Domingos R. Santos Jr.
April 5, 2007
Advanced Legal Research

INDIAN GAMING LAW PATHFINDER

TABLE OF CONTENTS

INTRODUCTION 1
I. CALIFORNIA V. CABAZON BAND OF MISSION INDIANS 1
II. THE INDIAN GAMING REGULATORY ACT 1
III. FEDERAL REGULATIONS 1
  A. Federal Regulations  
  B. Internal Agency Materials  
  C. Finding Additional Administrative/Executive Resources  
IV. CASE LAW 2
  A. Selected U.S. Supreme Court Cases  
  B. Finding Additional Case Law  
V. SECONDARY SOURCES 3
  A. Pathfinders  
  B. Treatises & Books  
  C. Legal Encyclopedias  
  D. A.L.R. Annotations  
  E. Law Review & Journals  
  F. News Websites  
  G. Trade Organizations/Associations  
  H. Finding Additional Secondary Sources  
  I. Westlaw Indian Gaming Law Databases  

Introduction

This Pathfinder presents primary and secondary sources on Federal Indian gaming law, with particular emphasis on the Indian Gaming Regulatory Act 25 U.S.C. § 2701-2721 (2006) [hereinafter IGRA]. Part I discusses California v. Cabazon Band of Mission Indians, the U.S. Supreme Court decision holding that states, absent express consent by Congress, do not possess the authority to regulate gaming on Indian land. 480 U.S. 202, 221-22 (1987). Part II discusses the Indian Gaming Regulatory Act. Part III discusses Federal regulations regulating Indian gaming. Part IV provides summaries of selected Indian gaming cases decided by the United States Supreme Court, West Digest topic and key numbers and databases on Indian gaming law, and additional resources for further case law research. Part V provides a list of secondary sources on Indian gaming law, providing a summary for each source, and resources for further secondary source research.

I. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)

The genesis of modern Indian gaming law is the landmark Supreme Court decision in California v. Cabazon Band of Mission Indians. 480 U.S. 202 (1987). In Cabazon, the State of California and Riverside County sought to apply local and state law to two tribal gaming enterprises. Id. at 205. The tribes sued seeking “a declaratory judgment that the county [and the state] had no authority to apply its ordinances inside reservation and an injunction against their enforcement.” Id. at 206. The District Court and the Court of Appeals for the Ninth Circuit found for the tribes, and the U.S. Supreme Court granted certiorari to the State of California and Riverside County. Id. In a six to three decision, the U.S. Supreme Court affirmed the decision of the Ninth Circuit finding that the State and Riverside County were preempted from regulating gaming enterprises on Indian land, as such, absent express consent by Congress, the states and political subdivisions thereof do not possess the authority to regulate gaming on Indian land. Id. at 221-22. The U.S. Supreme Court reasoned that “[s]tate [and local] regulation [of Indian gaming] would impermissibly infringe on tribal government.” Id. at 222.

II. The Indian Gaming Regulatory Act

 

A. The Indian Gaming Regulatory Act, 25 U.S.C. § 2701-2721 (2000).

    1. Legislative History
      a. Legislative History of Public Law No. 100-497, 100 CIS Legis. P.L. 497 (1988).
    2. Summary
     

The Indian Gaming Regulatory Act “divides gaming into three classes, with different regulatory results for each.” William C. Canby, Jr., American Indian Law in a Nut Shell 287 (3d ed. 1998).

Class I gaming includes gaming where the prizes are of nominal value and gaming related to tribal ceremonies and celebrations. Id. at 287-88. Class I gaming is not covered by IGRA, and, as such, an Indian tribe may engage in Class I gaming without regulatory oversight by the Federal government. Id. at 288.

Class II gaming includes bingo. Id. The term bingo is broader than the general meaning. See id. For instance, manufactures have made slot machines that comply with the definition of bingo in IGRA. Class II gaming is subject to regulation by the National Indian Gaming Commission. Id. at 289.

Class III gaming consists of the gaming activities typically found in a modern casino. Id. at 290. Class III gaming may only be conducted after the tribe has entered into a Tribal-State compact with the state. Id.

IGRA limits where an Indian tribe may conduct gaming of any kind. IGRA Id. at 292. IGRA prohibits gaming on land taken into trust by the Department of the Interior after 1988. Id. IGRA contains a series of exceptions to this rule. Id.

