Jacob Berman of the California AG’s office has published Such Gaming Causes Trouble: Constitutional and Statutory Confusion with the Indian Gaming Regulatory Act in the Seton Hall Journal of Sports and Entertainment Law.

There is no abstract but this paragraph from the conclusion establishes the premise:

Since its passage, the Indian Gaming Regulatory Act has proved wildly successful at improving Indian tribes’ economic status, but the Second and Tenth Circuits have deviated  from Congress’ original intent. The IGRA was intended to put Indian tribes and state governments on an equal footing, not to give tribal governments undue leverage over state governments. This principle of tribal-state equality has been ignored by the Second and Tenth Circuits, which instead decided to force states to choose between no Class III gambling and all Class III gambling, treating state lotteries, race tracks, and off-track betting as functionally equivalent to craps, roulette and slot machines. Not only does this approach go against Congress’ intent in passing the IGRA, but it also goes against the Tenth Amendment’s anti-coercion doctrine, which prohibits the federal government from enlisting state legislatures and to enforce federal policies. The Eleventh Amendment option, created in Seminole, presents no viable alternative for a state seeking to maintain any form of regulated Class III gaming under the class-based test.

Not supportive of tribal prerogatives, and basically reads Cabazon Band of the equation. The language in red above, in my view, is just flat wrong on a number of levels. Oh well.