The Nutty Professor

I couldn’t believe what I was watching recently when WBZ news reported that preliminary talks for a compact were underway between the Mashpee Wampanoag Indian Tribe and the state. Bellicose Bumpkin recently blogged on this news report and stated:

They even rolled out a Harvard "expert" to tell us all how inevitable it is. Professor Kevin Washburn sounded like he needs to study up on Indian law - particularly how it works in real life. He might check in with the Kickapoo tribe in Texas who have been trying to get a class 3 compact for the last 12 years.

I couldn’t agree with you more Bumpkin! Professor Kevin Washburn, an expert on Indian gaming law is a visiting professor at Harvard. He has an impressive background and I certainly do not doubt his credentials in the slightest, but considering he is a member of the Oneida Tribe and a visiting professor, I seriously doubt the accuracy of what he said in this report. I must say I am disappointed by some of his “expert” comments regarding what is required by Massachusetts in dealing with the Mashpee Wampanoag’s push for a mega casino resort in Middleboro. I’m not saying he lied, I am merely stating that he neglected to tell the entire story….another one of those half-truth situations my friend factfinder is so adept at. This professor stated that the Tribe doesn’t need State approval to open a casino, and if the Tribe wants to offer class III gambling then the State has to negotiate. He went on to say that because Massachusetts has a lottery and allows for special casino nights the Tribe can build a casino without state approval and can “theoretically” conduct class III gaming. If we don’t negotiate, then we won’t get any revenue…

WOW! Sounds pretty scary, huh? Tut-tut.. don’t fret too much because although the Tribe could build a mega resort bingo hall (and really…why bother when the wonder of it all is less than two hours away), they cannot build a mega casino resort and offer class III gambling without a State compact. Did I mention that the State is not required to negotiate a compact with the Tribe? Let me direct you to two extremely important court cases that address this oh so important fact.

First is the Seminole v. State of Florida case. In Seminole Tribe of Florida v Florida (1996), the Court indicated for the first time that Congress is without power under the Commerce Clause (or Indian Commerce Clause) to abrogate a state's sovereign immunity.

Florida’s governor, Lawton Chiles, opposed casino gambling for the Seminoles, doing so before and after a statewide vote rejected a proposal to establish casino gambling. Governor Chiles did agree that the Seminoles could offer card games and raffles on their reservations, as well as wagering on racing and jai alai, activities already approved by the state. When Chiles refused to negotiate with the Seminole tribe over casino gambling, the tribe took him into federal court, charging that he had failed to exercise good faith.

In its appeal to the high court, Florida was joined by thirty one other states, all of whom feared that should the Indian Gaming Act stand, Congress would be allowed to override their sovereign immunity in other areas, such as the environment, business practices, and health, and safety. In arguing before the justices, the counsel for Florida insisted that the gaming law directly commanded the states to do certain things in such a way that made them mere subdivisions of the national government. The Seminole tribe of Florida and the United States government argued that Congress had full authority to pass the legislation under the power of the Indian Commerce Clause. So extensive was that authority that Congress, in this instance, could abrogate the historical immunity that states enjoyed from suit.

The Court of Appeals for the Eleventh Circuit ultimately decided that Congress lacked the authority to force the states to negotiate with the tribes. In reaching this opinion, the court pointed to the Eleventh Amendment, which provided that a state could not be sued without its consent. The Supreme Court held that the Indian tribes cannot sue states under the Indian Gaming Regulatory Act in federal courts without state permission. In other words the tribes cannot force states to negotiate gaming compacts. The decision was based on the 11th Amendment to the Constitution which provides that a state can only be sued in its own courts or if it consents to the suit. Basically states have a sovereign immunity from lawsuits filed in federal courts and Congress cannot abridge that immunity through passage of the Indian Gaming Regulatory Act. Speaking for the Court, Chief Justice Rehnquist said that the Eleventh Amendment restricted federal judicial power and that other constitutional powers allocated to Congress, such as the Indian Commerce Clause, cannot be used to circumvent the constitutional limitations placed on federal jurisdiction. – US Supreme Court Seminole Tribe v. Florida

The Eleventh Amendment

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

This important ruling affirmed the right of the states to be free of suits by Native Americans under the Gaming Act. However with the congressional act outlined in the IGRA voided, it could be argued that all that the tribes would need to do is approach the Department of the Interior to seek approval to open a class III gambling facility. Be as it may, this arguement did not make it easier for tribes to get approval for class III gambling facility, as shown in the Kickapoo Tribe v. Texas

The Kickapoo tribe has been trying to open a class III gambling facility with slots in Texas for several years. Although the state of Texas has been operating a lottery since 1991, the Department of the Interior has taken the position that the state’s definition of “lottery” is broad enough to include most casino-style games…except for slots. The Kickapoo tribe has attempted to negotiate a class III gambling compact with the state of Texas since 1993 with no success. In 2004, the tribe invoked something called the Secretarial Procedures and submitted a gaming proposal to the Secretary of the Interior. The Secretarial Procedures were established by the Secretary of the Interior in response to the Seminole v Florida decision because that case effectively blocked tribes from forcing states into compacts. The regulations under the Secretarial Procedures potentially allow for tribes to have class III gambling facilities even when states refuse to negotiate a compact with a tribe or consent to a good-faith suit by giving the Secretary the authority to prescribe his or her own procedures for class III gaming. Source: Indian Gaming – December 2007


Well, Texas was having none of it and turned around and sued the Secretary of the Interior seeking an injunction prohibiting the Secretary of the Interior from proceeding against the State of Texas under the Secretarial Procedures. Chief Judge Edith Jones of the Fifth Circuit Court held that the Secretary of the Interior did not have the authority to institute the Secretarial Procedures because it was in conflict with the IGRA "good faith" determination by an independent federal judiciary. It allowed for the possibility of tribal gaming in the absence of a tribal-state compact and was in contradiction to Congress’s repeated insistence that class III gaming can not be conducted on tribal land without a compact. The Kickapoo do not have a compact with the state of Texas and thus cannot operate a class III gambling facility.

The bottom line here is that although states have no constitutional authority over Indian reservations, Congress has consistently authorized states to regulate or prohibit certain activities on reservations. Congress views the tribal-state compact as an indispensable prerequisite to class III gambling on tribal lands and the IGRA does not provide for the conduct of class III gambling on Indian lands in the absence of a tribal-state compact. So, although our Harvard professor may be “theoretically” correct in what he is saying, assuming of course, that the land actually is placed in trust – which is quite doubtful considering they do not own the land and haven’t proven ancestral ties to Middleboro - the courts have shown otherwise.


Sure, if the land is placed in trust the Mashpee Wampanoag’s can build a mega bingo hall resort without a State compact…we knew that, but again, why bother. No compact may mean no revenue, but it also means no class III gambling for the Mashpee Wampanoag Tribe. States are not required to negotiate a compact with an Indian Tribe and a Tribe cannot sue a State to force them into a compact. No compact, no class III gambling, no slots…..no reason for the investors to pursue this pipe dream.

Sorry Senate President Murray....nice news clip and all but regardless of what the nutty professor says, you need to do your own homework because it is not time to enter in negotiations with the tribe…nor is it wise.


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