We recently received a question from our pen pal Rick as a follow up to our post on Carcieri.  (By the way, keep the questions and comments coming -- we love to hear from academics, practitioners, community members, and anyone else with an interest in tribal gaming law and policy!)

Rick asks whether the bottom line of Carcieri is that newly recognized tribes (that is, tribes recognized after 1934, the date of the federal Indian Reorganization Act) should continue to be allowed to gain trust lands through the Secretary, but should be disallowed from operating gaming on those lands.

The question highlights the tension between politics and law on this issue.  Legally, the answer is no -- that's not an accurate reading of Carcieri.  The case interpreted the extent of Congress's delegation of authority to the Interior Secretary under the IRA to take land into trust.  As we've explained in earlier posts, the Supreme Court concluded that the IRA's language only authorized the Secretary to take land into trust, for any purpose, for tribes "now" under federal jurisdiction -- meaning, according to the Court, under federal jurisdiction in 1934.  The bottom line of Carcieri is that the Secretary's power to take land into trust -- again, for any use or purpose -- is highly questionable for a tribe that gained federal recognition after 1934.

The question of whether a tribe can conduct gaming on trust lands is governed by an entirely different federal statute, IGRA, which was not at issue in Carcieri.  Here, the legal question is whether the trust lands satisfy IGRA's requirements so that the tribe can conduct Class II or (with a tribal-state compact) Class III gaming on the lands.

But Rick's question reflects a political compromise we've seen in other settings.  Congress, in considering whether to bestow federal recognition on tribes via statute, has considered prohibiting tribes from operating gaming.  In other words, Congress has considered recognizing the sovereign authority of tribes as governments, with the exception of the authority to operate gaming on their lands.  We saw this in the debate over the federal recognition of the state-recognized tribes in Virginia.

While this approach may seem like a palatable political compromise, we think it is wrong-headed.  This approach would have the effect of creating "tiers" of tribal sovereignty.  Some tribes would have the sovereign right to operate gaming on their lands; others would not.  And all at the whim of Congress.  Remember that the Supreme Court, in the Cabazon case, construed the tribes' right to conduct gaming as an aspect of sovereign governmental authority -- similar to the states' right to legalize gambling and operate state lotteries.  This would be like adding a 51st state to the Union, but with the condition that the new state doesn't have the same powers as the other 50 -- it can't operate a state lottery, for example, or it can't give state tax breaks to attract business to the state.

We believe that tribal sovereignty should be facilitated and strengthened through federal law, not undermined and curtailed.  As we've said before, the end game of Indian gaming should be diverse and sustainable tribal economies alongside healthy and vibrant tribal communities.  Tribal sovereignty and strong tribal governments are crucial to that goal.