“Reconsidering” a Compact: Indian Gaming and State Law

In New York, the Oneida Indian Nation and the state missed the deadline to seek postponement of the Interior Department's reconsideration of the compact governing the operation of the Oneida Nation's Turning Stone Casino and Resort. The compact was called into doubt after the New York Supreme Court ruled in a separate case that tribal-state gaming compacts must be ratified by the state legislature. Further complicating matters is the impact of the 2005 U.S. Supreme Court decision in City of Sherrill v. Oneida Nation, which cast doubt on whether some lands owned by the Oneida Nation qualified as "Indian lands" under IGRA's definition. Of course, at the heart of the (re)negotiations is revenue-sharing: it seems that New York is demanding a price for a compact that would comply with state law. The Interior Department is expected to make a decision by mid-June, acknowledging that this will be the first time the Department has "reconsidered" a compact in light of subsequent legal developments.

Kathryn has an article forthcoming in the Marquette Law Review that explores a similar situation in Wisconsin. State courts, rather than federal courts, increasingly are setting the legal terms for Indian gaming, often through cases in which the tribe may not even be a party. The practical implication is that a tribe may rely on a compact duly negotiated with the state's governor, only to have the compact later invalidated by a state court. More often than not, the state uses the legal uncertainty to demand a share of the tribe's casino revenue. In the article, Kathryn argues that this runs counter to Congress' intent in IGRA as well as basic principles of federal Indian law.

Read more in the Utica (NY) Observer-Dispatch here.