THE PROBLEM WITH GOOD FAITH: THE INDIAN GAMING REGULATORY ACT, A DECADE AFTER SEMINOLE

by Chris Rausch Student, University of North Dakota – School of Law

With the Indian Gaming Regulatory Act (IGRA), Congress created a cause of action for tribes to bring suit in federal court if a state failed to negotiate over Class III gaming in “good faith.” After Seminole Tribe v. Florida zapped any real potential for using the provision because of Eleventh Amendment state sovereign immunity, tribes were left with no statutory remedial possibility. The effect has taken on the characteristics of an incomplete jigsaw puzzle, where gaps in the picture deprive it of any true clarity, and any available jigsaw pieces don’t quite fit into the holes, and won’t fix the problem until someone with authority comes along and trims them into shape. Until Congress fixes the difficulties which have stemmed from its legislation, both tribes and states will continue to languish in uncertainty.

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