ACCESS OR SOVEREIGNTY

Abstract

Despite centuries of genocidal assimilation and forced removal, Indigenous communities in the United States have persevered and even thrived. A key driver of economic success for many tribes is gambling. While states objected, perhaps out of greed, the Supreme Court held that, as sovereign governments, gaming operations on tribal land were largely beyond the reach of state governments and law enforcement. The Supreme Court's Cabazon decision furthered a congressional push to develop a negotiated solution to recognize Indigenous communities' rights as sovereigns while balancing states' desire to limit the volume of gambling taking place within their borders. The Indian Gaming Regulatory Act was the congressionally agreed upon balance. While the statute undoubtedly stripped tribal sovereignty, few statutes have developed an economic framework so powerful for lifting up hundreds of communities. The legacy of the Indian Gaming Regulatory Act is an industry that has $40 billion in annual revenue and has developed an expertise that is sought around the world. Now, the tribal gaming industry faces extinction. While commercial operators have spent the last two decades preparing for the move from brickand-mortar to online gaming, tribal gaming is hamstrung by the Indian Gaming Regulatory Act's requirement that all gaming take place on "Indian lands." Federally recognized gaming tribes now face a choice between access and sovereignty. Some tribes around the country have chosen access, often giving up some sovereignty protected by the Indian Gaming Regulatory Act. Other tribes have placed sovereignty above market access and chosen to sit out online gambling while commercial operators move into the market. The choice now facing many tribes is one that they never should have been forced to make. This Article argues that, while Congress 's inaction and failure to modernize the Indian Gaming Regulatory Act has put Native American communities around the country at significant risk, it is not too late to implement changes to modernize the Act. This Article posits that, with a stroke of the pen, Congress could permit communities on Indian land to compact for online gaming under the Act and ease the process by which tribes acquire land that can be used for gaming operations. Congress also has the power to amend the statute to incentivize state cooperation with tribal nations to negotiate gaming compacts, a key tool within the statute that was struck down in 1996. Congressional inaction raises the prospect of a bleak future for the economic security of many tribes, but unlike some of the looming crises facing the United States, there is still time to rectify the situation before dire consequences spread.

Headnote

ABSTRACT

Despite centuries of genocidal assimilation and forced removal, Indigenous communities in the United States have persevered and even thrived. A key driver of economic success for many tribes is gambling. While states objected, perhaps out of greed, the Supreme Court held that, as sovereign governments, gaming operations on tribal land were largely beyond the reach of state governments and law enforcement. The Supreme Court's Cabazon decision furthered a congressional push to develop a negotiated solution to recognize Indigenous communities' rights as sovereigns while balancing states' desire to limit the volume of gambling taking place within their borders. The Indian Gaming Regulatory Act was the congressionally agreed upon balance. While the statute undoubtedly stripped tribal sovereignty, few statutes have developed an economic framework so powerful for lifting up hundreds of communities. The legacy of the Indian Gaming Regulatory Act is an industry that has $40 billion in annual revenue and has developed an expertise that is sought around the world.

Now, the tribal gaming industry faces extinction. While commercial operators have spent the last two decades preparing for the move from brickand-mortar to online gaming, tribal gaming is hamstrung by the Indian Gaming Regulatory Act's requirement that all gaming take place on "Indian lands." Federally recognized gaming tribes now face a choice between access and sovereignty. Some tribes around the country have chosen access, often giving up some sovereignty protected by the Indian Gaming Regulatory Act. Other tribes have placed sovereignty above market access and chosen to sit out online gambling while commercial operators move into the market. The choice now facing many tribes is one that they never should have been forced to make.

This Article argues that, while Congress 's inaction and failure to modernize the Indian Gaming Regulatory Act has put Native American communities around the country at significant risk, it is not too late to implement changes to modernize the Act. This Article posits that, with a stroke of the pen, Congress could permit communities on Indian land to compact for online gaming under the Act and ease the process by which tribes acquire land that can be used for gaming operations. Congress also has the power to amend the statute to incentivize state cooperation with tribal nations to negotiate gaming compacts, a key tool within the statute that was struck down in 1996. Congressional inaction raises the prospect of a bleak future for the economic security of many tribes, but unlike some of the looming crises facing the United States, there is still time to rectify the situation before dire consequences spread.

INTRODUCTION

For much of the last four hundred years, Indigenous people-in what is now the United States-have been subjugated by European settlers and, later, Americans.! Beginning with the arrival of Christopher Columbus and continuing to this day, there has been a steady erosion of Indigenous sovereignty in the United States.? By the 1980s, many of the poorest communities in the United States were reservations where Native Americans had been driven or forcibly relocated.? Despite the conditions that were forcibly imposed on sovereign nations across the United States, several Native American nations asserted their sovereignty through the authorization of various activities including the operation of bingo facilities and sale of tobacco on tribal land.· The success of some tribal operations led to frustration from state and local officials who believed, despite being sovereign nations, tribal governments should be subject to state and local regulations." The response from Congress was the Indian Gaming Regulatory Act (IGRA), which resulted in billions in revenue for many tribes across the country." However, a 2018 Supreme Court decision has put an expiration date on the economic viability of the system created by Congress."

In May 2018, the Supreme Court, in Murphy v. NCAA, lit the fuse of an explosive tied to tribal sovereignty around the country. The Court's decision did not directly address tribal sovereignty, tribal governance, or have any tribal nations as parties to the case; instead, the case centered on a state's authority to authorize sports wagering." The decision overturned the Professional and Amateur Sports Protection Act (PASPA),' a twenty-five-year-old statute restricting states (other than Nevada)11 from authorizing sports wagering on the basis of the rarely litigated anticommandeering doctrine.'? Before the Murphy decision, states began to position themselves to move quickly once PASPA was no longer in the picture; it seemed the only question was whether the market would be opened up through congressional repeal or judicial action.13 The Court's decision in Murphy opened the door for states outside of Nevada to allow sports wagering.14 Sports wagering quickly became one of the most popular legislative items in state legislatures following the Supreme Court's decision, with more than thirty-five states, the District of Columbia, and Puerto Rico authorizing the activity in the five years since the decision."

Expanded sports betting in and of itself is not a problem. After all, experts speculated that Americans may have wagered more than $100 billion in unregulated markets annually;16 but, like the Trojan Horse, the threat lay within the Murphy decision." Murphy set forth a cascade of gambling expansion. States were not content with historical Las Vegas-style sports wagering, which would have largely confined sports betting to casinos or similar gambling operations. Instead, states sought to offer a more contemporary product-mobile sports wagering-which does not necessitate going to a casino.'s

The passage of IGRA' has allowed federally recognized Tribes to collaborate and contract with states to offer various types of gambling activities. Post-IGRA, Native American Tribes have successfully operated casino gaming operations21 that have brought billions of dollars of revenue to Tribal communities." Thus, in the last thirty years, few pieces of federal legislation have done more to provide resources for tribal economic development than IGRA.23 However, mobile sports wagering threatens tribal self-determination because it is widely believed that IGRA prohibits Tribes and states from contracting to permit online gambling in a way that preserves tribal sovereignty.

Congress passed IGRA when most conceived of tribal gaming to mean bingo halls, and few thought it would have much impact.24 By the time the Supreme Court put a definitive end to questions regarding state authority to regulate gaming on tribal lands in California v. Cabazon, tribal gaming had already found a foothold.25 After Cabazon, IGRA and the gaming market evolved rapidly.26 What developed over the next thirty-five years has, at least economically, exceeded expectations.27 In 2021, tribal gaming revenues reached $39 billion,28 rising to $48 billion in 2022.29 Unlike commercial gaming, where increased revenues are generated primarily for shareholders, tribal gaming revenues are often used for community development.30 Tribal gaming has seen such success in some jurisdictions that the economic benefits have stretched far beyond tribal land.31 Many Tribes have proven themselves so adept at gaming operations that they have reinvested their profits into commercial gaming operations.' Despite the success of tribal gaming for many Tribes over the last thirty-five years, Congress has failed to modernize IGRA in a way that will enable Tribes to continue relying on gaming as a source of economic development into the future.

Tribal gaming in the United States remains shackled to 1988, while the rest of the gaming industry moves forward.' By virtue of language in IGRA which requires gaming to take place only on "Indian lands," tribal nations have faced a choice: be left behind as the gaming universe undergoes great expansion or give up sovereignty to state authorities and consent to the same regulation as commercial entities.' In and of itself, sports wagering is perhaps a minor threat to tribal gaming revenues because it is a low-margin product compared to other casino games." However, sports gambling likely serves as a free sample, delivered in hopes of paving the way for legalization of the online casino industry." While states have been slow to adopt online casino games, the continued movement of customers toward online sports betting poses a substantial threat to tribal gaming operators.38 Tribes are in a vulnerable position, facing substantial risks to the long-term viability of one of their primary economic investment interests, and without swift action could see economic uncertainty over their gaming operations.

The Seminole Tribe of Florida and Governor Ron DeSantis entered into a gaming Compactin 2021 that allowed online sports wagering. The Compact was ultimately rejected by a reviewing district court.40 The D.C. Circuit Court of Appeals dodged the question of the permissibility of online sports wagering via an IGRA Compact, holding the Compact at issue did not authorize sports wagering off tribal lands.41

This Article argues that the challenges facing tribal gaming in the coming years, and the subsequent threat posed to tribal sovereignty by Congress's inaction to modernize the Indian Gaming Regulatory Act are dire concerns demanding immediate action. The Article begins by introducing the history of the gaming industry in the United States. In Part II, the Article discusses the Cabazon case and the passage of IGRA. Part Ш examines how Tribes have been forced to choose between access or sovereignty. Part IV discusses how Tribes around the country have adapted and why granting concessions should not have been required, as well as analyzing why efforts by the Department of the Interior are likely inadequate. Finally, Part V proposes a path forward to address access to mobile gaming, with recommendations to amend IGRA to better reflect the contemporary industry and ensure that tribal gaming remains a significant piece to ensuring continued tribal self-determination into the future.

I. THE PLACE OF GAMING THROUGHOUT HISTORY

Virtually every culture throughout human history seems to have participated in some form of gambling." For sovereigns, regulating gambling has often served as a means of generating funding for projects without raising taxes.43 England institutionalized the lottery in 1569, thirty years after France established a lottery,44 to generate revenue for harbor repairs and other infrastructure projects." Indeed, the use of the lottery as a funding mechanism was carried over to British colonies, including America. Even though many in Colonial America were bound by Puritanical governance, lotteries evaded gambling bans.47

Prior to independence, the lack of a vibrant commercial banking system gave the American colonies little option for financing, and the British Crown was reluctant to provide significant economic support to the colonies.48 As a result, lotteries became one of the main sources of funding for colonial development." For example, the Jamestown Colony relied on a lottery for survival after it had been devastated by illness." Even as colonies passed various laws banning lotteries, they persisted as a means of funding significant projects.51 Lotteries funded at least a portion of many public and private endeavors, including the construction of many of the country's most prestigious colleges and universities." This Part is divided into three sections: first, a discussion of gambling in America; second, a brief history of gaming in federal Indian lands; and finally, a description of the emergence of conflict between Tribal and state governments.

A. Gambling in America

By the 1800s, some of the puritanical objections to gambling had been drowned out by expansion and immigration to the South and West. In fact, while gambling remained frowned upon, various places made exceptions, including in New Orleans, where the Louisiana legislature permitted citizens to play poker and other games provided players made annual charitable contributions.54

The election of President Andrew Jackson, however, coincided with a change in public attitudes towards gambling as discontent grew over a number of scandals.' At that time, states began to enshrine antilottery rhetoric into their constitutions.56 By 1862, only Missouri and Kentucky had not banned lotteries.' In addition to states banning lotteries, the federal government passed legislation aimed at curbing Americans" access to lotteries.58 By the 1860s, the public firmly associated beyond-the-lottery gambling with undesirable parts of society.59

This combination of "lottery scandals and a newfound morality-led to the near-complete prohibition of lotteries" before the Civil War." The Civil War, however, sparked a second wave of legalized gambling in the United States, which, like the first wave, was necessitated by the need to raise revenue." Following the Civil War, the expansion of the railroad system allowed for further and faster travel, and as Americans traveled, they brought gambling games with them." Perhaps driven by the types of individuals who packed up and sought riches out West, western settlements had less of an emphasis on law and fewer attachments to the moral sensibilities found on the eastern seaboard.63 For example, by the 1870s, Kansas City, Missouri, had "between thirty and forty gambling houses." Indeed, in some western cities, gambling houses outnumbered other businesses ten to one. While gambling took place openly throughout the West, some cities like San Francisco even licensed casinos, allowing the government to benefit from what was taking place. As the West became more populated, tolerance for the drunkenness and violence that often accompanied these establishments waned. 67

By the end of the 1870s, one primary exception remained: the Louisiana Lottery.68 The Louisiana Lottery was the Powerball or Mega Millions of its era, offering a $600,000 jackpot in 1869.69 The lottery advertised and solicited entrants across the country." But, it was largely a fraud, overrun by bribed politicians and corrupt drawings.71 By 1890, the matter drew the attention of Congress, which banned the distribution of lottery materials through the mail." Five years later, Congress banned the interstate distribution of lottery materials with a law that was later upheld by the Supreme Court in Champion v. Ames." Thus, by the close of the first decade of the twentieth century, the United States had moved away from any form of legal gambling, and New Mexico and Arizona were told to close their casinos as a pre-condition for admission to the Union.74

Legal gambling in the United States laid largely dormant until 1931, when the Nevada legislature re-legalized casino gambling." Despite broad prohibitions, gambling had not disappeared. Instead, gambling proved to be a flourishing business for organized crime. There were concerns following World War II that there would be an uptick in criminal activity as there was following both World War I and the Civil War." Indeed, the post-World War II era brought a wave of prosperity, and Americans spent their money on gambling, most of it illegal." As the country became aware of the scope of organized crime's reach during the televised Kefauver Commission hearings,'® the federal government began seeking ways to fight back, setting their sights on the use of interstate wire services that sent gambling information across state lines almost instantaneously."

