The Annual Tribal Law Conference at the KU School of Law will be held this year in conjunction with the Four Tribes in Kansas’ Native Nations Law Symposium. Day one (Feb 11th) at KU Law. Day two (Feb. 12th) at Prairie Band Casino and Resort. Agenda and on-line registration here. Among the topics are tribal economic development, gaming, tribal court jurisdiction, probate reform and ethics in tribal government. Cherokee Nation tribal citizens Stacy Leeds, Mark Dodd, and Melody McCoy are among the speakers.
Archive for the ‘Economic Development’ Category
Tribal Law Conference in conjunction with Native Nations Law Symposium, Feb 11-12th, 2010
Tuesday, January 12th, 2010Gambling with our futures?
Tuesday, July 14th, 2009
One of the first things to suffer during a recession is disposable income – activities such as gambling are among the first to go. Today, approximately 240 (43 percent) of the 562 federally recognized Indigenous nations engage in some form of gaming by operating more than 400 casinos and bingo halls throughout 28 states. Yet the Indian Gaming Regulatory Act (1988) was never meant to sustain Indigenous economies over the long haul. Most Indigenous nations operating casinos break even under the best of economic circumstances (fewer than 20% of Indigenous nations operating casinos generate about 70% of the $26.7 billion in revenues). So how have Indigenous nations with casinos fared since the economic crisis of 2008?
Based on a June 2009 press release from the National Indian Gaming Commission, Indigenous gaming revenues in 2008 totaled $26.7 billion, which was an increase of 2.3 percent from the prior year. In comparison, general commercial and racetrack casino sectors (excluding Indigenous gaming) experienced a 3.4 percent decline in gaming revenues in 2008, generating a total of $36.2 billion. These statistics can be misleading, however, as the global economic downturn has negatively impacted Indigenous casino profits in several regions. For example, the Foxwoods Resort and Casino operated by the Mashantucket Pequot Tribal Nation and the Mohegan Sun operated by the Mohegan Tribe in Connecticut reported slot revenues of $1.6 billion in 2008, representing a drop of about 7 percent from 2007. Seneca Gaming, which operates three Class III casinos in upstate New York, reported an 8.7 percent decline in the third quarter and an almost 10 percent decline in the fourth quarter of 2008. Indigenous casinos in California, Nevada, Arizona, New Mexico, and Colorado also showed significant declines in gaming revenue towards the end of 2008.
These regional declines don’t appear to have strongly impacted Indigenous gaming in Oklahoma. Recently, the Cherokee Nation Enterprises reported a profit of $116 million in 2008, which was a $4.4 million increase (4 percent) since 2007, “but also was the lowest growth amount since 2001”. According to Kelli Bruer, public relations manager for Cherokee Nation Enterprises, “The top line slowed a little,” and “ongoing construction during the year at the West Siloam Springs casino and the recession may have slowed the numbers some”. Even so, Cherokee Nation Enterprises also increased its workforce between 2008 and 2009, going from 3,180 employees to 3,399 employees, a substantial increase from 10 years ago when there were only 511.
As with other Indigenous nations running casinos, the Cherokees have also been distributing informative brochures entitled Where the Casino Money Goes to its citizens. In 2008, for example, forty percent of the Cherokee casino profits ($174 million) went toward operating expenses, while thirty percent of the money ($131.7 million) went towards employee payrolls (most of whom of Cherokees). Another twenty-six percent ($116 million) went towards new job creation and services for Cherokee elders, youths and communities and the final four percent ($18.9 million) was earmarked for gaming compact fees with the state. As these figures and the long histories of Indigenous nations suggest, gaming was never meant to be the main engine for all Indigenous economic development – it is only one pathway that Indigenous nations choose to implement based on their self-determining authority. The question remains whether Indigenous gaming revenues have peaked and will level off or experience a steady descent, or whether the growth will continue…to what extent are we gambling with our futures?
Sources:
Adcock, Clifton. June 17, 2009. “Tribe’s Casino Revenue Up Again.” Tulsa World. Available at: http://www.tulsaworld.com/news/article.aspx?articleid=20090617_11_A9_Despit825452
“NIGC Announces 2008 Revenues”, June 3, 2009. National Indian Gaming Commission. Accessed at: http://www.nigc.gov/ReadingRoom/PressReleases/PressReleasesMain/PR113062009/tabid/918/Default.aspx
“2008 National Commercial Casino & Racino Gaming Revenue Analysis”. Accessed at: http://casinodev.com/revisedsitework/homepage/2008National.pdf
Cossey v. CNE – Sovereign Immunity Case from OK Supreme Court
Monday, January 26th, 2009There's been news reports over the last few days about a case out of the OK Supreme Court ruling that Cherokee Nation Enterprises (CN casinos) can be sued in state court by individuals who get hurt on CNE lands. It looks like a trend in the Oklahoma state courts to open the door to tort claims against tribal businesses. I blogged in 2008 about state court lawsuits against the Choctaw and Absentee-Shawnee lawsuits. Here's the court's opinion on the Cossey v. Cherokee Nation Enterprises case.
There are several disturbing statements from the Oklahoma Supreme Court in this decision.
The case involved a non-Indian who was injured at a CNE facility located on trust land. Although the individual went to the facility for gaming purposes, the OK Supreme Court held that there was no consensual relationship between the casino patron and the tribal business because the patron had not established a relationship with the tribe "through commercial dealings, contracts, leases or other arrangements." The Court noted, however, that the tribe and the state entered into a consensual relationship by virtue of the Gaming Compact, to which the individual patron was not a party.
