You asked if a state can refuse to negotiate a tribal-state gaming compact with a federally recognized Indian tribe.

SUMMARY

Yes. A state can refuse to negotiate a tribal-state gaming compact and assert sovereign immunity to prevent the tribe from taking court action to compel negotiations. But, if it does so, the Interior Department secretary can prescribe gaming procedures, which are a legal substitute for a negotiated compact.

The Indian Gaming Regulatory Act (IGRA) gives the U.S. district court jurisdiction over any cause of action arising from a state's failure or refusal to negotiate a gambling compact with a federally recognized tribe. Before Seminole Tribe of Florida v. Florida (1996), a tribe could sue a state that refused to negotiate, and the court could compel negotiations. This was the case with Connecticut and the Mashantucket Pequots. After the court process failed to produce a compact between the state and the Pequots, the interior secretary, pursuant to IGRA, prescribed procedures for conducting Class III gaming, which includes casino gaming, on the Pequot reservation.

Seminole allowed a state to refuse to negotiate a compact with a tribe and assert an 11^th Amendment immunity defense to avoid being sued by a tribe in federal court to compel negotiations. But, in response to this decision, the Interior Department adopted regulations to prescribe procedures that would allow a tribe to conduct Class III gaming when a federal court dismisses a case challenging a state's refusal to negotiate a compact when the state asserted sovereign immunity.

IGRA

IGRA provides a statutory framework for resolving jurisdictional, regulatory, and legal issues pertaining to gambling on federally recognized Indian reservations (25 USC §§ 2701 to 2721). Its stated purposes are to (1) promote tribal self-sufficiency, (2) establish fair and honest gambling, (3) prevent organized crime and other corruption by providing a statutory basis for regulating gambling, (4) ensure that Indians are the primary beneficiaries of the gambling, and (5) establish standards for the National Indian Gaming Commission (NIGC). IGRA was passed, in part, in response to a U.S. Supreme Court decision generally precluding states from regulating gaming on Indian reservations (California v. Cabazon, 480 U.S. 202 (1987)).

IGRA divides gaming on Indian reservations into three classes, subject to different degrees of regulation. Class I games, which are traditional ceremonial games or social games played for prizes of minimal value, are within the tribes' exclusive jurisdiction (25 USC §§ 2703(6) and 2710(a)(1)). Class II games, including bingo, lotto, and games similar to bingo, are allowed if the state where the reservation is located permits them (25 USC § 2703(7)(A)). But, they are subject to some federal oversight and tribal regulation (25 USC §§ 2710(b) and (c) and 2710(a)(2)). Banking card games, electronic games of chance, and slot machines are expressly prohibited as Class II games (25 USC § 2703(7)(B)).

Class III Gaming

Class III games are all forms of gaming that are not in Class I or Class II (25 USC § 2703(8)). They include slot machine, casino, lottery, and pari-mutuel wagering. Under IGRA, Class III gaming is lawful on federally recognized Indian reservations only if (1) authorized by an NIGC-approved ordinance adopted by the tribe's governing body and; (2) located in a state that permits such gaming for any purpose by any person, organization, or entity; and (3) conducted pursuant to a negotiated tribal-state compact.

Tribal-State Compact Negotiations

Under IGRA, a tribe wanting to conduct Class III gaming must ask the state to negotiate a compact. If the parties have not agreed on the compact within 180 days of the tribe's request, the tribe may file suit in federal district court, claiming the state has not negotiated in good faith (25 USC § 2710(7)(A)). If the court agrees with the tribe, it must order the state and tribe to conclude a compact within 60 days. If they fail to do so, each must submit its last best offer to a court-appointed mediator who must choose the one that 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. If it 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 Indian lands over which the tribe has jurisdiction (25 USC § 2710(d)(7)(B)(vii)). The procedures are a legal substitute for a negotiated compact. The secretary must publish notice in the Federal Register of any approved tribal-state compact (or procedures, where applicable). The compact and procedures have the force of federal law.

FEDERAL PROCEDURES GOVERNING CASINO OPERATIONS AT FOXWOODS

Connecticut does not have a compact with the Mashantucket Pequots. Gambling at the casino is governed by federal procedures, which, as indicated above, have the same effect as a negotiated tribal-state compact, and the force of federal law.

When the Pequots sought to negotiate a compact, the state refused on the grounds that Class III games are illegal in Connecticut. The tribe sued the state. In arriving at its finding, the court cited the Supreme Court's opinion in California v. Cabazon Band of Mission Indians,( 480 U.S. 202 (1987)) on which Congress relied in drafting IGRA. Cabazon held that if a state's policy is to prohibit all forms of gambling, then its policy is “criminal-prohibitory,” and its criminal laws apply to tribal gaming. But, if the state allows some forms of gambling, even subject to extensive regulation, its policy is “civil-regulatory,” and it therefore cannot enforce its gambling laws on the reservation.

The court ruled that Connecticut had to negotiate because it:

permits games of chance, albeit in a highly regulated form. Thus, such gaming is not totally repugnant to the State's public policy. Connecticut permits other forms of gambling, such as a state operated lottery, bingo, jai alai and other forms of pari-mutuel betting. High amounts may be bet and substantial winnings are permitted. Connecticut “regulates, rather than prohibits, gambling in general and [games of chance] in particular (see Mashantucket Pequot Tribe v. State of Connecticut, 37 F. Supp. 169 (D Conn. 1990) aff'd. 913 F. 2d 1024 (2^nd Cir. 1990), cert. denied—US—111 S. Ct. 1620 (1991)).

