Indian Gaming Law and Policy
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1 Indian Gaming Law and Policy
2
3 Indian Gaming Law and Policy Kathryn R.L. Rand School of Law University of North Dakota Steven Andrew Light Department of Political Science and Public Administration University of North Dakota Co-Directors Institute for the Study of Tribal Gaming Law and Policy University of North Dakota Carolina Academic Press Durham, North Carolina
4 Copyright 2006 Kathryn R.L. Rand and Steven Andrew Light All Rights Reserved Library of Congress Cataloging-in-Publication Data Rand, Kathryn R.L. Indian gaming law and policy / Kathryn R.L. Rand, Steven Andrew Light. p. cm. Includes index. ISBN (alk. paper) 1. Gambling on Indian reservations--law and legislation--united States. I. Light, Steven Andrew. II. Title. KF8210.G35R ' dc Carolina Academic Press 700 Kent Street Durham, North Carolina Telephone (919) Fax (919) Printed in the United States of America
5 This book is dedicated to Dorothy Light, Tom and Alice Jean Rand, Doug Rand, and our entire families for their unconditional support.
6
7 Contents Preface and Acknowledgments Chapter 1 Introduction 3 The Interactive Roles of Law and Politics 7 A Note on Tribal Sovereignty 10 A Note on Gambling Law 12 Plan of Book 14 Chapter 2 Indian Gaming Before Traditional Tribal Games 17 Modern Indian Gaming 20 Reservation Economic Development 20 California v. Cabazon Band of Mission Indians 24 Political Responses to Cabazon 29 Chapter 3 The Indian Gaming Regulatory Act of Indian Tribes and Indian Lands 36 Indian Tribes 36 Indian Lands 37 Newly Acquired Lands 39 The National Indian Gaming Commission 41 Composition 41 Regulatory Authority 42 Investigative and Enforcement Powers 42 Approval and Oversight Powers: Tribal Ordinances, Management Contracts, and Tribal Regulation 44 Classes of Gaming 46 Class I Traditional Tribal Games 48 Class II Bingo and Nonbanked Card Games 48 Class III Casino-Style Games 53 The Tribal-State Compact Requirement 55 The State s Duty to Negotiate in Good Faith 55 xiii vii
8 viii Contents The Federal Cause of Action 56 The Role of the Secretary of the Interior 58 Compact Provisions 59 Gaming Revenue 60 Restrictions on Use of Gaming Revenue 60 Taxation 60 Per Capita Payments 61 Criminal Provisions 63 IGRA s Criminal Provisions 63 The Johnson Act 65 Chapter 4 Subsequent Legal Developments 69 State Public Policy and Scope of Gaming 70 Expansive Interpretations 70 Restrictive Interpretations 74 Alternative Interpretations 76 Classification of Games 79 Other Games Similar to Bingo 80 Technologic Aid or Electronic Facsimile? 83 Pending Federal Regulations 89 State Sovereign Immunity 91 Seminole Tribe v. Florida 92 Tribal-State Compact Negotiations After Seminole Tribe 94 Federal Regulations in Response to Seminole Tribe 99 Other Constitutional Challenges 103 Tenth Amendment Challenges 103 Equal Protection Challenges 105 Chapter 5 The Role of Politics and Policy 109 Government Regulation of Indian Gaming 109 Federal Agencies 110 Department of the Interior 110 National Indian Gaming Commission 112 Department of Justice 113 Department of the Treasury 113 Tribal Gaming Commissions 114 State Gaming Commissions 116 The Political Players 117 Tribes 119 States 120
9 Contents ix The Governor 121 The Legislature 122 State Courts 123 Localities 124 Federal Government 124 Executive Officials 124 Congress 125 Federal Courts 126 Associations and Organizations 127 Industry Associations and Corporations 127 Organizations and Citizen Groups 129 Consultants, Think Tanks, and Institutes 131 Indian Gaming and the Ballot 134 Lobbying and Campaign Contributions 134 Referenda and Initiatives 135 Chapter 6 Political Issues and Policy Outcomes 139 Socioeconomic Impacts of Indian Gaming 140 Economic Impacts 140 Social Impacts 143 Developing Issues 150 Revenue Sharing 151 Tribal Treaty Rights 153 Federal Tribal Recognition 155 Tribal Land Acquisition and Off-Reservation Gaming 156 Chapter 7 Conclusion: The Future of Indian Gaming 163 The Future of Legalized Gambling 163 Tribal Economic Diversification 165 Law Reform 167 Tribal-State Compact Negotiations 169 Appendix A Researching Indian Gaming 171 Academic Institutes and Information Clearinghouses 171 Journals 173 Trade Publications 174 News and Current Events 175 Books 176 Associations and Organizations 179 Government Resources 181 Tribes 181
