25 U.S.C. § 2710 — Tribal gaming ordinances

Page 501 TITLE 25—INDIANS § 2710 and sections 2801 to 2805 of Title 39, Postal Service, amended section 1105 of Title 31, and enacted provisions set out as notes under sections 1101 and 1115 of Title 31. For complete classification of this Act to the Code, see Short Title of 1993 Amendment note set out under sec- tion 1101 of Title 31 and Tables. CODIFICATION Subsec. (c) of this section, which required the Com- mission to submit a report to Congress every two years on various matters relating to the operation of the Commission, terminated, effective May 15, 2000, pursu- ant to section 3003 of Pub. L. 104-66, as amended, set out as a note under section 1113 of Title 31, Money and Fi- nance. See, also, page 114 of House Document No. 103- 7. AMENDMENTS 2006—Subsec. (d). Pub. L. 109–221 added subsec. (d). § 2707. Commission staffing (a) General Counsel The Chairman shall appoint a General Counsel to the Commission who shall be paid at the an- nual rate of basic pay payable for GS–18 of the General Schedule under section 5332 of title 5. (b) Staff The Chairman shall appoint and supervise other staff of the Commission without regard to the provisions of title 5 governing appointments in the competitive service. Such staff shall be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, except that no individual so ap- pointed may receive pay in excess of the annual rate of basic pay payable for GS–17 of the Gen- eral Schedule under section 5332 of that title. (c) Temporary services The Chairman may procure temporary and intermittent services under section 3109(b) of title 5, but at rates for individuals not to exceed the daily equivalent of the maximum annual rate of basic pay payable for GS–18 of the Gen- eral Schedule. (d) Federal agency personnel Upon the request of the Chairman, the head of any Federal agency is authorized to detail any of the personnel of such agency to the Commis- sion to assist the Commission in carrying out its duties under this chapter, unless otherwise pro- hibited by law. (e) Administrative support services The Secretary or Administrator of General Services shall provide to the Commission on a reimbursable basis such administrative support services as the Commission may request. (Pub. L. 100–497, § 8, Oct. 17, 1988, 102 Stat. 2471.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (d), was in the original ‘‘this Act’’, meaning Pub. L. 100–497, Oct. 17, 1988, 102 Stat. 2467, known as the Indian Gaming Regu- latory Act, which is classified principally to this chap- ter. For complete classification of this Act to the Code, see Short Title note set out under section 2701 of this title and Tables. Statutory Notes and Related Subsidiaries REFERENCES IN OTHER LAWS TO GS–16, 17, OR 18 PAY RATES References in laws to the rates of pay for GS–16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organi- zation and Employees, see section 529 [title I, § 101(c)(1)] of Pub. L. 101–509, set out in a note under section 5376 of Title 5. § 2708. Commission; access to information The Commission may secure from any depart- ment or agency of the United States informa- tion necessary to enable it to carry out this chapter. Upon the request of the Chairman, the head of such department or agency shall furnish such information to the Commission, unless oth- erwise prohibited by law. (Pub. L. 100–497, § 9, Oct. 17, 1988, 102 Stat. 2472.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 100–497, Oct. 17, 1988, 102 Stat. 2467, known as the Indian Gaming Regulatory Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2701 of this title and Tables. § 2709. Interim authority to regulate gaming Notwithstanding any other provision of this chapter, the Secretary shall continue to exercise those authorities vested in the Secretary on the day before October 17, 1988, relating to super- vision of Indian gaming until such time as the Commission is organized and prescribes regula- tions. The Secretary shall provide staff and sup- port assistance to facilitate an orderly transi- tion to regulation of Indian gaming by the Com- mission. (Pub. L. 100–497, § 10, Oct. 17, 1988, 102 Stat. 2472.