How Maine can improve its messy tribal gaming policy

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In 2022, Governor Mills signed a bill legalizing mobile sports gambling in Maine by allowing mobile sports gaming apps to receive state licenses when partnering with at least one of Maine’s four recognized Native American Tribes. The limitation Maine imposed is that each tribe could only partner with a single “gambling skin,” so only a maximum of four could function in Maine at a time. This restriction was made worse when Caesars Entertainment, a nationally known sports betting app, partnered with three of Maine’s tribes at once, bringing the maximum number of mobile sports betting companies that could operate in Maine down to two.

Maine’s tribes are already more restricted in their powers than any other federally recognized tribe in the nation. Maine can make the sports gambling market more competitive for all Mainers by increasing the number of gambling organizations the tribes can partner with and what kinds of gambling the tribes can facilitate.

To preface, every other state in the nation has its tribes’ sovereignty overseen by the federal government because they are treated like foreign nations that the states can’t directly control. This is not the case with Maine, though, as our four federally recognized tribes are entirely at the whim of state government, which has concerning implications for their sovereignty and independence.

This all began in the 1950s when an elderly Passmaquoddy Indian woman gave a township governor some old papers, including an original treaty under which the Passamaquoddy Tribe ceded land in what was then Massachusetts but is now Maine. The treaty showed that the tribe was supposed to own an extra six thousand acres than it did, and that the state had taken the land without a treaty. The tribe requested the federal government bring suit as their trustee but was denied, and so they brought suit against the state of Maine and the Secretary of the Interior, among others.

This federal lawsuit was not finalized until the 1970s when the Carter administration became nervous, as the treaty handing over Wabanaki land appeared to have never been ratified by Congress. If that were true, a lot of Wabanaki land might have been unlawfully appropriated, and a massive part of Maine would no longer be U.S. soil. Under Carter, the state of Maine, the Wabanaki Tribes, and the federal government came to an agreement codified in the Maine Indian Claims Settlement Act (MICSA). This law settled the dispute between the tribes and Maine, and also made the Native American tribes in Maine subject to the state’s laws, a relationship which no other tribes in the United States have.

In every other relationship between a State and the tribes within its borders, the federal government takes a supervisory role due to Native American nations’ status as both foreign and domestic. Because of the MICSA, federal laws allowing tribes and states to make gambling agreements, such as the 1988 Indian Gaming Regulatory Act, do not apply to Maine. 

In some ways, this is bad news for Maine’s tribes because the federal government cannot intervene when they are unfairly treated in gambling agreements, as it did in Northern Arapaho Tribe v. State of Wyoming. In that case, the U.S. District Court for Wyoming held that negotiations and agreements between other states and tribes had to be made in good faith. Still, the same principle would not apply in Maine, where the federal government does not play a referee role between Maine and its tribes.

This means that Maine has a massive amount of leeway when determining the legal relationship between the state and its four tribes and can choose to acknowledge the tribes’ right to operate with whatever businesses they like. Instead, Maine still employed significant limitations on what gambling the tribes could allow and how many companies they could partner with.

Besides the issue of tribal sovereignty, this policy has left Maine behind many other states in the sports gaming industry. Maine is lagging behind the region in this respect. Massachusetts has six licensed sports gambling businesses operating within its borders and even Vermont, a state not exactly known for its pro-market sentiment, has three licensed companies. If Maine got ahead of this be deregulating its sports gambling market, we could be a regional leader, like Colorado, New Jersey, or New York, which have 20, 16, and 9 licensed sports gaming companies, respectively.

Due to our special legal relationship with our tribes, Maine could unilaterally allow them to license any number of gaming companies, or we could even do it ourselves separate from the tribes. Opening the door to this market in Maine would not only provide our tribes some major financial support, but also generate state revenue and remove another unnecessary restriction on how Mainers use their own money.