Indian Gaming Regulatory Act: Gaming on Indian Lands
November 3, 2023
Indian Gaming Regulatory Act: Gaming on Indian Lands
Overview
Land can be taken into trust through the land into trust (or
Under the U.S. Constitution, Congress has broad power
fee-to-trust) process, which is carried out by the
over tribal affairs, including gaming on tribal lands. In the
Department of the Interior (DOI) under 25 C.F.R. §151. A
1970s, some federally recognized tribes established bingo
tribe may petition DOI to take land into trust on its behalf.
gaming operations to raise funding for tribal government
Congress can pass laws that require DOI to accept a
operations. At that time, there was no statutory framework
specific parcel of land into trust (mandatory acquisition) or
specifically governing tribal gaming. State governments
may permit DOI to take land into trust (discretionary
sought to regulate tribal gaming under state gaming laws,
acquisition) for a particular tribe or tribes. If the proposed
but courts were divided over whether tribal gaming was
trust land acquisition’s stated purpose is gaming, DOI’s
within state or federal jurisdiction. (Gaming and gambling
Bureau of Indian Affairs (BIA) processes the application
are used synonymously in this In Focus.) In 1987, the
concurrently with DOI’s Office of Indian Gaming.
Supreme Court held that once a state has legalized any form
of gambling, tribes within that state can offer the same
IGRA Exceptions That Allow Gaming on
game on tribal land held in trust by the United States
Newly Acquired Tribal Trust Lands
without any state regulation (see California v. Cabazon
IGRA generally prohibits gaming activities on lands taken
Band of Mission Indians, 480 U.S. 202 (1987)). In 1988,
into trust after October 17, 1988, unless the proposed lands
Congress enacted the Indian Gaming Regulatory Act
meet certain conditions (25 U.S.C. § 2719). In general,
(IGRA, P.L. 100-497, 25 U.S.C. §§2701–2721), to regulate
gaming may occur if the tribe had a reservation on October
gaming on tribal land without disrupting the Supreme
17, 1988, and the newly acquired lands are located within
Court’s holding in Cabazon. As of 2023, over 200 tribes
or contiguous to (i.e., sharing a border with) that
own, operate, or license more than 500 gaming
reservation. Alternatively, gaming may occur if the tribe did
establishments in 29 states. This In Focus describes IGRA’s
not have a reservation on October 17, 1988, and
key provisions, issues with the law, and possible options for
Congress.
• if the newly acquired lands are in Oklahoma, the lands
are contiguous to other land held in trust or restricted
IGRA’s Gaming Classes
status, or located within the tribe’s last reservation; or
Among other things, IGRA and its implementing
regulations authorize three classes of gaming activities:
• if the newly acquired lands are not in Oklahoma, the
lands are within the tribe’s last reservation in the state or
• Class I gaming, social gaming with minimal prizes and
states in which the tribe is now located.
traditional Indian gaming;
The IGRA exceptions to this rule include the following:
• Class II gaming, including bingo and “non-banking card
games”; and
Secretarial Determination Exception. This exception
allows gaming on new trust land if the Secretary
• Class III gaming, comprising all other games, including
determines, with the state governor’s concurrence, that the
casino games.
acquisition for a gaming establishment
The degree of federal and state involvement in tribal
• is in the best interest of the tribe; and
gaming activities varies with each gaming class. The
National Indian Gaming Commission (NIGC)—the federal
• is not detrimental to the local community.
Indian gaming regulatory body created by IGRA—regulates
Class II gaming and some aspects of Class III gaming.
“Settlement of a Land Claim” Exception. This exception
IGRA requires Class III gaming to be regulated through
allows gaming on new trust land if that land is acquired as
compacts between tribes and states with approval from the
part of a tribal land claim settlement. These settlements can
Secretary of the Interior (Secretary).
be (1) enacted in legislation, (2) ordered by a court, or
(3) part of agreements where the United States is a party
Indian Lands Under IGRA
(25 C.F.R. §292.5).
Under IGRA, tribes may conduct gaming activities on
various types of “Indian lands.” IGRA’s definition of
Initial Reservation Exception. This exception allows
Indian lands is not tied to a tribe’s location in any particular
gaming on new trust land if the land was acquired as part of
state but to the land’s status as reservation, trust, or
an initial reservation for a newly recognized tribe. Under 25
restricted-fee land, and the tribe’s jurisdiction over that land
C.F.R. §292, the following conditions must be met:
(25 U.S.C. §2703).
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Indian Gaming Regulatory Act: Gaming on Indian Lands
• the tribe must have been federally recognized (or
connection to the tribe). For example, under the Tribal
acknowledged) through DOI’s Federal
Gaming Eligibility Act (S. 477, 113th Congress), the
Acknowledgment Process under 25 C.F.R. §83;
Interior Secretary would have to determine that a tribe has
“a substantial, direct, modern connection to the land”
• the tribe must have no gaming facility on lands under
proposed for gaming and “a substantial, direct, aboriginal
the IGRA restored lands exception; and
connection to the land.” Some non-tribal entities, such as
the American Gaming Association, have supported the
• the land must be the first-proclaimed reservation after
limitation on off-reservation gaming. For example, in W.
