Class III Tribal State Gaming Compacts, 74916-74947 [2022-25741]
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Federal Register / Vol. 87, No. 233 / Tuesday, December 6, 2022 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 293
[2231A2100DD/AAKC001030/
A0A501010.999900]
RIN 1076–AF68
Class III Tribal State Gaming Compacts
Bureau of Indian Affairs,
Interior.
ACTION: Proposed rule.
AGENCY:
The Bureau of Indian Affairs
(BIA) seeks input on changes to its
regulations governing the review and
approval of Tribal-State gaming
compacts. The revisions would add
factors and clarify how the Department
reviews ‘‘Class III Tribal-State Gaming
Compacts’’ (Tribal-State gaming
compacts or compacts).
DATES: Interested persons are invited to
submit comments on or before March 1,
2023.
ADDRESSES: You may submit comments
by any one of the following methods.
• Federal eRulemaking Portal: Please
upload comments to https://
www.regulations.gov by using the
‘‘search’’ field to find the rulemaking
and then following the instructions for
submitting comments.
• Email: Please send comments to
consultation@bia.gov and include ‘‘RIN
1076–AF68, 25 CFR part 293’’ in the
subject line of your email.
• Mail: Please mail comments to
Indian Affairs, RACA, 1001 Indian
School Road NW, Suite 229,
Albuquerque, NM 87104.
FOR FURTHER INFORMATION CONTACT:
Oliver Whaley, Director, Office of
Regulatory Affairs and Collaborative
Action (RACA), Office of the Assistant
Secretary—Indian Affairs; Department
of the Interior, telephone (202) 738–
6065, RACA@bia.gov.
SUPPLEMENTARY INFORMATION: This
proposed rule is published in exercise
of authority delegated by the Secretary
of the Interior to the Assistant
Secretary—Indian Affairs (Assistant
Secretary; AS–IA) by 209 DM 8.
SUMMARY:
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Table of Contents
I. Statutory Authority
II. Executive Summary
III. Background
IV. Summary of Comments Received
A. General Comments
B. Section Comments
V. Summary of Changes by Section
A. Proposed Subpart A—General
Provisions and Scope
B. Proposed Subpart B—Submission of
Tribal-State Gaming Compacts
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C. Proposed Subpart C—Secretarial Review
of Tribal-State Gaming Compacts
D. Proposed Subpart D—Scope of TribalState Gaming Compacts
VI. Procedural Requirements
A. Regulatory Planning and Review (E.O.
12866)
B. Regulatory Flexibility Act
C. Congressional Review Act (CRA)
D. Unfunded Mandates Reform Act of 1995
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O.
13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act
(NEPA)
K. Effects on the Energy Supply (E.O.
13211)
L. Clarity of This Regulation
M. Public Availability of Comments
I. Statutory Authority
In enacting IGRA, Congress delegated
authority to the Secretary to review
compacts to ensure that they comply
with IGRA, other provisions of Federal
law that do not relate to jurisdiction
over gaming on Indian lands, and the
trust obligations of the United States. 25
U.S.C. 2710(d)(8)(B)(i)–(iii).
II. Executive Summary
The Department of the Interior
(Department) is considering revisions to
its regulations governing the review and
approval of Tribal-State gaming
compacts (25 CFR part 293). The
revisions would add factors and clarify
how the Department reviews ‘‘Class III
Tribal-State Gaming Compacts’’ (TribalState gaming compacts or compacts).
The Department’s current regulations
do not identify the factors the
Department considers; rather, those
factors are contained in a series of
decision letters issued by the
Department dating back to 1988.
Evolution in the gaming industry and
ongoing litigation highlight the need for
the Department to clarify how it will
analyze Tribal-State gaming compacts to
determine whether they comply with
the Indian Gaming Regulatory Act of
1988 (IGRA), 25 U.S.C. 2701, et. seq.,
other provisions of Federal law that
does not relate to jurisdiction over
gaming on Indian lands, or the trust
obligations of the United States to
Indians.
III. Background
In 1988 the Indian Gaming Regulatory
Act acknowledged that many Tribes
were already engaged in gaming, and
placed limits on Tribes’ sovereign right
to conduct gaming. It sought to ensure
that Indian Tribes are the primary
beneficiaries of the gaming operation,
but also authorized State governments
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to play a limited role in the regulation
of class III Indian gaming by negotiating
agreements with Tribes called ‘‘Class III
Tribal-State Gaming Compacts’’ (class III
gaming compacts or compacts).
Congress sought to strike a balance
between Tribal sovereignty and States’
interests in regulating gaming and
‘‘shield it from organized crime and
other corrupting influences.’’ 25 U.S.C.
2702(2).
At the time of IGRA’s enactment,
Indian gaming represented an
approximately $121 million segment of
the total United States gaming industry,
while Nevada casinos reported
approximately $4.1 billion in gross
gaming revenue.1 By the end of fiscal
year 2021, Indian gaming represented an
approximately $39 billion segment of
the total United States gaming industry,
with commercial gaming reporting $53
billion.2 In the Casino City’s Indian
Gaming Industry Report 2018 Edition,
Allen Meister, Ph.D. of Meister
Economic Consulting, estimated that
Indian Gaming gross gaming revenue for
2016 of approximately $31.5 billion
represented a total economic
contribution of $105.4 billion across the
U.S. economy.
In line with the growth in Indian
gaming, State licensed commercial
gaming and State lotteries have also
experienced growth. In the early 1980’s
when Congress began considering
legislation addressing Indian gaming,
two States had legalized commercial
casino gaming and seventeen had State
run lotteries. By 2017, twenty-four
States had legalized commercial casino
gaming resulting in approximately 460
commercial casino locations, excluding
locations with State licensed video
lottery terminals, animal racetracks
without gaming machines, and card
rooms. In 2017, the gross gaming
revenue for the commercial casino
industry represented approximately
$40.28 billion and generated
approximately $9.2 billion in gaming
tax revenue. Further, 44 States were
operating State lotteries in 2017.
The expansion of State lotteries and
State licensed commercial gaming can
place Tribes and States in direct
competition for market share. Also,
advancements in gaming technology
and changes in State and Federal
gaming law since the passage of IGRA
1 See, e.g., ‘‘The Economic Impact of Tribal
Gaming: A State-By-State Analysis,’’ by Meister
Economic Consulting and American Gaming
Association dated November 8, 2018.
2 See, e.g., ‘‘The Nation Indian Gaming
Commission’s annual gross gaming revenue report
for 2021;’’ see also American Gaming Association’s
press release ‘‘2021 Commercial Gaming Revenue
Shatters Industry Records, reaches $53B.’’
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has shaped the compact negotiation
process. As a result, class III gaming
compacts have expanded in scope and
complexity as the parties seek mutually
beneficial provisions. However, IGRA
did not anticipate the compact
negotiation process would be between
competitors, rather sovereign
governments seeking to regulate gaming.
Through IGRA, Congress required
Tribes to enter into a compact with a
State to conduct class III gaming. 25
U.S.C. 2710(d)(1)(C). IGRA requires
States to negotiate class III gaming
compacts in good faith, limits the scope
of bargaining for class III gaming
compacts, and prohibits States from
using the process to impose any tax, fee,
charge, or other assessment on Tribal
gaming operations. 25 U.S.C.
2710(d)(3)(A); 2710(d)(3)(C); and
2710(d)(4).
Under IGRA, the Department has 45
days to complete its review and either
approve or disapprove a class III gaming
compact. If the Department takes no
action within that 45-day period, the
Tribal-State gaming compact is
considered approved by operation of
law—to the extent that it is consistent
with IGRA. In order for a compact to
take effect, notice of its approval must
be published in the Federal Register.
The regulations that codify the
Department’s review process for TribalState gaming compacts are found at 25
CFR part 293 and were promulgated in
2008 (‘‘2008 Regulations’’). 73 FR 74004
(Dec. 5, 2008). The Department’s 2008
Regulations were designed to
‘‘address[es] the process for submission
by Tribes and States and consideration
by the Secretary of Class III Tribal-State
Gaming Compacts, and [are] not
intended to address substantive issues.’’
73 FR 74004–5. The Department’s
consideration of substantive issues
appears in a number of decision letters.
In addition, a body of case law has
developed addressing the appropriate
boundaries of class III gaming compacts.
Through this rule making, the
Department seeks to codify longstanding
Departmental policies and
interpretation of case law in the form of
substantive regulations which would
provide certainty and clarity on how the
Secretary will review certain provisions
in a compact.
On March 28, 2022, the Department
published a Dear Tribal Leader Letter
announcing Tribal consultation
pursuant to the Department’s
consultation policy and under the
criteria in E.O. 13175, regarding
proposed changes to 25 CFR part 293.
The Department held two listening
sessions and four formal consultation
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sessions. The Department also accepted
written comments until June 30, 2022.
The Dear Tribal Leader Letter
included a Consultation Draft of the
proposed revisions to 25 CFR part 293
(hereinafter Consultation Draft); a
Consultation Summary Sheet of Draft
Revisions to part 293; and a redline
reflecting proposed changes to the 2008
Regulations. The Dear Tribal Leader
Letter asked for comments on the
Consultation Draft as well as responses
to seven consultation questions.
The Department received a number of
written and verbal comments from
Tribal leaders and Tribal advocacy
groups. The Department also received
written comments from non-Tribal
entities which are not addressed in the
Tribal consolation comment and
response but will be included and
addressed as part of the public comment
record.
IV. Summary of Comments Received
A. General Comments
Several commenters commented on
the process and timing of the proposed
rulemaking process. Some requested
additional consultations during the
rulemaking process, some requested the
Department engage in extensive
consultations equating to negotiated
rulemaking, and others encouraged the
Department to proceed with the
rulemaking expeditiously.
The Department acknowledges the
comments. The Department seeks to
balance robust consultation with
expeditious processing of the
rulemaking. The Department held four
virtual consultation sessions, two inperson listening sessions, and is
providing additional opportunities for
comment on the proposed regulations,
which reflect the significant input of
Tribal leaders during the scheduled
consultation sessions and their written
comments.
A number of commenters responded
to the Department’s first consultation
question: ‘‘[d]o the draft revisions
increase certainty and clarity in the
Secretary’s compact review process? Are
there additional ways to increase
certainty and clarity?’’ Commenters
expressed support for the proposed
revisions to part 293 and noted the
Consultation Draft appeared to codify
longstanding Departmental policies and
interpretation of case law in the form of
substantive regulations which would
provide certainty and clarity on how the
Secretary will review certain provisions
in a compact. Commenters also
provided a number of specific suggested
improvements to specific propose
sections, including expressing concerns
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that some provisions as written are
overly broad or vague and may cause
confusion. Other commenters cautioned
the Department should not apply the
proposed regulations in a rigid or
paternalistic manner and when possible,
defer to a Tribe’s sovereign decision
making.
The Department acknowledges the
comments. The Department seeks to
clarify and enforce the proper scope of
compacts negotiated under IGRA while
deferring to and respecting Tribes’
sovereign decision making. The
proposed regulations codify existing
limitations on Tribes and States
negotiating compacts pursuant to IGRA.
The Department has addressed specific
suggested improvements in the relevant
sections below including narrowing
some provisions.
A number of commenters responded
to the Department’s second consultation
question: ‘‘[d]o the draft revisions
provide sufficient guidance to parties
engaged in compact negotiations? Are
there ways to provide additional
guidance?’’ Commenters expressed
support for the Consultation Draft and
opined that the proposed new
substantive provisions would improve
the guidance for negotiating parties.
Commenters also recommended the
Department include in the proposed
rule a codification of the Department’s
longstanding practice of offering
‘‘technical assistance’’ to negotiating
parties. Other commenters noted
‘‘sufficient guidance’’ was a laudable
but ultimately unachievable goal. One
commenter expressed concern with the
Consultation Draft and argued the
proposed substantive provisions are
cumbersome, unnecessary, and would
result in increased requests for technical
assistance as Tribes negotiate with State
and local governments as required by
IGRA.
The Department acknowledges the
comments. The Department addresses
technical assistance in a separate
comment summary and response below.
The Department notes the proposed
substantive provisions reflect a
codification of longstanding Department
policy and case law, including the
proper scope of a compact. The
Department notes intergovernmental
agreements between Tribes and States,
or local governments can be beneficial,
however, Congress provided a narrow
scope of topics Tribes and States may
include when negotiating a Tribal-State
gaming compact.
