Secretarial Procedures: When Tribal-State Compact Talks Fail
When good-faith negotiation breaks down and the courthouse door is closed, this federal backstop is what keeps Class III gaming possible.
To offer Class III gaming — the house-banked table games, slot machines, and in many states sports betting that anchor most major casinos — a tribe must have a compact with the state where it operates. But what happens when the state refuses to negotiate, or the two sides simply cannot agree? The answer, in many cases, is a federal backstop known as Secretarial Procedures: rules that the Secretary of the Interior can prescribe to let Class III gaming proceed even without a signed compact.
Understanding why that backstop exists requires understanding how a key piece of the original bargain in the Indian Gaming Regulatory Act broke down. The procedures are not the system Congress first designed. They are the workaround the executive branch built after the Supreme Court removed the enforcement mechanism the law had relied on.
The original IGRA bargain
When Congress passed the Indian Gaming Regulatory Act in 1988, it required states to negotiate Class III compacts with tribes in good faith. To give that requirement teeth, the law let a tribe sue a state in federal court if the state failed to bargain in good faith. The idea was straightforward: a state could not simply stonewall a tribe indefinitely, because the tribe could ask a judge to order negotiations or, ultimately, to impose terms. This structure is part of the broader compacting framework explained in our Legal Guide to IGRA.
That enforcement design lasted only eight years. In 1996, the Supreme Court held in Seminole Tribe v. Florida that Congress could not use its authority over Indian affairs to strip states of their sovereign immunity, meaning tribes could no longer force unwilling states into federal court over good-faith negotiation. The decision left a hole at the center of IGRA: the statute still required good-faith bargaining, but the remedy for bad-faith refusal had vanished. We unpack that ruling and its consequences in our explainer on Seminole Tribe v. Florida.
The Interior Department's response
To fill that gap, the Department of the Interior issued regulations — codified at 25 C.F.R. Part 291 — establishing a process by which the Secretary could prescribe procedures for Class III gaming when a tribe and a state failed to reach a compact and the state asserted immunity against suit. In broad terms, a tribe that had tried and failed to negotiate could ask the department to step in, submit a proposal, and ultimately receive a set of federally approved procedures governing how it could conduct Class III gaming.
Secretarial Procedures function as a compact substitute: they let regulated Class III gaming move forward when negotiation stalls and litigation is foreclosed.
The procedures are meant to approximate what a compact would have covered — the scope of permitted games, regulatory standards, and oversight — without the state's signature. They are a creature of executive action rather than statute, which is both their strength and their vulnerability: they exist because the agency created them, and their precise limits have been contested in court over the years.
How the process works in practice
While the details are technical, the sequence is generally recognizable. A tribe first attempts to negotiate a compact. If the state declines to negotiate or talks collapse, and the state would invoke immunity to block a lawsuit, the tribe can turn to the federal process and submit a proposed set of procedures. The department reviews the proposal, often seeks the state's input, and weighs it against IGRA's standards before issuing procedures the tribe can operate under.
Crucially, Secretarial Procedures are a fallback, not a shortcut. They come into play only after negotiation has genuinely failed, and they do not relieve a tribe of the substantive requirements that govern Class III gaming — licensing, regulation, and the allocation of net revenues to permitted uses. For how the money side of these arrangements is structured, see our explainer on compact revenue sharing.
Why it still matters
The relevance of this backstop has only grown as gaming has expanded into new forms, especially sports betting, that require fresh rounds of compact negotiation. Each new game or platform a tribe wants to offer can reopen the question of whether the state will bargain — and what happens if it will not. States that prefer the status quo retain significant leverage thanks to their immunity from suit, and tribes facing an uncooperative state may view the federal process as their only realistic path forward.
The procedures also intersect with the ordinary life cycle of a compact. Agreements expire, and renegotiation can stall just as initial negotiation can, a dynamic we cover in our explainer on what happens when a compact expires. In those moments, the existence of a federal fallback shapes the bargaining itself, since a state that knows the Secretary could ultimately prescribe terms has a reason to stay at the table.
The bottom line
Secretarial Procedures are best understood as the patch that kept IGRA functional after a key part of its enforcement scheme was struck down. They do not replace compacts, and they are not a tool tribes reach for lightly. But by giving the federal government a way to authorize regulated Class III gaming when negotiation fails, they ensure that a state's refusal to bargain does not become an absolute veto — and they remain a quiet but important feature of how tribal gaming gets built when the usual path is blocked.