History of American Indian Law and Gambling

Data compiled by Chad Hills (Updated 11/25/2008)

A list of major historical developments that have impacted American Indian law and/or gambling expansion.

This site contains a list of major historical developments that have shaped American Indian law and/or Indian gambling expansion. It is by no means comprehensive; instead, this list serves to educate the reader on many pivotal court decisions, acts and legislation. Each section should contain one or more active links directly to sites that contain full documentation and detailed information on specific laws. Issues are listed in chronological order.

THE DECLARATION OF INDEPENDENCE (July 4, 1776)
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ... That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…

THE ARTICLES OF CONFEDERATION (1781)
The U.S. government first acknowledged tribal Indian affairs in the The Articles of Confederation, which gave the federal government sole and exclusive authority over Indian affairs.

THE UNITED STATES CONSTITUTION (1787)
drafted in 1787, gave Congress broad power under the Indian Commerce Clause, Article 1, Sec. 8, to regulate commerce with Indian tribes. Further sources on the U.S. Constitution:
Emory Law School reference
Cornell Law School reference

NONINTERCOURSE ACTS (1790)
Congress early adopted the first Indian Nonintercourse Act which reserved the right to acquire Indian lands to the United States to the exclusion of individuals and states. Act of July 22, 1790, 1 Stat. 137. The Act provided that a sale of Indian lands was not valid unless "made and duly executed at some public treaty, held under the authority of the United States." Id. The current version contains similar language. 25 U.S.C. § 117. Recently, some eastern Indian tribes brought lawsuits seeking the recovery of lands based upon claims that the 1790 statue was violated because conveyances were made to states and individuals outside the process called for in the Act.

BILL OF RIGHTS, 1791 (FIRST TEN U.S. CONSTITUTIONAL AMENDMENTS)
Written to keep the Federal Government in check and protect individuals from state and federal governments. The first eight amendments provide protection of some of the most fundamental rights of the individual. The fourteenth Amendment (not in the Bill of Rights) prohibits the states from abridging "the rights and immunities" of any citizen without due process of law. The "due process" clause of the 14th Amendment has been interpreted by the Supreme Court as affording citizens protection from interference by the state with almost all of the rights listed in the first eight amendments.

MARBURY V. MADISON, 5 U.S. 137 (1803)
The judicial power of the United States is extended to all cases arising under the constitution. A law repugnant to the constitution is void.

The Marshall Trilogy (1823 – 1832)
The Supreme Court reaffirmed the legal and political standing of Indian nations in a set of three court decisions known as the Marshall Trilogy:

1. JOHNSON V. MCINTOSH (1823)
   U.S. courts do not recognize Indians sale of titles of land to private individuals. The right of conquest or discovery left tribes with a possessory right that is subject to complete defeasance.
2. CHEROKEE NATION V. GEORGIA (1831)
   Tribes are "domestic dependent nations." They occupy a territory to which we assert a title independent of their will. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. The idea of a “trust relationship” comes from Chief Justice John Marshall's opinion.
3. WORCESTER V. GEORGIA (1832)
   The federal government held exclusive power, as a result of the Constitution, to regulate with regard to the Cherokee Nation. Accordingly, the Cherokee Nation, as a distinct community, occupying its own territory, was completely separated from the States, and state law could have no force within those lands. Marshall referred to tribes as being "under the protection of the United States." Like any guardianship the trust relationship implies rights and benefits, obligations and duties for both the trustee and the beneficiary.

Thus, the Supreme Court reaffirmed the “sovereignty” of Indian tribes and acknowledged this as predating European arrival. However, because Indian nations exist within the United States’ boundaries, they are considered “domestic dependent nations.” The courts recognize Congress as having the right to limit the powers of American Indian tribes while still recognizing them as sovereign nations. Individual states, however, are limited by tribal-state compacts as to the power they hold regarding any form of regulation.

THE BUREAU OF INDIAN AFFAIRS—BIA (1824)
The Bureau of Indian Affairs, created in the War Department in 1824, was transferred to Department of the Interior in 1849. The BIA is the principal agency responsible for the administration of federal programs for Indian tribes. The mission of the BIA is to enhance the quality of life, promote economic opportunity, and carry out the federal responsibility to protect and improve the trust assets of Indian tribes and Alaska Natives. There are more than two million Indian people who receive services from the Bureau of Indian Affairs.

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856)
Citizenship is limited to white persons born in the U.S. and those who have migrated to, and been naturalized by, the United States.

