This Article proposes to codify the revenue sharing agreements already implemented, assuming the tribe consents; mandate all future casino-style gaming compacts include revenue sharing; and codify the Secretarial procedures designed to reestablish the enforcement mechanism. This proposal would cement the on-the-ground reality of Indian gaming that tribes and states have relied upon since 1996. Reform of the law of Indian gaming should focus on the underlying structure of the law of Indian gaming rather than the symptoms.
Congress enacted the Indian Gaming Regulatory Act in 1988 as a compromise between Indian tribes and states. Congress required tribes to compact with state governments if they choose to begin casino-style gaming and extended federal court jurisdiction to claims against states that refused to negotiate in good faith. The Supreme Court’s Florida v. Seminole Tribe of Florida decision in 1996 disrupted the balance by eliminating the enforcement mechanism against states. State governments acquired the upper hand in gaming compact negotiations. The Secretary of Interior proposed regulations that would reestablish the enforcement mechanism against states, but the regulations have been ineffective due to their questionable validity.
From 1996 to the present, Indian tribes and state governments continued to negotiate gaming compacts, but often at terms dictated by state governments, such as revenue sharing agreements. These compacts tend to violate the spirit and perhaps the letter of the Act. Meanwhile, Indian tribes began to pursue off-reservation gaming opportunities and other options in order to expand gaming revenues, in part, as a result. Tribes and states appear willing to live with the new law and politics of gaming, but the Act leaves the future of these creative solutions uncertain.