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this Act’’, meaning Pub. L. 100–497, Oct. 17, 1988, 102 Stat. 2467, known as the Indian Gaming Regulatory Act, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2701 of this title and Tables. § 2710. Tribal gaming ordinances (a) Jurisdiction over class I and class II gaming activity (1) Class I gaming on Indian lands is within the exclusive jurisdiction of the Indian tribes and shall not be subject to the provisions of this chapter. (2) Any class II gaming on Indian lands shall continue to be within the jurisdiction of the In- dian tribes, but shall be subject to the provi- sions of this chapter. (b) Regulation of class II gaming activity; net revenue allocation; audits; contracts (1) An Indian tribe may engage in, or license and regulate, class II gaming on Indian lands within such tribe’s jurisdiction, if— Page 502 TITLE 25—INDIANS § 2710 (A) such Indian gaming is located within a State that permits such gaming for any pur- pose by any person, organization or entity (and such gaming is not otherwise specifically prohibited on Indian lands by Federal law), and (B) the governing body of the Indian tribe adopts an ordinance or resolution which is ap- proved by the Chairman. A separate license issued by the Indian tribe shall be required for each place, facility, or loca- tion on Indian lands at which class II gaming is conducted. (2) The Chairman shall approve any tribal or- dinance or resolution concerning the conduct, or regulation of class II gaming on the Indian lands within the tribe’s jurisdiction if such ordinance or resolution provides that— (A) except as provided in paragraph (4), the Indian tribe will have the sole proprietary in- terest and responsibility for the conduct of any gaming activity; (B) net revenues from any tribal gaming are not to be used for purposes other than— (i) to fund tribal government operations or programs; (ii) to provide for the general welfare of the Indian tribe and its members; (iii) to promote tribal economic develop- ment; (iv) to donate to charitable organizations; or (v) to help fund operations of local govern- ment agencies; (C) annual outside audits of the gaming, which may be encompassed within existing independent tribal audit systems, will be pro- vided by the Indian tribe to the Commission; (D) all contracts for supplies, services, or concessions for a contract amount in excess of $25,000 annually (except contracts for profes- sional legal or accounting services) relating to such gaming shall be subject to such inde- pendent audits; (E) the construction and maintenance of the gaming facility, and the operation of that gaming is conducted in a manner which ade- quately protects the environment and the pub- lic health and safety; and (F) there is an adequate system which— (i) ensures that background investigations are conducted on the primary management officials and key employees of the gaming enterprise and that oversight of such offi- cials and their management is conducted on an ongoing basis; and (ii) includes— (I) tribal licenses for primary manage- ment officials and key employees of the gaming enterprise with prompt notifica- tion to the Commission of the issuance of such licenses; (II) a standard whereby any person whose prior activities, criminal record, if any, or reputation, habits and associations pose a threat to the public interest or to the effective regulation of gaming, or cre- ate or enhance the dangers of unsuitable, unfair, or illegal practices and methods and activities in the conduct of gaming shall not be eligible for employment; and (III) notification by the Indian tribe to the Commission of the results of such background check before the issuance of any of such licenses. (3) Net revenues from any class II gaming ac- tivities conducted or licensed by any Indian tribe may be used to make per capita payments to members of the Indian tribe only if— (A) the Indian tribe has prepared a plan to allocate revenues to uses authorized by para- graph (2)(B); (B) the plan is approved by the Secretary as adequate, particularly with respect to uses de- scribed in clause (i) or (iii) of paragraph (2)(B); (C) the interests of minors and other legally incompetent persons who are entitled to re- ceive any of the per capita payments are pro- tected and preserved and the per capita pay- ments are disbursed to the parents or legal guardian of such minors or legal incompetents in such amounts as may be necessary for the health, education, or welfare, of the minor or other legally incompetent person under a plan approved by the Secretary and the governing body of the Indian tribe; and (D) the per capita payments are subject to Federal taxation and tribes notify members of such tax liability when payments are made. (4)(A) A tribal ordinance or resolution may provide for the licensing or regulation of class II gaming activities owned by any person or entity other than the Indian tribe and conducted on In- dian lands, only if the tribal licensing require- ments include the requirements described in the subclauses of subparagraph (B)(i) and are at least as restrictive as those established by State law governing similar