Despite the bluster of the Kefauver Committee and the Kennedy Administration, Congress made little progress in attacking organized crime.80 It took Congress nearly a decade to pass one of the recommended pieces of legislation from the Kefauver Committee's final report,81 the Wire Act.82 The Wire Act gave the federal government a tool to target many interstate gambling operations through their use of wire communication facilities." The Wire Act has two substantive components. The first prohibits the interstate transmission of information assisting in placing bets and wagers, but contains a safe harbor where the underlying activity is legal in both jurisdictions.84 The second completely bars interstate wagering.85 A series of other federal laws followed the Wire Act, principally targeting organized crime's use of gambling, as opposed to regulating the practice for moral or ethical reasons.86 The federal laws did little to curb gambling; like many of America's other prohibitions, it simply created alternative markets." The following part discusses the role that gaming has played historically within some Native American communities.

B. A Brief History of Tribal Gaming

Discussion of tribal gaming in the U.S. must begin with a brief history of federal recognition of tribal sovereignty, as applied to the states. The foundational cases of Cherokee Nation v. Georgia" and Worchester v. Georgia" validated the federally recognized sovereignty of tribal nations within the United States91 Tribal sovereignty permits indigenous nations to maintain the ability to self-govern to the extent "those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a 'necessary result' of their . . . Status. Tribes within the United States have a "government-to-government relationship" with the federal government." The relationship translates into canons of judicial interpretation, such that judges are to consider federal statutes in a manner intended to protect the rights and sovereignty of tribal nations.94

The Indian Canons of Construction originated out of the development of "moral and legal principles designed to promote fair dealings and preserve Indian sovereignty" in post-independence America." The trust relationship between Tribes and the federal government was formally established in Cherokee Nation v. Georgia, Where the Supreme Court described the Tribes within the United States as "domestic dependent nations."96 The nature of the federal government's tribal trust relationship is built on historic treaties; it is passive in nature, and generally held to require the federal government to act in good faith when interacting with tribal nations.97 While many have argued for an active relationship, which would provide Tribes even greater sovereignty, courts have not adopted that view.98 This relationship has been significant in the development of gaming on tribal lands over the last 200 years.

Many Native American communities have long histories of gambling as a part of their culture." While each Tribe has its own traditions and games, historians and cultural anthropologists categorize the most common as games of dexterity or games of chance.100 Dice games have been played, almost universally, across Native American Tribes.101 Professors Rand and Light highlight that, despite the fairly widespread opposition to gambling on moral or religious terms in many societies, this view was not held by many Tribes.102 Indeed, gamblers were featured in some tribal mythology, where rule-abiding gamblers with skill were viewed as virtuous, in contrast to those who gambled excessively or cheated.103

The arrival of Europeans, and their religiosity, had a deleterious effect on Native American gambling.104 However, some traditional games continued to survive despite pressure from settlers.105

By the late twentieth century, Native Americans who lived on reservations were amongst the poorest groups living within the United States, experiencing poverty at a rate five times higher than the national average, with household incomes sixty percent lower than the median.'% Beginning with the Seminole Tribe of Florida, a number of Tribes around the country began exploring ways to generate money-one solution was to create bingo halls.107 The Seminole Tribe of Florida introduced the country's "first large-scale bingo hall," following the successful launch of a tax-free cigarette shop in 1977.108 The hall quickly drew the attention of local law enforcement. Shortly after the opening, Broward County Sheriff Robert Butterworth was sued by the Seminole Tribe of Florida, seeking to enjoin the exercise of jurisdiction over the Tribe and its property under the authority of Public Law 280.109

Public Law 280 granted states criminal jurisdiction over tribal citizens. However, the Fifth Circuit held bingo was one of the few gambling activities permitted by the Florida Constitution, and the state was in the business of regulating bingo; therefore, the statute was not criminal.110

The second integral question that the Butterworth court wrestled with was "Can Non-Indians Play?"111 The Court of Appeals, however, quickly dispensed with the suggestion, agreeing with the Seminole Tribe that the facility could be open to both tribal members and members of the public.112 The fallout from the Butterworth case set the stage for similarly situated Tribes to push forward with exercises of sovereignty regarding what activities take place on their land.113

C. Sovereignty in Conflict

The Butterworth decision, and subsequent decisions like it around the country, contributed to the expansion of what would become high-stakes bingo on tribal lands.114 While a number of states were unhappy with expanded gambling, likely because states could not share in the proceeds, the federal government may have viewed the expansion as a positive form of economic selfdetermination.115 The Department of the Interior's Bureau of Indian Affairs (BIA) encouraged Tribes around the country to open bingo halls, even providing construction financing.116 Pushback led to Congress's studying the issue and drafting an early version of IGRA, which was introduced on April 2, 1985.17

The bill would have made bingo and class III games, like slot machines, illegal unless a Tribe, the governor, legislature, county, and municipal governments all consented to operation of the games.118 The bill also would have rendered tribal land subject to state law, including licensing and criminal sanctions.119 This legislation was followed by several other pieces of legislation, which sought to address tribal gaming activity.120 A Senate Report noted by June 1986, 108 federally recognized Tribes were operating gaming facilities around the country, all but four of which were bingo halls.121 While some Tribes expanded offerings to include card games, cumulative revenue exceeded $100 million annually.122

The failures of states to preempt the activities taking place on tribal lands around the country enabled the extensive development of tribal gaming operations.123 Interest in the revenue potential of gambling was not isolated to Tribes-in the mid-1980s, the federal government contemplated a national lottery.124 By the middle of the decade, some properties seated nearly 4,000 people, attracting bingo players from across the country and Canada.125 The Butterworth decision, and others like it, created a situation where states could choose whether a gambling activity was legal or not, but once a state decided an activity was legal, a Tribe could choose how to regulate it.126

The Butterworth decision would set the stage for what would become one of the most significant cases for tribal sovereignty in the history of the United States, California у. Cabazon Band of Mission Indians.127 In 1982, the Ninth Circuit decided Barona Group of Capital Grande Band of Mission Indians v. Duffy, which like Butterworth established the legality of bingo on tribal land within California.128

The Cabazon Tribe operated a 500-seat bingo hall on Interstate 10 in California; it expanded and installed twenty-four poker tables in the mid1980s.129 The city of Indio in Riverside County was unhappy with the Cabazon operation and sought to have it shut down, arguing a city ordinance prohibited playing card games.130 To do this, City of Indio police officers entered the property and issued more than 100 citations to both patrons and employees.131 The Cabazon Tribe sued and sought declaratory relief, which the appellate court granted.132 This, however, would not be the end of the saga. Next, the County of Riverside sought to shut down the bingo operations of the Cabazon Tribe and the Morongo Band of Mission Indians Tribe.133 Again, the Tribes succeeded in pushing back against efforts to intrude on their sovereign gaming operations.134

Despite near uniformity across federal courts,135 California intervened in the suit alongside Riverside County.136 The resulting case before the Ninth Circuit set the stage for one of the most significant tribal sovereignty decisions at the Supreme Court.137 While this Part discussed the place of gaming in the history of the United States and as a source of conflict between governments and Native American Tribes, the following Part examines the Cabazon case and the emergence of the federal government's response in the form of the Indian Gaming Regulatory Act.

II. CABAZON AND IGRA

The Cabazon case was hardly the first challenge to state authority to regulate activity on sovereign tribal lands.'385 However, the case was significant because despite multiple judicial losses around the country, states continued to attempt to impose state regulation on tribal operations wholly on tribal land. This Part of the article contains three sections. In section A, the Cabazon case at the Supreme Court is analyzed. Section B discusses the legislative history leading up to IGRA. Finally, section C examines the passage of IGRA.

A. Cabazon at the Supreme Court

In 1986, years of dispute finally reached the Supreme Court.139 The Court noted the Cabazon Tribe and Morongo Bands of Mission Indians, federally recognized Tribes, conducted bingo on tribal reservations within Riverside County "pursuant to an ordinance approved by the Secretary of the Interior."140 The Cabazon property included various card games and allowed the public to play, with non-tribal members as the predominant source of revenue.141 Justice White observed that the bingo and card room facilities employed significant numbers of tribal members and the facilities served as the sole source of revenue for the Tribes.142

California argued that, while state law permits some bingo, it was only allowable when operated by "designated charitable organizations" and where profits were segregated into separate accounts.143 Further, California law did not permit any prize to exceed $250.144 The Cabazon Court recognized that "tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the states," had already been well established.145 The Supreme Court emphasized that the limited grant of civil jurisdiction to states over tribal members did not encompass "general civil regulatory authority."146

Despite California's insistence that the laws were criminal, as violations were classified as misdemeanors, the Court observed that California is far from adverse to gambling generally, even operating a state lottery in which citizens are encouraged to participate.147 The Tribes further argued that, while California may object to the expansion of the bingo facilities into card games, California was already home to as many as 400 card rooms around the state.148 Further, tribal bingo was promoted by the Department of the Interior, which made loans and grants for the development of facilities, effectively giving an imprimatur of federal government approval on these facilities.149

The majority rejected the state's interest in preventing organized crime from infiltrating the Tribes' bingo games as irrelevant and preempted.150 The conclusion of the majority opinion created the framework for an expansive tribal gaming industry: "State regulation would impermissibly infringe on tribal government, and this conclusion applies equally to the county's attempted regulation of the Cabazon card club."151

In dissent, Justices Stevens, O'Connor, and Scalia argued that, absent explicit congressional acts exempting tribal gambling from state law, states should be free to enforce state laws on Tribal land.152 The dissent laid out a parade of terribles that could result from the majority's decision, including the potential acceptance of tattoo parlors or nude dancing.153 The dissent argued that the contours of state authority on tribal lands should be defined by Congress, not the Court.154 Regardless, Cabazon established a path toward expanded tribal self-determination with less intrusion from state and local authorities.155 The Cabazon decision pushed Congress to resolve the growing separation between Tribes.156

B. The Birth of IGRA

Despite Congress's significant traction prior to the Supreme Court's decision in Cabazon, Congress failed to pass a bill concerned with the expanded exercise of tribal sovereignty in the realm of gaming.157 Indeed, the 100th Congress tried to secure a compromise bill before the Court released its decision.158 Despite some thinking the Court would take six months to decide the case, the decision came down a mere fifteen days after the House introduced H.R. 1079, the Indian Gaming Regulatory Act.159 Congress did not move forward until late April 1988, three months after the Cabazon decision.160

The Senate Report described the bill, S.555, as providing "a system for joint regulation by Tribes and the Federal Government of class II gaming on Indian lands and a system for compacts between Tribes and States for regulation of class III gaming."161 The report noted that the bill would establish a National Indian Gaming Commission, which would serve as an independent agency under the Department of the Interior.162 The Commission would have regulatory authority over class II gaming and an oversight role with respect to class III gaming.163 The objective of the legislation was described as filling a need to preserve tribal self-determination while protecting "both the [T]ribes and the gaming public from unscrupulous persons."164

The bill distinguished between class I, class II, and class III games.165 Class I games were traditional games within the exclusive purview of individual Tribes and beyond the scope of the Act.166 Class II games included games presently offered on tribal properties, including bingo, and non-banked card games.167 Class Ш was a catchall, covering everything not contained within class I or II.168 The sole means of conducting class Ш games was via a tribalstate compact. The Senate Report noted that one of the major obstacles in the compacting process would be if states negotiated in good faith.169 The bill allowed Tribes to sue a state if it does not conclude negotiations of a compact.170 While the Tribe bears the burden of showing that a state has not negotiated in good faith, once a prima facie case is established, the burden shifts to the state to rebut that presumption.171 The Senate Report further noted that legislation affecting Tribes should achieve two overarching goals.172 First, the legislation should provide clear delineation of which state laws apply on tribal land." Second, the legislation must balance law enforcement concerns with Tribes' desires to raise revenue and states' desires "to regulate activities within their borders."174 The Report concludes with the recommendation that S.555 is preferable to other proposed legislation.175 The bill was intended to strike a balance allowing for enforcement of gaming laws, while still preserving tribal sovereignty.176 Rejecting the recommendations of the Justice Department, S.555 did not cede authority to state gaming authorities barring a Tribe electing to accept state law and jurisdiction over tribal land.177 Thus, the tribal-state compact was born.178

C. IGRA

IGRA was likely no one's ideal bill. However, the passage of the Indian Gaming Regulatory Act was the result of several years of efforts to balance Native American rights against the complaints being made by state authorities.179 The Act delegated several powers to the newly created National Indian Gaming Commission (NIGC), such as the power to monitor class II gaming on an ongoing basis; this included creating a process to conduct background checks on certain gaming employees.180 Under IGRA, Congress permitted class II gaming, so long as the Tribe seeking to offer the games "is located within a State that permits such gaming."181 Class II gaming also required Tribes to issue licenses to each facility operating gaming.182 However, class II gaming revenues could only be used for specified purposes that included things like funding tribal government operations and promoting economic development of the Tribe.183

Much of the focus in the thirty-five years since IGRA's passage has been on the regulation of class III gaming and the need for Tribe/state partnerships. Despite what have often been significant differences, tribal and state governments must agree on a contract for a Tribe to offer class III gaming.184 Following negotiations, compacts must receive approval from the Secretary of the Interior and take effect when published in the Federal Register.185 In what would prove, in hindsight, to be a contentious subject,186 IGRA requires states to negotiate in good faith with Tribes; if negotiations fail, both sides would submit compact proposals and a mediator would select from the two proposals.187

In a subject that would become prescient as tribal gaming around the country expanded,188 IGRA also specified requirements surrounding management contracts.189 IGRA specifies that management fees should not exceed thirty percent of net revenues, or with approval of the Chair of the NIGC and at the Tribe's request, forty percent.190 The Chair also has the power to reject management contracts if they fail to meet certain provisions.191 Additionally, no management contract can convey to the contractor any land interest, unless statutory authority for such a transaction exists.192 In perhaps a final signal of congressional concern of unscrupulous contractors, IGRA mandates that potential contractors pay the costs of an investigation associated with disapproval.193 IGRA also established restrictions on where tribal gaming properties could be placed; with some exceptions, gaming facilities could only be placed on federally recognized reservations at the time of passage.194

It is likely, at least financially, that IGRA has been a significant success for many Tribes.195 At the twenty-year anniversary, Professor Katherine Spilde and Jonathan B. Taylor investigated the economic effects of IGRA on tribal and non-tribal communities.196 By 2007, tribal gaming was a $26 billion industry; prior to IGRA, revenues were $171 million.197 While tribal gaming still lagged commercial gaming by approximately $10 billion dollars annually, gambling interest and the gap between commercial and tribal operations was beginning to narrow.198 Without IGRA, Indian gaming revenue likely would have continued to grow, but at a slower pace.199 While there is a strong argument that Tribes should not have been required to negotiate to offer games on land they own and have the right to govern, the economic benefits of IGRA as a whole should not be undersold.200

III. AN EVOLVING INDUSTRY

Following the passage of IGRA, some members of Congress made an effort to thwart the expansion of sports betting around the country, resulting in the passage of the Professional and Amateur Sports Protection Act (PASPA) in 1992.201 PASPA was not a ban on sports betting per se; instead, it was akin to a freeze, stopping any states beyond those offering sports wagering at the time from offering sports wagering in the future." The statute contained a specific provision detailing the statute's application to tribal land as described in IGRA.203 PASPA largely existed as a secondary or even tertiary concern for much of the tribal gaming industry during its twenty-five year existence. Tribal gaming and IGRA remained a target for attack from state governments that felt slighted by IGRA's mandates.