III. Federal Regulations

 

A. Federal Regulations

    1. 25 C.F.R. parts 500-580.
    2. Searching Federal Regulations on Westlaw
      Westlaw contains two databases with regulations relating to Native Americans: the Federal Native American Law – Code of Federal Regulations (FNAM-CFR), and the Federal Native American Law – Federal Register (FNAM-FR).
 

B. Internal Agency Materials

    1.National Indian Gaming Commission Bulletins
     
The National Indian Gaming Commission (“NIGC”) publishes bulletins that offer tribes guidance on the NIGC’s interpretation of Indian gaming laws. The first bulletin was published June 10, 1993, and, to date, the NIGC has published 46 bulletins on topics ranging from model gaming ordinances to charitable gaming. The NIGC bulletin website lists each bulletin by date, publication number, title, and topic.
    2. For the most comprehensive collection of agency materials relating to Indian gaming law, see INDIAN GAMING HANDBOOK (Jerome L. Levine ed. 2005). The INDIAN GAMING HANDBOOK is discussed in Part V.B.1.e.
 

C. Finding Additional Administrative/Executive Resources

    Westlaw contains a database executive documents relating to Native Americans. The database identifier is FNAM-EXEC. The database includes executive orders, presidential memoranda, and solicitor general opinions.

IV. Case Law

 

A. Selected U.S. Supreme Court Case Law

    1. Chickasaw Nation v. United States, 534 U.S. 84 (2001).
      In Chickasaw Nation, the U.S. Supreme Court held that IGRA does not exempt Indian Tribes from paying gambling-related excise and occupations taxes.
    2. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).
      In Seminole Tribe, the U.S. Supreme Court held that Congress lacks the power under the Indian Commerce Clause to abrogate state immunity from suit in federal court embodied in the Eleventh Amendment to the U.S. Constitution.
    3. California v. Cabazon Band of Mission Indians. 480 U.S. 202 (1987).
      In Cabazon, the U.S. Supreme Court held that absent consent from Congress, the states did not possess the authority to regulate Indian gaming.
 

B. Finding Additional Case Law

    To find additional case law, readers should consult the following West Digest topic and key numbers, Westlaw databases, and additional print resources:
    1. Selected West Digest Topic and Key Numbers
      The pertinent West Digest Topic “Indians.” The topic number for Indians is 209. The following key numbers are a sample of the many useful key numbers for Indian gaming law research:
      a. Key Number 24: Contracts
Search this key number for cases interpreting the management contract and contract provisions of IGRA.
      b. Key Number 27(1): Right of Action
Search this key number for cases analyzing whether IGRA abrogate a tribe’s sovereign immunity.
      c. Key Number 27(2): Jurisdiction
Search this key number for cases analyzing whether IGRA grant Federal courts jurisdiction to decide claims brought by and against tribes.
    2. Westlaw Databases
      a. Federal Native American Law – Supreme Court Cases (FNAM-SCT)
b. Federal Native American Law – Court of Appeals Cases (FNAM-CTA)
c. Federal Native American Law – District Court Cases (FNAM-DCT)
d. Federal Native American Law – Cases (FNAM-CS)
    3. Additional Print Resources
      a. Indian Law Reporter
This monthly loose leaf service reports Indian law cases in full-text format. The service has a topical index.
Available in the New England Law Library at Stack 246
      b. Native American Law Digest
This monthly newsletter provides summaries of federal, state, and tribal court decisions, a legislative update, and news stories.

V. Secondary Sources

 

A. Pathfinders

    1. Indian Gaming Law
      a. THOMAS R. MIRKOVICH & ALLISON A COWGILL, CASINO GAMING IN THE UNITED STATES: A RESEARCH GUIDE (1997).
      b. Indian Gaming Law Pathfinder (last visited Apr. 5, 2007)
    2. General Indian Law
      a. Native American Law (last visited Apr. 2, 2007)
      b. Indian Law Research (last visited Apr. 5, 2007)
      c. American Indian Law (last visited Apr. 5, 2007)
      d. American Indian Law (last visited Apr. 5, 2007)
      e. Indian Law
 