CONGRESS CEASES LAND “TREATIES” (1871)
Land “treaties” with Indians were replaced with “agreements.” While Indian treaties confirmed the status of Indian tribes as sovereign governments the practice of treating with tribes was ended by Congress in 1871, 16 Stat. 544, 25 U.S.C. § 71. Thereafter, what would have been treaties between the United States and Indian Tribes were deemed "Agreements." See , e.g. , Amended Agreement with Certain Sioux Indians, May 2, 1873.

ELK v. WILKINS, 112 U.S. 94 (1884)
To obtain citizenship, an Indian must separate from his tribe and be accepted by the U.S. as a citizen.

ICK WO v. HOPKINS, 118 U.S. 356 (1886)
Chinese immigrants were protected from the unequal application of the law by the Fourteenth Amendment in states and territories.

U S v. KAGAMA, 118 U.S. 375 (1886)
This case concerned the murder of an Indian by two other Indians on Indian land. The case determined that federal and/or state law determined the justice process in the case of murder. Indians are within the geographical limits of the United States. The soil and people within these limits are under the political control of the Government of the United States, or of the states of the Union. They exist within the broad domain of sovereignty with the exception of state and federal government. There may be cities, counties, and other organized bodies, with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these.

DAWES GENERAL ALLOTMENT ACT (1887)
This Act greatly complicated the tribes' ability to govern, by carving large reservations into smaller pieces. Some allotments were assigned to Indian families. Whites were allowed to homestead on the rest. Under the General Allotment Act, allotments were to be held in trust by the United States for individual Indians for a period of 25 years. After an amendment to the Act, individuals received 80 acres of agricultural land or 160 acres of grazing land. Upon the completion of the allotment process it was common for the United States to seek agreements with the tribe for the identification of lands to be held in common by the tribe and for the cession of the remaining lands as "surplus" lands. This process resulted in the loss of approximately 90,000,000 acres of tribal land between 1887 and 1934 through the sale of "surplus" lands and alienation of allotments.

Many Indians sold their land, often because they were impoverished. Others may have lost their land because they didn't understand the concept of paying taxes. As a result, most land within many reservations is not owned by Native Americans. There is overlap and confusion about where tribal jurisdiction ends and local authority begins.¹

TALTON v. MAYES, 163 U.S. 376 (1896)
The The Bill of Rights (first ten Constitutional Amendments) does not apply to tribal government.

LONE WOLF v. HITCHCOCK, 187 U.S. 553 (1903)
Congress, using its plenary power, may abolish the provisions of an Indian treaty.

UNITED STATES V. WINANS , 198 U.S. 371 (1905)
Tribes would typically cede vast territories to the United States in exchange for some measure of consideration and, at the same time, reserve some of its aboriginal territory for its continued occupancy as a homeland. These tracts became known as "reservations." Treaties between the United States and Indian tribes became a primary means of extinguishing Indian title and opening lands for settlement.

THE BURKE ACT 1906
Authorized allotments to be taken out of trust if the allottee was deemed "competent." 34 Stat. 182, 25 U.S.C. § 349.

U S v. NICE , 241 U.S. 591 (1916)
If an Indian becomes a citizen, the federal government still holds jurisdiction over him so long as he remains a member of his tribe, under the charge of Indian agents, and so long as the United States holds in trust the title to land which has been allotted to him.

THE SNYDER ACT (1921)
comprise the basic legislative authority for the Indian Health Service.

Indian Citizenship Act of 1924 (41 Stat. 408)
Made all non-citizen Indians born within the territorial limits of the United States citizens of the United States.

WHEELER HOWARD ACT (Indian Reorganization Act or IRA) 1934
Proponents of the allotment policy failed to recognize or understand that individual ownership of land was a distinctly foreign concept among most tribes and many individuals made no use of their allotments. The harm done by the allotment policy and the total lack of benefits to Indian tribes and people was eventually recognized. The allotment policy was effectively repudiated and largely reversed by the Indian Reorganization Act (IRA) of 1934. The Secretary of the Interior was authorized to restore remaining "surplus" lands to tribal ownership and to reacquire interests in land within or without reservations for Indians and to hold that land in trust. 48 Stat. 985, 25 U.S.C. § 465. Procedures for taking fee lands into trust for a tribe or individual Indian were established and are set forth in 25 C.F.R. Part. 151. This act authorized the Secretary of the US Department of Interior to acquire lands, in federal title, for the use of American Indian tribes. The stated purpose of the Act was to reacquire the land that was sold to individuals during the allotment period and reestablish Indian people with distinct tribal communities and governments. For further information on this Act, see Land Into Trust article.

