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Published: 2008-03-26

Indian Gaming



Gambling, in a variety of forms, has long been an important part of American Indian culture and tradition. One ancient game called "stick game" among northwest tribes has variations among most tribes and is still played at tribal gatherings. Horse and foot races were an important focus of traditional gambling activity. Today, gambling provides many tribes with revenue for essential governmental services. This article provides an overview of the development of Indian gaming law.The Indian Gaming Regulatory Act (IGRA), passed by Congress in 1988, is the centerpiece of Indian gaming law today. Events leading to and following the passage of this act, as well as the act itself, constitute the body of Indian gaming law.

Background

In recent times Indian tribes have consistently engaged in business enterprises as a means of generating revenue for the operation of their tribal governments. Although tribes do have taxing powers they typically have no viable tax base because of economic conditions on reservations where unemployment can be as high as 70% and few tribal members own taxable property. With some recent changes in federal law Indian tribes can now contract for programs provided by the Bureau of Indian Affairs in the past and can apply for a limited number of federal grants for some programs. However, the federal funds available for these programs has decreased over time and, in any event, available grant and contract programs did not address all the needs of modern tribal government. Consequently, tribes have turned to a wide range of business enterprises over the years as a means of generating revenue. It is not surprising that in the 1980's some tribes turned to gaming as a business enterprise. The success of the first tribal gaming operations prompted an expansion of gaming among other tribes.

State law at the time often contained major restrictions against most types of gambling and imposed criminal penalties for violations. At the same time state law often contained certain exemptions to the prohibitions against gambling. The most frequently seen were exemptions for gaming activities engaged in by the state itself, such as lotteries, and exemptions for charitable institutions. Thus, state law often made the playing of games of chance where there were house stakes a crime but, at the same time, allowed charitable institutions to hold "casino nights" where games like craps, blackjack, roulette and poker were played as a means of fund raising.

States moved early on to attempt to severely restrict or stop tribal gaming operations and did so on the grounds that tribal gaming violated state law prohibiting a particular type of gaming. However, it had been a long standing rule of law that state law did not apply to Indian tribes or Indian people within their reservations absent express authorization by Congress. A law passed by Congress in 1953, commonly known as Public Law 280, was relied upon as the Congressional authorization for the extension of state criminal law to Indian reservations. Public Law 280 authorized some states to extend their criminal laws to Indians on reservations and also authorized state courts to hear and decide cases arising on reservations where one or both of the parties were Indian.

The Cabazon Decision

The question of whether Public Law 280 authorized the application of state laws to Indian gaming facilities was decided by the United States Supreme Court in a case between the State of California and the Cabazon Band of Mission Indians. The Court disagreed with the state's argument. The analysis of the Court turned on the fact that the civil part of Public Law 280 did not grant states jurisdiction to regulate Indian activities on reservations - it granted state courts the jurisdiction to hear and decide cases involving Indian parties. Any power the state had to regulate activities had to fall under its criminal laws that were extended to reservations in states subject to Public Law 280. Thus, any activity that was totally prohibited by state criminal laws were applicable to Indian reservations under Public Law 280. On the other hand, any activity that was allowed but regulated under state law was deemed by the Court to be civil/regulatory and not within the scope of Public Law 280 - even if violation of the regulations result in criminal sanctions.

In the context of Indian gaming, this meant that if a state generally prohibited gambling but allowed some form of gambling for charitable organizations, state lotteries or otherwise, Indian tribes could engage in those forms of gaming. Only if the state totally prohibited gaming by all persons, organizations and entities could state law be used to curtail Indian gaming. A final determination must be based upon what activities are allowed as a matter of the state's public policy.

This decision, and the expansion of Indian gaming that followed it, set the stage for the development of the Indian Gaming Regulatory Act. The concepts contained in the decision, namely the civil/regulatory - criminal prohibitory distinction and the limit of tribal gaming to those activities allowed under state law to any person or entity - are found as key components in IGRA.

The Indian Gaming Regulatory Act

The Indian Gaming Regulatory Act (IGRA) represents an attempt by Congress to strike a balance between the rights of tribes to engage in activities generally free of state jurisdiction and the interests of states in regulating gaming activities within their boundaries. The balance struck in IGRA did not please either states or tribes. Tribes preferred to operate within the scope of the Cabazon decision and viewed the state involvement in any form as extremely undesirable. States, on the other hand, felt state involvement was too limited and disagreed with their new exposure to lawsuits under the act.

IGRA provides an entire statutory structure of Indian gaming. By its terms it applies to "Indian Lands" which are defined as all lands within the limits of any Indian reservation. The National Indian Gaming Commission is established within the Department of the Interior and given the authority and responsibility of administering IGRA.

