Indian Gaming Law

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Prepared by Kennis M. Bellmard [email protected] 405-365-8900

1 INDIAN GAMING LAW CLASS OUTLINE

The objective of this class is to provide an overview of the legal requirements that must be meant for an Indian Nation to be properly authorized to conduct gaming. This class will provide an outline of the history of the development of Indian Gaming in the United States with an emphasis on the legal principles related to conducting gaming within Indian Country. This class will provide an introduction to the legal and policy battles which have resulted in Indian Gaming becoming a $35 billion dollar a year industry.

Introduction

The Legal Authority of Indian Nations

What is Indian Country

The Indian Gaming Regulatory Act (IGRA)

Gaming Classification.

Scope of Gaming issues

2 Generally –”No State Authority in Indian Country”

 Three Supreme Court cases, collectively known as the “Marshall Trilogy” in reference to their author, Chief Justice John Marshall, relying in part on international law concepts, established the legal foundation for the relationship that exists between the US federal government and Indian tribes.  Johnson v. M'Intosh 21 U.S. 543 (1823).  Cherokee Nation v. Georgia 30 U.S. 1 (1831).  Worcester v. Georgia 31 U.S. 515 (1832).

3 INDIAN COUNTRY 18 USC § 1151 - INDIAN COUNTRY DEFINED  Except as otherwise provided in sections 1154 and 1156 of this title, the term “Indian country”, as used in this chapter, means  (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,  (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and  (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

4 Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (5th Cir. 1981)

 This case is a United States Court of Appeals for the Fifth Circuit case that significantly influenced the development of modern Indian Gaming law and was a catalyst for the passage of the Indian Gaming Regulatory Act. In Seminole Tribe, the Fifth Circuit ruled that the State of Florida did not have authority to enforce the Florida Bingo Statute on the Seminole Tribe of Florida's reservation, even though Florida is a Public Law 280 state with special rights to extend criminal and limited civil jurisdiction over Indian Country. Because of the decision, the Seminole Tribe was able to build and operate the nation's first tribally-owned high- stakes bingo parlor on their reservation in Florida, even though bingo for profit was illegal under Florida law at the time. Many other tribes later followed the Seminole Tribe's lead by building their own bingo parlors on their reservations, leading many scholars to call the Seminole Tribe's victory in this case the "birth" of modern commercial gambling on reservations.

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

 Appellee Indian Tribes (the Cabazon and Morongo Bands of Mission Indians) occupied reservations in Riverside County, California. Each Band, pursuant to its federally approved ordinance, conducts on its reservation bingo games that are open to the public. The Cabazon Band also operated a card club for playing draw poker and other card games. The gambling games are open to the public, and are played predominantly by non-Indians coming onto the reservations. California sought to apply to the Tribes its State statute governing the operation of bingo games. Riverside County also sought to apply its ordinance regulating bingo, as well as its ordinance prohibiting the playing of draw poker and other card games. The Tribes instituted an action for declaratory relief in Federal District Court, which entered summary judgment for the Tribes, holding that neither the State nor the county had any authority to enforce its gambling laws within the reservations. The Court of Appeals affirmed. The US Supreme Court affirmed and remanded the Court of Appeals decision holding that the State and county the laws were preempted, because the asserted state interests were not sufficient to escape the preemptive force of the federal and tribal interests of the Tribes.

6 Indian Gaming Regulatory Act - 1988 In response to the Butterworth and the Cabazon cases Congress enacted the Indian Gaming Regulatory Act, also known as IGRA, 25 U.S.C. sec. 2701 et seq. on October 17, 1988. The IGRA “provides a comprehensive regulatory framework for gaming activities on Indian country.”

