# Indian Gaming: Legal Background and the Indian Gaming Regulatory Act (IGRA)

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR42471

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** April 9, 2012
- **Citation:** R42471

## Text

Indian Gaming: Legal Background and the
Indian Gaming Regulatory Act (IGRA)
(name redacted)
Legislative Attorney
April 9, 2012

Congressional Research Service
7-....
www.crs.gov
R42471

CRS Report for Congress
Prepared for Members and Committees of Congress

Indian Gaming: Legal Background and the Indian Gaming Regulatory Act (IGRA)

Summary
In the 1980s, a number of Indian tribes developed high-stakes bingo and other gaming operations
to raise non-federal revenue to fund their governments. In 1988, after the Supreme Court held, in
California v. Cabazon Band of Mission Indians, that federal and tribal interests in Indian gaming
preempted state law such that state regulation of gaming did not apply to tribal gaming operations
on tribal land, Congress passed the Indian Gaming Regulatory Act (IGRA). IGRA provides a
statutory basis for Indian tribes to conduct gaming on “Indian lands” and establishes a regime for
regulating Indian gaming. It prohibits gaming on newly acquired land—that is, land acquired in
trust after October 17, 1988—subject to two exceptions: the “two part determination”; and, land
taken in trust as part of a land settlement, restoration of land for a restored tribe, or the initial
reservation of a newly acknowledged tribe. In establishing a framework for regulating Indian
gaming, IGRA was intended to balance the interests of the tribes, the states, and the federal
government in Indian gaming and apportion responsibility for regulating it accordingly. To do
this, IGRA divides Indian gaming into three classes: class I includes traditional or social gaming
and is subject to exclusive tribal regulation; class II covers bingo and similar games and is subject
to tribal regulation and oversight by the National Indian Gaming Commission (NIGC); and, class
III includes all other gaming, including casino gaming or Las Vegas-style gaming, and generally
can only be conducted pursuant to tribal-state compacts that must be approved by the Secretary of
the Interior. IGRA also created the NIGC to provide regulation of Indian gaming on the federal
level.
The tribal-state compact is the key to tribal casino gaming. Recognizing that some states might
simply stonewall tribes and refuse to negotiate class III gaming compacts, Congress required that
upon a request from a tribe to negotiate a compact, a state must negotiate in good faith. In order
to create an incentive for states to negotiate in good faith, IGRA provided that tribes could sue
states in federal district court for failing to negotiate in good faith. IGRA prescribes a series of
steps to ensure that ultimately a tribe would be able to engage in class III gaming even over the
state’s objections. However, in Seminole Tribe of Florida v. Florida, the Supreme Court held that
Congress did not have authority under the Indian Commerce Clause to waive the states’ sovereign
immunity to suits by tribes to enforce the good faith negotiation requirement. This decision,
therefore, removed IGRA’s practical guarantee that tribes would be able to engage in class III
gaming over the objections of the state and gave states a veto over tribal class III gaming—a state
can simply refuse to negotiate a class III compact to deny a tribe the ability to engage in class III
gaming. Increasingly, states have demanded significant revenue sharing and non-gaming
concessions in exchange for class III compacts.
In the last five years, there have been several bills introduced in Congress to amend IGRA,
primarily to restrict off-reservation gaming. Two bills have been introduced in the 112th Congress
to amend IGRA. H.R. 4033, the Giving Local Communities a Voice in Tribal Gaming Act, would
give local jurisdictions the right to veto a class III gaming operation that the state has agreed to in
a compact. S. 771, the Tribal Gaming Eligibility Act, would restrict the availability of offreservation land for gaming by requiring that tribes demonstrate, by meeting certain criteria, that
they have modern and historical ties to the land on which they propose to game.

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Indian Gaming: Legal Background and the Indian Gaming Regulatory Act (IGRA)

Contents
Introduction...................................................................................................................................... 1
Pre-IGRA Legal Background of Indian Gaming ............................................................................. 3
Federal Law ............................................................................................................................... 3
California v. Cabazon Band of Mission Indians........................................................................ 3
The Majority Opinion.......................................................................................................... 4
The Dissent.......................................................................................................................... 7
IGRA................................................................................................................................................ 9
What are “Indian Lands?” ....................................................................................................... 10
Gaming on Newly Acquired Lands ......................................................................................... 11
The Classes of Indian Gaming and Corresponding Regulatory Regimes ............................... 12
Class I Gaming .................................................................................................................. 12
Class II Gaming................................................................................................................. 12
Class III Gaming ............................................................................................................... 13
NIGC ....................................................................................................................................... 15
Approval of Tribal Gaming Ordinances............................................................................ 15
Approval of Management Contracts ................................................................................. 17
Enforcement Actions by the NIGC ................................................................................... 17
Other Authorities and Responsibilities of NIGC............................................................... 18
Indian Land and Classification Determinations ................................................................ 18
Tribal-State Compacts and Seminole Tribe of Florida v. Florida............................................ 19
The Secretarial Procedures................................................................................................ 19
Revenue Sharing Under Class III Compacts..................................................................... 20
States’ Requests for Tribal Concessions Unrelated to Gaming ......................................... 21
Proposed Amendments to IGRA.................................................................................................... 21
Conclusion ..................................................................................................................................... 23

Contacts
Author Contact Information........................................................................................................... 24

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Indian Gaming: Legal Background and the Indian Gaming Regulatory Act (IGRA)

Introduction
Today, Indian gaming is big business. In 2010, 237 of the 565 federally recognized tribes
operated 422 tribal gaming enterprises which generated $25.6 billion in revenues.1 Twenty-eight
states have some form of Indian gaming.2 Indian gaming accounted for 25% of the total revenues
of the legal gaming industry and is its fastest-growing segment.3
Indian gaming started out small.4 In the 1980s, when the federal government severely cut funds
for Indian tribes, Indian tribes began to turn to high-stakes bingo and other gaming to raise money
to fund tribal government operations.5 The Department of the Interior and other federal agencies
actively encouraged tribal bingo to raise revenue to fund tribal governments.6 However, the
legality of these operations was uncertain. Local and state authorities threatened to shut down
these operations, claiming that they violated state law.7 Although federal courts enjoined state
enforcement actions,8 states continued to pursue them. The legality of Indian gaming under
federal law was also questionable.9 Meanwhile, a number of bills were introduced in Congress to
regulate the growing Indian gaming industry.10
In 1987, in California v. Cabazon Band of Mission Indians,11 the Supreme Court settled that
Indian tribes could engage in gaming on tribal land free from state law. The Court held that

1

http://www.nigc.gov/LinkClick.aspx?fileticket=1P8h79gnJOU%3d&tabid=67; http://www.indiangaming.org/info/
2011_Annual_Report.PDF.
2
http://www.nigc.gov/Reading_Room/List_and_Location_of_Tribal_Gaming_Operations.aspx.
3
Steven Andrew Light & Kathryn R.L. Rand, The Hand That’s Been Dealt: The Indian Gaming Regulatory Act at 20,
57 Drake L. Rev. 413, 414-416 (2010) (The Hand That’s Been Dealt).
4
In 1985, the Department of the Interior estimated that 80 tribes were conducting gaming on their reservations with
some high-stakes bingo establishments earning as much as $1 million a month. Steven Andrew Light & Kathryn R.L.
Rand, Indian Gaming and Tribal Sovereignty: The Casino Compromise (University Press of Kansas 2005) (Indian
Gaming and Tribal Sovereignty) at 42.
5
Id. at 39; Franklin Ducheneaux, The Indian Gaming Regulatory Act: Background and Legislative History, 42 Ariz. St.
L. J. 99, 110- 112 (2010-2011).
6
Kevin K. Washburn, Agency Conflict and Culture: Federal Implementation of the Indian Gaming Regulatory Act by
the National Indian Gaming Commission, the Bureau of Indian Affairs, and the Department of Justice, 42 Ariz. St. L. J.
302, 308 (2010-2011).
7
Ralph A. Rossum, The Supreme Court and Tribal Gaming (University Press of Kansas 2011) at 10-16.
8
Cabazon Band of Mission Indians v. County of Riverside, 783 F.2d 900 (9th Cir. 1986), aff’d sub nom, California v.
Cabazon Band of Mission Indians, 480 U.S. 202 (1987); The Barona Group of the Capitan Grande Band of Mission
Indians v. Duffy, 694 F.2d 1185 (9th Cir. 1982), cert. denied, 461 U.S. 929 (1983); Seminole Tribe of Florida v.
Butterworth, 658 F.2d 310 (5th Cir. 1981), cert. denied, 455 U.S. 920 (1982).
9
It appears that prior to IGRA, the federal government had authority to shut down Indian gaming using federal laws
that incorporated state criminal laws. Robert N. Clinton, Enactment of the Indian Gaming Regulatory Act: The Return
of the Buffalo to Indian Country or Another Usurpation of Tribal Sovereignty?, 42 Ariz. St. L.J. 17, 34-41 (2010-2011).
Federal authorities never acted to shut down tribal bingo operations. However, federal authorities successfully pursued
actions against individuals engaged in Las Vegas-type gaming pursuant to tribal ordinances. Id. (discussing United
States v. Farris, 624 F.2d 890 (9th Cir. 1980), cert. denied, 449 U.S. 1111 (1981) and United States v. Dakota, 796 F.2d
186 (6th Cir. 1986)).
10
Steven Andrew Light & Kathryn R.L. Rand, Indian Gaming Law: Cases and Materials (Carolina Academic Press
2008) (Indian Gaming Law) at 79-83; Ducheneaux, supra note 5 at 116-16; see e.g., H.R. 4566, 98th Cong. (1983);
H.R. 1920, 99th Cong. (1985); S. 902, 99th Cong. (1985); H.R. 1079, 100th Cong. (1987) H.R. 2507, 100th Cong. (1987).
11
480 U.S. 202 (1987).

