Development of Indian Gaming Law

Indian gaming is a large, growing segment of the gaming industry in the United States. Today, 157 Indian tribes or nations operate gaming facilities in 24 states. In New York State, the Oneida Indian Nation, the St. Regis Mohawk Tribe and the Seneca Nation of Indians operate full-scale casinos. Indian gaming is the product of an interplay between traditional Indian sovereignty, federal law supremacy and a long, rich history of judicial battles.

Seminole Tribe of Florida v. Buttersworth

In Seminole Tribe of Florida v. Buttersworth, the Fifth Circuit Court of Appeals granted injunctive relief preventing a county sheriff from interfering with high stakes bingo games conducted by an Indian tribe, despite the fact that the tribal games’ prizes greatly exceeded amounts allowed under state law, and Florida had criminal and civil jurisdiction over Indian lands within its borders pursuant to Public Law 280. There has been a great deal of litigation defining the scope of jurisdiction granted states by Public Law 280. In Bryan v. Itasca,, 426 U.S. 373 (1976), the United States Supreme Court held that Public Law 280 did not grant states general civil regulatory authority over Indian territory, but was limited to granting state courts the power to adjudicate civil disputes involving Indians. The court held that there was an "absence of anything remotely resembling an intention [on the part of Congress] to confer general state civil regulatory control over Indian reservations." Id., at 384. In the first decision regarding the application of state gambling laws to activities of an Indian tribe, the Court created a test as to when a Public Law 280 State would be allowed to interfere on reservation lands with respect to gambling. If a law is criminal-prohibitory in nature, then it is enforceable on Indian lands. If the law is civil-regulatory in nature, then the State cannot enforce such law on Indian lands.

After Buttersworth, high-stakes bingo operations and other gaming enterprises began to open on Indian lands in the United States. The rapid growth of unregulated Indian gambling enterprises became a concern to federal and state law enforcement officials who feared that Indian gambling would become the target of infiltration by organized crime or other criminal elements. Generally, the federal government was not involved directly in Indian gambling matters until a Seventh Circuit Court of Appeals decision held bingo management contracts not approved by the Secretary of the Interior were null and void pursuant to 25 U.S.C. 81. In 1984, Congress began holding oversight hearings on Indian gambling because of federal and state concerns over the perceived lack of regulation and the potential for infiltration by criminal elements.

California v. Cabazon Band of Mission Indians

The United States Supreme Court clarified the criminal-prohibitory/civil-regulatory distinction in California v. Cabazon Band of Mission Indians in 1987. The tribe operated high stakes bingo games and a card club on reservation lands near Palm Springs. California law, which permitted bingo and card games when operated by designated charitable organizations, placed significant limitations on both the prizes allowed and use of funds derived from the card games. Thus, some forms of gaming were permitted, subject to restrictions.

California claimed it had authority, under Public Law 280, to enforce the State’s bingo laws on Indian lands. The State argued that enforcement of the bingo law on Indian land was within State authority because violators of the bingo law were subject to criminal penalties. Additionally, California argued that it did not regulate bingo, but prohibited high stakes games, thus it had the legal authority to prohibit activities on Indian lands located within the State that are prohibited elsewhere in the State.

The Court enunciated a two-pronged test to determine whether a state law is criminal-prohibitory or civil-regulatory. A state law is prohibitory if, one, the gaming activities are contrary to state public policy and, two, state interest in regulating gaming outweighs the tribal benefits received through gaming. Specific to the case, the Court held that California’s level of gambling activities, which included a State lottery and pari-mutuel wagering on horse racing, was clearly sufficient to rule out the possibility of the Indian games being contrary to public policy. When balancing the State interest in regulating gaming in relation to tribal benefit, the Court held that California did not present sufficient evidence to demonstrate that the difference in pots and wagers between statutorily restricted games and high stakes Indian games would result in the entrance of organized crime into Indian gambling operations, especially in comparison to the economic benefits the tribe could gain. Using a balancing test between federal, state and tribal interests, the Court found that tribes in states that otherwise allow gaming, have a right to conduct gaming on Indian lands unhindered by State regulation.

