Brief of Amici Curiae in Support of AT&T Corporation and Affirmance (Part 1)

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

Appeal From The United States District Court
For The District of Idaho
Edward J. Lodge, Chief Judge
District Court Case No. Cv-97-00392-EJL

ROBERT A. BUTTERWORTH		MIKE HATCH
Attorney General				Attorney General
State of Florida				State of Minnesota
JONATHAN A. GLOGAU			ALAN I. GILBERT
Assistant Attorney General			Chief Deputy and Solicitor General
Department of Legal Affairs		DAVID M. AAFEDT
The Capitol, Plaza Level 01		Assistant Attorney General
Tallahassee, FL 32399-1050		1100 NCL Tower
(850) 414-3300, ext. 4817			445 Minnesota Street
St. Paul, MN 55101-2130
(651) 296-7519


ATTORNEYS FOR AMICI CURIAE

TABLE OF CONTENTS……….Page
TABLE OF CONTENTS……………I
TABLE OF AUTHORITIES………..iii
STATEMENT OF AMICI CURIAE..1
ARGUMENT………………………..2

I. THE NIL IS NOT CONDUCTED "'ON INDIAN LANDS" WITHIN THE MEANING OF IGRA…..2

A. As The District Court Concluded, the NIL Fails To Comply With IGRA Because The Subject Gaming Activity Is Not Conducted Entirely On Indian Lands…..3

1. The NIL violates the plain meaning of the "on Indian lands" requirement…..4

2. The NIL violates the long-standing, historical meaning of the "on Indian lands" requirement…..5

3. The purpose and intent of IGRA support the conclusion that the NIL does not comply with the "on Indian lands" requirement…..8

a. Congress intended for the "on Indian lands" requirement to be given its long-standing, historical meaning…..8

b. Adoption of the Tribe's argument would defeat IGRA's intent relating to tribal-state compacts for Class III gaming…..12

c. The Tribe's argument transforms every telephone into a gambling device and will exponentially expand off-reservation gambling…..14

B. As The District Court Concluded, the Management Contract Approval And Letter From The Former NIGC Chair-man Are Not Entitled to Any Deference…..16

CONCLUSION…..21

FEDERAL CASES……………….. Page

A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411 (9th Cir. 1986)…..19

Brock v. Louvers and Dampers, Inc.,817 F.2d 1255 (6th Cir. 1987)…..18,19

Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412 (8th Cir. 1996)…..17

Cabazon Band of Mission Indians v. National Indian Gambling Comm'n.,
14 F.3d 633 (D.C. Cir. 1994)….. 8,9,11

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)…..7

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,, Inc.,
467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)…..17,18

Kilgore v. Outback Steakhouse of Florida, Inc., 160 F.3d 294 (6th Cir. 1998)…..20

Martin v. United States, 389 F.2d 895 (5th Cir. 1968).….14

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)…..6

New Mexico v- Mescalero Apache Tribe, 462 U.S. 324 (1983…..6

Organized Village of Kake v. Egan, 369 U.S. 60 (1962)…..6

Passamaquody Tribe v. Maine, 897 F. Supp. 632 (D. Me. 1995),
aff 'd, 75 F.3d 784 (1st Cir. 1996)…..17

Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997)…..12,19

RITA, Inc. v. Flandreau Sante Sioux Tribe, 798 F. Supp. 586 (D. S.D. 1992)…..19

SEC v. Sloan, 436 U.S. 103, 98 S. Ct. 1702, 56 L. Ed. 2d 148 (1978…..19

Sioux Valley Hospital v. Bowen, 792 F.2d 715 (8th Cir. 1986)…..20

Steen v. John Hancock Mutual Life Insurance, 106 F.3d 904 (9th Cir. 1997)…..19

Strate v. A- I Contractors, 520 U.S. 438, 117 S. Ct. 1404 (1997)…..6

U.S. v. Robertson, 52 F.3d 789 (9th Cir. 1995)…..18

White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980)…..6

Williams v. Lee, 358 U.S. 217 (1959)…..6

Wilshire Westwood Association v. Atlantic Richfield Corp.,
881 F.2d 801 (9th Cir. 19890…..19

