Reclaiming Authority: The Case for Tribal Economic Sovereignty in the Gaming Era

Section I: Introduction

The question of tribal sovereignty has long occupied the center of American Indian legal debate. From issues ranging from land disputes to taxation, courts have repeatedly been asked to define the scope of Native nations’ authority within a federal system that has historically oscillated between recognition and restriction. Generally, the U.S. legal system has intentionally disregarded indigenous rights, often prioritizing land acquisition and forced assimilation over tribal sovereignty and treaty rights. In recent years, the rise of gaming and sports-betting industries has made this issue especially pertinent, as tribes have leveraged these enterprises to promote economic independence and self-determination in ways that state governments sometimes resist through the reserved power of the Tenth Amendment [1]. As affirmed by the Commerce Clause of the U.S. Constitution in Article 1, tribes have nearly the same powers as federal and state governments to regulate their internal affairs, including the right to establish their own form of government, determine membership, enact legislation, establish law enforcement and court systems, and the right to control their own economies [2].

However, recent federal court cases have brought these tensions back into focus, testing the limits of tribal sovereignty and clarifying how federal law continues to define the economic rights of Native nations in the modern era. For example, in Ysleta del Sur Pueblo v. Texas (2022), the Supreme Court held that Texas could not enforce its state gaming laws on the Ysleta del Sur Pueblo’s lands [3], and similarly, in Maverick Gaming v. United States (9th Cir. 2024), the Ninth Circuit dismissed a private casino’s challenge to tribal-state gaming compacts [4]. Both of these cases exemplify how federal courts continue to reaffirm tribal authority over gaming activities, underscoring the continued importance of economic sovereignty for tribal nations. In this paper, I argue that tribal nations must retain full economic sovereignty over gaming enterprises. As reaffirmed in Ysleta del Sur Pueblo v. Texas (2022) and Maverick Gaming v. United States (2024), the federal legal framework recognizes tribal gaming as an exercise of inherent self-governance and treaty-based autonomy, and restricting this authority not only conflicts with established Supreme Court precedent but also undermines tribes’ constitutional right to sustain self-sufficient economies and govern their internal affairs.

To make my argument, I begin in Section II by outlining the historical background of tribal governance and sovereignty in the United States in order to illustrate how the complex court cases and legislation regarding Native American tribes have shaped the current state of tribal economic sovereignty. In Section III, I exemplify how judicial inconsistencies within the scope of more recent tribal gaming law have led to instability within the legal foundation of tribal gaming authority. Next, in Section IV, I demonstrate the continued importance of preserving tribal economic sovereignty as defined by the Constitution and the Indian Gaming Regulatory Act, especially in the modern day. Lastly, in Section V, I conclude by exploring the implications of an inconsistent approach by the courts to affirm tribal economic sovereignty.

Section II: Historical Foundations for Recognizing Tribal Economic Sovereignty

The recognition of tribal economic sovereignty has deep legal and historical roots, tracing back to early federal-tribal treaties and landmark cases such as Cherokee Nation v. Georgia (1831) that established tribes as “domestic dependent nations” with inherent rights to self-government [5]. Notably, in Worcester v. Georgia (1832), one of the original three cases—Johnson v. M'Intosh (1823), Cherokee Nation v. Georgia (1831), Worcester v. Georgia (1832)—that established the legal foundation for federal Indian law, Chief Justice Marshall affirmed that the state of Georgia did not have authority to regulate the intercourse between state citizens and members of the Cherokee Nation [6]. In doing so, the Court upheld that tribes possessed inherent sovereignty over their internal affairs and were subsequently not subject to state law. For most of the 19th century, Worcester set the precedent regarding tribal sovereignty and its extent in the United States.

