Bargaining for Jurisdiction: Tort Liability in Tribal-State Gaming Compacts

Tribal-State gaming compacts, required by the Indian Gaming Regulatory Act, often include provisions regarding tort liability. While compact tort provisions within states tend to be consistent with one another, the provisions fluctuate widely between states. I have analyzed compacts from eleven states and placed them into five categories. Each category has played out differently in practice with varying effects on tribal sovereign immunity. When entering into compact negotiations, it is important for tribes to evaluate the lessons of these categories to be fully apprised of the host of options available to address tort liability. Considering how existing provisions have played out, there are various things a tribe could negotiate for to avoid the disadvantages of some of the categories. These negotiation topics include: a clear statement on tort liability; liability insurance; a tort liability ordinance; and a limited waiver of sovereign immunity for the resolution of tort claims.