STATES CASES

Rice v. Connolly, 488 N.W.2d 241 (Minn. 1992)…..5

State v. Coando, 784 P.2d 1228 (Utah Ct. App. 1989) aff d on other grounds,
858 P.2d 926 (Utah 1992)…..7

State v. McGill, 836 P.2d 1371 (Or. Ct. App. 1992)…..7

State v. Rossbach, 288 N.W.2d 714 (Minn. 1980)…..7

State v. Winckler, 260 N.W.2d 356 (S.D. 1977)…..7

18 U.S.C. §§ 1166-1168 (1994 & Supp. II 1997)…..1, 3

18 U.S.C. §§ 1301, 1302…..18

Indian Gaming Regulatory Act of 1988 ("IGRA"), 25 U.S.C. §§ 2701-2721…..passim

1988 U.S.C.C.A.N. 3071…..10

Fed. R. App. P. 29(a)…..1

STATE CONSTITU'NON, STATUTES AND RULES

Ala. Const. Art. IV, § 65…..5

Alaska Stat. § 11.66.200…..5

Ark. Const. Art. 19, § 14…..5

Ark. Code Ann. 5-66-103, 5-66-118…..5

Colo. Const. Art. XVIII, § § 2, 9…..5

Colo. Rev. Stat. §§ 18-10-106, 12-47.1-815…..5

Conn. Gen. Stat. §§ 12-570a and 53-278…..5

Fla. Const. Art. X, §§ 7 and 15…..5

Fla. Stat. Ch. 849…..5

Fla. Stat. § 777.011…..5

Ga. Const.. Art. 1, § 2, VIII…..5

Ga. Code Ann. §§ 16-12-20 et seq…..5

Ind. Code § 35-45-5-1, 35-45-5-2 and 4-30-1-1 et seq…..5

Iowa Code § 725.12…..5

Iowa Code Chs. 99B and 99E…..5

Kan. Const. Art. 15, § 3c…..5

Kan. Stat. Ann. Ch. 21, Art. 43, 21-4302 and 21-4303…..5

La. Rev. Stat. Tit. 14, §§ 90 and 90.3…..5

Mich. Comp. Laws § 750.372…..5

Minn. Stat. §§ 609.75, 609.755 and 609.76 (1998)…..2

Minn. Stat. §§ 609.755(2) and (3) and 609.76…..2

Miss. Code Ann. § 75-76-3…..5

N.D. Cent. Code § 12.1-28-02…..5

N.J. Const. Art. VI, § 7, para. 2C…..5

N.J. Stat. Ann. 2C:37-1(h), 2C:37-2, 2C:37-3(a)(2)

N.M. Stat. Ann. § 30-19-2 and 3…..5

Neb. Rev. Stat. § § 9-411, -422, -434…..5

Nev. Const. Art. IV, § 24, N.R.S. Ch. 462…..5

Ohio Const. Art. XV, § 6…..5

Ohio Rev. Code § 2915.01, 2915.02(A)(2) and (A)(3)…..5

Okla. Stat. Tit. 21, §§ 1051-1058 (1991 and 1998)…..5

Oregon Rev. Stat. § 167.117…..5

Pa. Stat. Ann., tit. 18, § 5512…..5

Pa. Stat. Ann., tit. 72, §§ 3761-307(c), and 308…..5

S.D. Const. Art. III, § 25, SDCL § 22-25-1…..5

Utah Const. Art. VI, § 27…..5

Utah Code § 76-10-1102-1104…..3

Va. Code § 18.2-325 et seq.;…..5

Vt. St. Ann. Tit. 3 1, ch. 239…..5

W. Va. Const. Art. VI, § 36…..5

Wash. Const. Art. 11, § 24…..5

MISCELLANEOUS AUTHORITIES

Black's Law Dictionary, 679 (6th ed. 1990)…..4

Webster's New Intemational Dictionary, 932 (3rd ed. 1964)…..4

STATEMENT OF AMICI CURIAE

The undersigned amici curiae states¹("amici") respectfully submit this brief pursuant to Fed. R. App. P. 29(a) in support of affirmance of the district court decision. The district court correctly held that the Coeur D'Alene Tribe's ("Tribe") National Indian Lottery ("NIL") did not comply with the"on Indian lands" requirement of the Indian Gaming Regulatory Act of 1988 ("IGRA'), 25 U.S.C. §§ 2701-2721 and 18 U.S.C. §§ 1166-1168 (1994 & Supp. II 1997). Accordingly, as the district court concluded, state laws prohibiting such a lottery are not preempted.

