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“Fundamental Principles of Indian Policy Should Guide Our Response to Emerging Trends”

Indian Gaming Magazine - Back to Basics By: Jonodev O. Chaudhuri

I am extraordinarily honored to serve as Ambassador of the Muscogee (Creek) Nation (MCN) and Chair the Indian Law and Policy practice of the national law firm of Quarles & Brady. These separate but complementary roles allow me to remain immersed in Indian law and policy and advocate from different vantage points. As I now wear two hats, it is always important for me to be clear about what hat I am wearing when speaking or writing. Today, I write as a private advocate of Indian law and policy. Any statements I make should not be attributed to MCN. 

Over the coming months, I look forward to sharing my thoughts and suggestions with Indian Gaming magazine on a variety of emerging issues in Indian gaming. As former Chairman of the National Indian Gaming Commission, and now as a private advocate of Indian law and policy, I have the opportunity to speak freely and openly with regards to some of the trends I see emerging in Indian gaming. Among them are: 

  • Sports betting – opportunities and risks
  • Compact issues – what to do when a state operates in bad faith
  • Sovereign immunity and risk management
  • Exclusivity fees – reminding states that they cannot tax Indian gaming
  • Breaches of exclusivity guarantees
  • Adherence to the constitutional and pre-constitutional underpinnings of Indian law and Indian gaming when considering legislative changes to gaming laws
  • Gamesmanship – going after bad actors in a manner that supports tribal sovereignty
  • Ensuring that Indian Country benefits from the technological changes on the horizon

It is easy to get into the weeds when discussing these legal and policy issues, as they are interwoven with an industry that is technologically based and textured by a patchwork of various, unique tribal-state relationships. But when facing these legal and policy issues, I have advocated and will continue to advocate that policy-makers and courts adhere to the basic principles that formed the foundation of the Indian Gaming Regulatory Act (IGRA). 

First, tribes are the owners and primary regulators of their operations, and, but for the allowances provided for in IGRA, states would have no role in the operation and regulation of Indian gaming. Although IGRA creates an avenue for states to enter into compacts with tribes if and when they engage in what the Act defines as Class III gaming, that avenue does not provide states with a carte blanche authority to act in bad faith and refuse to negotiate with a tribe seeking to game on tribal lands. IGRA created a balance between sovereign interests, and within that balance, tribes’ inherent authority to game and regulate their own operations must be upheld. 

Second, IGRA’s primary purpose is to uphold tribal self determination and economic development. Thus, if courts refuse to uphold or apply the doctrine of tribal sovereign immunity when a lawsuit is brought against a tribal government engaged in gaming, we – as advocates – cannot simply hold up our hands and declare that decision to be unfortunate. Instead, with IGRA as our backdrop, we must continue to demand that courts apply and follow IGRA’s most basic precepts, and ultimately, turn to Congress for a legislative solution if necessary. 

Third, and finally, as technology continues to develop, and new gaming platforms emerge, it is my hope that Indian Country receive as much benefit from them as possible, including as much ownership interest in these new technologies as possible. At the same time, tribes should undertake a serious and thorough analysis of any new trend before incorporating it directly into their operations. 

For instance, most of the discussions of “sports betting” typically concern how to deliver sports betting across jurisdictional lines, often through mobile or online platforms. As we know, how gaming is delivered constitutes a separate question from what type of gaming is being delivered. Avoiding conflation of the legal issues raised by sports betting and the legal issues raised by online or mobile gaming is the first step in making an informed business decision about entering the sports betting fray. 

As tribes consider entering into the sports betting arena, tribes must fully analyze both the upsides and the costs associated with acquiring the expertise necessary to implement sports betting, and furthermore, tribes must ensure that they have considered all legal requirements that govern sports betting operations. Each tribe must consider its unique market, and for some tribes, the costs associated with implementing sports betting will likely not outweigh the benefits. This is not to say it will not be a moneymaker for some; it no doubt will be in certain cases. But it definitely will not be for all, and tribes should proceed with careful consideration. 

As I weigh in on these topics in my new role, I hope to put these emerging issues and trends in the proper context of the statutory and case law that governs Indian gaming. Stay tuned!