Legalized Internet gaming: opportunity or threat? Efforts in Congress last year to pass a federal Internet gaming bill failed, but a new bill was introduced in the House on March 17 and it is anticipated that a new Senate bill will be introduced later this year. A number of states are considering Internet gaming legislation, including states where there are tribal gaming operations, such as California, Iowa and Florida. It is far from certain that any of these bills will pass this year, but it does seem likely that efforts to pass Internet gaming legislation will continue and intensify, particularly since both the federal and state governments are desperate to find additional sources of revenue.

Each tribal government must make decisions about Internet gaming based on its unique circumstances. Before making a decision to support, propose amendments to or simply oppose a particular Internet gaming bill there are important issues to consider:

Will Tribal Governments Be Eligible to Participate?

Some of the proposed bills would exclude tribes entirely or contain restrictive conditions that would allow few tribes to qualify. Others would require that tribes compete against commercial gaming entities for the opportunity to participate, effectively shutting out most tribes. As governments authorized to conduct gaming under federal law, tribes are in a strong position to argue that they should be able to participate in Internet gaming without meeting new licensing requirements or being forced to compete against commercial entities for the opportunity.

Will Tribes Be Able to Compete?

Proponents of Internet gaming often argue that it will allow Indian tribes to generate more gaming revenue since they will be able to offer games to players located beyond tribal lands. This is not necessarily true because every other entity authorized to conduct Internet gaming will be competing for those same customers. Depending on the bill, competitors could be other tribal gaming operations, commercial casinos, game vendors, card rooms, pari-mutuels, off-shore interests and other entities. Since all Internet gaming sites are equally accessible to any player with a personal computer and an Internet connection, a gaming site operated by a tribe with a small or medium-sized gaming facility may not have the name recognition or resources necessary to compete with a site operated by a major casino company. The level of competition allowed by an Internet gaming bill is an essential consideration for determining if it will provide a significant opportunity or will simply cannibalize an existing customer base.

Does the Bill Respect Tribal Sovereignty and Regulatory Expertise?

Many Indian tribes have experience and considerable expertise in regulating all aspects of gaming. This is particularly true in the case of poker, which is the focus of many of the current Internet gaming proposals. Therefore, there is no reason why tribes should be subjected to separate federal and/or state regulation when offering the same games via the Internet. Also tribes should insist that any bill include a meaningful regulatory role for tribes that decide to offer Internet gaming, especially if the game servers will be located on tribal lands. The details are critical as some Internet gaming bills pay lip service to tribal regulation, but nothing more.

Does the Bill Clearly Prohibit Internet Gaming Cafés?

Unless carefully drafted, a bill that authorizes “Internet gaming,” even one supposedly limited to poker, could expressly or inadvertently authorize commercial Internet cafés with banks of Internet gaming terminals that look and play like slot machines. The concern about Internet gaming cafés was reportedly one of the reasons that Governor Chris Christie of New Jersey vetoed an Internet gaming bill passed by the state legislature.

Does the Bill Violate Compact Exclusivity?

Many compacts have exclusivity provisions that could be triggered if a state permits non-Indians to engage in Internet gaming. While the compacts in each state are different, the potential impact on tribal compact payments is a major concern for many state governments. But even if tribes are relieved from making compact payments because exclusivity has been violated, that would not necessarily make up for revenue loss resulting from unbridled Internet gaming activity.

Would Tribes Be Taxed?

Many Internet gaming bills would tax all Internet gaming, whether conducted by a tribal government or a commercial entity. Such an approach is contrary to federal policy that Indian tribal governments are not taxable entities. The payment provisions of any such bill must be carefully considered lest they establish negative long-term precedent for the taxation of tribal gaming revenue.

Legislators must recognize that Indian governments have a stake in this complex debate. Indian nations need to be part of the discussion. Above all, they need to make sure that any Internet gaming legislation that has a chance of being enacted, at either the federal or state level, protects existing tribal gaming operations and respects tribal sovereignty.

Joseph H. Webster is a partner with the law firm of Hobbs, Straus, Dean & Walker, LLP in Washington, D.C.

Hell has officially frozen over when I rise to defend the Bureau of Indian Affairs.

