61 Fla. L. Rev. 1201 (2009) | | | |

INTRODUCTION :: “Indian gaming is a national multi-billion dollar enterprise and growing.” Even in 2008, amidst an economic downturn, the revenues generated by the tribal gaming industry continued to show growth. In 2008 alone, Indian gaming generated $ 26.7 billion and accounted for a little more than a quarter of the gaming industry revenues in the United States. The explosion of tribal gaming “has been fueled by Americans’ seemingly insatiable appetites for slots, high-stakes poker, and bingo.” Indian gaming serves as the single source of income for a number of tribes and is the lifeblood of many tribes’ finances. Tribes use their gaming profits to “fund education, improve health and elder care, enhance police and fire departments, build housing and roads, develop environmental programs, launch commercial ventures, and buy back reservation lands.” Namely, Indian gaming moves American Indians, “who have historically been the poorest of the poor, from welfare to work by providing job opportunities and diminishing the state’s responsibility to make public entitlement payments.” Similarly, tribal casinos benefit non-tribal jurisdictions and contribute to local economic development by creating hundreds of thousands of jobs for non-Indians and generating billions of dollars in economic development for the surrounding communities.

On November 14, 2007, Florida Governor Charles Crist, on behalf of the State of Florida, attempted to capitalize on this multi-billion dollar enterprise when he signed a twenty-five-year gambling compact (Compact) with the Seminole Tribe of Florida (Tribe). In signing the Compact, Crist ended sixteen years of negotiations and significantly expanded casino gambling in Florida. Among other things, the Compact gave the Tribe the exclusive right to conduct several types of Class III gaming, including slot machines, any banking or “banked” card games, and high stakes poker games, all of which are illegal under Florida law. In exchange for the “partial but substantial exclusivity” to operate the games, the Tribe committed to pay the State of Florida a share of its gaming revenue, amounting to more than $ 100 million a year.

Less than a year after the execution of the Compact, however, the Speaker of the Florida House of Representatives sued the governor in the Florida Supreme Court, alleging that he had overstepped his bounds. The Florida Supreme Court held the governor did not possess the authority to bind the State to a gaming compact that clearly departed “from the State’s public policy by legalizing types of gaming that are illegal everywhere else in the state.” Notably, the ruling did not invalidate the Compact.

While the validity of the Compact remained uncertain, the Tribe continued to operate the illegal games in several of its casinos throughout Florida, claiming it is not required to abide by the ruling because “Florida enjoys no compulsory authority over activities on [Indian] lands.” The Tribe further asserted it has the authority to operate the games under the Indian Gaming Regulatory Act (IGRA).

To address this issue, the Florida Legislature proposed legislation that laid out the framework for a new compact (Proposed Compact). Notably, the Proposed Compact increased the annual payments the Tribe must make to the State, yet it decreased the number of casinos at which the Tribe is permitted to operate Class III games. Nearly two months following its passage, the Tribe and the governor signed the Proposed Compact. Not surprisingly, however, the Tribe rejected several key provisions the Legislature originally set forth in the Proposed Compact. As a result, many Florida lawmakers are reluctant to ratify the revisions in the Proposed Compact, leaving the future of Indian gaming in Florida highly uncertain.

This Note examines the controversy and key issues surrounding the nearly two- decade-long clash between the Tribe and the State of Florida over the operation of Class III games on tribal lands in Florida. Using Florida as a backdrop, this Note illuminates three significant issues currently at the center of Indian gaming law: (1) whether a compact may permit Class III games that a state’s laws explicitly prohibit; (2) whether a tribe’s political leverage in compact negotiations is weakened in light of Seminole Tribe of Florida v. Florida (Seminole Tribe) and Texas v. United States; and (3) whether the Secretary of the Department of the Interior (Secretary) has the unilateral authority to promulgate rules in the absence of a compact. By analyzing these issues in the context of Florida’s Compact and the Proposed Compact, while drawing on similar situations in other states, this Note provides guidance to other states hosting Indian gaming facilities within their borders.

Part II of this Note discusses IGRA and explains the Indian gaming compact procedure, highlighting federal and Florida gaming laws. Part II further unveils the history of Florida’s Compact negotiations and explores the issues and controversy surrounding the Compact. Part III of this Note analyzes the Compact’s validity under IGRA, concluding the Compact is invalid because it authorizes games that are expressly prohibited by Florida criminal law (thereby failing to meet one of IGRA’s requirements). Part III further suggests the Seminole Tribe is currently operating illegal Class III games. Part IV of this Note explores the complex enforcement issues surrounding the Compact and outlines the Proposed Compact as well as the Tribe’s response to the Proposed Compact. Part IV further highlights the issues the State and the Tribe should consider in evaluating which revised provisions of the Proposed Compact to accept. Finally, Part IV challenges the parties to work together in creating a compact that is mutually beneficial.