Dennis Whittlesey: Pueblo compact process raises legal doubts

Without regard to the Texas litigation in 2007, the question will certainly arise as to whether the Interior Department's "solution" to an impasse in compact negotiations is lawful. The matter almost certainly will be decided by carefully following the specific language in IGRA, just as Supreme Court Justice Elena Kagan did in the recent Bay Mills Indian Community case involving a tribal gaming facility in Michigan. And special attention will be paid to the statute's apparent requirement that no process for imposing a compact can proceed until a "[federal] court finds that the State has failed to negotiate in good faith with the Indian tribe," according to express factors specified in the law.

That states can cite sovereignty to defeat legal challenges to their failure to negotiate is settled law. See Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). While the regulation in large part follows the IGRA process, it problematically ignores IGRA's predicate for invoking the subsequent administrative process that a federal court must first have adjudicated the State's failure to negotiate in good faith. Moreover, the Secretary's regulations did not resolve the potentially fatal barrier identified by the Supreme Court in Seminole Tribe that the 11th Amendment precludes any adjudication as to "good faith" by the State without consent by the State.

When Interior was drafting the regulation, there was a great deal of debate within Indian Country and the federal government about this matter. In light of this, it must be accepted that attorneys at Interior, Justice, and the National Indian Gaming Commission carefully assessed how best to confront the problem when states simply refuse to deal and then invoke state sovereign immunity to defeat the federal courts' jurisdiction to hear any legal challenge and, consequently, to render any decision as to whether the states' actions were not in good faith.