7 25 U.S. Code CHAPTER 29—INDIAN GAMING REGULATION

 2701. Findings.  2702. Declaration of policy.  2703. Definitions.  2704. National Indian Gaming Commission.  2705. Powers of Chairman.  2706. Powers of Commission.  2707. Commission staffing.  2708. Commission; access to information.  2709. Interim authority to regulate gaming.  2710. Tribal gaming ordinances.  2711. Management contracts.  2712. Review of existing ordinances and contracts.  2713. Civil penalties.  2714. Judicial review.  2715. Subpoena and deposition authority.  2716. Investigative powers.  2717. Commission funding.  2717a. Availability of class II gaming activity fees to carry out duties of Commission.  2718. Authorization of appropriations.  2719. Gaming on lands acquired after October 17, 1988.  2720. Dissemination of information.  2721. Severability. 

8 GAMING LANDS 25 U.S. Code § §2701. Findings The Congress finds that— (1) numerous Indian tribes have become engaged in or have licensed gaming activities on Indian lands as a means of generating tribal governmental revenue; (2) Federal courts have held that section 81 of this title requires Secretarial review of management contracts dealing with Indian gaming, but does not provide standards for approval of such contracts; (3) existing Federal law does not provide clear standards or regulations for the conduct of gaming on Indian lands; (4) a principal goal of Federal Indian policy is to promote tribal economic development, tribal self-sufficiency, and strong tribal government; and (5) Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity.

25 U.S. Code § 2719.Gaming on lands acquired after October 17, 1988

(a)PROHIBITION ON LANDS ACQUIRED IN TRUST BY SECRETARY Except as provided in subsection (b), gaming regulated by this chapter shall not be conducted on lands acquired by the Secretary in trust for the benefit of an Indian Tribe after October 17, 1988, unless—(1)such lands are located within or contiguous to the boundaries of the reservation of the Indian Tribe on October 17, 1988; or (2)the Indian Tribe has no reservation on October 17, 1988, and—(A)such lands are located in Oklahoma and—(i)are within the boundaries of the Indian Tribe’s former reservation, as defined by the Secretary or (ii)are contiguous to other land held in trust or restricted status by the United States for the Indian Tribe in Oklahoma; or (B)such lands are located in a State other than Oklahoma and are within the Indian tribe’s last recognized reservation within the State or States within which such Indian Tribe is presently located. (b)EXCEPTIONS(1)Subsection (a) will not apply when—(A)the Secretary, after consultation with the Indian Tribe and appropriate State and local officials, including officials of other nearby Indian tribes, determines that a gaming establishment on newly acquired lands would be in the best interest of the Indian Tribe and its members, and would not be detrimental to the surrounding community, but only if the Governor of the State in which the gaming activity is to be conducted concurs in the Secretary’s determination; or (B)lands are taken into trust as part of—(i)a settlement of a land claim, (ii)the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or (iii)the restoration of lands for an Indian tribe that is restored to Federal recognition.

9 THE “JOHNSON ACT”  The Johnson Act, as amended, generally prohibits the manufacture, possession, use, sale, or transportation of any “gambling device” in Indian Country, the District of Columbia, and possessions of the United States. 15 U.S.C. § 1175. It also requires all persons manufacturing, using, selling, transporting, or providing for the use of others to register with the US Department of Justice and make certain disclosures when gambling devices are shipped.  The Indian Gaming Regulatory Act, 25 U.S.C. sec. 2701 et seq., includes an exception to the Johnson Act prohibition against gambling devices in Indian Country. The Johnson Act is enforced by the United States Department of Justice.

10 National Indian Gaming Commission (NIGC)  The Indian Gaming Regulatory Act provides for general regulatory oversight at the federal level and created the National Indian Gaming Commission as the primary responsible federal agency.

11 .

IGRA GAMING CLASSIFICATIONS IGRA divides Native American gaming into three classifications: Class I, II, and III. The three classes differ as to the extent at which the federal, tribal, and state governments are authorized to regulate.

12 CLASS I

Class I gaming includes traditional Native American “social games played in connection with ‘tribal ceremonies or Celebrations.’”Tribes possess “exclusive jurisdiction” to regulate Class I gaming.

