[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