Bringing balance to Indian gaming

Harvard Journal on Legislation

Volumn 44, Issue 1, 2007, Pages 39-95

  Fletcher, Matthew L M ^a  

^a MICHIGAN STATE UNIVERSITY   (United States)

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EID: 34247600120     PISSN: 0017808X     EISSN: None     Source Type: Journal    
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References (524)

1. Indian Gaming Regulatory Act of 1988, 25 U.S.C. §§ 2701-2721 (2000).
2. See John Cochran, Scrutiny on Tribes Keeps Stakes High, CQ WEEKLY, Jan. 27, 2006, available at 2006 WLNR 1939588.
3. See, e.g., M. Neil Browne et al., The Role of Ethics in Regulatory Discourse: Can Market Failure Justify the Regulation of Casinio Gaming?, 78 NEB. L. REV. 37, 51-52 (1999) (footnotes omitted).
4. See generally Oversight Hearing Before the S. Indian Affairs Comm. on In re Tribal Lobbying Matters, 109th Cong. (2005);
5. Oversight Hearing on the Second Discussion Draft of Legis. Regarding Off-Reservation Indian Gaming Before the H. Resources Comm., 109th Cong., (2005);
6. Oversight Hearing on Draft Legis. to Amend the Indian Gaming Regulatory Act to Restrict Off-Reservation Gaming, and for other purposes Before the H. Resources Comm., 109th Cong. (2005).
7. See generally STEVEN ANDREW LIGHT & KATHRYN R. L. RAND, INDIAN GAMING AND TRIBAL SOVEREIGNTY: THE CASINO COMPROMISE 11-13 (2005) (discussing the controversies of Indian gaming);
8. Peter Roper, Off-Reservation Casinos Shock Congress, PUEBLO CHIEFTAIN (COLO.), Sept. 25, 2005, available at 2005 WLNR 15178554;
9. Jodi Rave, Governors: Casinos Off Reservation Top Concern, MISSOULIAN (MONT.), Mar. 31, 2005, at B1, available at 2005 WLNR 6020534 (discussing off-reservation gaming);
10. Susan Schmidt & James V. Grimaldi, Norton Ex-Aides Clash on Lobbyist's Influence; Lawyer Says He Accused Griles of Aiding Abramoff, WASH. POST, Nov. 3, 2005, at A19, available at 2005 WLNR 17731764 (discussing tribal lobbying);
11. Suzanne Gamboa, Lobbyists Diverted Millions from Tribes; McCain asks Justice to Investigate the Trail of Billing, Money, CHARLOTTE OBSERVER, June 23, 2005, at 14A, available at 2005 WLNR 9901208 (discussing tribal lobbying);
12. Tu-Uyen Tran, Council Gives Lukewarm Support; Vote Set for Monday, GRAND FORKS HERALD, Oct. 11, 2005, at A1, available at 2005 WLNR 16434974 (discussing fee-to-trust-matters);
13. John Stearns & Suzanne Struglinski, McCain Aims to Strengthen Oversight of Tribal Gambling, LAS VEGAS SUN, Sept. 22, 2005, at C3, available at 2005 WLNR 15438951 (discussing Indian gaming regulation and Colorado River Indian Tribes v. Nat'1 Indian Gaming Comm'n, 383 F. Supp. 2d 123 (D.D.C. 2005), where the court invalidated class III gaming regulations implemented by the National Indian Gaming Commission).
14. See, e.g., 151 CONG. REC. S13389, S13390 (daily ed. Nov. 18, 2005) (statement of Sen. McCain) (noting a "backlash against Indian gaming generally"). See generally Oversight Hearing Before the S. Indian Affairs Comm. on the Regulation of Indian Gaming, 109th Cong. 12-13 (2005) (Statement of Kathryn R. L. Rand & Steven Andrew Light) ("At times, the claims made by tribal gaming's opponents may ... set the tone of the public conversation about Indian gaming ... [and] the agenda for public policy."), available at http://indian.senate.gov/2005hrgs/042705hrg/ rand.pdf [hereinafter Rand & Light Testimony];
15. The Impact of the U.S. Supreme Court's Recent Decision in Seminole v. Florida on the Indian Gaming Regulatory Act of 1988, 104th Cong. 104-513 (1996) (statement of Franklin Ducheneaux) (noting "the distortion of [the right of Indian tribes to game] by the press and opponents of Indian gaming") [hereinafter Ducheneux Testimony].
16. See, e.g., To Amend the Indian Gaming Regulatory Act to Limit Casino Expansion, H.R. 3431, 109th Cong. (2005) (restricting off-reservation gaming and increasing state authority to restrict Indian gaming);
17. Common Sense Indian Gambling Reform Act, H.R. 2353, 109th Cong. (2005) (increasing Indian gaming regulation, limiting off-reservation gaming, increasing regulation of tribal lobbying, and increasing state authority over Indian gaming);
18. Indian Gaming Regulatory Act Amendments of 2005, S. 2078, 109th Cong. (2005) (expanding the National Indian Gaming Commission's regulatory authority and constricting the legal authority for off-reservation gaming expansion);
19. To Amend the Indian Gaming Regulatory Act to Modify a Provision Relating to the Locations in Which Class III Gaming is Lawful, S. 1518, 109th Cong. (2005) (restricting lands where Indian gaming is authorized);
20. National Indian Gaming Commission Accountability Act of 2005, S. 1295, 109th Cong. (2005) (increasing federal regulation of Indian gaming).
21. 151 CONG. REC. at S13390 (daily ed. Nov. 18, 2005) (statement of Sen. McCain).
22. S. Rep. No. 100-446, at 33 (1988)
23. Id.
24. Id.
25. Id.
26. See Steven Andrew Light & Kathryn R. L. Rand, Reconciling the Paradox of Tribal Sovereignty: Three Frameworks for Developing Indian Gaming Law and Policy, 4 NEV. L.J. 262, 271-73 (2004) (describing the intent of Congress to balance the interests of the three sovereigns);
27. Alex Tallchief Skibine, Gaming on Indian Reservations: Defining the Trustee's Duty in the Wake of Seminole Tribe v. Florida, 29 ARIZ. ST. L.J. 121, 129-32 (1997) (describing the policy considerations of the Act);
28. Rebecca Tsosie, Negotiating Economic Survival: The Consent Principle and Tribal-State Compacts Under the Indian Gaming Regulatory Act, 29 ARIZ, ST. L.J. 25, 49 (1997) ("In the end, the 1988 Indian Gaming Regulatory Act represented a political compromise made to protect the same state regulatory interests that the Supreme Court had found unpersuasive in Cabazon, while still preserving gaming as a means of tribal economic development, thus alleviating the financial burden that the tribes place on the federal government.") (footnote omitted);
29. Franklin Ducheneaux & Peter S. Taylor, Tribal Sovereignty and the Powers of the National Indian Gaming Commission 26-32 (describing the legislative negotiation and balancing leading up to the enactment of IGRA) (on file with author).
30. See 25 U.S.C. § 2710(d)(7) (2000), invalidated by Florida v. Seminole Tribe of Fla., 517 U.S. 44 (1996).
31. 517 U.S. 44 (1996).
32. See LIGHT & RAND, supra note 5, at 49-50;
33. Eric S. Lent, Note, Are States Beating the House?: The Validity of Tribal-State Revenue Sharing Under the Indian Gaming Regulatory Act, 91 GEO. L.J. 451, 452 (2003);
34. Light & Rand, supra note 13, at 274;
35. Steven Andrew Light et al., Spreading the Wealth: Indian Gaming and Revenue-Sharing Agreements, 80 N.D. L. REV. 657, 664-65 (2004);
36. Skibine, supra note 13, at 132-33;
37. Wambdi Awanwicake Wastewin, Case Comment, Federal Courts - Indians: The Eleventh Amendment and Seminole Tribe: Reinvigorating the Doctrine of State Sovereign Immunity, 73 N.D. L. REV. 517, 540 (1997).
38. See Seminole Tribe, 517 U.S. at 47.
39. See LIGHT & RAND, supra note 5, at 86-87;
40. Kevin K. Washburn, Recurring Problems in Indian Gaming, 1 WYO. L. REV. 427, 440-41 (2001) [hereinafter Washburn, Recurring Problems];
41. Kevin K. Washburn, A.B.A. CTR. FOR CONTINUING LEGAL EDUC., INDIAN GAMING: A PRIMER ON THE DEVELOPMENT OF INDIAN GAMING, THE NIGC AND SEVERAL IMPORTANT UNRESOLVED ISSUES (2002).
42. See infra note 145 and accompanying text.
43. See Class III Gaming Procedures, 64 FED. REG. 17,535 (Apr. 12, 1999) (codified as 25 C.F.R. pt. 291 (2004)).
44. See generally In re Gaming Related Cases, 331 F.3d 1094, 1115 (9th Cir. 2003) (upholding the validity of California tribal-state gaming compact revenue sharing provisions);
45. Henry Buffalo & Robert Miller, Commentary, Spreading the Wealth: Indian Gaming and Revenue-Sharing Agreements, 80 N.D. L. REV. 681, 689 (2004) ("And irrespective of what the Ninth Circuit has said, I still believe that the law prohibits revenue sharing agreements.");
46. Gatsby Contreras, Note, Exclusivity Agreements in Tribal-State Compacts: Mutual Benefit Revenue-Sharing or Illegal State Taxation, 5 J. GENDER RACE & JUST. 487, 490 (2003) ("Although states and tribes continue to enter into these agreements with the approval of the Department of the Interior, substantial questions remain as to whether these agreements are valid revenue-sharing or illegal state taxation under the IGRA.");
47. Katie Eidson, Note, Will States Continue to Provide Exclusivity in Tribal Gaming Compacts or Will Tribes Bust on the Hand of the State in Order to Expand Indian Gaming, 29 AM. INDIAN L. REV. 319, 325-26 (2004-2005) ("States that wish to engage in revenue sharing from Indian gaming must formulate their revenue sharing provisions in a manner to bypass the prohibition against tax impositions.");
48. Lent, supra note 16, at 461 ("The plain statutory language of IGRA, its legislative history, and relevant case law illustrate that tribal-state revenue sharing is inappropriate under IGRA.");
49. Rubin Ranat, Note and Comment, Tribal-State Compacts: Legitimate or Illegal Taxation of Indian Gaming in California?, 26 WHITTIER L. REV. 953, 980 (2005) ("[I]f Congress clarifies the meaning of IGRA or passes legislation allowing tribes to bring suit against states, the Court may hold California's Compact illegal.").
50. See 25 U.S.C. § 2710(d)(4).
51. See, e.g., Nicolas S. Goldin, Note, Casting a New Light on Tribal Casino Gambling: Why Congress Should Curtail the Scope of High Stakes Indian Gaming, 84 CORNELL L. REV. 798, 845 (1999);
52. Jason D. Kolkema, Comment, Federal Policy of Indian Gaming on Newly Acquired Lands and the Threat to State Sovereignty: Retaining Gubernatorial Authority Over the Federal Approval of Gaming on Off-Reservation Sites, 73 U. DET. MERCY L. REV. 361, 365 (1996);
53. Edmund F. Leedham III, Note, The Indian Gaming Controversy in Connecticut: Forging a Balance Between Tribal Sovereignty and State Interests, 13 BRIDGEPORT L. REV. 649, 693-94 (1993);
54. Blake A. Watson, Indian Gambling in Ohio: What Are the Odds?, 32 CAP. U. L. REV. 237, 312 (2003).
55. See, e.g., Gary W. Donohue, Note, The Eleventh Amendment: The Supreme Court's Frustrating Impediment to Sensible Regulation of Indian Gaming, 45 WAYNE L. REV. 295, 324 (1999);
56. Jason Kalish, Note, Do the States Have an Ace in the Hole or Should the Indian Call Their Bluff?: Tribes Caught in the Power Struggle Between the Federal Government and the States, 38 ARIZ. L. REV. 1345, 1370-71 (1996);
57. Lent, supra note 16, at 471;
58. Anthony J. Marks, Note & Comment, A House of Cards: Has the Federal Government Succeeded in Regulating Indian Gaming?, 17 LOY. L.A. ENT. L. REV. 157, 198 (1996);
59. Brian P. McClatchey, Note, A Whole New Game: Recognizing the Changing Complexion of Indian Gaming By Removing the "Governor's Veto" for Gaming on "After-Acquired Lands," 37 U. MICH. J.L. REFORM 1227 (2004);
60. Edward P. Sullivan, Note, Reshuffling the Deck: Proposed Amendments to the Indian Gaming Regulatory Act, 45 SYRACUSE L. REV. 1107, 1166 (1995).
