25 U.S.C. § 2719: Gaming Without a Tribal-State Compact
Examines the federal authority and procedures invoked when tribal gaming lacks a compact after a court affirms the state's good faith negotiation efforts.
The Indian Gaming Regulatory Act (IGRA) establishes the legal framework for gaming on Indian lands. This federal law creates three classes of gaming, each with different levels of oversight. A central component of this structure is the requirement for a Tribal-State compact to conduct Class III gaming, which includes casino-style games like slot machines and blackjack.
IGRA provides a federal process to manage situations where a tribe seeks to conduct gaming but a required compact with the state has not been achieved. The law provides a pathway for federal authorities to intervene, ensuring that the principles of IGRA are upheld while providing a resolution for disputes between tribes and states. This structure supports tribal economic development and self-sufficiency through gaming revenues, acknowledging the right of tribes to regulate gaming on their lands if the state permits such gaming for any purpose.
Triggers for Invoking Federal Authority
Federal authority is invoked through a specific sequence of legal events. The primary trigger occurs after a tribe has requested that a state enter into negotiations for a compact. If no compact is agreed upon after 180 days, the tribe can sue the state in federal court, alleging that the state has failed to negotiate in good faith.
IGRA requires states to negotiate with tribes sincerely and with an honest intention to reach an agreement. Courts have found that states act in bad faith when they refuse to negotiate, cause unreasonable delays, or insist on including topics in the compact that fall outside the legally permitted subjects of negotiation. Demanding that a tribe adhere to state laws unrelated to the direct regulation of the gaming activity itself has been ruled as evidence of bad faith.
If the court finds that the state has negotiated in bad faith, it will order both parties to conclude a compact within a 60-day period. Should this period pass without an agreement, the process moves to a mediator who selects the “last best offer” for a compact from proposals submitted by the tribe and the state. The conditions for the Secretary of the Interior to intervene are met only when the state rejects this mediated compact.
The Secretary of the Interior’s Notification Process
Once a federal court determines a state failed to negotiate in good faith and the state has rejected a mediator-proposed compact, a specific procedural pathway begins within the Department of the Interior. The Secretary of the Interior must step in and prescribe procedures for the operation of Class III gaming.
The initial step for the Secretary is to notify the affected tribe and state that the conditions for federal intervention have been met. Following this notification, the law provides a 180-day consultation period. During this six-month window, the tribe and the state are given a final opportunity to conclude a compact on their own terms before federal procedures are imposed.
If the 180-day period expires and no compact has been finalized, the Secretary of the Interior is then required to prescribe procedures for the tribe to conduct Class III gaming. These “Secretarial Procedures” are developed in consultation with the tribe. They must be consistent with the compact selected by the mediator, IGRA, and relevant state laws, effectively functioning as a federally imposed compact that allows the tribe to begin its gaming operations.
Enforcement Powers of the National Indian Gaming Commission
The National Indian Gaming Commission (NIGC), established by IGRA, acts as the primary federal regulator for tribal gaming. Its authority is used when a tribal gaming operation violates IGRA, including the requirement to have a valid Tribal-State compact or Secretarial Procedures for Class III gaming.
One of the NIGC’s enforcement tools is the power to levy civil monetary penalties. If the NIGC determines a tribe is conducting Class III gaming unlawfully, it can impose fines against the gaming operation. These penalties can be calculated on a per-day basis for each violation, creating a strong financial incentive for compliance.
Beyond financial penalties, the NIGC holds the authority to issue closure orders for a gaming facility. The Chairman of the NIGC can issue a temporary closure order for a severe violation. After a hearing, the full Commission can vote to make such a closure permanent, which directly halts the revenue-generating activity of the tribal enterprise.