More than 40 federal statutes permit the Secretary of the Interior to take Indian tribal land or land owned by individual Indians in trust. Under the Department of Interior regulations, the Secretary must consider various factors, primarily the best interests of the tribe or individual Indian, but also the purpose of the acquisition and its potential effects upon surrounding jurisdictions. The Secretary's decision does not become final for 30 days during which an action may be filed in federal court contesting a decision to take land into trust. Once land is in trust, however, because legal title is in the United States, state taxation is precluded.²

INDIAN HEALTH SERVICES TRANSFER ACT (1954)
Transferred the maintenance and operation of hospital and health facilities for Indians to the Public Health Service, under the supervision and direction of the Secretary of Health, Education, and Welfare…

The National Congress of American Indians (NCAI) 1944
The oldest and largest tribal government organization in the United States. NCAI serves as a forum for consensus-based policy development among its membership of over 250 tribal governments from every region of the country. NCAI's mission is to inform the public and the federal government on tribal self-government, treaty rights, and a broad range of federal policy issues affecting tribal governments.

Indian Claims Commission (1946)
Indian Tribes were statutorily barred from pursuing claims against the United States before the United States Court of Claims arising from treaties. The number of requests for special legislation authorizing individual tribes to present their cases to the Court of Claims resulted in the creation of the Indian Claims Commission in 1946. The Indian Claims Commission was authorized to hear tribal claims filed before August 13, 1951. The 1946 Act gave the Commission jurisdiction to hear five distinct categories of claims, one of which was "claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands or compensation agreed to by the claimant."

INDIAN COUNTRY, 18 U.S.C. 1151 (1948)
18 U.S.C., Part 1, Ch. 53, Sec.1151 It began defining Indian Country for purposes of defining the application of federal criminal law and has come to be used to define the scope of civil jurisdiction to a large degree. Three types of Indian Country are defined:

1. All lands within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent and including any rights-of-way running through the reservation
2. All dependent Indian communities within the borders of the United States
3. all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same

In summary, the definition of "Indian country" refers to a limited category of Indian lands that are neither reservations nor allotments. The lands must have been set aside by the United States for the use of the Indians as Indian lands, and the lands must be under federal superintendence; and concludes that the lands at issue do not constitute Indian country.

INDIAN HEALTH SERVICES—IHS (1954)
The Indian Health Service (IHS), an agency within the Department of Health and Human Services, is responsible for providing federal health services to American Indians and Alaska Natives. The provision of health services to members of federally-recognized tribes grew out of the special government-to-government relationship between the federal government and Indian tribes. This relationship, established in 1787, is based on Article I, Section 8 of the Constitution, and has been given form and substance by numerous treaties, laws, Supreme Court decisions, and Executive Orders. The IHS is the principal federal health care provider and health advocate for Indian people, and its goal is to raise their health status to the highest possible level. The principal legislation authorizing Federal funds for health services to recognized Indian tribes is the Snyder Act of 1921. It authorized funds "for the relief of distress and conservation of health . . . [and] . . . for the employment of . . . physicians . . . for Indians tribes throughout the United States." The IHS currently provides health services to approximately 1.5 million American Indians and Alaska Natives who belong to more than 557 federally recognized tribes in 35 states. Its annual appropriation is approximately $2.8 billion. Those eligible for services provided by the IHS are members and descendants of members of federally recognized tribes.

The U.S. government has been providing health services to Native Americans since the early 1800s when Army physicians began treating smallpox and other contagious diseases of tribes living near military posts. In the 1830s, the government began promising medical services as partial payment for rights and property ceded to the United States. It is on the basis of these promises and treaties that the Congress, in the 1921 Snyder Act, authorized regular, continuing appropriations of funds for Indian health care and created a health division within the Bureau of Indian Affairs. In 1954, Congress renamed the BIA’s health division the Indian Health Service and moved it to what is now the Department of Health and Human Services. Today, the Indian health care system is a complex operation serving 1.5 million Indians of 558 tribes in 35 states. Many tribes feel that IHS programs are grossly underfunded for the number of Native Americans IHS serves.
For further information regarding IHS, please visit the following links:
IHS Heritage
IHS Indtroduction IHS Facts

REID v. COVERT, 354 U.S. 1 (1957)
Citizens abroad are protected by the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.