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federal and tribal interests supporting tribal gaming preempted state laws regulating tribal gaming
on tribal land. It did not address federal authority over Indian gaming.
Cabazon focused congressional efforts to regulate Indian gaming that culminated in the passage
of the Indian Gaming Regulatory Act12 (IGRA).13 IGRA provides a statutory basis for Indian
tribes to conduct gaming on “Indian lands”; establishes a framework for regulating Indian gaming
that divides authority between tribes, states, and the federal government; and created the National
Indian Gaming Commission (NIGC) with authority to regulate tribal gaming on the federal level.
IGRA prohibits gaming on most land acquired in trust after its effective date, October 17, 1988.14
However, there are important exceptions for certain newly acquired lands.15
For the purposes of regulation, IGRA divided Indian gaming into three classes: class I gaming
includes social or traditional gaming played for prizes of minimal value16 and is subject to
exclusive tribal regulation;17 class II gaming includes bingo and similar games and non-banked
card games,18 and is subject to regulation by the tribes and NIGC,19 and may be conducted only in
states that allow such gaming;20 and, class III gaming includes all other games21 and may be
conducted only pursuant to tribal-state compacts approved by the Secretary of the Interior
(Secretary) in states that allow such gaming or pursuant to procedures approved by the Secretary
under circumstances specified by IGRA.22
IGRA also created the NIGC.23 NIGC has responsibility to monitor class II gaming and to
approve tribal gaming ordinances and management contracts, and authority to impose fines and
close gaming operations based on a violation of IGRA, NIGC regulations, or tribal gaming
ordinances.
Class III gaming is the most lucrative class of gaming,24 and a tribal-state compact is the key to a
tribe’s ability to engage in class III gaming. IGRA requires that states negotiate class III gaming
compacts in “good faith.”25 In order to provide states with an incentive to negotiate class III
gaming compacts, IGRA provided that tribes may sue states in federal district court to enforce the
good faith requirement.26 Upon a judicial finding of bad faith, IGRA provided a mechanism by
12

25 U.S.C. §§2701 et seq.
Rossum, supra note 7 at 6.
14
25 U.S.C. §2719.
15
For a detailed discussion of these exceptions see CRS Report RL34325, Indian Gaming Regulatory Act (IGRA):
Gaming on Newly Acquired Lands, by (name redacted).
16
25 U.S.C. §2703(6).
17
25 U.S.C. §2710(a)(1).
18
25 U.S.C. §2703(7).
19
25 U.S.C. §2710(b).
20
25 U.S.C. §2710(b)(1)(A).
21
25 U.S.C. §2703(8).
22
25 U.S.C. §2710(d).
23
25 U.S.C. §2704.
24
See, Indian Gaming and Tribal Sovereignty, supra note 4 at 11 (noting that casino games typically are more
profitable than even high-stakes bingo.)
25
25 U.S.C. §2710(d)(3)(A).
26
25 U.S.C. §2710(d)(7)(A)(i).
13

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which tribes may engage in class III gaming in the face of recalcitrant states.27 However, in
Seminole Tribe of Florida v. Florida,28 the Supreme Court held that Congress did not have
authority under the Indian Commerce Clause to waive the states’ sovereign immunity to lawsuits
by tribes to enforce the requirement that states negotiate class III gaming compacts in good faith.
Seminole shifted the balance of power struck in IGRA between the tribes and the states in favor of
the states by taking away the tribes’ recourse when states refuse to negotiate class III compacts or
demand concessions prohibited by IGRA.29 Increasingly, states have demanded that tribes agree
to share gaming revenues and make concessions on issues unrelated to gaming in order to obtain
class III gaming compacts.30
More recently, Congress’s attention has focused primarily on off-reservation gaming—that is,
gaming on Indian lands located away from a tribe’s reservation. There have been several bills
introduced which would amend IGRA to limit tribes’ ability to game on land located away from
their reservations.

Pre-IGRA Legal Background of Indian Gaming
Federal Law
In the 1980s, the Department of the Interior and other executive branch agencies supported tribes
developing gaming operations as a way to raise money to fund their governments. However, it
appears that tribal bingo operations violated the Federal Assimilative Crimes Act31 (FACA) and
the Organized Crime Control Act32 (OCCA). Both of these acts made it a federal crime to conduct
gaming in Indian country if that gaming would violate state law if it were conducted in the state.33
In addition, the Johnson Act34 prohibited gaming devices, such as slot machines, in Indian
country. Although federal officials never took steps to shut down tribal bingo,35 these operations
were vulnerable to being shut down should the federal government have a change of heart and
choose to enforce FACA or OCCA.

California v. Cabazon Band of Mission Indians
In 1987, the Supreme Court considered whether states could enforce state gaming laws against
tribal gaming operations on tribal land. The Cabazon and Morongo Bands of Mission Indians are
two federally recognized tribes with reservations in Riverside County, California.36 Each Band
27

25 U.S.C. §2710(d)(7)(B)(iii).
517 U.S. 44 (1995).
29
Matthew L.M. Fletcher, Bringing Balance to Indian Gaming, 44 Harv. J. Legis. 39, 41-42 (2007).
30
Id. at 59-60; Indian Gaming and Tribal Sovereignty, supra note 4 at 58.
31
18 U.S.C. §13.
32
18 U.S.C. §1955.
33
Fletcher, supra note 29 at 21-24, 34-41 (discussing United States v. Sosseur, 181 F.2d 873 (7th Cir. 1950) (FACA);
United States v. Dakota, 796 F.2d 186 (OCCA); United States v. Faris, 624 F.2d 890 (OCCA)).
34
15 U.S.C. §1175.
35
Clinton, supra note 9 at 40-41.
36
480 U.S. at 204-205.
28

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conducted bingo on its reservation pursuant to a tribal ordinance approved by the Secretary.37
Cabazon also had a card club.38 All the tribes’ games were open to the public and played
predominantly by non-Indians.39 The profits from these games were the tribes’ sole source of
income and the games were a major source of employment for tribal members.40
The state sought to enforce Section 326.5 of the California penal code. Section 326.5 does not
strictly prohibit bingo. Rather it permits it under certain circumstances: the games must be
operated and staffed by members of designated charitable organizations who may not be
compensated for their work; profits must be kept in separate accounts and used only for charitable
purposes; and, prizes may not exceed $250 per game.41 Riverside County also sought to apply its
ordinances regulating bingo and prohibiting the card games.42 The federal district court and the
U.S. Court of Appeals for the Ninth Circuit both held that the state and the county did not have
authority over the tribal bingo and card games.43

The Majority Opinion
The Supreme Court began its analysis by noting that “tribal sovereignty is dependent on, and
subordinate to, only the Federal Government, not the States. It is clear, however, that state laws
may be applied to tribal Indians on their reservations if Congress has expressly so provided.”44
California and the county argued that Congress provided for their authority over the tribal games
under Public Law 28045 and OCCA.46
Public Law 280 granted to certain states, including California, criminal and civil adjudicatory
jurisdiction over Indian country. Therefore “when a State seeks to enforce a law within an Indian
reservation under the authority of Pub. L. 280, it must be determined whether the law is criminal
in nature, and thus fully applicable to the reservation …, or civil in nature, and applicable only as
it may be relevant to private civil litigation in state court.”47
Rejecting California’s argument that its gaming laws were criminal in nature because they carried
criminal penalties, the Court held that the difference between laws that are criminal in nature and
those that are civil in nature depends on whether the law is “prohibitory” or “regulatory.”48 “The
shorthand test is whether the conduct at issue violates the State’s public policy.”49 The Court
concluded, “[i]n light of the fact that California permits a substantial amount of gambling activity,
including bingo, and actually promotes gambling through its state lottery, we must conclude that
37

Id. at 205.
Id.
39
Id.
40
Id.
41
Id.
42
Id
43
Cabazon Band of Mission Indian v. County of Riverside, 783 F.2d 900 (9th Cir. 1986).
44
480 U.S. at 207 (internal quotation marks and citation omitted).
45
67 Stat. 588, as amended 18 U.S.C. §1162, 28 U.S.C. §588.
46
18 U.S.C. §1955.
47
480 U.S. at 208.
48
Id. at 208-210.
49
Id. at 209.
38

