TITLE: Support for Ensuring Tribal Nations are the Primary Beneficiaries of Tribal Government Gaming and that Governments Comply with the Indian Gaming Regulatory Act
WHEREAS, we, the members of the National Congress of American Indians of the United States, in the pursuit of maintaining the harmony established by the Power of Creation and in order to preserve for ourselves and our descendants the inherent sovereign rights of our nations, rights acknowledged and unacknowledged in treaties and agreements with the United States, and all other rights and benefits to which are secured under the laws and Constitution of the United States, articles of the UN Declaration of the Rights of Indigenous Peoples and established International Law, to enlighten the public toward a better understanding of Native people, to preserve Native cultural values, and otherwise promote the health, safety, welfare and prosperity of Native people, do hereby establish and submit the following resolution; and
WHEREAS, the National Congress of American Indians (NCAI) was established in 1944 and is the oldest and largest national organization of American Indian and Alaska Native tribal governments; and
WHEREAS, Indian nations are sovereigns that pre-date the United States, with prior, inherent and treaty protected rights to self-government and to our Indian lands; and
WHEREAS, the Constitution of the United States, through the Treaty, Commerce, and Apportionment Clauses and the 14th Amendment, recognizes the sovereign status of Indian nations established prior to the United States; and
WHEREAS, the United States Supreme Court affirmed in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) that absent legitimate federal or state criminal prohibitions on certain activities, Indian nations possess the sovereign authority to conduct gaming activities on tribal lands without interference from states in preservation of their tribal self-government and economic development interests; and
WHEREAS, the Indian Gaming Regulatory Act (the “IGRA”) was enacted one year after the Cabazon case to provide a statutory basis for the operation and regulation of gaming for the promotion of tribal economic development, tribal self-sufficiency, and strong tribal governments and for the protection of such gaming as a means of generating tribal revenue; and
WHEREAS, Indian nations have successfully leveraged gaming revenues to strengthen their communities, preserve their customs and traditions, develop thriving economies, and build strong government infrastructures; and
WHEREAS, one of Congress’ principal goals in enacting IGRA was to ensure that Indian nations remained the primary beneficiaries of such gaming activities; and
WHEREAS, under the IGRA, state governments and tribal governments were required to enter into compacts when conducting Class III gaming; and
WHEREAS, the IGRA prohibits states from imposing any tax, fee, charge or assessment on a tribal government for gaming, except for an assessment to defray the costs of regulating tribal gaming; and
WHEREAS, tribal governments are not required to share any portion of their revenues generated from tribal government gaming, and in instances where they do, tribal governments must receive something of comparable value; and
WHEREAS, the Department of the Interior has established a two-part test for evaluating compact revenue-sharing agreements to ensure that they do not amount to an impermissible tax in violation of IGRA: in return for payments, a state must offer to a tribal government (1) significant and meaningful concessions that result in (2) substantial and quantifiable economic benefits to the tribal government; and
WHEREAS, exclusivity for tribal gaming has generally been the only type of substantial economic benefit that state governments can provide to tribal governments to justify revenue share. However, under the quantifiable economic benefits test, such exclusivity is devalued when other forms of gaming occur within state boundaries or near the exclusivity zones of tribal government gaming, such as is the case in New York where the state permits significant gaming within the exclusivity zone and existing race horsing venues and recently authorized commercial casino gaming in close proximity to the Seneca Nation’s exclusivity zone; and
WHEREAS, the quantifiable economic value of exclusivity offered by a State may be diminished by competitive gaming available in surrounding States, Countries, and other jurisdictions who have gaming; and
WHEREAS, regardless of whether a tribal government shares a portion of its gaming revenue with a state, tribal government gaming provides significant economic benefits to the local non-tribal communities through the investment of billions of dollars into local infrastructure and economic development activities, contributions to local non-profits and community organizations, the creation of thousands of jobs, and the purchase of goods from local vendors.
NOW THEREFORE BE IT RESOLVED, that the National Congress of American Indians (NCAI) fully supports tribal government gaming; and
BE IT FURTHER RESOLVED, NCAI supports the voluntary contributions and benefits from tribal gaming to the local non-tribal communities; and
BE IT FURTHER RESOLVED, that while IGRA does not require or even mention Tribal Government assistance to local non-tribal communities, NCAI encourages actions by Tribal Governments that support such communities, regardless of whether there is an on-going state/tribal revenue sharing agreement in place; and
BE IT FURTHER RESOLVED, when disagreements arise within the term of revenue sharing from tribal government gaming, NCAI encourages the State and local governments to meaningfully engage with the Tribal Governments and collaboratively develop mutually beneficial solutions for continuing relationships into the future, and to ensure that any solutions respect Tribal nations as full partners and understand that tribal gaming must primarily benefit tribal nations, but tribal governments see value in also helping the progress of the local non-tribal communities; and
BE IT FURTHER RESOLVED, that NCAI would deem any refusal by a State to renew or negotiate a gaming compact because of an absence or end of a revenue sharing agreement, a violation of the intent and spirit of IGRA; and
BE IT FURTHER RESOLVED, that NCAI encourages tribal governments to seek technical assistance from the Department of the Interior when questions arise about the legitimacy of revenue sharing payments pursuant to the IGRA, and that the Department of the Interior provide such technical assistance; and
BE IT FINALLY RESOLVED, that this resolution shall be the policy of NCAI until it is withdrawn or modified by subsequent resolution.
The foregoing resolution was adopted by the General Assembly at the 2017 Midyear Session of the National Congress of American Indians, held at the Mohegan Sun Convention Center, June 12 to June 15, 2017, with a quorum present.