MORTON v. MANCARI, 417 U.S. 535 (1974) Indian preference does not constitute "racial discrimination" or even "racial" preference. Appellees, non-Indian employees of the Bureau of Indian Affairs (BIA), brought this class action claiming that the employment preference for qualified Indians in the BIA provided by the Indian Reorganization Act of 1934 contravened the anti-discrimination provisions of the Equal Employment Opportunities Act of 1972.

INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT—ISDEA, P.L. 93-638 (1975) The right to govern within reservation boundaries was bolstered by the 1975 Indian Self-Determination Act, which began phasing out the "big brother" role of the Bureau of Indian Affairs. Under self-determination, tribes have three options for receiving their health care: 1) directly from the Indian Health Service (IHS); 2)contracting with the IHS to provide services; 3) compacting with the IHS and having the administrative control, operation, and funding transferred to American Indian and Alaska Native tribal governments.

President Nixon was instrumental in promoting the policy and legislation for tribal self-determination. In 1975, President Ford signed the Act into law. The Act provides tribes the option of either assuming from the IHS the administration and operation of health services and programs in their communities or remaining within the IHS-administered direct health system. In 1994, the ISDEA was amended to authorize a Self-Governance Demonstration Program in IHS to enable selected tribes to explore self-determination management and health delivery initiatives. The IHS will continue to downsize relative to the continued increase in self-determination activity and the transfer of IHS resources to tribal governments.³

INDIAN HEALTH CARE IMPROVEMENT ACT—IHCIA (1976)
The IHCIA is considered to be the cornerstone legal authority for the provision of health care to American Indians and Alaska Natives. This authority builds upon the Snyder Act of 1921, which is the basic and first legislative authority for Congress to appropriate funds specifically for health care provided by the IHS. Read more...

OLIPHANT v. SUQUAMISH INDIAN TRIBE, 435 U.S. 191 (1978)
Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians unless specifically authorized to do so by Congress

UNITED STATES v. WHEELER, 435 U.S. 313 (1978)
navby=case&court=us&vol=435&page=313 An Indian tribe may criminally punish a tribal member for violating tribal law, as an independent sovereign, and not as an arm of the Federal Government

SANTA CLARA PUEBLO v. MARTINEZ, 436 U.S. 49 (1978)
Violations of ICRA can't be appealed to federal courts except for a writ of habeas corpus

BIA's FEDERAL ACKNOWLEDGEMENT PROCESS (FAP) 1978, 25 C.F.R. 83
Two U.S. Bureau of Interior Affairs (BIA) web sites provide recognition status on Indian tribes: [www.doi.gov/bia/tribes/entry.html lists tribes officially recognized by the U.S. government; www.doi.gov/bia/ack_res.html lists groups that have submitted petitions to BIA for recognition as tribes]. The BIA’s site has been taken down temporarily, due to the Cobell v. Norton litigation. or for a broader discussion of the litigation visit: <http://www.indianz.com/News/show.asp?ID=2003/05/02/trial15 >.

This particular lawsuit pertains to several billion dollars of trust funds that the government lost, misplaced and mismanaged for a number of American Indians. The Indians are asking the government to account for the land which the government forced into trust and to account for and distribute -- to the proper trust beneficiaries -- the correct amount of funds it received and invested from the leases it arranged for timber sales and for oil, gas, minerals and grazing rights on Indian trust lands in the West.

The commissioner of the Bureau of Public Debt, a senior Treasury Department official, testified that the United States has used Indian trust funds to reduce the national debt. How much land and money is left? Nobody knows… Studies have warned Congress that Indian trust funds were being mismanaged by the Department of Interior. In 1989, the Senate Special Committee on Investigations found that "fraud and corruption pervade" the Interior Department. The General Accounting Office warned both Republican and Democratic administrations that this is a very serious problem. Read more...

Prior to 1978, federal acknowledgment of Indian tribes was accomplished by Congressional action, various forms of administrative decisions and the courts. While some tribes still receive federal recognition or restoration of previous federal recognition from Congress, the courts have generally deferred to the Department of Interior for questions of tribal status. Tribal recognition is most often referred to the DOI [Western Shoshone Business Council v. Babbitt, 1 F.3d 1052; 10th Cir. 1993; "we conclude that the limited circumstances under which ad hoc judicial determinations of recognition were appropriate have been eclipsed by federal regulation."]

