STATES REQUIRED TO NEGOTIATE WITH TRIBES ON GAMING

The Indian Gaming Regulatory Act (IGRA) requires states to negotiate in good faith with tribes seeking Class III gaming compacts. A tribal-state compact is a legal agreement that outlines the gaming operation, such as the kind of games offered, the size of the facility, betting limits, regulation, security, etc. No compacts are necessary for Class II gaming.

This compacting process was demanded by the states in initial IGRA negotiations as a way for states to exercise control over Indian gaming. However, now some states are refusing to negotiate compacts. These states are reneging on the deal they pushed through Congress and tribes accepted, even though the IGRA already diminishes tribal sovereignty by allowing state participation in the regulation of a tribal government activity.

The states ongoing assault on IGRA starts from the faulty premise that they have a right to regulate tribal gaming. The Supreme Court has clearly said this is not true. In the Cabazon decision the Court said tribes can conduct reservation gaming free of state laws as long as the state permits the same activity outside the reservation.

While a number of states have negotiated fairly with tribes and are now reaping the economic benefits of Indian gaming, other states have refused to negotiate compacts, thus violating federal law and ignoring the jurisdiction of the federal courts. IGRA provides that if states refuse for more than 180 days to negotiate in good faith, tribes can ask the federal court to appoint a mediator. If the mediator then fails to bring both sides together within 60 days, the mediator chooses the last best offer of either the tribe or the state.

The time limits were written into the law to protect tribes so that states could not stall or delay the compacting process. But that is exactly what states have done through lawsuits that are taking years to resolve. In 1990, Mississippi became the first state to argue that Congress does not have the constitutional authority to subject unconsenting states to the jurisdiction of the federal courts. This defense is based on the 11th Amendment, which concerns the judicial powers of the state and federal governments.

In 1991, Arizona became the first state to argue that Congress does not have the constitutional authority to compel states to deal fairly with tribes. This defense is based on the 10th Amendment to the U.S. Constitution, which addresses states rights in relation to the federal government. Court cases on the 10th Amendment or 11th Amendment have been tried or are under consideration in Alabama, Arizona, Florida, Mississippi and Washington.

The U.S. Secretary of the Interior has the power, in lieu of successful compact negotiations, to set forth conditions and procedures for tribes to offer Class III gaming. Tribes have urged the Secretary to form such regulations, thereby giving tribes immediate relief or forcing states to negotiate.

Tribes feel this immediate action is required because some of the states that have refused to negotiate have at the same time encouraged tremendous growth in non-Indian gaming.