Abstract
Despite centuries of genocidal assimilation and forced removal, Indigenous communities in the United States have persevered and even thrived. A key driver of economic success for many tribes is gambling. While states objected, perhaps out of greed, the Supreme Court held that, as sovereign governments, gaming operations on tribal land were largely beyond the reach of state governments and law enforcement. The Supreme Court’s Cabazon decision furthered a congressional push to develop a negotiated solution to recognize Indigenous communities’ rights as sovereigns while balancing states’ desire to limit the volume of gambling taking place within their borders. The Indian Gaming Regulatory Act was the congressionally agreed upon balance. While the statute undoubtedly stripped tribal sovereignty, few statutes have developed an economic framework so powerful for lifting up hundreds of communities. The legacy of the Indian Gaming Regulatory Act is an industry that has $40 billion in annual revenue and has developed an expertise that is sought around the world.
Now, the tribal gaming industry faces extinction. While commercial operators have spent the last two decades preparing for the move from brick-and-mortar to online gaming, tribal gaming is hamstrung by the Indian Gaming Regulatory Act’s requirement that all gaming take place on “Indian lands.” Federally recognized gaming tribes now face a choice between access and sovereignty. Some tribes around the country have chosen access, often giving up some sovereignty protected by the Indian Gaming Regulatory Act. Other tribes have placed sovereignty above market access and chosen to sit out online gambling while commercial operators move into the market. The choice now facing many tribes is one that they never should have been forced to make.
This Article argues that, while Congress’s inaction and failure to modernize the Indian Gaming Regulatory Act has put Native American communities around the country at significant risk, it is not too late to implement changes to modernize the Act. This Article posits that, with a stroke of the pen, Congress could permit communities on Indian land to compact for online gaming under the Act and ease the process by which tribes acquire land that can be used for gaming operations. Congress also has the power to amend the statute to incentivize state cooperation with tribal nations to negotiate gaming compacts, a key tool within the statute that was struck down in 1996. Congressional inaction raises the prospect of a bleak future for the economic security of many tribes, but unlike some of the looming crises facing the United States, there is still time to rectify the situation before dire consequences spread.
Recommended Citation
John T. Holden,
Access or Sovereignty,
74
Emory L. J.
919
(2025).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol74/iss4/2