Secretarial Procedures Explained: Class III Gaming Without a Compact
The backstop Congress wrote, the hole the Supreme Court cut in it, and the regulation Interior built to fill the gap.
Most Class III tribal casinos operate under a compact negotiated with the state where they sit. A small but consequential number operate under something else: a set of federally issued rules called secretarial procedures, imposed by the Secretary of the Interior when a state will not reach an agreement. Understanding how that alternative path works explains a great deal about the leverage each side brings to a compact table.
The Indian Gaming Regulatory Act of 1988 built compacting on an assumption that did not survive contact with the courts. Congress required states to negotiate in good faith and gave tribes a federal cause of action to sue if they did not. If a court found bad faith, the parties would go to a mediator, and if that failed, the Secretary would prescribe procedures under which the tribe could game. It was a closed loop, and it worked as designed for eight years.
What broke the original design
In Seminole Tribe v. Florida (1996), the Supreme Court held that Congress lacked authority under the Indian Commerce Clause to abrogate state sovereign immunity, meaning a state could invoke the Eleventh Amendment and have the tribe's good-faith suit dismissed without any ruling on the merits. The enforcement mechanism Congress had written became optional at the state's election. Our explainer on the Seminole decision covers that holding and its aftermath in full.
Interior's response was 25 CFR Part 291, a regulation creating an administrative route to the same destination. Where a state raises immunity and the suit is dismissed on that basis, the tribe may apply directly to the Secretary for Class III gaming procedures. The regulation restores the endpoint Congress intended while working around the jurisdictional hole the Court created.
The threshold a tribe must clear
Part 291 is not a shortcut, and the sequence matters. Before the Secretary will entertain an application, a tribe generally must show each of the following:
It submitted a written request to the state to negotiate a Class III compact. At least 180 days passed after the state received that request without a compact being concluded. The tribe then filed suit in federal district court alleging that the state failed to respond or failed to negotiate in good faith. The state asserted an Eleventh Amendment defense. And the court dismissed the action on sovereign-immunity grounds.
Only after that chain is complete does the administrative path open. The tribe submits a proposed set of procedures; the Secretary notifies the state and invites its own proposal and comment; and Interior may adopt the tribe's version, the state's, or a hybrid. The resulting document governs the same subjects a compact would — permitted games, machine counts, regulatory standards, minimum internal control standards, licensing, dispute resolution and public-safety provisions.
A tribe cannot reach secretarial procedures simply because negotiations are slow or the terms are unattractive. The state has to have refused to negotiate meaningfully and then have used its immunity to avoid a ruling on that refusal.
What secretarial procedures can and cannot authorize
The most important limitation is the scope-of-games rule that governs compacting generally. IGRA permits Class III gaming only of a type the state otherwise allows for any purpose by any person, organization or entity. Secretarial procedures cannot expand that universe. If a state permits no house-banked card games at all, procedures cannot authorize them; if the state runs a lottery and licenses commercial slot machines, the argument for including machines in procedures is strong. This is the same test that separates permitted from prohibited games under a negotiated compact, and it is why the Class II and Class III distinction matters so much in restricted states — a subject covered in our Class II versus Class III explainer.
Revenue sharing is the second major difference, and it cuts in the tribe's favor. Under IGRA, a state may receive a share of tribal gaming revenue only as consideration for a meaningful concession — typically exclusivity within a defined market. Secretarial procedures are issued unilaterally by a federal agency and are not a bargained exchange, so they generally do not include revenue-sharing payments to the state. A state that walks away from negotiations and successfully invokes immunity can therefore end up with a tribal casino operating in its borders and no revenue-sharing stream from it. That asymmetry is the single strongest incentive states have to negotiate rather than stonewall.
How often this actually happens
Rarely, which is the point. Secretarial procedures function primarily as a backstop that shapes behavior at the table rather than as a commonly used route. A handful of tribes operate under them — several in California, where drawn-out negotiations and litigation have been most common — and their existence is cited far more often in negotiations than it is invoked.
Part 291 has also drawn legal challenge. States have argued that Interior exceeded its statutory authority in creating an administrative substitute for a mechanism Congress tied to a judicial finding, and at least one federal appellate court has agreed in the context of a specific application. The regulation remains on the books and Interior continues to process applications under it, but tribes considering the route should treat its durability as a live question rather than settled law.
Why it matters for compact strategy
For a tribe, the practical takeaway is that the 180-day clock and the litigation step are prerequisites worth documenting from the first letter, not afterthoughts assembled later. Written negotiation requests, dated correspondence and a clear record of the state's responses are what an eventual Part 291 application rests on.
For a state, the calculus is that immunity is a defense with a cost. Invoking it forecloses judicial review of the good-faith question but opens the administrative route, and the administrative route produces gaming without revenue sharing. That is why most compact impasses resolve in extensions or renegotiations rather than in a race to the courthouse. Readers can follow how those negotiated instruments are structured and amended in our explainer on compact amendments and in the TribalGaming legal guide.