IGRA Role in The Class III Gambling
The primary regulators of tribal government gambling are Tribal Gaming Commissions with front-line day-to-day responsibilities for monitoring the gambling operations. As noted by the NIGC’s Deputy Counsel, “The tribes generally serve as the primary regulators for gambling. They’re the ones on the ground. They’re the ones that are there 24 hours a day. On occasion states are there 24 hours a day, too, if the tribal/ state compact provides for it, but by and large it is the tribes who are doing the primary regulating of Indian gambling.” 51
If a state has a public policy of complete prohibition against Class III gambling, then tribes within the borders of the state may not initiate such gambling. However, if the state has no completely prohibitive policy against Class III gambling, then the federal courts have held that the state may not prohibit gambling on reservations.
Given the often opposing viewpoints between tribes and state governments, IGRA’s requirement that the two parties negotiate compacts for Class III gambling has been the source of continuing controversy. On one hand, the federal courts have ruled that Indian tribes have a right to establish gambling facilities on their reservations; on the other hand, IGRA requires that compacts be negotiated between the tribes and the states, obviously requiring the state’s consent. Clearly, some form of mutual agreement is required. Although most states and tribes seeking to open gambling facilities have managed to successfully negotiate compacts, many have not. When an impasse develops, each side commonly accuses the other of not negotiating “in good faith” and there is no accepted method of resolution.
Eleventh Amendment Immunity for States IGRA contains a provision for resolving such impasses, at least when it has been the state that is accused of not negotiating in good faith: the tribe may sue the state in federal court. However, in Seminole Tribe of Florida v. Florida, 52 a federal court found that this violated the Eleventh Amendment’s guarantee of state sovereign immunity.
This decision, which covers a plethora of legal issues, has been widely interpreted. It did not, however, declare invalid nor set aside any part of the Act, nor did it set aside any Class III gambling pacts already negotiated. Obviously, states and tribes may continue to voluntarily enter into new compacts. 53
One immediate and continuing effect of the Seminole decision is that a tribe has no judicial recourse if it believes a state has failed to comply with IGRA’s “good faith” provisions. The Seminole decision contributed to a stalemate in negotiations between a number of tribal and state governments, a stalemate that continues nearly three years after the Seminole decision.
State Criticism of IGRA
Many states are unhappy with several of IGRA’s provisions. In testimony before the Commission, representatives of the states have raised a number of areas of concern regarding Indian gambling, including: (1) The federal government does not actively and aggressively enforce IGRA on the reservations, and the states are unable to enforce it on their own; (2) IGRA requires states to negotiate in good faith but does not place the same requirement on tribes; and (3) the scope of gambling activities allowed to tribes is not clearly defined under IGRA.
In the large majority of cases, mutually acceptable tribal-state compacts have been successfully negotiated. In some states, however, including California, Florida, and Washington, tribes have opened Class III casinos without a compact. (As an indication of the difference in their perspectives, states refer to this as “illegal” gambling; tribes term it “uncompacted” gambling.) State governments are not empowered to act against Indian tribes if the tribes are operating Class III gambling establishments without a compact, as enforcement is a federal responsibility. Yet some states have complained that the federal government refuses to act aggressively in these matters. 54
51 Penny Coleman, Deputy General Counsel, National Indian Gaming Commission, testimony before the National Gambling Impact Study Commission, Tempe, AZ (July 30, 1998). 52 517 U. S. 44 (1996). 53 Ibid.