CRITERIA FOR FEDERAL RECOGNITION OF INDIAN TRIBES
(see Sec. 83, specifically Sec. 83.7 “Mandatory criteria for Federal acknowledgment”) The Branch of the Acknowledgment and Research (BAR) is a division of the Bureau of Indian Affairs (BIA) which implements 25 C.F.R. Part 83, Procedures for Establishing that an American Indian Group Exists as an Indian Tribe. These regulations, known as the Federal Acknowledgment Process (FAP), set forth the administrative process by which tribal groups are given federal recognition as an Indian tribe. Federal recognition acknowledges the tribe's eligibility to receive federal services provided to tribes and to enjoy other privileges of federally recognized tribes.

The BAR consists of approximately eleven (11) staff persons-professional anthropologists, genealogists and historians-who evaluate petitions for federal recognition and make recommendations to the Assistant Secretary for Indian Affairs on whether to approve or deny each petition. If the Assistant Secretary approves the petition, he acknowledges tribal existence and establishes a government-to-government relationship between the tribe and the United States.

Tribes seeking federal recognition from the Interior Department must meet seven historical, anthropological and genealogical criteria:

1. Sources outside the tribe identify them as Indians or aboriginal peoples.
2. The tribe must have continuously existed as a community since its first contact with non-Indian people.
3. The tribe can demonstrate a continual authority system in which there are leaders and followers.
4. The tribe has formed a written constitution or government document to be used if the tribe receives recognition.
5. Tribal members can show direct genealogical descent from a tribe that existed before contact with non-Indians.
6. The majority of tribal members are not members of an existing federally-recognized tribe.
7. The tribe's federal recognition has not already been terminated by Congress.

If a tribe meets all these criteria it can submit to a year-long review of its case by the Interior Department. The final determination on tribal recognition is made by the Assistant Secretary for Indian Affairs. Historical attempts have been made to reform the federal recognition of Indian tribes, but there have not been many significant changes. Mr. John Shapard, formerly the head of the BIA's acknowledgement branch, is listed as the author of the present FAP regulations. Read more about the FAP...

MONTANA v. UNITED STATES, 450 U. S. 544 (1981)
navby=case&court=us&vol=450&page=544 The Tribe has no power to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers.

Mashantucket Pequot Indian Claims Settlement Act (1983), S. 366.
President Reagan rejected this Act because the Mashantucket Pequots failed to meet the seven criteria required for federal recognition, among several other issues. After a period of heaby lobbying, Congress voted to overturn the President’s veto. Surprised, President Reagan yielded to Congress’ apparent decision to allow the Mashantucket Pequots to become federally recognized and receive the federal benefits package. The supposed Mashantucket Pequot “tribe” never provided sufficient genealogical / anthropological evidence to the BIA as proof of their tribal legitimacy. This tribe would later become the wealthiest tribe in the United States after opening Foxwoods, the nation's largest casino, in Ledyard, Connecticut. NEVADA V. UNITED STATES, 463 U.S. 110 (1983)
This case stems from a suit over Truckee River water that began in 1913. Pyramid Lake and its fish were central to the traditions and life of the Paiute Tribe, who had lived in the area. Their reservation, which included all of the lake, was established in 1859 and confirmed by Executive Order in 1874. In 1913, the federal government asked the District Court to settle all water claims on the river. A decision, known as the Orr Ditch decree in 1913, was finally issued 31 years later, in 1944. In 1973 the US and the Pyramid Lake Paiute tribe went back to court to claim additional water rights. The Court emphasized that the "United States owes a strong fiduciary duty to its Indian wards." The Supreme Court implicitly acknowledges that the tribe may have gotten a raw deal in 1944, but when it comes to water and property rights, keeping the boundaries of those rights fixed and certain for all parties is more beneficial to society than righting a past wrong suffered by one party. Held: Res judicata prevents the United States and the Tribe from litigating the instant claim.

THE NATIONAL INDIAN GAMING ASSOCIATION (NIGA), 1985
A non-profit organization (based in Washington, DC) of 168 Indian Nations with other non-voting associate members representing organizations, tribes and businesses engaged in tribal gaming enterprises from around the country. The common commitment and purpose of NIGA is to advance the lives of Indian people economically, socially and politically. NIGA operates as a clearinghouse and educational, legislative and public policy resource for tribes, policymakers and the public on Indian gaming issues and tribal community development. The mission of NIGA is to protect and preserve the general welfare of tribes striving for self-sufficiency through gaming enterprises in Indian Country. To fulfill its mission, NIGA works with the Federal government and Congress to develop sound policies and practices and to provide technical assistance and advocacy on gaming-related issues. In addition, NIGA seeks to maintain and protect Indian sovereign governmental authority in Indian Country.

