[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21394-21395]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11287]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 525
RIN 1076-AD67
Request for Comments on Establishing Departmental Procedures To
Authorize Class III Gaming on Indian Lands When a State Raises an
Eleventh Amendment Defense To Suit Under the Indian Gaming Regulatory
Act
AGENCY: National Indian Gaming Commission, Interior.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The Department of the Interior seeks comments on its authority
under the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. Section 2710,
to promulgate ``procedures'' to authorize Class III gaming on Indian
lands when a State raises an Eleventh Amendment defense to an action
brought against it pursuant to Section ll of the Act, 25 U.S.C. Section
2710(d)(7), and on other related matters. This advance notice is the
result of the Supreme Court decision in Seminole Tribe of Florida v.
State of Florida, 116 S.Ct. 1114 (1996).
DATES: Written public comment is invited and will be considered in the
development of a proposed rule. Comments on this advance notice of
proposed rulemaking must be received no later than July 1, 1996, to be
considered.
ADDRESSES: Any comments concerning this notice, including sections
regarding conformance with statutory and regulatory authorities, may be
sent to: George Skibine, Director, Indian Gaming Management Staff, 1849
C Street, N.W., MS-2070 MIB, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: George Skibine, Director, Indian
Gaming Management Staff, (202) 219-4066.
SUPPLEMENTARY INFORMATION:
Background
Congress enacted IGRA to provide a statutory basis for the
operation and regulation of Indian gaming and to protect Indian gaming
as a means of generating revenue for tribal governments. 25 U.S.C.
Section 2702;
[[Page 21395]]
Seminole, at 1119. Since its passage in 1988, more than 140 compacts in
more than 20 States have been successfully negotiated, entered into by
States and Tribes and approved by the Secretary. Today, Indian gaming
is a successful industry generating significant governmental revenue
for Indian tribes, which provides funding for essential government
services such as roads, schools, and hospitals. Prior to enactment of
IGRA, States generally were precluded from any regulation of gaming on
Indian reservations. See California v. Cabazon Band of Mission Indians,
480 U.S. 202 (1987). IGRA, by offering States an opportunity to
participate with Indian tribes in developing regulations for Indian
gaming, ``extends to States a power withheld from them by the
Constitution.'' Seminole, at 1124.
IGRA requires an Indian Tribe that wants to conduct casino type
(``Class III'') gaming on its Indian lands to negotiate a ``compact''
of terms and conditions for such gaming with the State in which the
Indian lands are located. IGRA also provides that if the State fails to
bargain, or to do so in good faith, the Tribe may sue the State in
Federal court to enforce the remedial provisions provided by the
statute. Under these provisions, if a court found a State not to be
bargaining in good faith, it would ``order the State and the Indian
Tribe to conclude such a compact within a 60-day period.'' 25 U.S.C.
Section 2710(d)(7)(B)(iii). If thereafter a State and Tribe fail to
conclude a compact within this 60-day period, they ``shall each submit
to a mediator appointed by the court a proposed compact that represents
their last best offer for a compact.'' Id. Section 2710(d)(7)(B)(iv).
The mediator shall then ``select from the two proposed compacts the one
which best comports with the terms of this Act and any other applicable
Federal law and with the findings and order of the court,'' id., and
submit his or her selection to the State and Tribe, id. Section
2710(d)(7)(B)(v). If, within 60 days from the mediator's submission of
his or her selection, the State consents to a proposed compact, such a
compact authorizes Indian gaming pursuant to IGRA. Id.
Section 2710(d)(7)(B)(vi). If the State does not consent to a
compact within 60 days of the mediator's submission, the Secretary of
the Interior shall:
prescribe, in consultation with the Indian tribe, procedures--
(I) which are consistent with the proposed compact selected by
the mediator under [25 U.S.C. Section 2710(d)(7)(B)(iv)], the
provisions of [the Act] and the relevant provisions of the laws of
the State, and
(II) under which class III gaming may be conducted on the Indian
lands over which the Indian tribe has jurisdiction.