This case involves important questions of state and federal law which implicate the uniquely sovereign interests of the states. This Court's interpretation of IGRA will have a direct impact on the states' gambling laws, as well as the public poli4 underlying those laws. For example, if the Tribe's position prevails, the tribal-state compacting process, which is an essential part of IGRA, would be totally undermined. See infra at 12-14. Due to page limitations imposed on amici, this brief will focus on what continues to be the pivotal and dispositive issue of this case: whether the NIL complies with the on Indian lands" mandate of IGRA.

I. THE NIL IS NOT CONDUCTED ON "INDIAN LANDS" WITHIN THE MEANING OF IGRA.

Each amici state has a statute that restricts gambling and prohibits lotteries, except as otherwise allowed by statute.² Under each of these statutes, the NM clearly constitutes a lottery. See, e.g., Minn. Stat. §§ 609.75, 609.755 and 609.76 (1998). If the Tribe solicits and allows persons physically located in the amici states to participate in the NIL,³ the Tribe will violate these statutes. See, e.g., Minn. Stat. §§ 609.755(2) and (3) and 609.76, subd. 1(3) (1998).

The Tribe asserts, however, that these gambling laws cannot be applied to it due to the operation of IGRA. 25 U.S.C. §§ 2701-2721 and 18 U.S.C. §§ 1166-1168 (1994 & Supp. II 1997); see 25 U.S.C. § 2710(d)(1) (1994 & Supp. II 1997) (authorizes certain Indian gaming if conducted in compliance with IGRA, even if gaming would otherwise be a violation of state law). As the district court held, this assertion is without merit. The NIL does not comply with IGRA because it is not conducted "on Indian lands."

A. As The District Court Concluded, the NIL Fails To Comply With IGRA Because The Subject Gaining Activity Is Not Conducted Entirely On Indian Lands.

IGRA provides a statutory basis and framework for the regulation and conduct of Indian gaming. 25 U.S.C. § 2701(3) and (5) (1994 & Supp. II 1997). Congress approved three forms of Indian gaming: Class I (ceremonial games), Class II (bingo and related games) and Class III (all other gaming activities, including a lottery). See 25 U.S.C. § 2703(6)-(8) (1994 & Supp. II 1997). In addition to other statutory requirements, IGRA mandates that each form of Indian gaming conducted under IGRA, including any Class III gaming activity, is authorized to be played only "on Indian lands." 25 U.S.C. § 2701(a),(b)(1) and (d)(1) (1994 & Supp. II 1997). Specifically, "Class III gaming activities shall be lawful on Indian lands only if such activities are...." 25 U.S.C. § 2710(d)(1) (1994 & Supp. II 1997) (emphasis added). This critical requirement of IGRA is not satisfied with respect to the NIL. The NIL violates the plain, as well as the long-standing, historical meaning of the"on Indian lands" requirement. Furthermore, the conclusion that the NIL fails to comply with this requirement is supported by the purpose, intent and legislative history of IGRA.

1. The NI[L violates the plain meaning of the "on Indian lands" requirement.

The "on Indian lands"⁴ requirement of IGRA clearly mandates that any Indian gaming activity, including a consumer's play or participation in the game, physically take place on tribal land. Gaming activity necessarily includes the player's placing of the wager or other participation in the game. See, e.g., Black's Law Dictionary, 679 (6th ed. 1990) (definition of "gambling" includes "[m]aking a bet"); Webster's New International Dictionary, 932 (3rd ed. 1964) (definition of "gambling" includes the act or practice of betting). In the context of a lottery, for the gaming activity to be conducted, participants place their wager by purchasing lottery tickets. Under the NIL concept, persons physically present in any of the amici states, not on the Coeur D'Alene reservation, would be wagering on the NIL. The existence of a phone bank and a centralized computer system on the Coeur D'Alene reservation does not change the uncontested fact that the person making the wager is located outside of Idaho, and clearly not on the Coeur D'Alene reservation. As a consequence, because the wager is placed off the reservation, the gaming activity is not conducted "on Indian lands" as plainly required by IGRA.