1886 and 1887, however, marked two distinct shifts in the legal interpretation of tribal sovereignty. United States v. Kagama (1886), which considered whether or not the Constitution grants Congress jurisdiction over crimes committed between Native Americans, ruled in opposition to absolute tribal sovereignty, in that “being within the geographical limit of the United States,” Indian tribes can be subject to the laws that Congress enacts [7]. Kagama thus established that Congress had plenary power over Native American tribes, meaning it has complete power without any restrictions. Following the decision in Kagama, Congress passed the Dawes Act in 1887, which effectively removed more than 60 percent of the land that tribes held [8]. Combined, Kagama and the Dawes Act vastly reduced the scope of tribal sovereignty, demonstrating a significant shift in power from tribes to the federal government.

Despite the setbacks in formal legal reinforcement that United States v. Kagama and the Dawes Act created for Native American tribes, in the wake of the 20th century, a trend toward tribal self-governance emerged, opening the door for economic sovereignty to be a crucial factor for tribes. With the passage of the Indian Reorganization Act of 1934 (IRA) during the New Deal era, the federal government’s policy of allotment and assimilation under the Dawes Act ended, instead promoting tribal self-government and communal landholding [9]. By declaring that tribes had the right to “conserve and develop Indian lands and resources” and “extend to Indians the right to form business and other organizations,” the Act provided the first modern legal framework for tribal economic autonomy [10]. The principles established by the Indian Reorganization Act of 1934 formed the legal foundation for later statutes such as the Indian Gaming Regulatory Act (1988), which recognized gaming as a modern exercise of the same economic sovereignty envisioned in 1934 [11].

A few decades later, Congress enacted the Indian Gaming Regulatory Act (IGRA) in 1988 to establish a comprehensive federal framework governing gaming on tribal lands. Passed in response to the Supreme Court’s decision in California v. Cabazon Band of Mission Indians (1987), which affirmed tribal authority over gaming free from most state interference, the IGRA sought to balance tribal sovereignty with federal oversight [12]. Recognizing the economic and governmental potential of gaming for tribal nations, Congress stated that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not prohibit such gaming activity” [13]. Through this statute, the federal government formally acknowledged gaming as a lawful expression of tribal self-determination, placing tribes instead of states at the center of regulatory authority. In doing so, the IGRA transformed gaming into a vehicle of economic independence and reaffirmed the federal commitment to tribal sovereignty that continues to shape the legal landscape of Native governance today.

Section III: Judicial Inconsistency in Tribal Gaming Law

Although the Supreme Court has somewhat affirmed tribal authority in economic matters, its inconsistent jurisprudence has left the legal foundation of tribal gaming sovereignty unstable, creating uncertainty for tribes seeking to sustain lawful economic development. The Court’s decision in California v. Cabazon Band of Mission Indians (1987), a case in which California sought to apply its gambling laws to tribal bingo and card operations, exemplifies the unpredictability of the Court’s doctrine [14]. The Court ruled decisively in favor of the Cabazon Band, holding that states lacked authority to regulate gaming on tribal lands when such gaming was not prohibited by federal law, thereby affirming the principle that tribes possess inherent sovereignty over their economic activities [15]. As Justice Byron R. White, writing for the majority opinion, asserted, “the tribes’ sovereignty is dependent on, and subordinate to, only the Federal Government, not the States,” establishing a clear doctrinal boundary that protected tribal self-regulation of gaming [16]. However, subsequent decisions have eroded that clarity, leaving the scope of tribal authority vulnerable to fluctuating judicial interpretations.

Less than a decade after Cabazon, in Seminole Tribe v. Florida (1996), the Seminole Tribe sued the State of Florida under the IGRA, alleging that the state had failed to negotiate a gaming compact in good faith as required by the Act [17]. Florida argued that sovereign immunity under the 11th Amendment protected states from being sued by the tribe in federal court, which the Supreme Court sided with, holding that Congress lacked authority under the Indian Commerce Clause to abrogate state sovereign immunity, effectively preventing tribes from suing states to enforce IGRA’s negotiation provisions [18]. By removing a key enforcement mechanism for tribes in gaming, the ruling in Seminole Tribe v. Florida reintroduced uncertainty into the legal framework governing tribal-state relations and marked the beginning of a fragmented jurisprudence that continues to affect tribal economic autonomy today.