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California regulates rather than prohibits gambling in general and bingo in particular.”50 Because
Section 326.5 was regulatory in nature, Public Law 280 did not authorize California to enforce it
on the reservations.
The Court also rejected the state’s and county’s argument that they had authority to enforce state
law on the reservations under OCCA. “There is nothing in OCCA indicating that the States are to
have any part in enforcing federal criminal laws or are authorized to make arrests on Indian
reservations that in the absence of OCCA they could not effect.... [T]here is no warrant for
California to make arrests on reservations and thus, through OCCA, enforce its gambling laws
against Indian tribes.”51
The tribes urged the Court to simply affirm the lower court without further analysis, relying on
the statement from McClanahan v. Arizona State Tax Comm’n that “‘state laws generally are not
applicable to tribal Indians on an Indian reservation except where Congress has expressly
provided that State laws shall apply.’”52 However, the Court noted that the law is not that black
and white.53 In particular, the Court noted two cases concerning on-reservation tribal sales of
cigarettes to non-Indians in which the Court held that even though Congress did not expressly
authorize the states to apply its sales tax on the tribes, the state could require the tribes to collect
state sales tax.54 Because Cabazon also involved a “state burden on tribal Indians in the context of
their dealings with non-Indians,”55 the Court determined that:
[d]ecision in this case turns on whether state authority is pre-empted by the operation of
federal law; and state jurisdiction is pre-empted if it interferes or is incompatible with federal
and tribal interests reflected in federal law, unless the state interests at stake are sufficient to
justify the assertion of state authority. The inquiry is to proceed in light of traditional notions
of Indian sovereignty and the congressional goal of Indian self-government, including its
overriding goal of encouraging tribal self-sufficiency and economic development.56

The Court characterized the federal goals of “encouraging tribal self-sufficiency and economic
development” as “important.”57 In support of that conclusion, the Court cited a number of
executive branch policies and actions to demonstrate the magnitude of these interests: a statement
by the President that, as part of the overriding policy of self-determination, tribes needed to
reduce their dependence on federal funds;58 the Department of the Interior’s (Interior’s)
promotion of tribal bingo enterprises by making grants and guaranteeing loans to construct bingo
facilities, approving tribal ordinances establishing and regulating tribal bingo, reviewing tribal
bingo management contracts, and issuing detailed guidelines governing that review;59 and the
Department of Housing and Urban Development and the Department of Health and Human
50

Id. at 211.
Id. at 213-214.
52
Id. at 215, quoting McClanahan, 411 U.S. 164, 170-171 (1973).
53
480 U.S. at 214-215.
54
Id. discussing Moe v. Confederated Salish and Kootenai Tribes, 423 U.S. 463 (1976) and Washington v.
Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980).
55
480 U.S. at 216.
56
Id. at 216 (internal quotation marks and citations omitted).
57
Id. at 217.
58
Id. n. 20, quoting 19 Weekly Comp. of Pres. Doc. 99 (1983).
59
Id. at 217-218.
51

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Services providing financial assistance for the construction of bingo facilities.60 The Court wrote
that those policies and actions, “which demonstrated the Government’s approval and active
promotion” of tribal bingo, were “of particular relevance” because gaming was the tribes’ sole
source of revenues and without it, they would not be able to realize the federal policy goals of
self-determination and economic self-sufficiency.61
The state and county sought to minimize these interests by arguing that the tribes were merely
marketing an exemption from state law. In Washington v. Confederated Tribes of the Colville
Indian Reservation,62 the Court “held that the State could tax cigarettes sold by tribal smokeshops
to non-Indians, even though it would eliminate their competitive advantage and substantially
reduce revenues used to provide tribal services, because the Tribes had no right to market an
exemption from state taxation to persons who would normally do their business elsewhere.”63 The
Court distinguished the revenue generated from gaming from the revenue generated by cigarette
sales based on the degree to which the tribes “generated value” in the service or product sold:
[In Confederated Tribes, w]e stated that it is painfully apparent that the value marketed by
the smokeshops to persons coming from outside is not generated on the reservations by
activities in which the Tribes have a significant interest. Here, however, the Tribes are not
merely importing a product onto the reservations for immediate resale to non-Indians. They
have built modern facilities which provide recreational opportunities and ancillary services to
their patrons, who do not simply drive onto the reservations, make purchases and depart, but
spend extended periods of time there enjoying the services the Tribes provide. The Tribes
have a strong incentive to provide comfortable, clean, and attractive facilities and well-run
games in order to increase attendance at the games.... [T]he Cabazon and Morongo Bands are
generating value on the reservations through activities in which they have a substantial
interest.64

The Court apparently distinguished bingo enterprises from smokeshops, therefore, because the
tribes invested more money and effort in bingo facilities than in smokeshops, and the customers
were attracted by more than just the opportunity to play bingo free from the limitations from state
law.
The state and county also argued that the Court’s opinion in Rice v. Rehner65 supported
application of their laws to tribal gaming. In Rice the Court held that California could require a
federally licensed Indian trader who was a tribal member and operated a general store on a
reservation to obtain a state liquor license for sales for off-premises consumption.66 The Court
distinguished Rice based on the difference in federal policies concerning tribal and state authority
over liquor and federal policies concerning tribal and state authority over gaming on Indian
reservations:
[O]ur decision [in Rice] rested on the grounds that Congress had never recognized any
sovereign tribal interest in regulating liquor traffic and that Congress, historically, had
60

Id. at 218.
Id. at 218-219.
62
447 U.S. 134 (1980).
63
480 U.S. at 219 (internal quotation marks omitted).
64
Id. at 219-220 (internal quotation marks and citation omitted).
65
463 U.S. 713 (1983).
66
480 U.S. at 220.
61

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plainly anticipated that the States would exercise concurrent authority to regulate the use and
distribution of liquor on Indian reservations. There is no such traditional federal view
governing the outcome of this case, since, as we have explained, the current federal policy is
to promote precisely what California seeks to prevent.67

Essentially, therefore, Rice did not apply to Indian gaming because federal policy, as determined
by the executive branch, promoted Indian gaming that was free from state regulation.
California also asserted that its interest in preventing organized crime from infiltrating tribal
bingo outweighed the federal and tribal interests and justified imposing its laws on tribal gaming.
While acknowledging that the state had a legitimate interest, the Court found it was insufficient
“to escape the pre-emptive force of federal and tribal interests apparent in this case” because there
was no proof that organized crime had infiltrated the tribes’ gaming and because federal policy, as
determined by the executive branch, favored tribal gaming.68
The Court concluded “that the State’s interest in preventing the infiltration of the tribal bingo
enterprises by organized crime does not justify state regulation of the tribal bingo enterprises in
light of the compelling federal and tribal interests supporting them. State regulation would
impermissibly infringe on tribal government.”69

The Dissent
Three Justices dissented from the majority opinion.70 The primary argument of the dissent was
that action by the executive branch is not enough to exempt Indian gaming from state law—
Congress must act to exempt Indian gaming.71
The dissent also disagreed with the majority’s analysis of Public Law 280. The dissenters
believed the plain language of Public Law 280 authorized California to apply its gaming laws to
the tribes’ bingo operations: “Congress expressly provided that the criminal laws of the State of
California ‘shall have the same force and effect within such Indian country as they have
elsewhere within the state.’”72
While acknowledging that the prohibitory/regulatory distinction drawn by the majority was
consistent with precedent, the dissent stated that the Court’s more recent decisions “have made it
clear, however, that commercial transactions between Indians and non-Indians—even when
conducted on a reservation—do not enjoy any blanket immunity from state regulation.”73 The
majority had distinguished this case from Rice v. Rehner, in which the Court held the state could
require a tribal member who was a federally licensed Indian trader selling liquor on the
reservation to obtain a state liquor license for off-premises sales, on the grounds that Congress
never recognized a tradition of tribal sovereignty over alcohol on Indian reservations, but it did
recognize that states would have concurrent jurisdiction over alcohol on Indian reservations. The
67

480 U.S. at 220.
Id. at 221.
69
Id. at 221-222.
70
Justices Stevens, O’Connor, and Scalia dissented with Justice Stephens writing the dissenting opinion.
71
Id. at 222.
72
Id. at 223, quoting 18 U.S.C. §1162.
73
Id.
68