B. Treatises & Books

    1. Leading Treatises/Books
      a. COHEN’S HANDBOOK ON FEDERAL INDIAN LAW (Neil Jesup Newton, ed. 2005).
Cohen’s Handbook on Federal Indian Law is the authoritative treatise on Federal Indian law. The 2005 edition of Felix S. Cohen’s classic work includes a chapter (Chapter 12) on Indian gaming. This source holds the authoritative weight in the legal community to be cited to a court or administrative agency as persuasive secondary authority.
      b. WILLIAM C. CANBY, AMERICAN INDIAN LAW IN A NUTSHELL (4th ed. 2004).
American Indian Law in a Nutshell provides an overview of American Indian Law in an easy to understand language. Chapter 10 of the treatise is on Indian gaming, providing a summary of the Cabazon decision and IGRA.
      c. AMERICAN INDIAN LAW DESKBOOK (Clay Smith ed., 3d ed. 2004).
The American Indian Law Deskbook is written by the Conference of Western Attorneys General. Chapter twelve focuses on Indian gaming law. The authors discuss pre-Indian Gaming Regulatory Act regulation of Indian gaming, the Indian Gaming Regulatory Act (with an in-depth treatment of Class III Gaming), and Federal civil and criminal enforcement authority.
      d. KATHRYN R. L. RAND & STEVEN ANDREW LIGHT, INDIAN GAMING LAW AND POLICY (2006).
Indian Gaming Law and Policy provides a comprehensive treatment of the law of Indian gaming with an excellent discussion of the political landscape upon which Indian law occurs. Tribal interaction with state and local governments is also discussed. The Appendix offers a research guide on Indian gaming law listing journals, trade publications, books, association and organization, government resources, and reports.
      e. INDIAN GAMING HANDBOOK (Jerome L. Levine ed. 2005).
Jerome Levine, a highly respected Indian law attorney and partner with the firm of Holland & Knight, presents a collection of primary sources on Indian gaming law in the Indian Gaming Handbook. Legislative and administrative documents are collected and arranged by category. Document categories include NIGC Class II and Class III Game Classification Advisory Opinions, NIGC Regulations and Bulletins, and Department of the Interior Regulations and Materials on Tribal Revenue Allocation Plans.
      f. AMERICAN INDIAN LAW DESKBOOK (Clay Smith ed., 3d ed. 2004).
The American Indian Law Deskbook is written by the Conference of Western Attorneys General. Chapter twelve focuses on Indian gaming law. The authors discuss pre-Indian Gaming Regulatory Act regulation of Indian gaming, the Indian Gaming Regulatory Act (with an in-depth treatment of Class III Gaming), and Federal civil and criminal enforcement authority.
    2. Additional Treatises/Books
      a. WILLIAM R. EADINGTON, INDIAN GAMING AND THE LAW (2004).
      b. SCOTT TAYLOR, INDIAN GAMING LAW SOURCEBOOK (2000).
 

C. Legal Encyclopedias

    1. American Jurisprudence 2d
      American Jurisprudence 2d offers volumes on Gambling (Volume 38) and Indians; Native Americans (Volume 41). These volumes do not provide detailed information on Indian gaming law. Referring to the treatises and books listed in Part V.B. will aid the reader in finding primary material relevant to an issue.
    2. Corpus Juris Secundum
      Corpus Juris Secundum offers a volume on Indians. Like the American Jurisprudence 2d resources, this volume does not provide detailed information on Indian gaming law. Referring to the treatises and books listed in Part V.B. will aid the reader in finding primary material relevant to an issue.
 