13 14 CLASS II  Class II: Bingo, pull-tabs and other similar games, including non-banking card games not prohibited by state law. Expressly excluded from Class II gaming are banking card games, such as blackjack, or slot machines of any kind. Tribes via their Tribal Gaming Regulatory Authority (TGRA) have the authority to regulate Class II gaming under the jurisdiction of the National Indian Gaming Commission.

15 CLASS III  Class III: All forms of gaming that are not included under Class I or Class II, such as blackjack and slot machines. Class III games are legal on tribal lands only if the games are authorized by the governing body of the tribe; the games are located in a state that permits gaming for any purpose by any person, organization or entity; and the games are conducted in conformance with a tribal-state compact entered into by the tribe and the state in which the gaming is conducted.

16 CLASS II Pursuant to 25 USCS § 2703 (7)(A) , the term, "class II gaming" means-- "(i) the game of chance commonly known as bingo (whether or not electronic, computer, or other technologic aids are used in connection therewith)--  (I) which is played for prizes, including monetary prizes, with cards bearing numbers or other designations,  (II) in which the holder of the card covers such numbers or designations when objects, similarly numbered or designated, are drawn or electronically determined, and  (III) in which the game is won by the first person covering a previously designated arrangement of numbers or designations on such cards, including (if played in the same location) pull-tabs, lotto, punch boards, tip jars, instant bingo, and other games similar to bingo, and

17 CLASS II continued  (ii) card games that— (I) are explicitly authorized by the laws of the State, or  (II) are not explicitly prohibited by the laws of the State and are played at any location in the State,  but only if such card games are played in conformity with those laws and regulations (if any) of the State regarding hours or periods of operation of such card games or limitations on wagers or pot sizes in such card games.

18 CLASS II continued  (B) The term “class II gaming” does not include— (i) any banking card games, including baccarat, chemin de fer, or blackjack (21), or  (ii) electronic or electromechanical facsimiles of any game of chance or slot machines of any kind.

19 WHAT IS BINGO? This history of Bingo is at least comprised of a nearly 500 years old written history and has included general elements during this period.  1530- “Lo Giucco del Lotto D’Italia” indicating showing Lottery Base.  1929- “Beano” introduced in America, Carnival Game in Georgia.  1930- “Bingo” by Lowe of New York and Lester Expansion of Games Played.  1970’s- “Indian Bingo”.  1980’s- “Cabazon” case.  1988- “IGRA is adopted and Passed”.

In summary, Bingo is traditionally a game that 1) requires human activity to “daub” and “claim”, 2) has as an element players competing against one another for a prize and 3) includes the game element of the possibility that a Player could “sleep” a bingo and lose an otherwise possibly winning bingo game.

20 CLASS II  25 CFR § 502.3 Class II Gaming.  Class II gaming means:  (a) Bingo or lotto (whether or not electronic, computer, or other technologic aids are used) when players:  (1) Play for prizes with cards bearing numbers or other designations;  (2) Cover numbers or designations when object, similarly numbered or designated, are drawn or electronically determined; and  (3) Win the game by being the first person to cover a designated pattern on such cards;

21 LEGAL DEVELOPMENT IN THE LAW OF CLASS II GAMING  United States v. 103 Electronic Gambling Devices, 223 F. 3d 1091 (9th Cir. 2000).  United States v. 162 MegaMania Gambling Devices, 231 F. 3d 713 (10th Cir. 2000).  Diamond Game Enterprises v. Reno, 230 F. 3d 365 (D.C. Cir. 2000).  United States v. Santee Sioux Tribe of Nebraska, 324 F. 3d 607 (8th Cir. 2003).  Seneca-Cayuga Tribe of Oklahoma v. National Indian Gaming Commission, 327 F. 3d 1019 (10th Cir. 2003).  United States of America v. Iipay Nation of Santa Ysabel, 14-cv-02855- AJB-NLS (Dec. 12, 2016).  NIGC Desert Rose Bingo - Game Classification Advisory Legal Opinion, November 15, 2015.

