IGRA Section 20 Exceptions Explained: Restored Lands and Initial Reservations

One of the most consequential rules in Indian gaming law is a prohibition with exceptions. Under Section 20 of the Indian Gaming Regulatory Act, codified at 25 U.S.C. § 2719, tribes generally may not conduct gaming on lands taken into trust after October 17, 1988 — the date IGRA became law. The rule exists to discourage "reservation shopping," the practice of acquiring off-reservation parcels chosen mainly for their gaming potential. But Congress paired the prohibition with a set of carefully drawn IGRA Section 20 exceptions, and understanding them is essential to understanding why some newer casinos are lawful and others are not.

The general rule and the two-part determination

The baseline is straightforward: post-1988 trust land is presumptively ineligible for gaming. The best-known way around it is the discretionary "two-part determination," under which the Secretary of the Interior finds that gaming on the parcel would be in the best interest of the tribe and not detrimental to the surrounding community, and the state's governor concurs. That pathway — demanding because it requires gubernatorial sign-off — is covered in depth in our explainer on the Section 20 two-part determination. The exceptions discussed below are different: where they apply, gaming is permitted without that discretionary process.

These categorical exceptions matter because they are, in practice, how most post-1988 gaming lands qualify. Rather than persuading a governor, a tribe shows that its land falls within one of the defined categories Congress exempted from the prohibition. Whether a parcel is even "Indian land" in the first place is a threshold question addressed in our definition of Indian lands under IGRA; the Section 20 analysis applies only after that threshold is met.

The reservation and contiguity exception

The first major exception covers lands located within or contiguous to the boundaries of a tribe's reservation as they existed on October 17, 1988. The logic is that such land is a natural extension of an established reservation, not a strategically chosen off-reservation acquisition. For tribes that held a reservation on that date, this exception provides a stable basis for expanding gaming onto adjacent trust parcels without triggering the two-part determination.

A related provision addresses tribes that had no reservation on the operative date, reflecting Congress's intent to place newly landed and long-established tribes on more equal footing. In practice, the contiguity exception is the workhorse of tribal casino expansion: an established tribe adding trust land next to its existing reservation can usually proceed on the strength of this category alone, which is why it generates far less litigation than the exceptions that follow.

The equal-footing exceptions: settlement, initial reservation, restored lands

Three further exceptions — often grouped as the "equal footing" provisions — recognize that some tribes acquire land through processes unrelated to reservation shopping. The first covers lands taken into trust as part of a settlement of a land claim, where the acquisition resolves a legal dispute over territory. The second, the initial reservation exception, applies to the first reservation of a tribe that has been newly acknowledged through the federal recognition process. The third, and most litigated, is the restored lands exception, which covers land taken into trust for a tribe that was terminated and later restored to federal recognition, provided the parcel qualifies as part of that restoration.

The restored-lands exception has generated the most litigation because it turns on fact-specific judgments about a tribe's history, its termination and restoration, and whether a particular parcel has a sufficient connection to that restored status.

Disputes over these categories are not academic. Courts and the Interior Department regularly weigh whether a given tract fits the restored-lands or initial-reservation definitions, and the outcome can determine whether a casino may open at all. The vacated trust decision in the Koi Nation Shiloh casino case illustrates how contested the boundaries of these exceptions can be. The eligibility of post-1988 land also intersects with the older question of the Interior Secretary's authority to take land into trust, shaped by the Supreme Court's Carcieri decision and analyzed in our piece on Carcieri, fee-to-trust, and 1934 jurisdiction.

It is worth emphasizing what these exceptions do and do not accomplish. Qualifying under Section 20 removes only the post-1988 land barrier; a tribe must still satisfy every other requirement to game. The land must be Indian land held in trust or restricted status, the tribe must have a gaming ordinance approved by the National Indian Gaming Commission, and Class III gaming still requires a tribal-state compact. Section 20 is thus a gatekeeping test that sits alongside — not in place of — the rest of IGRA's structure, which is why a project can clear one hurdle and still stall at another.

For anyone tracking where new tribal casinos can lawfully be built, Section 20 is the map. A project on post-1988 trust land succeeds only if it fits one of these exceptions or clears the two-part determination. The categories are technical, but the stake is concrete: they decide whether a tribe's newest land can host gaming, and they explain why so many casino disputes ultimately turn on the date a parcel entered trust and the precise legal route by which it got there.