D. A.L.R. Annotations

    1. Deborah F. Buckman, Interplay Between Indian Gaming Regulatory Act and Johnson Act, 2 A.L.R. Fed. 2d 241 (2005).
      This A.L.R. article “collect[s] and discuss[es] all of the cases that have considered the interplay between the Indian Gaming Regulatory Act and Johnson Act[, which prohibits, inter alia, the use of gambling machines on Indian land.]” IGRA expressly exempted Class III Gaming from the Johnson Act, but it did not do so for Class II Gaming. Case law has interpreted IGRA to impliedly exempt Class II Gaming on Indian land from Johnson Act liability.
    2. Deborah F. Buckman, Validity of Indian Gaming Regulatory Act, 200 A.L.R. Fed. 367 (2005).
      This A.L.R. article “collect[s] and discuss[es] all of the federal cases that have considered the validity of the Indian Gaming Regulatory Act, excluding discussion of the relationship between IGRA and the tribal exhaustion doctrine.” Cases holding that IGRA is invalid reason that IGRA violates the Eleventh Amendment to the U.S. Constitution. Cases holding that IGRA is valid reasons that IGRA does not violate the equal protection guarantees in the U.S. Constitution, or the Tenth Amendment to the U.S. Constitution.
    3. Finding Additional A.L.R. Annotations
      A.L.R. contains over fifty (50) annotations on Indian gaming law. Readers should refer to the index of A.L.R. and A.L.R. Fed., and subsequent editions, for additional articles under the index term “Indian.” Readers with access to Westlaw should search the ALR database (Database Identifier: ALR) using the following search terms: ((Indian “Native American” /p gam!), “Indian Gaming Regulatory Act”, or I.G.R.A. To broaden a search, users should employ the natural language search method.
 

E. Law Reviews & Journals

    1. Selected Indian Gaming Law Symposium Editions
      Law reviews and law journals at many law schools have hosted symposia on the issue of Indian gaming. The following is a list of selected symposia with a brief description of the issues addressed at each symposium:
      a. 80 N.D. L. REV. 681 (2004).
The North Dakota Law Review hosted an untitled symposium on Indian law issues with an excellent article on Indian gaming and revenue-sharing agreements. Steven Andrew Light, et al., Spreading the Wealth: Indian Gaming and Revenue-Sharing Agreements, 80 N.D. L. REV. 657 (2004). The article discusses revenue-sharing agreements between a host state and an Indian tribe. Id. at 658-59. The article discusses IGRA provisions relating to revenue-sharing, the revenue-sharing agreement climate after Seminole Tribe v. Florida, 517 U.S. 44 (1996) (striking down the Indian tribe’s cause of action against a state for failure to negotiate a tribal-state compact in good faith under IGRA’s Class III gaming provisions), and the economic impacts of revenue-sharing agreements. Steven Andrew Light, et al., Spreading the Wealth: Indian Gaming and Revenue-Sharing Agreements, 80 N.D. L. REV. 657, 659 (2004).
      b. Symposium, Cross-Border Issues in Gaming, 4 NEV. L.J. 197 (2004).
The Nevada Law Journal hosted a symposium titled, Cross-Border Issues in Gaming, on the issue of gaming law, with an emphasis, in part, on Indian gaming law issues. Indian gaming articles address frameworks for developing Indian gaming law and policy, off-reservation Indian gaming, and the interrelationship of federal law, state policy, and Indian gaming. See Steven Andrew Light & Kathryn R.L. Rand, Reconciling the Paradox of Tribal Sovereignty: Three Frameworks for Developing Indian Gaming Law and Policy, 4 NEV. L.J. 262 (2004); Kevin K. Washburn, Federal Law, State Policy, and Indian Gaming, 4 NEV. L.J. 285 (2004); Heidi McNeil Staudenmaier, Off-Reservation Native American Gaming: An Examination of the Legal and Political Hurdles, 4 NEV. L.J. 301 (2004).
      c. Symposium, Gaming Law, 5 CHAP. L. REV. 1 (2002).
The Chapman Law Review hosted a symposium titled, Gaming Law, on the issue of gaming law, with an emphasis, in part, on Indian gaming law issues. Indian gaming articles address the connections between tribal sovereignty and Indian gaming and tribal regulation of Internet gaming. See Kathryn R.L. Rand, There Are No Pequots on the Plains: Assessing the Success of Indian Gaming, 5 CHAP. L. REV. 47 (2002); Frank Catania, Internet Gaming Regulation: The Kahnawake Experience, 5 CHAP. L. REV. 209 (2002).
      d. Symposium, Indian Gaming, 5 GAMING L. REV. 297 (2001).
The Gaming Law Review hosted a symposium titled, “Indian Gaming,” on the issue of Indian gaming law. Issues examined in the symposium include the regulation of Indian gaming, the impact of Indian gaming on American politics, federal and state income taxation of Indian gaming revenues, and case studies of Indian gaming in California, New York, North Dakota, and Wisconsin. The symposium features an excellent article on the viability of the good faith negotiation provision of IGRA after the U.S. Supreme Court decision in Seminole Tribe v. Florida, 517 U.S. 44 (1996).
      e. Symposium, Indian Gaming, 29 ARIZ. ST. L.J. 1 (1997).
The Arizona State Law Journal hosted a symposium titled, “Indian Gaming,” on the issue of Indian gaming law. Issues examined in the symposium include an examination of the Seminole Tribe decision (see above) and economic development issues in Indian gaming law. Practitioners seeking an introduction to taxation and Indian gaming should consult an article by Scott A. Taylor appearing in the symposium titled, “An Introduction and Overview of Taxation and Indian Gaming.”
    2. Law Reviews and Journals Focused on Indian Gaming Law
      Many journals and law reviews focus solely on Indian law issues. The following is a list of those publications with a reference to the publications website and the Westlaw database identifier:
      a. American Indian Law Review