Commenters requested clarification
on whether the proposed regulations
would impact ongoing negotiations.
The Department notes the
Consultation Draft, and the proposed
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regulations are prospective and reflect a
codification of existing Departmental
policy, past precedent, and case law.
The Consultation Draft has been made
public and the Department encourages
Tribes and States that are engaged in
negotiations to review the Consultation
Draft and the proposed regulations.
A number of commenters requested
the Department clarify the effective date
of the proposed substantive provisions
and questioned whether they would be
retroactive. Commenters requested
clarification when parties may submit
under the new regulations once
promulgated. One commenter provided
proposed text for a section addressing
the effective date and grandfather
clause.
The Department has accepted the
proposed regulatory text in part and
added a section to the proposed rule
addressing the effective date of the
proposed regulations. The new section
is numbered § 293.30. IGRA limits the
review period to approve or disapprove
compacts or amendments to 45 days. As
a result, the Department cannot
retroactively approve or disapprove
compacts or amendments after the 45day review period has run.
A number of commenters questioned
the Secretary’s authority to promulgate
substantive regulations interpreting
IGRA’s scope of compact negotiations.
Commenters further questioned the
Secretary’s authority to determine
evidence of bad faith noting IGRA
delegated that role to the courts and
requested clarification on how the
Secretary will find bad faith.
The Secretary has authority to
promulgate these regulations on the
procedures for the submission and
review of compacts and amendments
based on the statutory delegation of
powers contained in IGRA and 25
U.S.C. 2, and 9. In enacting IGRA,
Congress delegated authority to the
Secretary to review compacts to ensure
that they comply with IGRA, other
provisions of Federal law that do not
relate to jurisdiction over gaming on
Indian lands, and the trust obligations of
the United States. 25 U.S.C.
2710(d)(8)(B)(i)–(iii). IGRA establishes
the parameters for topics that may be
the subject of compact and amendment
negotiations and included in compacts.
Thus, in reviewing submitted compacts
and amendments, the Secretary is
vested the authority to determine
whether the compacts contain
impermissible topics. The Department
recognizes that section 2710(d)(7)(A)(I)
vests jurisdiction in district courts over
any causes of action . . . arising from
the failure of a State . . . to conduct [ ]
negotiations in good faith.’’ Therefore,
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the Department has replaced the phrase
‘‘evidence of bad faith’’ with the phrase
‘‘evidence of a violation of IGRA’’ in the
proposed rule. This change harmonizes
the Department’s regulations, with
IGRA’s plain language, is prescribing
those topics, as addressed by IGRA, that
may provide evidence of a violation of
IGRA and which a court may find as
evidence of bad faith negotiations to
assist Tribes with their negotiations.
A number of commenters requested
the Department include a ‘‘Seminole
Fix’’ in the proposed rule, referencing
the decision by Supreme Court of the
United States in Seminole Tribe v.
Florida, 517 U.S. 44 (1996), holding
Congress could not waive a State’s
sovereign immunity through IGRA.
Some commenters recommended the
Department provide technical
amendments to 25 CFR part 291 in
response to Texas v. United States
(Traditional Kickapoo Tribe), 497 F.3d
491 (5th Cir. 2007) and New Mexico v.
United States (Pueblo of Pojoaque), 854
F.3d 1207 (10th Cir. 2017). Commenters
stated the Fifth Circuit and the Tenth
Circuit found part 291 did not provide
for an independent forum to make the
threshold finding that the subject State
failed to conclude negotiations in good
faith and therefore part 291 was too far
adrift from Congressional intent to be
allowed to stand. Other commenters
recommended providing a mechanism
for the Department to seek intervention
by the Department of Justice when
States raise their 11th Amendment
Immunity to a Tribe’s challenge of bad
faith negotiations under IGRA.
Commenters noted without a workable
Seminole fix, Tribes are often at the
mercy of the States who are often the
Tribe’s gaming competitor and seek to
undermine Tribal sovereignty.
Commenters noted some Tribes are
forced to either accept a State’s demand
for improper provisions or revenue
sharing, or risk a notice of violation and
closure for operating without a compact.
The Department notes a minority of
circuits have invalidated the
Department’s part 291 Regulations,
which were promulgated to provide
Tribes with Secretarial Procedures in
response to the Supreme Court’s
decision in Seminole Tribe of Florida v.
Florida, 517 U.S. 44 (1996), which
found that Congress lacked the authority
to subject States to suits by Indian
Tribes under IGRA. The Department is
considering all avenues including
technical amendments to part 291. The
proposed part 293 regulations reflect the
Department’s efforts to ensure all Tribes
may benefit from the goals of IGRA
while enforcing IGRA’s limited scope of
compacts. The inclusion of clear
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guidance and codification of key tests as
well as articulating situations that may
be evidence of a violation of IGRA and
therefore evidence of bad faith
negotiations is a step in this direction.
The Department declines to codify a
formal process by which Tribes may
submit evidence of bad faith in
negotiations to the Department for its
consideration and referral to the
Department of Justice. The Department
has long coordinated with the
Department of Justice and the National
Indian Gaming Commission regarding
enforcement or non-enforcement of
IGRA’s requirement that a Tribe conduct
class III gaming pursuant to a compact
or secretarial procedures.3 The
Department will continue to coordinate
with the Department of Justice and the
National Indian Gaming Commission
regarding enforcement of IGRA.
Several commenters requested the
Department include additional
examples of ‘‘bad faith’’ including: take
it or leave it compacts; a State’s refusal
to offer substantially similar compacts
to all Tribes in the State; and a State’s
refusal to negotiate a compact or
amendment until an existing compact is
set to expire.
The Department acknowledges these
may be examples of bad faith
negotiations under IGRA. The
Department has included in the
proposed rule several provisions which
the Department considers to be evidence
of a violation of IGRA. The Department
will continue to coordinate with the
Department of Justice and the National
Indian Gaming Commission regarding
enforcement of IGRA.
Several commenters requested the
Department provide notice to the
Department of Justice when a compact
is disapproved and request the
Department of Justice file a bad faith
lawsuit against the State on behalf of the
Tribe.
On its face, the disapproval of a
compact or amendment is not evidence
of bad faith negotiations. If, however,
the Tribe provides evidence that the
State forced the Tribe to include the
disapproved provision, the Department
may request the Department of Justice
file a bad faith lawsuit on behalf of the
Tribe in certain situations.
Several commenters requested the
Department publish all compact
decision letters as well as deemed
approval letters in an accessible index.
3 See, e.g., Statement of Indian Gaming in New
Mexico, DOJ 95–459 (August 28, 1995); Statement
of Indian Gaming in New Mexico, DOJ 95–553
(October 27, 1995); and Justice Department and
California announce plan for orderly transition to
legal Indian Gaming, DOJ 98–102 (March 6, 1998).
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The Department acknowledges the
comments. The Department strives to
publish all compact decision letters as
well as deemed approval letters on the
Office of Indian Gaming’s website,
which includes an accessible index.
A number of commenters requested
the Department include in the proposed
rule a formal codification of the Office
of Indian Gaming’s practice of providing
technical assistance to Tribes and
States. Some commenters requested a
fixed timeline for the Department to
issue a technical assistance letter. Other
commenters requested the Department
include the option for a ‘legal opinion’
or formal Departmental action in
response to some requests for technical
assistance.
The Department declines to accept the
recommendation. Technical assistance
is neither a ‘pre-determination’ nor
‘legal guidance,’ rather it is often an
explanation of past precedent and
interpretation of case law. The
Department notes Tribes and States
have presented a wide range of unique
questions to the Office of Indian
Gaming, which may require extensive
policy and legal research. Further,
depending on the parties’ needs and the
scope of their requests, some may prefer
verbal technical assistance over written
technical assistance. The Department
will continue to provide technical
assistance.
Several commenters discussed their
experiences negotiating compacts with
States or seeking to enforce disputes
under their compacts. Other
commenters discussed the importance
of Indian gaming to their Tribes as a
source of revenue, job growth, and
economic self-sufficiency.
The Department acknowledges these
comments.
Several commenters discussed legal
articles, including work by former
Assistant Secretary—Indian Affairs
Kevin Washburn.
The Department acknowledges these
comments.
Several commenters recommended
the Department quote IGRA’s statutory
language rather than paraphrase the
statute as that can result in unintended
changes. A commenter recommended
the Department narrowly tailor the
proposed substantive provisions. Other
commenters also noted a primary
concern is the definition of gaming
activity in § 293.2(d) and used in
§ 293.23 of the Consultation Draft,
§ 293.24 of the proposed draft
regulations.
The Department adhered closely to
the statutory text in the Consultation
Draft and the proposed substantive
provisions codify longstanding
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Departmental policy and case law. The
Department notes the term ‘‘gaming
activity’’ is not defined in IGRA. As
discussed below, the Department has
revised the definition of ‘‘gaming
activity’’ in § 293.2, as well as addressed
it in § 293.24.
Consultation Question: Should the draft
revisions include provisions that
facilitate Statewide remote wagering or
internet gaming?
A number of commenters responded
to the Department’s sixth consultation
question: ‘‘[s]hould the draft revisions
include provisions that facilitate
Statewide remote wagering or internet
gaming?’’ The overwhelming majority of
commenters agreed that the Department
should include provisions relating to igaming. Several commenters believe
that i-gaming provisions are necessary
because Tribes need to be able to
compete in the digital industry. Other
commenters pointed out that the draft
revisions should address i-gaming and
provide for its allowance as negotiated
between a Tribe and State. Another
commenter explained that IGRA
encourages agreements between
sovereigns.
Several other commenters stated that
the State law model of i-gaming is not
a substitute for i-gaming under IGRA
and Tribes should be able to engage in
internet gaming under IGRA. A handful
of comments also expressed support for
the Department’s inclusion but
questioned the need to define gaming
activity as including the elements of
prize, consideration, and chance, as it
could potentially be misconstrued in a
court ruling that requires all three
elements to be present on Indian lands.
Finally, several of the commenters in
support of inclusion of i-gaming also
praised the Department’s i-gaming
analysis in the June 21, 2021, Deemed
Approved letter to the Seminole Nation.
At least three commenters also
submitted proposed language for the
Department to address i-gaming.
A handful of commenters opposed the
Department addressing i-gaming in the
draft revisions. One commenter stated
that the issue was not ripe for inclusion;
another stated that i-gaming was subject
to State law and there’s no case law to
state that the Secretary has power over
this topic; another thought that the issue
is an unresolved matter of Federal law
and the Department should not weigh
in; and another believed there is a lack
of ability to regulate i-gaming and
would harm brick and mortar facilities.
Two commenters did not expressly
support or oppose the inclusion of igaming; one noted that the Department
should further consult with Tribes
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before making any decisions and the
other noted that while the Department’s
views on the legality of such a provision
would be helpful, it is unclear what
further provisions would be proposed.
Other commenters shared personal
experiences and/or legal analysis which
helped inform their decision-making.
The Department acknowledges the
comments and has added a new section
to the proposed rule ‘‘§ 293.29 May a
compact of amendment include
provisions addressing Statewide remote
wagering or internet gaming,’’
addressing Statewide remote wagering
and internet gaming. The IGRA provides
that a Tribe and State may negotiate for
‘‘the application of the criminal and
civil laws and regulations of the Indian
Tribe or the State that are directly
related to, and necessary for, the
licensing and regulation of such
activity’’ and ‘‘the allocation of criminal
and civil jurisdiction between the State
and the Indian Tribe necessary for the
enforcement of such laws and
regulations.’’ 25 U.S.C. 2710(d)(3)(c)(i)–
(ii). The Department’s position is that
the negotiation between a Tribe and
State over Statewide remote wagering or
i-gaming falls under these broad
categories of criminal and civil
jurisdiction. Accordingly, provided that
a player is not physically located on
another Tribe’s Indian lands, a Tribe
should have the opportunity to engage
in this type of gaming pursuant to a
Tribal-State gaming compact.
B. Section Comments
Comments on § 293.1
purpose of this part?