61. See Joe Laxague, Note, Indian Gaming and Tribal-State Negotiations: Who Should Decide the Issue of Bad Faith?, 25 J. LEGIS. 77, 91 (1999);
62. Lent, supra note 16, at 472-73. Compare Kathleen M. O'Sullivan, Note, What Would John Marshall Say? Does the Federal Trust Responsibility Protect Tribal Gambling Revenue?, 84 GEO. L.J. 123, 144-50 (1995) (arguing that IGRA meets the federal trust responsibility to Indian tribes and would likely survive a challenge by tribes based on the trust relationship), with Christian C. Bedortha, Comment, The House Always Wins: A Look at the Federal Government's Role in Indian Gaming & The Long Search for Autonomy, 6 SCHOLAR 261, 286 (2004) (arguing that federal and state governments should promote tribal gaming in order to give the federal trust responsibility "teeth").
63. 480 U.S. 202 (1987).
64. See LIGHT & RAND, supra note 5, at 39 (California and Florida);
65. Ray Halbritter & Steven Paul McSloy, Empowerment or Dependence? The Practical Value and Meaning of Native American Sovereignty, 26 N.Y.U. J. INT'L L. & POL 531, 565 (1994) (New York);
66. Marks, supra note 24, at 158-59 (Florida and Maine);
67. Sidney M. Wolf, Killing the New Buffalo: State Eleventh Amendment Defense to Enforcement of IGRA Indian Gaming Compacts, 47 WASH. U. J. URB. & CONTEMP. L. 51, 69 (1995) (Florida and Wisconsin).
68. See Worcester v. Georgia, 31 U.S. 515, 561 (1832) ("The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force ....");
69. Bryan v. Itasca County, 426 U.S. 373, 375-76 (1976) (stating that in the area of state taxation "there has been no satisfactory authority for taxing Indian reservation lands....") (citation omitted);
70. Williams v. Lee, 358 U.S. 217, 220 (1959) ("Congress has also acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation.");
71. United States v. Antelope, 430 U.S. 641, 643 n.2 (1977) (citing 18 U.S.C. § 1152);
72. Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 ARIZ. L. REV. 503, 568 (1976).
73. See Michael D. Cox, The Indian Gaming Regulatory Act: An Overview, 7 ST. THOMAS L. REV. 769, 772 (1995) ("During this same period, [federal] officials began to realize the potential economic benefits of tribal gaming operations, and a policy emerged which supported tribal bingo enterprises as an appropriate means by which tribes could further their economic self-sufficiency, the economic development of their reservations, and tribal self-determination.") (footnotes omitted);
74. William E. Horwitz, Note, Scope of Gaming Under the Indian Gaming Regulatory Act of 1988 After Rumsey v. Wilson: White Buffalo or Brown Cow?, 14 CARDOZO ARTS & ENT. L.J. 153, 164 n.75 (1996) ("The federal government actively encouraged bingo as a means of economic development by providing approvals of tribal bingo ordinances and even guaranteeing some eight million dollars in construction loans for bingo facilities." (citing 132 CONG. REC. S12,017-18 (daily ed. Aug. 15, 1986) (statement of Sen. Andrews))).
75. See, e.g., Worthington v. City Council of City of Rohnert Park, 31 Cal. Rptr. 3d 59, 61 (Ct. App. 2005) (discussing agreement between municipality and tribe on gaming);
76. Ducheneaux & Taylor, supra note 13, at 12 ("Some of these municipal governments began to approach Indian tribes with proposals involving acquisition of land near the town or city for transfer to the United States to be held in trust for the tribe. Then, a gaming facility would be located on the land, providing revenue for the tribes and jobs and economic growth for the non-Indian community"). Senator McCain neglected to mention this fact when he stated that "unscrupulous developers" were to blame for increased proposals for off-reservation gaming. 151 CONG. REC. S13389, S13390 (daily ed. Nov. 18, 2005) (statement of Sen. McCain).
77. See Barona Group of Capitan Grande Band of Mission Indians v. Duffy, 694 F.2d 1185, 1189 (9th Cir. 1982), cert. denied, 461 U.S. 929 (1983);
78. Seminole Tribe of Fla. v. Butterworth, 658 F.2d 310 (5th Cir. 1981), cert. denied, 455 U.S. 1020 (1982);
79. Oneida Tribe of Indians v. Wisconsin, 518 F. Supp. 712 (W.D. Wis. 1981);
80. Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245 (D. Conn. 1986). All of these cases found the state law in question not to apply to Indian reservations because the laws were of a regulatory nature (see infra notes 45-59 and accompanying text).
81. See S. Rep. No. 100-446, at 5 (1988).
82. See LIGHT & RAND, supra note 5, at 40 ("[T]he local sheriff threatened to shut down the [Barona Group of the Capitan Band of Missions Indians]'s bingo operation and arrest its patrons....");
83. Cox, supra note 29, at 770 ("The opening of the Seminole Tribe of Florida's high stakes bingo hall in 1979 was met with immediate resistance from the Sheriff of Broward County who threatened to arrest anyone playing bingo at the Tribe's gaming hall.");
84. Leedham, supra note 23, at 670 ("[T]he Chief State's Attorney, asserting that the state possessed criminal jurisdiction over the reservation, notified the tribe of his intention to enforce Connecticut's bingo laws against its enterprise.").
85. Pub. L. No. 280, 67 Stat. 588 (1953) (codified as amended at 18 U.S.C. §§ 1161-1162 (2000);
86. U.S.C. §§ 1321-1322 (2000);
87. U.S.C. § 1360 (2000)). See generally CAROLE GOLDBERG-AMBROSE, PLANTING TAIL FEATHERS: TRIBAL SURVIVAL AND PUBLIC LAW 280 (1997).
88. See HON. WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 27 (4th ed. 2004).
89. See Sullivan, supra note 24, at 1118-20 (comparing the situations in Florida and Wisconsin).
90. See LIGHT & RAND, supra note 5, at 40.
91. See Michael Donovan COX, A.B.A. CTR. FOR CONTINUING LEGAL EDUC., GAMING ENFORCEMENT UNDER THE INDIAN GAMING REGULATORY ACT (Apr. 17-18, 1997) [here-inafter Cox, Gaming Enforcement] (citing United States v. Sosseur, 181 F.2d 873 (7th Cir. 1950);
92. United States v. Farris, 624 F.2d 890 (9th Cir. 1980);
93. United States v. Dakota, 796 F.2d 186 (6th Cir. 1986)).
94. 480 U.S. 202 (1987).
95. See id. at 204-05.
96. See id. at 205.
97. See 18 U.S.C. § 1162 (2000). In 1953, Congress withdrew federal criminal jurisdiction and extended the criminal jurisdiction of California and a few other states to Indian Country located within those states. See GOLDBERG-AMBROSE, supra note 34, at 1. Congress created a mechanism through which other states could assume criminal jurisdiction if they chose to do so. See id. Congress withdrew that procedure in 1968, but allowed the nine states who had chosen to assume jurisdiction to retain it. See id. at 2.
98. See Cabazon Band, 480 U.S. at 205-06 (citing CAL. PENAL CODE § 326.5 (1987); Riverside County Ordinance No. 558; Riverside County Ordinance No. 331).
99. 426 U.S. 373 (1976).
100. See Cabazon Band, 480 U.S. at 210.
101. See 18 U.S.C. § 1162 (Section 2);
102. U.S.C. § 1360 (2000) (Section 4).
103. See 18 U.S.C. § 1162.
104. See 28 U.S.C. § 1360.
105. See Bryan, 426 U.S. at 379 ("The primary concern of Congress in enacting Public Law 280 that emerges from its sparse legislative history was with the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement.") (citing Carole E. Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L. REV. 535, 541-42 (1975)).
106. Cabazon Band, 480 U.S. at 208 (citing Bryan, 426 U.S. at 385, 388-90).
107. Id., 480 U.S. at 208.
108. Id.
109. Id. at 210.
110. Id. at 213.
111. Ducheneaux Testimony, supra note 6, at 170.
112. See Cabazon Band, 480 U.S. at 211.
113. Id. at 210.
114. Id. at 211.
115. See. id. at 212.
116. See id. at 214-22.
117. Cabazon Band, 480 U.S. at 215 (quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331-32 (1983)).
118. See id. at 220-21.
119. Id. at 217.
120. Id. at 217 & n.20.
121. See id. at 217-18. The Court quoted at length from an affidavit submitted by the Bureau of Indian Affairs Director of Indian Services, which read: It is the department's position that tribal bingo enterprises are an appropriate means by which tribes can further their economic self-sufficiency, the economic development of reservations and tribal self-determination. All of these are federal goals for the tribes. Furthermore, it is the Department's position that the development of tribal bingo enterprises is consistent with and in furtherance of President Reagan's Indian Policy Statement of January 24, 1983.
122. Id. at 217 n.21.
123. Id. at 218.
124. Id.
125. Id. at 218-19.
126. Id. at 220.
127. Id. at 220-21. More recent studies conclude that Indian casinos do not attract either organized or disorganized crime. See Renee Ann Cramer, Perceptions of the Process: Indian Gaming as it Affects Federal Tribal Acknowledgment Law and Practices, 27 L. & POL'Y 578, 596 (2005).
128. See Cabazon Band, 480 U.S. at 222.
129. See 134 CONG. REC. H5028 (July 6, 1988) (Statement of Rep. Udall);
130. LIGHT & RAND, supra note 5, at 42;
131. Brad Jolly, Note, The Indian Gaming Regulatory Act: The Unwavering Policy of Termination Continues, 29 ARIZ. ST. L.J. 273, 297 (1997);
132. Robert B. Porter, Indian Gaming Regulation: A Case Study in Neo-Colonialism, 5 GAMING L. REV. 299, 306 (2001);
133. Mark C. Wenzel, Note/Comment, Let the Chips Fall Where They May: The Spokane Indian Tribe's Decision to Proceed With Casino Gambling Without a State Compact, 30 GONZ. L. REV. 467, 475 (1994-1995).
134. See, e.g., Ducheneaux Testimony, supra note 6, at 171 ("In 1983, in the 98th Congress, Mr. Udall introduced the first bill to affect[ ] gambling activities by Indian tribes.");
135. Horwitz, supra note 29, at 164 (noting legislative history on IGRA as far back as the 98th Congress).
136. See LIGHT & RAND, supra note 5, at 43;
137. Porter, supra note 72, at 306.
138. See Indian Gaming Regulatory Act, Pub. L. No. 100-497, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701-2721 (2000)).
139. See In re Indian Gaming Related Cases, 331 F.3d 1094, 1096 (9th Cir. 2003) (quoting Artichoke Joe's v. Norton, 216 F. Supp. 2d 1084, 1092 (E.D. Cal. 2002)), cert. denied, Coyote Valley Band of Porno Indians v. California, 540 U.S. 1179 (2004);
140. Colo. River Indian Tribes v. Nat'l Indian Gaming Comm'n, 383 F. Supp. 2d 123, 126 (D.D.C. 2005);
141. Doe v. Santa Clara Pueblo, 118 P.3d 203, 207 (N.M. Ct. App. 2005);
142. Ducheneaux Testimony, supra note 6 at 175 ("The concept of a Tribal-State compact was the mechanism through which the Congress attempted to resolve the two opposing extreme positions in a manner which would preserve tribal self-government, yet recognize and accommodate legitimate state interests.").
143. U.S. CONST, art. I, § 8, cl. 3;
144. see Angela R. Riley, Recovering Collectivity: Group Rights to Intellectual Property in Indigenous Communities, 18 CARDOZO ARTS & ENT. L.J. 175, 205 (2000) (describing the Indian Commerce Clause as a "grant of singular authority to Congress to regulate intercourse and trade with Indian tribes, the only minority group explicitly mentioned in the Constitution").
145. See 25 U.S.C. §§ 2701(5), 2702(1);
146. S. REP. No. 100-446, at 22-23 (1988).
147. See 25 U.S.C. § 2710(d)(1)(B) (authorizing casino-style gaming in certain states "that permit[ ] such gaming for any purpose by any person, organization, or entity").