This part of the Article is divided into three sections. Section A examines the Seminole Tribe decision and the years after the decision and how it influenced compact negotiations. Section B describes the growth of the tribal gaming industry into an economic engine for many communities around the country. Finally, section C discusses the Supreme Court's decision in Murphy and how sports betting exploded across the country.

A. Seminole Tribe and the Years After

In September 1991, the Seminole Tribe of Florida sued Governor Lawton Chiles and Florida for its failure to negotiate a gaming compact in the statutorily required good faith.205 Florida countered, however, that the state's Eleventh Amendment sovereign immunity shielded it from suit.206 The Eleventh Circuit rejected the Tribe's argument that the Indian Commerce Clause gave the federal government the power to abrogate state sovereign immunity.207 The State was therefore not capable of being sued in federal court absent its consent.208 While the decision in Seminole Tribe may read like a death blow to IGRA,209 that is not the case.210

Seminole Tribe dulled the teeth of IGRA because states were no longer required to come to the bargaining table and two years passed without a compact agreement being reached.211 The chilling effect emboldened state governments; in exchange for bargaining, states demanded they receive a share of gaming revenue.212 Revenue sharing has become a staple of post-Seminole Tribe compacts. In fact, it is likely that if one were to survey politicians in many states, they would state that IGRA explicitly provides for revenue sharing.213 While permissible in light of the subject matter that can be included in compact negotiations, IGRA makes no mention of revenue sharing and does not mandate Tribes pay states for access.214

Revenue sharing has become many states" way of sidestepping tribal sovereignty from state taxation.215 Although the compacts typically grant some form of exclusivity in exchange for the revenue sharing,216 it is unlikely that states in the contemporary environment would grant exclusivity arrangements that do anything but maximize the state's interest.217 Under IGRA, a tribe must receive substantial benefits from a state to cut them in on gambling proceeds, but the term "substantial benefits" remains somewhat murky.218 Revenue sharing is now deeply entrenched in the gaming universe, and the economic success of the tribal gaming industry has led to a push for ongoing expansion, which remains controversial.219

B. Demand and Growth

IGRA requires that gaming be conducted exclusively on "Indian lands."220 IGRA defines Indian lands as falling within two categories: the first references all lands within the borders of an Indian reservation; and the second incorporates lands held in trust by the federal government for the benefit of a tribe or individual.221 Seminole Tribe resulted in Tribes seeking new ways to supplement revenues because states were dipping into tribal coffers through revenue sharing.222 This led Tribes across the country to seek access to more populated property.223 The expansion of tribal gaming out of IGRA's $ 2703 (4)(A)224 and into prong (B) has generated controversy from those opposed to expansion of gaming into urban settings. To avoid the limitations of existing geographic boundaries and land held in trust, Tribes have engaged with the federal government to acquire new lands and have the federal government take the lands into trust.226 Once the Secretary of the Interior completes the process of taking lands into trust, the land becomes "Indian land," in compliance with IGRA.227

The land-into-trust process is not easy. The process is much more involved than a Tribe acquiring property, handing it over to the federal government, and then in six months a casino pops up. Instead, the process involves power granted to the Secretary of the Interior through the BIA via the Indian Reorganization Act of 1934.228 The power granted to the Secretary is largely permissive, though on occasion court mandates or statutory requirements may dictate mandatory action on behalf of the Secretary.229 The Secretary considers a variety of factors in whether to take land into trust, with greater scrutiny to acquisitions the further the acquired lands are from reservation lands.230 The BIA distinguishes between land-into-trust endeavors for gaming and other uses, with gaming applications requiring approval from the Office of Indian Gaming Management.231

In 2008, the BIA released new guidance regarding the acquisition of land intended for gaming purposes.232 The BIA required land go into trust before the agency can examine whether the land was fit for gaming under IGRA.233 The imposition of these new restrictions effectively meant Tribes would be forced to endure some degree of speculation on newly acquired land. The 2008 guidance also required that land acquired beyond "a commutable distance" receive additional analysis, where the economic benefits of the gaming property must outweigh the negative effects on the Tribe's reservation.234 Tribes pushed back against efforts to limit sovereignty in the pursuit of economic self-determination.235 These efforts appeared to come to a head in 2013 when, against the guidance of the BIA and over the objections of the State of Michigan, the Bay Mills Indian Community sought to open a casino in Vanderbilt, Michigan.236 Efforts to stop the construction of the casino reached the Supreme Court.237

Michigan argued that the Tribe's casino endeavor was the action of a private business, not a sovereign; the Court rejected this argument.238 Bay Mills began the Court's recent trend of recognizing the sovereign rights of Tribes.239 Some scholars have argued that Justice Kagan may have opened the door to challenging tribal sovereignty in a footnote in Bay Mills,240 observing that there may be "special justifications,"241 such as "for torts and other claims falling outside the boundaries of Kiowa and Bay Mills" to abrogate tribal sovereign immunity,242 but barring those special circumstances, the decision recognized that tribal businesses operating as an arm of a tribal government enjoy significant sovereign immunity. The Bay Mills decision protected tribal gaming enterprises seeking to maintain a strong place in the market.

In 2013, the tribal gaming industry's annual revenue reached $28 billion a year.243 At the same time, tribal gaming operations included more than 450 properties across thirty-one states.244 One study found that "Indian gaming yielded sustained revenues for almost all Tribes that built facilities. "245 Unlike the commercial gaming industry, which generates revenues for shareholders, tribal gaming operations benefit the community.246 In the post-IGRA gaming landscape, gaming revenues have helped Tribes build sustainable revenues in communities, resulting in increased services as well as permanent jobs.247

In the years since Bay Mills, tribal gaming revenues reached $41 billion, from more than 500 operations and nearly 250 federally recognized Tribes in twenty-nine states.248 The continued growth and sustainability of the business arms of tribal governments are perhaps even more incredible because properties shut down due to the COVID-19 pandemic.249 While the tribal gaming industry has bounced back, the COVID-19 pandemic accelerated what may be the greatest threat to the continued viability of gaming as an economic engine for self-determination: online gaming.250

C. The Gambling Floodgates Open

On May 14, 2018, the Supreme Court, in Murphy v. NCAA, held PASPA impermissibly commandeered states into maintaining their gambling laws.251 The Court's pronouncement that PASPA was unconstitutional caused states to race to offer sports betting.252 In fact, even before the decision in Murphy, states began preparing for sports betting.253 As states were preparing, so were the major professional sports leagues, which began to change their long-held opposition to sports wagering.254 In late 2014, the National Basketball Association commissioner declared his support for legalized sports betting in a New York Times op-ed.? The support of the sports leagues, which began with partnerships with gambling adjacent daily fantasy sports companies, marked the milepost for sports betting in the United States.

The optimism surrounding sports betting's revenue potential was sent into hyperdrive during the pandemic, as states feared that shutdowns would leave them scrambling to maintain the same level of services as existed prepandemic.257 The reality, however, is that sports betting is no panacea. Much like the infamous Springfield Monorail,258 sports betting was largely more hype than revenue.259 Indeed, the revenue numbers were so disappointing that a number of states have adjusted tax rates after only a few years, including Ohio, which doubled its tax rate on gambling revenue after having legal sports betting for a year.260

Online casinos have better margins, which results in higher tax revenue.261 Consequently, a few states have legalized online casino gambling.262 Only Pennsylvania, West Virginia, and Michigan adopted online casino gambling alongside sports betting.263 These states joined New Jersey, Nevada, and Delaware, which had online casino gambling prior to sports betting's widespread adoption.264 The expansion of online casino gambling promises to be far more lucrative for states from a tax revenue perspective.265 In many ways it is possible that online sports betting 1s a Trojan Horse for online casino gambling, as states accept the ubiquity of sports betting. Between the normalization of gambling through its integration of various mediums, combined with the hope for ever increasing tax revenue, more states will allow online casino gambling.266 While the expansion of online sports betting has had a deleterious effect on tribal gaming"s benefit to Native American communities, an online gaming expansion in the same fashion could be the death knell for many tribal gaming operations.'

The problem for tribal gaming operations is that the law forces Tribes to make a choice between sovereignty and access." ТОКА requires that all gaming take place on "Indian lands,269 which has been interpreted to mean the compacting process does not permit the inclusion of online gaming.270 Tribes around the country have faced difficult choices in the post-Murphy world. In some cases, Tribes are forced to give up sovereignty and agree to be taxed to be part of the market, for fear that if they do not participate, commercial operations will overrun them.271 The following Part examines the difficult choice facing tribal communities that take part in gambling operations around the country and the IGRA provision that creates the costly choice.

IV. TRYING TO COMPETE AGAINST COMMERCIAL ENTITIES

Over the past three decades, there have been several attempts to circumnavigate the everyday use of the phrase "Indian lands," but today it remains largely unclear whether a federally recognized Tribe can compact with a state to offer gambling that takes place over the internet.272 This Part will discuss the murky state of the scope of IGRA's "Indian lands" requirement. After discussing the challenges that have emerged, this Part examines what workarounds various states and Tribes have adapted in the years since the Murphy decision.

A. What Does IGRA Permit?

Shortly after the internet became widely available, gambling websites appeared." By the end of 1996, there were roughly fifteen gambling websites; by 2002, there were more than 1,800.274 The rapid expansion of online gambling presented an opportunity for many at the forefront of the gambling industry, as the internet still existed in a somewhat uncertain legal space."

In 1997, the Coeur d' Alene Tribe in Idaho established what was dubbed "the first Native American gambling site on the internet."276 The Tribe sought to offer several different online products based on the concept of a national lottery, offering higher jackpots than most state lotteries at the time." In what is now a prescient statement, Coeur d'Alene Chairman Ernie Stensgar stated: "We in Indian Country have to be innovative . . . to reach out and grab any new tool we can."278 Missouri sued the Tribe and its contractor, Unistar Entertainment, arguing the gambling website, which advertised "legal" gambling, was not in fact legal gambling in the state.279

When AT&T refused to grant the Tribe a toll-free number for the lottery, the Tribe sued.280 The Ninth Circuit reversed the district court, which held the online lottery violated IGRA, and held AT&T was not the proper party to raise the issue of the lottery's legality.281

The Ninth Circuit's decision to punt the legality question to a future lawsuit left ambiguity around the permissibility of Tribal online gambling. For its part, the NIGC issued various letters, exploring the possibility of expanding into the online universe and opining that internet gambling was problematic under IGRA.282 In a June 1999 letter, the NIGC Chairman informed the Coeur d' Alene Chairman that the NIGC's approval of the Tribe's submitted management contract was neither an implicit nor explicit approval of the "off-reservation gambling contemplated by the NIL [National Indian Lottery]."283 In a June 2000 letter to the Director of Gaming at Tele-Mark, NIGC Deputy General Counsel Penny Coleman opined that IGRA does not permit a gambling game where participants would be outside of tribal "territory."284 The NIGC issued a third letter in October 2000, to a lawyer representing a Tribe that sought to offer internet bingo, with NIGC General Counsel concluding that IGRA does not permit online bingo, "because the play of Internet Bingo does not necessarily occur on Indian lands."285 In March 2001, the NIGC reviewed a sports betting game and determined that it was not eligible for approval, in part, because "the use of the Internet is not authorized by IGRA."286

The promise of internet gaming has led to additional efforts from Native American Tribes to gain access to the same market as commercial competitors.287 This shift is evidenced by a 2015 arbitration award in a dispute between the Iowa Tribe of Oklahoma and the State.288 The arbitration decision found that the tribal compact between the State and the Tribe, as well as federal and state law, does not prohibit the Tribe from offering internet gambling games to those outside the United States if the server is located on tribal land.289 While interesting, the arbitration decision is likely of little help for at least two reasons: first, most Tribes within the United States almost certainly want to offer online gambling games to U.S. residents;290 second, arbitration decisions are generally not precedential.291

While the lowa Tribe of Oklahoma arbitrated its efforts to offer online gambling, a Tribe located in San Diego County, California sought to offer bingo over the internet." The Прау Nation of Santa Ysabel Tribe launched a bingo game called "Desert Rose Bingo" from a server based on tribal land.293 The website was open to California residents over the age of eighteen.294 Under the terms of the game, players would fund an account and then submit a request; when there were a sufficient number of requests, the drawing occurred and a winner emerged.295 All players were represented by an employee who was physically present on the Tribe's property and served as a proxy, though the employee did not perform any action beyond being a "passive observer."296 Both California and the federal government sought to shut down the site.297 The Tribe argued, per the text of the Unlawful Internet Gambling Enforcement Act's (UIGEA), the UIGEA was inapplicable to Tribal gaming , making the activity permissible.298 The federal government, for its part, disagreed." The federal government argued that IGRA could permit some online gaming if it were to take place on designated tribal land, but the scheme put forth by the Прау Nation went too far, extending gaming beyond permissible territory. The Ninth Circuit held the matter could be resolved via UIGEA without addressing the IGRA question.301

The effect of these cases and letters has left confusion about how IGRA views online gambling. Indeed, the question has seemed to split experts, with some arguing that IGRA provides wide latitude to Tribes and states to agree on how gambling will take place within a state; others argue that IGRA allows no such thing." The reality of the situation is such that the uncertainty has left a number of Tribes around the country with a Hobson's choice: accept access to mobile sports betting that sees them sacrifice sovereignty or miss out on not only access to internet gaming and years of building consumer relationships in a growing industry. Section B examines how Tribes around the country have adapted to the post-Murphy landscape.