What is the
Several commenters recommended
the Department revise § 293.1(a) by
including the word ‘‘or’’ after the word
‘‘and’’ so that the relevant provision
would read ‘‘[p]rocedures that Indian
Tribes and/or States must use when
submitting . . . .’’ The commenters
suggested change would clarify either
party may submit compacts or compact
amendments.
The Department has accepted this
suggested revision and notes that
§ 293.6 explains either the Tribe or the
State may submit the compact or
amendment.
Several commenters supported the
proposed revisions to § 293.1.
The Department acknowledges the
comment.
Comments on § 293.2 How are key
terms defined in this part?
Several commenters recommended
the Department retain the 2008
Regulation’s introductory text for
§ 293.2 ‘‘[f]or purposes of this part, all
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terms have the same meaning as set
forth in the definitional section of the
Indian Gaming Regulatory Act of 1988,
25 U.S.C. 2703 and any amendments
thereto.’’
The Department declines to accept the
recommendation to retain the 2008
Regulation’s introductory text for
§ 293.2. The Department proposed
changes to the introductory text in
§ 293.2 to improve clarity.
One commenter recommended the
phrasing ‘‘[i]n addition to terms already
defined in IGRA, this part defines the
following additional key terms.’’
The Department declines to accept the
recommendation. One term ‘‘Indian
Tribe’’ is defined in IGRA at 25 U.S.C.
2703(5) and refined here as ‘‘Tribe.’’ The
proposed language indicates the defined
terms in § 293.2 are all new or
additional terms, which could cause
confusion.
Several commenters expressed
support for the proposed revisions to
§ 293.2 and noted the new definitions
for key terms are consistent with IGRA.
The Department acknowledges the
comments.
Comments on § 293.2(a)—Amendment
Several commenters suggested the
definition of Amendment in § 293.2(a)
and as applied in § 293.4 is too broad.
Other commenters suggested the
Department clarify the definition of
Amendment to exclude strictly
administrative or procedural
amendments from review under § 293.4.
The Department has revised § 293.4 to
address these and related comments on
that section.
One commenter requested the
Department revise the definition of
Amendment to include ‘‘or an
amendment to secretarial procedures
prescribed under 25 U.S.C.
2710(d)(7)(B)(vii) when such
amendment is agreed upon by the
Indian Tribe and State.’’ The commenter
explained this addition would clarify
that any such agreements are treated as
a ‘‘compact’’ or ‘‘compact amendment’’
for the purposes of IGRA’s 45-day
review period.
The Department has accepted the
recommendation and include the
proposed text in § 293.2(a).
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Comments on § 293.2(c)—Extension
Several commenters expressed
support for the revised definition of
Extension in § 293.2(c).
The Department acknowledges the
comments.
One commenter recommended the
Department remove the words ‘‘or
amendment’’ from the definition of
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Extension and noted that § 293.5 does
not include the words ‘‘or amendment.’’
The Department notes the terms
‘‘Compact’’ and ‘‘Amendment’’ are
frequently used interchangeably
depending on the underlying facts and
needs of the parties to the agreement.
For that reason, the Department used
the phrase ‘‘compact or amendment’’
throughout the Consultation Draft of
part 293. The Department has made a
conforming edit to § 293.5.
Comments on § 293.2(d)—Gaming
Activity
Several commenters recommended
the Department revise the definition of
‘‘gaming activity or gaming activities’’ in
§ 293.2(d) by replacing the word ‘‘prize’’
with the word ‘‘reward.’’ The
commenters explained the term ‘reward’
is the more commonly used term in the
Tribal gaming industry.
The Department accepted the
recommended revision to § 293.2(e), in
part. The definition of gaming activity
or gaming activities now reads
‘‘[g]aming activity or gaming activities
means the conduct of class III gaming
involving the three required elements of
change, consideration, and prize or
reward.’’
Several commenters expressed
concern that including a definition of
Gaming Activity in part 293 could be
construed to require all elements of the
gaming activity to occur on a Tribe’s
Indian lands thereby precluding Tribes
from negotiating Statewide mobile or igaming in compacts.
The Department acknowledges this
concern and has included a new
proposed § 292.29 which addresses igaming in compacts.
Comments on § 293.2(e)—Gaming
Facility
One commenter recommended the
Department include a defined term for
‘‘gaming spaces’’ consistent with the
rational in the Department’s 2021
disapprovals of three California
compacts. The commenter explained
that including ‘‘gaming spaces’’ defined
term would resolve a logical conflict
between the Department’s definition of
gaming facility and 25 U.S.C.
2710(d)(3)(C)(vi), which permits a
compact to include ‘‘standards for the
. . . maintenance of the gaming facility,
including licensing.’’ The commenter
explained that by defining gaming
facility as the whole structure for the
purposes of building maintenance under
the second clause of 25 U.S.C.
2710(d)(3)(C)(vi); and gaming spaces for
section 2710(d)(3)(C)(i), (ii), the first
clause of (vi), and (vii), would provide
parties with clarity regarding the
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appropriate limits of State oversite
under IGRA.
The Department accepted the
recommendation and has included
gaming spaces as a defined term and
revised the definition of gaming facility
by moving the clause addressing the
gaming spaces to the new paragraph (f)
gaming spaces. The revised definition of
gaming facility addresses the
commenter’s concern regarding building
maintenance and licensing under the
second clause of 25 U.S.C.
2710(d)(3)(C)(vi).
A number of commenters addressed
the clause addressing the gaming spaces
in the proposed definition of gaming
facility in § 293.2(e).
Several commenters recommended
the Department replace the phrase ‘‘the
spaces that are necessary for conduct of
gaming’’ with the phrase ‘‘the spaces
that are directly related to, and
necessary for, the operation of class III
gaming activities.’’ Commenters
explained that phrasing is more
consistent with how the Department has
described the appropriate reach of the
term ‘‘gaming facility’’ in a compact.
Several commenters recommended
the Department replace the phrase
‘‘including the casino floor’’ with the
phrase ‘‘such as the casino floor.’’
Commenters explained this change
would permit the parties to determine
which areas should be properly
included and which areas should
properly be excluded.
Several commenters recommended
the Department revise the phrase ‘‘class
III gaming device, and storage areas’’ by
adding the word ‘‘and’’ before the
phrase and deleting the comma after the
word ‘‘device’’ so that the phrase would
read ‘‘and class III gaming devices and
supplies storage areas.’’ Another
commenter recommended adding the
work ‘‘gaming’’ before the word
‘‘supplies’’ to read ‘‘gaming supplies
storage areas.’’
Several commenters recommended
adding the phrase ‘‘and other secured
areas’’ at the end of the definition.
Several commenters recommended
clarifying that the definition of gaming
facility excludes areas that merely
provide amenities to gaming patrons—
hotels, restaurants, and other spaces that
are not directly used for the conduct of
class III gaming.
The Department has accepted the
recommended revisions to the clause
addressing the gaming spaces in the
definition of gaming facility in part. The
new definition of gaming spaces
incorporates the suggested revisions and
continues to seek the smallest physical
footprint of potential State jurisdiction
over a Tribe’s land under IGRA. This
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definition is intended to codify the
Department’s long-standing narrow read
of 25 U.S.C. 2710(d)(3)(C) as applying
only to the spaces in which the
operation of class III gaming actually
takes place. The revised definition of
gaming facility addresses building
maintenance and licensing under the
second clause of 25 U.S.C.
2710(d)(3)(C)(vi) and is intended to be
narrowly applied to only the building or
structure where the gaming activity
occurs.4
One commenter recommended the
Department include the term
‘‘structure’’ to reflect the diversity of
structures Tribes utilize for the conduct
of Gaming.
The Department has accepted the
recommended revision to the definition
of gaming facility. The definition of
gaming facility in § 293.2(e) now reads
‘‘the physical building or structure,
where the gaming activity occurs.
Several commenters recommended
the Department include a definition for
the term ‘‘project’’ in § 293.2, as part of
the definition of the term ‘‘gaming
facility’’ in § 293.2(e). The commenters
explained that some States have used
the term ‘‘project’’ or ‘‘gaming project’’
in conjunction with ‘‘gaming facility’’ to
extend State oversight and taxation
through triggering extensive
environmental reviews and impact or
mitigation payments when a Tribe seeks
to develop or expand a ‘‘gaming
facility.’’
The Department declines to include a
definition for the term ‘‘project.’’
Proposed revisions to part 293,
including the definitions of gaming
facility and gaming spaces, and
proposed substantive provisions in
§§ 293.24, 293.25, and 293.28 build on
the Department’s narrow read of the
permissible scope of a Tribal State
compacts, and is consistent with the
Department’s disapproval of compacts
from the State of California in part due
to expansive definitions of ‘‘gaming
facility’’ and ‘‘project.’’
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Comments on the Term Necessary for
Several commenters recommended
the Department define or otherwise
articulate a standard for interpreting the
term ‘‘necessary for’’ as it is used in 25
U.S.C. 2710(d)(3)(C) and 25 CFR part
293. The commenters further
4 See, e.g., Letter to the Honorable Peter S.
Yucupicio, Chairman, Pascua Yaqui Tribe of
Arizona, from the Director, Office of Indian Gaming,
dated June 15, 2012, at 5, and fn. 9, discussing the
American Recovery & Reinvestment Act of 2009
and the IRS’s ‘‘safe harbor’’ language to reassure
potential buyers that tribally-issued bonds would be
considered tax exempt by the IRS because the
bonds did not finance a casino or other gaming
establishment.
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recommended the Department defer to a
Tribe’s reasonable determination of
which provisions in a compact are
‘‘necessary for the operation of class III
gaming.’’
The Department notes there is not a
strict definition for ‘‘necessary,’’
therefore, we must look to the context
in which it is used in the statute. As
used in IGRA, ‘‘necessary’’ is a limiting
phrase, or one that employs the
common law use of ‘‘necessary’’ in the
strict sense of indispensable or
essential.5 When applying provisions
which incorporate ‘‘necessary for’’ in
IGRA and in part 293 the Department
will ask ‘‘is this provision absolutely
needed for the Tribe to operate class III
gaming?’’
Comments on § 293.3 What authority
does the Secretary have to approve or
disapprove compacts and amendments?
Several commenters supported the
proposed revisions to § 293.3, but
questioned if the internal crossreference to § 293.14 is accurate.
The Department acknowledges the
comments. The internal cross-reference
to § 293.14 appears in the current
§ 293.3 and the redline reflects a
strikeout of ‘‘293.14’’ with the updated
cite to § 293.15.
Several commenters recommend that
§ 293.3 cite the statutory authority of the
Secretary to approve or disprove a
compact or amendment. Commenters
noted other sections in part 293 address
the baseline requirements of compact
execution and submissions.
The Department has revised § 293.3 to
remove references to the signatures of
the parties.
One commenter recommended the
Department revise § 293.3 by adding the
phrase: ‘‘and an amendment resulting
from another agreement, including, but
not limited to, agreements, other
documents, dispute resolutions,
settlement agreements, or arbitration
decisions.’’
The Department declines to include
the proposed language in § 293.3. The
Department notes revisions to §§ 293.4,
293.7, and 293.21, address amendments
caused by dispute resolution agreement,
5 ‘‘Like ordinary English speakers, the common
law uses ‘necessary’ in this strict sense of essential
or indispensable.’’ Vorchheimer v. Philadelphian
Owners Ass’n, 903 F.3d 100, 106 (3d Cir. 2018)
(discussing Congress’ use of ‘‘necessary’’ in
legislation where no definition provided). ‘‘[W]hen
Congress wants to loosen necessity to mean just
‘sufficiently important,’ it uses the phrase
‘reasonably necessary.’ ’’ Id. at 107; see Ayestas v.
Davis, ll U.S. ll, 138 S. Ct. 1080, 1093 (2018)
(‘‘[18 U.S.C. 3599] appears to use the term
‘necessary’ to mean something less than essential.
The provision applies to services that are
‘reasonably necessary,’ but it makes little sense to
refer to something as being ‘reasonably essential.’ ’’).
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arbitration award, settlement agreement,
or other resolution of a dispute outside
of Federal court.
Several commenters recommended
the Department revise § 293.3 by adding
the phrase: ‘‘and applicable approvals of
both parties.’’
The Department declines to include
the proposed language in § 293.3. The
Department notes revisions to §§ 293.7
and 293.8 address the execution and
approval requirements for a compact or
amendment.
