Indian Casinos

The rights of Native American tribes in the United States are complex. On one hand, tribes are considered quasi-sovereign entities, subject only to federal power; on the other, tribes have consistently negotiated their relationships with states. Although states do not have jurisdiction over tribes, an overview of the history of federal Indian policy shows that this scheme has been complicated by legislation and other agreements through which the federal government has handed particular types of oversight over tribes to states. Gaming for Indian tribes represents just such a complex relationship.

Tribes began gaming operations in earnest in the 1970s in California and Florida as a means to confront the challenging economic realities of many reservations. Most of these initial enterprises were high-stakes bingo operations. During this time, most states had antigaming laws in place, but the U.S. Supreme Court case McCla-nahan v. Arizona State Tax Commission (1973), which held that state law did not apply within [Page 1166]reservation boundaries, provided the necessary protection (and legal language) for tribes to commence gaming. The reaction on behalf of states was to continue to oppose Indian gaming, particularly because it was open to non-Indian patronage. In California, this long-standing conflict—in which state officials constantly threatened criminal prosecution of Indian gaming, and tribes challenged these threats in federal court—led to the Supreme Court case California v. Cabazon Band of Mission Indians (1987).

As stated earlier, the federal government has handed over to states some jurisdiction over tribal matters. One such law, Public Law 280, handed over criminal jurisdiction of tribes to a number of states. California was one such state. Based on Public Law 280, California argued that because it had criminal jurisdiction over tribes, and gaming was prohibited on a criminal basis in California, it had the authority to exercise criminal jurisdiction over Indian gaming in the state. However, the court found that California's power to regulate gaming was not framed as a criminal matter, but was instead a civil regulatory matter as indicated by its allowance of certain forms of state-sponsored gaming, such as the lottery. If, however, a state outlaws all forms of gaming, then tribes cannot have gaming operations in the state (see Texas v. Ysleta Del Sur Pueblo, 220 F. Supp.2d 668).

During this period, tribes, states, and special interest groups were lobbying Congress to act on the matter of gaming. The Cabazon case reiterated the need for legislation on Indian gaming. Congress proposed a regulatory act to cover Indian gaming, which initially was opposed by states. States deemed it was already within their rights to regulate gaming operations. However, following the Cabazon decision, several states reversed their opposition to the proposed Indian gaming regulations and urged their passage as a way to have some control through compact negotiations between states and tribes, as well as financially benefit from the regulations. On the tribal side, to protect themselves from the states’ efforts to limit gaming in courts, tribes sought legislative insurance against an unfavorable court ruling. Thus, in 1988 Congress passed the Indian Gaming Regulatory Act (IGRA) to regulate tribal gaming.

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