Prior to the Supreme Court's decision in Cabazon, Congress began work to remedy what was then an uncertain situation. After Cabazon, there existed an urgency for the passage of a regulatory structure as there were no controls for gambling on reservation lands. The resulting legislation became the Indian Gaming Regulatory Act, or IGRA as it is more commonly known.

Indian Gaming Regulatory Act of 1988

The Indian Gaming Regulatory Act (IGRA) contains a regulatory scheme designed to provide different levels of jurisdiction depending upon the type of gambling that is occurring on Indian lands. In developing the legislation, Congress defined the issue as "how best to preserve the right of tribes to self-government while, at the same time, to protect both the tribes and the gaming public from unscrupulous persons." These concerns were expressed by law enforcement officials, who indicated a need for federal and/or state regulation of gaming, in addition to, or instead of, tribal regulation.

The authors of the legislation took the view that, "it is the responsibility of the Congress, consistent with its plenary power over Indian affairs, to balance competing policy interests and to adjust, where appropriate, the jurisdictional framework for regulation of gaming on Indian lands. [The legislation] recognizes primary tribal jurisdiction over bingo and card parlor operations although oversight and certain other powers are vested in a federally established National Indian Gaming Commission. For Class III casino, pari-mutuel and slot machine gaming, the bill authorizes tribal governments and State governments to enter into tribal-State compacts to address regulatory and jurisdictional issues." The jurisdictional framework for the regulation was the subject of a great deal of discussion. IGRA "provides that in the exercise of its sovereign rights, unless a tribe affirmatively elects to have State laws and State jurisdiction extend to tribal lands, the Congress will not unilaterally [sic] impose or allow State jurisdiction on Indian lands for the regulation of Indian gaming activities."

IGRA divides gambling into three types and establishes a regulatory scheme for each. Class I gaming is described as "social games played solely for prizes of minimal value or traditional forms of Indian gaming engaged in as part of, or in connection with, tribal ceremonies or celebrations." Class I gaming is under the exclusive jurisdiction of Indian tribes and is not subject to the provisions of IGRA.

Class II gaming is defined as "the game of chance commonly known as bingo ... including (if played at the same location) pull-tabs, lotto, punch boards, tip jars, instant bingo and other games similar to bingo." Bingo games may also be conducted with "electronic, computer or other technologic aids, but IGRA specifically excludes "electronic or electromechanical facsimiles of any game of chance or slot machine of any kind" from Class II gaming. Non-banking card games are permissible under Class II gaming unless they are specifically prohibited by state law. Class II gaming is under tribal jurisdiction, subject to the provisions of IGRA and oversight of the National Indian Gaming Commission. States are not permitted to regulate any Class II gaming activity.

Class III gaming is defined as all other types of gambling, including banked card games (e.g., roulette, craps and blackjack), slot machines, pari-mutuel wagering and jai alai. Electronic games of chance such as video poker, are considered Class III. Under IGRA, Class III gaming may only be conducted pursuant to the terms of a compact between a tribe and the state in which its lands are located.

IGRA contains tight time parameters for the negotiation of an Indian gaming compact. Upon receiving a request to negotiate a gaming compact from a federally recognized Indian tribe, a state is required to commence good faith negotiations. If a state fails to enter negotiations or fails to negotiate in good-faith, IGRA authorizes the Indian tribe to file suit against the state in federal district court. If such a suit is filed, the district court is authorized to appoint a mediator who would, after a time period for the submission of gaming compacts by the State and Tribe, select one or the other and "impose" that compact on the parties. Congress provided the tribes with federal court jurisdiction to enforce the "good faith" provision and made the Secretary of the Interior the ultimate arbiter and regulator if an agreement could not be reached on a compact. This provision, granting federal courts jurisdiction over states, was later found to be in violation of the Eleventh Amendment to the U.S. Constitution.

