One of the arguments sometimes made in favor of licensing casinos is that Indian tribes in Massachusetts will get full casino licenses under federal law no matter what we do.
This appears to be false. The misunderstanding may derive from the fact that federal law does allow a bypass of state authority for the process of acquiring Indian sovereign lands. However even once land is held by the tribe, there is no federal bypass to allow actual casino licensing in a state which otherwise prohibits casino activity.
What appears to be true is that, once they have the land to do it on, tribes can do gambling at the same level that others are permitted to in the state. So, since Massachusetts permits some bingo, the tribes can do Class II gambling — bingo and certain card games — without state permission if they can reserve sovereign land.
Today, however, there are no slot machines permitted anywhere in Massachusetts. As a result, tribes could not get Class III gaming — slot machines and the other common forms of casino gambling — without affirmative legislative action to permit these activities. (However, a contrary argument is currently being advanced by the Wompanoags — certain permitted charity “casino nights” are Class III activities that would trigger tribal rights to slot machines.)
For class III gambling, in addition to the affirmative legislative action, which requirement cannot be bypassed by any appeal to federal law, a regulatory compact would have to be negotiated with the state. If the state permitted a non-tribal operator, but then failed to also negotiate a regulatory compact with the tribe, the tribe can appeal and effectively compel a compact, but a compact could not be compelled unless the state had already legalized Class III gaming for others.
My initial source for the basic understanding summarized above is the testimony of Secretary O’Connell, one of the administration’s leading point people on casinos, at a hearing in December 2007. A 2002 report commissioned by Governor Swift includes much of the same basic framework. The importance of this understanding is that slot machines account for the vast majority of casino revenue (80 to 90%), according to witnesses at the same December 2007 hearing. Without slot machines, a casino would be very limited.
The above regulatory understanding appears to be readily confirmed by a reading of the Indian Gaming Regulatory Act.
IGRA defines three classes of gaming at section 2703:
- Class I gaming includes social and traditional games involving minimal money.
- Class II gaming includes bingo and also card games that are either (a) expressly authorized by the state or (b) actually and legally played in the state. Class II gaming expressly excludes electronic replicas of games of chance, slot machines and banking card games like blackjack.
- Class III gaming is everything else — slot machines, blackjack, electronic poker, etc.
Class I gaming is unregulated, but as to Class II gaming, IGRA provides at Section 2710(b)(1) that:
“An Indian tribe may engage in, or license and regulate, class II gaming on Indian lands within such tribe’s jurisdiction, if– (A) such Indian gaming is located within a State that permits such gaming for any purpose by any person, organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands by Federal law), and (B) the governing body of the Indian tribe adopts an ordinance or resolution which is approved by the Chairman.”
Class III gaming, under Section 2710(d) additionally requires entry into a compact with the state: “(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.”
The three requirements under Section 2710(d) are conjunctive — they all have to true in order for a tribe to get a license for Class III gaming. The compact requirement is subject to a complex appeals process if negotiations for a Tribal-State compact fail to progress. However, this appeals process has no relevance unless the first two requirements are met.
The initial hurdle that tribes must surmount before any of the above discussion is relevant is to acquire lands on which to conduct the gaming activities. This is a completely separate hurdle from the gambling authorization process otherwise described above. It can be achieved either with gubernatorial approval or in conjunction with the federal process of “acknowledgment” of the tribe. See section 2719 of IGRA.