The following text is excerpted from Restatement of the Law, The Law of American Indians, Tentative Draft No. 4, Chapter. 4. Tribal Economic Development
Included below is the Introductory Note of Subchapter 3 – Indian Gaming. This text has not been considered by the membership of The American Law Institute and therefore does not represent the position of the Institute on any of the issues with which it deals. This supplement may be revised or supplemented prior to consideration by the membership in May 2021. If you are interested in obtaining a copy of this or any other Section of this project, please contact us.
Subchapter 3 – Indian Gaming
Introductory Note: As governments, Indian tribes have inherent sovereign authority to generate revenue through economic enterprises on their lands to support governmental services for their members. See § 52(b) and Comment c. Gaming enterprises have become the most important means for tribes to do so. Recognizing that tribes lack sufficient tax bases to generate adequate governmental revenues, Congress and the Executive have long supported Indian gaming for that purpose. Indeed, the federal commitment to Indian gaming as a means of generating governmental revenue was a key factor in the Supreme Court’s landmark decision in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). Cabazon laid the ground for Congress’s enactment of the Indian Gaming Regulatory Act (“IGRA”) to comprehensively regulate (and preempt) the field of Indian gaming to ensure that it furthers tribal self-government.
The principal legal attributes of Indian gaming under IGRA are as follows: Congress’s codification of Cabazon, confirming that Indian tribes have exclusive regulatory authority over gaming activity on their lands if conducted within a state that does not, as a matter of criminal law and public policy, prohibit such gaming; the requirement that Class III (casino-style) gaming proceed by the terms of compacts entered into by tribes and states; the requirement that net revenues from gaming support tribal governmental services and that Indian tribes hold the “sole proprietary interest” in their gaming enterprises; the creation of the National Indian Gaming Commission (“NIGC”) to administer IGRA and regulate the field; the requirement that any “management contract” through which a third party manages Class III gaming on Indian lands be approved by the NIGC; and limitations upon gaming by tribes restored to federal recognition, gaining federal recognition, or securing tribal lands for the first time after the enactment of the IGRA. This Subchapter sets forth the law of Indian gaming under IGRA in accord with federal-court decisions that interpret IGRA’s various provisions.
In the video below, project Reporters Matthew L.M. Fletcher and Kaighn Smith Jr. provide a summary guide of Tentative Draft No. 4.