The act divides Indian gaming into three different categories. Class I gaming generally includes social and traditional games and is within the exclusive jurisdiction of Indian tribes. Class II includes bingo and games similar to bingo which can be operated by a tribe if it is located in a state that permits that type of gaming for any purpose by any person or entity and if it is authorized by tribal resolution or ordinance. Class III gaming includes all types of gaming that is neither class I or class II gaming and is by far the most important type of gaming for tribal gaming enterprises. Class III gaming must also occur in a state that permits that particular type of gaming for any purpose by any person or entity and must also be authorized by tribal resolution or ordinance. In addition, there must be a compact negotiated between the tribe and state which defines how the class III gaming will be conducted.

A tribe seeking to engage in class III gaming is required to give notice to the state that it wishes to negotiate a compact. Upon receipt of that notice, the state is required to negotiate with the tribe in good faith. United States District Courts are given jurisdiction over cases brought by an Indian tribe as a result of the state's refusal to enter into negotiations or the state's failure to negotiate in good faith. If a tribe alleges that a state did not respond to a request to negotiate or negotiated in bad faith, the burden is on the state to prove that it acted in good faith. If neither the lawsuit or the mediation process specified in the act lead to an agreement between the tribe and state, the ultimate remedy available to tribes is the approval of a compact by the Secretary of the Interior.

In addition to jurisdiction over negotiations between a tribe and state, district courts are also given jurisdiction over cases brought by a tribe or state to enjoin class III gaming on Indian lands conducted in violation of a compact and over cases brought by the Secretary of the Interior to enforce certain procedures under the act.

The required compacts do not have any specific requirements in terms of content. At a minimum they would have to define which class III games will be played. They may address a wide range of subjects related to class III gaming including criminal and civil jurisdiction, licensing and regulation of gaming and standards for the operation of gaming activities among other things. Compacts are not effective until a notice of approval is published in the Federal Register by the Secretary of the Interior.

Unlike gaming activities operated by non-tribal entities, the revenues derived from gaming by Indian tribes can be used only for specified purposes, namely: to fund tribal government operations or programs; to provide for the general welfare of the tribe and its members; to promote tribal economic development; to donate to charitable organizations; or to help fund operations of local government agencies.

Interpretation and Application of IGRA

A statute as broad and complex as IGRA almost always results in lawsuits raising questions about its interpretation and application. IGRA is no exception. Case law that has evolved since the passage of the act has served to clarify and define several important aspects of IGRA.

Perhaps the most significant was the invalidation of the remedy provided to tribes when states refuse to negotiate class III compacts or negotiate in bad faith. The United States Supreme Court has held that the Eleventh Amendment to the Constitution of the United States prevents Congress from authorizing Indian tribes to sue states as they did in IGRA. This ruling left tribes without any remedy when states refused to negotiate class III compacts or negotiated in bad faith. The inequity of that situation caused the Department of the Interior to develop and promulgate regulations defining procedures by which tribes could obtain Secretarial approval of a class III gaming compact when a state interposes its Eleventh Amendment immunity from suit by an Indian tribe alleging failure to negotiate in good faith.

Although the thrust of the act is to define how Indian gaming can be conducted, any person or entity who engages in gaming on Indian lands must comply with the terms of the act, including states that operate class III gaming such as lotteries.

The act does not impose an obligation on states to enter into compacts with Indian tribes, only an obligation to negotiate in good faith. It does not require that states negotiate with tribes over gaming activities that are not allowed under state law.

As the various questions that arose regarding the act are resolved by court decisions it can be expected that the number of lawsuits involving IGRA will decrease over time.

Recent Developments

Despite litigation over the interpretation and application of IGRA, tribal gaming has flourished and provided Indian tribes with a new, and important, economic base. This success has brought additional attention to Indian gaming.

In 1996 Congress established the National Gambling Impact Study Commission to study and report on the economic and social impacts of all forms of legalized gambling. A separate subcommittee was established to study Indian gaming. The Commission's final report was released on June 18, 1999. The report recognizes tribal sovereignty in the context of gaming as well as the positive impacts tribal gaming have had on tribal economic well being.

There have also been regular attempts to have Congress amend IGRA or enact laws that would further affect Indian gaming. A variety of bills have been introduced before the 106th Congress that would alter the current regulatory scheme under IGRA. Other measures would have the effect of reducing federal funds to tribes in proportion to the revenue they derive from business activities - primarily gaming - and others would impose taxes on tribal gaming revenues. While none of the proposed measures have passed to date, the prospect of amendments being made to the act remain a possibility.

Conclusion

Indian gaming has become an important means of support for tribal governments. It has also become an important component of reservation, local and regional economies. Indian gaming can be seen as part of the expansion of gaming activities in many states. Indian gaming law specifically will continue to be a growing and evolving area of the law in future years.