Why tribal casinos are not subject to state COVID-19 restrictions | Opinion

This post has been updated.

Minnesota Gov. Tim Walz was accused in a recent legal filing of failing to impose state pandemic emergency restrictions on the operation of tribal governmental casinos or other tribal businesses.

The posture of the argument* demonstrates a complete misunderstanding of the federal-tribal relationship, the federal Indian Gaming Regulatory Act of 1988, and the federal National Indian Gaming Commission’s role of oversight of tribal gaming operations. On a deeper level, the lawsuit misses the mark completely on the basic principle of federal Indian law as stated in the 1832 U.S. Supreme Court decision, Worcester v. Georgia that federal law pre-empts state law and regulatory authority in Indian affairs.

As a law professor, I join my colleagues in lamenting the lack of education on tribal governments, the treaty relationships with the United States, the operation and jurisdiction of tribal courts and the contemporary issues for tribal entities.  I am co-author of Mastering American Indian Law with Stacy Leeds of the Cherokee Nation, who is currently on faculty at Arizona State University. The lawsuit mentioned above is illustrative of wasted time, money, and energy by making arguments that are easily defeated by reviewing basic federal Indian law.

First, tribal casinos are operated by tribal governments. This is a requirement under the federal Indian Gaming Regulatory Act (IGRA). Unlike private businesses registered in states, tribal casinos are limited in expenditures of profits and are heavily regulated by federal law through a federal oversight agency, the National Indian Gaming Commission. Private businesses enrich private individuals as part of capitalism. Tribal casinos garner revenues to lift tribal people out of poverty due to the land grabs in the 1800s and 1900s. Tribal profits are mandated under the IGRA to be spent in five categories: 1) “to fund tribal government operations or programs”; 2) “to provide for the general welfare of the Indian tribe and its members”; 3) “to promote tribal economic development”; 4) “to donate to charitable organizations”; or 5) “to help fund operations of local government agencies.” See here: 25 U.S.C. § 2710(b)(2)(B). Further, gaming Tribes must pay for and submit annual audits to detail all expenditures from gaming revenues and must fund the oversight federal agency, the National Indian Gaming Commission, on a percentage scale. Find it here: 25 U.S.C. § 2717.

In terms of the measures taken to control the spread of COVID-19, tribal governments have led the way in best practices. The NIGC has provided checklists for closures, required communication on gaming operation procedures, offered frequent resource briefings, and has the federal regulatory oversight of tribal gaming operations. This federal agency pre-empts the field of state regulatory authority. As mentioned above, the primary relationship between tribal governments has been with the United States federal government, not the component state governments.  Rather, tribal governments have contributed to state and local governments through donations through gaming revenues to enhance neighboring communities and public services.

There has been some mention of Public Law 280 and state authority within tribal territories. Again, this is clearly a lack of knowledge on display about federal Indian law. Public Law 280 was passed during what is referred to as the “termination era” of federal Indian policy approximately from the late 1940s to the mid 1960s.  The federal law delegated federal criminal jurisdiction to state governments over activity on tribal lands without providing funding to states or receiving the consent of tribal governments. With the 1968 Indian Civil Rights Act, a tribal consent provision was added to any future assumptions of criminal jurisdiction by states within Indian Country — and not a single consent has been given. With the 2010 Tribal Law and Order Act, tribal governments can request the federal government to regain criminal jurisdiction where it was previously delegated to a state.  

While Minnesota is a mandatory Public Law 280 state, state officials are correctly following the limitations on the delegation of criminal authority. The U.S. Supreme Court has held in two well-known cases that Public Law 280 did not confer any regulatory power to states. Those cases are: Bryant v. Itasca County (1976) holding that a Minnesota county did not gain property taxing authority on tribal lands through Public Law 280; and California v. Cabazon Band of Mission Indians (1987) holding that Public Law 280 allowed states to exercise only criminal authority where state law criminalized conduct. The assertion that Public Law 280 would allow any state regulatory measures on the coronavirus pandemic within tribal lands is erroneous and not legally supported.  

There is training available on tribal and Indian law through state bar associations. Mitchell Hamline School of Law has the Native American Law and Sovereignty Institute, one of approximately 16 Indian law programs in the United States. Legal scholars in this field continue through legal education and public education to raise the level of understanding on tribal governments, tribal businesses, and tribal relations within the United States to minimize ungrounded arguments that waste time, energy and taxpayer money.

*This post has been updated to clarify the manner in which the allegations against Walz were leveled. They were made in a legal filing.