IGRA’s “Best Interests” Exception

Thread: Off-Reservation Gaming

Back to our crash course on off-reservation gaming.

The federal Indian Gaming Regulatory Act (IGRA) generally prohibits both Class II (bingo, etc.) and Class III (casino games) gaming on Indian lands that are placed into trust by the federal government after Oct. 17, 1988 (the date IGRA was passed by Congress).

One of the exceptions to this general rule is what we call the “best interests” exception. This exception allows a tribe to open a casino on newly acquired land, regardless of whether it has any connection to the tribe’s current or past reservation, when gaming on the land is “in the best interest of the tribe and its members, and would not be detrimental to the surrounding community.”

A seemingly broad exception, to be sure, but one that is very difficult to meet because it requires both federal and state approval.

First, the U.S. Secretary of the Interior must make that determination – that gaming would be in the best interest of the tribe and would not be detrimental to the surrounding community – after consulting with the tribe, the state, local officials, and officials of nearby tribes.

Second, the state’s governor must concur with the Secretary’s determination. In other words, the governor has veto power over an off-reservation casino.

That two-part approval process creates huge political obstacles to the vast majority of proposed off-reservation casinos. Only three tribal casinos operate under this exception. That’s three casinos in 18 years. Many, many more never make it past the “trial balloon” floated to local officials.

People sometimes tend to assume that because “all politics is local,” local politics must be one-of-a-kind. That’s not true in this case. The type of debates over off-reservation gaming that may be occurring in your home town most likely have parallels in many other communities throughout the United States.

More to come in our short course on off-reservation gaming. Stay tuned –- and feel free to comment.