148. See Jolly, supra note 72, at 301; Light & Rand, supra note 13, at 270;
149. Naomi Mezey, Note, The Distribution of Wealth, Sovereignty, and Culture Through Indian Gaming, 48 STAN. L. REV. 711, 713 (1996);
150. Richard A. Monette, Treating Tribes as States Under Federal Statutes in the Environmental Arena: Where Laws of Nature and Natural Law Collide, 21 VT. L. REV. 111, 132 (1996);
151. Porter, supra note 72, at 306-09;
152. Tsosie, supra note 13, at 65-66.
153. See 25 U.S.C. §§ 2701(3), 2702(3), 2704.
154. See LIGHT & RAND, supra note 5, at 44-48;
155. Grand Traverse Band of Ottawa and Chippewa Indians, 198 F. Supp. 2d 920, 933 (W.D. Mich. 2002).
156. See 25 U.S.C. § 2702(1).
157. See 25 U.S.C. §§ 2703(6), 2710(a)(1).
158. See Stewart Culin, Games of the North American Indians, in TWENTY-FOURTH ANNUAL REPORT OF THE BUREAU OF ETHNOLOGY 3, 64 (W. H. Holmes ed., 1907).
159. See Id. at 66-67.
160. See CANBY, supra note 35, at 306 ("Class I gaming is not of legal or economic significance.");
161. Mark. J. Cowan, Leaving Money on the Table(s): An Examination of Federal Income Tax Policy Towards Indian Tribes, 6 FLA. TAX REV. 345, 382 (2004) ("Such games are not regulated by the IGRA and tend to generate insignificant revenues.").
162. See 25 U.S.C. § 2703(7).
163. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 204-05 (1987);
164. LIGHT & RAND, supra note 5, at 39-43.
165. See 25 U.S.C. §§ 2710(b)(2), 2710(c)(1);
166. S. REP. No. 100-446, at 1 (1988).
167. See 25 U.S.C. § 2703(8). The National Indian Gaming Commission later promulgated a more specific definition of class III gaming. See 25 C.F.R. § 502.4 (2004).
168. See 25 C.F.R. § 502.4 (2006);
169. LIGHT & RAND, supra note 5, at 46.
170. See Raymond Cross, Tribes as Rich Nations, 79 OR. L. REV. 893, 949-50 (2000);
171. Kathryn R. L. Rand & Steven A. Light, Virtue or Vice? How IGRA Shapes the Politics of Native American Gaming, Sovereignty, and Identity, 4 VA. J. SOC. POL'Y & L. 381, 401 n.118 (1997);
172. Tsosie, supra note 13, at 79.
173. See Kevin K. Washburn, Federal Law, State Policy, and Indian Gaming, 4 NEV. L.J. 285, 290 (2004) (referencing so-called class II slot machines).
174. See 25 U.S.C. §§ 2710(d)(1)(C), 2710(d)(3).
175. See 25 U.S.C. § 2710(d)(3)(C).
176. See 25 U.S.C. § 2710(d)(1)(B).
177. See California v. Cabazon Band of Mission Indians, 480 U.S. 202, 210-11 (1987).
178. See Op. Neb. Att'y Gen. No. 02001 (2002);
179. Op. Tex. Att'y Gen. No. GA-0278 (2004).
180. See Ducheneaux Testimony, supra note 6, at 175-76 ("The problem for the negotiators [of IGRA] was how to permit the state to have a role in regulation of Indian class III gaming, which Cabazon precluded, through the requirement for a compact without placing tribes at the mercy of a state which would not act in good faith.").
181. See 25 U.S.C. § 2710(d)(3)(A).
182. See id. at § 2710(d)(7)(A).
183. See S. REP. No. 100-446, at 5-6, 18-19 (1988).
184. See United States v. Spokane Tribe of Indians, 139 F.3d 1297, 1300 (9th Cir. 1998);
185. Hearing on Review of Court Decision on Indian Gambling Before the S. Indian Affairs Comm., 104th Cong. (1996) (statement of Alex Tallchief Skibine, Professor of Law, University of Utah) [hereinafter Alex Skibine Testimony] ("Had we known that Congress could not waive the state's sovereign immunity, there is no doubt in my mind that we would have selected the Secretary of the Interior as the recourse in cases where states failed to negotiate in good faith.").
186. See 25 U.S.C. §§ 2702(3), 2704.
187. See Colo. River Indian Tribes v. Nat'l Indian Gaming Comm., 383 F. Supp. 2d 123, 132 (D.D.C. 2005) ("A careful review of the text, the structure, the legislative history and the purpose of the IGRA, as well as each of the arguments advanced by the NIGC, leads the Court to the inescapable conclusion that Congress plainly did not intend to give the NIGC the authority to issue MICS for class III gaming ....");
188. see also Ducheneaux & Taylor, supra note 13, at 34-54 (analyzing the legislative history and the text of IGRA to conclude that the NIGC lacked authority to promulgate Minimum Internal Control Standards at 25 C.F.R. § 542).
189. See Sandra J. Ashton, The Role of the National Indian Gaming Commission in the Regulation of Tribal Gaming, 37 NEW ENG. L. REV. 545, 546 (2003).
190. See Colo. River Indian Tribes, 383 F. Supp. 2d at 132.
191. See 25 U.S.C. § 2710(b);
192. Ducheneaux & Taylor, supra note 13, at 44-48 (describing how the NIGC does not have authority to promulgate Minimum Internal Control Standards at 25 C.F.R. § 542 for class II gaming).
193. See 25 U.S.C. § 2710(d)(1);
194. Ducheneaux & Taylor, supra note 13, at 44 ("Except for Commission approval of a tribal gaming ordinance for class III gaming and authority of the Commission to approve any management contract related to such class III gaming, the sole authority for regulation for that activity was to be as agreed upon in the compact.").
195. See 25 U.S.C. § 2710(d)(4).
196. See Ducheneaux & Taylor, supra note 13, at 28 (describing how IGRA answered questions about the legality of class III gaming in light of the Johnson Act, 15 U.S.C. § 1171 (2000), and quelled the state, local, and business political forces arrayed against Indian gaming by offering a federal solution).
197. See LIGHT & RAND, supra note 5, at 7-8;
198. see also Ranat, supra note 21, at 953;
199. Rand & Light, supra note 93, at 382 (describing a "tremendous boom in Indian gaming" since enactment of IGRA);
200. Cox, Gaming Enforcement, supra note 38, at D-1 ("Since IGRA's enactment in 1988, there has been a rapid growth in Indian gaming operations. Today there are 274 Indian gaming facilities owned and operated by 182 Indian tribes.").
201. See Light & Rand, supra note 13, at 282 ("The experiences of the Plains Tribes provide empirical evidence for this hypothesis, demonstrating that even modest casino profits strengthen tribal governments and preserve or enhance tribal sovereignty. Such tribes, with large memberships and little access to metropolitan markets, are unlikely to experience dramatic economic and social rejuvenation based solely on casino revenues. Yet from the tribes' perspective, casino employment and even modest revenue fund tribal strategies to overcome reservation poverty and accompanying social ills.").
202. See, e.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202, 218-19 (1987) ("The Cabazon and Morongo Reservations contain no natural resources which can be exploited. The tribal games at present provide the sole source of revenues for the operation of the tribal governments and the provision of tribal services. They are also the major sources of employment on the reservations.");
203. Artichoke Joe's Grand Cal. Casino v. Norton, 353 F.3d 712, 741 (9th Cir. 2003) ("California's regulatory scheme benefits nongaming tribes because they receive distributions from the funds that the State requires gaming tribes to allocate to the Indian Gaming Revenue Sharing Trust."), cert. denied, 125 S. Ct. 51 (2004);
204. Grand Traverse Band of Ottawa and Chippewa Indians v. United States Att'y for the W. Dist. of Mich., 198 F. Supp. 2d 920, 926 (W.D. Mich. 2002) ("In fiscal year 2001, [the casino] provided approximately 89% of the Band's gaming revenue. Revenues from the Turtle Creek Casino also fund approximately 270 additional tribal government positions, which administer a variety of governmental programs, including health care, elder care, child care, youth services, education, housing, economic development and law enforcement. The casino also provides some of the best employment opportunities in the region, and all of its employees are eligible for health insurance benefits, disability benefits and 401 (k) benefit plans. The casino also provides revenues to regional governmental entities and provides significant side benefits to the local tourist economy.") (citations to record omitted), aff'd 369 F.3d 960 (6th Cir. 2004);
205. Chemehuevi Indian Tribe v. Wilson, 987 F. Supp. 804, 808 n.4 (N.D. Cal. 1997) ("Congress recognized that for many tribes, gaming income 'often means the difference between an adequate governmental program and a skeletal program that is totally dependent on Federal funding.'") (quoting S. Rep. No. 100-446, at 2-3 (1988));
206. Cramer, supra note 70, at 596-97 ("Gaming revenues have allowed some tribes to establish or improve their own fully certified police departments; many of them are able to offer specialties such as bomb and drug-sniffing dogs and extra personnel, which are often loaned out to non-Indian police forces in the region.") (citations omitted);
207. Kolkema, supra note 23, at 367-68 ("Indian gaming is not regarded as a commercial activity. Unlike commercial activities, IGRA requires that all revenues from gaming operations be reinvested in the tribal community to further economic development.").
208. See LIGHT & RAND, supra note 5, at 108;
209. John Fredericks III, America's First Nations: The Origins, History and Future of American Indian Sovereignty, 7 J. L. & POL'Y 307, 346 (1999);
210. Kathryn R. L. Rand, There are No Pequots on the Plains: Assessing the Success of Indian Gaming, 5 CHAP. L. REV. 47, 60-64 (2002).
211. See David D. Haddock & Robert J. Miller, Can a Sovereign Protect Investors From Itself? Tribal Institutions to Spur Reservation Investment, 8 J. SMALL & EMERGING BUS. L. 173, 187-88 (2004) ("But most reservations, frequently the most impoverished, are too remote to attract many customers, so incurring sizable fixed costs for gaming operations would actually reduce tribal welfare. Thus fewer than half of the tribes participate in any gaming enterprises." (citation omitted));
212. Eric Henderson, Indian Gaming: Social Consequences, 29 ARIZ. ST. L.J. 205, 239-40 (1997) ("Like the Seneca, both the Navajo and the Hopi defeated gaming referenda. These two tribes did so,
213. S. REP. No. 100-446, at 13 (1988) (emphasis added);
214. see also AT&T Corp. v. Coeur d'Alene Tribe, 295 F.3d 899, 916 (9th Cir. 2002) (citing S. REP. No. 100-446, at 4-5);
215. Florida v. Seminole Tribe of Fla., 181 F.3d 1237, 1248 (11th Cir. 1999) (quoting S. REP. No. 100-446, at 13).
216. S. REP. No. 100-446, at 13.
217. Id.
218. See Seminole Tribe, 181 F.3d at 1239 (referring to IGRA as a "litigation-spawning juggernaut").
219. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wis. v. United States, 367 F.3d 650 (7th Cir. 2004) (rejecting tribe's claim that the gubernatorial concurrence provision of IGRA violated the Tenth Amendment);
220. Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273 (8th Cir. 1993) (rejecting State's claim that IGRA violated the Tenth Amendment);
221. Red Lake Band of Chippewa Indians v. Swimmer, 740 F. Supp. 9 (D.D.C. 1990) (rejecting tribe's claim that IGRA violated the trust responsibility of the federal government and the Fifth Amendment).
222. See Col. River Indian Tribes v. Nat'l Indian Gaming Comm'n, 383 F. Supp. 2d 123 (D.D.C. 2005).
223. See Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (9th Cir. 1994) (en bane) (Canby, C.J., dissenting from denial of reh'g en bane), amended on denial of reh'g, 99 F.3d 321 (9th Cir. 1996) (en banc), cert. denied sub nom. Sycuan Band of Mission Indians v. Wilson, 521 U.S. 1118 (1997);
224. Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Babbitt, 43 F.3d 1491 (D.C. Cir. 1995);
225. Ponca Tribe of Okla. v. Oklahoma, 37 F.3d 1422 (10th Cir. 1994);
226. Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325 (5th Cir. 1994), cert. denied, 514 U.S. 1016 (1995);
227. Wis. Winnebago Nation v. Thompson, 22 F.3d 719 (7th Cir. 1994);
228. Rhode Island v. Narragansett Tribe, 19 F.3d 685 (1st Cir. 1994), cert. denied, 513 U.S. 919 (1994);
229. Sault Ste. Marie Tribe of Chippewa Indians v. Michigan, 5 F.3d 147 (6th Cir. 1993);
230. Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273 (8th Cir. 1993);
231. Mashantucket Pequot Tribe v. Connecticut, 913 F.2d 1024 (2d Cir. 1990), cert. denied, 499 U.S. 975 (1991).
232. See, e.g., Sault Ste. Marie Tribe, 5 F.3d at 149 ("Plaintiffs have since amended their complaint and named Governor John Engler as the defendant.'').
