On July 29th, the Assistant Secretary – Indian Affairs issued “secretarial procedures” for the North Fork Rancheria. A copy of those procedures can be found here.
“Secretarial procedures” are, in essence, a class III gaming compact imposed by the Secretary of the Interior for a tribe and a state where the state has refused to negotiate in good faith (as required by IGRA).
Under IGRA, tribes cannot engage in class III gaming without a tribal-state compact. Congress provided for secretarial procedures as a safeguard against states that refuse to negotiate gaming compacts with tribes, as required by IGRA.
The Assistant Secretary issued a cover letter as part of his determination, which stated:
The Secretary’s duty to issue procedures is one of IGRA’s fundamental safeguards of tribal sovereignty. In IGRA, Congress expressly reaffirmed that tribes maintain their pre-existing sovereign reserved right to conduct gaming. This reserved tribal right, confirmed by the Supreme Court in Cabazon, endures throughout IGRA’s framework. While Congress provided states a limited role to negotiate a tribal-state compact governing Class III gaming activities, Congress did not eviscerate tribal sovereignty. Recognizing that underlying reserved tribal right, Congress expressly provided that, when a state does not negotiate a tribal-state compact in good faith and does not agree with a Federal court-appointed mediator’s compact, tribes retain the sovereign right to conduct Class III gaming pursuant to Federal procedures issued by the Secretary. The Department’s actions here upholds that tribal sovereign right.
The Department of the Interior’s authority to use this option was severely limited by the Supreme Court’s decision in the Seminole case – Secretarial procedures require that the Tribe first file a lawsuit against the State; but, Seminole preserves state sovereign immunity against such lawsuits.
The Department issued regulations to implement IGRA’s secretarial procedures option in light of the Seminole case. Those regulations are being tested in a lawsuit between the Pueblo of Pojoaque and the State of New Mexico.
As of today, IGRA’s secretarial procedures option is permitted in California (because the State has waived its sovereign immunity for gaming compacts). That option is threatened by legislation pending before Congress. I recently wrote about the impact of that legislation on this blog. You can read that post here.