The struggle for a strong legal foundation for tribal economic sovereignty remains relevant today as the Court continues to waver in its judicial recognition of tribal sovereignty, creating further uncertainty for tribes in a time when legal stability is necessary to sustain lawful economic development. In a landmark case for tribal economic sovereignty, Ysleta del Sur Pueblo v. Texas (2022), the Court reaffirmed Cabazon’s reasoning in a 5-4 decision, ruling that the Ysleta del Sur Pueblo, a federally recognized tribe near El Paso, whose gaming operations were challenged by the State of Texas, could not be unilaterally imposed upon by the state’s gaming laws on tribal lands [19]. In the opinion of the Court, Justice Gorsuch noted that unless gaming activities were completely banned by the state, they are “subject to tribal regulation and must conform to [the] IGRA,” not regulatory laws put forth by the state [20]. Although the ultimate ruling in Ysleta del Sur Pueblo v. Texas affirms tribal sovereignty in economic matters, the narrow margin of the decision demonstrates how divided the Court remains on the scope of tribal sovereignty, illustrating the fragility of precedent in federal Indian law and the continuing conflict tribes face in asserting economic self-governance. Since the Court’s tribal sovereignty jurisprudence has continued to be inconsistent and convoluted, tribal economic matters thus depend heavily on the composition of the Court and the interpretive philosophy of the justices. Such precarious factors lack the stability and legitimacy that are required for tribes to have sustained economic development, leaving their rights vulnerable to the shifting preferences of the judiciary [21].

The uncertainty surrounding the stability of tribal economic sovereignty was further tested in Maverick Gaming v. United States (9th Cir. 2024), where a private casino operator sought to invalidate tribal–state gaming compacts by challenging the constitutionality of the IGRA. Maverick Gaming argued that IGRA’s framework, granting tribes exclusive control over sports betting, violated the Equal Protection Clause and that the federal government had overstepped its authority by approving the compacts. The Ninth Circuit, however, dismissed the case, holding that tribal sovereign immunity barred Maverick’s suit against both the tribes and federal officials. In its opinion, the court reaffirmed that Congress intended IGRA to operate within a federal–tribal system insulated from private and state interference, emphasizing that the doctrine of sovereign immunity is not merely procedural but a substantive protection of tribal self-governance [22]. The decision underscores how federal courts continue to recognize tribes as distinct sovereigns whose economic rights, including gaming, are shielded from encroachment by non-tribal actors. Yet, it also reflects the persistent need for judicial clarity because even though Maverick Gaming upheld tribal sovereignty, the growing number of challenges to IGRA exposes how the lack of consistent judicial standards continues to threaten the legal predictability necessary for tribes to sustain independent, thriving economies.

Section IV: Constitutional Balance in Tribal Economic Regulation

Protecting tribal economic sovereignty is legally necessary to preserve the constitutional balance between federal and tribal authority established by the Commerce Clause and IGRA. As the central document for American law, the Constitution offers crucial insight into the relationship between the federal-tribal relationship under the Commerce Clause, which grants Congress, not states, exclusive authority to regulate commerce “with the Indian tribes” [23]. This constitutional foundation establishes that tribes operate under federal oversight, reinforcing the principle that economic activities such as gaming fall within the federal sphere. When states attempt to regulate or restrict tribal gaming enterprises, as seen in cases like Ysleta del Sur Pueblo v. Texas, they encroach upon the exclusive federal domain established by the Commerce Clause. Thus, tribal economic sovereignty is not merely defined by previous judicial precedents but is a constitutional underpinning that prevents inconsistent, state-level encroachments that undermine both federal authority and tribal self-determination.

