower end — up to $10 million per year — can go a long way for small tribes. The 567 federally-recognized, self-governing tribal nations are largely responsible for providing services to their people, so whether gaming profits go toward healthcare, education or community programming, or issues more specific to indigenous communities, like substance abuse and the protection of cultural resources, they are helpful.
“Tribal gaming provides us vital funding for governmental programs and essential services for our citizens,” wrote Pechanga Tribal Chairman Mark Macarro in an email.
Sharing the umbrella
Few clashes between tribes over gaming have taken up more oxygen than the Gila River Indian Community‘s efforts to keep the Tohono O’odham Nation from opening a casino in Maricopa County, Ariz. — where the Gila already had several facilities.
The court battle began in 2010. Like so much litigation, it dragged out over years. But a couple of years in, the Gila began implementing a Plan B: Convince friendly members of Congress to introduce legislation to bar the Tohono O’odham’s casino. Thus the Keep the Promise Act took shape in 2013, and the tribes upped their lobbying efforts. For the Gila, lobbying outlays doubled to more than $2.5 million from 2011 to 2012, when the tribe was beginning to build support for the bill. When it didn’t pass the first year, the Gila ramped up, ultimately spending more than $3.6 million in 2014. The Tohono O’odham, too, escalated its lobbying, though it had less cash to put in play. By 2015, when another version of the bill was in the dock, it was spending more than $2.6 million to defeat it, a historic high for the tribe.
In the end, the bill failed to make it all the way through either the House or Senate. But that certainly wasn’t due to lack of firepower: Between them, the two tribes employed 60 lobbyists in 2014, including several former members of Congress.
The issue was finally resolved two weeks ago, on May 17, when the lawsuit of seven years was settled; the Tohono are now free to have a Las Vegas-style casino at their site (just one, though)..
These kinds of inter-tribal gaming conflicts, said Steven Light, co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota, are relatively new phenomena. Tribes used to cooperate “under the umbrella of sovereignty” — but when notable lawmakers, like Sen. John McCain (R-Ariz.), began to wonder whether tribal gaming was growing too rapidly and unpredictably, the politics of tribal gaming shifted.
“There’s a lot of market saturation, and as a result of those factors and the controversies over issues such as off-reservation gaming and gaming on newly-acquired lands, tribes have splintered in specific areas…and no longer have a unified political front,” Light said.
Another on-again, off-again issue among some tribes has been the Carcieri fix, which would counter the controversial 2009 Carcieri v. Salazar Supreme Court decision by restoring the ability of the Interior Department to take land into trust — a necessary precursor to gaming operations — for tribes recognized after 1934. More established tribes have opposed it, while smaller, less affluent tribes have supported it.
That kind of splintering may not have benefited Indian Country as a whole, but it has been a boon for K Street. In fact, the Gila River Indian Community partnership with Akin Gump was 2016’s top lobbying contract, worth over $2.5 million. And from 1998-2016, the Gila River Indian Community paid the firm more than $30 million — that time span’s single priciest arrangement. Akin Gump has been one of the lobbying firms of choice for indigenous communities; in 2016, it represented 10 tribal groups for a total of nearly $4.8 million in contracts. Other top lobbyists of 2016 included the Tohono O’odham Nation (almost $2.4 million) and the Pechanga Band of Luiseño Indians ($950,000).
Betting on the Hill
Inter-tribal conflicts, however, aren’t the only targets of tribal lobbying: Disputes also arise between tribal nations and the U.S. government. The Tribal Labor Sovereignty Act of 2015, a bill on which 29 Native American groups lobbied last year, was one such case. The proposed legislation sought to amend the National Labor Relations Act, which, among other functions, guarantees most private sector employees the rights of unionization, collective bargaining and collective action. But the government and its workers are exempt from the statute, so the Tribal Labor Sovereignty Act aimed to grant tribes those same exemptions — because, after all, tribal nations are governments themselves. The bill made it through the House but stalled in the Senate, and has been reintroduced in the current Congress.
And before a tribe can worry about labor regulations at its casinos — or even open a casino — it must first receive federal recognition. Most of the time, that comes from either the Interior Department’s Bureau of Indian Affairs, or from Congress. Both routes are arduous and require tribes to hire an array of lawyers and lobbyists.
“Seeking and obtaining federal acknowledgement is not easy at all, and it takes tremendous resources for the tribal group; legal, fiscal, cultural and others, and you have to prove a whole lot of things,” Light said. “That in and of itself is a major obstacle to tribal gaming.”
Candidates of choice
If ever there was a bad year for the relationship between tribes and the lobbying industry, it was 2005. That’s when the illicit activities of Jack Abramoff began coming to light; one of the disgraced lobbyist’s myriad violations was his defrauding of tribal clients in a situation that involved competing casino plans.
“It was obviously big news when it happened, and it was obviously an unfortunate situation where tribes were taken advantage of, really essentially no different from any client that is lied to and stolen from,” said James Meggesto, a partner at Holland & Knight and member of the Onondaga Nation of New York. “It boiled down to a matter of trust, and I think tribes wanted to know that they could trust the people representing them in Washington,” he added.
But if campaign contributions can serve as a gauge, tribal communities soon found someone they believed they could trust: Former President Barack Obama. Indigenous donors have long favored Democrats (1992 was the only cycle since 1990 in which the majority of their contributions went to Republicans), but in 2008 they gave Obama over $888,000, more than they’d ever given any candidate.
In the 2012 cycle, they topped their previous record, giving more than $1 million for Obama’s re-election campaign. That year, 86 percent of the contributions from tribes — a greater share than ever before — went to Democrats. The fundraising and bridge-building of Keith Harper, former ambassador to the UN Human Rights Council, a current partner with Kilpatrick Townsend and Stockton and a member of the Cherokee Nation of Oklahoma, was instrumental in rallying that support. Once in office, Obama held an annual White House Tribal Nations Conference, in which tribal leaders met with the president and members of his cabinet to discuss issues pertinent to their communities.
In 2016, presidential candidate Hillary Clinton led all federal candidates with more than $823,078 in contributions from tribes.
President Donald Trump? He received less than $14,000.
The Trump administration has sent mixed messages to tribal communities. In December 2016, Reuters reported that a group of Trump’s advisers was keen on privatizing reservations rich in oil, gas and coal — a contentious idea given the sanctity of tribal land and sovereignty. Later that month, however, Trump’s transition team organized a sort of olive-branch meeting with tribal leaders. But then the White House removed a page about Native Americans from its website, and Trump signed an executive order to resume work on the Dakota Access Pipeline, despite fierce opposition from indigenous peoples.Yet Interior Secretary Ryan Zinke recently said that the federal government will work with tribal nations “government-to-government” in seeming recognition of tribal self-governance.
Trump-the-businessman’s interactions with tribal communities, on the other hand, have been simply problematic — to put it mildly. He’s claimed that Indian reservations were controlled by the mob, accused Native Americans of faking their ancestry, referred to them as “drunken Injuns” on national radio — all while quietly trying to cut deals with some tribes to manage their casinos.
Regardless of how Trump turns out for them, however, it’s difficult to imagine indigenous communities dramatically scaling back their active participation in the political and policymaking process; their willingness to work with various administrations, lobby lawmakers and make political contributions indicates an insistence on playing a role. As for why that insistence is so resolute:
“History has demonstrated time and time again that failure to engage politically results in catastrophic policies against Native people and our inherent tribal rights,” said Pechanga Tribal Chairman Macarro.
In other words, if you’re not at the table, you’re on the menu.
Researchers Doug Weber and Dan Auble contributed to this post.