INDIAN GAMING REGULATORY ACT (IGRA) 1988 (25 U.S.C.)
It also contains a specific provision pertaining to gaming on lands acquired after October 17, 1988. It provides that no gaming under the Act is to take place on lands acquired by the Secretary in trust for a tribe after October 17, 1988, unless certain conditions are met and subject to several exceptions. 25 U.S.C. § 2719. 25 U.S.C. §2701 IGRA limits the authority of tribes to conduct gaming on land acquired after 1988 and requires gubernatorial approval before land maybe acquired in trust for such purposes. (25 U.S.C. § 2719(1,)91). The Purpose of IGRA (25 USC 2702)
The Indian Gaming Regulatory Act (IGRA) has three purposes:

1. To provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.
2. To provide a statutory basis for the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players.
3. To declare that the establishment of independent Federal regulatory authority for gaming on Indian lands, the establishment of Federal standards for gaming on Indian lands, and the establishment of a National Indian Gaming Commission (NIGC) are necessary to meet congressional concerns regarding gaming and to protect such gaming as a means of generating tribal revenue.

The Act establishes three classes of games with a different regulatory scheme for each:

• Class I gaming is defined as traditional Indian gaming
• Class II gaming is defined as the game of chance commonly known as bingo (whether or not electronic, computer, or other technological aids are used in connection therewith) and if played in the same location as the bingo, pull tabs, punch board, tip jars, instant bingo, and other games similar to bingo … The Act specifically excludes slot machines or electronic facsimiles of any game of chance from the definition of class II games.
• Games commonly played at casinos, such as slot machines, black jack, craps, and roulette, would clearly fall in the class III category, as well as wagering games and electronic facsimiles of any game of chance. Generally, class III is often referred to a casino-style gaming. As a compromise, the Act restricts Tribal authority to conduct class III gaming.

Before a Tribe may lawfully conduct class III gaming, the following conditions must be met:

• The Particular form of class III gaming that the Tribe wants to conduct must be permitted in the state in which the tribe is located.
• The Tribe and the state must have negotiated a compact that has been approved by the Secretary of the Interior, or the Secretary must have approved regulatory procedures.
• The Tribe must have adopted a Tribal gaming ordinance that has been approved by the Chairman of the Commission.

**Read more in the IGRA Tribal-State Gaming Compacts Fact Sheet

TAFFLIN v. LEVITT, 493 U.S. 455 (1990)
navby=case&court=us&vol=493&page=455 Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause.

DURO v. REINA, 495 U.S. 676 (1990)
An Indian tribe may not assert criminal jurisdiction over a nonmember Indian.

BLATCHFORD v. NATIVE VILLAGE OF NOATAK, 501 U.S. 775 (1991)
navby=case&court=us&vol=501&page=775 Eleventh Amendment bars suit by Alaska Native Village against State.

OKLAHOMA TAX COMM'N v. POTAWATOMI TRIBE, 498 U.S. 505 (1991)
navby=case&court=us&vol=498&page=505 Tribe's sovereign immunity not waived by suing state to prevent collection of taxes, and State cannot impose taxes on Indian purchasers of cigarettes; but state may require tribe prospectively to collect taxes from non-Indian purchasers of cigarettes.

BIA's Proposed Changes to Federal Acknowledgement Process (1991)
Sep 18, 1991. BIA publishes in the Federal Register (Vol. 56, No. 181) their proposed changes to BIA's Federal Acknowledgement Process. National Congress of American Indians (NCAI) meets in San Francisco. Elements within NCAI opposing reform to the BIA's FAP are confronted. NCAI changes to support reform to the FAP. Senator Inouye promises to introduce legislation again in the coming year to deal with the Federal Acknowledgement Process and those tribes seeking recognition.

YAKIMA v. CONFEDERATED TRIBES, 502 U.S. 251 (1992)
navby=case&court=us&vol=502&page=251 County may, pursuant to Indian General Allotment Act, impose ad valorem tax on reservation land patented in fee, but may not enforce excise tax.

SOUTH DAKOTA v. BOURLAND, 508 U.S. 679 (1993)
navby=case&court=us&vol=508&page=679 Tribe cannot regulate non-Indians in area of reservation opened up by federal law placing a dam and reservoir within reservation boundaries.

