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Unpublished Paper
Such Gaming Causes Trouble: Constitutional and Statutory Confusion with the Indian Gaming Regulatory Act
ExpressO (2012)
  • Jacob Berman, New York University
Abstract
This paper argues that two circuits’ interpretations of the Indian Gaming Regulatory Act violate the Tenth Amendment by forcing a Hobson’s choice on state legislators. Since California v. Cabazon Band, Indian tribes have been able to operate commercial gaming establishments with the blessing of the federal judiciary. Immediately after Cabazon, Indian tribes could only offer the same types of gambling that was legal under state law— usually, bingo, lotteries, certain card games, and race tracks. The Indian Gaming Regulatory Act of 1988, intended to codify the Cabazon test, was poorly drafted, and instead upset the applecart. The Second Circuit and Tenth Circuit have held that the IGRA requires states to choose between allowing Indian tribes to open Las Vegas-style casinos or outlawing gambling altogether. In contrast, the Eighth and Ninth Circuits have developed a completely different test, one that examines how state law treats a particular game. This paper argues that the Second and Tenth Circuits misconstrue the Indian Gaming Regulatory Act, and that this erroneous interpretation, in addition to the pre-existing construction problem, causes unnecessary Tenth Amendment issues.
Keywords
  • indian gaming regulatory act,
  • indian law,
  • tenth amendment
Disciplines
Publication Date
December 19, 2012
Citation Information
Jacob Berman. "Such Gaming Causes Trouble: Constitutional and Statutory Confusion with the Indian Gaming Regulatory Act" ExpressO (2012)
Available at: http://works.bepress.com/jacob_berman/1/