B. Moving Forward Amid Regulatory Uncertainty

The 2018 Murphy decision to legalize sports betting saw many rushed efforts at legalization.' Some federally recognized Tribes were best positioned for such an eventuality.304 While a number of states moved quickly to legalize sports betting by having committed legislatures, bringing new types of gambling through the compacting process is typically slow.305 A number of New Mexicobased Tribes were able to offer sports betting based on permissive Compact language that allowed Tribes to offer "any or all forms of casino-style gaming." The Tribes in New Mexico are confined to sports betting at their brick-and-mortar properties." New Mexico proved to be something of an anomaly, with easy access and a willing state government. Tribes located in other states have faced a more difficult decision: agree to the same terms as commercial operators, including taxation, to offer online sports betting, or miss out, as commercial operators build customer bases.308

Tribal properties in Mississippi offer mobile wagering, but it is only available on casino premises." Tribes in Michigan, Arizona, and Connecticut elected to forego at least some of their sovereignty to participate in an online gambling market.310

In Michigan, which previously granted Tribes regional exclusivity via compacts, Tribes that chose to participate in the commercial market were able to participate in both an online casino and mobile sports betting market 311 Tribal casinos that partnered with some of the leading online gambling brands like BetMGM, FanDuel, and DraftKings have done well for themselves, seeing a net positive influx and increase in market share.' Tribes partnered with less dominant brands have likely seen market share decrease.313 Looking strictly at online sports betting figures, the costs of entering the market are stark for some Tribes, with some losing money in 2023 as a result of offering online sports betting. 314

Once again demonstrating its position as a leader in the tribal gaming universe, the Seminole Tribe of Florida set aside more than a decade of acrimony with the state's governors to sign an innovative compact in 2021. 315 Unlike every compact that came before it, the 2021 Seminole Compact permitted the Tribe to offer mobile sports wagering throughout the state.'316 The Compact, perhaps borrowing from the Zipay Nation of Santa Ysabel argument, stated all wagering "shall be deemed" to take place at the Tribe's facilities "including any such wagering undertaken by a Patron physically located in the State but not on Indian lands."317 The Compact was approved by default following the end of the BIA's 45-day review window.318

Department of the Interior's Assistant Secretary Bryan Newland issued a memorandum arguing past analysis on internet gaming under IGRA was not analogous to the Seminole model.319 The memo argued IGRA was intended to keep up with technology and was written in a manner that allowed it to be flexible to technological change, including internet gambling.320

West Flagler Associates, a South Florida based gaming operator who owns several small casinos and pari-mutuel facilities, almost immediately challenged the Compact.'321 West Flagler sued the Department of the Interior and the Governor of Florida in federal court; while the lawsuit against the Governor was dismissed, the lawsuit against the Department of the Interior survived.322 The District Court held the 2021 Compact violated IGRA by permitting gaming off Indian lands.323

On appeal, the D.C. Circuit Court of Appeals reversed the lower court's decision but did not directly address the question of whether IGRA permits agreement to online gambling via the compacting process.324 Instead, the court held the 2021 Compact did not authorize online gambling. The decision of the Court of Appeals to punt the question has left a continued void, leaving Tribes at a disadvantage to commercial counterparts.325

V. RESTORING IGRA'S PURPOSE

The very future of tribal gaming in the United States has a time bomb around its heck.326 There is an easy way to diffuse the bomb: congressional action that establishes Tribal rights to compact on mobile sports betting. Congressman Anthony Brindisi introduced legislation that would have done just that; the bill never made it to a committee vote.327 A second effort similarly failed to gain any traction.'

The BIA also proposed draft regulations that would allow Tribes to designate a bet as taking place at the location of a server, effectively placing online gambling on Tribal lands.329 While the Department of the Interior's proposed regulations would be a positive to both the modernization of sports betting, it would raise significant questions under the Administrative Procedure Act and, if approved, would likely face years of litigation.330 Change is undoubtedly needed if IGRA is to continue to fulfill its objectives. This Part lays out several proposals to modernize IGRA and allow the statute to fulfill its original intent of promoting tribal economic development, self-sufficiency, and strong tribal governments.331

A. Putting the Good Faith Back in Negotiation

IGRA, arguably, faced its first great threat in Seminole Tribe of Florida v. Florida, when the Supreme Court defanged the statutory mandate that states be willing, good faith participants in compact negotiations.332 The result led to states demanding higher and higher revenue sharing commitments, playing hardball with Tribes. While California has waived its sovereign immunity to suits under IGRA, it is the only state to do so.334 Congress could incentivize states to cooperate and negotiate by adding clarity around what has become a pro forma aspect of compact negotiations-revenue sharing.

Congress could set a cap on revenue sharing between Tribes and states at a sufficiently low level, such as a maximum of one percent of gross gaming revenue. This cap would apply universally, unless states choose to waive their sovereign immunity in future IGRA litigation. If states opt for waiver of sovereign immunity, the revenue sharing cap would be lifted, allowing Tribes and states to freely negotiate amongst themselves. Such a policy shift could incentivize better behavior moving forward.

Tribes are undoubtedly forced to sacrifice sovereignty to participate in the compacting system. Revenue sharing agreements have become the standard. Despite the negative effect on tribal sovereignty that revenue sharing causes, revising IGRA could result in a net positive in incentivizing states to negotiate and act in good faith.

B. Online Gaming Is Necessary

The expansion of sports betting across the country is perhaps the most rapid expansion of gambling in the history of the United States.? The legalization of sports betting has not only resulted in the expansion of gambling generally, but it has also demonstrated the shift in consumer demand to an online product. In states that have both online and brick-and-mortar style sports betting, upwards of ninety percent of wagers are being placed online. As a lower margin gambling product, sports betting by itself would likely not be totally insidious to tribal gaming operations. Sports betting is only the beginning, with online gambling likely following behind it, which would result in devastating consequences for the viability of Indian gaming.337

Sports betting and online casino gambling now account for nearly a quarter of all commercial gambling revenue. To preserve the ability of Tribes to compete in an increasingly online gambling world, Congress must act to modernize IGRA to permit compacting for both online sports wagering and online casino gambling. Any other attempt to end-run congressional legislation is likely to result in a challenge from commercial entities seeking to cut off tribal access to the market.

The ship has likely already sailed on providing Tribes with meaningful access to online sports betting in most states.' However, the tribal gaming industry in much of the country can still be preserved as an economic engine by passing legislation before commercial interests are able to get online casino gambling legislation passed that leaves Tribes with, at best, the ability to compete by abrogating their sovereignty, and, at worst, renders one of the greatest community economic engines of the last hundred years obsolete.340 While congressional action to modernize IGRA and specifically allow for online gaming under the statute is the most immediate need, it remains far from the only aspect of the thirty-five year old statute that requires a refresh.

C. Provide Tribes with the Option for More Latitude Over Gaming Operations

The know-how that many Tribes with larger gaming operations possess is equivalent or superior to the knowledge in the commercial gaming industry, and such expertise should be recognized by the federal government. Some Tribes, like the Seminole Tribe of Florida and the Chickasaw Nation, have experience operating casinos that rival commercial operations.341 In many cases, these Tribes and their gaming operations are at the forefront of gaming from a technological standpoint, and, in that respect, it does not make a lot of sense to subject them to the same process as a much smaller operation by having them go through the same NIGC process.

While the consistency and standards promoted by the NIGC are undoubtedly valuable, a system that would allow a greater opportunity to opt-in to aspects of the regulatory structure would go much further in promoting tribal sovereignty and self-determination.342 Granting Tribes more leeway to opt into aspects of the national regulatory system would provide those Tribes confident in governing gaming the ability to do so. It would also promote recognition of Tribes as individualized nations rather than a monolith that can be uniformly regulated under the NIGC model.

Perhaps the greatest challenge for tribal gaming operators in the current landscape is the NIGC model and the compacting process-slow processes that commercial operators avoid." While not the case at the time of IGRA's passage, when gambling was largely confined, commercial gaming is expanding across the country and competing against tribal gaming. Tribal operators face regulatory burdens that commercial operators do not, which provides an advantage to commercial operators if both are starting from the same place.344 The influx of money from venture capital that funds online gambling companies is challenging even without any additional regulatory burdens.345 By adding additional procedures for tribal operators to complete before they can enter the market, Tribes are left at a significant disadvantage.

D. Making Taking Easier

Tribes are also disadvantaged in their acquisition of property. After the passage of IGRA, Tribes began looking for ways to reach larger population centers and acquire lands that could potentially serve as more lucrative locations.346 However, as the Bay Mills case demonstrated, the process for taking land into trust (to meet IGRA's Indian land requirement) is complicated and does not provide a guaranteed result. Because of this, again, Tribes are at a disadvantage to their commercial competitors who simply need to go out, acquire a piece of land, and have it zoned for use as a casino.'

Indeed, in some cases, communities even provide commercial casino developers with tax incentives to build casinos.348 While a number of tribal governments and gaming entities have taken to acquiring commercial properties and parlaying their expertise in gaming operations to commercial entities, Tribes operating acquired commercial properties do so without the protections of IGRA.349

A solution would be to ease the process for taking land into trust by clarifying guidelines and regulations, which would provide clarity as opposed to what in some cases is a process of acquiring the land and seeing if it gets approved.350 While gaming is only one of the reasons that land is taken into trust, the process creates an obstacle to competing against commercial enterprises.351 While the future of gaming is largely online, there will always be some demand for an inperson experience. Many Tribes around the country have built first class casino destinations, often in small cities or towns.352 Yet, the trust process remains an obstacle for Tribes to operate in population centers, which hurts Tribes" ability to maximize their economic self-determination.

CONCLUSION

The operation of gambling enterprises has been an economic engine for many Native American communities around the United States. While the effect of IGRA has not been universally positive, for some, the ability to offer gambling when few others were doing so was an economic lifeline.354 Congress and the federal government has, however, abdicated its ongoing responsibility to Native American communities by failing to modernize IGRA. In failing to update IGRA, tribal gaming operations are not on a level playing field with commercial entities. Unlike commercial operators, who seek profits for sharcholders, tribal gaming is done for the benefit of communities: it builds hospitals and schools, pays for roads and scholarships, and helps communities invest in themselves.355 While many Tribes around the country exceeded the wildest estimates of Congress, if Congress does not modernize IGRA the financial future of many Tribes will be put into doubt. Gaming has been the lifeblood of innovation and economic opportunities for many tribal communities. Handicapping their ability through inaction threatens the economic security and sovereignty of Native American communities across the country. If the status quo remains, Tribes in many locations will be forced to choose between access to gaming competitive gaming markets or their sovereignty.

Footnote

1 Larry Sager, Rediscovering America: Recognizing the Sovereignty of Native American Indian Nations, 76 U. DET. MERCY L. REV. 745, 747 (1999).

2 Id.

3 See Frank Pommersheim, Economic Development in Indian Country: What Are the Questions?, 12 AM. INDIAN L. REV. 195, 195 (1984).

4 See Seminole Tribe of Fla. v. Butterworth, 491 F. Supp. 1015, 1016 (S.D. Fla. 1980) (discussing a tribal bingo hall); Moe v. Salish & Kootenai Tribes, 425 U.S. 463, 480-81 (1976) (discussing a tribal cigarette business).

5 See, e.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202, 221-22 (1987) (describing state efforts to impose regulations on California Tribes as beyond the state's authority).

6 David W. Chen, Mark Walker & Kenneth P. Vogel, How Sports Betting Upended the Economies of Native American Tribes, N.Y. Times (Feb. 10, 2023), https://www.nytimes.com/2023/02/10/sports/sports-betting-native-american-tribes.html; 25 U.S.C. §§ 2701-21 (1998).

7 Chen et al. supra note 6.

8 Tribal sovereignty is the idea that tribal nations have an "inherent right to live and govern" their own people, beyond the reach of the jurisdictions in which their lands exist. Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 CALIF. L. REV. 799, 800 (2007); see Murphy v. NCAA, 584 U.S. 453, 480-81 (2018).

9 See Murphy, 584 U.S. at 480-81 (framing the question by describing New Jersey's desire to legalize sports wagering, in contravention of the Professional and Amateur Sports Protection Act).

10 28 U.S.C. §§ 3701-04 (1992).

11 PASPA froze sports wagering in time, effectively as it existed in 1991. See 28 U.S.C. § 3704 (1992). The freeze confined sports betting, as it is commonly conceived, to four states: Nevada, Delaware, Montana, and Oregon. John T. Holden, Marc Edelman & Keith Miller, Legalized Sports Wagering in America, 44 CARDOZO L. REV. 1383, 1391-92 (2023) [hereinafter Legalized Sports Wagering]. While the latter three states had limited forms of sports wagering, featuring specific types of wagers on particular leagues, Nevada was the only state with the sportsbook style sports wagering that is commonly portrayed in films and on television, and is now fairly commonplace around the country. See id. There is also a possibility that PASPA permitted even more states to offer limited forms of sports wagering, though it is not apparent if wagering on these activities occurred after the statute's passage. See Ryan M. Rodenberg & John T. Holden, Sports Betting Has an Equal Sovereignty Problem, 67 DUKE L.J. ONLINE 1, 16, 16 n.76 (2017) (noting that a Japanese type of bicycle racing, called Keirin, may have been legal to wager on in New Mexico, as well as certain sports pools in various states).

12 At the time Murphy was decided, the Supreme Court had only found violations of the anticommandeering doctrine twice before. First, in New York v. United States, 505 U.S. 144, 188 (1992) ( "The Federal Government may not compel the States to enact or administer a federal regulatory program. The Constitution permits both the Federal Government and the States to enact legislation regarding the disposal of low level radioactive waste. The Constitution enables the Federal Government to pre-empt state regulation contrary to federal interests, and it permits the Federal Government to hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes. It does not, however, authorize Congress simply to direct the States to provide for the disposal of the radioactive waste generated within their borders."). Second, in Printz v. United States, 521 U.S. 898, 935 (1997) (holding that state law enforcement officials cannot be compelled to complete background checks on firearms purchasers as mandated by the Brady Act).

13 The NBA commissioner, Adam Silver, authored an opinion article in the New York Times advocating for the congressional repeal and federal regulation of sports wagering in 2014. See Adam Silver, Opinion, Legalize and Regulate Sports Betting, N.Y. TIMES (Nov. 13, 2014), https://www.nytimes.com/2014/11/14/opinion/nba-commissioner-adam-silver-legalize-sports-betting.html. The article appeared even as the NBA was one of the plaintiffs who sued New Jersey to stop its efforts to offer sports wagering. See id.; Murphy, 584 U.S 453. Both West Virginia and Mississippi passed legislation in advance of the Murphy decision that allowed for sports wagering in the event PASPA was ruled unconstitutional or repealed. See Legalized Sports Wagering, supra note 11, at 1404.