The occasion is a question raised by the right libertarian fringe in the person of John Stossel. ‚ÄúWhy,‚Äù Stossel asked, ‚Äúis there a Bureau of Indian Affairs? There is no Bureau of Puerto Rican Affairs or Black Affairs or Irish Affairs. And no group in America has been more helped by the government than the American Indians, because we have the treaties, we stole their land. But 200 years later, no group does worse.”

He got that last thing right, but let’s think about the “help” we have gotten.

There was exile of all Indians to the west side of the Mississippi for our own protection, wild people sent off to live in a wild land, never mind that many of the tribes force marched to Indian Territory had more education and better incomes than the colonists who took over their property.

There were also reservations, where we could live on government rations and under armed guard, except for the children, who were taken away for their own good and taught the science of racial inferiority.

Those who resisted being helped? They wanted us dead. Then those terrible pictures of the massacre at Wounded Knee ended that policy.

If containment and killing were off the table, the next possibility was forced assimilation. Tribal recognition would be “terminated” and the residents of reservations would be “relocated.” To say that termination and relocation worked out well for Indians would be like saying Stossel’s employer, Fox News, is fair and balanced.

In 1928, the Merriam Report documented the dire condition of Indian America. A government report twenty years later sent me to the dictionary to understand the word “inanition” as a cause of death.

What do these disasters for Indians have in common? Except for physical extermination, they were all undertaken for high-minded motives, to help the poor savages.

If there were no Bureau of Indian Affairs in the Department of the Interior, Indians would indeed be in the eyes of the US government just another special pleading ethnic group, a collection of individuals with individual rights.

As Vine Deloria, Jr. wrote back in 1969, while the black civil rights movement swirled around us, blacks have a legitimate demand for integration but Indians have a legitimate demand for separation. We are tribal peoples. If we wish to become individuals rather than part of our people, we always have the choice of severing tribal relations and taking ourselves out of the category the Constitution called “Indians not taxed.”

Most of us are now taxed, in some cases double taxed. Leaving the reservation no longer requires the permission of the Indian agent. The success of the civil rights laws that blacks fought for, and died for, to protect us is appreciated and honored, but their success does not protect us from the John Stossels of the world.

Can Indians be capitalists? Sure. There are many wealthy individual Indians. Can Indians be socialist capitalists? Sure. Look at the Mississippi Choctaws; the Ho-Chunks; the same Oneida Nation that publishes this magazine.

Can Indians screw up? Big time. Look at casino wealth. In some nations, every child is born with guaranteed access to as much education as she can absorb and every tribal citizen who wants a job may have one. In others, the seed corn goes to per capita payments, the kids get a new truck at age eighteen, and relatives are disenrolled to make bigger payments for a few greedheads.

You know what, Stossel? We’re entitled to make our own errors. We’ve suffered enough from yours.

If there were no BIA, there would be no way for our governments to deal with the US government, unless Congress would like to take on the work. Our nations span this continent with different languages, different cultures, different degrees of economic development, and—most importantly—different aspirations.

The prosperity of this country is built on lands dispossessed from Indians at a time when land directly represented life-supporting resources. The treaties we keep waving in your face were the legal fig leaves covering those dispossessions. With some exceptions, we are not demanding the land back, but just to be left alone on what land we have left.

Does the government owe Indians a living forever? No, not as individuals. Like the descendents of slaves, there comes a time when we have to compete with you as individuals. Our tribal nations are a different matter entirely. Agreements between Nations demand to be honored in order for there to exist honor, and they must be renewed—polished if you will.

What is fair, Mr. Stossel, to a people forced to live upon lands inadequate to support them? At the time of these transactions, the whole idea was to force dependence on the Native governments, but now you complain that we are dependent.

You express the opinion that we should be allowed to mortgage reservation land to develop it. If we can’t pay, what then? Before you run your mouth about pledging our land for cash, see if you can make a computer give you a graphic of Indian land within the US over time. Watch the incredible shrinking land base.

The question is not why the Bureau of Indian Affairs but why not a Bureau of Crackpot White People Trying to Help Indians Affairs? We would be better off? If we would be, then hell would truly have frozen over.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He is a columnist for Indian Country Today. He lives in Georgetown, Texas, and can be reached at swrussel@indiana.edu.