ISSUES AND FACTS The following issue briefs provide an overview of the federal, state and tribal issues and policies that impact gaming in Indian country.
THE INDIAN GAMING REGULATORY ACT (IGRA)The Indian Gaming Regulatory Act (IGRA) was enacted by Congress in 1988 to provide a legal basis for the operation and regulation of gaming by Indian tribes. Opponents to Indian gaming pushed for the Act when tribes began winning cases allowing gaming in Indian country. Gaming in Indian country began to grow in 1980, when the Seminole Tribe of Florida won a suit against the sheriff of Broward County. A Florida court ruled that Congress did not confer authority on the states to regulate activities on Indian lands. since the Sta of Florida permitted and regulated bingo, it could not regulate or limit bingo to any extent on Seminole land. In 1987, the United States Supreme Court affirmed the ruling of the Florida court in the Seminole case in California v. Cabazon Band of Mission Indians. In essence, those cases found that an earlier act, P.L. 83-280 (see glossary), did not give state authority to regulate gaming on Indian lands. With the industry booming, regulatory legislation was deemed by competitors, opponents and others to be necessary. The Indian Gaming Regulatory Act was that legislation.
THE GOLDEN HILL TRIBE
LEGAL HISTORY OF INDIAN GAMING LEGAL HISTORY OF INDIAN GAMING
Thelegal theory supporting the right of Indian tribes to conduct gaming developed from a case that involved state taxes on Indians. The controversy in that case, "Bryan v. Itasca County," decided by the United States Supreme Court in 1976, erupted over the meaning of an act of Congress (known as Public Law 83-280) which granted civil and criminal jurisdiction over Indian reservations to several states, among which were Minnesota, Florida and California. The question raised in the "Bryan" case was whether jurisdiction conferred on Minnesota was:
The next case in the development of Indian gaming was "Seminole Tribe of Florida v. Butterworth" (1 981) in federal court. The question in the case was whether Florida's time, pot and prize limitations on the play of bingo could be applied to the tribe's bingo operation under the grant of criminal jurisdiction under Public Law 83-280. Florida's law imposed a criminal penalty. The question in this case was whether Florida's statute was regulatory even though it imposed a penal sanction. The state's argument was the P.L. 83-280 granted criminal jurisdiction and the bingo statute imposed a criminal penalty so the state had jurisdiction. The court's analysis, critical to the outcome, said that imposition of a criminal penalty did not necessarily make a regulatory law a criminal law, thus focusing on whether or not the public policy was to criminally prohibit bingo, or to permit bingo and regulate it. The court ruled that Florida's statute was regulatory. According to "Bryan," Florida was not granted jurisdiction to regulate bingo on the reservation. The Supreme Court declined to review that decision. Finally, However, the United States Supreme Court accepted for review a case called "California v. Cabazon Band of Mission Indians" (1 987) and, upon review, essentially adopted the theory in the Butterworth case -- "that California regulates rather than prohibits gambling in general and bingo, draw poker and other card games. In the year following Cabazon, Congress enacted the Indian Gaming Regulatory Act.
WHAT IS TRIBAL SOVEREIGNTY?
Tribal sovereignty means that tribes, as the United States Supreme Court has observed, "have a right to make their own laws and be governed by them." Tribes have power to enact laws, just as states, do, that may cover a wide variety of matters.Tribes' sovereignty derives from and is a continuation of their status, which existed prior to the creation of the United States. Since tribes have come under the dominion of the United States, they retain all the power of a sovereign nation except: the right to make war, the right to make a treaty with a foreign nation, the right to sell their lands without approval of the Congress of the United States and the right to exercise criminal jurisdiction over non-Indians. They retain all other powers, but are subject to the power of Congress. Tribes have higher status than state, one court has noted, because they are not subject to the restriction in the Bill of Rights. However, Congress possesses the power to enact laws and make tribes subject to those laws. Some laws relevant to gaming are, of course, the Indian Gaming Regulatory Act and the Indian Civil Rights Act. (modeled after the Bill of Rights in the U.S. Constitution), to name two.