Comments on § 293.4 Are compacts
and amendments subject to review and
approval?
Several commenters recommended
the Department revise § 293.4 by
moving the references to ‘‘agreements or
other documents’’ from paragraph (a) to
paragraph (b) and removing references
to the State including its political
subdivisions from paragraph (b).
Commenters noted these changes would
allow a Tribe to determine which
documents are not ‘amendments.’
The Department accepted the
proposed revisions in part. The
Department notes that proposed
§ 293.21 addresses compact
amendments arising from dispute
resolution procedures and proposed
§ 293.27 addresses intergovernmental
agreements or memoranda of
understanding between the Tribe and
the State or its political subdivisions.
The Department notes the § 293.4
determination process is open to either
party consistent with the submission
procedures in Subpart B.
Several commenters recommended
the Department split § 293.4(b) into a
new section addressing ancillary
agreements. The commenters noted this
proposed section would strike a balance
between documents that amend a
compact and are properly subject to
Secretarial review and documents or
agreements between Tribal regulators
and State regulators addressing
technical implementation of compact
terms. The proposed new section would
be titled ‘‘[w]hen are ancillary
agreements and documents subject to
review and approval?’’ The proposed
new section would include three new
paragraphs and contain revisions to the
text of § 293.4(b).
The Department accepted the
proposed revisions in part and
incorporated the proposed ancillary
agreement test in § 293.4(b).
Several commenters requested the
Department codify a streamlined
approach for review and approval of
technical amendments.
The Department declines to provide a
separate ‘‘streamlined’’ procedure for
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technical amendments. IGRA provides
the Secretary with a 45-day review
period, which also applies to technical
amendments.
Comments on § 293.4(a)
Several commenters questioned if the
Secretary’s authority under IGRA
extended to ‘non-compact’ agreements
between Tribes and States or local
governments. Commenters noted that
Tribes often find agreements with local
governments addressing a myriad of
topics—including payments in leu of
taxes, service agreements, and mutual
aid agreements—are mutually beneficial
and in the Tribe’s best interest.
Commenters further questioned the
Department’s inclusion of ‘‘[a]ny
agreement which includes provisions
for the payment from a Tribe’s gaming
revenue . . .’’ in § 293.27 as requiring
review and determination under
§ 293.4(c), if such agreements are a
‘‘compact’’ or ‘‘amendment.’’
The Department declines to accept the
comments. The Department notes some
States have included a requirement in
compacts for the Tribe to enter into
agreements with local governments
often addressing payments by the Tribe
for the loss of tax revenue. Some of
these agreements are designed to avoid
Secretarial review and impose
impermissible taxes or other
assessments on the Tribes. IGRA at 25
U.S.C. 2710(b)(2)(B) permits a Tribe to
utilize net gaming revenue to fund the
Tribe’s government, provide for general
welfare of the Tribe and its members,
promote Tribal economic development,
to donate to charitable organizations,
and help fund operations of local
governments. However, IGRA then at 25
U.S.C. 2710(d)(4) prohibits a State and
its political subdivisions from imposing
any ‘‘tax, fee, charge, or other
assessment’’ on the Tribe for engaging in
class III gaming. The proposed § 293.4(c)
process is designed to ensure these
agreements receive proper scrutiny and
are not the result of a State improperly
demanding—through its political
subdivisions—a tax, fee, charge, or other
assessment.
Several commenters requested the
Department narrow the scope of § 293.4.
The commenters explained that many
compacts anticipate the utilization of
ancillary agreements between the Tribe
and the State to interpret specific
compact terms for the purpose of
effective operation and regulation of the
day-to-day minutiae of operating class
III gaming. Commenters noted that the
consultation draft of § 293.4 could be
construed to capture internal controls,
memorandum of understanding between
Tribal and State regulatory and
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licensing bodies, and other documents
utilized by the parties to effectively and
efficiently ensure the Tribe’s class III
gaming operation is in compliance with
the compact and with IGRA.
The Department has revised § 293.4 to
clarify which documents the
Department considers within the
definition of ‘‘amendment’’ subject to
Secretarial review.
Other commenters noted some
compacts include mechanisms for the
Tribe and the State to add games
pursuant to changes in State or Federal
law without amending the Compact and
noted that the consultation draft of
§ 293.4 could be construed to capture
the Tribe and the State’s documentation
of games added pursuant to changes in
State or Federal law.
The Department has revised § 293.4 to
clarify which documents the
Department considers within the
definition of ‘‘amendment’’ subject to
Secretarial review.
Several commenters requested the
Department revise § 293.4(a) for
consistency with § 293.21 by exempting
Federal court decisions from Secretarial
review as an ‘amendment.’
The Department has revised § 293.4
for consistency with § 293.21 to clarify
which documents the Department
considers within the definition of
‘‘amendment’’ subject to Secretarial
review.
Several commenters raised concerns
that the Department’s inclusion of
‘‘dispute resolution, settlement
agreements, or arbitration decisions’’
within § 293.4’s list of documents
subject to Secretarial review may
discourage parties from utilizing
potentially cost-effective dispute
resolution methods and would increase
burdens on the parties. The commenters
argued the expansion of Secretarial
review to include dispute resolution,
settlement agreements, or arbitration
decisions may increase uncertainty.
Commenters also recommended the
Department defer to a Tribe’s
determination if a document warrants
Departmental review.
The Department has revised § 293.4
for consistency with § 293.21 to clarify
which documents the Department
considers within the definition of
‘‘amendment’’ subject to Secretarial
review.
Other commenters expressed support
for the Department’s inclusion of
‘‘dispute resolution, settlement
agreements, or arbitration decisions’’
within § 293.4’s list of documents
subject to Secretarial review and noted
examples of settlement agreements and
arbitration awards which materially
change the parties’ obligations under the
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compact in a manner that may conflict
with IGRA and would otherwise have
been considered an amendment subject
to Secretarial review. Commenters noted
an example where an arbitration panel
decision added a term to the compact
changing the Tribe’s revenue sharing
obligation beyond the compact
provisions reviewed by the Secretary.
Commenters noted the Tribe determined
the arbitration decision amended the
compact and sought Secretarial review
but was prevented by the State’s refusal
to certify the arbitration decision as an
amendment.
The Department acknowledges the
concerns raised by the commenters. The
Department notes the proposed changes
to part 293 are intended to address these
and similar situations. The Department
has revised § 293.4 in response to these
comments.
Several commenters requested the
Department revise § 293.4(a) by
removing the phrase ‘‘regardless of
whether they are substantive or
technical.’’
The Department declines the
requested revision and notes that phrase
is found in the 2008 Regulations at
§ 293.4(b). When promulgating the 2008
Regulations the Department had
proposed an exception for ‘‘technical
amendments’’ but in response to
comments on the 2008 Notice of
Proposed Rulemaking, removed that
provision. 73 FR 74005 (Dec. 5, 2008).
The Department explained many
commenters questioned how to
determine if an amendment was
‘substantive’ and subject to Secretarial
review, or ‘technical’ and not subject to
Secretarial review.
One commenter recommended the
Department clarify § 293.4(a) by moving
the words ‘‘agreements or other
documents’’ after the phrase ‘‘including
but not limited to’’ along with
conforming grammatical edits.
The Department incorporated the
suggested edit in the revised § 293.4(a)
and (c).
Comments on § 293.4(b)—Which Has
Been Renumbered as § 293.4(c)
The Department has renumbered the
proposed § 293.4(b) as § 293.4(c) and
comments have been edited to reflect
the new section number.
Several commenters expressed
support for the Department’s proposed
process in § 293.4(c) to provide parties
a determination if an agreement is a
‘‘compact’’ or ‘‘amendment’’ and must
be submitted for review and approval by
the Secretary. Commenters noted this
proposed process provides Tribes with
a similar service as the National Indian
Gaming Commission’s ‘‘declination
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letters,’’ which determine if an
agreement is a ‘‘Management Contract’’
requiring approval by the NIGC Chair.
The Department acknowledges the
comments.
Several commenters requested the
Department amend § 293.4(c) by
including a deadline for the Department
to review the submitted document and
to issue a determination letter.
The Department has added a 60-day
review period for a determination under
§ 293.4.
Other commenters requested the
Department clarify if a non-party may
submit a request for a § 293.4(c)
determination.
The Department notes the existing
2008 Regulations at § 293.6 address the
processes by which the parties to a
Compact may submit it for Secretarial
review. In relevant part, § 293.6 states
‘‘either party [ ] to the compact or
amendment can submit.’’ The
Consultation Draft of § 293.4(c) utilized
similar language and stated, ‘‘either
party may request in writing a
determination . . . if their agreement is
a compact or amendment.’’ The
Department has consistently and will
continue to exclude third parties from
the submission and review process.
Several commenters requested the
Department amend § 293.4(c) to clarify
if the Department’s determination letter
or materials submitted pursuant to this
review would be used by the
Department as the basis for an adverse
action against the Tribe. Commenters
also requested the Department include
in a § 293.4(c) determination letter a
discussion of any provisions in the
underlying document which may lead
to subsequent disapproval as a compact
under IGRA.
The Department intends for the
§ 293.4(c) determination process to
provide parties with improved clarity
whether their agreement or other
document is a compact or amendment,
without submitting the document for
Secretarial review and approval or
disapproval. The Department
historically has provided parties with
technical assistance as well as deemed
approval letters which identify
problematic provisions. The Department
anticipates a § 293.4(c) determination
letter may include similar guidance;
however, the Department declines to
revise § 293.4(c) to require such
guidance.
Several commenters requested the
Department clarify how and where a
party may submit a request and
encouraged the Department to allow
flexibility in submitting such requests.
The Department has revised § 293.9 to
clarify that compacts, amendments,
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written requests for a determination
pursuant to § 293.4(c), or requests for
technical assistance must be submitted
to the Office of Indian Gaming at the
address listed in § 293.9. The
Department further notes that § 293.9
has been revised to include the email
address ‘‘indiangaming@bia.gov’’.
Several commenters requested the
Department amend § 293.4(c) to require
the Department’s determination letter
clearly state in the introduction of the
letter either: ‘‘Yes. This agreement
constitutes a [compact/amendment]
requiring secretarial approval’’ or ‘‘No.
This agreement does not constitute a
[compact/amendment] . . . .’’
The Department declines to include
the requested requirement within the
regulatory text of § 293.4(c). The
Department is required to utilize plain
writing—in other words clear, concise,
and well-organized writing. The
Department implements this
requirement by providing a brief
summary of the document submitted
and the Department’s determination in
the introductory section of decision
letters.
Several commenters requested the
Department revise the concluding
sentence of § 293.4(c) to state: ‘‘[t]he
Department will issue a letter providing
notice of the Secretary’s determination.’’
Commenters suggested this would
reduce potential ambiguity.
The Department has accepted the
requested revision to the concluding
sentence of § 293.4(c).
Comments on § 293.5 Are extensions
to compacts or amendments subject to
review and approval?
Several commenters supported the
proposed revisions to § 293.5 and noted
the revisions reflected the Department’s
longstanding practice of treating
extensions as a type of amendment
which is exempted from Secretarial
approval prior to publication of a notice
in the Federal Register.
The Department acknowledges the
comments.
Several commenters requested the
Department clarify the distinctions
between an ‘‘amendment’’ and an
‘‘extension’’ as defined in § 293.2 and
applied in §§ 293.4 and 293.5.
Commenters noted an extension may
have the effect of changing the
‘‘operation and regulation’’ of a Tribe’s
Class III gaming activities.
The Department has revised
§ 293.2(c). The 2008 Regulations
adopted the provision exempting
extensions from Secretarial review in
response to a comment on the draft rule,
which had proposed to exempt
‘‘technical amendments’’ but not
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substantive amendments or extensions.
See 73 FR 37909 (July 2, 2008) and 73
FR 74005. Extensions are a form of
amendment, which changes only the
term of the compact, but not other
provisions in the compact.
One commenter suggested the
Department provide a mechanism for a
Tribe to unilaterally extend an existing
compact in the event the Tribe and the
State are unable to successfully
negotiate an amendment or new
compact. The commenter noted such a
mechanism would incentivize the State
to engage in timely good faith
negotiations and protect Tribes from
risking the expiration of an existing
compact due to a State’s negotiation
delays.