gaming within the juris- diction of the State within which such Indian lands are located. No person or entity, other than the Indian tribe, shall be eligible to receive a tribal license to own a class II gaming activity conducted on Indian lands within the jurisdic- tion of the Indian tribe if such person or entity would not be eligible to receive a State license to conduct the same activity within the juris- diction of the State. (B)(i) The provisions of subparagraph (A) of this paragraph and the provisions of subpara- graphs (A) and (B) of paragraph (2) shall not bar the continued operation of an individually owned class II gaming operation that was oper- ating on September 1, 1986, if— (I) such gaming operation is licensed and regulated by an Indian tribe pursuant to an or- dinance reviewed and approved by the Com- mission in accordance with section 2712 of this title, (II) income to the Indian tribe from such gaming is used only for the purposes described in paragraph (2)(B) of this subsection, (III) not less than 60 percent of the net reve- nues is income to the Indian tribe, and (IV) the owner of such gaming operation pays an appropriate assessment to the Na- tional Indian Gaming Commission under sec- tion 2717(a)(1) of this title for regulation of such gaming. (ii) The exemption from the application of this subsection provided under this subparagraph may not be transferred to any person or entity Page 503 TITLE 25—INDIANS § 2710 1 So in original. Probably should be followed by a comma. and shall remain in effect only so long as the gaming activity remains within the same nature and scope as operated on October 17, 1988. (iii) Within sixty days of October 17, 1988, the Secretary shall prepare a list of each individ- ually owned gaming operation to which clause (i) applies and shall publish such list in the Fed- eral Register. (c) Issuance of gaming license; certificate of self- regulation (1) The Commission may consult with appro- priate law enforcement officials concerning gaming licenses issued by an Indian tribe and shall have thirty days to notify the Indian tribe of any objections to issuance of such license. (2) If, after the issuance of a gaming license by an Indian tribe, reliable information is received from the Commission indicating that a primary management official or key employee does not meet the standard established under subsection (b)(2)(F)(ii)(II), the Indian tribe shall suspend such license and, after notice and hearing, may revoke such license. (3) Any Indian tribe which operates a class II gaming activity and which— (A) has continuously conducted such activ- ity for a period of not less than three years, including at least one year after October 17, 1988; and (B) has otherwise complied with the provi- sions of this section 1 may petition the Commission for a certificate of self-regulation. (4) The Commission shall issue a certificate of self-regulation if it determines from available information, and after a hearing if requested by the tribe, that the tribe has— (A) conducted its gaming activity in a man- ner which— (i) has resulted in an effective and honest accounting of all revenues; (ii) has resulted in a reputation for safe, fair, and honest operation of the activity; and (iii) has been generally free of evidence of criminal or dishonest activity; (B) adopted and is implementing adequate systems for— (i) accounting for all revenues from the ac- tivity; (ii) investigation, licensing, and moni- toring of all employees of the gaming activ- ity; and (iii) investigation, enforcement and pros- ecution of violations of its gaming ordinance and regulations; and (C) conducted the operation on a fiscally and economically sound basis. (5) During any year in which a tribe has a cer- tificate for self-regulation— (A) the tribe shall not be subject to the pro- visions of paragraphs (1), (2), (3), and (4) of sec- tion 2706(b) of this title; (B) the tribe shall continue to submit an an- nual independent audit as required by sub- section (b)(2)(C) and shall submit to the Com- mission a complete resume on all employees hired and licensed by the tribe subsequent to the issuance of a certificate of self-regulation; and (C) the Commission may not assess a fee on such activity pursuant to section 2717 of this title in excess of one quarter of 1 per centum of the gross revenue. (6) The Commission may, for just cause and after an opportunity for a hearing, remove a cer- tificate of self-regulation by majority vote of its members. (d) Class III gaming activities; authorization; revocation; Tribal-State compact (1) Class III gaming activities shall be lawful on Indian lands only if such activities