Similarly, in the IGRA, Congress explicitly recognized gaming as a means of “promoting tribal economic development, self-sufficiency, and strong tribal governments” [24]. By defining this purpose, Congress affirmed that tribal gaming enterprises are not merely commercial ventures but exercises of inherent sovereignty that advance the federal policy of tribal self-determination. The IGRA’s statutory framework provides a uniform federal standard for regulating gaming activities, ensuring that tribes, rather than states, retain primary control over the economic benefits derived from their lands. In this way, the IGRA implements the constitutional balance envisioned by the Commerce Clause, in that the exclusive federal-tribal relationship becomes a strong mechanism for sustaining tribal economic sovereignty.

In light of gaming expanding into online and mobile platforms, new jurisdictional challenges arise that existing federal law must adapt to, such as unclear tribal authority in borderless digital markets, interstate data and payment flows that bypass traditional regulatory boundaries, and outdated statutes not built for cloud-based platforms [25]. Therefore, maintaining tribal control over these enterprises ensures that emerging technologies remain governed by consistent federal standards rather than a patchwork of state laws that could undermine the IGRA’s national framework [26]. A lack of legal consistency in this area would not only create regulatory confusion but also violate the constitutional allocation of power to Congress under the Commerce Clause. When state governments attempt to impose differing regulations, it leads to overlapping jurisdictions and unpredictable enforcement, which destabilize tribal economies and deter economic development. Moreover, inconsistent application of the IGRA’s standards across states erodes the reliability of federal commitments to uphold tribal self-governance, making it difficult for tribes to plan, expand, and sustain lawful economic development within a secure legal framework.

Opponents of tribal economic sovereignty often argue that state governments possess legitimate regulatory interests under the Tenth Amendment and principles of public policy, claiming that tribal gaming should not operate beyond state control. However, this argument fails to take into consideration that Congress’s exclusive authority under the Commerce Clause and the Indian Gaming Regulatory Act preempts state control. Under the Tenth Amendment, states possess the right to assert “police power” over activities that affect non-Indians within their borders [27]. Some states try to extend this right to tribal gaming, claiming that it implicates state interests by regulating crime and consumer protection. Yet the Supreme Court has repeatedly rejected such claims in cases like California v. Cabazon Band of Mission Indians, where the Court held that states could not apply their gaming regulations to tribal lands where the activity was not expressly prohibited by federal law, establishing that solely federal and tribal authority—not state—governs such enterprises [28].

Some states have similarly challenged that federal gaming law gives them a meaningful role in regulating tribal gaming, which they view as necessary to address sovereignty and jurisdictional concerns. For example, the IGRA’s compacting process implicitly limits tribal sovereignty by requiring negotiation with states for Class III gaming [29]. However, both the text and legislative history of IGRA make clear that Congress intended these compacts to function as cooperative agreements, not as mechanisms for state control. While Seminole Tribe v. Florida limited tribes’ ability to sue states for failing to negotiate gaming compacts, the Court did not extend state regulatory power over tribal gaming [30]. Rather, it reaffirmed that the IGRA remains the controlling federal statute in this area. Other state courts have argued that because gaming can have “off-reservation impacts,” states have concurrent jurisdiction [31]. This position conflicts with the Constitution’s Commerce Clause, which grants exclusive regulatory authority over tribal commerce to Congress, not the states—a division reaffirmed in Ysleta del Sur Pueblo v. Texas that reserves Indian economic regulation to the federal government and tribes themselves [32].

Section V: Conclusion

Ultimately, the right of tribes to regulate and profit from gaming enterprises is a legally grounded extension of their inherent sovereignty, one repeatedly recognized, though inconsistently applied, by the Supreme Court. From Worcester v. Georgia to Maverick Gaming v. United States, federal law has acknowledged that tribal nations possess the authority to govern their internal affairs, including economic enterprises like gaming, free from state interference. In an era of expanding commercial and online gambling, strengthening tribal economic authority is not only a matter of fairness but of constitutional right, ensuring that the United States honors its historic commitments to tribal self-determination and the enduring principle of government-to-government respect. Without the Courts’ continual affirmation of tribal nations’ full economic sovereignty over their gaming enterprises, Indigenous tribes and communities will continue to be oppressed by century-long external controls that minimize their cultural autonomy and status as equal members of a nation that emerged long after their own presence on this land. At the same time, rejecting tribal economic sovereignty weakens the reputation of our judicial system, central to our Country, exposing inconsistency driven by political will rather than the law and the Constitution. The future of tribal–federal relations hinges on our willingness to honor tribal sovereignty not as an exception, but as a foundational principle of American law.