233. See, e.g., id. at 148.
234. See Response to Petition for Writ of Certiorari 2, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (No. 94-12) ("Respondent agrees that the instant decision [11 F.3d 1016 (11th Cir. 1994)] is in direct conflict with the Eighth Circuit Court of Appeals in Cheyenne River Sioux Tribe v. South Dakota, 3 F.3d 273 (8th Cir. 1993). In the time since the filing of the Seminole Tribe's instant petition for certiorari, the Ninth Circuit Court of Appeals has rendered its opinion in Spokane Tribe of Indian v. Washington State [28 F.3d 991] (9th Cir. 1994).").
235. 517 U.S. 44 (1996).
236. See, e.g., United States v. Spokane Tribe of Indians, 139 F.3d 1297, 1298 (9th Cir. 1998) ("Following the Supreme Court's decision in Seminole Tribe, the State invoked its newfound Eleventh Amendment immunity and brought the Tribe's suit to a sudden end.").
237. See Seminole Tribe, 517 U.S. at 51 (also citing 25 U.S.C. § 2710(d)(7)(A)).
238. See id. at 52.
239. Id. at 56-57 (quoting Dellmuth v. Muth, 491 U.S. 223, 228 (1989)).
240. U.S. CONST, art. I, § 8, cl. 3.
241. See Seminole Tribe, 517 U.S. at 72-73. Congress has authority to waive the sovereign immunity of states using its authority under Section 5 of the Fourteenth Amendment and under the Interstate Commerce Clause, subject to certain limitations, See generally LAWRENCE H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 936-61 (3d ed. 2000) (Section 5);
242. id. at 807-24 (Interstate Commerce Clause).
243. See LIGHT & RAND, supra note 5, at 273-74;
244. Light et al., supra note 16, at 665;
245. Skibine, supra note 13, at 122;
246. Tsosie, supra note 13, at 66;
247. Washburn, Recurring Problems, supra note 18, at 430.
248. See 25 U.S.C. §§ 2710(a), 2710 (b) (2000).
249. Washburn, Recurring Problems, supra note 18, at 441.
250. See LIGHT & RAND, supra note 5, at 50; Light et al., supra note 16, at 665-66;
251. see also Ron M. Rosenberg, When Sovereigns Negotiate in the Shadow of the Law: The 1998 Arizona-Pima Maricopa Gaming Compact, 4 HARV. NEGOT. L. REV. 283, 294 (1999) ("In August 1998, the Salt River Pirna Maricopa Indian Community ... and the State of Arizona entered into the first post-Seminole Tribe compact in the United States.").
252. See, e.g., Jacob Viarrial, Remarks of Pojoaque Pueblo Governor Jacob Viarrial, 14 T. M. COOLEY L. REV. 533, 534 (1996) ("Our thinking was, if the Governor did not have the authority to sign the gaming compacts, then none of the other agreements that he had ever signed with us were legal either. That included any agreements where we granted the state the right to put highways through our land .... I might add that because of the road closing, the United States Attorney came back and told us that if we would agree not to close the roads, he would agree not to shut our casinos down. We could all agree to that. So we kept our casinos open.") (footnotes omitted).
253. See K. Alexa Koenig, Comment, Gambling on Proposition 1A: The California Indian Self-Reliance Amendment, 36 U.S.F. L. REV. 1033, 1036 (2002) (describing California's Proposition 1A);
254. Rosenberg, supra note 138, at 296-97 (discussing Arizona's Proposition 201).
255. See, e.g., Bryan J. Nowlin, Note, Conflicts in Sovereignty: The Narragansett Tribe in Rhode Island, 30 AM. INDIAN L. REV. 151, 161-64 (2005-2006) (discussing how state referenda were unhelpful to the Narragansett Tribe in Rhode Island).
256. See S. REP. No. 100-446, at 13 (1988) ("In the Committee's view, both State and tribal governments have significant governmental interests in the conduct of class III gaming.");
257. LIGHT & RAND, supra note 5, at 54 ("[S]tate governments began to view lotteries as well as revenue-sharing agreements with gaming tribes as new revenue sources to combat budgetary crises....");
258. see also Glenn Coin, Casinomania: A Casino in Every Neighborhood, Hope for Money in Every Coffer, POST-S TANDARD (Syracuse, N.Y.), Jan. 12, 2003, at A1 ("State legislators and the governor are betting that the largest expansion of gambling in state history will help resolve the state's fiscal crunch.");
259. Amy Lane, State Looks to Indian Casinos to Add Revenue, CRAIN'S DET. BUS., Apr. 14, 2003, at 6 (discussing how Michigan Governor Jennifer Granholm and the Michigan legislature "are looking to Michigan's American Indian tribes as potential revenue sources").
260. See supra text accompanying notes 114 & 115.
261. See, e.g., Margaret Graham Tebo, Betting on Their Future: Flush with Cash, American Indians are Laying the Creative Groundwork for New Ventures, A.B.A. J., May 2006, at 33, 36 ("For the State, it's a sweet deal. It doesn't have to make any concessions or put up any money to get a large new tax base. At Quil Ceda, for example, all the utility work ... was paid for by the tribes."). See generally Del Laverdure, Shall We Pay Taxes? Pros and Cons, Address at Turtle Mountain Community College Project Peacemaker Indian Law Summit (Aug. 1, 2005) (arguing that state and local governments benefit from tribal economic development without providing additional services, and alleging that state and local governments engage in "taxation without representation" in Indian Country).
262. See, e.g., Edison, supra note 21, at 327 ("Jacob Viarrial, governor of the Pojoaque, told lawmakers that 'revenue sharing has become a smokescreen for extortion.'") (footnotes omitted);
263. Koenig, supra note 140, at 1059-60 ("The compact tries to avoid potential illegality by expressly stating that revenue percentages were not imposed as a condition to compact negotiations (which would be extortion)....");
264. Light, et al., supra note 16, at 666 ("Without the ability to challenge a state's demand for revenue sharing in federal court under IGRA (unless, of course, the state consents to suit, as has California), the danger for tribes is that states can simply charge tribes what, in practice, amounts to a multi-million-dollar fee to conduct Class III gaming, in direct contravention to tribes' sovereign right under Cabazon and Congress's intent under IGRA.");
265. Kathryn R. L. Rand & Steven A. Light, Do "Fish and Chips" Mix? The Politics of Gaming in Wisconsin, 2 GAMING L. REV. 129, 140 (1998) [hereinafter Rand & Light, Fish and Chips] ("Wisconsin is using the compact negotiations in order to extort revenue from the tribes in return for 'allowing' them to maintain their already highly tenuous sovereignty rights.");
266. Robert B. Peacock, Lawmakers Ignore Facts in Push to Expand Gaming, DULUTH NEWS TRIB. (Minn.), Mar. 12, 2004, at 9A, available at 2004 WLNR 19227073 ("Rep. Jim Knoblach and Sen. Tom Neuville have taken the opposite approach in extorting money from the tribes by introducing legislation to outlaw all video gambling machines in the state beginning Jan. 1, 2006, 'unless the State's Indian tribes agree to renegotiate the current video gaming compacts.'");
267. Jerry Useem, The Big Gamble: Have American Indians found their new buffalo?, FORTUNE, Oct. 2, 2000, at 222, available at 2000 WLNR 7913728 ('"[The compacts] haven't been negotiated,' complained Frank Chaves, co-chairman of the New Mexico Indian Gaming Association. 'They were dictated.'").
268. See Role and Funding of the National Indian Gaming Commission: Oversight Hearing on the Indian Gaming Regulatory Act Before the S. Indian Affairs Comm., 108th Cong. 90 (2003) (prepared statement of Aurene M. Martin, Acting Assistant Secretary-Indian Affairs, Dep't of the Interior), available at http://indian.senate.gov/2003hrgs/070903hrg/martin.PDF [hereinafter Martin Testimony] ("Another consequence of the Supreme Court's 1996 decision is that more states have sought to include revenue-sharing provisions in Class III gaming compacts, resulting in a discernable increase in such provisions in the past seven years.").
269. See KATHRYN R. L. RAND & STEVEN ANDREW LIGHT, INDIAN GAMING LAW AND POLICY 153-54 (2006).
270. See Second Amendment to Tribal-State Compact Between the E. Band of Cherokee Indians and the State of N.C. ¶ 24 (Jan. 17, 2001), available at http://www.ncai.org/ncai/resource/agreements/nc_gaming-easter_band of cherokee indians_second_amendment.pdf.
271. See 25 U.S.C. § 2710(d)(3)(C)(iii) (2000).
272. See Amended and Restated Tribal-State Compact for Regulation of Class III Gaming Between the Confederated Tribes of the Grand Ronde Cmty. of Or. and the State of Or. § XXVI (Oct. 9, 2001), available at http://www.ncai.org/ncai/resource/agreements/or_gaming- confederated_tribes_of_grande_ronde.pdf.
273. See, e.g., Tribal-State Compact Between the State of Cal. and the Cabazon Band of Mission Indians § 5.1(a) (May 16, 2000), available at http://www.ncai.org/ncai/resource/agreements/ca_gaming- cabazon_band_of_mission_indians-5-16-2000.pdf;
274. A Compact between the Pokagon Band of Potawatomi Indians and the State of Michigan Providing for the Conduct of Tribal Class III Gaming by the Pokagon Band of Potawatomi Indians § 17 (Feb. 18, 1999), available at http://www.ncai.org/ncai/resource/agreements/ mi_gamingpokagon_band_of_potawatomi-12-3-1998.pdf;
275. Indian Gaming Compact between the Pueblo of Pojoaque and the State of New Mexico, Revenue Sharing Agreement ¶¶ 2-3 (Aug. 29, 1999), available at http://www.ncai.org/ncai/resource/agreements/nm_gaming- pueblo_of_pojoaque.pdf;
276. Nation-State Gaming Compact between the Seneca Nation of Indians and the State of New York ¶ 12(b)(1) (2002), available at http://www.ncai.org/ncai/resource/agreements/ny_gaming-seneca_nation-4-12-2002. pdf.
277. See generally LIGHT & RAND, supra note 5, at 69-73;
278. Light, et al., supra note 16.
279. It matters a great deal who benefits from the revenues paid out by tribes. Indian tribes that negotiate payments to the state only, such as in Connecticut, can expect local cities and counties that receive nothing to muster a political fight with the tribes. See RENÉE ANN CRAMER, CASH, COLOR, AND COLONIALISM: THE POLITICS OF TRIBAL ACKNOWLEDGMENT 160-61 (2005) [hereinafter CRAMER, CASH] (describing the political forces mobilized against Connecticut gaming tribes and against federal recognition of other Connecticut tribes). Payments to local units of government help to alleviate that political problem.
280. See Cramer, supra note 70, at 597. For example, because of the good will engendered payments to local units of government, Michigan Indian tribes such as the Grand Traverse Band of Ottawa have been better able to enter into cross-deputization agreements with local law enforcement. See Brief of Non-Federal Appellees 10 n.6, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852 (D.C. Cir. 2006) (No. 05-5206) ("[T]he [Little River Band of Ottawa Indians] have entered into cooperative law enforcement agreements with state and local governments and generated significant good will within the surrounding non-Indian communities.") (internal citations omitted).
281. See, Tribal-State Compact Between the State of California and the Hoopa Valley Tribe § 5.1(a) (May 16,2000), available at http://www.ncai.org/ncai/resource/agreements/ca_gaming-hoopa_valley_tribe-5-16- 2000.pdf.
282. Id. at § 4.3.2.1. Another example is the Coushatta Tribe of Louisiana, which pays $7 million each year to local units of government. See Tribal-State Compact for the Conduct of Class III Gaming Between the Coushatta Tribe of La. and the State of La. § 12(C)(1) (Sept. 25, 2001), available at http://www.ncai.org/ncai/recourse/agreements/la-gaming- coushatta_tribe-9-25-2001.pdf.
283. LIGHT & RAND, supra note 5, at 87 (footnote omitted).
284. See infra Parts II.B.1 and II.B.2.
285. See 25 U.S.C. § 2710(d)(3)(B) (2000).
286. Letter from Hon. Bruce Babbitt, Sec'y of Interior, to Hori. Gary E. Johnson, Governor, State of N.M., at 3 (Aug. 23, 1997), available at http://www.doi.gov/news/archives/indnmcom.html [hereinafter Babbitt Letter].
287. See id. (citing 25 U.S.C. § 2710(d)(8)(C)).
288. Id.
289. Id.
290. Id.
291. See Babbitt Letter, supra note 158, at 2.
292. Id.
293. Id.
294. Martin Testimony, supra note 146, at 2.
295. See Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 271 F. 3d 235, 237 (6th Cir. 2001) ("[T]he Seven Tribes agreed to make semi-annual payments of eight percent of the net win from their casinos' electronic games of chance, so long as the Seven Tribes collectively enjoyed the 'exclusive right to operate' those types of games within the state.").