DO INDIANS PAY TAXES?
Yes. Individual Indians pay all federal taxes except those that derive from lands held in trust for them by the United States. Tribes, being unique entities under the law, are not taxed for tribal revenues, just as states are not subject to taxes for state governmental revenue.
Individual Indians do not pay state taxes for income earned in instances when they both reside and work on a reservation and drive income from that work. Individual Indians are subject to any tribal tax laws that might be in effect.
WHAT IS THE INDIAN GAMING REGULATORY ACT?
The Indian Gaming Regulatory Act (IGRA) is an act of Congress that regulates gaming conducted by Indian tribes. It comprehensively covers the field of Indian gaming by stating what types of gaming can be conducted, where, and how and by whom.
IGRA created three classes of gaming: Class I -- traditional forms of gaming subject only to tribal regulation; Class 11 -- bingo and similar games subject to regulation by tribes and by the National Indian Gaming Commission; and Class III -- which includes all gaming not specified in Class I or Class 11, and is regulated under a compact between the operating tube and the state in which the gaming enterprise is located.
IGRA provides authorization and procedure for negotiation and entry into a "compact" (agreement) between a tube and a state for the conduct of Class III gaming.
Any contract for the operation and management of a Class 11 gaming activity must meet certain requirements established by the Indian Gaming Regulatory Act. those requirements have been implemented by recently issued regulations, which will be administered by the National Indian Gaming Commission (NIGC).
A principal feature of those rules is the requirement that rigorous background checks be conducted to detect past criminal activity. Applications for management contract require:
25CFR Parts 531, 533, 535 and 539
Congress created three classes of gaming: Class I - traditional Indian gaming; Class 1.1 bingo and related games; and Class III - all gaming not Classes I and II. Class III gaming includes all casino-style games, pari-mutual wagering, lotteries and video terminal games. Under IGRA, tribes were permitted to conduct Class II and Class III gaming where the state permits such gaming. Class II is regulated by the tribe and the National Indian Gaming Commission. Class III is permitted upon approval of a compact negotiated and entered into between a tribe and a state. It is regulated in accordance with the provisions of that compact. To carry out IGRA policies, Congress established a National Indian Gaming Commission with rule-making and regulatory powers. Congress declared the policy of IGRA to be as follows:
The second controversy involves whether state sovereign immunity was overridden when Congress authorized suits against states for failure to negotiate Class III compacts "in good faith."WHAT IS A COMPACT?
A compact is an agreement between a state and a tribe for the regulation and conduct of Class III gaming. A tribe may conduct Class III gaming under IGRA only after two basic steps have been taken: (1) the gaming to be conducted by the tribe has been agreed to and regulation of that gaming is provided for in a compact between a tribe and a state and (2) the compact has been approved by the Secretary of the Interior and notice of that approval has been published in the Federal Register.
When a state permits Class III games -- e.g., poker, jai alai, roulette, blackjack, -- the state is required to permit such games by a tribal-state compact State gaming regulations and limitations -- for example, bet and pot limits, playing time limits and payoff limits -- do not apply to tribal gaming. Some limitations, however, may be established by negotiation.
