Curious about the State of Michigan’s argument that Congress did not believe Indian tribes possessed immunity outside of Indian country when it enacted the Indian Gaming Regulatory Act, I checked out the legislative history for support either way. Below are just the hearings to which I have access.
There is a fair amount of discussion about tribal immunities from state regulation and taxation, and most interestingly about whether tribal immunity cloaks nonmember gaming management companies and consultants.
I don’t see any discussion of off-reservation gaming at all, which the State suggests, I suppose, would be normal if Congress was assuming something about immunity one way or the other.
In any event, enjoy the legislative history.
June 25, 1987 hearing (PDF)
Nothing here, except in a newspaper article reference to an inter-tribal dispute between the Otoes and the Seminoles that couldn’t be settled in the courts “because sovereign immunity would prevent the tribes from successfully suing one another.” Page 184.
June 17, 1986 hearing (PDF)
Omaha Tribe opposes any provision that would waive tribal immunity; not specific as to language in a draft bill or elsewhere. Page 110. See also page 357.
DOJ testifies against Indian gaming referencing immunity from state regulation in Indian country. Page 143
Interior testimony quoting 1983 Mescalero Apache decision on “historic” tribal immunity from state regulation. Page 164.
Excerpt from federal district court decision on tribal immunity from state taxation, suggesting Congress assumes states have no “residual power” to tax tribes. Page 419.
State of Minnesota testimony requesting waiver of tribal immunity to enforce gaming “licenses” against tribes. Page 501.
State of Minnesota testimony requesting waiver of immunity to allow national commission to enforce fines on tribes. This appears to assume that an Indian tribe might be immune from federal regulation, too. Page 504. See also page 505.
Arizona AG arguing that nonmembers gaming in tribal casinos should not be cloaked in tribal immunity for purposes of state regulation. Page 598.
Jun. 25, Sep. 13, 1985 Hearings (PDF)
Arizona AG arguing against Indian gaming in Indian country “immune from State regulation”. Page 40.
Tulalip member testifying about case in which State of Washington unsuccessfully sued to stop tribal bingo. Page 163.
Kickingbird testimony on gaming contracts, advising against “general waiver of sovereign immunity.” Page 188.
Indian Country, USA waiver of immunity in general form contract. Page 202.
Fort McDowell bingo code, preserving immunity. Page 900.
Rincon Band management contract, with limited waiver of immunity. Page 1183.
Barona Band management contract, with limited waiver. Page 1235.
June 26, 1985 Hearing (PDF)
Sen. Domenici testimony, concern about nonmember employees claiming immunity. Page 22.
Arizona AG arguing against Indian gaming in Indian country “immune from State regulation”. Page 115 (same as June 25 testimony)
Morongo Band management contract, no waiver. Page 266.
Tulalip member testifying about case in which State of Washington unsuccessfully sued to stop tribal bingo. Page 284. (same as June 25 testimony)
Kickingbird testimony on gaming contracts, advising against “general waiver of sovereign immunity.” Page 295. (same as June 25 testimony)
Indian Country, USA waiver of immunity in general form contract. Page 309. (same as June 25)
June 18, 1987 Hearing (PDF)
Coos, Lower Umpqua & Suislaw Indians testimony against waiver of tribal immunity, referencing “discriminatory taxation legislation.” Page 496.
Nov. 14, 1985 Hearing (PDF)
Interior testimony quoting 1983 Mescalero Apache decision on “historic” tribal immunity from state regulation. Page 38.
June 19, 1984 Hearing (PDF)
Rep. Vento expressing concern about nonmember management contractors asserting immunity from state regulation. Page 44-45.
National Indian Gaming Task Force testimony on tribal immunity from suit by gaming management consultants. Page 80.
CRS Report, April 26, 1985 (PDF)