296. See id. at 239.
297. See Letter from Gale A. Norton, Secretary of Interior, to Hon. Cyrus Schindler, Nation President, Seneca Nation of Indians (Nov. 12, 2002) [hereinafter Norton Letter].
298. See id. at 1 ("I have decided to allow this Compact to take effect without [s]ecretarial action.").
299. See id. at 3-4.
300. See id. at 4-5.
301. See id. at 4.
302. Norton Letter, supra note 169, at 5.
303. See id. at 5 (citing 25 U.S.C. § 1774).
304. See id. at 2, 5 (quoting 25 U.S.C. § 1774).
305. See 25 U.S.C. § 465.
306. See Norton Letter at 6 ("I want to emphasize, however, that the analysis regarding off-reservation land as part of a Congressionally approved settlement greatly differs from the analysis the Department engages in when the issue is simply a trust acquisition for off-reservation gaming.").
307. Id. at 2.
308. Martin Testimony, supra note 146, at 3. As former Acting Assistant Secretary of Indian Affairs Aurene Martin testified: Since taking office, Secretary Norton has raised the question whether the law provides her with sufficient discretion to approve off-reservation Indian gaming acquisitions that are great distances from their reservations, so-called "far-flung lands." This is further framed by what appears to be the latest trend of states that are interested in the potential of revenue sharing with tribes encouraging tribes to focus on selecting gaming location[s] on new lands based solely on market potential rather than exercising governmental jurisdiction on existing Indian lands. Id.
309. See, e.g., Creek Nation v. United States, 318 U.S. 629, 642 (1943) (Murphy, J., dissenting) ("We have held that the Government in its relations with the Indian tribes occupies the position of a fiduciary, that the relationship is similar to that of guardian and ward, and that the duties and responsibilities of the United States toward its wards require a generous interpretation.") (citing Choctaw Nation v. United States, 119 U.S. 1, 27, 28 (1886); Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942)); Seminole Nation v. United States, 316 U.S. at 296-97 ("In carrying out its treaty obligations with the Indian tribes the Government is something more than a mere contracting party. Under a humane and self imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards.");
310. CANBY, supra note 35, at 35 ("Some form of special relationship between the federal government and the Indian tribes was probably implicit in the decision, made immediately after the Revolution, to keep Indian affairs in the hands of the federal government as a means of protecting the tribes from the states and their citizens (thereby avoiding Indian wars).");
311. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW § 5.04[4] (Nell Jessup Newton ed., 2005); U.S. COMM'N ON CIV. RIGHTS, A QUIET CRISIS: FEDERAL FUNDING AND UNMET NEEDS IN INDIAN COUNTRY 2-6 (2003) (describing the trust responsibility as a "civil right").
312. See 25 U.S.C. §§ 2, 9 (2000).
313. See 25 U.S.C. § 13.
314. See, e.g., United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003) (relying largely on United States v. Mitchell, 463 U.S. 206 (1983) for the conclusion that the trust relationship created in Tucker Act, 28 U.S.C. § 1491 (2000), supplies a waiver of sovereign immunity and thus creates a right of action against the United States); Mitchell, 463 U.S. 206 (interpreting Tucker Act to waive sovereign immunity within the trust relationship in Indian affairs).
315. 25 U.S.C. § 2710(d)(7)(B)(vii).
316. See id.
317. See United States v. Spokane Tribe of Indians, 139 F.3d 1297, 1300 (9th Cir. 1998);
318. Alex Skibine Testimony, supra note 104.
319. See Class III Gaming Procedures, 64 FED. REG. 17535, 17536-37 (Apr. 12, 1999) (codified at 25 C.F.R. pt. 291); see also Request for Comments on Establishing Departmental Procedures To Authorize Class III Gaming on Indian Lands When a State Raises an Eleventh Amendment Defense To Suit Under the Indian Gaming Regulatory Act, 61 FED. REG. 21394 (May 10, 1996) ("The Supreme Court's Seminale decision does not affect the validity of existing class III gaming compacts, but it does require the United States to consider the effect of a State's refusal to engage in remedial litigation designed to oversee the compacting process.").
320. See Santee Sioux Nation v. Norton, No. 8:05CV147, 2006 WL 2792734 (D. Neb., Sept. 26, 2006);
321. see also Martin Testimony, supra note 146, at 2 (noting legal challenges to the Secretary's authority to promulgate the rule filed by Florida and Alabama).
322. 25 U.S.C. § 2710(d)(7)(B)(iii).
323. See Class III Gaming Procedures, 64 FED. REG. At 17537 (Apr. 12, 1999) (codified at 25 C.F.R. pt. 291).
324. See Spokane Tribe of Indians v. Washington, 28 F.3d 991, 997 (9th Cir. 1994), vacated on other grounds, 517 U.S. 1129 (1996).
325. United States v. Spokane Tribe of Indians, 139 F.3d 1297, 1301-02 (9th Cir. 1997) (citing Seminole Tribe of Florida v. Florida, 11 F.3d 1016, 1029 (11th Cir. 1994)).
326. See 64 FED. REG. at 17537 ("Nearly all of the comments from the States reiterated or expanded on comments previously submitted arguing that the Secretary lacks legal authority to promulgate these regulations.");
327. Martin Testimony, supra note 146, at 2 (identifying legal challenges filed by Florida and Alabama);
328. CONFERENCE OF WESTERN ATTORNEYS GENERAL, AMERICAN INDIAN LAW DESKBOOK 454 (Clay Smith ed., 3d ed. 2004) ("The regulation subsequently was challenged by several states....");
329. Goldin, supra note 23, at 843 ("A unilateral decision by the Secretary to dictate the parameters for tribal gaming would undermine the congressional objective that underlies IGRA.");
330. Rebecca S. Linder-Cornelius, The Secretary of Interior as Referee: The States, the Indian Nations, and How Gambling Led to the Illegality of the Secretary of Interior's Regulations in 29 C.F.R. § 291, 84 MARQ. L. REV. 685, 696 (2001) ("The Secretary's new regulations defeat the purpose of the IGRA. The clear intent of the IGRA was to bring the states into the process of tribal gaming. When the state asserts an Eleventh Amendment defense, the tribes are left with no recourse. However, in the new regulations, when a state claims it has negotiated in good faith to no avail, the only recourse it is left with is a biased factfinder who can do what it wants without any state input.");
331. Laxague, supra note 25, at 91 ("By placing the adjudication of tribal-state disputes into the hands of an official with a moral and legal duty to pursue the best interests of the tribes, the Secretary's proposed rules do both parties a disservice and badly skew the balance of interests intended by Congress when it wrote the IGRA.").
332. See Washburn, supra note 94, at 293.
333. Id. at 295.
334. Id. (footnote omitted).
335. See generally LIGHT & RAND, supra note 5, at 63-65.
336. See, e.g., Editorial, Still a Lousy Idea; "Advisory " Votes or Not, Madera Casino is a Terrible Choice, FRESNO BEE (Cal.), Aug. 27, 2005, at B8, available at 2005 WLNR 13589669 ("This project, if approved, has the potential to cause a backlash against all Indian gaming. At some point, if casinos blanket urban areas, the public might decide to allow allout Las Vegas gaming in California open to anyone, not just tribes. That would surely cut into tribal gaming revenues.");
337. A Worsening Bet; Indian Gaming a Worry for Locals, State and Feds, SAN DIEGO UNION-TRIB., July 10, 2005, at G2, available at 2005 WLNR 10889416 ("Even some tribes already well into the casino/hotel/resort business are looking askance at some newcomers' plans. They are not only competition; they are also fuel for backlash from a public already questioning where gambling saturation begins and Indian sovereignty ends.");
338. Jim Barnett, Wu Goes Against Governor, Opposes Plan for Gorge Casino, OREGONIAN (Portland, Or.), Apr. 29, 2005, at A1, available at 2005 WLNR 6744537 ('"If we permit this one in Cascade Locks, I don't see a logical stopping point,' [U.S. Rep. David] Wu, [D-Or.J said. That ultimately is harmful to the state of Oregon and to the tribes. I don't know at what point there would be a popular backlash about tribal casino gambling.'").
339. See Scott Van Voohris, "Reservation Shopping" Spurs Casino Backlash, BOSTON HERALD, Aug. 9, 2005, at 35, available at 2005 WLNR 12529798 ("A Capitol Hill backlash against tribal gambling threatens to torpedo the national expansion of Connecticut's two giant Indian casinos, Foxwoods and Mohegan Sun.");
340. Off-Rez Gaming Finds Growing List of Critics, ALBUQUERQUE J., July 2, 2005, at A8, available at 2005 WLNR 10437598 ("If off-reservation casinos are allowed to proliferate, McCain told the Associated Press, 'we're going to see a backlash against Indian gaming, because that was not the intent of the (1998 Indian Gaming Regulatory Act).'").
341. See, e.g., Jeffrey Mize, Oregon Tribal Leader Wants Ban on Off-Reservation Casinos - Cowlitz Say Foes Are "Misleading People," OREGONIAN, Nov. 10, 2005, at A1, available at 2005 WLNR 18194102 ("Citizens Against Reservation Shopping and other groups have accused the Cowlitz of trying to create a reservation near La Center solely because of its economic potential, not its historical and cultural significance to the tribe.");
342. James P. Sweeney, Proposal Would Enable Joint Casino Projects; Legislation to Add Barriers to Gaming off of Reservations, SAN DIEGO UNION-TRIB., Nov. 10, 2005, at A3, available at 2005 WLNR 18296809 ("Pombo's draft legislation would place new constraints-including a requirement for local approval - on off-reservation casinos, which have become a national controversy also known as 'reservation shopping.'").
343. A Bill to Modify the Date as of which Certain Tribal Land of the Lytton Rancheria of California is Deemed to be Held in Trust: Oversight Hearing on S. 113 Before the S. Indian Affairs Comm., 109th Cong. 5-6 (2005) (prepared statement of Sen. Dianne Feinstein), available at http://indian.senate.gov/2005hrgs/040505hrg/Feinstein.pdf [hereinafter Feinstein Testimony].
344. 25 U.S.C. §§§ 2710(a)(1), 2710(b)(1), 2710(d)(1) (2000).
345. 25 U.S.C. § 2703(4); 25 C.F.R. § 502.12.
346. See, e.g., TOMAC v. Norton, 433 F.3d 852 (D.C. Cir. 2006); City of Roseville v. Norton, 348 F.3d 1020 (D.C. Cir. 2003); Dewberry v. Kulongoski, 406 F.Supp. 2d 1136 (D.Or. 2005); Citizens Exposing Truth About Casinos v. Norton, No. 02-1754, 2004 U.S. Dist. Lexis 27498 (D.D.C., Apr. 23, 2004); Complaint, Michigan Gambling Opposition v. Norton, No. 1:05CV01181 (D.D.C. June 13, 2005).
347. See Tsosie, supra note 13, at 61.
348. The compacts have been invalidated on the theory that the state's constitution does not provide authority for the governor to negotiate and execute a compact without authorization from the legislature. See, e.g., Am. Greyhound Racing, Inc. v. Hull, 146 F. Supp. 2d 1012, 1069-79 (D. Ariz. 2001) (striking down Arizona compacts), rev'd, 305 F.3d 1015 (9th Cir. 2002); Hotel Employees and Restaurant Employees Int'l Union v. Davis, 981 P.2d 990, 1002-09 (Cal. 1999) (striking down California compacts); State ex rel. Stephan v. Finney, 836 P.2d 1169, 1183-85 (Kan. 1992) (striking down Kansas compacts); Taxpayers of Mich. Against Casinos v. Michigan, 657 N.W.2d 503, 514-17 (Mich. Ct. App. 2002) (upholding Michigan compacts), rev'd, 685 N.W.2d 221 (Mich. 2004), cert. denied, 125 S. Ct. 1298 (2005); Taxpayers of Mich. Against Casinos v. State, 708 N.W.2d 115, 121-26 (Mich. Ct. App. 2005) (striking down amendments to Michigan compacts); State ex rel. Clark v. Johnson, 904 P.2d 11, 26-27 (N.M. 1995) (striking down New Mexico compacts); Saratoga County Chamber of Commerce, Inc. v. Pataki, 798 N.E.2d 1047, 1060-61 (N.V. 2003) (striking down New York compacts); Panzer v. Doyle, 680 N.W.2d 666, 696-97 (Wis. 2004) (striking down Wisconsin compacts).