The Department appreciates the
concern raised by the commenter but
lacks the authority to provide a
mechanism for unilateral compact
extensions. We will include this type of
provision as a best practice in providing
technical assistance.
Several commenters questioned if the
parties to an approved compact with an
automatic renewal provision or
automatic extension provision are
subject to § 293.5, when the provisions
of the compact are satisfied thereby
extending the compact.
The Department notes compacts may
have provisions allowing for renewal or
extensions of the term of the compact if
certain provisions are met. The
Department does not consider the
renewal or extension of the term of the
compact under the very terms of the
compact as an extension as defined in
§ 293.2(e) and requiring publication of
notice in the Federal Register under
§ 293.5. The Department has revised the
definition of extension to clarify
extensions are new agreements between
the parties to extend the compact term
rather than the exercise of an existing
provision.
Several commenters requested the
Department amend § 293.5 to limit the
reference to documents required under
§ 293.8 to paragraph (b) and (c) as
required by the 2008 Regulations.
Commenters stated the requiring
compliance with all of § 293.8 would be
a burden on Tribes seeking an
extension.
The Department has revised the
reference in § 293.5 to 293.8 in response
to these comments. Section 293.5 now
requires the documents listed in
§ 293.8(a) through (c). The Department
notes the provision in § 293.8(a) reflects
the definition of extension in § 293.2(e).
Several commenters questioned the
necessity for the Department to publish
a notice of compact extension in the
Federal Register in order for the
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extension to be ‘‘in effect.’’ Commenters
questioned if the process for extensions
may result in undue delay because the
extension requires a Federal Register
document but is exempted from
Secretarial review and not subject to the
statutory 45-day review period.
The Department disagrees with the
comment. An extension is subject to the
45-day statutory review period.
Proposed revisions to § 293.5 in the
Consultation Draft included clarifying
that IGRA requires publication of a
notice of extension in the Federal
Register for the extension to be in effect.
The Department notes an extension is
an amendment to the duration of the
compact and under the proposed
regulations continues to receive
expedited processing.
Several commenters requested the
Department revise § 293.5 to require
publication of a notice of compact
extension within 14 days of the
submission of the extension.
The Department declines to revise
§ 293.5 to include a 14-day deadline for
publishing a notice of compact
extension in the Federal Register. The
Department notes an extension is a type
of amendment that receives expedited
processing. Further § 293.14 addresses
timing of publication of notices in the
Federal Register in compliance with
IGRA.
Several commenters requested the
Department revise § 293.5 to exempt
restated compacts in the same manner
as extensions.
The Department declines the
requested revision. A restated compact
is a new restatement of existing
provisions as amended in a compact,
and thus, a new compact subject to
review. An extension is an amendment
that changes only the duration of the
compact, and is not subject to review.
IGRA limits the Secretary’s authority to
review and approve or disapprove a
compact or amendment to 45 days. The
Department encourages parties to utilize
restated compacts or amended and
restated compacts as a best practice to
incorporate a series of amendments into
a single document. The Department
finds it helpful if the Tribe or State also
submits a redlined copy of the restated
compact.
Comments on § 293.6 Who can submit
a compact or amendment?
Several commenters sought
clarification on whether § 293.6, or
other provisions in part 293, exclude
third party submissions.
The Department has consistently and
will continue to exclude third parties
from the submission and review
process. The Department’s longstanding
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application of § 293.6 is to permit either
party to the compact or amendment to
submit the required documents for
Secretarial review and approval. The
Consultation draft of § 293.6 contained
minor stylistic edits for clarity and
consistency.
Several commenters expressed
support for the proposed revisions to
§ 293.6.
The Department acknowledges the
comments.
Comments on § 293.7 When should
the Tribe or State submit a compact or
amendment for review and approval?
Several commenters requested the
Department revise § 293.7 to more
accurately reflect the legal status of the
document pending secretarial review,
and in some instances, how an
amendment may be created through
compact dispute resolution procedures.
One commenter requested the
Department replace the phrase ‘‘legally
entered into by the parties’’ with the
phrase ‘‘duly executed by the Tribe and
State in accordance with applicable
Tribal and State law.’’ Another
commenter suggested adding the phrase
‘‘or the amendment has been issued by
an arbitration panel’’ to the end of
§ 293.7.
The Department notes the
Consultation Draft of § 293.7 remained
unchanged from the 2008 Regulations.
The phrase ‘‘legally entered into’’
reflects the requirements of the statutory
text in IGRA at 25 U.S.C. 2710(d)(8)(A),
and is consistent with the requirements
in § 293.8, in compliance with both
Tribal law and State law. The
Department has revised § 293.7 by
adding the phrase ‘‘or is otherwise
binding on the parties’’ to more
accurately reflect how an amendment or
other ancillary agreement may be
created, as described in § 293.4.
One comment suggested the phrase
‘‘legally entered into by the parties’’ in
§ 293.7 contradicts § 293.14 because the
compact does not take effect until it is
published in the Federal Register.
The Department has revised § 293.7 to
state ‘‘duly executed by the Tribe and
the State in accordance with applicable
Tribal land State law, or is otherwise
binding on the parties.’’ IGRA requires
the compact or amendment to first be
entered into by the parties; second,
submitted for review by the Secretary;
and third, have notice published in the
Federal Register prior to the compact or
amendment being ‘‘in effect.’’ 25 U.S.C.
2710(d)(3)(B).
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Comments on § 293.8 What documents
must be submitted with a compact or
amendment?
Several commenters noted the
documents required for submission
under § 293.8 may contain confidential
business information of the Tribe and
requested the Department maintain
confidentiality of sensitive business
information and protect it from release
under the Freedom of Information Act.
The Department routinely receives
confidential Tribal business information
in response to requests for additional
information under § 293.8(d) of the 2008
Regulations. This information is
protected from public disclosure under
exemption 4 of the Freedom of
Information Act. Additionally, prior to
releasing any requested tribally
submitted information, the Department
consults with the submitting Tribe to
confirm such information is confidential
business information and can properly
be withheld. The Department
recommends that as a best practice,
Tribes should notify the Department
when confidential information is
submitted, so that it can be properly
withheld if requested under the
Freedom of Information Act.
Several commenters noted the
documents required by § 293.8, if not
submitted, are grounds of disapproval of
a compact under § 293.16(b).
Commenters requested clarity on how
the Department will determine if the
requirements of § 293.8 have been met
and if the Department will provide
parties opportunities to submit missing
documents or cure deficiencies in the
submitted documents.
The Department notes that § 293.16(b)
clarifies that the Department must
inform the parties in writing of any
missing documents required by § 293.8.
Several commenters requested the
Department revise § 293.8 to include an
express waiver the Secretary may
invoke if or when either party shows a
need for additional flexibility in
submitting a compact or amendment.
Commenters noted parties to a compact
who resort to arbitration or similar
dispute resolution may be reluctant to
provide the required certification of an
arbitration panel decision under
§ 293.8(b) and (c) in an effort to avoid
Secretarial review or enforcement of an
unfavorable decision.
The Department declines to include a
blanket waiver under § 293.8, but notes
the Secretary may consider issuing a
discretionary waiver in certain
circumstances after consideration of the
submitted documents. Certain
documents, such as arbitration
decisions, are self-certifying. Section
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293.16 addresses the Secretary’s
discretionary authority to disapprove a
compact or amendment.
Some commenters also noted that a
Tribe may choose to adopt a compact or
amendment, including an arbitration
award, under protest and requested the
Department revise § 293.8(b) to allow for
a Tribe to adopt a compact or
amendment under protest.
The Department declines to include
the requested revision. Section 293.8(b)
requires a Tribal resolution or other
document that certifies that the Tribe
has approved the compact or
amendment in accordance with
applicable Tribal law. The Department
notes that a Tribal resolution or cover
letter may articulate that the Tribe’s
‘approval’ is under protest or identify
provisions in the compact or
amendment that the Tribe disagrees
with or is concerned violate IGRA.
One commenter questioned the
Department’s proposed change of
pronoun in § 293.8(c) from ‘‘he or she’’
to ‘‘they.’’
The Department made certain stylistic
edits including using a gender-neutral
pronoun in § 293.8(c), which is the only
section that uses a pronoun.
Several commenters expressed
support for the proposed revisions to
§ 293.8. Commenters noted that the
proposed § 293.8(d) reflects proposed
changes to §§ 293.4, 293.21, and 293.27,
which address certain types of ancillary
documents which are sometimes
referenced or required by a compact or
amendment.
The Department acknowledges the
comments.
Several commenters expressed
concern with § 293.8(d) and questioned
if the documents required by § 293.8
were subject to secretarial review and
approval. Commenters noted that the
Consultation Draft of § 293.4 expanded
the Department’s definition of compacts
or amendments subject to Secretarial
review and appeared to conflict with
§ 293.8(d). Commenters further noted
§§ 293.4 and 293.8(d) could capture
Tribal Gaming ordinances and/or
minimum internal control standards
which may not be drafted at the time of
compact submission. Commenters noted
a broad reading of § 293.8(d) posed an
undue burden on Tribes and
impermissibly intruded into Tribal selfgovernance and self-determination.
The Department has revised § 293.8(d)
to clarify this provision does not apply
to Tribal Gaming Ordinances subject to
review and approval by the Nation
Indian Gaming Commission pursuant to
25 U.S.C. 2710 and 25 CFR part 522.
Further, the Department has revised
§ 293.4 to clarify which documents are
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compact or amendments subject to
Secretarial review. The documents
identified in § 293.8(d) allow the
Department to understand how the
compact or amendment interacts with
other documents and agreements, which
in some instances are treated as grounds
for material breach of the compact. The
Department notes in some instances
compacts have utilized ancillary
documents to improperly impose State
law or State law equivalent onto Tribal
governments and a Tribe’s Indian lands.
Several commenters requested the
Department revise § 293.8(d) by
including the phrase ‘‘provided
however that nothing herein shall
prohibit the amendment, modification,
or other changes to Tribal ordinance or
laws and any such change, amendment,
or modification is not required to be
submitted for review and approval
unless otherwise expressly required by
Federal law.’’
Several commenters requested the
Department amend proposed § 293.8(d)
to state that any agreement between a
Tribe and a State, its agencies or its
political subdivisions required by a
compact or amendment if the agreement
requires the Tribe to make payments to
the State, its agencies, or its political
subdivisions, or it restricts or regulates
a Tribe’s use and enjoyment of its
Indian Lands. Commenters argued this
language is more narrowly tailored and
addresses the concerns raised in
§ 293.28 of the Consultation Draft.
Commenters requested the Department
defer to a Tribe’s decision to provide
voluntary payments to local
governments as permitted by IGRA at 25
U.S.C. 2710(b)(2)(B)(v).
One commenter suggested
comprehensive revisions to Section
293.8, including renumbering the
subsections and adding two new
sections. The commenter proposed
adding references to amendments
arising out of dispute resolution
processes including arbitration. The
commenter proposed adding a new
section addressing the Secretary’s
authority to waive the requirements of
§ 293.8. The commenter also proposed
adding a section requiring the Secretary
to provide notice to the parties within
14 business days if the Secretary
determines documents required by
§ 293.8 are missing and permit the
parties to either submit the documents
or request a waiver of § 293.8.
The Department declines to include
the requested new provisions in § 293.8.
The Department notes that the requested
provision addressing the Secretary’s
authority to offer a wavier under 25 CFR
1.2 is not required for the Secretary to
issue a waiver of specific requirements.
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The Department also notes that the
requested provision addressing a notice
to the parties providing an opportunity
to cure deficiencies reflects the
Department’s longstanding practice.
Additionally, the remaining language in
that provision addresses the Secretary’s
authority to disapprove a compact or
amendment and is addressed in
§ 293.16.
Several commenters expressed
concerns with § 293.8(e), arguing the
section is vague and ambiguous,
potentially permitting the Department to
request documents unrelated to the
Secretary’s review of the submitted
compact.
The Department notes § 293.8(e) in
the Consultation Draft retains the text of
§ 293.8(d) in the 2008 Regulations. This
provision allows the Department to
request additional information—when
needed—to determine if a submitted
compact complies with IGRA.
Comments on § 293.9 Where should a
compact or amendment be submitted for
review and approval?