22 DESERT ROSE BINGO ADVISORY OPINION-November 18, 2015

Desert Rose Bingo (DRB) not Bingo based on the application of the following criteria:

1. Is DRB played for prizes with cards bearing numbers or other designations? 2. Do cardholders cover numbers or other designations as they are drawn? a. Do cardholders cover? b. Pre-drawn numbers 3. Is DRB won by the first person to cover the designated pattern? Is DRB a game similar to Bingo? “ . . . DRB does not qualify as a Class II game. It is not bingo because it does not satisfy two of the three statutory and regulatory criteria for the game. Nor is it a game similar to bingo, as it is not a variant on the game and lacks a majority of the elements that make-up bingo under IGRA and NIGC regulations. Besides, even if DRB did qualify as a game similar to bingo, it is not played in the same location as bingo and, therefore, cannot constitute a Class II game. Thus, in the legal opinion of the NIGC Office of General Counsel, DRB constitutes a Class III game.”

23 “GRANDFATHERING CLAUSE”  25 CFR Part 547.5  (b) Grandfather provisions. All Class II gaming systems manufactured on or before November 10, 2008, that have been certified pursuant to paragraph (a) of this section, are grandfathered Class II gaming systems for which the following provisions apply:  (1) Grandfathered Class II gaming systems may continue in operation for a period of ten years from November 10, 2008.  (2) Grandfathered Class II gaming systems may only be used as approved by the TGRA. The TGRA must transmit its notice of that approval, identifying the grandfathered Class II gaming system and its components, to the Commission.

24 GAMING COMPACTS-Class III 25 U.S.C. sec 2710

(d) Class III gaming activities; authorization; revocation; Tribal-State compact (1) Class III gaming activities shall be lawful on Indian lands only if such activities are— (A) authorized by an ordinance or resolution that— (i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands, (ii) meets the requirements of subsection (b), and (iii) is approved by the Chairman,

(B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and (C) conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State under paragraph (3) that is in effect.

(2)(A) If any Indian tribe proposes to engage in, or to authorize any person or entity to engage in, a class III gaming activity on Indian lands of the Indian tribe, the governing body of the Indian tribe shall adopt and submit to the Chairman an ordinance or resolution that meets the requirements of subsection (b). (B) The Chairman shall approve any ordinance or resolution described in subparagraph (A), unless the Chairman specifically determines that— (i) the ordinance or resolution was not adopted in compliance with the governing documents of the Indian tribe, or (ii) the tribal governing body was significantly and unduly influenced in the adoption of such ordinance or resolution by any person identified in section 2711(e)(1)(D) of this title.

25 GAMING COMPACTS-Class III Scope of Gaming

25 U.S.C. sec 2710 (d)

(B) located in a State that permits such gaming for any purpose by any person, organization, or entity, and

26 Pueblo of Pojoaque v. New Mexico, No. 16-2228 (10th Cir. 2017) In the Tenth Circuit’s ruling, the court affirmed a district court decision that the Department of the Interior’s so-called Part 291 regulations allowing the issuance of gaming procedures went beyond the Interior Secretary‘s authority.

25 CFR Part 291 - CLASS III GAMING PROCEDURES

27 “THE OKLAHOMA MESS”

28 Office of Indian Gaming-Overview The Office of Indian Gaming acts as the primary advisor to the Secretary and Assistant Secretary – Indian Affairs on Indian gaming and the requirements of Indian Gaming Regulatory Act (IGRA), P.L. 100-497, and other Federal law. The Office of Indian Gaming’s duties and responsibilities include the administrative review and analysis of the statutory and regulatory requirements of IGRA and related statutes, policy development, and technical assistance to tribal and state stakeholders. The Office of Indian Gaming implements the Secretary’s responsibilities under IGRA and, as such, has a significant impact on economic development resulting from Indian gaming.

Currently the Office of Indian Gaming lists 861 State-Tribal Gaming Compacts

29 QUESTIONS?

30