Mechanisms of The Tribe and State Cooperation

In essence, the procedures would leave to the Secretary of the Interior the right to determine if the respective state had been negotiating in good faith and, if he determines that it has not, to approve a tribe’s proposal to operate Class III gambling facilities. The proposed Secretarial procedures detail a number of steps and conditions necessary before a final ruling can take place. For example, the Secretary would intervene only after a state had invoked sovereign immunity to block a suit regarding its failure to negotiate a compact in good faith and that suit had been dismissed under Seminole. Further, the state would have the right to put forward an alternative proposal, which the tribe would be asked to comment on. Absent such comments, the state’s proposal could be adopted. The key point of dispute concerns the fact that, assuming no tribal-state agreement had been reached, the Secretary could then appoint a mediator to decide the issue or himself approve the operation of the gambling facilities, in both cases without the state’s consent.

At its July 29, 1998, hearing in Tempe, Arizona, the Commission voted to send a letter to the Secretary of the Interior requesting that he defer issuance of a final rule pending completion of the Commission’s Final Report. 59 However, on April 12, 1999, shortly after the expiration of a legislative ban imposed by Congress prohibiting the Secretary of the Interior from approving any Class III compacts without the prior approval of the affected states, the Department of the Interior published its final rule that, in effect, would implement the proposed procedures after 30 days. This measure was immediately challenged in federal court by the states of Florida and Alabama, which sought to block the new rules from taking effect. Senator Enzi offered an amendment to an appropriations bill that would have prohibited the Secretary from issuing the ‘Procedures. ‘ Senator Slade Gordon withdrew the amendment based upon a promise from Secretary Bruce Babbitt that he would not implement the ‘Procedures’ until a federal court decided the issue of his authority to issue such procedures under the IGRA. The resolution of this problem will almost certainly become the responsibility of the federal courts.

Other Mechanisms
Other mechanisms have been proposed for resolving the problems underlined by the Seminole case. For example, the Department of Justice might prosecute tribes in federal courts only when the state has acted in good faith or by suing states on behalf of the tribes when it determines that the states are refusing to comply with their obligations under IGRA. 60 One scholar has argued for expansion of federal jurisdiction to allow for federal resolution of state-tribal disputes. 61 Senator Daniel Inouye (D-Hawaii) has suggested that both states and tribes agree to waive their sovereign immunity on this issue. No proposal, however, has secured the agreement of tribes and states.

Local regulations such as zoning, building, and environmental codes do not apply on Indian lands. Tribal governments do, however, sometimes adopt local building and other health and safety codes as tribal laws. State and local governments usually provide and service infrastructure such as roads and bridges near reservations that are relied on by tribal gambling facilities. In some instances, state and local governments may provide water, sewage treatment, and electrical service to a tribal casino, and tribes may be charged (and pay) for such services. In addition tribal governments often conclude agreements with the local governments for certain essential governmental services such as fire and emergency medical services, or enter into reciprocal agreements to provide such services with an agreed level of compensation. Two of the largest Indian gambling enterprises in the United States remit substantial funds to the state that are then redistributed by the state on a formula to local communities. 62

59 Letter from Kay C. James, Chairman of the National Gambling Impact Study Commission, to Bruce Babbitt, Secretary of the Interior (August 6, 1998) (on file with the National Gambling Impact Study Commission). The Commission vote was 8 to 1 in favor of recommending to the Secretary of the Interior that he postpone issuing the final rule until after the Commission had delivered its report and recommendations to Congress and the President on June 18, 1999; Commissioner Robert Loescher opposed the motion. 60 Ibid. 61 See Brian Casey Fitzpatrick, Casenote: Finding a Fair Forum: Federal Jurisdiction for IGRA Compact Enforcement Action in Cabazon Band of Mission Indians v. Wilson, 35 Idaho L. Rev. 159 (1998).