June 2015 Bar Bulletin
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June 2015 Bar Bulletin

Gaming, Pot and Tribal Resistance As Economic Development

By Anthony Broadman


The most durable myth surrounding Indian gaming is that casinos were given to tribes by the federal government. They weren't. Modern Indian gaming was born when tribal governments refused to follow state gambling laws.

This is a common refrain for tribal economic development. Resist inapplicable law; enter pitched legal battle; preserve victories with delicately balanced inter-governmental agreements. Today, the battles fought by gaming pioneers, and the disputes over fuel taxes and the Indian tobacco trade, shape both state and tribal legal approaches to new tribal ventures. Nowhere is this more apparent than with the passage in April of HB 2000,1 which authorized the governor to enter into marijuana compacts with Washington Indian tribes.

For lawyers and elected leaders working in tribal economic development today, the history of gaming affects how tribes and Indian businesses view and assess new economic opportunities. Tribal economic development is shaped by tribes' historic refusal to be governed by laws that do not apply to them.

This is complicated by the fact that on one hand federal law recognizes tribes as distinct political communities with the right of self-government.2 On the other, the same legal system facilitated "the expropriation of Indian lands, the forced assimilationist attack on Indian landholding patterns and Indian culture, and the destruction of the Indian economies in ways that precluded distinct evolution to successful new forms consistent with tribal desires[.]"3

In other words, the very federal system that recognizes tribes as sovereigns has been used consistently to enforce the occupation and economic oppression of tribal nations. It's no wonder then that resistance to that occupation underlies almost every aspect of Indian law and commerce.

Individual Native Americans have long relied on civil disobedience as a tool of political discourse.4 From the Occupation of Alcatraz to Idle No More,5 these critical moments of Indian activism have had profound effects on larger governmental policy and law. But tribal governments as sovereigns have also used resistance to further their economic and political goals - indeed little has been achieved without such fights.

The story of Indian law is marked by these battles, these moments of resistance. Quite appropriately, given the modern tobacco tax strife between states and tribes, the U.S. Supreme Court's 1871 entry into the tribal tax fray is marked by the refusal of Cherokee leader Elias C. Boudinot and his uncle Stand Wattie to pay federal taxes on tobacco.6

Tobacco, and resistance to state tax laws, has since consumed some corners of Indian Country so thoroughly that state-tribal cigarette tax disputes are often characterized as "war,"7 and marked with actual physical conflict, burning tires and injured police.8 In many jurisdictions, this changed after decades of pitched battle.

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