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dissent rejected this explanation by quoting Rice itself: “’If there is any interest in tribal
sovereignty implicated by imposition of California’s alcoholic beverage regulation, it exists only
insofar as the State attempts to regulate Rehner’s sale of liquor to other members of the Pala Tribe
on the Pala Reservation.’”74 According to the dissent, therefore, the tribe’s sovereign interest was
limited to sales between tribal members, implying that the state had an interest in regulating
transactions between Indians and non-Indians on the reservation.
The dissent also rejected the majority’s conclusion that tribal bingo was consistent with the state
public policy because the state regulated bingo, rather than prohibited it. “To argue that the tribal
bingo games comply with the public policy of California because the State permits some other
gambling is tantamount to arguing that driving over 60 miles an hour is consistent with public
policy because the State allows driving at speeds of up to 55 miles an hour.”75
The dissenters believed that even if Public Law 280 did not authorize the state to apply its gaming
laws to the tribes’ bingo operations, the state had authority to apply the gaming laws under
Washington v. Confederated Tribes of the Colville Indian Reservation. In that case, the dissent
noted, the Court rejected the tribe’s argument that, because the revenues from the smokeshops
funded essential government services, the state did not have authority to tax on-reservation
cigarette sales to non-Indians.76 However, the majority seemed to accept that same argument here
when it noted that the revenue from gaming was necessary for the tribes to realize the policy
goals of self-determination and economic self-sufficiency. In addition, the dissent wrote, just as
the smokeshops were marketing an exemption from state taxation, the tribal bingo operations
were marketing an exemption to state law. “[I]t is painfully obvious that the value of the Tribe’s
asserted exemption from California’s gambling laws is the primary attraction to customers who
would normally do their gambling elsewhere.”77
The dissent stated the state had both “economic and protective” interests that justified applying
the gaming laws to tribal bingo.78 The state had determined that:
its interest in generating revenues for the public fisc and for certain charities outweighs the
benefits from a total prohibition against publicly sponsored games of chance. Whatever
revenues the Tribes receive from their unregulated bingo games drain funds from the stateapproved recipients of lottery revenues—just as tax-free cigarette sales in the Confederated
Tribes case diminished the receipts the tax collector would otherwise have received.79

The dissent thought the majority dismissed the state’s concerns about criminal activity associated
with “unregulated” tribal bingo too readily.80 “[U]nless Congress authorizes and regulates these
commercial gambling ventures catering to non-Indians, the State has a legitimate law
enforcement interest in proscribing them.”81

74

Id. at 223-224 (quoting Rice, 463 U.S. at 721).
Id. at 224-225.
76
Id. at 225.
77
Id. at 226.
78
Id.
79
Id.
80
Id. at 226-227.
81
Id. at 227.
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The dissent closed with the following:
Appellants and the Secretary of the Interior may well be correct, in the abstract, that
gambling facilities are a sensible way to generate revenues that are badly needed by
reservation Indians. But the decision to adopt, to reject, or to define the precise contours of
such a course of action, and thereby to set aside the substantial public policy concerns of a
sovereign State, should be made by the Congress of the United States. It should not be made
by the Court, by the temporary occupant of the Office of the Secretary of the Interior, or by
non-Indian entrepreneurs who are experts in gambling management but not necessarily
dedicated to serving the future well-being of Indian tribes.82

It appears, therefore, that Indian gaming escaped regulation by the states because the majority
accepted that the executive branch’s policies and actions supporting tribal bingo as a means for
tribes to realize greater self-determination and economic self-sufficiency could pre-empt state
law.

IGRA
Although the Indian tribes won a big victory in Cabazon, their right to engage in gaming was
vulnerable because if the executive branch ever decided not to encourage Indian gaming as a
means to realize federal policy goals of self-determination and economic self-sufficiency, under
the reasoning of Cabazon, states would be able to enforce their gaming laws against tribal gaming
on tribal land. Moreover, tribal gaming operations apparently were still subject to closure under
FACA and OCCA. Therefore, federal legislation was needed to secure the tribes’ ability to engage
in gaming free from state regulation. One of IGRA’s policy goals was “to provide a statutory
basis for the operation of gaming by Indian tribes as a means of promoting tribal economic
development, self-sufficiency, and strong tribal governments.”83 Furthermore, Congress needed to
provide for regulation of Indian gaming to satisfy state and federal entities concerned about
criminal infiltration of Indian gaming. Congress had been considering Indian gaming bills for
approximately four years when the Supreme Court decided Cabazon. IGRA was not so much a
direct response to Cabazon, as it was the culmination of congressional efforts which were focused
by the Court’s decision in Cabazon.84
As explained in the Senate report on the bill that became IGRA, Congress sought to “preserve the
right of tribes to self-government while, at the same time, to protect both the tribes and the
gaming public from unscrupulous persons. An additional objective inherent in any government
regulatory scheme is to achieve a fair balancing of competitive economic interests.”85 The states
wanted Congress to authorize state regulation of Indian gaming, to subject Indian gaming to the
same rules as non-Indian gaming, and to allow state taxation of Indian gaming.86 The tribes
opposed any state regulation and lobbied for exclusive tribal regulation.87 As a fallback position,

82

Id.
25 U.S.C. §2702(1).
84
Clinton, supra note 9 at 52.
85
S. Rpt. 100-446 (100th Cong, 2d sess.) at 1-2.
86
Indian Gaming and Tribal Sovereignty, supra note 4 at 43.
87
Id.
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tribes were prepared to accept federal, but not state, regulation.88 In IGRA, Congress maintained
the current regulatory scheme of tribal and federal regulation of bingo and provided a framework
for the regulation of Indian casino gaming which would not unilaterally impose state jurisdiction
on the tribe’s gaming, but would allow tribes to determine the extent to which they were willing
to subject themselves to state jurisdiction through a tribal-state compact.89
IGRA provided a statutory basis for Indian gaming on “Indian lands” and struck a balance
between tribal, state, and federal interests in its scheme for regulating Indian gaming. It also
created the National Indian Gaming Commission (NIGC) as an independent agency to oversee
and regulate Indian gaming on the federal level.

What are “Indian Lands?”
Because IGRA authorizes Indian gaming only on “Indian lands,” it is important to understand
what land constitutes “Indian lands.” Section 2703(4) defines “Indian lands” to include any lands
within a reservation and any land outside a reservation which is either held in trust or the title to
which is subject to restriction “over which an Indian tribe exercises governmental power.”90
For non-reservation trust or restricted fee land, therefore, the tribe must exercise “governmental
authority” over it. A prerequisite to exercising governmental power over trust or restricted fee
land is jurisdiction.91 A tribe cannot satisfy the requirement that it exercises governmental power
over the land by taking unilateral action, such as obtaining the landowner’s consent to its
authority, posting the land as tribal territory, flying the tribal flag on the land, or providing
periodic law enforcement on the land. Rather, the tribe must have jurisdiction over the land under
federal law.92
A tribe’s jurisdiction over land depends on whether the land is “Indian country.”93 Indian country
includes reservations, dependent Indian communities,94 and allotments held in trust or restricted
fee.95 Only land that has been set aside for Indian use and is superintended by the federal
government qualifies as Indian country.96 Land need not be formally declared a reservation to
qualify as Indian country as a reservation; rather it is enough if it is tribal trust land.97 Therefore,
outside of a reservation, a tribe exercises jurisdiction over land that is its own trust land or an
allotment belonging to a member of the tribe.

88

Id.
S. Rpt. 100-44, supra note 85 at 5-6.
90
25 U.S.C. §2703(4).
91
Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001).
92
Id. at 1229.
93
Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 527 n. 1 (1998).
94
The term “dependent Indian community” “refers to a limited category of Indian lands that are neither reservations
nor allotments, and that satisfy two requirements—first, they must have been set aside by the Federal Government for
the use of the Indians as Indian lands, second, they must be under federal superintendence.” Id. at 527.
95
18 U.S.C. §1151. Although the Indian country statute addresses federal criminal jurisdiction, it applies to civil
jurisdiction as well. Venetie, 522 U.S. at 527.
96
Venetie, 522 U.S. at 530.
97
See, Oklahoma Tax Comm’n v. Citizen Band Potowatomi Indian Tribe of Oklahoma 498 U.S. 505, 511 (1991).
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Having jurisdiction and exercising governmental power are not the same thing.98 Aside from
jurisdiction, courts have looked for “concrete manifestations” that the tribe exercises
governmental authority.99 In Rhode Island v. Narragansett Indian Tribe, the court accepted the
tribe receiving funds to administer federal programs under the Indian Self-Determination and
Education Assistance Act, establishing a housing authority and receiving funds for federal
programs from the Department of Housing and Urban Development, and receiving “treatment as
a state” status for the purposes of federal environmental statutes as sufficient to establish that it
exercised governmental power.100
“Indian lands,” therefore, include any land within an Indian reservation and trust or restricted fee
land over which the tribe has jurisdiction under federal law and exercises governmental power.
The trust or restricted fee land can be owned by the tribe itself or a tribal member.101

Gaming on Newly Acquired Lands102
IGRA explicitly prohibits gaming on land acquired by the Secretary in trust after October 17,
1988, the effective date of IGRA.103 However, there are a number of restrictions on, and
exceptions to, this prohibition.
The prohibition does not apply to land acquired by the Secretary that is “located within or
contiguous to the boundaries of the reservation of the Indian tribe on October 17, 1988.”104 It also
does not apply if the tribe has no reservation on October 17, 1988, and (1) the lands are located in
Oklahoma and are within the boundaries of the tribe’s former reservation or are contiguous to
other trust land held for the tribe; or (2) the lands are located in a state other than Oklahoma and
are within the tribe’s last recognized reservation within the state or states in which the tribe is
located now.105
There are two exceptions to the prohibition. The first exception, referred to as the “two part
determination,” allows gaming on trust land acquired after October 17, 1988, if the Secretary,
after consulting with the tribe and appropriate state and local officials, “determines that a gaming
establishment on the newly acquired lands would be in the best interest of the Indian tribe and its
members, and would not be detrimental to the surrounding community, but only if the Governor
of the State in which the gaming activity is to be conducted concurs in the Secretary’s

