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According to IGRA, if a state has a public policy of complete prohibition against Class III gambling, then tribes within the borders of the state may not initiate such gambling. However, if the state has no completely prohibitive policy against Class III gambling, then the federal courts have held that the state may not prohibit gambling on reservations. This ruling has been the source of considerable controversy, since some states subject to it like Alabama, which already has Class III gambling in the form of pari-mutuel wagering consider it an infringement on their own sovereignty. In turn, tribal lawyers have accused the state of refusing to cooperate with the compacting process created by IGRA and to negotiate in good faith with the tribes.

In March 1996, Indian gambling interests were dealt a serious blow when the Supreme Court ruled that tribes cannot sue states that do not wish to make compacts allowing casinos on tribal lands. The Court, however, refused to overturn the 11th Circuit Court’s ruling that the Secretary of Interior could make Class III regulations for Alabama and Florida. Technically, therefore, the Secretary could impose Class III gaming against the states’ wishes, but only within the jurisdiction of the 11th Circuit.

Two months later, the Bureau of Indian Affairs published an "Advance Notice of Proposed Rulemaking" (ANPR) in an attempt to break this gridlock. The key element of the ANPR is a provision that would allow the Secretary of the Interior to approve a tribe’s request to operate gambling facilities, even if the state and tribe had been unable to agree on a compact.

When Secretary Bruce Babbitt issued proposed regulations in April 1999, Alabama and Florida immediately filed suit. Conflicting bills were introduced in Congress to explicitly give or to take away the Secretary’s power but none have passed both houses. Before he left office, Babbitt said he would leave the decision up to the courts.

At present, it is not possible for Indian tribes to build unregulated, tax-exempt casinos in Alabama without the state’s permission. Alabama Attorney General Bill Pryor and other states’ attorneys general have publicly stated that the Secretary of the Interior has no authority to allow Indian gambling. The Siegelman administration has also issued an executive order prohibiting any agency of the state from entering into any compact or agreement with the Poarch Creeks "to allow or facilitate in the establishment of any type of gambling prohibited by Alabama law." The same order also called upon the Department of the Interior to deny the Poarch Creeks any contract that would lead to their establishing Class III gambling facilities in the state.

In 1995, Alabama’s Poarch Creek Indians unsuccessfully attempted to purchase the Mobile Convention Center in order to construct a casino there, sparking concerns over the ability of tribes to purchase land off of their reservations in some cases, even in another state to establish a casino. While it is possible for an Indian tribe to establish gambling operations off existing reservation lands, it may only do so under certain circumstances, such as when it reclaims some or all of its former reservation lands. All other attempts to establish gambling operations on acquired lands off reservation property requires the mutual agreement of the tribe, the Secretary of the Interior, and the state in which the land is located. As of June 1999, only two of 11 applications for off-reservation casinos had been approved.

The legalization of gambling on tribal lands, however, may not be the end of attempts by Indian tribes to expand their gambling operations. In Wisconsin and other states, tribes have sought to have all Indianowned land declared tribal land. Because of this situation, IGRA now allows new lands contiguous to tribal land to be used for gambling upon application to the Department of the Interior. In other words, a tribe could purchase property contiguous to its own anywhere in a state, have it declared tribal land, and construct casinos at will.

Extracts from the National Gambling Impact Study Commission Final Report,, and the National Indian Gaming Association,
[Jun 2003 last update]

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