Newly recognized by the federal government, Virginia’s Pamunkey Indians are contemplating a future that could include launching a casino. In a state that has long fought any casino development, the tiny tribe’s decision could have an enormous impact.
But getting to gambling isn’t as simple as flipping a switch. And for the 208-member Pamunkey, the first Virginia tribe to receive official sanction from the U.S. Bureau of Indian Affairs, it might be especially challenging. Gambling on their reservation 20 miles east of Richmond may even require an act of Congress — never a sure bet — for the tribe to launch even a simple bingo parlor.
Tribal leaders say they have not begun serious discussions about whether a casino makes sense for the Pamunkey, who claim Pocahontas as an ancestor and sought federal recognition for decades. But they also aren’t ruling it out.
“We haven’t put anything on or off the table,” said Bob Gray, the tribe’s acting chief. “Right now, that’s not our focus. Not to say we won’t look at it. Now that we have federal recognition, some of those companies that do that sort of thing may come knocking on our door.”
Virginia is one of just 10 states that do not have casinos — commercial or tribal — and it has long opposed casino development. So there is intense interest in what the Pamunkey will do.
“That would be a game-changer if they went there,” said Charlie Davis, a longtime Richmond lobbyist who has represented casino interests. “It would be huge. It would be sort of like the meteorite that slammed into Earth and created the estuary that is the Chesapeake Bay.”
The possibility has diehard gambling opponents fretting — and feeling a little helpless.
“I’d be pretty disappointed, but there probably wouldn’t be much I could do about it,” said Virginia’s powerful House speaker, William J. Howell (R-Stafford), who has strenuously opposed efforts to open casinos in the Old Dominion. “That’s my understanding of the law.”
Indian gaming exists in 28 states, with 244 of the country’s 567 federally recognized tribes running 479 casinos or gambling operations, according to the National Indian Gaming Commission, the agency that regulates gambling by federally recognized tribes. It’s a massive industry that generates massive revenue. In 2013, gross gaming revenue for the Indian gaming industry was $28 billion.
A legal path exists for the Pamunkey to make Virginia the 29th state with Native American gaming, but it could be a long journey.
First, the tribe would need to have its land taken into trust by the federal government, which would place it under federal rather than state laws. That sounds simple enough, but it’s a process loaded with legal complexities. (An lawyer familiar with all the layers described Indian gaming as a “lawyer’s retirement plan.”)
The Pamunkey would have to contend with the Indian Gaming Regulatory Act of 1988, which prohibits the federal government from taking land into trust on behalf of Indian tribes that received federal recognition after 1998 unless they qualify for one of a few limited exceptions. And in 2009, the Supreme Court ruled in Carcieri v. Salazar that Indian lands cannot be taken into trust by the federal government if the tribe was not under federal jurisdiction in 1934, when the Indian Reorganization Act was enacted.
The Pamunkey would likely not meet that criteria, though there are loopholes that lawyers could explore. There is also a movement, in response to the ruling, for congressional action to give the Bureau of Indian Affairs permission to take lands into trust for Indian tribes that were not under federal authority in 1934.
“Congress, absolutely, has the power to take this land into trust,” said Kathryn R.L. Rand, co-director of the Institute for the Study of Tribal Gaming Law and Policy at the University of North Dakota. “So it’s not impossible. But it does make it more complicated.”
If the land requirements were resolved, the Pamunkey’s gambling operation would need to be sanctioned by the Indian gaming commission. The tribe would need to submit a gaming ordinance that satisfies the federal requirements — even for something as basic as bingo. If the tribe wanted slots and table games, it would have to enter into a compact — or agreement — with the commonwealth.
The entire process, if all went smoothly, would take the tribe three to five years, according to one lawyer familiar with Indian gaming. More likely, she said, it could be twice that.
Tribes have been willing to endure the lengthy process because the end result can be so lucrative. The Pamunkey would have a monopoly on casino gambling in Virginia, a potentially huge market.
The tribe’s actions are being closely monitored in neighboring Maryland, where MGM Resorts International is opening a $1.2 billion casino at National Harbor in Prince George’s County next year.
MGM Resorts had opposed the Pamunkey’s effort to get federal recognition precisely because it worried that the tribe might introduce competition with a casino and drain away Virginia customers.
In the short term, Maryland casinos and gambling opponents have nothing to worry about. But if the Pamunkey decide to pursue a casino, it will change the landscape of gambling in the region.