Footnotes
[1] U.S. Const. amend. X, § 1.

[2] “An Issue of Sovereignty,” The National Conference of State Legislatures, January 13, 2013, https://www.ncsl.org/quad-caucus/an-issue-of-sovereignty.

[3] Ysleta Del Sur Pueblo v. Texas, 596 U.S. ___ (2022).

[4] Maverick Gaming LLC v. United States, No. 23-35136 (9th Cir. 2024).

[5] “Understanding Tribal Sovereignty,” Federal Bar Association, March 1, 2017, https://www.fedbar.org/blog/understanding-tribal-sovereignty/.

[6] Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

[7] United States v. Kagama, 118 US 375 (1886).

[8] “U.S. Subdivides Reservation Land; Sells off Surplus,” National Library of Medicine, Sep 26, 2011, https://www.nlm.nih.gov/nativevoices/timeline/373.html.

[9] Indian Reorganization Act of 1934, 25 U.S.C. § 5101 et seq. (1934), https://www.govinfo.gov/content/pkg/COMPS-5299/pdf/COMPS-5299.pdf.

[10] Ibid.

[11] Congress.gov, “Indian Gaming Regulatory Act: Gaming on Indian Lands,” Dec 17, 2025, https://www.congress.gov/crs-product/IF12527.

[12] California v. Cabazon Band of Indians, 480 U.S. 202 (1987).

[13] Congress.gov, “Indian Gaming Regulatory Act.”

[14] California, 480 U.S. 202 (1987).

[15] Ibid.

[16] Ibid.

[17] Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).

[18] Ibid.

[19] Ysleta Del Sur Pueblo, 596 U.S. ___ (2022).

[20] Ibid.

[21] Stephen Cornell and Joseph Kalt, “Two Approaches to Economic Development on American Indian Reservations: One Works, the Other Doesn’t,” Library of Congress Control Number, 2006, https://www.honigman.com/media/site\_files/111\_imgimgjopna\_2005-02\_Approaches.pdf.

[22] Maverick Gaming LLC, No. 23-35136 (9th Cir. 2024).

[23] U.S. Const. art. I, § 8, cl. 3

[24] Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (1988).

[25] Katherine Guarino Baker, “Proposed DOI Gaming Regulations to Allow for Historic Expansion of Mobile Tribal Gaming,” The National Law Review, June 29, 2023, https://natlawreview.com/article/proposed-doi-gaming-regulations-to-allow-historic-expansion-mobile-tribal-gaming.

[26] Dept. of Interior National Indian Gaming Commission, “Budget Justifications: The United States Department of the Interior National Indian Gaming Commission,” Jul 1, 2022, https://www.doi.gov/sites/default/files/fy2023-nigc-greenbook.pdf.

[27] U.S. Const. amend. X, § 1.

[28] Matthew L. M. Fletcher, California V. Cabazon Band: A Quarter-Century of Complex, Litigious Self-Determination, MSU Legal Studies Research Paper No. 10-08, 59 Federal Lawyer, April 2012, 50, April 12, 2012, SSRN: https://ssrn.com/abstract=2038904.

[29] Michael D. Cox, Indian Gaming Regulatory Act: An Overview, 7, no. 3 (1995): 769–89, https://scholarship.stu.edu/cgi/viewcontent.cgi?article=1701\&context=stlr.

[30] Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).

[31] Heidi McNeil Staudenmaier, Off-Reservation Native American Gaming: An Examination of the Legal and Political Hurdles, 4, no. 2 (2004): 301–19, https://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1289\&context=nlj.

[32] Ysleta Del Sur Pueblo v. Texas, 596 U.S. ___ (2022).