The 1988 Indian Gaming Regulatory Act (IGRA) is often framed as opening the door for tribal gaming. According to former National Indian Gaming Commission (NIGC) Chairman Jonodev Chaudhuri, that assessment is incorrect, “the success of tribal gaming is despite not because of IGRA.” The remarks were made at the recently concluded Indian Gaming Association Conference.
The session, Is the IGRA obsolete in the 21st Century?, provided an interesting look into the IGRA from the tribal perspective. As Chaudhari put it, rather than open the door for tribal gambling, the IGRA inserted state governments into activities conducted by sovereign tribal nations.
How IGRA Came to Be
The IGRA is the culmination of disputes between states and tribal nations. When states began legalizing lotteries and other forms of gambling in earnest, tribal governments followed suit, opening bingo parlors and some dabbling in other forms of gambling. The tribal efforts led to several lawsuits.
The Seminole Tribe of Florida v. Butterworth was decided by the U.S. Fifth Circuit Court of Appeals in 1981. The court decided the Seminoles could operate a bingo parlor on its tribal lands since bingo was legal in Florida. The court also ruled the state doesn’t have regulatory power over the tribe.
The United States District Court for the Western District of Wisconsin issued a similar ruling in 1981 in Oneida Tribe of Indians v. State of Wisconsin, citing the same tribal sovereignty rationale. In 1982, the Ninth Circuit Court of Appeals decided Barona Group of the Capitan Grande Band of Mission Indians v. Duffy, which also went in the tribe’s favor.
These cases were the setup for California v. Cabazon Band of Mission Indians, which went to the Supreme Court in 1987. In a 6-3 decision, the majority opinion stated what every other court had, state and local governments do not have the authority to regulate gambling on tribal lands.
With states failing to rein in tribal gambling through the judicial branch, the legislative branch got involved and created IGRA, using a framework kicking around Congress since the early 80s.
As Franklin Ducheneaux wrote in IGRA: Background & Legislative History, the expansion of tribal gambling created an “anti-Indian backlash”:
As the political pressure from state and local officials and other opponents of Indian gaming increased, both administrative and legislative efforts were made by the Administration to deal with the “problem”. It soon became apparent that there was no Federal law that would permit the Federal government to prohibit, restrict, or regulate otherwise legal Indian gaming on the reservation.
What Exactly Is the IGRA?
The stated goals of IGRA are:
(1) to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments;
(2) to provide a statutory basis for the regulation of gaming by an Indian tribe adequate to shield it from organized crime and other corrupting influences, to ensure that the Indian tribe is the primary beneficiary of the gaming operation, and to assure that gaming is conducted fairly and honestly by both the operator and players; and
(3) to declare that the establishment of independent Federal regulatory authority for gaming on Indian lands, the establishment of Federal standards for gaming on Indian lands, and the establishment of a National Indian Gaming Commission are necessary to meet congressional concerns regarding gaming and to protect such gaming as a means of generating tribal revenue.
As Chaudhuri said, essentially, IGRA is designed to bring outside oversight to tribal gambling operations that the courts had already decided were legally offered.
The need for outside oversight is at odds with what IGRA clearly states in its findings:
“Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.”
Problems and Possible Solutions
From the tribal perspective, IGRA handcuffs tribes, preventing them from offering any internet gambling product.
Discussion has turned to the Seminoles in Florida, and the complications of IGRA in a world with internet and mobile gambling. Paraphrasing, I believe he is saying IGRA is keeping tribes from evolving their gambling options with the rest of the industry.
— Steve Ruddock (@SteveRuddock) April 20, 2022
As the Seminoles discovered, tribes interested in internet gambling are forced to become licensed as commercial operators, placing them under the purview of state (not tribal) gambling regulators.
The IGRA’s issues extend beyond internet gambling, as tribes in multiple jurisdictions, from Florida to New York to Oklahoma, have had compact disagreements that have led to adversarial relationships with their respective state governments.
As Chaudhuri noted during the session, the path forward isn’t new legislation. Instead, “the future of Indian gaming should remain in the hands of tribal governments.” How we get to that point and what it looks like could be the next big legal fight in the gambling industry.