Although the Gaming Compact contains a disclaimer that nothing in the compact shall alter "tribal, federal, and state civil adjudicatory or criminal jurisdiction," the Court stated that the Compact incorporated Oklahoma's Tort Claim Act and rather than specifying tribal or state court as the preferred forum, cases are to be filed in a "court of competent jurisdiction."
Two observations for tribes moving forward.
- This is exactly why all tribes need to pass a Tribal Tort Claims Act to deal with lawsuits against the tribal government and tribal businesses. The Choctaw case from 2008 is proof positive that a lack of tribal forum opens up the door for state intrusion. The Cherokee case is an example of what can happen when a tribe fails to provide plan for these type of lawsuits by adopting tribally specific tort claims legislation prior to entering a compact.
- Never enter into an agreement that does not specify the tribal court as the forum of choice.
Cherokee – OK Tobacco Compact Troubles
Tuesday, April 1st, 2008The full Arbitration Order from the recent Oklahoma-Cherokee Nation tobacco tax dispute is available for download in pdf here. I’ll provide comments on what this means for Oklahoma, the Cherokee Nation and private smokeshop owners later this evening. In the meantime, here’s an editorial on the issue from the Daily Oklahoman.
Updated to add: The order finds the Cherokee Nation and CN’s individual retailers in violation of the 2004 compact for selling (or allowing to be sold) the 6 cent per pack stamped cigs (as opposed to 86 cents) that should have only been sold in border areas or high traffic tribal areas. A few general comments:
- This was a bad compact from the start. Tribes should never agree to pay state taxes on sales to their own tribal citizens. Limit the compacts to the legal losses, which in cig cases, are sales to non-members where it appears the tribes are marketing a tax exemption. It is the State of Oklahoma that had the enforcement problem following round one of the tobacco wars. The state needed tribal assistance in collection efforts much more than tribes needed a revenue sharing scheme.
- Oklahoma did not act in good faith. Oklahoma knew full well that ending their sales tax, while binding the tribe to a previously compacted excise tax, would result in a windfall for non-Indian retailers and undercut the spirit of the compact.
- A solution? Manufacturer the cigs within the Cherokee Nation boundaries, create light industrial jobs in our more depressed economic areas and sell Cherokee Nation cigs, value generated on-reservation, and oustide the scope of state taxation.
- What should not happen: don’t place all the blame on the individual smokeshops. Did they screw up? Yes. Did the tribe turn a blind eye in the exercise of regulatory powers? Yes. Did the state create an unfair market that undercut the smokeshops? Yes.
Back from Break Blog Catch-Up
Saturday, March 22nd, 2008What I’ve missed this week:
1. Cherokee citizen Dean Saugee’s global warming article from ICT.
2. State of Ohio shuts down fake Cherokee tribe’s gaming operation.
3. Cherokee Nation recruited a new recycling plant to Watts, Oklahoma. The privately owned plant is located on fee lands in Adair County and has not yet received all the needed permits from the Oklahoma Dept. of Environmental Quality. This is a good thing for Adair County with respect to much needed jobs, but let’s keep on eye on this given the Illinois River’s environmental vulnerability.
Tribal Businesses and the Cloak of Sovereign Immunity
Monday, February 11th, 2008The issue of whether tribal businesses should enjoy the same immunity from lawsuits as tribal governments has been a hot topic for years. So far, the US Supreme Court has upheld (by a 5-4 margin) tribal sovereign immunity as it extends to business operations. There have been two cases in the last calendar year, out of Oklahoma state courts, that arguably buck the Supreme Court trend.
The first case dealt with activities occuring on lands owned by the Choctaw Nation. The state court ruled that the Choctaw Nation waived sovereign immunity in the gaming compact with the state of Oklahoma. Recently the Oklahoma Supreme Court issued a second decision allowing an Absentee Shawnee tribal business to be sued in state court The facts follow in this excerpt from the The Daily Oklahoma editorial:
"The Absentee Shawnee Tribe and Thunderbird Entertainment Center are being sued by a woman who was injured when her car was struck by a vehicle whose driver, she contends, had earlier been drinking at the casino. She alleges casino employees served alcohol to the driver when he was clearly drunk.
The tribe says the man wasn’t at the casino the night before the early morning accident, and that the casino’s bar closed more than five hours before the wreck. And, it said its sovereign status left the tribe immune from civil prosecution, and two lower courts agreed.
But the Supreme Court, in a 7-2 ruling, said that in cases involving liability tied to alcohol sales, immunity doesn’t apply. Justice Steve Taylor noted that Congress has passed laws requiring tribes to comply with state law regarding alcohol sales. The court said the tribe waived any immunity when it applied for a state alcohol license.
It’ll be interesting to see how this ends up. Might tribal immunity from public smoking rules be next to fall?"
Economic Stimulus Package
Thursday, February 7th, 2008CNN reports that Congress is sending the economic stimulus package to the president for his signature, full story here. I’m glad they amended the measure to include social security recipients. I am not convinced that the issuance of $300-600 checks will achieve the stated purpose of stimulating the economy, but it certainly makes me wonder: Why do the same people who would consider it a welfare handout for the UKB to give their elders a couple of hundred bucks, join in a rare bi-partisanship frenzy to facilitate this payout? It reminds me of legacy beneficiaries who get preferential treatment in college and university admissions yet vehementyly oppose other types of affirmative action.