HAGEN v. UTAH, ___ U.S. ___ (1994)
Uintah Indian Reservation diminished by Congress (state was able to prosecute Indian with possession of a controlled substance)

LINCOLN v. VIGIL, 508 U.S. 182 (1993)
navby=case&court=us&vol=508&page=182 Indian Health Service (IHS) decision to terminate health program for Indian children is committed to agency discretion by law and not subject to notice and comment requirements of Administrative Procedure Act (APA). Trust relationship does not require IHS to "reorder its priorities" from serving a subgroup of beneficiaries to serving the class of all Indians nationwide.

NEGONSOTT v. SAMUELS, 507 U.S. 99 (1993)
Kansas Act conferred jurisdiction to state over major offenses committed by or against Indians in Indian Country. The Kansas Act, 18 U.S.C. 3243, explicitly confers jurisdiction on Kansas over all offenses involving Indians on Indian reservations (Indian shot another Indian on the reservation).

OKLAHOMA TAX COMM'N v. SAC & FOX NATION, 508 U.S. 114 (1993)
navby=case&court=us&vol=508&page=114 State cannot impose income taxes or motor vehicle taxes on tribal members who live in Indian Country.

DEPT. OF TAXATION & FIN. v. MILHELM ATTEA & BROS., ___ U.S. ___ (1994)
State taxation of Indian wholesalers doing business on reservations upheld. Enrolled tribal members purchasing cigarettes on Indian reservations are exempt from a New York cigarette tax, but non-Indians making such purchases are not.

ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995)
The Fifth and Fourteenth Amendments require that any local, state or federal legislation that treats races differently be narrowly tailored; serve a compelling government interest; and be subject to strict scrutiny by the courts.

OKLAHOMA TAX COMM'N v. CHICKASAW NATION, ___ U.S. ___ (1995)
State cannot apply motor fuel tax to fuels sold by the tribe in Indian Country; state could tax income of tribal members who work for the tribe but do not live in Indian Country.

SEMINOLE TRIBE OF FLORIDA v. FLORIDA, ___ U.S. ___ (1996)
This court decision was of great importance as it gave states more power over Indian gambling expansion within its borders and protection through the 11th Amendment from individual lawsuits without state consent. Congress cannot waive state's Eleventh Amendment immunity pursuant to Indian Commerce Clause. The Indian Gaming Regulatory Act, passed by Congress pursuant to the Indian Commerce Clause, allows an Indian tribe to conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. 25 U.S.C. 2710(d)(1)(C).

Under the Act, States have a duty to negotiate in good faith with a tribe toward the formation of a compact, 2710(d)(3)(A), and a tribe may sue a State in federal court in order to compel performance of that duty, 2710(d)(7). Florida and its Governor, moved to dismiss petitioner Seminole Tribe's complaint on the ground that the suit violated Florida's sovereign immunity from suit in federal court. The District Court denied the motion, but the Court of Appeals reversed, finding that the Indian Commerce Clause did not grant Congress the power to abrogate the States' Eleventh Amendment immunity and that Ex parte Young, 209 U.S. 123, does not permit an Indian tribe to force good faith negotiations by suing a State's Governor. The Eleventh Amendment presupposes that each State is a sovereign entity in our federal system and that "`[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without [a State's] consent.'"

IDAHO et al. v. COEUR d'ALENE TRIBE OF IDAHO et al. (1997)
Eleventh Amendment bars suit by Tribe to quiet title to lake bed and surrounding tributaries. No Ex parte Young exception either.

ALASKA, PETITIONER v. NATIVE VILLAGE OF VENETIE TRIBAL GOVERNMENT (1997)
Tribal lands in Alaska are not "Indian Country," and tribes therefore lack authority to impose tax on business activities conducted on tribal land.

BABBITT, SECRETARY OF THE INTERIOR, et al. v. YOUPEE et al., ___ U.S. ___ (1997)
Escheat provision of Indian Land Consolidation Act violates Fifth Amendment. In 1983, Congress adopted the Indian Land Consolidation Act in part to reduce fractionated ownership of allotted lands. Section 207 of the Act-the ``escheat' provision-prohibited the descent or devise of fractional interests that constituted 2 percent or less of the total acreage in an allotted tract and earned less than $100 in the preceding year. [Amended Section(s) 207, codified at 25 U. S. C. Section(s) 2206]

STRATE V. A-1 CONTRACTORS 520 US 438 (1997)
No tribal court jurisdiction over case involving non-Indians that arises on state right of way (i.e. an accident on a highway running partially through reservation land)

AMOCO PRODUCTION CO., on behalf of itself and the class it represents v. SOUTHERN UTE INDIAN TRIBE et al. 526 US 520 (1997)
Tribe does not own coal bed methane gas, despite owning subsurface estate of coal. Land patents issued to western settlers pursuant to the Coal Lands Acts of 1909 and 1910 conveyed the land and everything in it, except the "coal," which was reserved to the United States.

