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Abstract

Under the federal Indian Gaming Regulatory Act (IGRA), a tribe may conduct Class III or casino-style gaming only in a state that “permits such gaming” and in accordance with an approved compact between the tribe and the state. But the appropriate interpretation of IGRA’s “permits such gaming” requirement and how it relates to the state’s duty to negotiate gaming compacts in good faith remain murky more than 35 years after IGRA was enacted, hindering both compact negotiations between individual states and tribes and the entire tribal gaming industry. In this Article, we clarify and develop legal standards to apply to two key concepts in IGRA: the “permits such gaming” requirement and the state’s good-faith duty. First, we posit that IGRA’s “permits such gaming” provision is best understood as a threshold issue to determine only whether the state must negotiate at all over Class III gaming. Second, we identify and categorize three substantive areas in which a state may fall short of its good-faith duty. Specifically, we identify and develop “legitimate state interests” as such a category. Requiring states to ground negotiation stances in legitimate state interests and public policy as an aspect of good-faith negotiation is consistent with IGRA’s provisions and Congress’s intent. State positions on particular Class III games appropriately are assessed in the context of the state’s good-faith duty in compact negotiations and fit comfortably within this category. Together, our proposed interpretations of IGRA’s “permits such gaming” requirement and the state’s good-faith duty form a clear procedural and substantive framework that “makes sense,” both for facilitating compact negotiations and for judicial or the Interior Department’s determinations of whether the state has fulfilled its good-faith duty.

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