Oklahomans are still debating the ramifications of the Supreme Court’s July ruling in McGirt v. Oklahoma. While McGirt’s impacts could be profound in some legal and business sectors, the tribal gaming industry in Oklahoma may see comparatively modest changes. Tribal nations that have reservations reaffirmed under McGirt will likely find one less barrier to future on-reservation gaming facilities. On-reservation online gaming may also become a possibility, although it would be far from a certainty.
In McGirt, the U.S. Supreme Court held that the Muscogee (Creek) Nation’s reservation, covering a large area of eastern Oklahoma, including much of Tulsa, was never disestablished and continues to exist today. The court, after closely examining Creek and Oklahoma history, found no explicit statement from Congress disestablishing the Creek reservation. As the other four of the so-called Five Tribes – Cherokee, Chickasaw, Choctaw and Seminole nations –share much of that same history, it is likely the same analysis applies to them as well. Cases are currently pending before an Oklahoma appellate court seeking to reaffirm reservations throughout eastern Oklahoma, and decisions may come before the end of the year.
Reservation status is a key factor for tribal gaming. While the Indian Gaming Regulatory Act permitted Oklahoma tribes to conduct gaming on land held in trust by the federal government within their “former reservations,” gaming on reservations reaffirmed under McGirt may not require a tribe to go through the sometimes arduous land-into-trust bureaucratic process. IGRA allows gaming on land within reservation boundaries, although many other considerations usually influence gaming locations. McGirt could help Oklahoma tribes advocate for regulatory simplification in siting future gaming facilities on their confirmed reservations.
McGirt, however, did not affect the stricter rules that apply to off-reservation gaming. Land taken into trust after IGRA became law in 1988 can generally only host a gaming facility if the Department of the Interior decides, after consultation with local officials and any nearby tribes, that the proposed facility “would be in the best interest” of the gaming tribe and if the state’s governor agrees. Requiring consultation with and consent from non-tribal officials sharply limits off-reservation gaming, particularly in urban areas far from tribal communities.
Reservation status – and particularly the size and population of the reservation – also affects the possibility of online gaming. Under the Unlawful Internet Gambling Enforcement Act, online gaming is generally illegal unless it takes place solely within a state permitting such gaming. However, the UIGEA contains an exception for tribal lands. If online gaming occurs entirely on-reservation, which means both placing and receiving a bet or wager on tribal lands, it is regulated similarly to other forms of tribal gaming, rather than prohibited outright.
Oklahoma reservations reaffirmed under McGirt will be the most populous in the country, which may provide a customer base for online tribal gaming. However, online tribal gaming still lacks a successful proof of concept, although interest in the idea is high. Any effort to adopt online gaming on an Oklahoma reservation will raise significant legal questions and may require state cooperation.
The Oklahoma Indian Gaming Association estimates that tribal gaming had an economic impact of $7.2 billion on the state economy in 2015. Tribal gaming exclusivity fees contribute over $1 billion annually to Oklahoma, primarily used for education. By any measure, tribal gaming is one of the state’s largest industries. By modestly reducing the regulatory steps needed to open a new gaming facility and by potentially opening new opportunities for online gaming, McGirt may come to benefit this vibrant Oklahoman industry.
* This article first appeared in The Journal Record on November 20, 2020, and is reproduced with permission from the publisher.