This conclusion is supported by the decision in Rice v. Connolly, 488 N.W.2d 241 (Minn. 1992). In Rice, the Minnesota Supreme Court considered whether a state constitutional provision which authorized "on-track" pari-mutuel wagering allowed wagers to be placed by phone with the track from off-track locations. The court concluded that the unambiguous and literal meaning of the phrase "on-track" required that the bettor be physically present at the track and therefore bets phoned into the track from locations outside of the track were not authorized. As the Court reasoned:

In its literal sense, the word "on" as a part of the phrase "on-track@' is more precisely defined as "at" to denote a location for the placement of a pari-mutuel bet.... As a practical matter then, bets not physically placed at the racetrack cannot be, by definition,"'ontrack," no matter how they are transmitted to the track, electronically recorded or accepted into the pool of funds.

488 N.W.2d at 247.

Like the phrase "on-track" as applied in Rice, the phrase "on Indian lands" is unambiguous and literally requires that the person placing the wager be physically present on tribal land. Accordingly, the NIL does not comply with IGRA's "on Indian lands" mandate.

2. The NIL violates the long-standing, historical meaning of the "on Indian lands" requirement.

The NIL also contravenes the long-standing, historical meaning and legal significance of the "on Indian lands" requirement. Based upon the respective sovereignty of both the tribes and states, courts have generally recognized the jurisdiction of tribes with respect to activities that take place on tribal lands, and the authority of the states in regard to activities that, even in part, take place off of Indian lands.

Indeed, the United States Supreme Court, in determining whether a state and/or tribe has jurisdiction over particular conduct involving Indians, has distinguished between activity that takes place an tribal lands and conduct that occurs elsewhere. See, e.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973); Organized Village of Kake v. Egan, 369 U.S. 60 (1962); Williams v. Lee, 358 U.S. 217 (1959). As stated in Mescalero Apache Tribe v. Jones, "[a]bsent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the state." 411 U.S at 148-49 (citations omitted).

The Court has emphasized the sovereignty of the tribes over matters occurring on tribal lands, and generally, precluded the states from regulating activities of Indians which are limited to tribal property. See, e.g.,, New Mexico v. Mescalero Apache Tribe, 462 U.S. at 333-34; Bracker, 448 U.S. at 144, 151. The Bracker Court observed that "[t]he Court has repeatedly emphasized that there is a significant geographical component to tribal sovereignty.... though the reservation boundary is not absolute, it remains an important factor to weigh in determining whether state authority has exceeded the permissible limits. 'The cases in this Court have consistently guarded the authority of Indian governments over their reservations."' 448 U.S. at 151 (citation omitted). On the other hand, "[a] state's regulatory interest [is] particularly substantial if the state can point to off-reservation effects that necessitate state intervention." New Mexico, 462 U.S. at 336 (citation omitted); see also Strate v. A-1 Contractors, 520 U.S. 438, _, 117 S. Ct. 1404, 1409 (1997) (tribe does not have jurisdiction over activities occurring outside its reservation).

Consistent with these principles, courts have determined that when a portion of Indian activity occurs off of tribal lands, even where the conduct originates from tribal property, then such activity is not limited to tribal lands. See State v. Winckler, 260 N.W.2d 356 (S.D. 1977) (state had jurisdiction over conduct where Indians fired shots from Indian land onto state land); State v. Rossbach, 288 N.W.2d 714 (Minn. 1980) (state had jurisdiction over conduct where Indian fired shot from reservation onto state land); State v. Coando, 784 P.2d 1228 (Utah Ct. App. 1989) affd on other grounds, 858 P.2d 926 (Utah 1992) (state had jurisdiction over conduct where bad checks were allegedly issued by an Indian on reservation land, but refusal to honor checks occurred at drawee bank located on state land off the reservation); State v. McGill, 836 P.2d 1371 (Or. Ct. App. 1992) (state had jurisdiction over Indian who retained possession-,of television at home on reservation after he stopped making payments as his failure to return television to store off of the reservation was gravamen of offense).

