A Fine Print Proposal That Could Change Indian Gaming

At least 16 entities, from casino associations to tribes, offered comments on the proposed updates before a public comment period closed last Wednesday. Now the BIA and the U.S. Department of the Interior (DOI), tasked with reviewing tribal-state compacts, must review comments and determine if they will incorporate any into the proposal.

Among those who offered comments is the Seminole Tribe, which submitted 12 pages of comments in general support of the BIA’s proposed changes. The Seminoles wrote that “compact provisions allocated jurisdiction are permissible under IGRA when the parties are allocating jurisdiction over activities directly related to gaming activities on Indian lands.”

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The tribe added its belief that remote wagering “is also clearly authorized by IGRA and is fully consistent with IGRA’s provisions allowing states and tribes to negotiate over the allocation of jurisdiction.” While the tribe believes that compacting involving remote wagering is already acceptable, it stated that the updated regulations could clarify that.

It could be months before the new regulations are formalized. There could be an additional public comment period on any proposed revisions, and once set, the rules must be published in the Federal Register for 30 days before they become active. There’s also a possibility of litigation from the commercial sector if any or all of the above three changes are incorporated in the final document.

Among the non-substantive proposed changes, the BIA would: 1-Add and define the phrase “gaming spaces,” which would differ from previously defined “gaming facilities.” 2-Protect tribes from a state demanding a “tax, fee, charge, or other assessment” for offering to wager. 3-Clarify the difference between a “compact” and an “amendment” and the process of submitting agreements to the DOI secretary for determination. 4-Allow tribes to submit compacts electronically in addition to hard-copy submissions that have traditionally been mailed or delivered. 5-Clarify language around whether the DOI secretary must actively disapprove a compact for it to fail, as well as reiterate that a compact that is “deemed approved” with no signature is only approved if it is “consistent” with IGRA.

To give some context, IGRA is the federal law and framework that govern tribal gaming. The view from Indian Country is that IGRA protects tribal sovereignty, while the view from outside Indian Country is that IGRA keeps Indian gaming on tribal lands. The nuanced difference in those views has to do with whether IGRA protects tribes or whether it limits them.

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