Influencce of the Unique Native American Tribal Sovereignty to The Indian Gambling

The reasons for opposition are varied, but a common theme among many opposed to Indian gambling is a concern that gambling may undermine the “cultural integrity” of Indian communities. 10

For the majority of tribes with gambling facilities, the revenues have been modest yet nevertheless useful. However, not all gambling tribes benefit equally. The 20 largest Indian gambling facilities account for 50.5 percent of total revenues, with the next 85 accounting for 41.2 percent. 11 Additionally, not all gambling facilities are successful. Some tribes operate their casinos at a loss and a few have even been forced to close money-losing facilities.

Under the U. S. Constitution and subsequent U. S. law and treaties with Indian nations, Native Americans enjoy a unique form of sovereignty. Chief Justice John Marshall, who was instrumental in defining the constitutional status of Indians, described the legal relationship between the federal government and the tribes as “unlike that of any other two people in existence.” 12 Two centuries of often contradictory federal court decisions and Congressional legislation have ensured that the definition and boundaries of tribal sovereignty remain in flux. Differing perspectives on the nature and extent of that sovereignty¾in particular, the relationship of Indian tribes to the state governments in which they reside¾lie at the heart of the many disputes about Indian gambling.

The authority for tribal governmental gambling lies in the sweep of U. S. history and the U. S. Constitution. The Commerce Clause of the U. S. Constitution recognizes Native American tribes as separate nations. The Supreme Court so held in the early years of the Nation’s history. In Cherokee Nation v. Georgia 13 —the Court held that an Indian tribe is a “distinct political society… capable of managing its own affairs and governing itself.” A year later in Worcester v. Georgia, 14 —Chief Justice Marshall, writing for the Court, held that Indian tribes are distinct, independent political communities “having territorial boundaries, within which their authority [of self-government] is exclusive… By entering into treaties, the Court held, Indian tribes did not “surrender [their] independence— [their] right to self-government…” 15

These principles of federal law have been repeatedly reaffirmed by the Supreme Court. Thus, it is broadly understood that “[ t] he sovereignty retained by tribes includes ‘the power of regulating their internal and social relations.” 16 —and that this authority includes the “power to make their own substantive law in internal matters… and to enforce that law in their own forums.” 17 And under settled law these rights include the right to engage in economic activity on the reservation, 18 through means that specifically include the right to conduct gambling on reservation lands. 19

As a result of these principles, state law generally does not apply to Indians on the reservation. Thus, in Worcester, the Court held that the law of the state of Georgia (which is one of the original 13 states) has no force within the boundaries of the Cherokee Nation. “The

10 Anders, supra note 1 at 104. 11 Letter from Penny Coleman, Deputy General Counsel, NIGC to Donna Schwartz, Research Coordinator, Advisory Commission on Intergovernmental Relations, dated December 4, 1998. 12 Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) I (1831). 13 Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1, 16 (1831). 14 Worcester v. Georgia, 31 U. S. (6 Pet.) 515, 557 (1832). 15 Ibid. at 561. 16 New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 332 (1983) (quoting United States v. Kagama, 118 U. S. 375, 381-382 (1886). 17 Santa Clara Pueblo v. Martinez, 436 U. S. 49, 55 (1978) (citations omitted). 18 New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 335-36 (1983) and Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 137 (1981). 19 California v. Cabazon Band of Indians, 480 U. S. 202, 207 (1987).