In California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), the Court ruled that the State of California could not regulate bingo games which were conducted entirely on reservation lands. The Court framed the issue as "whether the State may prevent the Tribes from making available high stakes bingo games to non-Indians coming from outside the reservations" to gamble on the reservation. 480 U.S. at 216. As part of its analysis, the Court noted that state laws generally do not apply to tribal member activity within the member's reservation other than in exceptional circumstances. Id. The Court then concluded that the sovereignty of the tribes associated with their on-reservation bingo operations outweighed any alleged state interest in applying the state bingo laws on Indian land. 480 U.S. at 219, 107 S. Ct. at 1094.

In this case, the subject gaming clearly does not occur entirely on tribally held reservation lands. To the contrary, because the wagers are placed off the Coeur D'Alene reservation, the gaming activity certainly "goes beyond7' the reservation. Therefore, in accordance with the historical meaning associated with the phrase "on Indian lands," the NIL does not comply with this essential IGRA requirement.

3. The purpose and intent of IGRA support the conclusion that the NIL does not comply with the "on Indian lands" requirement.

Not only does the NIL violate the plain and long-standing historical meaning of the "on Indian lands" mandate, but the purpose and intent of IGRA also strongly supports this conclusion. First, Congress clearly intended for the "on Indian lands" requirement to be applied in a manner which is consistent with the phrase's long-standing, historical and legal significance. Second, adoption of the Tribe's position would severely undermine the purpose of IGRA's Class III gaming compact requirement. Third, if Defendant's argument prevailed, every mode of communication would effectively become a gambling device leading to a proliferation of off-reservation Indian gambling which was not intended by Congress.

a. Congress intended for the "on Indian lands" requirement to be given its long-standing, historical meaning.

IGRA was enacted in direct response to Cabazon. Consistent with Cabazon, Congress determined 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, as a matter of criminal law and public policy, prohibit such gaming activity." 25 U.S.C. § 2701(5) (1994 & Supp. II 1997) (emphasis added). Also, recognizing that "existing federal law does not provide clear standards or regulations for the conduct of gaming on Indian lands," 25 U.S.C. § 2701(3) (1994 & Supp. II 1997) (emphasis added), Congress established such standards and a system of regulation. As part of this statutory framework, Congress required that all forms of Indian gaming activities be conducted only ",on Indian lands." 25 U.S.C. §§ 2702, 2703, 2706, 2710 (1994 & Supp. II 1997). IGRA is replete with other references to the "on Indian lands" requirement. ⁵

As discussed above, the phrase has a long-standing, historical meaning and significance which differentiates between tribal activities that occur entirely on tribal property, over which a tribe typically is vested with jurisdiction, and tribal matters that "go beyond" reservation land, over which a state is traditionally authorized to regulate. The "on Indian lands" concept, which was critical to the Cabazon decision, where the subject gaming was indisputably conducted entirely on Indian land, was purposely and knowingly carried over to IGRA. Thus, Congress made no provision in IGRA for games played partially on tn 'bai property. To the contrary, it expressly mandated that each Indian gaming activity actually take place "on Indian lands." See, e.g., 25 U.S.C. §§ 2710 (1994 & Supp. II 1997).

IGRA's legislative history similarly places great emphasis on the "on Indian lands" requirement. The phrase is extensively used in Senate Report No. 100-446, the Report of the Senate Indian Affairs Committee which referred S.555, the bill from which IGRA was derived, to the full Senate. See 1988 U.S.C.C.A.N. 3071. The Committee's Report repeatedly acknowledges the historical and legal significance of the "on Indian lands" terminology. For example, the Report states:

It is a long and well-established principle of Federal-Indian law as expressed in the United States Constitution, reflected in Federal statutes, and articulated in decisions of the Supreme Court, that unless authorized by an act of Congress, the jurisdiction of State governments and the application of state laws do not extend to Indian lands. In modem times, even when Congress has enacted laws to allow a limited application of State law on Indian lands, the Congress has required the consent of tribal governments before State Jurisdiction can be extended to tribal lands.