98

Indian Gaming Law, supra note 10 at 111-112.
Id. quoting Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 703 (1st Cir. 1994), cert. denied, 513 U.S. 919
(1994).
100
Narragansett, 19 F.3d at 703; see also, Cheyenne River Sioux Tribe v. South Dakota, 830 F. Supp. 523, 527 (D.S.D.
1993) (finding record insufficient to determine “(1) whether the areas are developed; (2) whether tribal members reside
in those areas; (3) whether any governmental services are provided and by whom; (4) whether law enforcement on the
lands in question is provided by the Tribe or the State; and (5) other indicia as to who exercises governmental power
over those areas.”).
101
25 U.S.C. §2703(4).
102
For a detailed discussion of this topic, see CRS Report RL34325, Indian Gaming Regulatory Act (IGRA): Gaming
on Newly Acquired Lands, by (name redacted).
103
25 U.S.C. §2719.
104
25 U.S.C. §2719(a)(1).
105
25 U.S.C. §2719(a)(2).
99

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determination.”106 The second exception applies to lands that are taken into trust as part of a
settlement of a land claim,107 as part of “the initial reservation of an Indian tribe acknowledged by
the Secretary under the Federal acknowledgment process,”108 or as part of “the restoration of
lands for an Indian tribe that is restored to Federal recognition.”109

The Classes of Indian Gaming and Corresponding
Regulatory Regimes
IGRA provides federal authorization for tribal gaming, including slot machines,110 on “Indian
lands.” IGRA deals with the regulation of Indian gaming by dividing gaming into three classes
and apportioning responsibility for regulating each class between tribes, states, and the federal
government.

Class I Gaming
IGRA defines “class I gaming” to mean “social games solely for prizes of minimal value or
traditional forms of Indian gaming engaged in by individuals as a part of, or in connection with,
tribal ceremonies or celebrations.”111 Class I gaming is regulated exclusively by the tribes and is
not subject to the provisions of IGRA.112

Class II Gaming
Class II gaming is defined as “the game of chance commonly known as bingo (whether or not
electronic, computer, or other technologic aids are used in connection therewith) … including (if
played in the same location) pull-tabs, lotto, punch boards, tip jars, instant bingo and other games
similar to bingo.”113 The NIGC regulations provide that “electronic, computer, or other
technologic aids” means a machine or device that simply assists the player in playing the game.114
It cannot be a facsimile of the game115—in other words, the player must play against other
players, not a machine.116 If the device merely broadens the participation in a game by allowing a
player to play against more players, or to play at a remote location, it qualifies under class II.117

106

25 U.S.C. §2719(b)(1)(A).
25 U.S.C. §2719(1)(B)(i).
108
25 U.S.C. §2719(b0(1)(B)(ii).
109
25 U.S.C. §2719(b)(1)(B)(iii).
110
25 U.S.C. §2710(d)(6).
111
25 U.S.C. §2703(6).
112
25 U.S.C. §2710(a)(1).
113
25 U.S.C. §2703(7)(A)(i).
114
25 C.F.R. §502.7(a)(1).
115
25 C.F.R. §502.7(a)(2).
116
Cadillac Jack “Triple Threat Bingo” Advisory Game Opinion, December 23, 2004, at 14 (available at
http://www.NIGC.gov).
117
25 C.F.R. §502(b). The issue of whether a device qualifies under class II has been widely litigated. See Indian
Gaming Law supra note 10 at 125-153 for a number of cases and discussion of the issues raised by the cases.
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In addition to bingo and similar games, class II gaming also includes card games that are either
“explicitly authorized by the laws of the State, or are not explicitly prohibited by the laws of the
State and are played at any location in the State.”118 However, such card games must conform to
state laws regarding hours of operation and “limitations on wagers or pot sizes.”119 IGRA
explicitly provides that class II does not include “any banking card games,120 including baccarat,
chemin de fer, or blackjack (21), or electronic or electromechanical facsimiles of any game of
chance or slot machines of any kind.”121
Class II gaming may be conducted on Indian lands located in a state that “permits such gaming
for any purpose by any person, organization or entity.”122 IGRA maintained the regulatory scheme
that existed in Cabazon123—tribal regulation with federal oversight. Under IGRA, class II gaming
is subject to regulation by the tribes—it must be conducted under a tribal gaming ordinance—and
subject to the oversight of the NIGC—the NICG must approve tribal gaming ordinances124 and
has the responsibility for monitoring and inspecting class II operations.125

Class III Gaming
IGRA defines class III gaming simply as “all forms of gaming that are not class I or class II
gaming.”126 The NIGC has defined class III gaming in its regulations as “including but not limited
to” any card game that is played against the house, “such as baccarat, chemin de fer, blackjack
(21), and pai gow,” and casino games “such as roulette, craps, and keno.”127 It also includes slot
machines,128 sports betting and pari-mutuel wagering (horse racing, dog racing, and jai alai),129
and lotteries.130
IGRA authorizes class III gaming subject to three conditions. First, class III gaming activities
must be authorized by a tribal gaming ordinance that satisfies the same requirements as the
ordinance governing class II gaming and is approved by NIGC.131 Second, class III gaming can
only occur in a state that permits “such gaming for any purpose by any person, organization or
entity.”132 Jurisdictions vary on whether “such gaming” refers to the particular gaming activity133
118

25 U.S.C. §2703(7)(A)(ii).
Id.
120
NIGC regulations define “house banking game” to mean “any game of chance that is played with the house as a
participant in the game, where the house takes on all players, collects from all losers, and pays all winners, and the
house can win.” 25 C.F.R. §502.11.
121
25 U.S.C. §2703(7)(B).
122
25 U.S.C. §2710(b).
123
S. Rpt. 100-446, supra note 85 at 9.
124
Id.
125
25 U.S.C. §2706(b).
126
25 U.S.C. §2703(8).
127
25 C.F.R. §502.4(a).
128
25 C.F.R. §502.4(b).
129
25 C.F.R. §502.4(c).
130
25 C.F.R. §502.4(d).
131
25 U.S.C. §2710(d)(1)(A).
132
25 U.S.C. §2710(d).
133
Rumsey Indian Rancheria of Wintum Indians v. Wilson, 41 F.3d 421 (9th Cir. 1994), reh’g denied 64 F.3d 1250 (9th
(continued...)
119

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or refers to class III gaming in general.134 Third, class III gaming can only be conducted pursuant
to a tribal-state gaming compact approved by the Secretary or under procedures promulgated by
the Secretary under circumstances identified in IGRA.135

Tribal-State Compacts
In Cabazon, the Court recognized that the state had a legitimate interest in preventing infiltration
of Indian gaming by organized crime. Because there was no evidence of infiltration of tribal
bingo operations, the Court did not find that the state’s interest was sufficient to justify state
regulation. However, the drafters of IGRA did not believe that this reasoning applied to casino
gaming.136 Because casino gaming was perceived as more vulnerable to criminal activity than
bingo, the drafters of IGRA believed states had a legitimate interest in having a hand in regulating
casino gaming.137
Congress recognized that both tribes and states have interests in class III gaming on tribal lands.
A tribe’s governmental interests include raising revenue for the benefit of the tribal
community and reservation residents, promoting public safety as well as law and order on
tribal lands, realizing the objectives of economic self-sufficiency and Indian selfdetermination, and regulating activities of persons within its jurisdictional borders. A State’s
governmental interests with respect to class III gaming on Indian lands includes the interplay
of such gaming with the State’s public policy, safety, law and other interests, as well as
impacts on the State’s regulatory system, including its economic interest in raising revenue
for its citizens.138

The compact provision was a compromise between the state’s position of exclusive state
regulation and the tribal position of exclusive tribal regulation.139
IGRA identifies particular subjects that are appropriate for compact negotiation: the application of
criminal and civil laws of the tribe and the state; the allocation of civil and criminal jurisdiction
between the tribe and the state; assessment of fees by the state to recoup the cost of regulating the
tribe’s gaming; tribal taxation; and, remedies for breach of contract.140 In addition, IGRA provides
a catch-all for “subjects that are directly related to the operation of gaming activities.”141
Congress intended that gaming compacts would be limited to issues related to gaming142 and
would not “be used as a subterfuge for imposing State jurisdiction on tribal lands.”143 IGRA
(...continued)
Cir. 1994), reh’g denied, 99 F.3d 321 (1996), cert. denied sub nom, Sycuan Band of Mission Indians v. Wilson, 521
U.S. 1118 (1997).
134
Lac du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F. Supp. 480 (W.D. Wisc. 1991).
135
25 U.S.C. §2710(d)(1)(C).
136
Indian Gaming and Tribal Sovereignty, supra note 4 at 44.
137
Id.
138
S. Rpt. 100-446, supra note 85 at 13.
139
Indian Gaming and Tribal Sovereignty, supra note 4 at 42-44.
140
25 U.S.C. §2710(d)(3)(C).
141
Id.
142
S. Rpt. 100-446, supra note 85 at 6.
143
Id. at 14.