14 John T. Holden, Regulating Sports Wagering, 105 IOWA L. REV. 575, 579-80 (2020).

15 Matthew Waters, Legislative Tracker: Sports Betting, LEGAL SPORTS REP. (May 31, 2023), https://www.legalsportsreport.com/sportsbetting-bill-tracker/.

16 NAT'L GAMBLING IMPACT STUDY COMM'N, GAMBLING IN THE UNITED STATES 2-14 (1999), http://govinfo.library.unt.edu/ngisc/reports/2.pdf (discussing an estimate of the unregulated market as between $80-$380 billion).

17 Epeius, the carpenter, constructed the Trojan Horse for Odysseus. The Trojan Horse, GREEK MYTHOLOGY, https://www.greekmythology.com/Myths/The_Myths/The_Trojan_Horse/the_trojan_horse.html (last visited Jan. 17, 2025).

18 See Mobile Sports Bets Booming in Some States as Others Shy Away, SPECTRUM NEWS 1 (Mar. 16, 2023, 9:12 AM), https://spectrumlocalnews.com/nys/central-ny/news/2023/03/16/mobile-sports-bets-booming-in-some-states (highlighting the revenue disparities between states and the different regulatory and taxation approaches that have been taken).

19 25 U.S.C. §§ 2701-21 (1998).

20 IGRA divides gaming into three classes of activity with Class III games requiring a Compact be negotiated between the state and the federally recognized Tribe. 25 U.S.C. § 2710(d)(1)(C) (1998).

21 This Article uses the terms gaming and wagering interchangeably, while recognizing that some infer distinctions between the two terms. See What Is the Difference Between Gambling and Gaming?, CT.GOV (Aug. 24, 2021), https://portal.ct.gov/gaming/knowledge-base/articles/gambling-vs-gaming?language=en_US (postulating that gaming refers to a legal form of wagering, whereas gambling references illegal wagering); cf. Daniel L. King, Sally M. Gainsbury, Paul H. Defabbro, Nerilee Hing & Brett Abarbanel, Distinguishing Between Gaming and Gambling Activities in Addiction Research, 4 J. BEHAV. ADDICTION 215, 216 (2015) (arguing that gaming references an activity where skill and interactivity determine the outcome, in contrast to gambling where the outcome is determined predominantly by chance).

22 See generally Kim Manh, Luck of the Land: The Growth of Tribal Gaming 8 (Univ. Nev. Las Vegas Ctr. for Gaming Rsch. Occasional Paper Series, No. 45, 2018) (highlighting California as a case study for the expansion and factors leading to the success of tribal gaming since the passage of IGRA).

23 While tribal gaming has not produced a monolith of success across tribes, tribal gaming has become a significant economic engine for some and an important demonstration of tribal sovereignty even where economic success has not reached significant levels. See Kathryn R.L. Rand, There Are No Pequots on the Plains: Assessing the Success of Indian Gaming, 5 CHAPMAN L. REV. 47, 85 (2002); see also James I. Schaap, The Growth of the Native American Gaming Industry, 34 AM. INDIAN Q. 365, 368-70 (2010) (describing the growth of tribal gaming between 1988 and 2008).

24 See generally Laurie Arnold, The Ground Floor of a Movement: The National Indian Gaming Association and the Indian Gaming Regulatory Act, 48 W. HIST. Q. 345, 346 (2017) (discussing the status of tribal gaming prior to the passage of IGRA).

25 See, e.g., Matthew L.M. Fletcher, The Seminole Tribe and the Origins of Indian Gaming, 9 FIU L. REV. 255, 264 (2014) (noting that the Seminole Tribe of Florida was generating $1 million a month in bingo revenue, one year after opening a bingo hall in 1979).

26 See California v. Cabazon, 480 U.S. 202, 203 (1987).

27 Alex Tallchief Skibine, The Indian Gaming Regulatory Act at 25: Successes, Shortcomings, and Dilemmas 3 (Univ. Utah, Working Paper, 2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2200480 ( "Indian gaming has been a financial success for many Indian Tribes.").

28 Mavis Harris, 2021 Indian Gaming Revenue Jumps to Record High $39 Billion, Increases 40%, NAT'L INDIAN GAMING COMM'N (Aug. 10, 2022), https://www.nigc.gov/news/detail/2021-indian-gaming-revenue-jumps-to-record-high-39-billion-increases-40.

29 Ernest L. Stevens, Jr., IGA Report: Record Growth Continues for Indian Gaming in FY 2022, INDIAN GAMING (May 4, 2023), https://www.indiangaming.com/iga-report-record-growth-continues-for-indian-gaming-in-fy2022/#:~:text=Tribal%20government%20gaming%20operations%20generated,direct%20gross%20revenues %20in%202022.

30 See, e.g., Four Things You Should Know About Tribal Gaming in Washington, WASH. INDIAN GAMING ASS'N, https://www.washingtonindiangaming.org/four-things/ (last visited Dec. 20, 2023) ("Tribal gaming revenues fund basic services such as education, natural resources, human services and infrastructure investments.").

31 See, e.g., Grading Oklahoma Casinos, THE OKLAHOMAN, https://www.oklahoman.com/storytelling/graphic-novels/news/local/grading-ok-casionos/1642026789496/#:~:text=Oklahoma%20has%20more%20Native%20American,the%20state's%20se cond%2D%20largest%20industry (last visited Sept. 2, 2023) (noting that tribal gaming is Oklahoma's second-largest industry).

32 See Amber Sampson, Native American Tribes Bring Fresh Energy and Time-Tested Traditions to Las Vegas Hospitality, LAS VEGAS WKLY. (June 23, 2022, 2:00 AM), https://lasvegasweekly.com/news/2022/jun/23/native-american-tribes-bring-energy-tradition/ (noting that the Palms Casino was purchased by the San Manuel Gaming and Hospitality Authority, a subsidiary of the San Manuel Band of Mission Indians, and that the Seminole Tribe of Florida's Hard Rock International brand was acquiring the Mirage hotel on the Las Vegas strip).

33 In 2019, Representative Anthony Brindisi of New York introduced legislation that would have modernized IGRA by allowing Tribes to offer mobile (or online) wagering; however, the bill never made it to a vote. H.R. 5502, 116th Cong. (introduced Dec. 19, 2019).

34 See generally 25 U.S.C. § 2710(d)(8)(B) (describing authorization to approve Tribal-State compacts).

35 See, e.g., Jill R. Dorson, Sorry, We're Closed: California Tribes Poised to Kill Sports Betting Again, SPORTSHANDLE (Nov. 8, 2022), https://sportshandle.com/california-closed-tribes-kill-wagering/ ("Tribes [in Michigan] chose to be regulated by the state in an effort to get wagering up and running sooner.").

36 See John T. Holden & Marc Edelman, A Short Treatise on Sports Gambling and the Law: How America Regulates Its Most Lucrative Vice, 2020 WIS. L. REV. 907, 946 (2020) (noting that the historical profit margin for bookmakers is around five percent).

37 See Eric Lipton & Kenneth P. Vogel, Cigars, Booze, Money: How a Lobbying Blitz Made Sports Betting Ubiquitous, N.Y. TIMES (Nov. 20, 2022), https://www.nytimes.com/2022/11/20/business/sports-betting-lobbying-kansas.html (observing "the gambling industry views sports betting as a steppingstone to an even loftier ambition: the legalization of online casino gambling, in which Americans would be able to wager on poker and other games anywhere with an internet connection").

38 Upwards of eighty-five percent of all sports wagering is done online. See Mike Reynolds, Online Sports Wagering, Engaged Fans Key to Sports Betting Growth, S&P GLOB. MKT. INTEL. (Oct. 20, 2021), https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/online-wagering-engaged-fans-key-to-sports-betting-growth-66575074.

39 Chen et al., supra note 6.

40 Rob Capriccioso, BIG BET: Florida-Seminole Tribe Compact Offers Larger Online Sports-Betting Implications, TRIBAL BUS. NEWS (Aug. 30, 2021), https://tribalbusinessnews.com/sections/gaming/13602-big-bet-florida-seminole-tribe-compact-offers-larger-online-sports-betting-implications.

41 W. Flagler Assocs. v. Haaland, 71 F.4th 1059, 1068 (D.C. Cir. 2023).

42 Indeed, sports betting can be traced to Ancient Greece and some of the early Olympic Games, and has been found in Ancient Roman and Egyptian cultures. See Holden & Edelman, supra note 36, at 910.

43 The ability to raise revenue without raising taxes has long been viewed as one of the principal reasons for legalizing and regulating gambling. See, e.g.,John T. Holden, North American Sports Leagues and Gambling Policy: A Comparative Analysis, 14 INT'L SPORTS L.J. 242, 243 (2014).

44 G. Robert Blakey, Gaming, Lotteries, and Wagering: The Pre-Revolutionary Roots of the Law of Gambling, 16 RUTGERS L.J. 211, 228 (1985).

45 Kathryn Kisska-Schulze & John T. Holden, Betting on Education, 81 OHIO ST. L.J. 465, 483 (2020).

46 Id.

47 Id.

48 Blakey, supra note 44, at 238.

49 Id.

50 See Holden & Edelman, supra note 36, at 910-11.

51 Blakey, supra note 44, at 240-41.

52 Kisska-Schulze & Holden, supra note 45, at 484.

53 Gambling games like poke, a French predecessor to poker, emerged in the New Orleans area in the 1820s. HERBERT ASBURY, SUCKER'S PROGRESS: AN INFORMAL HISTORY OF GAMBLING IN AMERICA 23 (1938). Professor I. Nelson Rose categorizes the pre-revolutionary era as the "first wave" of legal gambling in the United States. I. Nelson Rose, Gambling and the Law: The Third Wave of Legal Gambling, 17 VILLANOVA SPORTS & ENT. L.J. 361, 368 (2010).

54 John T. Holden, Exploring the "Excess" in Excessive: Reimagining the Eighth Amendment's Excessive Fines Clause in the Wake of Stars Interactive, 65 ARIZ. L. REV. 877, 883 (2023).

55 Rose, supra note 53, at 369.

56 Id.

57 Id.

58 Id. at 370.

59 ASBURY,supra note 53, at 164.

60 Rose, supra note 53, at 369.

61 Id. at 370.

62 Id. at 259.

63 Id.

64 Id. at 263.

65 Id.

66 Rose, supra note 53, at 370.

67 Id. at 371.

68 J. Mark Powell, Holy Cow! History: America's Biggest Lottery Scandal, JACKSONVILLE J. COURIER (Nov. 13, 2022), https://www.myjournalcourier.com/news/article/holy-cow-history-17574460.php#.

69 Id. The Louisiana Lottery Corporation launched in 1869 and, in exchange for an annual charitable contribution, was tax exempt. Id. $600,000 in 1869 has roughly the equivalent purchasing power of $13.9 million in today's dollars. See $600,000 in 1869 Is Worth $13,923,750 Today, CPI INFLATION CALCULATOR, https://www.officialdata.org/us/inflation/1869?amount=600000 (last visited Jan. 17, 2025).

70 Powell, supra note 68.

71 Id.

72 18 U.S.C. § 1302 (1890). The statute has subsequently been amended to include some exceptions. See generally Scope of Exemption Under Federal Lottery Statutes for Lotteries Conducted by a State Acting Under the Authority of State Law, 32 Op. O.L.C. 129 (2008), https://www.justice.gov/file/482191/download.

73 See Lottery Case, 188 U.S. 321, 363-64 (1903).

74 Rose, supra note 53, at 373.

75 Act of March 19, 1931, c.99, NEV. LAWS 165; see also Becky Harris & John T. Holden, Reshaping College Athlete Sports Betting Education, 47 B.Y.U. L. REV. 389, 397 (2022) (noting Florida and Maryland authorized slot machines during this period).

76 DAVID G. SCHWARTZ, CUTTING THE WIRE: GAMING PROHIBITION AND THE INTERNET 46 (2005).

77 Id. at 46-47.

78 The Kefauver Committee was led by Tennessee Senator Estes Kefauver, who held hearings on organized crime across 14 cities during the early 1950s. John T. Holden, Through the Wire Act, 95 WASH. L. REV. 677, 693 (2020).

79 Id.

80 For instance, the Kefauver Commission was largely a show put on by the political aspirant and future presidential candidate Estes Kefauver. Peter Carlson, Encounter: Frank Costello vs. Estes Kefauver, HISTORYNET (Nov. 14, 2016), https://www.historynet.com/encounter-frank-costello-vs-estes-kefauver/. He famously brought Frank Costello, a notorious organized crime boss, in front of the commission, who was eventually convicted for contempt after refusing to reveal his net worth; the federal government was never able to make more serious charges stick. Id.

81 Organized Crime in Interstate Commerce, Final Report of the Special Committee to Investigate Organized Crime in Interstate Commerce, 81st Cong. 1st Sess. (1951).

82 18 U.S.C. § 1084 (a) (1961).

83 Id.

84 United States v. Lyons, 740 F.3d 702, 713 (1st Cir. 2014).

85 See id. ("[T]he safe harbor provision only applies to the transmission of 'information assisting in the placing of bets.' The safe harbor provision does not exempt from liability the interstate transmission of bets themselves.").

86 See Holden & Edelman, supra note 36, at 917 (noting that along with the Wire Act, Congress also passed the Wagering Paraphernalia Act, and later the Sports Bribery Act, the RICO Act, and the Illegal Gambling Business Act, which had the effect of federalizing virtually any state gambling operation of size).

87 See, e.g., John T. Holden & Marc Edelman, Regulating Vice: What the US Marijuana Industry Can Learn from State Governance of Sports Gambling, 2021 U. ILL. L. REV. 1051, 1054-70 (2021) (discussing the evolution of both marijuana and sports gambling policy in the United States).

88 See generally Franklin Ducheneaux, The Indian Gaming Regulatory Act: Background and Legislative History, 42 ARIZ. ST. L.J. 99, 100-04 (2010) (describing the sovereign status of the Cherokee Nation and, that without congressional approval, state law was not applicable on tribal reservations).

89 30 U.S. 1, 17 (1831) ("[T]he Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government.").

90 31 U.S. 515, 562 (1832) (holding that application of the law of the state of Georgia on Cherokee Nation land was an infringement on the "power of the nation to govern itself").

91 Ducheneaux, supra note 88, at 104.

92 Id. (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 313, 322 (1978)).

93 Id. at 104-05.

94 Id. at 105.

95 Jill De La Hunt, The Canons of Indian Treaty and Statutory Construction: A Proposal for Codification, 17 U. MICH.J.L. REFORM 681, 683 (1984).

