From these humble means, Indian gaming has responsibly grown to provide a steady source of governmental revenue for Indian tribes nationwide. In 2021, 243 Tribal governments operated 510 gaming facilities in 29 states, generating $39 billion in gross revenue. Indian gaming operations and the types of games offered, have also undergone continuous change since 1988. As noted above, IGRA has fostered that evolution. The Class II Indian gaming industry stood at the vanguard of these changes early on. Using IGRA’s text and its legislative history, Tribes used advancing technology to broaden the types of Class II games employed in their operations. Tribes began to use electronic Class II machines that increased both the speed of the games and the participation levels. However, for more than a decade, from the mid-1990s throughout the 2000s, the National Indian Gaming Commission and the Justice Department challenged this use of advanced technology. The agencies sought to use IGRA as a barrier to the evolution of Indian gaming, essentially seeking to freeze the types of games Tribal governments could use to those offered in 1988. The federal courts uniformly rejected these attempts to freeze Indian gaming to the games used in 1988. Most of the court decisions cited the congressional report to IGRA. That Report acknowledged that Congress “rejects any inference that tribes should restrict Class II games to existing game sizes, levels of participation, or current technology. The Committee intends that tribes be given the opportunity to take advantage of modern methods of conducting Class II games and the language regarding technology is designed to provide maximum flexibility.” Like Indian gaming, the national gaming industry has considerably changed since IGRA’s enactment. In 1988, few non-Indian legal gaming operations existed outside of Nevada or Atlantic City, New Jersey. In the 35 years since, twenty (20) additional states have legalized land based commercial gaming within their borders. The most sweeping change in the national gaming landscape has taken place in just the past five years. In May of 2018, the Supreme Court in Murphy v. National Collegiate Athletic Association struck down the Professional and Amateur Sports Protection Act – the federal law that prohibited all forms of sports betting in the U.S. outside of a handful of grandfathered exceptions.
6 INDIAN GAMING - ANNUAL REPORT 2023
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