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specifically provides that although states may recoup the costs of regulating a tribe’s gaming, they
may not “impose any tax, fee, charge, or other assessment upon an Indian tribe … to engage in a
class III activity.”144
Compacts take effect when the Secretary publishes notice in the Federal Register that he has
approved the compact.145 The Secretary may disapprove a tribal-state compact only if it violates
IGRA, any other provision of federal law, or “the trust obligations of the United States to
Indians.”146 If the Secretary does not approve or disapprove of a compact within 45 days of the
date on which the compact was submitted for approval, “the compact shall be considered to have
been approved by the Secretary, but only to the extent the compact is consistent with the
provisions of this chapter.”147

NIGC
IGRA established the NIGC to provide federal regulation of Indian gaming. NIGC is funded
through fees on class II and class III gaming and appropriations.148 It is composed of a chairman
who is appointed by the President with the advice and consent of the Senate, and two “associate
members” who are appointed by the Secretary.149 Members serve for three-year terms, which may
be renewed.150 Members can be removed only for cause.151 Both political parties must be
represented among the members and at least two of the members must be enrolled members of
Indian tribes.152 NIGC plays a role in regulating class II and class III gaming by approving
gaming ordinances and management contracts and taking enforcement actions. It also makes
initial determinations of whether land qualifies as “Indian land” and is, therefore, eligible for
gaming.

Approval of Tribal Gaming Ordinances
Tribes can conduct class II and class III gaming only if they have an ordinance or a resolution
authorizing and regulating the gaming that is approved by the chairman of NIGC. The IGRA
provisions regarding tribal gaming ordinances are aimed at ensuring that the tribe itself is
responsible for the gaming, that the revenues from tribal gaming are used primarily to benefit the
tribe and its members, and that the integrity of the tribal gaming operation is adequately
protected.
IGRA mandates that the chairman approve any ordinance that:

144

25 U.S.C. §2710(d)(4).
25 U.S.C. §2710(d)(3)(B).
146
25 U.S.C. §2710(d)(7)(B).
147
25 U.S.C. §2710(d)(8)(C).
148
25 U.S.C. §2717.
149
25 U.S.C. §2704(a)(1).
150
25 U.S.C. §2704(b)(4)(A).
151
25 U.S.C. §2704(b)(6).
152
25 U.S.C. §2704(b)(3).
145

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•

ensures that the tribe has “the sole propriety interest and responsibility for the
conduct of any gaming”;153

•

limits the uses to which gaming revenues may be put to those that benefit the
tribe, tribal members, charities, or local governments;154

•

requires annual outside audits of gaming operations, which the tribe must provide
to the NIGC,155 and independent audits of contracts exceeding $25,000
annually;156

•

requires that construction, maintenance, and operation of the gaming facility is
conducted “in a manner which adequately protects the environment and the
public health and safety”;157 and

•

provides a system for background checks of key persons, a standard for
employing individuals to ensure the integrity of the gaming operations, and a
gaming licensing process.158

If the chairman does not act within 90 days, IGRA deems the ordinance approved.159
For class III ordinances, there are two limitations on the chairman’s authority to approve them
which provide additional safeguards for the tribes and the integrity of the gaming. The chairman
“shall approve any [class III] ordinance or resolution ... unless the Chairman specifically
determines that”:
•

the ordinance was not adopted in compliance with the governing documents of
the tribe;160 or

•

the tribal governing body was “significantly and unduly influenced” in its
adoption of the ordinance by a person who “has been determined to be a person
whose prior activities, criminal record, if any, or reputation, habits, and
associations pose a threat to the public interest or to the effective regulation and
control or gaming, or create or enhance the dangers of unsuitable, unfair, or
illegal practices, methods, and activities in the conduct of gaming or the carrying
on of the business and financial arrangements incidental thereto.”161

153

25 U.S.C. §2710(b)(2)(A).
Proceeds from gaming may only be used to fund tribal government operations and programs; to provide for the
“general welfare of the Indian tribe and its members”; to promote economic development; to donate to charities; and to
help fund local government agencies. 25 U.S.C. §2710(b)(2)(B). A tribe may make per capita payments to its members
but such payments must be made under a plan approved by the Secretary. 25 U.S.C. §2710(b)(3). In approving such a
plan, the Secretary must ensure that it is “adequate” in providing for tribal government operations or programs and
tribal economic development. Id.
155
25 U.S.C. §2710(b)(2)(C).
156
25 U.S.C. §2710(b)(2)(D).
157
25 U.S.C. §2710(b)(2)(E).
158
25 U.S.C. §2710(b)(2)(F). Tribes must notify the NIGC when it issues licenses and NIGC has 30 days to notify the
tribe of any objections to the issuance of the license. 25 U.S.C. §2710(c)(1). If the NIGC receives “reliable
information” that a tribal license holder is a threat to the integrity of the gaming operation, the tribe will suspend the
license or revoke it after an opportunity for a hearing. 25 U.S.C. §2710(c)(2).
159
25 U.S.C. §2710(e).
160
25 U.S.C. §2710(d)(2)(B)(i).
161
25 U.S.C. §2710(d)(2)(B)(ii).
154

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Approval of Management Contracts
Indian tribes may enter into management contracts for the operation and management of class II
and class III gaming, subject to the approval of NIGC.162 IGRA provisions regarding NIGC
review of management contracts are aimed at ensuring tribal control of Indian gaming,163
ensuring that tribes are the primary beneficiaries of Indian gaming,164 and protecting the integrity
of Indian gaming.165 Ultimately, NIGC has discretion to disapprove a management contract if “a
trustee, exercising the skill and diligence that a trustee is commonly held to, would not approve
the contract.”166

Enforcement Actions by the NIGC
The chairman has authority to impose civil fines up to $25,000 against the tribal operator or
management contractor per violation of IGRA, NIGC regulations, or tribal gaming ordinances.167
A tribal operator or management contractor may appeal the fine to the full commission at a
hearing prescribed by regulations.168 The chairman may order the temporary closure of an Indian
162

25 U.S.C. §2711(a). The NIGC has 180 days to approve or disapprove of a management contract.; NIGC may
extend that deadline by 90 days provided it gives the tribe a reason for the delay in writing. 25 U.S.C. §2711(d).
163
The management contract must provide for the maintenance of adequate accounting procedures and the preparation
of monthly “verifiable financial reports” prepared by or for the tribal governing body. 25 U.S.C. §2711(b)(1).
Appropriate “tribal officials” must have access to the daily operation of the gaming activity and a right to verify the
daily gross revenues and income from the gaming activity. 25 U.S.C. §2711(b)(2). In general, the management contract
term may not exceed five years. However, NIGC may authorize a term up to seven years, if it is “satisfied that the
capital investment required, and the income projections, for the particular gaming activity require the additional time.”
25 U.S.C. §2711(b)(5). The management contract must provide the grounds and mechanisms for its termination. Actual
termination, however, does not require approval by NIGC. 25 U.S.C. §2711(c)(1). NIGC “shall not” approve a contract
if the contractor has, or attempted to, “unduly interfere or influence for its gain or advantage any decision or process of
tribal government relating to the gaming activity.” 25 U.S.C. §2711(e)(2).
164
The minimum guaranteed payment to the tribe must have preference over the retirement of development and
construction costs. 25 U.S.C. §2711(b)(3). There must be an agreed ceiling for the repayment of development and
construction costs. 25 U.S.C. §2711(b)(4). The NIGC may approve a management contract that provides for a fee to the
management contractor based on a percentage of the net revenues of the tribal gaming, up to 30%, if the NIGC
determines that the fee is “reasonable in light of the surrounding circumstances.” 25 U.S.C. §2711(c)(1). If an Indian
tribe requests a fee for the management contractor between 30% and 40% of the net revenues from tribal gaming, the
NIGC may approve the request if it is “satisfied that the capital investment required, and income projections, for such
tribal gaming activity require the additional fee requested by the Indian tribe.” 25 U.S.C. §2711(c)(2).
165
Before approving a management contract, NIGC requires background information on “each person or entity
(including individuals comprising such entity) having a direct financial interest in, or management responsibility for”
the management contract, 25 U.S.C. §2711(a)(1)(A); a description of any previous experience that such person or entity
has with Indian gaming or gaming in general, 25 U.S.C. §2711(a)(1)(B); and a complete financial statement of such
persons. 25 U.S.C. §2711(a)(1)(C). The NIGC “shall not” approve a management contract if any person having a direct
financial interest in, or management responsibility for, the management contract is an elected member of the tribe’s
governing body; has been convicted of a felony or gaming offense; has “knowingly and willfully provided materially
important false statements or information” to the NIGC or the tribe or has refused to respond to questions of the NIGC;
or “has been determined to be a person whose activities, criminal record, if any, or reputation, habits, and associations
pose a threat to the public interest or to the effective regulation and control of gaming, or create or enhance the dangers
of unsuitable, unfair, or illegal practices, methods, and activities in the conduct of gaming or the carrying on of the
business and financial arrangements incidental thereto.” 25 U.S.C. §2711(e)(1). The NIGC “shall not” approve a
contract if the contractor has “deliberately or substantially” failed to comply with the management contract or the tribal
gaming ordinance. 25 U.S.C. §2711(e)(3).
166
25 U.S.C. §2711(e)(4).
167
25 U.S.C. §2713(a).
168
25 U.S.C. §2713(a)(2).