96 Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831); see also De La Hunt, supra note 95, at n.14. Hunt also highlights that the trust obligations may have been codified in both the commerce clause and/or the treaties clause of Article II. Id.

97 De La Hunt, supra note 95, at 685.

98 Id. at 685-86.

99 KATHRYN R.L. RAND & STEVEN A. LIGHT, INDIAN GAMING LAW & POLICY 19 (2d ed. 2014).

100 Id. at 20.

101 Id.

102 Id. at 21.

103 Id.

104 Id.

105 Id.

106 William N. Evans & Julie H. Topoleski, The Social and Economic Impact of Native American Casinos 1 (Nat'l Bureau Econ. Rsch., Working Paper No. 9198, 2002), https://www.nber.org/system/files/working_papers/w9198/w9198.pdf.

107 Gary C. Anders, Indian Gaming: Financial and Regulatory Issues, 556 ANNALS AM. ACAD. POL. & SOCIAL SCI. 98, 99 (1998); Schaap, supra note 23, at 366.

108 The tobacco sales operated tax-free because the location of the shop was on the Seminole Tribe's sovereign land and thus not subject to taxation by the State of Florida. Deanna Butler, Betting Big on Bingo in the 1970s, FLA. SEMINOLE TOURISM (Mar. 24, 2023), https://floridaseminoletourism.com/1970s-bingo-halls/.

109 Seminole Tribe of Fla. v. Butterworth, 658 F.2d 310, 311 (Former 5th Cir. 1981). Passed in 1953, Public Law 280 initially granted Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin criminal jurisdiction over tribal citizens and tribal reservations located within those states. See Public Law 280 and Law Enforcement in Indian Country-Research Priorities, U.S. DEP'T OF JUST. ii, 3 (Dec. 2005), https://www.ojp.gov/pdffiles1/nij/209839.pdf. Subsequently, an additional ten states including Florida were given the ability to adopt the law giving the State criminal jurisdiction. See id. The Tribes were not consulted as part of the passage of Public Law 280. See id.

110 Id. at 314-15.

111 Id. at 316.

112 Id. at 316-17.

113 The Butterworth decision would launch forward similar cases around the country, affirming tribal sovereignty around gaming operations. See Barona Grp. of the Capitan Grande Band of Mission Indians v. Duffy, 694 F.2d 1185, 1189-90 (9th Cir. 1982); Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245, 249-50 (D. Conn. 1986); Oneida Tribe of Indians v. Wisconsin, 518 F. Supp. 712, 720 (W.D. Wis. 1981); see also Nicholas S. Goldin, Casting a New Light on Tribal Casino Gaming: Why Congress Should Curtail the Scope of High Stakes Indian Gaming, 84 CORNELL L. REV. 798, 812, n.106 (1999) (observing the fallout of the Butterworth decision around the country).

114 Goldin, supra note 113, at 812.

115 Id. at 813.

116 Id.

117 H.R. 1920 99th Cong. (1985).

118 Id.

119 Id.

120 S. REP. NO. 99-493, at 1 (1986).

121 Id., at 2.

122 Id. at 2-3.

123 See Stefanie A. Lorbiecki, Indian Sovereignty Versus Oklahoma's Gambling Laws, 20 TULSA L.J. 605, 621 (1985) (observing bingo operations generated jobs and revenue for the tribes, with an economic impact on surrounding businesses).

124 I. Nelson Rose, Current Issues in Gambling Laws, 8 WHITTIER L. REV. 245, 246 (1986).

125 Id. at 249.

126 Id. at 250.

127 480 U.S. 202, 221-22 (1987).

128 694 F.2d 1185, 1189-90 (9th Cir. 1982) (holding that bingo is not contrary to California's public policy and that the collection of money by the Barona Tribe to fund "health, education and general welfare" was as "worthy" as any of the other allowable purposes for bingo operation in the State).

129 Rose, supra note 124, at 249.

130 Cabazon Band of Mission Indians v. City of Indio, 694 F.2d 634, 636 (9th Cir. 1982).

131 Id.

132 Id. at 639.

133 Cabazon Band of Mission Indians v. Cnty. of Riverside, 783 F.2d 900, 901 (9th Cir. 1986).

134 Id. at 906.

135 See generally Barona Group of the Capitan Grande Band v. Duffy, 694 F.2d 1185, 1185 (9th Cir. 1982); Langley v. Ryder, 778 F.2d 1092, 1093 (5th Cir. 1985); Oneida Tribe of Indians v. Wisconsin, 518 F. Supp. 712, 712 (W.D. Wisc. 1981); Mashantucket Pequot Tribe v. McGuigan, 626 F. Supp. 245, 245 (D. Conn. 1986). The Sixth Circuit, in United States v. Dakota, effectively stood alone in its rejection of the proposed Michigan gaming property. 796 F.2d 186, 189 (6th Cir. 1986).

136 Cabazon Band of Mission Indians, 783 F.2d 901.

137 California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

138 See Seminole Tribe of Fla. v. Butterworth, 658 F.2d 310, 311 (Former 5th Cir. 1981); Duffy, 694 F.2d at 1186; Dakota, 796 F.2d at 186; Mashantucket Pequot Tribe, 626 F.Supp. at 246; Iowa Tribe of Indians v. Kansas, 787 F.2d 1434, 1435 (10th Cir. 1986).

139 See Cabazon Band of Mission Indians, 480 U.S. at 202-04.

140 Id. at 204-05.

141 Id. at 205.

142 Id.

143 Id. at 205.

144 Id.

145 Id. 207 (emphasis added) (citing Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 154 (1980)).

146 Id. at 207-08.

147 Id. at 210.

148 Id.

149 Id. at 217-18.

150 Id. at 220.

151 Id. at 222.

152 Id. (Stevens, J., dissenting).

153 Id. The dissent further highlights that the majority's reasoning could also lead to cockfighting or houses of prostitution, along with other activities, though it is not immediately clear if the dissent believed tattoo parlors to be illegal. Id.

154 Id. at 227.

155 See Kaighn Smith Jr., Tribal Self-Determination and Judicial Restraint: The Problem of Labor and Employment Relations within the Reservation, 2008 MICH. ST. L.REV. 505, 527 (2008) ("[T]he Supreme Court's precedent admonishes courts to refrain from allowing external authorities to undermine tribal authority in this area; for it directly implicates tribal control over the reservation community and, more specifically, the allocation of resources from economic activity therein.").

156 See Ducheneaux, supra note 88, at 149-51 (describing various bills introduced between the 98th and 100th Congresses, including seven introduced during the first year of the 100th Congress in 1987).

157 See id. at 112 (describing the backlash against Tribes during the Reagan Administration's first term and noting an early proposal by the Department of Justice would have usurped tribal sovereignty and subjected Tribes to state laws in the same regard as charitable or business organizations were regulated).

158 Id. at 152.

159 Id. at 154.

160 Id. at 165.

161 S. REP. NO. 100-446, at 1 (1988).

162 Id.

163 Id.

164 Id. at 1-2.

165 Id. at 7.

166 Id.

167 Id.

168 Id.

169 Id. at 13.

170 Id. at 14

171 Id.

172 Id. at 22-23.

173 Id.

174 Id. at 23.

175 Id.

176 Id.

177 Id. at 5-6.

178 Id. at 6.

179 Roland J. Santoni, The Indian Gaming Regulatory Act: How Did We Get Here? Where Are We Going?, 26 CREIGHTON L. REV. 387, 403-04 (1993).

180 25 U.S.C. § 2706(b).

181 Id. § 2710(b).

182 Id. § 2710(b)(1).

183 Id. § 2710(b)(2)(A)(i)-(v). Tribes that had been in continuous operation for three years before the passage of IGRA also had the ability to petition for self-regulation of class II gaming. Id. § 2710(c)(3).

184 See, e.g., Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 47 (1996) (challenging Congress's ability to compel a state to negotiate on sovereign immunity grounds); see also In re Indian Gaming Related Cases, 331 F.3d 1094, 1095 (9th Cir. 2003) (arguing that California had not negotiated in good faith to conclude a gaming compact).

185 25 U.S.C. § 2710(d)(3)(B).

186 See Seminole Tribe, 517 U.S. at 47.

187 25 U.S.C. § 2710(d)(7)(B)(iv)-(v).

188 While management contracts are subject to approval, other agreements, such as consulting agreements, are not. See Heidi McNeil Staudenmaier, Tribal Gaming Management Contracts: Decisions Recent Case, 21 PREVENTIVE L. REP. 9 (Winter 2003).

189 See 25 U.S.C. § 2711.

190 Id. § 2711(b).

191 Id. § 2711(e). There are a variety of provisions, but those that would commonly arise as reasons to disapprove a management contract include a contract with an individual who has a felony or gaming offense, or where a contractor has failed to comply with IGRA or the NIGC's regulations. Id.

192 Id. § 2711(g).

193 Id. § 2711(i).

194 Id. § 2719(a). The statute also carved out land, located in Oklahoma, specifying that former reservations would be allowed, or are contiguous to land held in trust. Id. § 2719(a)(2)(A)(1)-(2).

195 See generally Ernest L. Stevens, Jr., IGRA at 35 Years: The Continued Evolution of Indian Gaming, INDIAN GAMING (Mar. 30, 2023), https://www.indiangaming.com/igra-at-35-years-the-continued-evolution-of-indian-gaming/ ("The Act is far from perfect, but tribal governments have made it work. Indian gaming today remains the most successful economic development tool employed by tribal governments, providing them a consistent and stable source of revenue that tribes have used to rebuild their communities.").

196 Katherine Spilde & Jonathan B. Taylor, Economic Evidence on the Effects of the Indian Gaming Regulatory Act on Indians and Non-Indians, 17 UNLV GAMING RSCH. & REV. J. 13, 13 (2013).

197 Id. at 16.

198 Id. at 17.

199 See id. at 18.

200 See generally id. at 20 (observing that the economic benefits have been fairly well distributed amongst gaming Tribes, and while there are some outliers at the top who have incredibly successful operations, nearly half of tribal gaming operations were earning at least $25 million in revenue in 2007).

201 See Ryan M. Rodenberg & John T. Holden, Sports Betting Has an Equal Sovereignty Problem, 67 DUKE L.J. ONLINE 1, 11-17 (2017) (describing PASPA's legislative history and highlighting the unusual number of carveouts incorporated into the statute).

202 28 U.S.C. §§ 3701, 3704 (1992).

203 See id. § 3704(b).

204 Murphy v. NCAA, 584 U.S. 453, 479 (2018) (holding that PASPA's mandates to states requiring they maintain their laws governing sports betting unconstitutionally commandeers states' legislative power).

205 Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 51-52 (1996).

206 Id.

207 Id. at 53.

208 Id. at 76.

209 See generally Michael Grant, Comment, Seminole Tribe v. Florida: Extinction of the "New Buffalo", 22 AM. INDIAN L. REV. 171, 189 (1997) (arguing the Seminole Tribe decision posed a threat to the viability of the tribal gaming industry).

210 Seminole Tribe has undoubtedly led to a number of standoffs between states and Tribes, but it has been less disastrous than many feared at the time. See, e.g., Barbara Hoberock, Chickasaw Nation Reaches Out to Federal Agency on Standoffwith State over Tribal Gaming Compacts, TULSA WORLD (Dec. 5, 2019), https://tulsaworld.com/news/chickasaw-nation-reaches-out-to-federal-agency-on-standoff-with-state-over-tribal-gaming-compacts/article_dab87bd3-7583-5b8f-b3b9-aaec4b52ed60.html (describing the tense relationship between the Oklahoma governor and the state's Tribes stemming from a dispute over renegotiating of gaming compacts). California waived sovereign immunity in suits stemming from IGRA's good faith negotiation clause. CAL. GOV'T CODE § 98005 (2021).

211 Matthew L.M. Fletcher, Bringing Balance to Indian Gaming, 44 HARV.J. ON LEGIS. 39, 58 (2007).

212 Id. at 59. Indeed, in a number of cases states pushed for seemingly ever-increasing shares of revenue. Id.

213 Id. at 60.

214 See 25 U.S.C. § 2710(d)(3)(C).

215 See, e.g., Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 466-67 (1995) (holding the state of Oklahoma could not impose an income tax on citizens of the Chickasaw Nation).

216 Katie Eidson, 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, 325-27 (2005).

217 For example, a number of prominent sports betting operators expressed fury that the Seminole Tribe of Florida had been granted exclusivity of the online sports betting market. The exclusivity, however, came with $500 million in annual revenue sharing payments to the state. The $500 million figure is a sum that would likely not be attainable from commercial operators only able to offer sports betting. See John Holden, What Went Wrong for the Florida Education Champions Ballot Initiative, PLAYFL (July 1, 2024), https://www.playfl.com/the-florida-education-champions-ballot-initiative-announces-defeat/ (noting there was little possibility that commercial operators could guarantee the state that it would receive $500 million from taxing sports wagering revenue).

218 C.f. Eidson, supra note 216, at 338.

219 See generally Heidi McNeil Staudenmaier, Off-Reservation Native American Gaming: An Examination of the Legal and Political Hurdles, 4 NEV. L.J. 301, 301-02 (2004) (describing the land-into-trust process and the requirement that gaming take place on "Indian lands").

220 25 U.S.C. § 2702(3).

221 Id. § 2703(4)(A), (B).

222 Fletcher, supra note 211, at 67.

223 Id.

224 25 U.S.C. § 2703(4)(A) (addressing gaming on reservation land).

225 Fletcher, supra note 211, at 67.

226 See id. at 68.

227 Id.

228 25 U.S.C. § 5108 (1934).

229 Kathryn R.L. Rand, Alan P. Meister & Steven Andrew Light, Questionable Federal "Guidance" on Off-Reservation Indian Gaming: Legal and Economic Issues, 12 GAMING L. REV. & ECON. 194, 195-96 (2008).

230 Id. at 196. There is a sixteen-step process to acquire land, making the process quite long and arduous and the system creates many opportunities for challenges along the way. See Fee-to-Trust for Discretionary Acquisitions, DEP'T INTERIOR, BUREAU INDIAN AFF. (last visited Sept. 2, 2023), https://www.bia.gov/sites/default/files/dup/assets/bia/ots/pdf/Fee-to-Trust_Process_for_Discretionary_Acquisitions.pdf.