349. The Grand Traverse Band of Ottawa and Chippewa Indians sued the United States Attorney for the Western District of Michigan in 1996 to enjoin federal actions to shut down the Turtle Creek Casino. While the suit was pending, the Band was not be able to borrow money for use in support of the Turtle Creek facility except by paying much higher interest rates, stifling the Band's ability to expand its operations. Grand Traverse Band of Ottawa and Chippewa Indians v. United States Att'y., 46 F. Supp. 2d 689 (W.D. Mich. 1999); Grand Traverse Band of Ottawa and Chippewa Indians v. United States Att'y., 198 F. Supp. 2d 920 (W.D. Mich. 2002), aff'd, 369 F.3d 960 (6th Cir. 2004). See Interview with John F. Petoskey, General Counsel, Grand Traverse Band of Ottawa and Chippewa Indians (Nov. 22, 2005).
350. See, e.g., Saratoga County Chamber of Commerce, 798 N.E.2d at 1055-57; Dairyland Greyhound Park, Inc. v. Doyle, No. 01-2906, 2003 WL 24124290, at *9 (Wis. Cir. Feb. 11, 2003).
351. See, e.g., cases cited supra note 205.
352. 25 U.S.C. § 2719(a).
353. 25 U.S.C. §§ 2719(a)(1), 2719(b)(1)(A), 2719(b)(1)(B)(i)-(iii) (exceptions for lands located within or contiguous to the reservation, for secretarial and gubernatorial approval, for settlement of a land claim, for an initial reservation, and for a restored tribe or restored lands).
354. See, e.g., TOMAC, 433 F.3d 852, 856 (restoring tribe exception); City of Roseville, 348 F.3d at 1032 (restoring lands exception); Oregon v. Norton, 271 F.Supp.2d 1270, 1280 (D.Or. 2003) (restoring lands exception); Grand Traverse Band of Ottawa and Chippewa Indians, 198 F. Supp. 2d at 939-40 (restoring tribe, restoring lands exception); Citizens Exposing Truth About Casinos, 2004 U.S. Dist. Lexis 27498, at *13-*15 (restoring tribe, restoring lands exception); TOMAC v. Norton, 193 F. Supp. 2d 182, 193-94 (D.D.C. 2002) (restoring tribe, restoring lands exception); Confederated Tribes of Coos, Lower Umpqua & Siuslaw Indians v. Babbitt, 116 F.Supp.2d 155, 164 (D.D.C. 2000) (clarifying meaning of "restoration" and remanding for reconsideration of entitlement to restoration of lands exception); Sault Ste. Marie Tribe of Chippewa Indians v. United States, 78 F. Supp. 2d 699, 706-07 (W.D. Mich. 1999) (restoring tribe, restoring lands exception), vacated on other grounds, 288 F.3d 910 (6th Cir. 2002).
355. See, e.g., Keweenaw Bay Indian Cmty. v. United States, 136 F.3d 469 (6th Cir. 1998); Confederated Tribes of Siletz Indians v. United States, 110 F.3d 688 (9th Cir. 1997); Wyandotte Nation v. Sebelius, 337 F. Supp. 2d 1253 (D. Kan. 2004); Sokaogon Chippewa Cmty. v. Babbitt, 929 F. Supp. 1165 (W.D. Wis. 1996).
356. The taking of land into trust by the Secretary of the Interior is a method for expanding gaming to off-reservation areas - although one that has limited utility in the real world. This is due in part to the "rigorous" hurdle faced by the tribes in convincing the Secretary to take land into trust, and is evidenced by the small number of instances in which tribes have successfully convinced the Secretary to acquire land in trust for gaming purposes. See Letter from James E. Cason, Associate Deputy Secretary, Dept. of the Interior, to Hon. Ron Suppah, Chairman, Confederated Tribes of the Warm Springs Reservation of Oregon 1-2 (May 20, 2005) [hereinafter Cason Letter] (on file with author); Oversight Hearing on Taking Land Into Trust: Hearing before the S. Comm. on Indian Affairs, 109th Cong. 2-3 (May 18, 2005) (Prepared Statement of George T. Skibine, Acting Deputy Assistant Secretary of Indian Affairs) [hereinafter George Skibine November Testimony], available at http://indian.senate.gov/2005hrgs/051805hrg/skibine.pdf ("During [the George W. Bush] administration, the Secretary has approved eight applications to take land into trust that have qualified under these various exceptions to the gaming prohibition ...");
357. Glenn Coin, Oneida 's Request Sizeable; Tribe's Application Wants 17,310 Acres in Federal Trust, POSTSTANDARD (Syracuse, N.Y.), Nov. 13, 2005, at B1, available at LEXIS, Allnews ("It's not uncommon for the BIA to take up to 10 years to rule on trust applications, said Donald Laverdure, an Indian law professor at Michigan State University.").
358. See supra notes 1, 4-8 and accompanying text.
359. See, e.g., Trial Lobbying Matters: Hearing before the S. Comm. on Indian Affairs, 109th Cong. 1 (June 22, 2005) (statement of Amy Moritz Ridenour) (describing the lobbying activities of the Mississippi Band of Choctaw Indians), available at http://indian.senate.gove/2005hrgs/062205hrg/ ridenour.pdf.
360. See generally Plea Agreement & Attachment, United States v. Abramoff, No. 0600001 (D.D.C. Jan. 3, 2006), available at http://news.findlaw.com/hdocs/docs/abramoff/usabrmff10306plea.pdf;
361. Plea Agreement & Attachment, United States v. Scanlon, No. 05-411 (D.D.C. Nov. 17, 2005), available at http://www.indianz.com/docs/ scanlon112105a.pdf and http://www.indianz.com/docs/scanlon112105b.pdf;
362. Oversight Hearing on In Re Trial Lobbying Matters, et al: Hearing Before the S. Comm. on Indian Affairs, 109th Cong. (Nov. 2, 2005), available at http://www.gpo.gov/congress/senate/senate13ch109.html;
363. Oversight Hearing on In Re Trial Lobbying Matters, et al.: Hearing Before the S. Comm. on Indian Affairs, 109th Cong. (June 22, 2005), available at http://www.gpo.gov/congress/senate/senate13ch109.html;
364. Kathryn R. L. Rand & Steven Andrew Light, Don't Punish Tribes for Abramoff, GRAND FORKS HERALD, Jan. 18, 2006, at 1, available at 2006 WLNR 938601.
365. See Bill Marsh, In Power and Under Siege, N.Y. TIMES, Oct. 23, 2005, § 4, at 14.
366. See generally Oversight Hearing on In Re Trial Lobbying Matters, et al.: Hearing Before the S. Comm. on Indian Affairs, 109th Cong. (Apr. 27, 2005) (statement of Philip N. Hogen, Chairman, Nat'l Indian Gaming Comm.), available at http://indian.senate.gov/2005hrgs/042705hrg/hogen.pdf;
367. id. (prepared statement of Kevin K. Washburn, Associate Professor, U. of Minn. Law School), available at http://indian.senate.gov/2005hrgs/
368. Staudenmeier & Lynch, infra note 288.
369. See generally Ducheneaux & Taylor, supra note 13.
370. See Press Release, Nat'l Indian Gaming Comm'n, National Indian Gaming Commission Announces Indian Gaming Revenue for 2004 (July 13, 2005), available at http://www.nigc.gov/ReadingRoom/PressReleases/PR17072005/ tabid/163/Default.aspx (reporting $19.4 billion in revenues).
371. See S. Rep. No. 100-446, at 2 (1988) (In the hearings leading to the enactment of IGRA, "it was determined that collectively, [tribal] games generate more than $100 million in annual revenue to tribes.").
372. In fact, the last time the Committee discussed Seminale Tribe at any length appears to have been in 1996, right after the Court handed down the decision, See Hearing on Review of Court Decision: Hearing Before the S. Comm. on Indian Affairs, 104th Cong. (May 9, 1996).
373. U.S. CONST, art. I, § 8, cl. 3.
374. See supra notes 151-155 and accompanying text.
375. See National Congress of American Indians, Gaming Compacts, http://www.ncai.org/Gaming_Compacts.103.0.html (last visited Dec. 6, 2005).
376. See LIGHT & RAND, supra note 5, at 57-58 (noting the gaming compact reached by Connecticut and the Mashantucket Pequot Nation after the Nation successfully sued the State in 1989); Sault Ste. Marie Tribe of Chippewa Indians v. Engler, No. 1:90 CV 611 (W.D. Mich. Aug. 20, 1993) (stipulation for entry of consent judgment), available at http://www.michigan.gov/documents/SSM_ v_Engler_Stip_Consent_70619_7.pdf (noting the compact reached between Michigan and seven tribes as part of the settlement of a "good faith" lawsuit against the State and its governor, John Engler, in 1993).
377. In re Indian Gaming Related Cases, 331 F.3d 1094, 1112 (9th Cir. 2003).
378. See id. at 1111 (citing 25 U.S.C. § 2702(1) (2000)).
379. See Amendments to the Forest County Potawatomi Community of Wisconsin and the State of Wisconsin Gaming Compact of 199216(A) (1998), available at http://www.ncai.org/ncai/resource/agreements/wi_gaming- forest_county_potawatomi_community_amendment.pdf.
380. See Babbitt Letter, supra note 158.
381. See Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 271 F.3d 235, 237 (6th Cir. 2001).
382. See 25 U.S.C. § 2702 (2000).
383. See 25 U.S.C. § 2710(d)(3)(C) (2000).
384. See Sault Ste. Marie Tribe of Chippewa Indians v. Engler, No. 1:90 CV 611 (W.D. Mich. Aug. 20, 1993) (stipulation for entry of consent judgment), available at http://www.michigan.gov/documents/ SSM_v_Engler_Stip_Consent_70619_7.pdf.
385. See Martin Testimony, supra note 146, at 3; George Skibine November Testimony, supra note 215, at 3.
386. See Press Release, Statement of Secretary of the Interior Bruce Babbitt on the New Mexico Gaming Compacts (Aug. 23, 1997), available at http://www.doi.gov/news/archives/indnmcom.html ("The legislatively mandated compacts appear to put New Mexico tribes in an untenable situation. On one hand, they are expected to agree to a number of burdensome conditions that go well beyond the scope of any of the 161 compacts that are now approved between states and tribes in this country. On the other hand, if the tribes do not agree to these conditions or if the compacts are disapproved, existing gaming establishments may be threatened with closure, causing immediate and enormous economic hardship,").
387. See Norton Letter, supra note 169, at 2 ("I have concluded that this Compact appropriately permits gaming on the subject lands because Congress has expressly provided for the Nation to acquire certain lands pursuant to the Settlement Act.").
388. E.g., Susan Erler, Michigan Indian Tribe Protest Casino Consultant's Fee, TIMES (Munster, Ind.), Dec. 1, 2004, available at 2004 WLNR 12794117 ("In a show of protest Tuesday, Potawatomi Indian tribe members presented a mock $5 million check to a consultant whose job was to stall the tribe's planned casino in New Buffalo, Mich. Kevin Flynn had been hired as a consultant by Boyd Gaming Corp. as part of a $273.5 million agreement in 1999 for Boyd to buy Blue Chip Casino LLC. The terms of the contract called for Flynn, who'd previously been chief executive officer of Blue Chip, to be paid $5 million, in addition to a $500,000 yearly consulting fee, if the Pokagon Band of Potawatomi Indians failed to open a casino by the time the contract expired on Tuesday."); Brief of Non-Federal Appellees 4, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852 (D.C. Cir. 2006) ("This case is one of several protracted efforts by TOMAC, spanning six years, to stall or thwart Indian gaming opportunities in Michigan. In 1999, the same year TOMAC initiated its various litigation efforts to stop the Band's efforts to pursue gaming under IGRA, a large gambling company, facing competitive threats from, the Tribe's New Buffalo casino, initiated an enterprise, involving the payment of over $5 million, to delay the Tribe for five years.").
389. See generally Robert N. Clinton, Reservation Specificity and Indian Adjudication: An Essay on the Importance of Limited Contextualism in Indian Law, 8 HAMLINE L. REV. 543 (1985) (discussing the Court's tendency toward a universalist approach in Indian affairs and the benefits of a more tribal-specific approach).
390. See 25 U.S.C. §§ 2710(d)(3)(A), 2710(d)(4) (2000).
391. Norton Letter, supra note 169, at 3;
392. see also Babbitt Letter, supra note 158 (defining "substantial exclusivity" to mean "completely prohibiting] non-Indian gaming from competing with Indian gaming, or when all payments cease while the State permits competition to take place");
393. Martin Testimony, supra note 146, at 2 (noting that "substantial exclusivity" requires that a state confer a "valuable economic benefit" on the tribe and that payments to the state or local governments are "appropriate in light of the benefit conferred on the tribe").
