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St. Thomas Law Review

First Page

259

Document Type

Article

Abstract

In 1988 Congress passed the Indian Gaming Regulatory Act (IGRA). The states, disappointed with certain aspects of the IGRA legislation, launched a war against Indian tribes to stop them from conducting the gaming which Congress had determined was a vital source of economic development for tribes and a proper exercise of tribal sovereignty. In 1994 governors from forty-nine states signed and sent a letter to Congress urging drastic revisions in the law purportedly to protect states' rights. To this day, every Session of Congress brings the introduction of legislation that would curtail or destroy Indian gaming rights. The states viewed the establishment of tribal casinos within their borders as an intrusion of states' rights that should be stopped or, at a minimum, curtailed. To the tribes, Indian gaming had to be protected and expanded because it was the only known source of economic development that gave tribes the resources to raise themselves from levels of abject poverty that had continued on most reservations for more than a century. Currently, the Indian gaming war is almost over. In state after state, through negotiation or litigation or some combination of the two, the tribe and the states have been able to agree on the compacts IGRA requires for the conduct of casino gaming. Indian gaming ventures have helped the state and local economy, while affording tribes the economic development they desperately need. At the present time there are 179 compacts negotiated between 160 tribes and 24 states. Last year the California tribes and the State of California entered into a statewide compact approved through the passage of an amendment to the State Constitution that has finally resolved the controversies that have raged in that state for more than ten years. Florida is the most notable exception to the trend of accommodation between the tribes and states. After twenty years of struggle, dating back to the 1981 Seminole Tribe v. Butterworth case, which predates IGRA and seven separate law suits, two of which are still pending, there is still no resolution of the scope of the Seminole and Miccosukee Tribes' right to conduct gaming on their Florida reservations. The Florida tribes maintain that the state allows a broad variety of gaming and that they are entitled to conduct such gaming under a compact or under procedures established by the Secretary of the Interior. The State of Florida maintains that the Florida tribes are trying to establish casino gaming of a kind that goes beyond what is allowed by Florida law. However, Florida has been unwilling to let the courts decide the controversy, successfully establishing in Seminole Tribe of Florida v. Florida that Congress could not constitutionally subject them to suit by the Tribes to resolve this matter and related issues. Florida has filed suit to stop the Secretary of the Interior from allowing the Tribes the alternative administrative remedy, which the Court of Appeals for the Eleventh Circuit in the Seminole case determined was the necessary alternative to the court suit it ruled to be unconstitutional. The State of Florida does not appear to want a fair minded impartial resolution of the issues. It is content to hide behind its immunity, while doing everything it can to destroy the tribal gaming rights that Congress confirmed in the IGRA. While it is not possible at this time to know how the controversy over Indian gaming in Florida will be resolved, I think it is important for the citizens of Florida to realize that the State's position in this controversy is founded on a misconception of the role of tribes in the federal system and a failure to recognize the sovereign status of tribal governments. It must be remembered that the Supreme Court held in California v. Cabazon Band of Mission Indians that allowing state regulation of tribal gaming would "impermissibly infringe on tribal government. '' Cabazon recognizes that the regulation of gaming on tribal lands was a matter involving the exercise of tribal sovereign power, subject only to restriction by Congress in the exercise of its plenary power over Indian affairs. Even before the Supreme Court heard the Cabazon case, the Fifth Circuit in Butterworth found that "the states lack jurisdiction over Indian reservation activity until granted that authority by the federal government." When IGRA was passed in the aftermath of Cabazon Congress restricted pre-existing tribal rights and partially reversed the result of that decision. Congress made casino gaming subject to a degree of state regulation by requiring a tribe to obtain the consent of the state in which it is located through a compact regulating the conduct of such gaming. However, Congress did not make the tribes fully subject to state law. Under the IGRA compromise, the tribes would be allowed to conduct any form of commercial gaming allowed by a state for any person and for any purpose, without necessarily following the limits of state law. States were not free to arbitrarily refuse to enter into a requested compact. The states were required to negotiate in good faith and were made subject to suit in federal court if they did not comply - a remedy that was ruled unconstitutional in the Seminole case. In passing the IGRA, Congress did not ignore the sovereign status of tribes. However, the war over Indian gaming can only be understood in the context of the historic struggle between tribes and states over the continued sovereign status of the tribes. In order to properly understand the legal basis for Indian gaming, it is essential to examine the underlying basis and history of federal Indian policy and the sovereign status of tribes, which continues to endure until the present day.

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