Court Cases; Federal laws/regulations; Connecticut laws/regulations;

OLR Research Report

The Connecticut General Assembly


May 20, 1997 97-R-0717


FROM: Pamela Lucas, Associate Attorney

RE: Unsupervised Minors in Indian Casinos

You asked whether the state can prohibit parents from leaving children unsupervised or for extended hours in Indian gaming casinos.


To the extent that leaving children in casinos unsupervised or for extended hours jeopardizes their safety, the state may prosecute the parents for risk of injury to a minor, even though the conduct occurs at the Mohegan or Mashantucket Pequot gaming casinos. This is because under well established U.S. Supreme Court case law, the state has jurisdiction over crimes committed in Indian country by non-Indians against other non-Indians (United States v. Wheeler, 435 U.S. 313, 324 n.21 (1978); Draper v. United States, 164 U.S. 240 (1896); United States v. McBratney, 104 U.S. 621 (1881)). And, under the Mohegan Nation of Connecticut Land Claims Settlement Act of 1994 (P.L. 103-377) and the Connecticut Indian Land Claims Settlement Act of 1983 (concerning the Mashantucket Pequot Tribe) (25 U.S.C. 1755), it has jurisdiction over crimes committed by tribal members on the Mohegan and Mashantucket Pequot reservations.

On the other hand, it appears that state measures to specifically regulate the admission of children into casinos might be preempted by the Indian Gaming Regulatory Act (IGRA) of 1988 and the federal government's policy of promoting tribal self-sufficiency and economic development. Notably, both the Mohegan Gaming Compact and the Mashantucket Pequot Gaming Procedures prohibit people under age 21 from being admitted into any room in which authorized Class III gaming is conducted, other than facilities limited to the play of bazaar games, but are otherwise silent concerning the admission of children onto casino property (see 3(e) of Compact and Procedures).

To answer your query, we examined relevant cases, statutes, and provisions of the Mashantucket Pequot Gaming Procedures and the Mohegan Gaming Compact and Agreement. We also spoke with Penny Coleman, General Counsel for the National Indian Gaming Commission; the National Conference of State Legislatures; the National Indian Gaming Association (NIGA); and state gaming officials or legislative attorneys for the following states, each of which has at least four Indian gaming compacts: Arizona, Minnesota, Montana, Nevada, New Mexico, North Dakota, South Dakota, Washington, and Wisconsin. Those individuals with Indian law expertise expressed preemption and jurisdiction concerns regarding state legislation to regulate the presence of children on Indian gaming casino property. All nine states reported that they generally prohibit children from being present in rooms where gaming is being conducted. Arizona prohibits children from being in any part of their casinos, except for one particular hotel/casino complex. None of the other eight states explicitly address through compact provisions or legislation the issue of children being brought onto casino property by their parents. All of the states, as well as NIGA, report that there does not appear to be a significant problem with children being left unsupervised in casinos.


Mashantucket Pequot Reservation and Casino

Section 6 of the Mashantucket Settlement Act, codified at 25 U.S.C. 1755, declares that “Notwithstanding the provision relating to a special election in section 406 of the Act of April 11, 1968 (. . . 25 U.S.C. 1326), the reservation of the Tribe is declared to be Indian country subject to State jurisdiction to the maximum extent provided in title IV of such Act.” In State v. Spears, 234 Conn. 78 (1995), certiorari denied, 116 S. Ct. 565 (1996), the Connecticut Supreme Court ruled that the state of Connecticut acquired jurisdiction over crimes committed on the Mashantucket Pequot Indian Reservation when Congress enacted this provision, and that tribal consent was unnecessary.

Section 4 of the Gaming Procedures declares that the state has jurisdiction to enforce not only the criminal laws prohibiting unauthorized Class III gaming, but also all other criminal laws of the state that are consistent with the Procedures on the Reservation, including enforcement within the gaming facilities. State law enforcement officers are to be given free access to the facilities “ for the purpose of maintaining public order and public safety and enforcing applicable criminal laws of the State as permitted hereunder . . . .”

Mohegan Reservation and Casino

P.L. 103-377 authorizes Connecticut to assume jurisdiction over criminal offenses committed by or against Indians on the Mohegan Tribe's reservation, to the same extent as the state has jurisdiction over such offenses committed in other parts of the state. The act also declares that the state's criminal laws are to be enforceable within the reservation as in other parts of the state.

Section 4 of Mohegan Gaming Compact, like the parallel provision of the Mashantucket Pequot Gaming Procedures, provides for state jurisdiction to enforce state criminal laws that prohibit unauthorized Class III gaming as well as other criminal laws that are consistent with the Compact provisions. This jurisdiction applies on the reservation including within the gaming facilities. The provision requires law enforcement officers to be given free access to the facilities to maintain public order and safety and enforce the applicable criminal laws.

Risk of Injury to a Minor

It thus appears that the state can prosecute parents who leave their children unsupervised in the casinos or in parked cars at the casinos, under conditions that would constitute risk of injury to a minor. CGS 53-21 makes it unlawful to “wilfully or unlawfully cause[] or permit[] any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired . . . .” Risk of injury to a minor is a class C felony, punishable by one to 10 years imprisonment, a fine of up to $10,000, or both. The offense has been applied to parents who leave their children unattended (see, e.g., State v. George, 37 Conn. App. 388 (1995) (parent previously warned not to leave child unattended in car, left child at home)).

According to Jack Cronan, legislative liaison for the Chief State's Attorney's Office, police officers may be reluctant to prosecute parents for the offense in light of the fairly severe penalty attached. One possibility for future legislation may be to make it a class A misdemeanor for a parent to knowingly leave a child unsupervised in a place of public accommodation or a motor vehicle, in a location or for a period of time that presents a substantial risk to the child's health or safety. Class A misdemeanors are punishable by up to one year imprisonment, a fine of up to $2,000, or both.


Preemption Principles

Based on U.S. Supreme Court case law, it is likely that federal Indian law and policy would preempt state legislation to regulate the admission or supervision of children brought into Indian gaming casinos.

The state's authority to impose civil regulatory measures that burden tribal Indians in their dealings with non-Indians is preempted by operation of federal law “'if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority'” (California v. Cabazon Band of Mission Indians, 107 S. Ct. 1083, 1092 (1987) (quoting New Mexico v. Mescalero Apache Tribe, 103 S. Ct. 2378, 2385-86 (1983)). Thus, in evaluating a preemption challenge, a court must conduct a “particularized inquiry” to determine the nature of the state, federal, and tribal interests involved, and whether the exercise of that authority, on balance, would interfere more with federal and tribal interests than further state interests. It must conduct this inquiry “in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its 'overriding goal' of encouraging tribal self-sufficiency and economic development” (107 S. Ct. at 1092).

Relevant to the preemption determination is whether the state regulation directly relates to a tribal activity that is conducted with the federal government's approval or promotion. In Cabazon Band of Mission Indians, the Court held that California's statutes governing the operation of bingo games were preempted even though they did not seek to prohibit reservation games, in light of the federal policy of supporting such enterprises through financial assistance and the Secretary of the Interior's exercise of his authority to approve tribal bingo ordinances and management contracts. A court might rule that state legislation addressing the issue of children brought into Indian gaming casinos is similarly preempted, in light of the federal government's regulation and promotion of class III gaming through IGRA.