In September 1991, the Seminole Tribe of Florida sued the State of Florida and its Governor in United States District Court, alleging refusal to enter into negotiations for a tribal/state compact. Florida moved to dismiss the suit on the ground that a suit in Federal court against the sovereign State of Florida was barred by the 11th Amendment to the United States Constitution which states in part: "The judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States..." The 11th Circuit Court held that the suit by the Seminoles against the State of Florida was barred by the 11th Amendment. The Court’s decision also addressed the question of remedies available to the tribe when its judicial remedy is barred: "The answer, gleaned from statute, is simple ... the tribe may file suit in the District Court. If the State pleads an 11th Amendment defense, the suit is dismissed and the tribe ... may notify the Secretary of the Interior. The Secretary of the Interior then may prescribe regulations governing Class III gaming on the tribe’s lands. This solution conforms with IGRA and serves to achieve Congress’ goals..."

The Seminole tribe petitioned the United States Supreme Court for certiorari on the main question, and the State of Florida cross-petitioned, seeking reversal of the 11th Amendment’s substitute remedy. In Seminole Tribe v. Florida, 517 U.S. 44 (1996), the Supreme Court held that the suit against Florida was barred, saying: "Notwithstanding Congress’ clear intent to abrogate the State’s sovereign immunity, the Indian Commerce Clause does not grant Congress that power, and therefore cannot grant jurisdiction over a state that does not consent to be sued." On the question of a substitute remedy, the Court merely noted that: "We do not consider, and express no opinion upon that portion of the decision below that provides a substitute remedy for a tribe bringing suit." However, one week later, the Supreme Court denied the cross petition of the State of Florida, leaving in place the lower court’s substitute remedy.

The result of Seminole is that Indian tribes no longer have the ability to force recalcitrant States to negotiate over Indian gaming compacts. Congress has yet, through 1998, amended IGRA to provide tribes with a remedy when the eleventh amendment is interposed by States as an affirmative defense.

Indian Gambling After Seminole Tribe v. Florida

In 1996 the Department of the Interior proposed new regulations to deal with Indian gaming compact negotiations between States and tribes when tribes have exhausted federal judicial remedies. The proposed rule would only apply where tribes assert that States have not acted in good faith in negotiating Class III gaming compacts, in States where Class III gaming otherwise occurs, and when States assert immunity from lawsuits to resolve the dispute. Congress has prevented the implementation of these rules by legislating a six month ban on Interior Secretary Bruce Babbitt from approving Indian casinos without state approval under the 1998 federal budget agreement.


New York Compacts and Provisions

Thus far, Class III gaming compacts have been reached between the State of New York and the Seneca Nation of Indians, the Oneida Indian Nation of New York and the St. Regis Mohawk Tribe. On August 18, 2002, Governor George E. Pataki signed the compact with the Seneca Nation of Indians on behalf of the State of New York. The Seneca Niagara Casino opened on December 31, 2002; the Seneca Allegany Casino opened on May 1, 2004; and the Seneca Buffalo Creek Casino on July 3, 2007.

The first gaming compact was entered into by the State on April 16, 1993 when former Governor Mario M. Cuomo signed a compact with the Oneida Indian Nation of New York. The Oneida compact was subsequently approved by the Interior Department on June 4, 1993 and the Oneida Indian Nation opened Turning-Stone Casino Resort on July 20, 1993. 

Then Governor Cuomo also signed a compact with the St. Regis Mohawk Tribe on October 15, 1993 which received its federal approval on December 4, 1993. Akwesasne Mohawk Casino opened on April 12, 1999.

Contained in each compact and appendices are standards and specifications for each game permitted to be played at an Indian casino, the rules and internal controls governing the operation of the gaming facility, procedures for certification and/or registration of gaming employees and companies transacting business with the casino and a system of mediation of disputes.