A compact may also include provisions that (a) designate what tribal or state civil and criminal laws will apply, (b) designate which sovereign, tribe or state, will have civil and/or criminal jurisdiction, (c) provide for costs of regulation, (d) establish standards for operation of the gaming facility, and (e) licensing requirements for persons engaged in tribal gaming.Procedure for entering into a compact is initiated by a request from the tribe to the governor of a state. If the state responds within the time established by IGRA and the parties successfully negotiate a compact, that compact is submitted to the Secretary of the Interior. If the secretary determines that the compact meets the requirements of IGRA, it is approved and published. If the state fails to "negotiate in good faith," IGRA provides a series of steps in the litigation process that are designed to end in either a compact or procedures established by the Secretary of the Interior for Class III gaming by the tribe. TRIBAL - STATE COMPACTS 12 STATES/ 43 TRIBES/ 55 COMPACTS ARIZONA Cocopah Tribe
Compact approved 7/28/91-; published 8/24/92 Gaming Devices/Lottery/Off-track Pari-Mutual Wagering/Horse Racing Yavapai-Prescott Tribe
Barona Band of the Capitan Grande of Diegueno Mission Indians Compact approved 6/23/92; published 6/30/92 Pari-Mutuel Wagering on Horse Racing
Cabazon Band of CahuiDa Mission Indians Compact approved 3/27/90; published 4/02/90 Pari-Mutuel Wagering on Horse Racing San Manuel Band of Serrano Mission Indians Compact approved 3/26/91; published 4/02/91 Pari-Mutuel Wagering on Horse Racing
Sycuan Band of Diegueno Mission Indians Compact approved 10/10/90; published 10/18/90 Pari-Mutuel Wagering on Horse Racing
Viejas Group of Capitan Grande Band of Diegueno Mission Indians Compact approved 6/25/90; published 6/29/90 Pari-Mutuel Wagering on Horse Racing
Ute Mountain Ute Tribe Compact approved 7/06/92; published 7/10/92 Black-jack/Poker/Slot Machines/KenoCONNECTICUT Mashantuket Pequot Tribe
Omaha Tribe of Nebraska
Sac and Fox Tribe of Mississippi in Iowa
Winnebago Tribe of Nebraska
Bois Forte Band of Minnesota Chippewa (Nett Lake)
Fond Du Lac Band of Minnesota Chippewa
Grand Portage Band of Minnesota Chippewa
Compact - Video Games of Chance approved 3/27/90; published 4/02/90
Leech Lake Band of Minnesota Chippewa
Lower Sioux Indian Community
Mille Lac Band of Minnesota Chippewa
Prairie Island Community of Minnesota Mdewakanton Sioux
Red Lake Band of Chippewa Indians
Shakopee Mdewakanton Sioux Community
Upper Sioux Indian Community
Assiniboine and Sioux Tribes of the Fort Peck Reservation
Video Machines for Keno, Poker, and Bingo/Simulcast Racing
Omaha Tribe of Nebraska
Compact approved 12/31/90; published 1/08/91 Keno/Lottery Ticket Drawings/Big Six/Big Nine/Card Wheel/Color Wheel/Fruit Wheel/Horse Race Wheel/Money Wheel/Roulette/Chuck-A-Luck/Sic Bo
Fort Mojave Tribal Council
Crow Creek Sioux Tribe
Flandreau Santee Sioux Tribe
Lower Brule Sioux Tribe
Sisseton-Wahpeton Sioux Tribe
The Golden Hill Indian Tribe
INDIAN GAMING TIMELINE 1953 Congress enacted Public Law 83-280 (see glossary) conferring civil and criminal jurisdiction on five states over the tribes within those states. 1953 Congress enacted Public Law 83-280 (see glossary) conferring civil and criminal jurisdiction on five states over the tribes within those states.
1976 The Supreme Court in Bryan u. Itasca County ruled that states have criminal and civil jurisdiction over Indian tribes. 1979 In Seminole Tribe v. Butterworth, a Florida court applied the Bryan decision to Florida's bingo laws. The court determined that the state could not prohibit Indian bingo because it did not have regulatory power over the Tribe.
An 11th Amendment defense was raised by eight states in cases brought by tribes for failure of those state to bargain for Class 11 compacts "in good faith."
1992 The National Indian Gaming Commission issued a final rule defining the terms in the Indian Gaming Regulatory Act.
1992 Seven tribes sued, the National Indian Gaming Commission, in federal district court in Washington, D.C. challenging the newly issued regulations regarding the use of technology in Class II gaining.