Westlaw DB Identifier: AMINDLR
      b. Tribal Law Journal
Westlaw DB Identifier: N/A
Full-text articles available on-line at http://tlj.unm.edu.
    3. Finding Additional Law Reviews and Journals
      Westlaw offers a database that contains “law reviews, texts, CLE course materials, bar journals, and legal practice-orientated periodicals” that relate to Indian law. The Westlaw database identifier is NAM-TP.
 

F. News Websites

    1. Indianz.com: Indian Gaming
      Indianz.com, a news aggregator with links to primary authority and court documents, contains a special section on Indian gaming. The site features a keyword search and collections of current events by topic, such as, Business Deals, Legislation, and Litigation. Indianz.com also features Casino Stalker, a mapping tool that “[t]rack[s] casino proposals, gaming land acquisitions and gaming projects across Indian Country.”
    2. PECHANGA.net
      PECHANGA.net is also a news aggregator with a simple keyword search for the Indian gaming industry. Rather than reproducing news stories like in Indianz.com, PECHANGA.net links the user directly to the news story. News stories are indexed by topic. Topics include Indian Gaming: News, Indian Gaming: Law and Politics, Indian Gaming: Sovereignty & Federal Recognition, and Indian Gaming: Press Releases. While highly regarded by the gaming industry and academics, PECHANGA.net is not a useful resource for research. Indianz.com is a superior resource and should be consulted first.
 

G. Trade Organizations/Associations

    1. National Organizations/Associations
      a. National Indian Gaming Association

The National Indian Gaming Association (“NIGA”) is an organization of 184 Indian Nations engaged in the business of tribal gaming enterprises. The NIGA web site features an online library catalog and NIGA publications.
    2. Regional Organizations/Associations
      a. Great Plains Indian Gaming Association
      b. United South & Eastern Tribes, Inc.
      c. Arizona Indian Gaming Association
      d. California Nations Indian Gaming Association
      e. Minnesota Indian Gaming Association
      f. Oklahoma Indian Gaming Association
      g. Washington Indian Gaming Association
 

H. Finding Additional Secondary Sources

      To find additional secondary sources, readers should consult the following Library of Congress subject headings (Note: readers using the Portia catalog should select “Search Library of Congress Subjects” from the pull down menu at the Portia home page):
      a. Gambling on Indian Reservations United States
b. Gambling on Indian Reservations Law And Legislation United States
c. Gambling on Indian Reservations Economic Aspect United States
d. Gambling on Indian Reservations Government Policy United States
e. Gambling on Indian Reservations Law And Legislation United States Congresses
f. Gambling on Indian Reservations Social Aspects United States
g. Indians of North America – Gambling
 

I. Westlaw Law Indian Gaming Law Databases

Westlaw offers the following databases containing primary and secondary resources relating to Indian gaming law:

Database Name Identifier
Primary Materials
Federal Native American Law – Supreme Court Cases FNAM-SCT
Federal Native American Law – Court of Appeals Cases FNAM-CTA
Federal Native American Law – District Court Cases FNAM-DCT
Federal Native American Law – Cases FNAM-CS
Secondary Materials
Indian Country Today INDCTRYTYSD
American Indian Law Review AMINDLR
Native Americans Law – Law Reviews, Texts & Bar Journals NAM-TP
Nat’l Assoc. of Atty. General Gaming Development Bulletin NAAGGDB