IGRA Negative Aspects according to the State
State officials also argue that IGRA requires states to negotiate in good faith without placing the same requirement on tribes. According to Tom Gede, Special Assistant Attorney General for the state of California, this unilateral good faith requirement reduces the likelihood that states and tribes will come to agreement through the negotiating process:
[I] t’s too easy to get to bad faith, and if there were incentives to allow legitimate differences of opinion to continue to be discussed at the table before somebody raises the bad faith flag, then both parties would be better off. What happens now is that any legitimate difference of opinion results in somebody hoist[ ing] the bad faith flag, and it only goes against one party, the state. 55
In addition, the states argue, IGRA lacks clarity on the scope of gambling activities permitted to tribes. For example, IGRA does not address whether states should be required to negotiate with tribes about providing electronic versions of games already authorized. As technological advances continue to blur the line between Class II and Class III gambling, this issue may become even more complex. Similar disputes have occurred regarding the proper classification of some bingo operations and, thus, the scope of the state’s regulatory role.
The states also have bristled at court rulings that have held that if gambling is allowed anywhere in the state for any purpose, even if only under highly controlled and limited circumstances such as charitable gambling by non-profit institutions, there is effectively little restriction on what tribes may offer, including full-fledged casinos. Raymond Scheppach, Executive Director of the National Governors’ Association (NGA), summarized the states’ position as follows:
It must be made clear that the tribes can negotiate to operate gambling of the same type and subject to the same restrictions that apply to all other gambling in the state. The governors firmly believe that it is an inappropriate breach of state sovereignty for the federal government to compel states to negotiate tribal operations of gaming activities that are prohibited by state law. 56
Mechanism for Handling Impasse Between Tribes and States
In an attempt to resolve the impasse caused by the Seminole decision and provide a mechanism for resolving state-tribal disputes regarding compacts, the Bureau of Indian Affairs published an “Advanced Notice of Proposed Rulemaking” (hereinafter, “ANPR”) on May 10, 1996. 57 The proposed procedures are a complex and lengthy series of steps involving repeated consultation with the respective tribes and states, but the key element is a provision that would allow the Secretary of the Interior to approve a tribe’s request to operate gambling facilities, even if the state and tribe have been unable to agree on a compact. Tribes have strongly supported the ANPR because it would replace the remedy nullified by the Seminole decision 58 ; states have strongly opposed the proposal as an infringement on their sovereignty.
54 Ray Scheppach, Testimony Before the National Gambling Impact Study Commission, Washington, D. C. (March 19, 1999) (Executive Director of the National Governors Association). See also Rumsey Indian Rancheria v. Wilson, 41 P. 3d 421 (9 th Cir. 1994). 55 Ibid. 56 Raymond Scheppach, Testimony Before the National Gambling Impact Study Commission, Tempe, Arizona (July 30, 1998) (Executive Director of the National Governors Association). 57 61 FR 21394 (1996). 58 However, tribes disagree with the Secretary’s decision to use the Rumsey case as the legal standard for the scope of gambling because it would impose the 9th Circuit’s interpretation of California state gambling public policy on the rest of the nation.