A number of commenters responded
to the Department’s seventh
consultation question ‘‘[s]hould the
draft revisions include provisions that
offer or require the submission of
electronic records?’’ Commenters
encouraged the Department to include
provisions allowing electronic
submission but cautioned against
requiring electronic submission.
Commenters noted electronic
submission is less expensive and is
faster than traditional methods of
submission. Commenters also noted
parties should be provided reasonable
flexibility when submitting compacts or
amendments for Secretarial Review.
Several commenters questioned the
need for the inclusion of electronic
submission in the proposed regulations,
noting in their experience the technical
requirements of submission are not a
significant consideration between
parties negotiating a compact.
The Department acknowledges the
comments and has included the Office
of Indian Gaming’s email address in
§ 293.9. The Department notes the
Consultation Draft included proposed
revisions to the 2008 Regulations which
were stylistic or technical in nature
including electronic submission.
Several commenters requested the
Department revise § 293.9 by removing
the requirement for hard copy
submission of the ‘‘original copy’’ when
a party chooses to utilize email
submission. Commenters noted that the
Department could request an original
hard copy if needed under § 293.8(e).
Commenters also noted many Tribal and
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State governments as well as the gaming
industry are utilizing electronically
signed and verified documents.
The Department will reevaluate the
requirements in § 293.8(a) for an
‘‘original compact or amendment
executed by both the Tribe and the
State’’ and § 293.9 ‘‘as long as the
original copy is submitted to the address
listed above’’ as the Department updates
the record keeping requirements. The
Office of Indian Gaming is the formal
record keeper and archivist of TribalState gaming compacts for the
Department. The Office is bound by
Departmental record keeping
requirements, including electronic
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Comments on § 293.10 How long will
the Secretary take to review a compact
or amendment?
Several commenters expressed
support for the proposed revisions to
§ 293.10.
The Department acknowledges the
comments.
Comments on § 293.11 When will the
45-day timeline begin?
Several commenters recommended
the Department amend § 293.11 to allow
for electronic submissions to trigger the
45-day review period upon submission
by removing the requirement for the
Office of Indian Gaming to stamp the
document received. Commenters argued
that the inclusion of a date stamp for
electronically submitted documents is
no longer necessary to confirm when the
document was received. Commenters
also noted the requirement for the Office
of Indian Gaming to date stamp a
document received could result in
administrative delays.
The Department declines to remove
the requirement for the Office of Indian
Gaming to stamp the document received
in order for the 45-day review period to
begin for electronically submitted
documents. The Department notes the
Consultation Draft of § 293.11 reflects
the removal of the cross reference to
§ 293.9 and the address of the Office of
Indian Gaming. The consultation draft
of § 293.9 was amended to include a
dedicated email address for the Office of
Indian Gaming to facilitate email
submission of documents. The
application of a date stamp for
submitted documents irrespective of the
submission method allows for
consistent timely processing of all
documents.
Several commenters requested the
Department amend § 293.11 to include a
requirement that the Office of Indian
Gaming provide submitters with an
email acknowledgement of receipt with
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confirmation of the 45-day review
period.
The Department has revised § 293.11
to include an emailed acknowledgement
of receipt to the parties when the parties
have provided their email addresses.
Several commenters noted an
apparent conflict between §§ 293.11 and
293.9 and requested clarification if the
45-day review period begins with the
receipt of the electronic copy or upon
receipt of the mailed original copy.
The Consultation Draft reflected
revisions in §§ 293.9 and 293.11 to
allow for electronic or hard copy
submission. The Department has revised
§ 293.9 to clarify the Department will
accept either email or hard copy
submission but requires a hard copy
submission in addition to the emailed
copy. The 45-day review period starts
when the Office of Indian Gaming date
stamps a hard copy original or an
electronic copy of the document.
Comments on § 293.12 What happens
if the Secretary does not act on the
compact or amendment within the 45day review period?
Several commenters noted that it was
unclear what the legal effect is for a
compact or amendment ‘‘approved by
operation of law’’ or ‘‘deemed
approved’’ when a guidance letter is
issued after the 45-day review period.
The Department acknowledges the
comments. A guidance letter issued
after the 45th day review period does
not alter the effective date of the
compact or amendment. The effective
date of a compact or amendment is the
date the document is published in the
Federal Register, as explained in
§ 293.14. A compact or amendment
approved by operation of law is
considered to have been approved by
the Secretary, but only to the extent the
compact or amendment is consistent
with the provisions of IGRA. A guidance
letter explains the provisions the
Department believes to be inconsistent
with IGRA.
Many commenters noted that the
added language effectively codifies the
Secretary’s current practice.
The Department acknowledges the
comments.
One commenter indicated that the
provision conflicts with the Secretarial
requirements under § 293.10.
The Department disagrees with the
comment. The proposed regulations at
§ 293.12 explain what happens if the
Secretary does not act on the compact
or amendment within the 45-day review
period.
Several commenters stated that it was
unclear if there would be a process to
appeal a guidance letter issued after the
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45-day review period, with one
commenter suggesting that the Secretary
should consider including an appeal or
review process.
The Department acknowledges the
comments but declines to amend the
provision to include an appeal or review
process.
One commenter stated that it was
unclear from the provision if the
Secretary’s issuance of a guidance letter
under this provision would impact the
publication of a ‘‘deemed approved’’
compact in the Federal Register.
The Secretary’s issuance of a guidance
letter under this provision does not
impact the publication of a ‘‘deemed
approved’’ compact in the Federal
Register. A guidance letter issued after
the 45-day review period does not alter
the effective date of the compact or
amendment. The effective date of a
compact or amendment is the date the
notice is published in the Federal
Register, as explained in § 293.14.
Several commenters expressed
concern that the Secretary could
‘‘unapprove’’ a compact or amendment
through issuance of a guidance letter.
These commenters requested that the
Department specifically address the
effect of a guidance letter on a compact’s
approval and which provisions are not
deemed approved. One commenter
expressed concern that if the Secretary
takes no action or issues a guidance
letter, a court may interpret the
Secretary’s guidance letter or inaction to
mean that the compact violates IGRA
and is void, potentially leaving a Tribe
without the authority to continue to
offer gaming under the compact. One
commenter based its concern on the
relationship between §§ 293.12 and
293.15.
The Department acknowledges the
comments. Under IGRA, the Department
has 45 days to complete its review and
either approve or disapprove a class III
gaming compact. If the Department
takes no action within that 45-day
period, the Tribal-State gaming compact
is considered approved by operation of
law—to the extent that it is consistent
with IGRA. A guidance letter issued
after the 45th day of the review period
does not alter the effective date of the
compact or amendment. The effective
date of a compact or amendment is the
date the notice is published in the
Federal Register, as explained in
§ 293.14. A compact or amendment
approved by operation of law is
considered to have been approved by
the Secretary, but only to the extent the
compact or amendment is consistent
with the provisions of IGRA. A guidance
letter explains the provisions the
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Department believes to be inconsistent
with IGRA.
One commenter disagreed with the
inclusion of § 293.12 and stated that the
Secretary should not issue guidance
letters after the 45-day review period
because the Secretary should only act
within the 45-day review period and not
beyond.
The Department disagrees with the
comment. A compact is not ‘‘considered
to have been approved’’ by operation of
law also known as ‘‘deemed approved’’
until after the 45-day review period. The
Department cannot issue a guidance
letter until after the 45th day.
One commenter stated that the
Secretary has an obligation to ensure
that compacts between Tribes and States
are rejected if they violate the
provisions of IGRA and stated that
§ 293.12 appears to permit the Secretary
to allow compacts that violate IGRA to
be ‘‘deemed approved’’ without alerting
the relevant State, Tribe, or the public
that provisions of the ‘‘approved’’
compact violate IGRA. The commenter
recommended that § 293.12 be amended
to state that ‘‘[t]he Secretary, after the
45th day, is required to issue a guidance
letter to the parties identifying any
provisions that are inconsistent with
IGRA and thus not approved by
operation of law.’’ Another commenter
suggested the Department add language
stating ‘‘Accordingly, the signatory
Tribe or State may subsequently
challenge the non-compliant compact
provisions as unenforceable or severable
from the compact.’’
The Department accepts the
comments in part and will make the
appropriate changes to § 293.12,
indicating the Secretary will issue a
letter confirming the 45-day review
period has lapsed and therefore the
compact or amendment has been
approved by operation of law. The
Secretary’s letter may identify
provisions of the ‘‘deemed approved’’
compact that violate IGRA. The
Department takes no position on
whether a Tribe or a State may
subsequently challenge the noncompliant compact provisions as
unenforceable or severable from the
compact.
One commenter recommended that
the language in this section stating that
‘‘[t]he Secretary is not required to issue
a letter, and if the Secretary does issue
a letter, any such letter may offer
guidance to the parties on the
Department’s interpretation of IGRA,’’
be stricken.
The Department agrees with the
changes and will strike the language
from § 293.12. The Secretary will issue
a letter confirming the 45-day review
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period has lapsed and therefore the
compact or amendment has been
approved by operation of law.
Many commenters requested that the
Department state how it will determine
whether to issue a guidance letter and
articulate a standard to promote the
uniform issuance of guidance letters.
These commenters expressed concern
that if the Secretary is not required to
issue a guidance letter, the lack of a
guidance letter may place some Tribes
on unequal footing. These commenters
request that § 293.12 be revised to
articulate a standard that will ensure the
uniform issuance of guidance letters.
The Department accepts the
comments in part and will make the
appropriate changes to § 293.12,
indicating the Secretary will issue a
letter confirming the 45-day review
period has lapsed and therefore the
compact or amendment has been
approved by operation of law. The
Secretary’s letter may include guidance
identifying provisions of the ‘‘deemed
approved’’ compact that violate IGRA.
One commenter recommended that
the Department clarify whether revised
§ 293.12 is intended to be a change in
Department policy or a drafting error.
The Department acknowledges the
comment. Section 293.12 will reflect a
change in policy to issue a letter in each
instance when a compact is deemed
approved and clarify that letter may
include guidance identifying provisions
of the ‘‘deemed approved’’ compact that
violate IGRA.
Several commenters requested the
inclusion of a deadline by which the
Secretary will issue a guidance letter.
One commenter requested that § 293.12
be revised to provide that guidance
letters be issued within 60 days of the
date a compact is approved by operation
of law in order to provide Tribes with
certainty with respect to renegotiating
terms of a compact and avoid lost time
negotiating provisions the Department
finds are in conflict with IGRA.
The Department accepts the
comments in part. Section 293.12 will
reflect that the Secretary will issue a
letter after the 45th day but within 90
days from the date of submission. This
timeline is consistent with the
requirement to publish notice in the
Federal Register in § 293.14.
Several commenters expressed
concerns that the Secretary has no
explicit statutory authority to issue a
guidance letter. One commenter
expressed concerns that a guidance
letter, which is not required to be issued
under IGRA, could be used as a
litigation roadmap, potentially to
oppose the project, and may pin the
Secretary to a litigation position. The
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commenter suggested further discussion
and requested that the Secretary
consider a process that would provide
confidentiality to the Tribe and State by,
for example, communicating to the
attorneys for the respective Tribe and
State the Secretary’s concerns if any
provisions were inconsistent with IGRA
to discuss perceived inconsistencies.
The Department acknowledges the
comment. The Secretary has authority to
promulgate these regulations based on
the statutory delegation of powers
contained in IGRA and 25 U.S.C. 2, and
9 to review compacts and amendments.
A guidance letter issued after the 45th
day review period does not alter the
effective date of the compact or
amendment. A compact or amendment
approved by operation of law is
considered to have been approved by
the Secretary, but only to the extent the
compact or amendment is consistent
with the provisions of IGRA. A guidance
letter explains the provisions the
Department believes to be inconsistent
with IGRA. The Department currently
offers technical assistance to Tribes and
States; however the Department does
not provide pre-approvals or legal
opinions.
One commenter noted that ‘‘deemed
approval’’ letters have had the effect of
allowing States like California to
attempt to use the letter as a way of
forcing impermissible provisions into
compacts.
The Department accepts the
comments in part and will make the
appropriate changes to § 293.12,
indicating the Secretary will issue a
letter informing the parties that the
compact or amendment has been
approved by operation of law, the letter
may identify provisions of the ‘‘deemed
approved’’ compact that violate IGRA.