25 U.S.C. Section 2710(d)(7)(B)(vii). In practice, only a handful of
cases have required resort to IGRA's judicial enforcement mechanism.
In Seminole Tribe of Florida v. Florida, the Supreme Court affirmed
a decision by the Eleventh Circuit Court of Appeals holding that
Congress may not abrogate State Eleventh Amendment immunity under the
Indian Commerce Clause. The decision raises questions about the process
now to be followed by Tribes who cannot secure State cooperation in the
compacting process.
The Supreme Court's Seminole decision does not affect the validity
of existing class III gaming compacts, but it does require the United
States to consider the effect of a State's refusal to engage in
remedial litigation designed to oversee the compacting process. In its
decision below, the Eleventh Circuit suggested that the compacting
process could proceed as prescribed by IGRA (including litigation) so
long as a State did not assert its Eleventh Amendment immunity. In
light of IGRA's severability clause, the Eleventh Circuit further
expressed the view that if a State pleads an Eleventh Amendment defense
and the suit is dismissed, the Tribe may then notify the Secretary and
the Secretary may prescribe the terms of the particular compact. The
Supreme Court expressly declined to consider the validity of this part
of the Eleventh Circuit's opinion, and Florida's cross-petition for
review of this issue was denied by the Supreme Court. By contrast, the
Ninth Circuit, in its pre-Seminole decision rejecting an Eleventh
Amendment challenge, Spokane Tribe of Indians v. Washington, 28 F.3d
991 (9th Cir. 1994), expressed disagreement with the Eleventh Circuit's
views on that issue. Id. at 997.
In these circumstances, and because of the importance of the issues
to the Tribes, the States, and the general public, the Department seeks
comments regarding the manner in which the compacting provisions of
IGRA may operate following the Supreme Court's Seminole Tribe decision.
Subject Matter of Potential Rulemaking
The Department seeks comments on the following specific issues, and
on other issues directly related to the subject matter of this notice.
(1) The effect of the Supreme Court's decision in Seminole Tribe on
the operation of other provisions in 25 U.S.C. Section 2710(d)(7) when
a State does not waive its Eleventh Amendment immunity to suit;
(2) Whether, and under what circumstances, the Secretary of the
Interior is empowered to prescribe ``procedures'' for the conduct of
Class III gaming when a State interposes an Eleventh Amendment defense
to an action pursuant to 25 U.S.C. Section 2710(d)(7)(B);
(3) What is an appropriate administrative process for the
development of Secretarial procedures;
(4) What procedures should be followed if a State interposes an
Eleventh Amendment defense to an action filed under 25 U.S.C. Section
2710(d)(7)(B);
(5) What procedures can be, and should be, utilized for determining
legal issues that may be in dispute, such as the ``scope of gaming''
permitted under State law. The scope of gaming issue arises when a
State takes the position that it is not required to bargain with a
Tribe with respect to certain Class III games because IGRA does not
authorize such games on the ground that such games are not permitted by
the State ``for any purpose by any person,'' see 25 U.S.C. Section
2710(d)(1)(B)1; and
(6) How any procedures promulgated by the Secretary may, and
should, provide for appropriate regulation of Indian gaming.
Public Review
Comments on this notice may be submitted in writing to the address
identified at the beginning of this rulemaking by July 1, 1996.
Comments received by that date will be considered in the development of
any proposed rule.
Executive Order 12866
This advance notice of proposed rulemaking has been reviewed by the
Office of Management and Budget under Executive Order 12866.
Drafting Information
This Notice was drafted by the Office of the Solicitor, 1849 C
Street, N.W., Washington, D.C., 20240.
Dated: April 30, 1996.
Ada E. Deer,
Assistant Secretary, Indian Affairs.
[FR Doc. 96-11287 Filed 5-9-96; 8:45 am]
BILLING CODE 4210-02-P