Conditions of The Tribal Indian Gambling off The Reservation
The Mashantucket Pequot Tribal Nation was the first such agreement to include exclusivity payments and provides the clearest example. The tribe was permitted to exclusively operate casino-style, Class III gambling in Connecticut in exchange for a 25 percent payment of the gross slot machine revenues to the state of Connecticut. The extraordinarily high value of the exclusivity consideration derived from the casino’s location in one of the densest and wealthiest populations in the United States. Should the state of Connecticut permit any other party to operate casino-style gambling in Connecticut, the tribe’s obligation to pay 25 percent of its slot revenues would cease, unless the tribe consents (as they recently did for the new Mohegan Sun casino). But the Mashantucket Pequot Tribal Nation would still be permitted to operate Class III gambling. Therefore, the additional agreement in which the state ensures non-competition for the tribe’s gambling operation is distinct from the right of the tribe to operate Class III gambling.
It is possible for an Indian tribe to operate Indian gambling off existing reservation lands. The general rule under IGRA is that no Indian gambling may occur unless it is located on “Indian lands” acquired before the enactment of IGRA in 1988. 106 IGRA prohibits the operation of Indian gambling on lands acquired by a tribe and transferred into trust after its enactment in 1988, with the following exceptions:
· When an Indian tribe was without a reservation when IGRA was enacted and the newly acquired lands in trust are within the boundaries of the tribe’s former reservation;
· When an Indian tribe purchases off-reservation lands and transfers them into trust after the enactment of IGRA and it meets certain conditions and obtains certain consents. An Indian tribe is permitted to operate Indian gambling on newly acquired lands that have been transferred into trust and located off an existing reservation when “the Secretary [of the Interior], after consultation with the Indian tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gambling establishment on 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 determination;” 107
· When an Indian tribe acquires land as settlement of a tribal land claim or its former reservation lands are restored to trust status; 108
· When an Indian tribe acquires an initial reservation as a part of its federal recognition under the federal acknowledgement process. In the eleven years since IGRA’s enactment, the Bureau of Indian Affairs has reviewed ten applications to operate off-reservation casinos in Milwaukee, Wisconsin; Council Bluffs, Iowa (two applications for the same parcel of land); Salem, Oregon; Park City, Kansas; Allen Parish, Louisiana; Oklahoma City, Oklahoma; Detroit, Michigan; Marquette County, Michigan; and Airway Heights, Washington. Of these, the BIA accepted two¾the Forest County Potawatomie Tribe located in Milwaukee, Wisconsin in 1990; and the Kalispel Tribe, located in Airway Heights, Washington in 1998. One application¾i. e., Allen Parish¾was rendered moot by the tribe’s decision to use a site that did not require approval; three applications¾Council Bluffs, Salem, and Detroit¾were officially rejected by either the Secretary of the Interior or the state governor; and the remainder, though not officially rejected, apparently are no longer under active consideration, at least in some cases because of the governor’s stated opposition. 109
106 25 U. S. C. §2710 (b)( 1), (d)( 1). “Indian lands” are “all lands within the limits of any Indian reservation” and “any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power.” 25 U. S. C. §2703 (4) 107 The Indian Gaming Regulatory Act of 1988, 25 U. S. C., Sect. 2719. 108 Ibid.