TRIBAL GAMING IN FLORIDA
around the idea that tribes are “domestic dependent nations” to whom the federal government owes a duty of protection. 16 These cases, known as the Marshall Trilogy , 17 established a trust relationship between tribes and the federal government, and guaranteed the tribes protection from interference by state governments as an extension of inherent tribal sovereignty. 18 In the wake of a 1987 Supreme Court ruling 19 , states and tribes were locked in a proverbial tug-of-war over who would get the power to regulate gaming activity on tribal lands. 20 Tribes saw the development of gaming as a way to preserve tribal sovereignty and protect gambling as a promising mode of economic development for tribal governments. 21 The tribes lobbied Congress to prevent state regulation of gaming on tribal lands. 22 Tribes preferred federal regulation to the imposition of state laws on their lands. 23 States wanted to both prevent organized crime and unfair competition with commercial and charitable gaming. 24 Congress managed to balance these competing interests by separating gaming into multiple classes under IGRA. 25 For Class III “casino-style” gambling, Congress created a middle ground for the competing governments in the form of tribal- state compacts. 26 Under these compacts, the two governments negotiate and create a regulatory structure for casino-style gaming on the tribe’s land. 27 Tribes could pursue Class III gaming activities by bringing the state government to the negotiating table, and states in turn could have a say in the
regulation of gaming on tribal lands within their borders. 28 Class III gaming compacts apply to all gaming activities not covered by Classes I and II, including sports wagering. 29 The Class III negotiation process also involves the federal government. 30 Under IGRA, the Department of the Interior reviews all tribal-state compacts and must give approval before a compact can go into effect. 31 As written into the statute, there are three reasons for a compact to be disapproved by the Interior Secretary. 32 A compact cannot be approved if it violates the federal trust relationship with tribes, violates any provisions of IGRA, or, if it violates other federal law. 33 The Department of the Interior has 45 days to approve or deny a compact, after which time the compact is deemed approved, “to the extent the compact is consistent with the provisions of [IGRA].” 34 Anticipating this potential veto, parties must be mindful when drafting compact provisions to either avoid invalidation by the federal government, or create contingencies for more questionable aspects. Congress carefully wrote IGRA’s policy goals into the statute. 35 In addition to establishing federal authority over tribal gaming, Congress also acknowledged the federal government’s persisting duties and the future possibilities implicated by tribal gaming enterprises. 36 Congress codified its belief that gaming could serve as means for promoting strong tribal governments, economic development, and self-sufficiency. 37 To protect these goals, Congress sought to ensure that tribal gaming was free from organized crime and that tribes were
16 Id . at 19. 17 Id .; Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). 18 U.S. Comm’n on Civil Rights, A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country 2 (2003). 19 California v. Cabazon Band of Mission Indians, 480 U.S. 202, 212 (1987). 20 RAND & LIGHT, supra note 15 at 42.
21 Id . 22 Id . 23 Id . 24 Id . 25 Id . at 45 26 Id . at 45-46
27 Id . 28 Id . 29 25 CFR 502.4(c) (“Class III Gaming means. . . [a]ny sports betting. ”) 30 John Tahsuda, Doubling Down on Indian Gaming: Examining New Issues and Opportunities for Success in the Next 30 Years , https://www. doi.gov/ocl/indian-gaming-1. 31 Id . 32 RAND & LIGHT, supra note 15 at 48. 33 Id .
34 25 U.S.C. § 2710(d)(8)(C). 35 25 U.S.C. §§ 2702(1)-(3). 36 Id . 37 § 2702(1).
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IMGL MAGAZINE | APRIL 2023
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