are— (A) authorized by an ordinance or resolution that— (i) is adopted by the governing body of the Indian tribe having jurisdiction over such lands, (ii) meets the requirements of subsection (b), and (iii) is approved by the Chairman, (B) located in a State that permits such gaming for any purpose by any person, organi- zation, or entity, and (C) conducted in conformance with a Tribal- State compact entered into by the Indian tribe and the State under paragraph (3) that is in ef- fect. (2)(A) If any Indian tribe proposes to engage in, or to authorize any person or entity to en- gage in, a class III gaming activity on Indian lands of the Indian tribe, the governing body of the Indian tribe shall adopt and submit to the Chairman an ordinance or resolution that meets the requirements of subsection (b). (B) The Chairman shall approve any ordinance or resolution described in subparagraph (A), un- less the Chairman specifically determines that— (i) the ordinance or resolution was not adopted in compliance with the governing doc- uments of the Indian tribe, or (ii) the tribal governing body was signifi- cantly and unduly influenced in the adoption of such ordinance or resolution by any person identified in section 2711(e)(1)(D) of this title. Upon the approval of such an ordinance or reso- lution, the Chairman shall publish in the Fed- eral Register such ordinance or resolution and the order of approval. (C) Effective with the publication under sub- paragraph (B) of an ordinance or resolution adopted by the governing body of an Indian tribe that has been approved by the Chairman under subparagraph (B), class III gaming activity on the Indian lands of the Indian tribe shall be fully subject to the terms and conditions of the Tribal-State compact entered into under para- graph (3) by the Indian tribe that is in effect. (D)(i) The governing body of an Indian tribe, in its sole discretion and without the approval of the Chairman, may adopt an ordinance or res- olution revoking any prior ordinance or resolu- tion that authorized class III gaming on the In- dian lands of the Indian tribe. Such revocation shall render class III gaming illegal on the In- dian lands of such Indian tribe. Page 504 TITLE 25—INDIANS § 2710 2 So in original. Probably should not be capitalized. (ii) The Indian tribe shall submit any revoca- tion ordinance or resolution described in clause (i) to the Chairman. The Chairman shall publish such ordinance or resolution in the Federal Reg- ister and the revocation provided by such ordi- nance or resolution shall take effect on the date of such publication. (iii) Notwithstanding any other provision of this subsection— (I) any person or entity operating a class III gaming activity pursuant to this paragraph on the date on which an ordinance or resolution described in clause (i) that revokes authoriza- tion for such class III gaming activity is pub- lished in the Federal Register may, during the 1-year period beginning on the date on which such revocation ordinance or resolution is published under clause (ii), continue to oper- ate such activity in conformance with the Tribal-State compact entered into under para- graph (3) that is in effect, and (II) any civil action that arises before, and any crime that is committed before, the close of such 1-year period shall not be affected by such revocation ordinance or resolution. (3)(A) Any Indian tribe having jurisdiction over the Indian lands upon which a class III gaming activity is being conducted, or is to be conducted, shall request the State in which such lands are located to enter into negotiations for the purpose of entering into a Tribal-State com- pact governing the conduct of gaming activities. Upon receiving such a request, the State shall negotiate with the Indian tribe in good faith to enter into such a compact. (B) Any State and any Indian tribe may enter into a Tribal-State compact governing gaming activities on the Indian lands of the Indian tribe, but such compact shall take effect only when notice of approval by the Secretary of such compact has been published by the Sec- retary in the Federal Register. (C) Any Tribal-State compact negotiated under subparagraph (A) may include provisions relating to— (i) the application of the criminal and civil laws and regulations of the Indian tribe or the State that are directly related to, and nec- essary for, the licensing and regulation of such activity; (ii) the allocation of criminal and civil juris- diction between the State and the Indian tribe necessary for the enforcement of such laws and regulations; (iii) the assessment by the State of such ac- tivities in such amounts as are necessary to defray the costs of