One commenter recommended that
the revised regulations be modified to
expressly state the principles
underlying the policy of issuing
‘‘deemed approved’’ letters and the
limits of that policy.
The Department accepts the
comments in part and will make the
appropriate changes to § 293.12,
indicating the Secretary will issue a
letter informing the parties that the
compact or amendment has been
approved by operation of law. The letter
may identify provisions of the ‘‘deemed
approved’’ compact that violate IGRA.
The Department declines to expressly
state when the letter will include
guidance or limits to that policy.
One commenter noted that States are
often dismissive of ‘‘deemed approved’’
letters and requested that the
Department revise the language to state
that ‘‘[a]ccordingly, the signatory Tribe
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or State may subsequently challenge the
non-compliant compact provisions as
unenforceable or severable from the
compact,’’ stating that this additional
language would eliminate State’s false
perception that an approval by
operation of law is de facto approval of
a State’s ‘‘illicit agenda in compact
negotiations.’’
The Department acknowledges the
comment. Under IGRA, the Department
has 45 days to complete its review and
either approve or disapprove a class III
gaming compact. If the Department
takes no action within that 45-day
period, the Tribal-State gaming compact
is considered approved by operation of
law—to the extent that it is consistent
with IGRA. The Department takes no
position on whether a Tribe or a State
may subsequently challenge the noncompliant compact provisions as
unenforceable or severable from the
compact.
Several commenters recommended
that § 293.12 be amended to allow
Tribal governments to request guidance
letters and legal opinions from the
Secretary or the Office of Solicitor for
compacts.
The Department acknowledges the
comment. The Department currently
offers technical assistance to Tribes and
States; however the Department does
not provide pre-approvals or legal
opinions.
One commenter stated that the
issuance of a guidance letter explaining
why a submitted compact was not
affirmatively approved but ‘‘deemed
approved’’ by operation of law was a
solid improvement, noting that such
letters provide an excellent source to
inform and improve the negotiation
process.
The Department acknowledges the
comment.
Comments on § 293.13 Who can
withdraw a compact or amendment after
it has been received by the Secretary?
Several commenters requested the
Department revise § 293.13 by adding
the word ‘‘both’’ so that the relevant
provision reads ‘‘Tribe and State must
both submit.’’
The Department accepts the requested
revision. The Department notes the
parties may submit a joint request for
withdrawal of the compact or
amendment, or submit individual
requests for withdrawal.
One commenter recommended the
Department accept electronically
submitted requests for withdrawal.
The Department accepts the requested
revision and has revised § 293.9 to
clarify all submissions and requests
under part 293 must be submitted to the
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Office of Indian Gaming, either at the
physical address or the email address.
One commenter requested the
Department revise § 293.9 to permit a
Tribe to unilaterally withdraw a
compact or amendment after
submission.
The Department declines the
requested change and notes this
requirement remains unchanged from
the 2008 Regulations, which requires
both parties to request withdrawal. The
compact process under IGRA is a
formalized contract between sovereigns
which is submitted to the Department
for review and approval only after it is
legally entered into or is otherwise
binding on the parties.
Comments on § 293.14 When does a
compact or amendment take effect?
Several commenters requested clarity
of the effect of an approval by operation
of law on a compact and subsequent
publication of a notice in the Federal
Register.
The Department acknowledges the
comments. The Department notes IGRA
provides a 45-day review period after
which a compact is approved by
operation of law but only to the extent
the compact is consistent with IGRA. 25
U.S.C. 2710(d)(8)(C). A notice must also
be published in the Federal Register for
the compact to be in effect. 25 U.S.C.
2710(d)(8)(D).
One commenter requested the
Department amend § 293.14 by changing
the timeline for publication of a notice
in the Federal Register from 90 days to
55 days from the date the compact or
amendment is received to, or within 10
days of approval/disapproval,
whichever is shorter.
The Department declines the
requested change in the Federal
Register notice timeline, which remains
unchanged from the 2008 Regulations
and is considered reasonable. The
Department notes IGRA does not require
publication of a notice in the Federal
Register if the compact or amendment is
disapproved.
Comment on § 293.15 Is the Secretary
required to disapprove a compact or
amendment that violates IGRA?
Several commenters agreed with the
Department’s proposed language in
§ 293.15, explaining that the Secretary
has the discretionary authority to
disapprove a compact that violates
IGRA, but is not required to do so.
However, many of the commenters that
agreed with the Department’s proposed
language did express concern over the
possibility that the language could
encourage future administrations to
avoid disapproving compacts where
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appropriate. Other commenters noted
the importance of Deemed Approval
determinations to empower Tribes to
reject the non-compliant provisions of a
deemed approved compact through
litigation or other means.
The Department acknowledges the
comments. The Department retains its
proposed language in § 293.15. The
Department is concerned a mandate that
the Secretary affirmatively disapprove
compacts that violate IGRA would
narrow the discretion IGRA provides to
the Secretary to either disapprove or
approve a compact within a 45-day
review period. Furthermore, this type of
mandate could create unintended
consequences if the Department fails to
act within the prescribed 45-day review
period on a compact that violates IGRA.
The current language, which tracks the
language of IGRA, provides that if the
Secretary fails to act within the 45-day
review period, the compact is deemed
approved but only to the extent it is
consistent with IGRA.
Several commenters expressed
concern with the Department’s
proposed language in § 293.15 and
argued that a compact which violates
IGRA must be affirmatively
disapproved. Another commenter went
as far as stating that allowing compacts
to go into effect that should be
disapproved is a violation of IGRA.
The Department acknowledges the
comments. The Department retains its
proposed language in § 293.15. The
Department is concerned a mandate that
the Secretary affirmatively disapprove
compacts that violate IGRA would
narrow the discretion IGRA provides the
Secretary to either approve or
disapprove a compact within the
prescribed 45-day review period.
Furthermore, this type of mandate could
create unintended consequences if the
Department fails to act within the
prescribed 45-day review period on a
compact that violates IGRA. The current
language, which tracks the language of
IGRA, provides that if the Secretary fails
to act within the 45-day time period, the
compact is deemed approved but only
to the extent it is consistent with IGRA.
Finally, a few commenters agreed that
the Secretary has discretionary authority
over whether to disapprove a compact
but should be required to issue a
guidance letter or legal opinion
identifying provisions not approved
under IGRA. Commenters recommended
the Secretary defer to a Tribe’s sovereign
decision-making and permit compacts
to go into effect rather than disapprove.
The Department acknowledges the
comments. The Department retains its
proposed language in § 293.15. The
Department is concerned a mandate that
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the Secretary affirmatively disapprove
compacts that violate IGRA would
narrow the discretion IGRA provides the
Secretary to either approve or
disapprove a compact within the
prescribed 45-day review period.
Furthermore, this type of mandate could
create unintended consequences if the
Department fails to act within the
prescribed 45-day time period on a
compact that violates IGRA. The current
language, which tracks the language of
IGRA, provides that if the Secretary fails
to act within the 45-day time period, the
compact is deemed approved but only
to the extent it is consistent with IGRA.
The Department has revised § 293.12 to
provide the Secretary will issue a letter
informing the parties that the compact
or amendment has been approved by
operation of law and the letter may
include guidance.
Comments on § 293.16 When may the
Secretary disapprove a compact or
amendment?
Several commenters requested the
Department clarify § 293.16(a)(3) and
suggested the provision is overly broad.
The Department acknowledges the
comments, but notes this provision is
consistent with Congress’s grant of
discretionary disapproval authority to
the Secretary. 25 U.S.C.
2710(d)(8)(B)(iii).
Several commenters recommended
the Department revise § 293.16(a)(3) to
include an opportunity for an
appropriate designee of the Secretary to
serve as a mediator to facilitate fair
compact negotiations between a Tribe
and a State and to ensure that Federal
law is complied with by the parties.
The Department acknowledges the
comments. The Department routinely
provides technical assistance to Tribes
and States including guidance on
Departmental precedents and past
procedures, the Departments
interpretation and application of case
law, as well as best practices.
One commenter requested the
Department include a new section titled
‘‘[m]ay a compact or amendment
include provisions that violate the trust
obligations of the United States to
Indians?’’ The proposed text for this
section would explain that a compact
may not include provisions that violate
the trust obligations of the United States
and cited to provisions limiting thirdparty Tribe’s rights to conduct gaming
as an example of a provision violating
the trust obligation.
The Department declines the
requested new section and notes
§ 293.24(c)(1) addresses compact
provisions which act to limit a thirdparty Tribe’s rights to conduct gaming.
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Several commenters expressed
support for the proposed § 293.16(b) and
noted it helps enforce the requirements
in other sections of part 293.
The Department acknowledges the
comments.
Several commenters objected to the
proposed § 293.16(b) which provides
the Secretary may disapprove a compact
if the documents required in § 293.8 are
not submitted. Commenters questioned
the Secretary’s authority to disapprove a
compact based on the parties’ failure to
submit specific documents. Several
commenters expressed concerns that the
document required by § 293.8(d) may be
overly broad and burdensome. Other
commenters recommended the
Department revise § 293.16 to require
written notice of deficiencies and an
opportunity to cure before disapproving
a compact under § 293.16(b).
The Department accepts the
comments and notes § 293.16(b)
provides the Secretary with grounds to
disapprove a compact if the documents
required by § 293.8 are not submitted.
The Department has revised § 293.16(b)
to require written notice of deficiencies,
which is consistent with the
Department’s longstanding practice of
informing parties of deficiencies and
permitting parties to cure the
deficiencies. IGRA provides the
Secretary with discretionary authority to
disapprove a compact if it violates one
of the three specified criteria. 25 U.S.C.
2710(d)(8)(B). Section 293.16(b) allows a
presumption that a compact violates one
of the three specified criteria if the
parties fail to cure deficiencies in the
record.
Several commenters requested the
Department revise § 293.16(b) to provide
if the parties fail to submit the required
documents in § 293.8, the Secretary will
return the compact as incomplete. The
commenters recommended the
Department clarify that the parties may
resubmit the compact or amendment
after it has been returned based on the
failure to submit the required
documents, but must submit all of the
required supporting documents.
The Department declines to accept the
requested provisions. IGRA provides the
Secretary with 45-days to review and
approve or disapprove a compact. The
Secretary does not have the authority to
return a compact as incomplete which
could frustrate Congress’s clear intent to
prevent unnecessary delay by providing
a 45-day review period.
One commenter recommended the
Department revise § 293.16 by including
a provision permitting the Secretary
while reviewing an amendment to a
compact to disapprove provisions in the
underlying compact or amendment
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which was approved by operation of
law if that provision violates one of
IGRA’s three specified criteria.
The Department declines to include
the proposed provision. IGRA limits the
Secretary’s authority to review and
approve or disapprove a compact or
amendment to 45 days. As a result, the
Department cannot retroactively
approve or disapprove a compact or
amendment after the 45-day review
period has run. Instead, the
Department’s review is limited to the
text of the document under review
during the 45-day review period. The
Department treats restated and
resubmitted compacts as a new compact
because the parties have submitted
entire text of the compact for review.
The Department encourages parties to
utilize restated compacts or amended
and restated compacts as a best practice
to incorporate a series of amendments
into a single document. The Department
finds it helpful if the Tribe or State also
submits a redlined copy of the restated
compact.
Comments on § 293.17 May a compact
or amendment include provisions
addressing the application of the Tribe’s
or the State’s criminal and civil laws
and regulations?
Several commenters expressed
support for the proposed § 293.17.
The Department acknowledges the
comments.
Several commenters recommended
the Department revise § 293.17 to clarify
how the parties can comply with the
requirement to ‘‘show that these laws
and regulations are both directly related
to and necessary for, the licensing and
regulation of the gaming activity.’’
Commenters noted this provision adds a
vague new requirement that could cause
confusion.
The Department accepts this comment
in part. The Department has revised
§ 293.17, to clarify the Secretary may
ask for a showing that the provisions
addressing the application of criminal
and civil laws and regulations are both
directly related to and necessary for, the
licensing and regulation of the gaming
activity.
Several commenters addressed
§ 293.17 in responding to the
Department’s third consultation
question ‘‘[s]hould the draft revisions
include provisions that facilitate or
prohibit the enforcement of State court
orders related to employee wage
garnishment or patron winnings?’’