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gaming operation for “substantial violation” of IGRA, NIGC regulations, or tribal ordinances.169
Within 30 days of the chairman’s order closing a gaming operation, the Indian tribe or
management contractor has a right to a hearing before the full commission to determine whether
the order should be made permanent.170 The commission must make a decision within 60 days.171
Whenever the NIGC has “reason to believe” that a tribal operator or management contractor is
engaged in activities that may result in a fine, permanent closure of the operation, or modification
of the management contract, the NIGC must provide a “written complaint stating the acts or
omissions which form the basis for such belief and the action or choice of action being
considered.”172

Other Authorities and Responsibilities of NIGC
The full commission has authority to adopt regulations for assessing and collecting civil fines, to
establish the fees that the commission will collect to fund its activities, and to authorize the
chairman to issue subpoenas.173 The commission also has responsibility to monitor class II
gaming “on a continuing basis”;174 to inspect class II premises;175 to conduct background
investigations;176 to “demand access to and inspect, examine, photocopy, and audit all papers,
books, and records respecting gross revenues of class II gaming conducted on Indian lands and
any other matters necessary to carry out the duties of the Commission under this chapter”;177 and
to conduct hearings and administer oaths.178 IGRA directs that NIGC submit a report, with
minority views, to Congress every two years concerning matters related to NIGC’s
administration, recommended amendments to IGRA, and “any other matter considered
appropriate by the Commission.”179

Indian Land and Classification Determinations
In addition to the above authorities provided by IGRA, the NIGC makes “Indian land”
determinations, which determine whether a given parcel of land qualifies as Indian land180 and
classification determinations, which determine whether a particular device qualifies as a class II
or class III game.181 For non-reservation land, the NIGC determines whether the tribe has
jurisdiction and exercises governmental power over the land.182
169

25 U.S.C. §2713(b)(1).
25 U.S.C. §2713 (b)(2).
171
Id.
172
25 U.S.C. §2713(a)(3).
173
25 U.S.C. §2706(a).
174
25 U.S.C. §2706(b)(1).
175
25 U.S.C. §2706(b)(2).
176
25 U.S.C. §2706(b)(3).
177
25 U.S.C. §2706(b)( 4).
178
25 U.S.C. §2706(b)(8)-(9).
179
25 U.S.C. §2706(c).
180
Indian Gaming Law, supra note 10 at 112-113.
181
Id. at 282-287.
182
Id. at 112-113.
170

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Tribal-State Compacts and Seminole Tribe of Florida v. Florida
As mentioned above, class III gaming can only occur under a tribal-state compact or under
procedures promulgated by the Secretary under circumstances identified in IGRA. A tribe seeking
to engage in class III gaming must request the state in which the Indian lands are located to
negotiate a class III gaming compact.183 IGRA provides that upon receiving such a request, “the
State shall negotiate with the Indian tribe in good faith to enter into such a compact.”184 In order
to make sure that states negotiate in good faith, IGRA gave jurisdiction to federal district courts
over “any cause of action initiated by an Indian tribe arising from the failure of a State to enter
into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact ... or
to conduct such negotiations in good faith.”185
In Seminole Tribe of Florida v. Florida,186 the Supreme Court held that Congress did not have
authority under the Indian Commerce Clause to waive states’ sovereign immunity to lawsuits by
tribes to enforce the good faith bargaining requirement. It held further that the doctrine of Ex
parte Young187 did not authorize suits against the governor for failing to negotiate in good faith
because Congress provided the exclusive mechanism to remedy a state’s violation of IGRA.188
After Seminole, therefore, IGRA no longer guaranteed that tribes would be able to engage in class
III gaming if a state refused to negotiate.

The Secretarial Procedures
The Supreme Court’s decision in Seminole struck down IGRA’s procedures that practically
guaranteed that a tribe would be able to engage in class III gaming even when the state objected.
The Secretary adopted regulations—called Secretarial Procedures—that provide an administrative
process, modeled after the IGRA process, under which a tribe could conduct class III gaming
when a state asserts its sovereign immunity to a lawsuit brought by the tribe to enforce the good
faith requirement.189 Once a state asserts its sovereign immunity, a tribe may submit a proposal
for class III gaming to the Secretary.190 The Secretary then gives the state 60 days to comment and
submit its own proposal.191 If the state does not submit a proposal, the Secretary reviews the
tribe’s proposal and either approves it or offers the tribe and the state a conference to address
“unresolved issues and areas of disagreements.”192 The Secretary must then make a “final
decision either setting forth the Secretary’s proposed Class III gaming procedures for the Indian
tribe, or disapproving the proposal.”193 If the state submits a proposal, the Secretary appoints a
183
184

25 U.S.C. §2710(3)(A).
Id.

185

25 U.S.C. §2710(d)(7)(A)(i). Under 25 U.S.C. §2710(d)(7)(B)(i), a tribe may initiate such an action after
180 days of requesting the state to negotiate a compact.

186

527 U.S. 44 (1996).
209 U.S. 123 (1908). Ex parte Young held that federal courts have jurisdiction over a suit against a state official
when the suit seeks injunctive relief to end a continuing violation of federal law.
188
527 U.S. at 74-75.
189
25 C.F.R. Part 291.
190
25 C.F.R. §291.7.
191
Id.
192
25 C.F.R. §291.8.
193
Id.
187

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mediator who will follow the IGRA procedures to resolve the differences between the two
proposals.194 The Secretary may reject the mediator’s proposal but he “must prescribe appropriate
procedures within 60 days under which Class III gaming may take place.”195 While IGRA
required a judicial finding of a state’s bad faith, the Secretary’s regulations apply anytime a state
asserts its sovereign immunity, regardless of whether it was negotiating in good faith. Moreover,
IGRA provided for a mediator selected by the court and proscribed the Secretary’s discretion in
prescribing class III procedures by requiring that they be consistent with the mediator’s proposal.
In Texas v. United States,196 the U.S. Court of Appeals for the Fifth Circuit held that IGRA did not
authorize the Secretary to promulgate the Secretarial Procedures. In particular, the court noted
that IGRA required involvement of the judiciary in finding bad faith and selecting a mediator, and
circumscribed the Secretary’s discretion to select procedures under which a tribe may engage in
class III gaming by requiring that they be consistent with the compact the mediator selected.197
Because the Secretarial Procedures did not require a judicial finding of bad faith and judicial
appointment of a mediator, they were found to be inconsistent with IGRA.198
IGRA practically guaranteed that tribes would be able to engage in Class III gaming even over the
objections of a state by providing that tribes could sue states in federal district court. After
Seminole, IGRA no longer carried that guarantee. The Secretarial Procedures were designed to
replace IGRA’s procedures to allow tribes to conduct class III gaming when a state refuses to
waive its sovereign immunity. Texas v. United States invalidated the Secretarial Procedures for the
states of Mississippi, Louisiana, and Texas, the states located within the Fifth Circuit. Although
the Secretarial Procedures are still presumably valid outside the Fifth Circuit, Texas v. United
States has raised uncertainty about their legality.

Revenue Sharing Under Class III Compacts
At least one commentator has argued that the Supreme Court’s decision in Seminole upset the
balance of power between the tribes and the states in favor of the states.199 Seminole left states in
a position to dictate terms to tribes200 and many states began negotiating for a share of gaming
revenues.201 Although IGRA explicitly prohibits states from imposing a tax or a fee on Indian
gaming,202 the Secretary and the courts have allowed revenue sharing provided the tribes get
something to which they are not otherwise entitled, usually exclusivity for Indian gaming, in
return.203 However, revenue sharing percentages have increased even as states have not been able
194

25 C.F.R. §§291.9, 291.10.
25 C.F.R. §291.11.
196
497 F. 3d 491 (5th Cir. 2007), cert. denied sub nom, Kickapoo Traditional Tribe v. Texas, 555 U.S. 881 (2008).
197
Id. at 503 and 512 (concurrence).
198
Id. at 511 and 512 (concurrence).
199
Steven Andrew Light, Kathryn R.L. Rand & Alan P. Meister, Spreading the Wealth: Indian Gaming and Revenue
Sharing Agreements, 80 N.D. Law Rev. 657, 664 (2004).
200
Indian Gaming and Tribal Sovereignty, supra note 4 at 58-59; Fletcher, supra note 29 at 57-58.
201
Light, Rand & Meister, supra note 199 at 665.
202
25 U.S.C. §2710(d)(4).
203
Kevin Gover & Tom Gede, The States as Trespassers in a Federal-Tribal Relationship: A Historic Critique of
Tribal-State Compacting Under IGRA, 42 Ariz. St. L. J. 185, 210-214 (2010-2011); Fletcher, supra note 29 at 61; In
re: Indian Gaming Related Cases, 331 F.3d 1094 (9th Cir. 2002).
195

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to offer greater exclusivity.204 Such revenue sharing appears to violate IGRA’s prohibition on state
taxation of Indian gaming. In Rincon Band of Luiseno Mission Indians of the Rincon Reservation
v. Schwarzenegger,205 the U.S. Court of Appeals for the Ninth Circuit found that in negotiating an
amendment to the tribe’s compact, California’s demand for a substantial percentage of the gaming
revenues which would be paid to the state’s general fund, was made in bad faith, in part, because
the state was not offering any greater exclusivity than the tribe had under its existing compact.206
Rincon has limited implications for states other than California because, California waived its
sovereign immunity to suits to enforce the good faith negotiation requirement. Because of
Seminole, most tribes that want to engage in class III gaming apparently have no alternative but to
agree to revenue sharing if the state demands it.