regulating such activity; (iv) taxation by the Indian tribe of such ac- tivity in amounts comparable to amounts as- sessed by the State for comparable activities; (v) remedies for breach of contract; (vi) standards for the operation of such ac- tivity and maintenance of the gaming facility, including licensing; and (vii) any other subjects that are directly re- lated to the operation of gaming activities. (4) Except for any assessments that may be agreed to under paragraph (3)(C)(iii) of this sub- section, nothing in this section shall be inter- preted as conferring upon a State or any of its political subdivisions authority to impose any tax, fee, charge, or other assessment upon an In- dian tribe or upon any other person or entity au- thorized by an Indian tribe to engage in a class III activity. No State may refuse to enter into the negotiations described in paragraph (3)(A) based upon the lack of authority in such State, or its political subdivisions, to impose such a tax, fee, charge, or other assessment. (5) Nothing in this subsection shall impair the right of an Indian tribe to regulate class III gaming on its Indian lands concurrently with the State, except to the extent that such regula- tion is inconsistent with, or less stringent than, the State laws and regulations made applicable by any Tribal-State compact entered into by the Indian tribe under paragraph (3) that is in effect. (6) The provisions of section 1175 of title 15 shall not apply to any gaming conducted under a Tribal-State compact that— (A) is entered into under paragraph (3) by a State in which gambling devices are legal, and (B) is in effect. (7)(A) The United States district courts shall have jurisdiction over— (i) any cause of action initiated by an Indian tribe arising from the failure of a State to enter into negotiations with the Indian tribe for the purpose of entering into a Tribal-State compact under paragraph (3) or to conduct such negotiations in good faith, (ii) any cause of action initiated by a State or Indian tribe to enjoin a class III gaming ac- tivity located on Indian lands and conducted in violation of any Tribal-State compact en- tered into under paragraph (3) that is in effect, and (iii) any cause of action initiated by the Sec- retary to enforce the procedures prescribed under subparagraph (B)(vii). (B)(i) An Indian tribe may initiate a cause of action described in subparagraph (A)(i) only after the close of the 180-day period beginning on the date on which the Indian tribe requested the State to enter into negotiations under para- graph (3)(A). (ii) In any action described in subparagraph (A)(i), upon the introduction of evidence by an Indian tribe that— (I) a Tribal-State compact has not been en- tered into under paragraph (3), and (II) the State did not respond to the request of the Indian tribe to negotiate such a com- pact or did not respond to such request in good faith, the burden of proof shall be upon the State to prove that the State has negotiated with the In- dian tribe in good faith to conclude a Tribal- State compact governing the conduct of gaming activities. (iii) If, in any action described in subpara- graph (A)(i), the court finds that the State has failed to negotiate in good faith with the Indian tribe to conclude a Tribal-State compact gov- erning the conduct of gaming activities, the court shall order the State and the Indian Tribe 2 to conclude such a compact within a 60- day period. In determining in such an action Page 505 TITLE 25—INDIANS § 2711 whether a State has negotiated in good faith, the court— (I) may take into account the public inter- est, public safety, criminality, financial integ- rity, and adverse economic impacts on exist- ing gaming activities, and (II) shall consider any demand by the State for direct taxation of the Indian tribe or of any Indian lands as evidence that the State has not negotiated in good faith. (iv) If a State and an Indian tribe fail to con- clude a Tribal-State compact governing the con- duct of gaming activities on the Indian lands subject to the jurisdiction of such Indian tribe within the 60-day period provided in the order of a court issued under clause (iii), the Indian tribe and the State shall each submit to a mediator appointed by the court a proposed compact that represents their last best offer for a compact. The mediator shall select from the two proposed compacts the one which best comports with the terms of this chapter and any other applicable Federal law and with the findings and order of the court. (v) The mediator appointed by the court under clause (iv) shall submit to the State and the In- dian tribe the compact selected by the mediator