10 x Contents States 181 Federal 182 Statutes, Regulations, and Court Cases 183 Reports 184 Appendix B The Indian Gaming Regulatory Act of Public Law No , 102 Stat (October 17, 1998) Codified at 25 U.S.C Findings Declaration of policy Definitions National Indian Gaming Commission Powers of Chairman Powers of Commission Commission staffing Commission access to information Interim authority to regulate gaming Tribal gaming ordinances Management contracts Review of existing ordinances and contracts Civil penalties Judicial review Subpoena and deposition authority Investigative powers Commission funding a. Availability of class II gaming activity fees to carry out duties of the Commission Authorization of appropriations Gaming on lands acquired after October 17, Dissemination of information Severability 216 Appendix C Federal Regulations Related to Indian Gaming 217 Secretary of the Interior/Bureau of Indian Affairs 217 National Indian Gaming Commission 217 Appendix D Indian Gaming Regulatory Authorities by State and Tribe 219 Alabama 219 Alaska 220 Arizona 221 California 224
11 Contents xi Colorado 236 Connecticut 237 Florida 238 Idaho 239 Iowa 240 Kansas 241 Louisiana 242 Maine 243 Michigan 244 Minnesota 246 Mississippi 249 Montana 250 Nebraska 252 Nevada 253 New Mexico 254 New York 257 North Carolina 258 North Dakota 259 Oklahoma 260 Oregon 267 South Carolina 269 South Dakota 270 Texas 272 Washington 273 Wisconsin 278 Wyoming 281 Index 283
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13 Preface and Acknowledgments Legalized gambling is prevalent in popular culture today. One can hardly flip the television dial without seeing a show glamorizing Las Vegas, featuring a high - s t a kes po ker to u rn a m en t, or dep i cting tribal casinos. Indian ga m i n g seems to be in the news all the time, whether the story is about a state seeking a cut of a tri be s casino profits or a tri be s attem pts to acqu i re new tru s t land to open a casino. Yet is su rpri s i n gly difficult to find acc u ra te and comp l ete accounts of Indian ga m i n g h ow it came abo ut, what it is, h ow it is regulated, and why it is so highly politicized. The law and policy of Indian gaming are perhaps the most com p l i c a ted and po l i ti c a lly fra u ght of a ny area of tri b a l - s t a te - federal rel a ti ons tod ay. Can a lega l practi ti on er nego ti a te the para m eters of the law of Indian gaming wi t h o ut delving into the po l i tics that cre a te the law and shape its app l i c a ti on? Can a policymaker effectively and fairly weigh policy options without comprehending the complex legal and regulatory environment of tribal gaming? And can a nyone fully understand Indian gaming wi t h o ut being aw a re of the sign i f i- c a n ce of tribal soverei gn ty as it rel a tes to the law, po l i ti c s, and policy of Indian gaming? This book grew out of our own search for materials that straightforwardly and fully explained the law and policy of Indian gaming. By assembling such i n form a ti on in a single tex t, we hope to provi de a re ad i ly acce s s i ble source for practitioners and policymakers, students and scholars, and anyone else interested in Indian gaming. Our collaboration on Indian gaming issues began almost a decade ago. We h ave found that our re s pective disciplines l aw, and po l i tical scien ce and public administration perhaps uniquely positioned us to take an interdisciplin a ry approach to re s e a rching what inheren t ly is a field that crosses disciplines. At the University of North Dakota, we founded the Institute for the Study of Tribal Gaming Law and Policy to fac i l i t a te qu a l i ty re s e a rch and inform ed pub- xiii
14 xiv Preface and Acknowledgments lic disco u rse on Indian ga m i n g. 1 We bel i eve that acc u ra te and com p l ete inform a ti on, a l ong with a fo u n d a ti onal re s pect for tribal soverei gn ty, s h o u l d drive the law and policy of Indian gaming. * * * Thanks to our colleagues at the University of North Dakota School of Law and the Department of Political Science and Public Administration for their ongoing support. This book benefited from the research assistance of Melissa Burkland and John Hoff and the administrative assistance of Kelly Jordet and Ka ren Bowl e s. At Ca rolina Ac ademic Pre s s, thanks to Keith Si pe for his enthusiasm for this project, to Bob Conrow for guiding us through the publication process, and to everyone else at the Press, including Paul McFarland and Tim Co l ton, for their help along the way. Thanks also to Meg Daniel, wh o prepared the index. Any errors in this book are, of course, our own. We welcome comments and suggestions from interested readers. Kathryn R.L. Rand Steven Andrew Light 1. The In s ti tute is a com pon ent of the Un ivers i ty of North Dakota Sch ool of L aw s Northern Plains Indian Law Center. See Institute for the Study of Tribal Gaming Law and Po l i c y, h t tp : / / w w w. l aw. u n d. n od a k. edu / n p i l c / ga m i n g / i n dex. php (last vi s i ted Septem ber 1, 2005).
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