Attorney General March 25, 1994 Memorandum on the Indian Gaming Regulatory Act

 


Office of the Attorney General
Washington, D.C. 20530

March 25, 1994

MEMORANDUM FOR UNITED STATES ATTORNEYS

FROM: THE ATTORNEY GENERAL

SUBJECT: ENFORCEMENT OF THE INDIAN GAMING REGULATORY ACT

A number of United States Attorneys have inquired about the Department's current policy towards illegal gaming in the Indian country. Because of the sensitivity of the issue and because there have been recent significant developments, I think that it is appropriate that I address this subject.

In dealing with Indian tribes we must always be mindful of two components of federal-tribal relations. One is the government-to-government relationship we maintain with these quasi-sovereign entities, and the other is the responsibility the federal government has to the tribes for their well-being and protection. It is against this background that Congress enacted the Indian Gaming Regulatory Act (IGRA) in 1988. The Act provides a complex system of regulation and oversight that is designed to allow tribal governments to raise needed revenue and to shield those operations from criminal infiltration.

I turn now to the truly sensitive issue of what should be done about illegal gaming conducted by tribal authorities. When the IGRA was enacted, Congress, recognizing that neither the tribes nor the federal government had the expertise to regulate more sophisticated forms of gaming, provided that Class III games should be conducted by the tribes pursuant to a state-tribal compact. It further provided that a tribe could sue a state to compel it to negotiate a compact in good faith. This aspect of the act has recently been put into question by the Eleventh Circuit opinion in Seminole Tribe v. State of Florida, Dkt. Nos. 92-4652, 92-6244.

Although a number of states and tribes have successfully concluded compacts, many tribes are operating casinos or video gaming machines without a compact, in violation of the IGRA, 18 U.S.C. 1166(a), and the Johnson Gambling Devices Act, 15 U.S.C. 1175, as well as the Organized Crime Control Act, 18 U.S.C. 1955. I appreciate that the road to agreement between the states and the tribes has not always been a smooth one, however, at this writing, I believe that most of the legal uncertainty concerning Class III gaming without a compact has been exhausted. The overall constitutionality of the Act has been upheld, the classifying regulations of the NIGC have been sustained, and arguably ambiguous terms of the Act have been clarified by litigation. Of particular importance is the recent decision of the Court of Appeals for the District of Columbia Circuit in Cabazon Band of Mission Indians v. NIGC, Dkt. No. 93-5255, decided January 28, 1994, which held that electronic pull-tab devices are Class III games and therefore require a compact to be legally played in Indian country. In view of this decision, I encourage each of you to review the status of gaming that may be operating in your district. If you find any illegal gaming, the peaceful termination of those illegal operations should be negotiated with the Tribes within a brief but reasonable time.

While uniformity of enforcement is desirable, we recognize that conditions vary from state to state, district to district and reservation to reservation. In determining when to act and what action to take, due consideration should be given to the provisions of state gaming law, the history and status of tribal-state negotiations -- in particular whether there is currently or has been good faith negotiating by both parties, the relationship of your office to tribal and state authorities, and other factors of importance in your community.

The tribes and their members have shown themselves to be law abiding citizens and their compliance is anticipated. Each of you should be assured that your judgment on whether and how to proceed will be respected and your efforts will be supported by all the resources available to us.

In view of the sensitive nature of these matters, I would appreciate your notifying me in advance with an Urgent Report of significant enforcement action.

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