231 Rand et al., supra note 229, at 196-97.

232 Id. at 198.

233 Id.

234 Id. at 199.

235 See, e.g., Michigan v. Bay Mills Indian Cmty, 572 U.S. 782, 786 (2014) (noting "[i]n 2010, Bay Mills opened another class III gaming facility in Vanderbilt, a small village in Michigan's Lower Peninsula about 125 miles from the Tribe's reservation").

236 Matthew L. M. Fletcher, (Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community, 123 YALE L.J. 311, 313 (2013). The land was purchased with money received pursuant to the Michigan Indian Land Claims Settlement Act of 1997, which included a provision allowing for the purchase of lands to be held in trust, and those lands would be held like other similarly situated lands. Id. The Bay Mills Tribe was sued jointly by the State of Michigan and the Little Traverse Bay Bands of Odawa Indians to stop construction of the casino. Id.

237 See Bay Mills Indian Cmty., 572 U.S. at 782.

238 Id. at 799.

239 While the Bay Mills decision predates the confirmation of Justice Neil Gorsuch to the Court, who has been seen as "the fiercest proponent of Native American rights on the Supreme Court," the case marked an inflection point on a series of cases that the Court ruled in favor of decisions acknowledging tribal sovereignty. See Adam Liptak, Justice Neil Gorsuch Is a Committed Defender of Tribal Rights, N.Y. TIMES (June 15, 2023), https://www.nytimes.com/2023/06/15/us/politics/neil-gorsuch-supreme-court-opinions.html#:~:text=In%20a%20pair%20of%20opinions,federal%20appeals%20court%20in%20Denver (observing a trend in Justice Gorsuch's voting in cases involving Native American rights); see also Haaland v. Brackeen, 599 U.S. 255, 280 (2023) (holding the Indian Child Welfare Act, which preferences placement of Native American children with other tribal members or members of another Native American community, is within Congress's Article I powers); McGirt v. Oklahoma, 591 U.S. __, 36 (2020) (holding a large portion of Eastern Oklahoma remains Native American lands, and thus, under the Major Crimes Act, the federal government maintains jurisdiction over crimes committed by Native Americans). While there have been several significant victories during Justice Gorsuch's time on the Bench, decisions have not unanimously recognized tribal sovereignty. Cf. Oklahoma v. Castro-Huerta, 597 U.S. ___, 1 (2022) (clarifying that, while the federal government maintains exclusive jurisdiction over major crimes committed by Native Americans in the eastern part of Oklahoma found to be Native American lands, jurisdiction over crimes committed on the land by non-Native Americans is shared between the state and the federal government).

240 Brian L. Pierson, The Precarious Sovereign Immunity of Tribal Business Corporations, FED. LAW. 59 (Apr. 2015), https://www.fedbar.org/wp-content/uploads/2015/04/feature6-apr15-pdf-1.pdf.

241 Bay Mills Indian Cmty., 572 U.S. at 799 n.8.

242 Pierson, supra note 240, at 61.

243 Randall K. Q. Akee, Katherine A. Spilde & Jonathan B. Taylor, The Indian Gaming Regulatory Act and Its Effects on American Indian Economic Development, 29 J. ECON. PERSPS.185, 186 (2015).

244 Id.

245 Id. at 196.

246 Id. at 186.

247 Id. at 196.

248 Levi Rickert, Indian Gaming 2022 Revenue Hits Historic $41 Billion, NATIVE NEWS ONLINE (July 19, 2023), https://nativenewsonline.net/currents/indian-gaming-revenue-hit-historic-41- billion#:~:text=Indian%20gaming%20revenues%20soared%20to,%242%20billion%20over%20fiscal%202021.

249 Id.

250 See Dustin Foote, The Odds of Sports Gambling Legalization in a Pandemic, DEADSPIN (June 18, 2020, 9:16 AM), https://deadspin.com/the-odds-of-sports-gambling-legalization-in-a-pandemic-1844078634/.

251 Murphy v. NCAA, 584 U.S. 453, 477 (2018).

252 See generally Jeremy B. White, The 'Holy Grail' of Gambling Could Break American Sports Betting Wide Open, POLITICO (Mar. 30, 2022, 4:30 AM), https://www.politico.com/news/2022/03/30/sports-betting-gambling-casinos-card-rooms-00020319.

253 See Legalized Sports Wagering, supra note 11, at 1404 (noting that, very shortly after the decision, West Virginia and Delaware launched their sports betting operations). West Virginia and Pennsylvania passed their sports wagering bills in advance of the Murphy decision. See Adam Liptak & Kevin Draper, Supreme Court Ruling Favors Sports Betting, N.Y. TIMES (May 14, 2018), https://www.nytimes.com/2018/05/14/us/politics/supreme-court-sports-betting-new-jersey.html; John Raby, West Virginia Senate Passes Sports Wagering Bill, ASSOC. PRESS (Feb. 20, 2018, 2:10 PM), https://apnews.com/general-news-e68c5eec50c24ae9a1b0f05813ca2457; Charles Thompson, Pennsylvania Senate Approves Major Expansion of Legal Gambling, PENNLIVE (Oct. 26, 2017, 12:53 AM), https://www.pennlive.com/politics/2017/10/pennsylvania_senate_approves_m.html.

254 See generally Holden & Edelman, supra note 36, at 912-24 (describing the evolution of sports league views on sports gambling).

255 Silver, supra note 13.

256 See generally John T. Holden, Christopher M. McLeod & Marc Edelman, Regulatory Categorization and Arbitrage: How Daily Fantasy Sports Companies Navigated Regulatory Categories Before and After Legalized Gambling, 57 AM. BUS. L.J. 113, 125-35 (2020) (describing the emergence of the daily fantasy sports industry).

257 Id.; Tania Micahelian, Can Sports Betting Help States Facing Massive Budget Deficits?, BETTING USA (Sept. 20, 2021), https://www.bettingusa.com/states-sports-betting-budget-holes/.

258 The Springfield Monorail refers to an episode of The Simpsons titled "Marge vs. the Monorail", where the town's people were distracted by a monorail salesman and fell for his false promises, choosing the monorail project over a less flashy revitalization of Springfield's main street. The Simpsons: Marge vs. the Monorail (Fox television broadcast Jan. 14, 1993).

259 Kendall Baker, States See Disappointing Tax Revenue from Legal Sports Betting, AXIOS (Apr. 22, 2019), https://www.axios.com/2019/04/22/legal-sports-betting-tax-revenue-new-jersey.

260 Sean McDonnell, Why Gov. Mike DeWine Pushed for Doubling Taxes on Ohio's Sports Gambling, CLEVELAND.COM (July 10, 2023, 11:03 AM), https://www.cleveland.com/news/2023/07/why-gov-mike-dewine-pushed-for-doubling-taxes-on-ohios-sports-gambling.html. While a number of states have seen disappointing revenue from legalized sports betting, other states, like New York, which has a fifty-one percent tax rate, have generated substantial revenue, though it has led to numerous calls from industry participants indicating that it makes it more difficult for them to turn a profit. Robert Harding, DraftKings, FanDuel Warn High Tax Rate Could Threaten NY Mobile Sports Betting Success, THE CITIZEN (Feb. 13, 2023), https://auburnpub.com/news/local/govt-and-politics/draftkings-fanduel-warn-high-tax-rate-could-threaten-ny-mobile-sports-betting-success/article_f775b29d-3dd4-5fb8-ba12-39eaf7abe8f6.html.

261 Alexis Keenan, Why Sports Betting Is a Low-Margin Business, YAHOO! FIN. (Feb. 16, 2022), https://news.yahoo.com/why-sports-betting-is-a-low-margin-business-214216621.html.

262 The common perception is that sportsbooks historically operate by holding about five percent of the total money bet. See generally Steven D. Levitt, Why Are Gambling Markets Organized So Differently from Financial Markets?, 114 ECON. J. 223, 226-28 (2004) (providing background on the American football betting market). While sportsbooks undoubtedly exploit their superior knowledge to generate additional profits from less informed bettors, sportsbooks are still responsible for managing their risk exposure. Id. There are a variety of risk management strategies; the most common way sportsbooks manage risk is to adjust betting lines to attract a similar amount of money on each side of a betting proposition. Id.

263 See, e.g., Internet Casinos Thrive in Six States. So Why Hasn't It Caught on More Widely in the U.S.?, THE INTELLIGENCER (Nov. 24, 2023), https://www.theintelligencer.net/news/top-headlines/2023/11/internet-casinos-thrive-in-six-states-so-why-hasnt-it-caught-on-more-widely-in-the-u-s/.

264 Id.

265 Zack Jones, Rise of the IGaming Industry: Is the United States Ready to Accept Online Casinos?, Forbes (Apr. 21, 2021, 11:05 AM), https://www.forbes.com/sites/zackjones/2021/04/21/the-rise-of-the-igaming-industry-what-is-in-store-for-the-citizens-of-united-states/?sh=f78e60d35550.

266 Sports gambling advertising has been widely criticized in the five years since the Supreme Court's Murphy decision. See, e.g., Joe Hernandez, Sports Betting Ads Are Everywhere. Some Worry Gamblers Will Pay a Steep Price, NPR (June 18, 2022), https://www.npr.org/2022/06/18/1104952410/sports-betting-ads-sports-gambling.

267 See generally Chen et al., supra note 6 (explaining the challenges that the expansion of sports betting has brought to a number of tribal gaming operations).

268 See Raymond Welch & Greg Sarris, Online Gambling Measure Would Hurt Indian Tribes, CAL MATTERS (Feb. 7, 2022), https://calmatters.org/politics/2022/02/online-gambling-measure-would-hurt-indian-tribes/ (noting the challenges Tribes face in environments with online gambling).

269 25 U.S.C. § 2703(4).

270 See California v. Iipay Nation of Santa Ysabel, 898 F.3d 960, 968-69 (9th Cir. 2018) (indicating the Ninth Circuit's interpretation of IGRA as prohibiting online gaming). While held by many, the view is not held universally. Cf., Steve Schult, Legal Expert: Shutting Down Florida Sports Betting Was 'Completely Wrong', PLAYFL (Feb. 23, 2023), https://www.playfl.com/legal-expert-shutting-down-florida-sports-betting-completely-wrong/ (arguing that IGRA provides a state and compacting Tribe broad latitude to agree on virtually anything gambling related).

271 See Chen et al., supra note 6.

272 See, e.g., Iipay Nation of Santa Ysabel, 898 F.3d at 968-69 (noting IGRA protects gaming that takes place on Indian lands, and that placing a bet while not on tribal land that passes through a server on tribal land does not constitute gaming activity on Indian land).

273 Robert J. Williams, Robert T. Wood & Jonathan Parke, History, Current Worldwide Situation, and Concerns with Internet Gambling, in ROUTLEDGE INTERNATIONAL HANDBOOK OF INTERNET GAMBLING 3 (Robert J. Williams, Robert T. Wood & Jonathan Parke eds., 2012).

274 Id.

275 See generally Marc Edelman, John T. Holden & Adam Scott Wandt, U.S. Fantasy Sports Law: Fifteen Years After UIGEA, 83 OHIO ST. L.J. 117, 118 n.2 (2022) (noting that there was an absence of legal mechanisms for cracking down on online gambling until the 2006 passage of the Unlawful Internet Gambling Enforcement Act).

276 Bill McAllister, Idaho Tribe's Site Draws Legal Challenge, WASH. POST (Nov. 17, 1997), https://www.washingtonpost.com/wp-srv/national/longterm/intgambling/stories/idaho111797.htm.

277 Id.

278 Id.

279 Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1104-05 (8th Cir. 1999).

280 AT&T Corp. v. Coeur d'Alene Tribe, 295 F.3d 899, 903 (9th Cir. 2002).

281 Id. at 901.

282 See, e.g., Letter from Montie R. Deer, Chairman, NIGC, to Ernest L. Stensgar, Chairman, Coeur d'Alene Tribe (June 22, 1999).

283 Id.

284 Letter from Penny J. Coleman, Deputy Gen. Couns., NIGC, to Terry Barnes, Dir. of Gaming, Tele-Mark, LLC (June 9, 2000).

285 Letter from Kevin K. Washburn, Gen. Couns., NIGC, to Robert A. Rosette, Monteau, Peebles & Crowell (Oct. 26, 2000).

286 Letter from Kevin K. Washburn, Gen. Couns., NIGC, to Joseph M. Speck, Nic-A-Bob Prods. (Mar. 13, 2001).

287 See, e.g., Jarrett Huff, Ute Tribes Ask for Help to Offer Online Colorado Sports Betting, PLAY COLO. (Jan. 25, 2023); New Mexico Tribal Casino to Launch Sports Betting, A.P. (Oct. 10, 2018, 7:28 PM). https://apnews.com/article/d5b7a3469587451ba0241baac632041c.

288 Complaint (Certification of Arbitration Award), Exhibit 1, Iowa Tribe of Okla. v. Oklahoma, No. 15- CV-01379, 2016 WL 1562976 (W.D. Okla. Nov. 24, 2015), ECF No. 1-1. The decision was subsequently affirmed by a district court without any analysis of the merits. See Iowa Tribe of Okla. v. Oklahoma, No. 15- CV-01379, 2016 WL 1562976 at ·2 (W.D. Okla. 2016).

289 Complaint (Certification of Arbitration Award), Exhibit 1, Iowa Tribe of Okla. v, Oklahoma, No. 15- CV-01379, 2016 WL 1562976 (W.D. Okla. Nov. 24, 2015), ECF No. 1-1.

290 See generally New Mexico Tribal Casino to Launch Sports Betting, supra note 287.

291 See generally W.C. Mark Weidenmaier, Judging-Lite: How Arbitrators Use and Create Precedent, 90 N.C. L. REV. 1091, 1092-93 (2012) (discussing the widely held view that arbitration does not create precedent).

292 California v. Iipay Nation of Santa Ysabel, 898 F.3d 960, 962 (9th Cir. 2018).

293 Id.

294 Id.

295 Id. at 963.

296 Id.

297 Id.

298 Id. at 967-68.

299 PlaintiffUnited States' Memorandum of Points and Authorities in Support of Motion for Summary Judgment at 6-7, California v. Iipay Nation of Santa Ysabel, No. 14-CV-02724, (S.D. Cal. 2016), ECF No. 61-1.

300 State of California's Memorandum in Support of Motion for Summary Judgment at 19-20, California v. Iipay Nation of Santa Ysabel, No. 14-CV-02724, (S.D. Cal. 2016), ECF No. 63-1.

301 California v. Iipay Nation of Santa Ysabel, 898 F.3d 960, 968-69 (9th Cir. 2018) (holding that the bingo offering violated UIGEA).

