College of Law

This Article argues that the national debate on Indian gaming wrongly focuses on the issue of off-reservation gaming and other symptoms of the current imbalance in Indian gaming law, rather than addressing the fundamental reason for the imbalance. The Article first describes the history of Indian
gaming law that led to Congress’s enactment of the Indian Gaming Regulatory Act (“IGRA”) in 1988 and explains the  delicate balance that the IGRA created between state and tribal interests. The author suggests that the Supreme Court’s Seminole Tribe decision in 1996 ruptured this balance by  invalidating the IGRA provision that extended federal jurisdiction to claims against states for failure to negotiate gaming compacts with tribes in good faith. As a result of the imbalance, states have been able to impose revenue sharing
agreements of questionable legality and fairness on tribes. This, in turn, has led tribes to pursue expanded gaming opportunities off-reservation and to invoke a procedure of uncertain validity that allows the Secretary of the Interior to prescribe gaming compacts between tribes and states. The Article proposes a legislative fix designed to restore the intended balance of the IGRA in a politically salable manner. The primary elements of the proposal are ratification of all existing revenue sharing agreements to which the concerned
tribes consent, a requirement that all future gaming compacts include revenue sharing, and ratification of the Secretary’s procedure for prescribing fair gaming compacts.

The Internal Revenue Service in recent years has been particularly concerned about third-country residents' 1 use of bilateral income tax treaties to avoid paying tax on United States source income. 2 Although third-country residents have benefited from United States bilateral income tax treaties for more than twenty years, the loss of tax revenue from such unintended use was not considered a major problem. 3 The recent proliferation of tax treaties between the United States and tax havens 4 which resulted in an increased loss of tax revenues, however, I A "third-country resident" is an individual who is not a resident or citizen of the United States or a country party to a tax treaty with the United States. Treasury Regulation § 1.871-2(b) which defines "residence" for an individual provides: "an alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax." Treas. Reg. § 1.871-2(b) (1957). The term "third-country resident" should not be confused with the term "nonresident alien individual," which includes those individuals who are r9sidents or citizens of countries party to a tax treaty with the United States. Treas. Reg. § 1.871-2(a) (1957). 2 The rules used to determine the source of income are set forth in I.R.C. § § 861-864 (1981).

Some of the components of the delivery system we propose are new. Design and testing of these components is an essential stage in developing the complex, mixed-model approach. We propose that one or more states and a collaboration of legal service offices function as laboratories to test key components and address management challenges of the complex, mixed-model delivery system.

The Internal Revenue Service in recent years has been particularly concerned about third-country residents' 1 use of bilateral income tax treaties to avoid paying tax on United States source income. 2 Although third-country residents have benefited from United States bilateral income tax treaties for more than twenty years, the loss of tax revenue from such unintended use was not considered a major problem. 3 The recent proliferation of tax treaties between the United States and tax havens 4 which resulted in an increased loss of tax revenues, however, I A "third-country resident" is an individual who is not a resident or citizen of the United States or a country party to a tax treaty with the United States. Treasury Regulation § 1.871-2(b) which defines "residence" for an individual provides: "an alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax." Treas. Reg. § 1.871-2(b) (1957). The term "third-country resident" should not be confused with the term "nonresident alien individual," which includes those individuals who are r9sidents or citizens of countries party to a tax treaty with the United States. Treas. Reg. § 1.871-2(a) (1957). 2 The rules used to determine the source of income are set forth in I.R.C. § § 861-864 (1981).

This Article proposes to modernize the archaic procedures states use to authorize marriages so as to provide legal flexibility, promote efficiency, and enhance individual choice. Almost universally, states require couples' presence within their borders, however briefly, for a ceremony. After considering the historical and policy rationales for this requirement and finding them either obsolete or incoherent, we propose that states offer marriages to those outside their borders. Such distance marriages could occur via video-conference, using the internet or even telephone, with readily available safeguards to prevent fraud. This simple reform would allow certain couples who cannot marry under local law to import the trappings of an official marriage ceremony in "real time, " as well as assure access to the legal tie for any couple facing a barrier of physical separation. Our proposal builds upon the historical and present-day precedent of proxy marriage and legal principles such as choice of law for multi-jurisdictional contracts and corporate formation. With this reform, states would be free to compete over marriage procedure efficiency and experiment with alternative regulatory goals or menu options, such as enabling greater disclosure about personal or health histories, permitting more restrictive prenuptial arrangements (as with certain states' development of "covenant marriage") or tying access to certain distance marriages to advance agreement to accept jurisdiction for marriage dissolution. Finally, our proposal would allow same-sex couples (and other couples unable to marry under their home jurisdictions' laws) easier access to marriage authorization and the ability to perform wedding ceremonies before family and friends. Our procedural reform offers a gradualist approach to the controversies concerning the substantive rules of marriage, notably Judge Walker's recent ruling declaring Proposition 8 unconstitutional.