The court directed the tribe and state to enter into good faith negotiations and conclude a compact within 60 days. After failing to agree on a compact, they submitted their proposals to a court-appointed mediator, as IGRA requires. The tribe subsequently withdrew its proposal, and the mediator selected the state's version. The state had 60 days to accept the draft. It decided not to accept it and to wait for the results of an appeal it had filed in the U.S. Circuit Court of Appeals. That Court affirmed the lower court's decision, but the state still refused to accept the draft, preferring instead to appeal to the U.S. Supreme Court, which refused to hear the case (denied certiorari). As required by IGRA, it was left up to the interior secretary to prescribe procedures. The procedures became effective on May 31, 1991 (56 Fed. Reg. 24996, May 31, 1991).

SEMINOLE TRIBE V. FLORIDA

The requirement that states negotiate with tribes in good faith has led to many lawsuits. In Seminole Tribe of Florida v. Florida, the U.S. Supreme Court upheld, on a five to four vote, an 11^th Circuit ruling that federal courts must dismiss a tribe's IGRA lawsuit when a state asserts an 11^th Amendment immunity defense (517 U.S. 44 (1996)). The Court ruled that a tribe cannot use the federal court procedures set forth in IGRA to force a state to negotiate a gaming compact.

The decision was based on the 11^th Amendment to the U.S. Constitution, which the courts have interpreted to mean that, in most cases, states cannot be sued in federal courts without their consent. The justices concluded that (1) states had not consented to the lawsuits and (2) the Indian Commerce Clause of the U.S. Constitution, which Congress relied on in enacting IGRA, does not give that body the power to override state sovereign immunity.

After Seminole, several states indicated that they would assert an 11^th Amendment defense to avoid being sued to negotiate a tribal-state gaming compact. Arguing that in such a situation tribes would have no recourse, the Interior Department has adopted regulations allowing the secretary to prescribe gaming procedures if a state's assertion of immunity results in the dismissal of a tribal claim. The department claims authority to adopt such regulations from (1) IGRA and (2) two additional statutes that delegate broad authority to the secretary to “manage Indian affairs and carry into effect legislation relating to such affairs.” It argues that the regulations provide the tools to fulfill congressional intent under IGRA and that although Congress likely did not foresee states' refusal to participate in IGRA's court-ordered mediation process, it plainly authorizes the secretary to permit Class III gaming if IGRA's court-supervised process fails to produce a joint compact.

The department also relies on a portion of the 11^th Circuit Seminole opinion in which the court suggested how cases barred by the 11^th Amendment may be handled. The court stated in dicta (statement not necessary to a holding) that if a state asserts an 11^th Amendment defense to a tribe's lawsuit, the tribe may notify the secretary, who may address the problem by regulation. (The Supreme Court upheld the 11th Circuit's holding that Congress lacked authority to abrogate a state's 11^th Amendment immunity, but it declined to address the lower court's opinion suggesting a secretarial remedy under IGRA.)

Several states (including Alabama, Connecticut, and Florida) have formally objected to the secretary's assumption of authority to prescribe procedures outside of IGRA's framework. They argue that because IGRA provides the complete and only legal framework for tribal gaming, the secretary cannot claim authority to prescribe procedures, and thus circumvent IGRA, based on her general regulatory power for Indian affairs. Further, the regulations (1) do administratively what the Supreme Court says Congress cannot do legislatively; (2) arrogate to the secretary legislative and judicial functions that Congress did not intend to, and perhaps cannot, delegate; and (3) remove any incentive for a tribe to negotiate.

Class III Gaming Procedures

Under the new regulations, the secretary can prescribe procedures for conducting Class III gaming when a state and tribe are unable to agree on a compact voluntarily and the state has asserted its immunity from suit brought by the tribe under IGRA (25 CFR 2913 et. seq.).

A tribe may ask the secretary to issue the procedures after:

1. it has submitted a written request to the state to enter negotiations for a gaming compact,

2. the parties have failed to negotiate a compact 180 days after the state received the request,

3. the tribe sued the state alleging that it did not respond or did not respond in good faith to the request,

4. the state raised an 11^th Amendment defense to the tribe's action, and

5. the court dismissed the action based on the sovereign immunity assertion (25 CFR 291.3).

When the secretary receives a proposal from a tribe for Class III gaming procedures, she has 15 days to notify the tribe that she received the proposal and 30 days to notify it if it meets eligibility requirements.

If the secretary determines that the tribe is eligible to request Class III gaming procedures and the proposal is complete, she must submit it to the governor and attorney general of the state where the gaming is proposed. They have 60 days to comment on whether the (1) state agrees with the proposal; (2) proposal is consistent with state law; and (3) contemplated activities are permitted in the state for any purposes, by any person, organization, or entity. The secretary will also ask the attorney general and governor to submit an alternative proposal.

When the 60-day comment period ends, the secretary must review the tribe's proposal to determine if:

1. it addresses all legal requirements;

2. Class III gaming will be conducted on land under the tribe's jurisdiction;

3. the state permits the proposed gaming;

4. the proposal is consistent with state law, IGRA, and other applicable federal laws; and

5. the proposal is consistent with the trust obligations of the United States to the tribe ((25 CFR § 291.9).

Within 60 days after the comment period expires, the secretary must notify the tribe, governor, and attorney general that she has (1) approved the proposal, (2) identified unresolved issues and areas of disagreements, or (3) made a final decision to either issue gaming procedures or deny the proposal. If she identifies unresolved issues, she must invite the parties to participate in an informal conference to resolve them, and, within 30 days of the conference, send them a written summary of the conference discussions. (The regulations also contain provisions governing the process if the state presents an alternate proposal. In the interest of brevity, these are not discussed here.)

The procedures take effect when published in the Federal Register. The tribe and state may have an agreement regarding monitoring and enforcement of tribal compliance with the gaming procedures. In addition, under existing law, the NIGC monitors and enforces tribal compliance (25 CFR 291.12).

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