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Indian Gambling and the Constitution

The sovereignty of the state must be protected.

Federal law treats the American Indian tribes as sovereign peoples, with unique federal laws protecting them.  As a result Indians must also have state government relationships.

In an effort to generate more tribal income, many Indian tribes turned to gambling operations as a source.  However, before the 1980s, federal laws did not permit gambling.  Then, laws were passed which would permit Indian gambling operations under certain circumstances.

Prior to this time, gambling anywhere by anyone was limited by state law. We all knew about Las Vegas and then Atlantic City.  Now, Indian tribes have numerous gambling operations in approximately 27 states.  Generally, Indians have the same levels of gambling permitted in the host state by its general law.  However, if it does not include high stakes casino gambling, Indians pursue ways to sponsor gambling at this higher level, and that is when the problems begin.  Many communities oppose gambling expansion.  Citizens see gambling as a vice preying on people who cannot afford the losses, with a high incidence of addiction, increased crime and domestic problems.

The Indian Gaming Regulatory Act (“IGRA”) regulates Indian gaming.  It permits:  Class I gaming, which are social games played for minimal value with no government oversight; Class II gaming, which is bingo gambling subject to oversight by the National Indian Gaming Commission; and Class III gaming, which includes all types of high stakes casino gambling, including slot machines, lotteries, etc. which are subject to significant regulation through a federal/state process.   

Class III gaming by Indians can be permitted in two ways.  First is by a tribal-state compact (a written agreement) between the Indian tribe and the state.  The extent of gambling would be negotiated by the tribe and the state.  Indian tribes always seek the highest level of gambling.  States are not required to give it.

If no agreement could be reached, then IGRA allowed the tribe to file suit against the state in federal court to determine whether the state negotiated in good faith.  In 1996, the U.S. Supreme Court ruled in Seminole Tribe of Florida v. Florida that this second method violated the state’s sovereign immunity, i.e., states cannot be sued without giving their permission.  This permission is not something you can ask for; it is usually given by a state in a statute to serve some public good.

In order to get around this problem, the Secretary of the Interior developed procedures which the Kickapoo Traditional Tribe of Texas attempted.  Since the tribe could not sue the State of Texas in federal court as a result of the Seminole case, it went to the Secretary of the Interior requesting he permit Class III gaming because the State of Texas did not act in good faith.  This put the Secretary in the position of deciding what gambling is permitted and Texas objected.  A three judge panel of the Fifth Circuit Court of Appeals recently held in Texas v. United States Department of Interior and Kickapoo Traditional Tribe of Texas that violated the terms of IGRA.  Congress did not mean to give that much authority to the Secretary and he certainly could not infringe on the sovereignty of the state. 

One judge on the panel argued that Congress meant for the secretary to develop these procedures, that is, fill in the gap, if a part of the statute was struck down.  But, Chief Judge Edith H. Jones reiterated that the courts are not in the business of amending legislation and only Congress could correct its mistake. 

Whether Congress chooses to correct this mistake remains to be seen.  Congress should act to clear up a costly and dangerous situation.  There is a likelihood of conflicting court decisions and expensive litigation. 

Indian tribes do not like this situation.  In fact, the Poarch Band of Creek Indians in Alabama had requested the State of Alabama enter into a compact with them to permit high stakes casino gambling.  The Poarch are in the process of building a multi story hotel with connected casino.  Presently, only Class II gaming is permitted.  It is unlikely the State of Alabama will enter into a compact, since Alabama permits only Class II gaming under its general law and has a strong public policy against gambling.

The real issue here is not merely economic and is not protection of Indians by federal authority.  The issue is prohibiting expansion of a destructive vice.  Congress should not force states into negotiating required casino gambling.  It should be a state decision, pure and simple.

The sovereignty of the state must be protected in determining what goes on within its boarders.  Gambling expansion, whether by Indians or others, is not in the interest of states and states should have the final word on regulating or prohibiting gambling.  The Kickapoo decision is a step in the right direction — a federal court limiting its authority and recognizing the separation of powers, while at the same time protecting states’ sovereignty in dealing with moral issues important to their citizens.

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Written By

Mr. Johnston practices law in Birmingham, Alabama. He is president of the Southeast Law Institute, a conservative law and civil liberties nonprofit organization. He concentrates his time on constitutional and social issues, and provides legal assistance to many family organizations.

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