Federal Law, State Policy, and Indian Gaming

This Article will set forth the legal authorization and the economic success of Indian gaming by asking and answering two rhetorical questions: What makes Indian gaming lawful? and What makes Indian gaming successful? This Article will conclude with the observation that Indian gaming exists almost entirely at the mercy of state governments. It will argue that, while Indian gaming began as a cross-border issue, it no longer has those features. Indeed, it has been transformed into the very antithesis of a cross-border issue, a political issue that is addressed almost entirely in the sphere of state political processes. The issue no longer spans borders, but is an internal state political issue. This Article will then explain the ramifications of this transformation both for federal Indian law and policy and for those who wish to study the development and resolution of cross-border problems

Lara, Lawrence, Supreme Court Litigation, and Lessons from Social Movements

United States v. Lara was hailed as a victory for Indian tribes because it upheld tribal criminal jurisdiction over non-member Indians. Lawrence v. Texas was hailed as a victory for the gay rights movement because it upheld the due process right of gays to be protected from criminal prosecutions for consensual sexual acts done in private within their own homes. Despite dramatically different contexts, the two cases share a common thread: both are cases in which interested groups achieved important successes by marshalling broad support for their arguments at the briefing stage which helped pave the way for Supreme Court victory. In a series of recent articles William Eskridge has documented the development of constitutional legal strategies during the past century by the gay rights movement, as well as the civil rights movement and the women\u27s rights movement, and has evaluated their successes. This article will summarize some insights from Professor Eskridge and evaluate how and whether Indian tribes can adapt successful legal strategies of the gay rights movement or other social movements

Federal Criminal Law and Tribal Self-Determination

Under the rubric of tribal self-determination, federal policymakers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according to critics, because the crime rate is worse for American Indians than any other ethnic group. The failure to embrace self-determination in federal Indian country criminal justice is curious. Criminal law has a central role in shaping and expressing community values and identity. And a community that cannot create its own definition of right and wrong cannot be said in any meaningful sense to have achieved true self-determination. Tracing the history of the century-old Indian Major Crimes Act, it is clear that the Act\u27s original purposes, increasing federal control and encouraging assimilation, are aimed at colonization and lack legitimacy in the modern era. Since the 1960s, mainstream federal Indian policy has become much more enlightened and the Major Crimes Act has become an embarrassing anachronism. Tribal self-determination strategies in criminal justice could help tribes get closer to true self-determination and help Indian country recover from the current criminal justice crisis

Agency Pragmatism in Addressing Law’s Failure: The Curious Case of Federal “Deemed Approvals” of Tribal-State Gaming Compacts

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States Supreme Court held part of IGRA unconstitutional in 1996, the Secretary declined to issue an affirmative approval or disapproval on more than seventy-five occasions—thus, allowing a compact to become approved by operation of law—but has simultaneously issued a letter setting forth legal objections to aspects of the compact. The Secretary’s creative response to a broken regulatory scheme appears to be unique, and it raises interesting questions about how the executive branch should behave in the face of legal uncertainty. It raises questions of administrative law, such as whether the Secretary’s non-action is reviewable as agency action under the Administrative Procedure Act (APA), whether the Secretary’s letter is entitled to deference, and if so, what level of deference. It also raises important questions about whether such action constitutes good policy. This Article examines some of those questions