Tribal-State Gaming Compacts (IGRA, 25 USC)
The Indian Gaming Regulatory Act of 1988 discusses the procedures for tribal-state compacts regarding Class III Indian gambling (25 USC § 2710).
Summary of Procedures for Negotiating Tribal-State Compacts Under IGRA
A tribe wanting to conduct Class III gaming must ask the state to negotiate a compact (25 USC § 2710(d)(3)(A)).
If the parties have not agreed on the compact's terms within 180 days of the tribe's request, the tribe may file suit in federal district court, claiming that the state has not negotiated in good faith (25 USC § 2710(D)(7)(a)(I)).
If the court agrees with the tribe, it must order the state and tribe to conclude a compact within 60 days (25 USC § 2710(d)(7)(B)(iii)). If they fail to do so, each must submit its last best offer to a court-appointed mediator, who must choose the one which best comports with IGRA and other federal laws (25 USC § 2710(d)(7)(B)(iv)).
If the state accepts the mediator's proposal, it becomes the compact (25 USC § 2710(d)(7)(B)(vi)). If the state does not accept, the secretary must prescribe procedures (1) consistent with the proposed compact the mediator selects and the provisions of IGRA and relevant state laws and (2) under which Class III gaming may be conducted on the Indian lands over which the tribe has jurisdiction (25 USC § 2710(d)(7)(B)(vii)). The procedures are a legal substitute for a negotiated tribal-state compact.
The secretary must publish notice of approved compacts (or procedures, where applicable) in the Federal Register. The compact and procedures have the force of federal law.
IGRA Legal Account: Tribal-State Compacts (25 USC § 2710(d)(3)(A)) Tribal Gaming Ordinances
(3)(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact.
(4) Except for any assessments that may be agreed to under paragraph (3)(C)(iii) of this subsection, nothing in this section shall be interpreted as conferring upon a State or any of its political subdivisions authority to impose any tax, fee, charge, or other assessment upon an Indian tribe or upon any other person or entity authorized by an Indian tribe to engage in a class III activity.
(5) Nothing in this subsection shall impair the right of an Indian tribe to regulate class III gaming on its Indian lands concurrently with the State [unless the state-tribal compact specifies any state control]
Federal Court Actions
(7) (B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the Indian tribe requested the State to enter into negotiations under paragraph (3)(A).
(7)(B )(iii) If, in any action described in subparagraph (A)(i), the court finds that the State has failed to negotiate in good faith with the Indian tribe to conclude a Tribal-State compact governing the conduct of gaming activities, the court shall order the State and the Indian Tribe to conclude such a compact within a 60-day period. In determining in such an action whether a State has negotiated in good faith, the court—[will consider reasons why state has not entered negotiations and determine the legitimacy]
Mediation
(7)(B)(iv) If a State and an Indian tribe fail to conclude a Tribal-State compact governing the conduct of gaming activities on the Indian lands subject to the jurisdiction of such Indian tribe within the 60-day period provided in the order of a court issued under clause (iii), the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact. The mediator shall select from the two proposed compacts the one which best comports with the terms of this chapter and any other applicable Federal law and with the findings and order of the court.
[The mediator then chooses between the two proposals and submits their choice to the State and Indian Tribe. If the State consents to the mediator-selected proposal within 60 days, the proposal is treated as a Tribal-State compact.]
Procedures Prescribed by the Secretary [of the Dept. of the Interior]
(7)(B)(vii) If the State does not consent during the 60-day period described in clause (vi) to a proposed compact submitted by a mediator under clause (v), the mediator shall notify the Secretary [of the Interior] and the Secretary shall prescribe, in consultation with the Indian tribe, procedures ….which are consistent with the proposed compact selected by the mediator … under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction.
Secretarial Approval of Tribal-State Compacts
(8)(A) The Secretary is authorized to approve any Tribal-State compact entered into between an Indian tribe and a State governing gaming on Indian lands of such Indian tribe [within 45 days].
(B) The Secretary may disapprove a compact described in subparagraph (A) only if such compact violates--
(i) any provision of this chapter, (ii) any other provision of Federal law that does not relate to jurisdiction over gaming on Indian lands, or (iii) the trust obligations of the United States to Indians.
(C) If the Secretary does not approve or disapprove a compact described in subparagraph (A) before the date that is 45 days after the date on which the compact is submitted to the Secretary for approval, the compact shall be considered to have been approved by the Secretary, but only to the extent the compact is consistent with the provisions of this chapter.
Comments:
Some would argue that too broad of discretion is conferred upon the Secretary of the Interior (DOI) and that states ultimately have little legal recourse against the introduction of Indian gambling establishments.
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