In determining what patterns of jurisdiction and regulation should govern the conduct of gaming activities on Indian lands, the Committee has sought to preserve the principles which have guided the evolution of Federal-Indian law for over 150 years. In so doing, the Committee has attempted to balance the need for sound enforcement of gaming laws and regulations, with the strong Federal interest in preserving the sovereign rights of tribal governments to regulate activities and enforce laws on Indian land...

Consistent with these principles, the Committee has developed a framework for the regulation of gaming activities on Indian lands which provides that in the exercise of its sovereign rights, unless a tribe affirmatively elects to have State laws and State jurisdiction extend to tribal lands, the Congress will not unilaterally impose or allow State jurisdiction on Indian lands for the regulation of Indian gaming activities.

Id. at 3076 (emphasis added).

Like IGRA itself, neither the Senate Committee Report, nor other IGRA legislative history, authorizes Indian gaming activity to be played, even in part, off of Indian lands. Rather, in discussing the use of modern technology to facilitate Class 11 tribal gaming, the Senate Committee Report strictly adheres to the historical meaning associated with, as well as the plain meaning of, the "on Indian lands" requirement. As the Report reasons:

View Part 2

¹The amici states are Minnesota, Florida, Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia and Wyoming.

²Like Minnesota, each amici state has a statutory or constitutional provision that prohibits lotteries: See, e.g., Ala. Const. Art. IV, § 65; Alaska Stat. § 11.66.200; Ark. Const. Art. 19, § 14 , Ark. Code Ann. 5-66-103, 5-66-118; Colo. Const. Art. XVIII, §§ 2, 9, Colo. Rev. Stat. §§ 18-10-106, 12-47.1-815-, Conn. Gen. Stat. §§ 12-570a and 53-278; Fla. Const. Art. X §§ 7 and 15, Fla. Stat. Ch. 849 and § 777.011; Ga. Const. Art. I, § 2, VIII, Ga. Code Ann. §§ 16-12-20 et seq.; Ind. Code § 35-45-5-1, 35-45-5-2 and 4-30-1-1 et seq.; Iowa Code § 725.12 and Chs. 99B and 99E; Kan. Const. Art. 15, § 3c, Kan. Stat. Ann. Ch. 21, Art. 43, 21-4302 and 21-4303; La. Rev. Stat. Tit. 14, §§ 90 and 90.3; Mich. Comp. Laws § 750.372; Miss. Code Ann. § 75-76-3; Neb. Rev. Stat. §§ 9-411, -422, -434; Nev. Const. Art. IV, § 24, N.R.S. Ch. 462; N.J. Const. Art. VI, § 7, para. 2C, N.J. Stat. Ann. 2C:37-1(h), 2C:37-2, 2C:37-3(a)(2); N.M. Stat. Ann. § 30-19-2 and 3; N.D. Cent. Code § 12.1-28-02; Ohio Const. Art. XV, § 6, Ohio Rev. Code § 2915.01, 2915.02(A)(2) and (A)(3); Okla. Stat. Tit. 21, §§ 1051-1059 (1991 and 1998); Oregon Rev. Stat. § 167.117; Pa. Stat. Ann., tit. 18, § 5512, tit. 72, §§ 3761-307(c), and 308; S.D. Const. Art. III, § 25, SDCL § 22-25-1; Utah Const. Art. VI, § 27, Utah Code § 76-10-1102-1104; Vt. St. Ann. Tit. 31, ch. 239; Va. Code § 18.2-325et seq.; Wash. Const. Art. II, § 24; W. Va. Const. Art. VI, § 36.

³ Although the Tribe claims that it will only offer the NIL in states that have lotteries, the logic of the Tribe's legal argument would allow the Tribe to offer the NIL in any state whether or not it has a lottery. This would even include states like Hawaii and Utah which do not authorize gambling of any kind. See note 6, infra.

⁴Indian lands are defined in IGRA as: "(A) all lands within the limits of any Indian reservation; and, (B) any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or individual or held by any tribe or individual subject to restriction by the United States against alienation and over which an Indian tribe exercises governmental power." 25 U.S.C. § 2703(4) (1994 & Supp. II 1997).

⁵ The phrase "on Indian lands" is used approximately 29 times throughout IGRA.