States’ Requests for Tribal Concessions Unrelated to Gaming
Although it is not as common as revenue sharing, some states are trying to obtain tribal
concessions on issues unrelated to tribal gaming as a condition of agreeing to a class III
compact.207 For example, in Wisconsin, Governor Tommy Thompson proposed that the
Wisconsin tribes relinquish their hunting and fishing rights and agree to state taxation of onreservation cigarette and gasoline sales.208 In California, environmental and labor issues have
been included in class III compacts with tribes throughout the state.209 Because most tribes have
no recourse in the face of such demands, states may continue to raise non-gaming issues in
compact negotiations.

Proposed Amendments to IGRA
Recent proposed amendments to IGRA have been aimed primarily at IGRA’s provisions allowing
gaming on newly acquired lands. Because location near a large metropolitan center may be
critical to large profits for Indian gaming,210 tribes have tried to acquire Indian lands away from
their reservations near population centers under the exceptions to IGRA’s prohibition on gaming
on newly acquired lands.211 Gaming on land acquired in trust pursuant to the exceptions is
controversial.212 As of June 2010, 31 applications for land into trust were granted under the

204

Fletcher, supra note 29 at 60-64.
602 F.3d 1019 (9th Cir. 20100, cert. denied sub nom, Brown v. Rincon Band of Luiseno Indians of the Rincon
Reservation, 2011 U.S. LEXIS 4917 (U.S., June 27, 2011).
206
Id. at 1038.
207
Indian Gaming and Tribal Sovereignty, supra note 4 at 58-59.
208
Id. In the end, the tribes did not relinquish their hunting and fishing rights but did agree to pay the state $100 million
dollars per year.
209
Gover & Gede, supra note 203 at 207-208; see e.g. Compacts between California and the Dry Creek Rancheria and
the Cahuilla Band of Mission Indians, May 5, 2000, §§10.7 and 10.8 (available at http://www.NIGC.gov).
210
Tribal gaming in the two densely populated NIGC regions that include California, Connecticut, Florida and New
York totaled 20% of the total number of Indian gaming operations but generated 50% of the revenues. The Hand That’s
Been Dealt, supra note 3 at 424.
211
Indian Gaming and Tribal Sovereignty, supra note 4 at 63-65.
212
See id.
205

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exceptions.213 Because of the controversy, however, off-reservation gaming has caught the
attention of Congress.
Introduced in the 112th Congress, S. 771214 would restrict gaming on newly acquired lands by
requiring that tribes demonstrate to the Secretary that they have a “substantial, direct, modern
connection” and a “substantial, direct, aboriginal connection” to the newly acquired lands. If the
Secretary determines there is a modern connection to the land, he would have to certify the
following:
•

If the tribe has a reservation, the land is within 25 miles of the tribal headquarters
or other government facilities on the reservation; from October 17, 1988, the
tribe has demonstrated a routine presence on the land; and the tribe has not been
restored to federal recognition or acknowledged within the preceding five years.

•

If the tribe does not have a reservation, the land is located within 25 miles of
where a substantial number of members live; from October 17, 1988, the tribe
has demonstrated a routine presence on the land; the land was within the firstsubmitted request for land since acknowledgment or restoration or the application
to take land into trust was within five years of acknowledgment or restoration;
and the tribe is not gaming on other land.

In determining that the tribe has an aboriginal connection to the land, the Secretary would have to
consider the following:
•

The tribe’s historical presence on the land;

•

Whether the membership can demonstrate lineal descent or cultural affiliation
with the land;

•

The area in which the tribe’s language was spoke;

•

The proximity of tribal sacred sites;

•

Forcible removal from the land; and

•

Other factors that demonstrate the tribe’s presence prior to its fist interactions
with non-natives, the federal government, or another sovereign.

S. 2676,215 introduced in the 110th Congress, would have amended IGRA in several ways. First, it
would have struck all the exceptions to the prohibition on gaming on newly acquired lands,
except for the two part determination. Second, it would have amended the two part determination
to require that the Secretary consult with tribal, state, and local jurisdictions within 60 miles of
the trust land and require that the Secretary consider the “results of a study of the economic
impact of the gaming establishment” in determining that the gaming operation would not have a
negative impact on any tribal, state, or local jurisdiction located within 60 miles. The proposed
bill would also require the concurrence of the state legislature, as well as the governor, for the two
part determination. In addition, it would have required that the tribe satisfy certain criteria to
demonstrate that it has a “geographic, social, and historical nexus” to the land. The proposed bill
213
June 18, 2010, Memorandum from Secretary Ken Salazar to Assistant Secretary—Indian Affairs Larry Echohawk
re: Decisions on Indian Gaming Applications, at 2.
214
S. 771, 112th Cong. (2011).
215
S. 2676, 110th Cong. (2008).

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would have amended IGRA’s authorization of class II gaming by restricting class II gaming to
lands that were Indian lands on the date of enactment or land acquired afterwards provided the
tribe indicated it would engage in class II gaming on the land when it filed its application for
taking the land into trust. It also would restrict a tribe’s ability to change the use of non-gaming
trust land to use it for gaming. S. 2676 would also have amended the authority of the chairman of
NIGC to authorize background checks of the ten persons or entities with the greatest financial
interest in any of the gaming enterprises regulated by the NIGC and any other person the NIGC
deems appropriate.
The Limitation of Tribal Gaming to Existing Tribal Lands Act of 2007, H.R. 2562216 from the
110th Congress, would have struck all of IGRA’s exceptions for gaming on newly acquired lands,
except for the two part determination. It would have amended the two part determination to
require concurrence of the state legislature, as well as the governor.
H.R. 1654,217 also introduced in the 110th Congress, would require the Secretary to determine that
gaming on all newly acquired lands was in the best interest of the tribe and not detrimental to the
surrounding community.
In addition, in the 112th Congress, H.R. 4033, the Giving Local Communities a Voice in Tribal
Gaming Act, has been introduced. This bill would amend IGRA to give local jurisdictions a veto
over class III gaming establishments to which the state has agreed in compacts entered after
January 1, 2011.

Conclusion
Initially, Indian gaming arose on a small scale in response to cut-backs in funding for tribes in the
1980s. Because of the executive branch’s support of Indian gaming as a legitimate source of tribal
revenues, in Cabazon, the Supreme Court found that federal and tribal interests supporting tribal
gaming outweighed state interests in regulating Indian gaming. Congress passed IGRA after
Cabazon to provide a statutory basis for tribal gaming, to establish a system for regulating Indian
gaming, and to establish the NIGC.
IGRA divides Indian gaming into three classes. Class I gaming includes traditional or social
gaming and is regulated exclusively by the tribes. Congress affirmed Cabazon as to bingo, or
class II gaming, by providing that it is subject to tribal regulation with federal oversight by the
NIGC. However, Congress recognized that states had greater interests in casino-style, or class III,
gaming and, therefore, gave states a role in regulating class III gaming through the tribal-state
compact. In order to engage in class III gaming, a tribe must have a gaming compact that allows
them to do so, or have procedures issued by the Secretary after a good faith lawsuit.
The NIGC plays an important role in regulating tribal gaming by approving tribal gaming
ordinances, approving management contracts, imposing fines and closing gaming operations for
violations of IGRA, NIGC regulations, or tribal ordinances, and monitoring class II operations.
NIGC also makes determinations about whether land qualifies as “Indian land.”

216
217

H.R. 2562, 110th Cong. (2007).
H.R. 1654, 110th Cong. (2007).

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IGRA created an incentive for states to negotiate gaming compacts by providing that tribes could
take states that did not negotiate in good faith to federal court. If, after a finding by the court of
bad faith on the part of the state, the state and the tribe could not agree to a compact, IGRA
provided a mechanism by which a tribe could engage in class III gaming without a state’s
agreement. However, in Seminole, the Supreme Court held that Congress did not have authority
to waive the states’ sovereign immunity to the tribes’ lawsuits. Although IGRA bars states from
imposing a tax or fee on Indian gaming and limits the issues subject to negotiation between tribes
and states to those that are gaming related, states have been negotiating for a share of tribal
gaming revenues and bringing non-gaming issues into compact negotiations. Because, after
Seminole, tribes cannot resort to the courts to enforce IGRA’s limitations, they have tended to
accept arguably prohibited conditions in their compacts.
Congress has been most interested in off-reservation gaming on newly acquired lands. In the past
five years, several bills have been introduced which would amend IGRA to limit the ability of
tribes to game on newly acquired lands.

Author Contact Information
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR42471. Public record. Not legal advice.