American Indian Law Deskbook

By Hardy Myers; Clay Smith | Go to book overview

Chapter 12
Indian Lands Gaming

No other economic activity undertaken by Indian tribes has been as far- reaching and important as tribal gaming, starting in earnest during the early 1990s and expanding continuously since then. Unsurprisingly, this gaming explosion has spawned a significant level of litigation and regulatory controversy as the result of tribes engaging in what otherwise has been a disfavored industry in all but a few states until quite recently.

Most importantly, in one of the few instances where Congress has acted to encourage intersovereign cooperation, it adopted a comprehensive scheme in the Indian Gaming Regulatory Act of 1988 (IGRA) 1 to permit and regulate casino-like, or “class III, ” tribal gaming. The statute is based on a legislative conclusion that class III gaming should occur as an ordinary matter only pursuant to a tribal-state compact and provided a mechanism to accomplish that objective: subjecting states to federal court suits by tribes for failure to negotiate in good faith over the terms of such compacts. However, in litigation where a tribe sought to enforce the good-faith negotiating duty, the United States Supreme Court upheld the state's claim of Eleventh Amendment immunity from suit. That decision, Seminole Tribe v. Florida, 2 has had far-reaching effects in the field of federalism generally, but it also dulled, if not broke, the sword that Congress had created to ensure compliance by states with IGRA. Notwithstanding failure of this central feature of IGRA, Indian gaming continues to flourish. Tribal gaming, for example, generated net gambling revenues of $14.5 billion in fiscal year 2002, having grown

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1
Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 18 U.S.C. §§ 1166—1168 and 25 U.S.C. §§ 2701—2721).
2
517 U.S. 44 (1996).

-416-

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