394. Babbitt Letter, supra note 158.
395. Class III Gaming Procedures, 64 Fed. Reg. 17535, 17536 (Apr. 12, 1999) (codified at 25 C.F.R. pt. 291).
396. Id.
397. Id.
398. Id.
399. 25 U.S.C. § 2710(d)(7)(B) (2000); Class III Gaming Procedures, 25 C.F.R. § 291.2(b) (2006).
400. Class III Gaming Procedures, 25 C.F.R. § 291.3(e) (2006).
401. W. § 291.3(a).
402. Id. § 291.4.
403. Id. § 291.6.
404. W. § 291.6(b).
405. Class III Gaming Procedures, 25 C.F.R. § 291.7 (2006).
406. Id. § 291.8(b)(1).
407. Id. § 291.10.
408. Id. § 291.11.
409. Class III Gaming Procedures, 64 Fed. Reg. 17535, 17536 (Apr. 12, 1999) (codified at 25 C.F.R. pt. 291) ("The rule tracks IGRA's negotiation and mediation process, adjusted only to the extent necessary to reflect the unavailability of tribal access to Federal court where a State refuses to waive sovereign immunity.").
410. 25 U.S.C. § 2710(d)(7)(B)(iii) (2000).
411. See Class III Gaming Procedures, 64 Fed. Reg. at 17537 (Apr. 12, 1999) (codified at 25 C.F.R. pt. 291) ("The final regulation eliminates the requirement that the Secretary make a finding on the 'good faith' issue.").
412. See 25 U.S.C. §§§ 2710(d)(7)(B)(iv)-(vii) (2000); 25 C.F.R. §§ 291.10-11 (2006).
413. S. Rep. No. 100-446, at 5 (1988).
414. Id.
415. Id.
416. See id. at 6 ("The mechanism for facilitating the unusual relationship in which a tribe might affirmatively seek the extension of State jurisdiction and the application of state laws to activities conducted on Indian land is a tribal-State compact. In no instance, does [IGRA] contemplate the extension of State jurisdiction or the application of State laws for any other purpose.").
417. See 25 U.S.C. § 2719(b)(1)(A); George Skibine November Testimony, supra note 215, at 3 ("[Under § 2719(b)(1)(A)], by requiring that the Governor of the affected state concur in the Secretary's determination, the statute acknowledges that in a difference of opinion between a sovereign tribe and a state, the state prevails.").
418. 480 U.S. 202, 204-05 (1987); see also 25 U.S.C. § 2703(7)(A) (2000).
419. See Ducheneaux & Taylor, supra note 13, at 28 ("The opposing forces had pretty much concluded that they had lost the class II argument...,").
420. See 15 U.S.C. §§ 1171-1178.
421. 15 U.S.C. § 1175(a) (2000).
422. Ducheneaux & Taylor, supra note 13, at 28.
423. See id. ("Some of the tribes and their congressional supporters thought that it might be possible to include a waiver of the Johnson Act in any legislative compromise.").
424. See 25 U.S.C. §2710(d)(6) (2000).
425. Id. at 29.
426. S. Rep. No. 100-446, at 6 (1988).
427. Id. at 13.
428. Id.
429. See id. at 13-14.
430. See Martin Testimony, supra note 146, at 2.
431. Ducheneaux & Taylor, supra note 13, at 29.
432. See supra notes 24-25 and accompanying text.
433. See S. Rep. No. 100-446, at 33 (1988). See generally 151 CONG. REC. S13389 (daily ed. Nov. 18, 2005) (statement of Sen. McCain).
434. "Lost revenue" refers to tax revenue that states and local units of government expected to generate but for the rights and expressions of sovereignty by tribal governments. See, e.g., Fred Grimm, Jeb Should've Told Seminoles to Deal Us In, MIAMI HERALD, June 21, 2005, at B1, available at 2005 WLNR 23048561 ("Some seven years (and $1.6 billion in lost revenue) later, Gov. Bush is going into negotiations with a Seminole operation that now takes in a billion dollars a year - a quarter of that pure, sweet profit. Those profits aren't being taxed. Nor does the casino open its books to state auditors or allow pesky state bureaucrats to regulate their games.");
435. Editorial, Broad Casino Opposition, GRAND RAPIDS PRESS (Mich.), June 19, 2005, at D12, available at 2005 WLNR 9811533 ("Kalamazoo's Economic Development Corporation and the Grand Rapids Chamber of Commerce oppose the casino because of the negative economic impact it will have on West Michigan. This 'big hurt' will be especially severe in the surrounding counties - particularly Kalamazoo and Kent - which will be the biggest losers due to lost jobs, lost productivity and lost revenue.").
436. Contra Tom Wilemon, Indians Face Steep Odds, Says Keynoter; Former Senator Rails Against Schwarzenegger, SUN HERALD (BILOXI, MISS.), May 5, 2005, at A1, available at 2005 WLNR 22894375 ("[Ben Nighthorse] Campbell expressed his displeasure at having read in newspaper accounts comments about Indians 'not paying their fair share' or 'ripping us off.' 'I would say that's a comment made by somebody who has just got off the boat and doesn't understand the history of what has happened to Indians in California,' Sen. Campbell said. 'They paid for their lifestyle in blood, lost relatives, millions of acres of lost land, untold billions of dollars in lost revenue from what's under the land - oil, gas, coal and so on.... They've paid their dues, Mr. Schwarzenegger.'").
437. See LIGHT & RAND, supra note 5, at 70.
438. See Jessica Durkin, Foxwoods Reaches Milestone; It Has Sent More Than $2 Billion to State, NORWICH BULL. (Conn.), Feb. 16, 2005, at A1 ("The billions may be good news for Hartford and the tribe, but officials from locally affected towns are fighting for a larger share of the slot take. They maintain the two host towns of Montville and Ledyard and three 'impact' towns of Norwich, Preston and North Stonington are not getting a fair distribution of revenue from the highly successful gambling venues outside their back door.").
439. See supra note 152.
440. Heidi McNeil Staudenmeier & Andrew D. Lynch, The Class II Gaming Debate: The Johnson Act vs. the Indian Gaming Regulatory Act, 74 MISS. L.J. 843 (2004).
441. See 25 U.S.C. § 2710(d)(1)(B) (2000); Rumsey Indian Rancheria of Wintun Indians v. Wilson, 64 F.3d 1250 (9th Cir. 1994), reh'g denied, 99 F.3d 321 (1996) (holding that where the State does not permit other forms of gambling, it need not negotiate gaming compacts with Indian tribes).
442. See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
443. See 25 U.S.C. §2710(b)(1) (2000).
444. See, e.g., Seneca-Cayuga Tribe of Okla. v. Nat'l Indian Gaming Comm'n, 327 F.3d 1019, 1025 (10th Cir. 2003) ("The video screen depicts a grid that is similar in appearance to that of a slot machine."); United States v. Santee Sioux Tribe of Neb., 324 F.3d 607, 610 (8th Cir. 2003) ("At trial, the following evidence was adduced regarding the Lucky Tab II machines. First, the instruments look and sound very much like traditional slot machines.").
445. Washburn April Testimony, supra note 220, at 9-10.
446. See, e.g., Hearing on Review of Court Decision on Indian Gambling Before the S. Comm. on Indian Affairs, 104th Cong. 364 (1996) (prepared statement of W. Ron Allen, President, National Congress of American Indians) ("The Seminale decision will have significant impacts on the conduct of Indian gaming in the short run.").
447. See PAUL PASQUARETTA, GAMBLING AND SURVIVAL IN NATIVE NORTH AMERICA 163-64 (2003) ("Working within a system that was largely devised to confine, limit, and destroy them, [Indians] have found ways to reclaim lost territories, position themselves in politically advantageous ways, and resist outside dominance.... [I]t is important to recognize that gambling is not simply a pathological response to perceived powerlessness, but a natural human response to the inherent chaos of living."); Rand & Light Testimony, supra note 6, at 9 ("A gaming tribe simply is not Enron, nor is it MGM Mirage or Harrah's Entertainment.").
448. See, e.g., Grand Traverse Band of Ottawa and Chippewa Indians v. U. S. Att'y for the W. Dist. of Mich., 198 F. Supp 2d 920, 926 (W.D. Mich. 2002), aff'd, 369 F.3d 960 (6th Cir. 2004).
449. See S. REP. No. 100-446, at 13 (1988) ("A tribe's governmental interests include raising revenues to provide governmental services for the benefit of the tribal community and reservation residents....").
450. See 25 U.S.C. § 2702(1) (2000) (naming Indian gaming "as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments").
451. Cf. Rand & Light Testimony, supra note 6, at 7 ("That Native Americans have assumed such a prominent place in non-tribal public and policy discourse is almost entirely an artifact of Indian gaming.").
452. See Washburn, supra note 94, at 295.
453. See id.
454. See Rand & Light Testimony, supra note 6, at 13 (noting that "some 30 states and myriad non-tribal communities have [benefited from]" Indian gaming).
455. See Light et al., supra note 16, at 658 ("But Indian gaming's beneficiaries are not limited to tribes; non-tribal jurisdictions benefit from tribal casinos, as well. On balance, states with Indian gaming operations, as well as the numerous non-reservation communities located near tribal casinos, have realized extensive economic and social benefits from tribal gaming operations, ranging from increased tax revenues to decreased public entitlement payments to the disadvantaged. Tribal gaming assists states by promoting economic development in underdeveloped rural areas while leveraging growth and development in surrounding non-tribal communities.").
456. See, e.g., Letter from Michael Oltersdorf, Sheriff, Leelanau County, Mich, to George Bennett, Chairman, Grand Traverse Band 1-2 (Sept. 1, 1998), available at http://www.ncai.org/ncai/resource/agreements/ Leelanau%20County%20Sheriff's%20Office%20letter%20Sept.%201,%201998.pdf (noting positive cooperation with tribal police department).
457. See LIGHT & RAND, supra note 5, at 83-85.
458. See Washburn, supra note 94, at 293.
459. See infra text accompanying notes 342-346.
460. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); see also cases cited infra note 317.
461. See generally HERMAN SCHWARTZ, The States' Rights Assault on Federal Authority, in THE REHNQUIST COURT: JUDICIAL ACTIVISM ON THE RIGHT, 155 (2002); DAVID H. GETCHES, Beyond Indian Law: The Rehnquist Court's Pursuit of States' Rights, Color-Blind Justice and Mainstream Values, 86 MINN. L. REV. 267 (2001); DAVID H. GETCHES, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 CAL. L. REV. 1573 (1996).
462. See, e.g., Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005).
463. See supra note 23 and accompanying text.
464. See supra note 24 and accompanying text.
465. Cf. Donohue, supra note 24, at 325 ("A repeal of IGRA may well result in courts returning to the pre-IGRA Cabazon prohibitory/regulatory test, in which case any state that allows any form of gambling, including state lotteries, will be deemed regulatory and thus unable to regulate or prohibit Indian gaming.").
466. See supra note 25 and accompanying text.
467. See supra note 23 and accompanying text.
468. See Oversight Hearing on Indian Gaming: Regulation of Class III Gaming Hearing Before the S. Comm. on Indian Affairs, 109th Cong. 13-22 (2005) (prepared statement of Kevin K. Washburn, Associate Professor, U. of Minn. Law School); Washburn April Testimony, supra note 220.
469. See, e.g., Citizens for Safer Cmtys. v. Norton, 541 U.S. 974 (2004); Nance v. Envtl. Prot. Agency, 645 F.2d 701, 716 (9th Cir. 1981), cert, denied sub nom.; Crow Tribe of Indians, Mont. v. Envtl. Prot. Agency, 454 U.S. 1081 (1981); Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wis. v. United States, 259 F. Supp. 2d 783, 798-99 (W.D. Wis. 2003), aff'd, 367 F.3d 650 (7th Cir. 2004), cert, denied, 125 S. Ct. 878 (2005); Carcieri v. Norton, 290 F. Supp. 2d 167, 189-90 (D.R.I. 2003), aff'd, 432 F.3d 45 (1st Cir. 2005); City of Roseville v. Norton, 219 F. Supp 2d 130, 153-54 (D.D.C 2002), aff'd, 348 F.3d 1020 (D.C. Cir. 2003), cert, denied sub nom.
470. See, e.g., Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Blatchford v. Native Village of Noatak and Circle Village, 501 U.S. 775, 787-88 (1991).
471. See, e.g., S. REP. No. 100-446, at 11 (1988) ("There are five States (Arkansas, Hawaii, Indiana, Mississippi, and Utah) that criminally prohibit any type of gaming, including bingo.").
