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Hastings Constitutional Law Quarterly

Abstract

The Indian Gaming Regulatory Act (IGRA) permits Indian tribes to operate casino games on Indian lands, but only if the games are conducted in conformance with a tribal-state compact. Upon tribal request, a state must negotiate such a compact in good faith or risk losing its opportunity to regulate Indian gaming at all. In response to IGRA-sanctioned, federal-court actions by tribes to enforce their rights, states have successfully raised Tenth and Eleventh Amendment "states' rights" challenges to IGRA's constitutionality. This Article argues that the controlling Supreme Court precedent precludes states (a) from invoking the Eleventh Amendment as a defense to an IGRA action because, in enacting IGRA, Congress duly exercised its power to abrogate state immunity from suit in federal court and (b) from invoking the Tenth Amendment as a defense to an IGRA action because IGRA does not compel states to regulate Indian gaming. District courts that have held otherwise misinterpret both IGRA and the United States Constitution.

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