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Indian Gaming

Introduction In 1981, the Fifth Circuit ruled that Florida, a "Public Law 280 state," could not enforce its bingo laws--which restricted bingo to licensed charitable gaming with severe hour and pot limits--against the high-stakes bingo operations of the Seminole Tribe, because they were "civil/regulatory" laws. For several years the Congress labored to come up with legislation that would accommodate the conflicting interests of law enforcement agencies, opponents of Indian gaming, champions of tribal sovereignty, and those who saw gaming as a solution to the enormous economic problems of the Indian tribes. It ultimately enacted the Indian Gaming Regulatory Act (IGRA) in October 1988. Shortly before enactment of the IGRA, the Supreme Court, in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), upheld a decision of the Ninth Circuit, in accord with the decision of the Fifth Circuit's decision in the Seminole bingo case, distinguishing between criminal and regulatory laws. To a significant extent the IGRA embraces the Cabazon rationale. The regulatory provisions of the IGRA are codified at 25 U.S.C. § 2701 et seq., and the criminal provisions at 18 U.S.C. §§ 1166-1168. Section 1166 assimilates all state gaming laws, including regulatory laws, into federal law, and vests "exclusive jurisdiction" in the United States. Sections 1167 and 1168 create new theft and embezzlement offenses. The congressional findings and policies explicitly set forth in the IGRA and implicit in its regulatory scheme are strongly supportive of the Indian tribes' right as governments to raise badly needed revenue through gaming, while recognizing the need for regulation to prevent infiltration by organized crime. The IGRA divides gaming into three classes subject to differing regulatory controls. Class 1, primarily social gaming, is left to the exclusive jurisdiction of the Indian tribes. 25 U.S.C. §§ 2703(6), 2710(a)(1). Class 11, include in bingo and a few other games, e.g., pulltabs and punchboards, may be conducted under tribal regulation pursuant to tribal ordinance approved by the chairman of the National Indian Gaming Commission (NIGC) and under Commission oversight. 25 U.S.C. §§ 2703(7)(A), 2710(a)(2), (b) and (c). Class III gaming, consisting of all other forms of gaming, notably slot and video machines and banking card games, such as blackjack, may be conducted only if the chairman of the NIGC approves the authorizing tribal ordinance and the tribe negotiates a compact with the state which gains the approval of the Secretary of the Interior. 25 U.S.C. §§ 2703(8), 2710(d)(1). This trifurcated compromise recognized that most states allowed bingo and that several Indian tribes had successfully conducted high stakes bingo operations, while neither the tribes nor the federal government had the expertise to regulate more sophisticated forms of gaming allowed in some states. Criminal Enforcement of the IGRA Gaming Offenses Section 1166(a) assimilates all state gaming laws, including regulatory laws, into federal law, and vests "exclusive jurisdiction" in the United States. 18 U.S.C. § 1166(d). In other words, any gaming in Indian country--tribal or otherwise--which is not in accord with state law, whether characterized as "criminal/prohibitory" or "civil/regulatory," is a federal crime unless it is conducted in accordance with the prescriptions of the IGRA. This means that: Class I, II and III gaming must comport with tribal law; Class II gaming must also comport with NIGC regulations; and Class III must, in addition, comport with a valid compact of the state and tribe. Familiarity with state gaming laws is therefore essential when investigating violations of this statute. Several courts have held that states that have criminal jurisdiction under Public Law 280 or similar legislation have lost that jurisdiction with respect to criminal gaming offenses because Sec. 1168(d) says that the "United States shall have exclusive jurisdiction." Sycuan Band of Mission Indians v. Roache, 54 F.3d 535 (9th Cir. 1994); Rhode Island v. Narragansett Tribe, 19 F.3d 685 (1st Cir. 1994), cert. denied, 115 S. Ct. 298 (1994); Lac du Flambeau Band of Lk. Superior Chippewa Indians v. Wisconsin, 743 F. Supp. 645 (W.D.Wis. 1990), appeal dismissed, 957 F.2d 515 (7th Cir. 1992). Theft and embezzlement offenses Section 1167(a) punishes stealing $1,000 or less from an operation run by or licensed by a tribe with the concurrence of the Commission by a maximum of a year's imprisonment, a $100,0000 fine, or both. Subsection (b) increases the maximum penalties to 10 years, $250,000, or both, if the theft is of more than $1,000. Section 1168 provides that where the perpetrator is an officer, employee or licensee of the gaming establishment, the maximum penalty is five years, a fine of $250,000, or both, for taking $1,000 or less; and a maximum of 20 years, and/or a fine of $1,000,000, if more than $1,000 is embezzled. [cited in USAM 9-20.100]