472. See Jane Gordon, Experts Doubt Repeal Can Hold, N.Y. TIMES, Jan. 12, 2003, § 14 (Connecticut), at 5 ("'What Connecticut has done is try to close the door after all the horses have escaped,' said Nell Jessup Newtown, dean of the University of Connecticut School of Law and an authority on Indian law. 'The great state of Connecticut permits such gaming by an entity or organization, for any purpose. If we didn't have any tribes or the casinos and they had repealed the Las Vegas Nights ordinance earlier, the game would be over. But they didn't repeal it when they had the chance.'").
473. See Goldin, supra note 23, at 843-44.
474. Id. at 843.
475. Id. at 843-44 (quotation marks and footnote omitted).
476. Id. at 844 (quotation marks, footnote, and brackets omitted).
477. Id. (quotation marks and footnote omitted).
478. Goldin, supra note 23, at 843.
479. See 25 U.S.C. § 2702(1) (2000).
480. Some courts and commentators have asserted that a critical element of congressional intent in passing IGRA was to slow or halt the spread (or proliferation) of Indian gaming. See Ponca Tribe of Okla. v. State of Okla., 37 F.3d 1422, 1425 (10th Cir. 1994), vacated, 517 U.S. 1129 (1996); Texas v. Ysleta del sur Pueblo, 220 F. Supp. 2d 668, 681 n.6 (W.D. Tex. 2001); Goldin, supra note 23, at 824 n.200. However, this is the minority view and has not been upheld by a court of last resort. See, e.g., Grand Traverse Band of Ottawa and Chippewa Indians v. U.S. Att'y for the W. Dist. of Mich., 198 F. Supp. 2d 920, 933 (W.D. Mich. 2002) (rejecting State of Michigan's argument that the purpose of IGRA was to "limit the proliferation of casinos"), aff'd, 369 F.3d 960 (6th Cir. 2004).
481. See generally RAND & LIGHT, supra note 147 at 117 (noting that state regulation of tribal gaming varies).
482. E.g., A Compact Between the Grand Traverse Band of Ottawa and Chippewa Indians and the State of Michigan Providing for the Conduct of Tribal Class III Gaming by the Grand Traverse Band of Ottawa and Chippewa Indians § 8 (1993) (providing that the following notice be placed in every tribal casino: "THIS FACILITY IS NOT REGULATED BY THE STATE OF MICHIGAN"), available at http://www.michigan.gov/documents/GTB_Compact_70613_7.pdf.
483. See 25 U.S.C. § 2710(d)(8)(B)(i) (2000).
484. Id.
485. Id. § 2710(d)(l)(B).
486. See, e.g., Joint Letter from Hon. Theodore R. Kulongowski, Governor, State of Or., and Ron Suppah, Chairman, Confederated Tribes of Warm Springs Reservation of Or., 1-2 (May 12, 2005) [hereinafter Kulongowski & Suppah Letter] (on file with author) (noting that the Secretary asked the State of Oregon and the Confederated Tribes of the Warm Springs Reservation for the legal basis to conduct class III gaming in Oregon, to which the parties responded).
487. See generally 25 C.F.R. Part 291.
488. See Cobell v. Norton, 240 F.3d 1081, 1110 (D.C. Cir. 2001) ("The Interior Department has failed to discharge the fiduciary duties it owes to [Individual Indian Money trust account] beneficiaries for decades.").
489. See Norton Letter, supra note 169.
490. See Sen. Johnson Meets with Bureau of Indian Affairs Nominee, U.S. FED. NEWS, Sept. 13, 2006, available at 2006 WLNR 15938122 ("The assistant Secretary position to which Mr. Artman is nominated has been vacant for the past 18 months following the departure of Dave Anderson. 'It's been nearly two years since someone has held this postfar too long. We need someone in place that will keep the lines of communication open and consult with our tribes,' Johnson said,").
491. See, e.g., U.S. Gov't Accountability Office, BIA's Efforts to Impose Time Frames and Collect Better Data Should Improve the Processing of Land in Trust Applications, GAO-06-781, at 46-49 (July 2006) (listing dozens of non-gaming-related fee-to-trust applications in which the Bureau of Indian Affairs took more than a year to process).
492. See Brief of Non-Federal Appellees 10 n.6, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852 (D.C. Cir. 2006).
493. See generally National Congress of American Indians, Tribal-State Relations, http://www.ncai.Org/State-Tribal_Relations.92.0. html (last visited December 7, 2005) (providing links to numerous agreements between Indian tribes and states and local governments).
494. See Oversight Hearing Before the S. Comm. on Indian Affairs on Section 20 of the Indian Gaming Regulatory Act, 109th Cong. 225-33 (2005) (prepared statement of George T. Skibine), Acting Deputy Assistant Secretary-Indian Affairs for Policy and Economic Development, Department of the Interior.) [hereinafter George Skibine July Testimony].
495. See 25 U.S.C. § 465 (2000); George Skibine July Testimony, supra note 342, at 1.
496. See 25 U.S.C. § 2719(a) & (b) (2000); George Skibine July Testimony, supra note 342, at 1-2 (identifying five effective exceptions contained within the statute).
497. George Skibine July Testimony, supra note 342, at 2.
498. Id. at 3.
499. See 151 CONG. REC. S13389-90 (daily ed. Nov. 18, 2005) (statement of Sen. McCain).
500. A Bill to Amend the Indian Gaming Regulatory Act to Restrict Off-Reservation Gaming, and For Other Purposes, H.R., 109th Cong. § 1 (Discussion Draft 2005).
501. See LIGHT & RAND, supra note 5, at 1-2 (describing how Indian gaming operations are depicted in television shows such as The Simpsons, South Park, The Sopranos, and Malcolm in the Middle); Rand & Light Testimony, supra note 6, at 7 ("Indian gaming and 'casino Indian' imagery have become a phenomenon widely visible in popular culture, the mass media, and the discourse used by public policymakers.").
502. See, e.g., Jörg Blech, The Benefits of Becoming Indian, DER SPIEGEL, Jan. 16, 2006, http://www.spiegel.de/ international/Spiegel/0,1518,395703,00.html (describing Indian gaming as occurring through a "loophole"); Carolyn Jones, Legislator Seeks State Probe of Casino's Bingo Machines, S.F. CHRON., Sept. 6, 2005, at B3, available at 2005 WLNR 14089440 (referring to tribes that use class II technological aids as exploiting a loophole); Rick Aim, Point, Counterpoint: Let Kansas Voters Decide, KAN. CITY STAR (MO.), July 12, 2005, at D17, available at 2005 WLNR 22828732 (asserting that Kansas tribes, in their attempts to begin off-reservation gaming operations, are exploiting a loophole); William E. Schmidt, Bingo Boom Brings Tribes Profit and Conflict, N.Y. TIMES, Mar. 29, 1983, at Al, available at 1983 WLNR 499339 ("[T]he multimillion-dollar boom in bingo has increasingly brought the Indians into direct conflict with a variety of law-enforcement agencies off the reservation. The authorities say the tribes are taking advantage of loopholes in state and Federal law to run unregulated gambling operations.").
503. E.g., CRAMER, CASH, supra note 152, at 105 (describing the phenomenon of "Rich Indian Racism"); Rand & Light Testimony, supra note 6, at 7 ("Somewhat incongruously, [tribal governments] are accused of being too naïve or inexperienced to realize their own best interests, easily corruptible, guilty of seeking to influence the political system to their own benefit, and out for 'revenge.'"); Matt Assad, One City's Jackpot is Neighbor's Bust; Decade of Casinos Shows Host Town in Iowa Reaps Benefits but Region Shares in Gambling's Woes, ALLENTOWN MORNING CALL (Pa.), Nov. 6, 2005, at Al, available at 2005 WLNR 18002139 ("'That's what they do,' said Pat Loontjer, who directs an Omaha-based group, whose members include the likes of Warren Buffett, that has worked to keep gambling out of Nebraska. 'They get their foot in the door by claiming it's family entertainment, and then they expand, expand and expand to feed their greed.'").
504. See CRAMER, CASH, supra note 152, at 105-07.
505. See REINHOLD NIEBUHR, MORAL MAN AND IMMORAL SOCIETY: A STUDY IN ETHICS AND POLITICS xv (1932) (Charles Scribner's Sons ed. 1952) ("Contending factions in a social struggle require morale; and morale is created by the right dogmas, symbols and emotionally potent oversimplifications. ").
506. Cf. Rand & Light Testimony, supra note 6, at 9 ("Sovereignty, in the minds of many Americans, simply means unearned money for tribal members."); Memorandum from John G. Roberts to Fred R. Fielding 1 (Nov. 30, 1983) (on file with author) (referring to a bill restoring lands to the Las Vegas Paiute tribe and asserting that "[t]his bill essentially does nothing more than take money from you, me, and everyone else and give it to 143 people in Nevada (about $10,000 each), simply because they want it.").
507. Cf. Cramer, supra note 70, at 598 (noting that "[t]he availability of gaming financing for petitioning groups leads to gross oversimplifications about acknowledgment.").
508. See Worthington v. City Council of City of Rohnert Park, 31 Cal. Rptr. 3d 59, 61 (Cal. Ct. App. 2005).
509. Id. at 63.
510. See Worthington, 31 Cal. Rptr. 3d at 64 ("We emphasize that the issues to be determined in this appeal do not concern the wisdom of allowing Indian gaming in or near California cities or the advisability and ramifications of building a casino and resort complex at the designated location in Sonoma County. These actions undeniably raise emotional issues that have resulted in heated debate and political action throughout the state.") (citation omitted).
511. See Jim Doyle, Backlash on Betting: Californians Have Second Thoughts About Gambling, S.F. CHRON., Oct. 24, 2004, at El, available at 2004 WLNR 7628993 ("Four years after California voters gave the green light to Nevada-style casinos on Indian land, signs of a backlash are forming. Some question whether we're barreling too hard and too fast down the one-lane blacktop to Las Vegas.").
512. See Jim Doyle, Vegas Firm With a History of Fines Has Big Plans for Indian Casinos, S.F. CHRON., Mar. 28, 2005, at Al, available at 2005 WLNR 4821406.
513. Editorial, Gambling, Gambling Everywhere, S.F. CHRON., May 30, 2004, at E4, available at 2004 WLNR 7642222.
514. See generally Cason Letter, supra note 215; Kulongowski & Suppah Letter, supra note 334.
515. Kulongowski & Suppah Letter, supra note 334, at 5.
516. See id. at 1 ("The Compact represents good faith compromises reached after long and productive negotiations between the parties."); id. at 5 ("[T]he Governor has indicated his intention to concur in the taking into trust for gaming purposes ... land not currently held in trust.").
517. Jeff Kosseff, Tribes Buy Into Political Process, OREGONIAN (PORTLAND), May 9, 2005, at A01, available at 2005 WLNR 7337479.
518. See Editorial, Opinion-In Our View: Make No Gorge Deal; Oregon Governor Should Take a Stand: No Tribal Casinos on Nontribal Land, COLUMBIAN (Vancouver, Wash.), May 29, 2005, at C, available at 2004 WLNR 11724314 ("[I]f Oregon Gov. Ted Kulongowski allows the Warm Springs Indians to put a casino on nontribal land at Cascade Locks, Ore., the Yakama Indians could seek to build a casino on the Washington side. Then the Umatillas and the Nez Perce could join the fun with requests to build casinos along Interstate 84. Think of the marketing possibilities: 'Casinos in the Scenic Area'[;] 'Gambling in the Gorge'[;] 'Four Places to Make a Fortune between Beacon Rock and Biggs.'").
519. See Feinstein Testimony, supra note 202, at 6.
520. See James P. Sweeney, Off-reservation Gambling Limited by Interior Policy, SAN DIEGO UNION-TRIB., May 30, 2005, at Al, available at 2005 WLNR 8666297 ("The [Department of the Interior] will no longer consider gambling agreements for sites that are not Indian lands held in trust for a tribe by the federal government...."); Cason Letter, supra note 215, at 2 ("Only after the Tribes have acquired the Cascade Locks Land into trust, will the Department consider the terms and conditions of a timely submitted compact pursuant to the applicable provisions of IGRA.").
521. See George Skibine November Testimony, supra note 215, at 2.
522. See 25 U.S.C. § 2719(b)(l)(A) (2000).
523. See 151 CONG. REC. S13389-90 (daily ed., Nov. 18, 2005) (statement of Sen. McCain).
524. Senator McCain's most recent proposal would "eliminat[e] the authority of the Secretary to take land into trust off-reservation pursuant to the so-called 'two-part determination' provisions of Section [2719(b)(l)(A)l" Id. at S13390.