CASS COUNTY, MINNESOTA, ET AL . v. LEECH LAKE BAND OF CHIPPEWA INDIANS 524 U.S. 103 (1998)
Land owned in fee simple by tribes is not immune from state taxation.

KIOWA TRIBE OF OKLAHOMA v. MANUFACTURING TECHNOLOGIES, INC. (1998)
Tribe's sovereign immunity extends to off-reservation activities. Indian tribes enjoy sovereign immunity from civil suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. As a matter of federal law, a tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity. See, e.g., Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 476 U.S. 877, 890 .

MONTANA ET AL . v. CROW TRIBE OF INDIANS (1998)
Tribe cannot recover taxes improperly assessed against mineral lessee from State. As a rule, a nontaxpayer may not sue for a refund of taxes paid by another. SAENZ V. ROE 526 U.S. (1999) The national government is limited to the Constitution, enumerated powers and the Fourteenth Amendment

MINNESOTA et al. v. MILLE LACS BAND OF CHIPPEWA INDIANS et al. (1999)
A Presidential Executive Order did not revoke the Band’s hunting, fishing and gathering rights. "The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” AZ DEPT. REV. V. BLAZE CONSTRUCTION CO. (1999) Non-Indian contractor employed by federal government to work on tribal lands is subject to state taxation

RICE v. CAYETANO, GOVERNOR OF HAWAII (2000)
“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Denial of Rice’s right to vote in Office of Hawaiian Affairs (OHA) based on the fact the he was neither “Hawaiian” or “native Hawaiian.” This was a violation of the fifteenth amendment.

C & L ENTERPRISES, INC. v. CITIZEN BAND POTAWATOMI INDIAN TRIBE OF OKLAHOMA (2001)
Arbitration provisions in contract between Tribe and contractor clearly waived tribal immunity from suit to enforce arbitration award. By the clear import of the arbitration clause, the Tribe is amenable to a state-court suit to enforce an arbitral award in favor of C & L. Like Kiowa, this case arises out of the breach of a commercial, off-reservation contract by a federally recognized Indian Tribe.

ATKINSON TRADING CO., INC. v. SHIRLEY et al.
Tribe lacks authority to impose hotel occupancy tax on nonmember guests of hotel located on non-Indian fee land within reservation boundaries. In Montana v. United States, 450 U. S. 544 , this Court held that, with two limited exceptions, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation. Held: The Navajo Nation's imposition of a hotel occupancy tax upon nonmembers on non-Indian fee land within its reservation is invalid.

IDAHO v. UNITED STATES (2001)
Congress intended submerged lands under lake and river beds to be retained by the Tribe rather than pass to State under "Equal Footing" doctrine. This suit involves a dispute between the United States and Idaho over the ownership of submerged lands underlying portions of Lake Coeur d'Alene and the St. Joe River. The Coeur d'Alene Tribe once inhabited vast acreage in and about what is now Idaho. Held: The National Government holds title, in trust for the Tribe, to lands underlying portions of Lake Coeur d'Alene and the St. Joe River.

NEVADA v. HICKS (2001)
Tribal Court has no jurisdiction over tort case against state officials who were investigating criminal activity by executing search on tribal trust lands; tribal courts lack authority to adjudicate federal civil rights claims. After petitioner state game wardens executed state-court and tribal-court search warrants to search Hicks's home for evidence of an off-reservation crime, he filed suit in the Tribal Court. Tribal authority to regulate state officers in executing process related to the off-reservation violation of state laws is not essential to tribal self-government or internal relations. Congress has not stripped the States of their inherent jurisdiction on reservations with regard to off-reservation violations of state law. The federal statutory scheme neither prescribes nor suggests that state officers cannot enter a reservation to investigate or prosecute such violations.

DOJ Proposes Amendments To The Johnson Act
The proposal seeks to clarify the difference between Class II and Class III machines. It prohibits tribes from operating games that resemble slot machines without a tribal-state compact.

(Read the original Johnson Act of 1934, 15 U.S.C. 1171-1178)

(Due to the rapidly changing environment surrouding Indian gambling, this page is dynamic and chages are made periodically)

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