302 Chris Gerlacher, Florida Sports Betting Case Could Reshape Tribal Gaming Across US, PLAYFL (June 23, 2023), https://www.playfl.com/florida-sports-betting-case-could-reshape-tribal-gaming/.

303 Legalized Sports Wagering, supra note 11, at 1404-05.

304 New Mexico Tribal Casino to Launch Sports Betting, supra note 287.

305 Natalie Rodriguez, 5 Tips for Smooth Gaming Compact Negotiations, LAW360 (Apr. 22, 2015, 2:15 PM), https://www.law360.com/articles/641591/5-tips-for-smooth-gaming-compact-negotiations.

306 Steve Ruddock, How New Mexico Sports Betting Started in a State without a Sports Betting Law, LEGAL SPORTS REP. (Mar. 28, 2024), https://www.legalsportsreport.com/26007/pueblo-tribe-new-mexico-sports-betting/.

307 Matthew Narvaiz, What Would It Take for Online Sports Betting to Come to New Mexico?, ALBUQUERQUE J. (Dec. 14, 2022), https://www.abqjournal.com/news/local/article_70e3bde2-733f-57a3-9bde-f405ecc19412.html.

308 Legalized Sports Wagering, supra note 11, at 1408-09.

309 Brad Allen, Mississippi Mobile Betting Bills Fall at First Hurdle Once Again, LEGAL SPORTS REP. (Feb. 2, 2022), https://www.legalsportsreport.com/63863/ms-sports-betting-bill-dead-2022/.

310 Legalized Sports Wagering, supra note 11, at 1408-09.

311 Jordyn Grzelewski, Online Gaming, Sports Betting in Michigan to Launch Friday, DET. NEWS (Jan. 19, 2021, 1:05 PM), https://www.detroitnews.com/story/business/2021/01/19/michigan-launch-online-gaming-sports-betting-friday/4214178001/.

312 Michigan Online Casino Revenue, PLAY MICH. (Oct. 31, 2024), https://www.playmichigan.com/online-casino/revenue/.

313 See id.

314 Revenues and Wagering Tax Information: 2023 Internet Sports Betting Revenues and Taxes Excel, MICH. GAMING CONTROL BD., https://www.michigan.gov/mgcb/detroit-casinos/resources/revenues-and-wagering-tax-information (last visited Jan. 10, 2025). Many Tribes in Colorado were not included in the conversation around online sports betting; even if the State's Tribes do get online access, they would be years behind commercial operators. Huff, supra note 287.

315 Matthew Kredell, DeSantis Signs Landmark Tribal Compact to Bring Sports Betting to Florida, PLAYFL (Apr. 24, 2021), https://www.playfl.com/florida-gaming-compact-sports-betting/.

316 2021 GAMING COMPACT BETWEEN THE SEMINOLE TRIBE OF FLORIDA AND THE STATE OF FLORIDA 20 (2021), https://www.flgov.com/wp-content/uploads/pdfs/2021%20Gaming%20Compact.pdf.

317 Id. at 15.

318 Mike Vasilinda, Legal Challenge Coming to Florida Seminole Gaming Compact, NEWS 4 JAX (Aug. 12, 2021, 4:25 PM), https://www.news4jax.com/news/local/2021/08/12/legal-challenge-coming-to-florida-seminole-gaming-compact/.

319 Letter to Marcellus Osceola, Jr., Chairman of the Seminole Tribe of Florida, from Bryan Newland, Asst. Sec'y. of the Interior 6-8 (Aug. 6, 2021), https://www.bia.gov/sites/default/files/dup/assets/asia/oig/pdf/508%20Compliant%202021.08.11%20Seminole%20Tribe%20Gaming%20Compact.pdf.

320 Id.

321 John Holden, Feds Respond to West Flagler D.C. Lawsuit on Florida Sports Betting, LEGAL SPORTS REP. (Oct. 13, 2021), https://www.legalsportsreport.com/57925/feds-respond-west-flagler-florida-sports-betting-lawsuit/.

322 West Flagler Assocs. v. DeSantis, 568 F. Supp. 3d 1277, 1280-81 (N.D. Fla. 2021).

323 West Flagler Assocs. v. Haaland, 573 F. Supp. 3d 260, 272-73 (D.D.C. 2021).

324 West Flagler Assocs. v. Haaland, 71 F.4th 1059, 1062 (D.C. Cir. 2023). A separate lawsuit was filed at the Florida Supreme Court challenging the Compact on Florida constitutional grounds. Petition for Writ of Quo Warranto, West Flagler Assocs. v. DeSantis, 382 So. 3d 1284, 1285 (Fla. 2024) (No. SC2023-1333). The Florida Supreme Court petition followed a denial of an injunction from the Supreme Court, which was accompanied by a statement from Justice Kavanaugh that argued there were equal protection concerns raised by the Compact, though he supported the denial of the request. See West Flagler Assocs. v. Haaland, 601 U.S. ___, ____; No. 23A315 (2023) (Kavanaugh, J.) ( "To the extent that a separate Florida statute (as distinct from the compact) authorizes the Seminole Tribe-and only the Seminole Tribe-to conduct certain off-reservation gaming operations in Florida, the state law raises serious equal protection issues."). The statement by Justice Kavanaugh may signal that at least he may welcome a petition challenging Compacts that preference a Tribe over other groups on an equal protection theory. Mike Mazzeo, Supreme Court Denies Florida Sports Betting Stay, with a Twist, LEGAL SPORTS REP. (Oct. 25, 2023), https://www.legalsportsreport.com/146116/supreme-court-denies-florida-sports-betting-stay-with-a-twist/.

325 Cf. John Holden, Analysis: How Florida Sports Betting Could Come Back After Tribal Compact Decision, LEGAL SPORTS REP. (July 3, 2023), https://www.legalsportsreport.com/122875/analysis-florida-sports-betting-tribal-compact-decision-june-2023/ (noting a lack of certainty around the question of whether Tribes can offer online gaming directly via a Compact could serve as an obstacle in states choosing to negotiate with Tribes over gaming expansion).

326 See Chen et al., supra note 6 (quoting this Article's author: "[I]f the [T]ribes can't have mobile-which will eventually mean they won't have online casinos-then you are effectively writing an expiration date on tribal gaming").

327 Jill R. Dorson, Get A Grip: The Week in Sports Betting: Bill Would Alter IGRA, MD Moving?, SPORTSHANDLE (Jan. 3, 2020), https://sportshandle.com/igra-brindisi-maryland-betting/.

328 John Holden, Analysis: New Federal Legislation Would Allow Mobile Sports Betting on Tribal Land, LEGAL SPORTS REP. (July 26, 2021), https://www.legalsportsreport.com/53956/analysis-federal-legislation-mobile-sports-betting-tribal-lands/.

329 This argument has been advanced on several occasions but has been viewed with skepticism by federal courts. See California v. Iipay Nation of Santa Ysabel, 898 F.3d 960, 965 (9th Cir. 2018) ("If a bet merely had to be legal where it was received, a bettor could place an illegal bet (on a game of poker, for instance) from anywhere in the United States, so long as the bet was legal in the jurisdiction hosting the servers for a game . . . ."); United States v. Lyons, 740 F.3d 702, 713 (1st Cir. 2014) (holding the Wire Act's safe harbor provision only applies when a bet is legal in both the sending and receiving jurisdiction); Holden, supra note 78 at 725 (describing interpretation of the Wire Act's safe harbor protections and the potential implications of intermediate routing of data through third-party states).

330 See generally John Holden, Tribal Gaming Compacting Process Could be Modernized, BONUS (Dec. 19, 2022), https://www.bonus.com/news/proposed-tribal-gaming-compacting-process-rule-change/. It is likely that any attempt to change agency regulations to allow online gaming on the basis of server location would be challenged as attempting to redraftIGRA to permit gaming to take place outside of "Indian lands." While a result of such litigation can obviously not be predicted, given the controversy surrounding the question, any change is likely to be challenged. While agencies have rule making powers, they lack the ability to rewrite the statutory basis for their existence. See 5 U.S.C. § 553 (2018).

331 Cf. 25 U.S.C. § 2701 (2018) (describing the purpose and intent of IGRA).

332 Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 76 (1995).

333 See, e.g., Sean Murphy, Oklahoma Governor's Feud with Native American Tribes Continues over Revenue Agreements, AP (July 22, 2023, 12:14 AM), https://apnews.com/article/oklahoma-governor-native-american-revenue-agreements-bf90f0248d17c0ff47e774c6b9b5234d (describing some of the Oklahoma Governor's many feuds with Tribes located within the state as beginning with his decision to renegotiate Tribal Compacts).

334 See Rincon Band of Luiseno Mission Indians v. Schwarzenegger, 602 F.3d 1019, 1026 (9th Cir. 2010) (observing California has raised its Eleventh Amendment sovereign immunity with respect to IGRA's requirement to negotiate in good faith).

335 In roughly five years, thirty-eight states and D.C. have legalized sports gambling. See Interactive U.S. Map: Sports Betting, AM. GAMING ASS'N (Jan. 3, 2025), https://www.americangaming.org/research/state-gaming-map/.

336 Chris Altruda, Legal US Sprots Betting Revenue, Handle and Tax Totals Since PASPA Repeal, SPORTSHANDLE (Sept. 4, 2024), https://sportshandle.com/sports-betting-revenue/.

337 Lipton & Vogel, supra note 37.

338 Commercial Gaming Revenue Surpasses $16B in Q2 2023 with 10th Consecutive Quarter of Growth, AM. GAMING ASS'N (Aug. 16, 2023), https://www.americangaming.org/new/commercial-gaming-revenue-surpasses-16b-in-q2-2023-with-10th-consecutive-quarter-of-growth/.

339 While thirty-eight states and D.C. have legalized sports betting, three of the most populous states are not yet operational, as neither California nor Texas have legalized sports betting and Florida has provided a monopoly to the Seminole Tribe of Florida. Guy Marzorati, California Voters Reject Measures to Legalize Sports Betting, NPR (Nov. 9, 2022, 2:08 AM), https://www.npr.org/2022/11/09/1133986282/california-gambling-prop-26-27-midterm-results; Patrick Svitek, Sports-Betting Advocates Return to Capitol with Narrower Bill, New Republican Author, TEX. TRIB. (Feb. 6, 2023, 4:00 PM), https://www.texastribune.org/2023/02/06/texas-sports-betting-bill-lois-kolkorst/.

340 See Lipton & Vogel, supra note 37 (describing the lobbying efforts of the commercial gaming industry).

341 The Chickasaw Nation, for instance, owns the WinStar World Casino and Resort just north of the Texas border in Thackerville, Oklahoma, which is the largest casino resort in the world by more than 50,000 square feet. Jon Young, The 7 Largest Casinos in the World, GAMBLING.COM (June 14, 2023), https://www.gambling.com/us/online-casinos/strategy/the-7-largest-casinos-in-the-world-1535500.

342 25 U.S.C. § 2701 (1988).

343 For example, the Secretary of the Interior has forty-five days to review a compact, which can then be approved or rejected, or deemed approved by inaction. 25 U.S.C. § 2710(d)(8)(C); see also Kevin K. Washburn, Agency Pragmatism in Addressing Law's Failure: The Curious Case of Federal "Deemed Approvals" of Tribal-State Gaming Compacts, 52 MICH J.L. REFORM 49, 56-57 (2018) (noting the deemed approval provision was, at least in part, meant to remedy the historically slow Department of the Interior decision making process and provide cover for the BIA from activist groups opposed to gaming expansion).

344 Commercial operators need state issued licenses. See, e.g., Frank A. Bruno & Zachery B. Roth, Sports Betting Vendor and Supplier Licensing: A Primer for Industry Newcomers, WHITE & WILLIAMS (May 14, 2021), https://www.whiteandwilliams.com/resources-alerts-Sports-Betting-Vendor-and-Supplier-Licensing-A-Primer-for-Industry-Newcomers. Tribal operators first require a compact that covers the relevant games (assuming we are talking about class III games). The compact is then subject to approval by the BIA. Following approval, regulations and approvals need to go through the NIGC, so unlike commercial operators, which have a streamlined process, tribal operators have a multi-level process, which can significantly slow the time to market.

345 See, e.g., Rebecca Szkutak, Deal Dive: Betting on the Sports Betting Market, TECHCRUNCH (July 1, 2023, 9:00 AM), https://techcrunch.com/2023/07/01/betr-sports-betting/ (describing various venture capital investments in the sports betting industry).

346 Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 785 (2014).

347 See id. at 786 (describing the land acquisition process).

348 See, e.g., P. Kenneth Burns, Controversial Tax Breaks for AC Casinos Pass in N.J. Legislature, WHYY (Dec. 21, 2021, 3:00 PM), https://whyy.org/articles/controversial-tax-breaks-for-ac-casinos-pass-in-n-j-legislature/ (observing the controversy surrounding New Jersey's PILOT tax incentive program).

349 Journal Record Staff, Chickasaw Nation, Partners Propose Coney Island Casino, J. REC. (Nov. 28, 2022), https://journalrecord.com/2022/11/28/chickasaw-nation-partners-propose-coney-island-casino/; Francisco Alvarado, Havenicks Finalize $96M Sale of Magic City Casino, REAL DEAL (Feb. 28, 2023), https://therealdeal.com/miami/2023/02/28/havenicks-finalize-96m-sale-of-magic-city-casino/.

350 See generally Bryan Newland, The BIA's Land-Into-Trust Process & Why Changes Will Never Satisfy the Critics, TURTLE TALK (July 24, 2017), https://turtletalk.blog/2017/07/24/the-bias-land-into-trust-process-why-changes-will-never-satisfy-the-critics/ (describing the land-into-trust process and the origins of the concept).

351 Id.

352 See generally Map of Indian Gaming Locations, NAT'L INDIAN GAMING COMM'N, https://www.nigc.gov/map (last visited Jan. 18, 2025) (showing the location of Native American gaming properties around the United States).

353 Patrice H. Kunesh, The Power of Self-Determination in Building Sustainable Economies in Indian Country, ECON. POL'Y INST. (June 15, 2022), https://files.epi.org/uploads/246373.pdf.

354 Id.

355 Tribal Gaming: A Vital Sector Supporting Tribes and Local Communities, AM. GAMING ASS'N, https://www.americangaming.org/wp-content/uploads/2022/05/Tribal-Gaming-One-Pager.pdf (last visited Jan. 18, 2025).