DOI’s acknowledgment.
Flagler Assocs., Ltd. v. Haaland, 71 F.4th 1059 (D.C. Cir.
2023), non-tribal gambling operators asserted that a
Restored Lands Exception. This exception allows gaming
compact between Florida and the Seminole Tribe of Florida
on new trust land if the land was acquired as part of the
violated IGRA by authorizing sports betting occurring off
restoration of lands for a tribe restored to federal
tribal lands (through mobile sports wagers using servers
recognition after termination during the Termination Era.
located on tribal lands within Florida). The U.S. Court of
During the 1950s and 1960s, federal policy focused on
Appeals for the D.C. Circuit concluded that the challenged
disestablishing reservations, diminishing tribal sovereign
compact provisions did not violate IGRA because they
authority, and ending the federal recognition of tribes.
merely discussed, but did not authorize, gaming off tribal
lands, and that offsite gambling was instead authorized by
Tribes may send requests for opinions on whether a
state laws that were not challenged before the court.
particular trust parcel meets one of the exceptions to DOI’s
Office of Indian Gaming. When the proposed gaming lands
Internet/Mobile Gaming. Congress may consider
are already in trust status, DOI regulations instruct the
addressing tribal gaming activities, such as online gaming,
applicant to contact NIGC (25 C.F.R. §292).
that have emerged since IGRA’s enactment. The National
Congress of the American Indians has asserted that IGRA
Issues and Options for Congress
and existing tribal-state compacts should be protected in
Some Members of Congress view IGRA as representing a
any new tribal gaming legislation. In 2006, Congress passed
delicate balance between many interests in the conduct of
the Unlawful Internet Gambling Enforcement Act (P.L.
gaming. On one hand, gaming is viewed “as a means of
109-347), which allowed states and tribes to permit internet
generating needed tribal revenues and employment,” while
gambling within their borders if they apply certain
on the other hand, it raises concerns for federal, state, and
safeguards. In 2022, DOI published a rule which included
tribal governments about issues such as preventing criminal
proposed language clarifying that a compact may include
activity (S.Rept. 114-199). In recent years, Congress has
provisions allocating jurisdiction to address statewide
passed legislation prohibiting gaming on some tribal lands.
remote wagering or internet gaming (25 C.F.R. §293.29). In
For example, the Pala Band of Mission Indians Land
addition, IGRA permits the use of electronic, computer, or
Transfer Act of 2023 (P.L. 118-11) prohibited gaming on
other technological aids in connection with Class II games
lands transferred into trust by the act. Several Members
(25 U.S.C. §2703(7)(A)(i)). NIGC regulations establish
spoke in favor of the gaming prohibition, arguing that it
minimum technical standards for using these aids, but only
allowed tribes to enjoy their “sacred land” without
on a case-by-case basis (25 C.F.R. §547). Congress could
disruption from any gambling operations.
consider imposing a national standard.
Jurisdiction. Congress continues to express an interest in
Sports Betting. Congress could consider regulating sports
ensuring that all tribes are subject to federal gaming
betting in the tribal context. In Murphy v. National
jurisdiction. In 2022, the Supreme Court reenforced the
Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018), the
applicability of both Cabazon and IGRA to tribal gaming.
Supreme Court struck down a 1992 federal law that banned
In Ysleta del Sur v. Texas, 142 S.Ct. 1929 (2022), the Court
commercial sports betting in most states, spurring most
held that Texas cannot enforce gaming regulations against
states to authorize sports wagering, including 22 states that
federally recognized tribes covered by the Ysleta del Sur
have tribal gambling. Sports betting is a Class III game;
and Alabama and Coushatta Indian Tribes of Texas
therefore, IGRA permits it when in a tribal-state compact.
Restoration Act (Restoration Act, P.L. 100-89), when the
Some tribes have opposed sports betting because it might
game was not fully prohibited in the state and where the
force them to reopen compacts that gave them exclusive
relevant act of Congress expressly granted state jurisdiction
gaming rights.
over gaming prohibitions, not gaming regulations. The
Court held that because Congress passed the Restoration
Congress could examine the costs and benefits of
Act after Cabazon, the act is subject to Cabazon’s
expanding federal licensing and regulation of online
interpretation of state jurisdiction over tribal gaming,
gaming and sports betting, including the potential effects on
meaning gaming not prohibited in the state would still be
tribal economic development. Alternatively, Congress
regulated by IGRA. After Ysleta, the 118th Congress
might consider costs and benefits of adding further
introduced H.R. 2873/S. 1536 to ensure that the Ysleta
restrictions to tribal gaming.
tribes are subject to regulations under IGRA.
Mariel J. Murray, Specialist in Natural Resources Policy
Off-Reservation Gaming. Congress has debated limiting
Madeline W. Donley, Legislative Attorney
tribes from gaming “off-reservation” (i.e., on trust or
restricted-fee lands without a geographic or historical
IF12527
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Indian Gaming Regulatory Act: Gaming on Indian Lands
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