Fallout from D.C. Circuit's Ruling

In October, the U.S. Court of Appeals for the D.C. Circuit ruled that under IGRA, the National Indian Gaming Commission did not have authority to regulate Class III or casino-style gaming. Instead, IGRA envisioned tribal-state compacts as the sole vehicle for regulation of Class III gaming. There are more than 250 tribal-state compacts in place, each tailored to the specific concerns and needs of the particular state and tribe. But the NIGC and other federal officials have expressed concern that many, if not all, tribal-state compacts were drafted under the assumption that the NIGC had regulatory authority, and thus may not provide an adequate regulatory structure or sufficient standards for the operation of tribal gaming.

As discussed in a November 30 front-section story in USA Today, tribal leaders, including the National Indian Gaming Association, have lauded the D.C. Circuit's decision as appropriately recognizing both tribal sovereignty and tribes' track record of effective regulation of Class III gaming. Federal officials, though, are not convinced. Said Randy Jackson, director of the FBI's Indian Country unit, "If Indian gaming operations are not regulated, the integrity of the . . . industry is at risk." Thomas Heffelfinger, a former U.S. Attorney, predicted that the ruling would increase the risk of corruption and crime, calling tribes the "real losers" as a result of the court's decision.

We have argued, both in our April 2005 testimony before the Senate Indian Affairs Committee and in our most recent article, "How Congress Can and Should 'Fix' the Indian Gaming Regulatory Act" (in the current issue of the Virginia Journal of Social Policy and the Law), that Congress should take into account tribes' ability to regulate casinos effectively. There seems to be a great reluctance to acknowledge the good work of tribal gaming commissions, and instead of assisting tribal governments in building even more effective regulatory agencies, the federal government's approach tends toward paternalism. In our article, we set out specific policy solutions for regulatory reform that provides for effective regulation while respecting tribal governments and tribal sovereignty.