under clause (iv). (vi) If a State consents to a proposed compact during the 60-day period beginning on the date on which the proposed compact is submitted by the mediator to the State under clause (v), the proposed compact shall be treated as a Tribal- State compact entered into under paragraph (3). (vii) If the State does not consent during the 60-day period described in clause (vi) to a pro- posed compact submitted by a mediator under clause (v), the mediator shall notify the Sec- retary and the Secretary shall prescribe, in con- sultation with the Indian tribe, procedures— (I) which are consistent with the proposed compact selected by the mediator under clause (iv), the provisions of this chapter, and the rel- evant provisions of the laws of the State, and (II) under which class III gaming may be conducted on the Indian lands over which the Indian tribe has jurisdiction. (8)(A) The Secretary is authorized to approve any Tribal-State compact entered into between an Indian tribe and a State governing gaming on Indian lands of such Indian tribe. (B) The Secretary may disapprove a compact described in subparagraph (A) only if such com- pact violates— (i) any provision of this chapter, (ii) any other provision of Federal law that does not relate to jurisdiction over gaming on Indian lands, or (iii) the trust obligations of the United States to Indians. (C) If the Secretary does not approve or dis- approve a compact described in subparagraph (A) before the date that is 45 days after the date on which the compact is submitted to the Sec- retary for approval, the compact shall be consid- ered to have been approved by the Secretary, but only to the extent the compact is consistent with the provisions of this chapter. (D) The Secretary shall publish in the Federal Register notice of any Tribal-State compact that is approved, or considered to have been ap- proved, under this paragraph. (9) An Indian tribe may enter into a manage- ment contract for the operation of a class III gaming activity if such contract has been sub- mitted to, and approved by, the Chairman. The Chairman’s review and approval of such con- tract shall be governed by the provisions of sub- sections (b), (c), (d), (f), (g), and (h) of section 2711 of this title. (e) Approval of ordinances For purposes of this section, by not later than the date that is 90 days after the date on which any tribal gaming ordinance or resolution is submitted to the Chairman, the Chairman shall approve such ordinance or resolution if it meets the requirements of this section. Any such ordi- nance or resolution not acted upon at the end of that 90-day period shall be considered to have been approved by the Chairman, but only to the extent such ordinance or resolution is con- sistent with the provisions of this chapter. (Pub. L. 100–497, § 11, Oct. 17, 1988, 102 Stat. 2472.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (d)(7)(B)(iv), (vii)(I), (8)(B)(i), (C), and (e), was in the original ‘‘this Act’’, meaning Pub. L. 100–497, Oct. 17, 1988, 102 Stat. 2467, known as the Indian Gaming Regulatory Act, which is classified principally to this chapter. For com- plete classification of this Act to the Code, see Short Title note set out under section 2701 of this title and Tables. CONSTITUTIONALITY For information regarding the constitutionality of certain provisions of this section, see the Table of Laws Held Unconstitutional in Whole or in Part by the Su- preme Court on the Constitution Annotated website, constitution.congress.gov. § 2711. Management contracts (a) Class II gaming activity; information on oper- ators (1) Subject to the approval of the Chairman, an Indian tribe may enter into a management contract for the operation and management of a class II gaming activity that the Indian tribe may engage in under section 2710(b)(1) of this title, but, before approving such contract, the Chairman shall require and obtain the following information: (A) the name, address, and other additional pertinent background information on each person or entity (including individuals com- prising such entity) having a direct financial interest in, or management responsibility for, such contract, and, in the case of a corpora- tion, those individuals who serve on the board of directors of such corporation and each of its stockholders who hold (directly or indirectly) 10 percent or more of its issued and out- standing stock; (B) a description of any previous experience that each person listed pursuant to subpara- graph (A) has had with other gaming contracts with Indian tribes or with the gaming industry generally, including specifically the name and address of any licensing or regulatory agency