Chantalle Forgues, Marty Honigberg

Sulloway & Hollis PLLC

Memorandum

November 24, 2003

WHAT SORT OF GAMBLING OR GAMING ACTIVITIES ARE ALLOWED ON NATIVE AMERICAN LANDS

         Federal law prohibits gambling and gaming activities. See generally 18 U.S.C.S. §§ 1801-04 (2003).  Native American tribes, however, have the exclusive right to regulate gambling activities on Native American lands if such activities are not specifically prohibited by federal law and are conducted within a state that does not prohibit them. 25 U.S.C.S. § 2701 (2003).  Specifically, Native American tribes have the exclusive right to regulate Class I gaming on their lands. Id. at § 2710 (a)(1).  Class I gaming is defined as “social games solely for prizes of minimal value or traditional forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal ceremonies or celebrations.” Id. at § 2703 (6); 25 C.F.R. 502.2 (2003). 

         Similarly, Native American tribes have the right to conduct Class II gaming on their lands where Class II gaming consists of bingo, lottery cards, pull-tabs and nonbanking card games. 25 U.S.C.S. §§ 2710 (b) & 2703 (7)(A); 25 C.F.R. 502.3.  In particular, a Native American tribe may engage in Class II gaming if the native land is located within the boundaries of a state that “permits such gaming for any purpose by any person, organization or entity,” and the tribe adopts a gaming ordinance that is approved by the Chairman of the National Indian Gaming Commission (“NIGC”). 25 U.S.C.S. § 2710 (b).  The “regulation of Class II gaming contemplates a federal role” with some oversight from the NIGC to ensure the promotion of tribal welfare, “but places primary emphasis on tribal self-regulation.” Seminole Tribe v. Florida, 514 U.S. 44, 49 n.1 (1996).  Thus, any Native American tribe in New Hampshire may engage in any of the Class II gaming activities already permitted in the state, as indicated above under the first section of this memo, including games such as bingo, certain types of raffles, and scratch or pull-tab tickets.

         In the same vein, Native American tribes may engage in any other type of gaming if the state already permits it and the tribe has negotiated an agreement with the state governing the conduct of such gaming.  Specifically, Native American tribes may engage in Class III gaming, which is defined as gaming not included within the Class I and II definitions and including banking card games such as blackjack, electronic facsimiles of games of chance, slot machines, casino games such as craps, for-profit lotteries, sports betting and pari-mutuel wagering on horse and dog racing, 25 U.S.C.S. § 2703 (7)(B); 25 C.F.R. §502.4, if the state “permits such gaming for any purpose by any person, organization or entity, and [it is] conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the [s]tate.” 25 U.S.C.S. § 2710 (d)(1).  If a state permits certain types of gaming that fall within the Class III definition, it is required to negotiate in good faith an agreement with any Native American tribe seeking to conduct those specific types of already permitted gaming. Id. at (d)(3).  “In other words, a state need only allow Indian tribes to operate games that others can operate, but need not give tribes what others cannot have.” Rumsey Indian Rancheria of Wintun Indians v. State of California, 64 F.3d 1250, 1258 (9^th Cir. 1994). 

         Thus, New Hampshire must negotiate in good faith with its Native American tribes an agreement by which the tribes may conduct the types of Class III gaming that is already permitted here, such as dog and horse racing.

While New Hampshire may prohibit almost everyone from engaging in some gambling activity, the state must permit Native American tribes to engage in any and all permitted by the state.

Tribal-State Gaming Compacts (IGRA, 25 USC)
March 5, 2004

by Chad Hills

 

Summary of Procedures for Negotiating Tribal-State Compacts Under IGRA

 

A tribe wanting to conduct Class III gaming must ask the state to negotiate a compact (25 USC § 2710(d)(3)(A)).

If the parties have not agreed on the compact's terms within 180 days of the tribe's request, the tribe may file suit in federal district court, claiming that the state has not negotiated in good faith (25 USC § 2710(D)(7)(a)(I)).

If the court agrees with the tribe, it must order the state and tribe to conclude a compact within 60 days (25 USC § 2710(d)(7)(B)(iii)). If they fail to do so, each must submit its last best offer to a court-appointed mediator, who must choose the one which 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 (25 USC § 2710(d)(7)(B)(vi)). If the state 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 the Indian lands over which the tribe has jurisdiction (25 USC § 2710(d)(7)(B)(vii)). The procedures are a legal substitute for a negotiated tribal-state compact.

The secretary must publish notice of approved compacts (or procedures, where applicable) in the Federal Register. The compact and procedures have the force of federal law.

IGRA Legal Account: Tribal-State Compacts (25 USC § 2710(d)(3)(A)) Tribal Gaming Ordinances

(3)(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State compact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact.

(4) Except for any assessments that may be agreed to under paragraph (3)(C)(iii) of this subsection, nothing in this section shall be interpreted as conferring upon a State or any of its political subdivisions authority to impose any tax, fee, charge, or other assessment upon an Indian tribe or upon any other person or entity authorized by an Indian tribe to engage in a class III activity.

(5) Nothing in this subsection shall impair the right of an Indian tribe to regulate class III gaming on its Indian lands concurrently with the State [unless the state-tribal compact specifies any state control]

Federal Court Actions
(7) (B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the Indian tribe requested the State to enter into negotiations under paragraph (3)(A).

(7)(B )(iii) If, in any action described in subparagraph (A)(i), the court finds that the State has failed to negotiate in good faith with the Indian tribe to conclude a Tribal-State compact governing the conduct of gaming activities, the court shall order the State and the Indian Tribe to conclude such a compact within a 60-day period. In determining in such an action whether a State has negotiated in good faith, the court—[will consider reasons why state has not entered negotiations and determine the legitimacy]

Mediation
(7)(B)(iv) If a State and an Indian tribe fail to conclude a Tribal-State compact governing the conduct of gaming activities on the Indian lands subject to the jurisdiction of such Indian tribe within the 60-day period provided in the order of a court issued under clause (iii), the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact. The mediator shall select from the two proposed compacts the one which best comports with the terms of this chapter and any other applicable Federal law and with the findings and order of the court.

[The mediator then chooses between the two proposals and submits their choice to the State and Indian Tribe. If the State consents to the mediator-selected proposal within 60 days, the proposal is treated as a Tribal-State compact.]

Procedures Prescribed by the Secretary [of the Dept. of the Interior]
(7)(B)(vii) If the State does not consent during the 60-day period described in clause (vi) to a proposed compact submitted by a mediator under clause (v), the mediator shall notify the Secretary [of the Interior] and the Secretary shall prescribe, in consultation with the Indian tribe, procedures ….which are consistent with the proposed compact selected by the mediator … under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction.

Secretarial Approval of Tribal-State Compacts
(8)(A) The Secretary is authorized to approve any Tribal-State compact entered into between an Indian tribe and a State governing gaming on Indian lands of such Indian tribe [within 45 days].

(B) The Secretary may disapprove a compact described in subparagraph (A) only if such compact violates--
(i) any provision of this chapter, (ii) any other provision of Federal law that does not relate to jurisdiction over gaming on Indian lands, or (iii) the trust obligations of the United States to Indians.

(C) If the Secretary does not approve or disapprove a compact described in subparagraph (A) before the date that is 45 days after the date on which the compact is submitted to the Secretary for approval, the compact shall be considered to have been approved by the Secretary, but only to the extent the compact is consistent with the provisions of this chapter.