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IGRA at 25, With So Much More to Do

In 1987, the Supreme Court decided California v. Cabazon Band of Mission Indians, holding that a state could not prohibit gaming conducted on Indian lands if it allowed similar games by other persons in the state.

Alarmed at the prospect of gaming on Indian lands beyond their regulatory reach, state governors went to Congress and, less than a year later, won enactment of the Indian Gaming Regulatory Act (IGRA).

This month marks the 25th anniversary of President Reagan signing IGRA into law, presenting an opportunity to look back at IGRA’s implementation and effects it has had on Indian country.

Positive impacts include unprecedented job creation, increased household incomes and revenues to tribal governments and surrounding communities, a stable and mature Indian gaming sector, broad and deep investment by non-Indian gaming interests in Indian gaming, and newfound political influence in state capitals and Washington, D.C.

On the negative side, the sheer amount of money involved has attracted some bad and unscrupulous actors (like Team Abramoff), and created gaming-related conflicts between tribes manifested in lawsuits, state referenda, congressional lobbying and well-funded public relations campaigns.

Once IGRA was signed into law, Indian tribes set about the business of establishing tribal gaming ordinances and other legal and regulatory infrastructure to create favorable business climates for investors and developers. In relatively short order, these efforts paid off: in 1993, there were about 100 class III gaming facilities operating on the Indian lands of 91 tribes, generating $6 billion in revenues. By 2013, there were 420 facilities on the Indian lands of 240 tribes, generating $27.9 billion in revenues.

Even before the explosive growth of the sector, non-Indian gaming interests grew alarmed by this new --- and growing --- source of competition, and sought to change the structure of the IGRA to their benefit. In 1993-1994, 10 bills were introduced in Congress, some with innocuous titles like the "Indian Gaming Regulatory Act Amendments" ("IGRRA"). Others, however, were more specific in their objective like the "Bill to prohibit any class III gaming on Indian lands within a state except for the type of class III gaming specifically allowed by that State,” the acronym for which is not user-friendly.

Several of these measures were subject to hearings and accompanied by a lot of heated rhetoric, but none were enacted into law. The trend continued in the 1995-1996 session, with nine more IGRA amendment and trust land reform bills introduced, none of which were enacted.

In 1996, the Supreme Court struck again, deciding Seminole Tribe of Florida v. Florida, effectively barring lawsuits by tribes to enforce the good faith compact negotiations requirement against states contained in the IGRA. The Court held that, while congressional intent in IGRA was clear, the 11th Amendment does not allow state sovereign immunity to be abrogated for these suits.

Seminole opened the floodgates in Congress, and in the ensuing two years, 19 IGRA and gaming-related bills were introduced. In addition to the stand-alone bills, gaming-related amendments to annual Interior Department appropriations bills were offered.

In some cases, these amendments were accepted, such as the amendment offered by former Sen. Dick Bryan (D-NV), expressing the sense of the Senate that the federal Justice Department should enforce provision of the IGRA by requiring an approved tribal-state gaming compact for class III gaming to be conducted. Similarly, an amendment offered by Sen. Mike Enzi (R-WY) was also debated and accepted. The “Enzi Amendment” prohibited the Interior Secretary from promulgating class III procedures with a tribe in lieu of an approved tribal-state gaming compact.

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Intense legislative activity continued in 1999-2000, with 17 IGRA and related gaming bills introduced. New issues also came to the forefront of Indian gaming including forced unionization and Internet gambling. While the union issues continue to be debated with the re-introduction of the “Tribal Labor Sovereignty Act” in both the House and Senate in the current session of Congress, the “Unlawful Internet Gambling Enforcement Act” was enacted in October 2006.

Things simmered down in the following two years, when only one IGRA reform bill was introduced. Around this time, single-tribe bills began to appear, such as the Bay Mills Settlement bill, a bill related to gaming by the Wyandotte Tribe, and others. In 2003-2004, of 11 gaming bills introduced, 7 were related to situations involving individual tribes.

Beginning in 2005-2006, increased attention was paid to tribal efforts to acquire and have land taken into trust for gaming. Rather than broad proposals to amend IGRA to curtail the expansion of Indian gaming as was the case in previous years, the new tactic involves targeting individual tribes and their administrative and legislative attempts to take land- into-trust for gaming.

During this time, a new term was added to the Indian affairs lexicon: "off-reservation gaming." Regularly employed in an effort to deny gaming and other economic opportunities to newly recognized, newly restored, or landless tribes, the term has been used effectively for many years by more fortunate, well-heeled Indian tribes with existing gaming operations often in collaboration with their friends in Congress.

Sadly, these tactics have succeeded in many instances, despite the dire need for economic development, jobs and incomes in many tribal communities. These efforts have also taken hold despite the clear authority in the IGRA for the Interior Secretary to take land- into- trust for these groups of tribes, as well as for other tribes using the so-called "two-part determination," which also requires state governor’s concurrence. Ironically, some of the opponents of “off-reservation gaming” are themselves conducting gaming on off-reservation lands.

Like clockwork, the Supreme Court issued two decisions that fueled the land-into-trust fire with Carcieri v. Salazar in 2009 and Salazar v. Patchak in 2012 that are doing real damage to the Interior Secretary’s authority to take land into trust for any number of purposes, including gaming. Carcieri, holding that the Secretary may take land-into-trust under the Indian Reorganization Act (IRA) only if the applicant tribe in question was “under federal supervision” as of 1934, the date of enactment of the IRA.

Patchak upheld the ability of David Patchak to proceed with legal challenges to an already-completed land-into-trust decision by the Interior Secretary on behalf of the Gun Lake Tribe of Michigan.

Taken together, Carcieri and Salazar have cast doubt on both the legal authority of the Interior Secretary to take land- into-trust for tribes in general, and to preserve secretarial decisions already taken. The resulting legal uncertainty is causing widespread problems with pending applications as well as decisions already taken.

And while legislation in the form of the so-called “Carcieri fix” has been proposed in the House for the third Congress in a row, and Assistant Secretary for Indian Affairs Kevin Washburn has proposed administrative relief to address the Patchak case, a full-throated congressional declaration on the Interior Secretary’s authority to act in these cases would go a long way.

Speculating on the chances of enactment of the “Carcieri fix” is difficult because the bill is stalled in large part because of efforts by some to use the bill as a vehicle to restrict “off-reservation gaming.” As a result, bill sponsors are hesitant to push legislation that, at some point, might be compromised with provisions they find objectionable.

Whether Indian tribes and their friends in Congress can succeed in this regard remains an open question. Perhaps on the 30th anniversary of the IGRA we will look back fondly at successful efforts to do just that.

Paul Moorehead is a partner in the firm’s Indian Tribal Governments Group representing Indian tribes and tribal organizations.