The Board maintains a constant twenty-four hour presence within the gaming facilities of the Oneida Nation's Turning Stone Casino, the Seneca Niagara Casino, the Seneca Allegany Casino, the Seneca Buffalo Creek Casino and the St. Regis Mohawk's Akwesasne Mohawk Casino. Board Gaming Inspectors ensure that gaming operations, such as dealing procedures, internal accounting and other controls, strictly conform to the applicable provisions of the Compact and their appendices. Gaming Inspectors are experienced, professional investigators who jointly monitor the gaming activities with the Nation or Tribal Gaming Inspectors, security officers and surveillance departments. Casino patrons may seek State Gaming Operations Inspectors to clarify rules of a game and for recourse after filing a complaint.

The Certification and Registration Unit is responsible for the review and subsequent approval or denial of the applications submitted by all persons involved with Class III gaming in the State. No employee or manager may be employed by the casino operator unless the individual has been previously approved by the Board. The level of scrutiny to which employee applicants are subject depends upon the nature of their responsibilities at the casino and their degree of access and ability to influence gambling activities on the gaming floor. At a minimum, all applicants are fingerprinted and must undergo a background investigation by the Federal Bureau of Investigation, the New York State Division of Criminal Justice Services and the New York State Police - Casino Detail.

Pursuant to each gaming compact, enterprises or individuals wishing to conduct gaming-related business with a Class III gaming facility must be temporarily approved in advance by the Board and then undergo a thorough registration and licensing process. These enterprises range from sole proprietorships to publicly traded multi-national corporations.

Each business applicant and their principal officers and employees must be fingerprinted and undergo an extensive background investigation conducted by the New York State Police - Casino Detail. At the conclusion of this background investigation, a decision is reached whether the business entity is suitable to conduct business with a casino.

All of the State's regulatory expenses, for both personnel and equipment, are paid for or reimbursed by the regulated Indian Nation or Tribe as required under federal law.

Casino Contact Information

Turning Stone Casino and Resort:
5218 Patrick Road
Verona, New York 13478
Casino Switchboard: (800) 771-7711 / Available 24 hours a day
Gaming Commission Office at Turning Stone Casino
PO Box 808
Vernon, NY 13476
Phone: (315) 363-2803 / Available 24 hours a day
Fax: (315) 361-6425

Akwesasne Mohawk Casino:
837 State Route 37
Hogansburg, NY 13655
Casino Switchboard: (877) 99CASINO or (518) 358-2222 / Available 24 hours a day
Gaming Commission Office at Mohawk Casino
P.O. Box 869
Hogansburg, New York 13655
Phone: (518) 358-6302 / Available 24 hours a day
Fax: (518) 358-9637

Seneca Niagara Casino and Hotel:
310 Fourth Street
Niagara Falls, NY USA
Casino Switchboard: (877) 8-SENECA (73-6322) or (716) 299-1100
Gaming Commission Office at Seneca Niagara Casino
P.O. Box 2524
Niagara Falls, New York 14302
Phone: (716) 284-5578 / Available 24 hours a day
Fax: (716) 284-9431

Seneca Buffalo Creek Casino:
One Fulton Street
Buffalo, NY 14204
Casino Switchboard: (716) 853-7382
Gaming Commission Office at Seneca Buffalo Casino
295 Main Street, Suite 924
Buffalo, New York 14203
Phone: (716) 853-7576 / Available 24 hours a day
Fax: (716) 854-2204

Seneca Allegany Casino and Hotel:
777 Seneca Allegany Boulevard
Salamanca, NY 14779
Casino Switchboard: (877) 553-9500
Gaming Commission Office at Seneca Allegany Casino
PO Box 546
Salamanca, NY 14779
Phone: (716) 945-4813 / Available 24 hours a day
Fax: (716) 945-4818

Yellow Brick Road Casino:
800 West Genesee St.
Chittenango, NY 13037
Gaming Commission Office at Yellow Brick Road Casino
800 West Genesee St.
Chittenango, NY 13037
Phone: (315) 366-9427 / Available 24 hours a day