Commenters suggested the parties may
address the effect of such State (or
Tribal) court orders as a jurisdictional
matter under § 293.17.
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The Department declines to address
the enforcement of State court orders
related to employee wage garnishment
or patron winnings in § 293.17. The
Department has added enforcement of
State court orders to the list of
provisions in a compact which are not
directly related to the operational
gaming activities in § 293.24(c). The
Department notes this is consistent with
the 9th Circuit decision in Chicken
Ranch Ranchera of Me-Wuk Indians v.
California, 42 F.4th 1024 (9th Cir. 2022).
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Comments on § 293.18 May a compact
or amendment include provisions
addressing the allocation of criminal
and civil jurisdiction between the State
and the Tribe?
A number of commenters responded
to the Department’s fourth consultation
question: ‘‘[s]hould the draft revisions
include provisions that facilitate or
prohibit State court jurisdiction over the
gaming facility or gaming operations?
Should this apply to all claims or only
certain types of claims?’’
Many commenters discouraged the
Department from including provisions
which could be perceived as permitting
or facilitating State court jurisdiction
because States have a history of
leveraging limited grants of jurisdiction
to undermine Tribal sovereignty.
Commenters noted while IGRA includes
allocation of jurisdiction it also is
intended to promote strong Tribal
governments which includes strong
Tribal courts. Other commenters noted
Tribal courts should be the default
jurisdiction, however court jurisdiction
could be left to negotiations between a
Tribe and State, at the request of a Tribe
when the Tribal court does not have the
capability to take full jurisdiction over
the relevant claims. Commenters also
discussed case law supporting the
presumption that Tribal court is the
proper venue for third party claims—
including patron disputes, labor
disputes, and tort claims against the
Tribe arising out of the Tribe’s gaming
facility.
The Department acknowledges the
comments. The Department proposed
§ 293.18 to clarify the Department reads
IGRA’s provision permitting Tribes and
States to allocate criminal and civil
jurisdiction narrowly and limited by
§ 293.17. The Department has addressed
third party tort claims in proposed
§ 293.24(c).
Several commenters supported the
proposed § 293.18, as drafted, and noted
it appears consistent with IGRA and
case law. Commenters also noted the
proposed provision could help preserve
Tribal court systems.
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The Department acknowledges the
comments.
Several commenters questioned the
need for the proposed § 293.18.
The Department acknowledges the
comments. The Department notes IGRA
provides a compact may include
provisions relating to the allocation of
criminal and civil jurisdiction between
the State and the Tribe necessary for the
enforcement of such laws and
regulations. 25 U.S.C. 2710(d)(3)(C)(ii).
Several commenters requested the
Department include a bad faith standard
for jurisdiction when a State seeks to
compel State jurisdiction of the Tribe or
Indian country.
The Department acknowledges the
comments. The Department has added
provisions in § 293.24(c) to address
these concerns, which § 294.24(d) now
states are ‘‘considered evidence of a
violation of IGRA.’’
Several commenters requested the
Department amend proposed § 293.18 to
expressly require the Tribe to request
the State take jurisdiction over claims
involving the gaming facility or gaming
operations in order for such an
allocation of jurisdiction to be proper.
The Department did not adopt the
comment. A compact or amendment
may include provisions allocating
criminal and civil jurisdiction between
the State and the Tribe necessary for the
enforcement of the laws and regulations
described in § 293.17.
Several commenters requested the
Department revise § 293.18 to prohibit
State court jurisdiction over Tribal
gaming operations or facilities.
The Department did not adopt the
comment. A compact or amendment
may include provisions allocating
criminal and civil jurisdiction between
the State and the Tribe necessary for the
enforcement of the laws and regulations
described in § 293.17.
Comments on § 293.19 May a compact
or amendment include provisions
addressing the State’s costs for
regulating gaming activities?
A number of commenters expressed
support for the proposed § 293.19.
Commenters noted States have used
IGRA’s regulatory cost provision as an
indirect tax often funding both
regulatory and non-regulatory functions.
Commenters opined the bad faith
standard would assist negotiating
parties in limiting regulatory cost
provisions and Tribal oversite over the
State’s use of those funds. Commenters
also noted the Department will likely
receive severe pushback from States on
this provision and encouraged the
Department to ‘‘stay the course.’’
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The Department acknowledges the
comments. Section 293.19 addresses
Tribal payments for the State’s costs of
regulating gaming activities. As
explained above the Department has
replaced the phrase ‘‘evidence of bad
faith’’ with ‘‘evidence of a violation of
IGRA.’’
Several commenters expressed
concern with the inclusion of a bad faith
standard in proposed § 293.19.
Commenters questioned the Secretary’s
authority to determine bad faith and
questioned how the Department would
enforce such a provision over the life of
the compact.
IGRA provides the Secretary with the
authority to review and approve or
disapprove a compact within a 45-day
review period. The Department
evaluates the terms of the compact
including auditing standards for
assessments of regulatory costs as part
of this review. The Department has
revised § 293.19 to clarify the
Secretary’s review is limited to the
terms of the compact. Enforcement of
those terms lies with the parties and is
governed by the compact’s dispute
resolution provisions, if any. As
explained above, the Department has
replaced the phrase ‘‘evidence of bad
faith’’ with ‘‘evidence of a violation of
IGRA.’’
Several commenters requested the
Department provide definitions for
‘‘actual and reasonable’’ and provide
boundaries on the types of costs for
which the State may reasonably seek
reimbursement. Other commenters
requested the Department allow
flexibility for States to aggregate costs
with limits on what costs can be
aggregated.
The Department declines to provide
specific boundaries on the types of
gaming regulatory costs for which the
State may seek reimbursement. The
Department reads IGRA’s provision
permitting the State to assess regulatory
costs narrowly and inherently limited to
the negotiated allocation of regulatory
jurisdiction. Providing specific
definitions would diminish parties’
flexibility in negotiating a reasonable
allocation of regulatory jurisdiction that
best meets the needs of the parties.
Further, the Department has revised
§ 293.19 to give parties the flexibility in
negotiating the terms of a compact to
determine how the State will show
aggregate costs are actual and
reasonable.
Several commenters requested the
Department require the State to provide
annual audits, prove actual and
reasonable expenses, and periodically
negotiate regulatory costs. One
commenter requested the Department
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add the phrase ‘‘and reasonable’’ to the
last sentence in § 293.19. Another
commenter requested the Department
add the phrase ‘‘or refuses to provide
such records’’ to the last sentence in
§ 293.19.
The Department has accepted these
suggested edits in part and has revised
§ 293.19, to reflect these comments.
Several commenters requested the
Department clarify how the department
distinguishes between assessed
regulatory costs and a prohibited tax,
fee, charge, or other assessment.
The Department acknowledges the
comments. Section 293.25 includes a
discussion of the Department’s
interpretation of IGRA’s prohibition
against the imposition of a tax, fee,
charge, or other assessment. IGRA
provides a compact may include
provisions relating to ‘‘the assessment
by the State of [the Tribe’s class III
gaming activity] in such amounts as are
necessary to defray the costs of
regulating [the Tribe’s class III gaming
activity].’’ 25 U.S.C. 2710(d)(3)(C)(iii).
IGRA in section 2710(d)(4) then
prohibits the State from imposing a tax,
fee, charge, or other assessment except
for any assessments that may be agreed
to under paragraph (3)(C)(iii). The
Department reads IGRA’s provision
permitting the State to assess regulatory
costs narrowly and inherently limited to
the negotiated allocation of regulatory
jurisdiction. Section 293.25 includes a
discussion of the Department’s
interpretation of IGRA’s prohibition
against the imposition of a tax, fee,
charge, or other assessment.
Comments on § 293.20 May a compact
or amendment include provisions
addressing the Tribe’s taxation of
gaming?
Several commenters expressed
support for the proposed § 293.20, and
noted clear guidelines are beneficial to
all parties by reducing the risk that
improper provisions will be included.
Commenters expressed support for the
inclusion of a bad faith standard in the
proposed § 293.20. Several commenters
requested the Department add the word
‘‘presumptive’’ so the relevant sentence
would read ‘‘[t]he inclusion of
provisions addressing the Tribe’s
taxation of other activities is considered
presumptive evidence of bad faith.’’
The Department acknowledges the
comments but declines to add the word
‘‘presumptive.’’ As explained above the
Department has replaced the phrase
‘‘evidence of bad faith’’ with ‘‘evidence
of a violation of IGRA.’’
Several commenters expressed
opposition for the proposed § 293.20.
Commenters raised concerns that the
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proposed text appears to allow States to
tax gaming revenue. Other commenters
noted this may cause States to demand
specific forms of Tribal taxation of
Tribal gaming and argues the provision
is unnecessary.
The Department acknowledges the
comment, but notes IGRA provides a
compact may address Tribal taxation of
Tribal gaming in amounts comparable to
State taxation of State gaming. 25 U.S.C.
2710(d)(3)(C)(iv). The Department has
revised § 293.20 to clarify this
provision.
Comments on § 293.21 May a compact
or amendment include provisions
addressing remedies for breach of the
compact?
Several commenters expressed
support for the proposed § 293.21 and
the inclusion of a bad faith standard.
Several commenters discussed their
experiences with States seeking to
enforce dispute resolution agreements
or decisions that violated IGRA.
The Department acknowledges the
comments. As explained above, the
Department has replaced the phrase
‘‘evidence of bad faith’’ with ‘‘evidence
of a violation of IGRA.’’
Several commenters questioned the
Secretary’s authority to review dispute
resolution agreements, arbitration
awards, settlement agreements, or other
resolutions of a dispute outside of
Federal court.
The Department acknowledges the
comments. The Secretary has authority
to promulgate these regulations based
on the statutory delegation of powers
contained in IGRA and 25 U.S.C. 2, and
9 to review compacts and amendments.
The Department is aware of arbitration
awards, settlement agreements, and
other similar dispute resolution
agreements which have amended the
terms of a compact. IGRA requires the
Secretary to review compacts and
publish notice in the Federal Register
before a compact is in effect and the
Department has made conforming edits
to § 293.4.
Several commenters expressed
concern with the proposed § 293.21.
Commenters stated the documents
sought under the provision was overly
broad. Other commenters suggested the
proposed § 293.21 would encourage
parties to seek dispute resolution in
Federal court and discourage parties
from seeking more cost effective and
faster resolution of disputes because of
the risk the Secretary may reject the
agreement. Commenters noted
settlement agreements are often
confidential. One commenter requested
clarification why the Department is
interested in reviewing dispute
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resolution agreements and arbitration
awards. Another commenter cautioned
the Department’s review of these
provisions may prevent Tribes from
exercising self-determination and
sovereignty in compact negotiations.
The Department acknowledges the
comments. The Department seeks to
ensure all compacts, amendments, and
dispute resolution agreements or awards
are consistent with IGRA and are
properly in effect. The Department has
made conforming edits to §§ 293.2,
293.4, 293.7, and 293.21 to address
concerns raised regarding secretarial
review of compact amendments arising
out of dispute resolution. The
Department encourages parties to
resolve compact disputes in a timely,
cost-effective manner, which is
consistent with IGRA.
Several commenters requested the
Department revise the proposed
§ 293.21 by amending the title and
adding text to § 293.21. The proposed
title would read: ‘‘[m]ay a compact or
amendment include provisions
addressing the resolution of disputes for
breach of the compact?’’
The Department has accepted the
proposed revisions in part. As explained
above, the Department has replaced the
phrase ‘‘evidence of bad faith’’ with
‘‘evidence of a violation of IGRA.’’
Several commenters requested the
Department clarify if compacts should
include dispute resolution options other
than termination of a compact, which
only harms the Tribe.
The Department acknowledges the
comments. The Department notes that
compacts are carefully negotiated longterm agreements between sovereigns.
IGRA provides compacts may include
‘‘remedies for breach of contract.’’ The
Department notes well drafted compacts
include options for the parties to
continue operating under the compact,
while seeking to resolve any disputes
arising from the compact. If the compact
includes payments to the State for
regulatory costs as described in
proposed § 293.19, or revenue sharing as
described in § 293.25, the Department
recommends including provisions
which permit the Tribe to divert
disputed funds into an escrow account.
One commenter requested the
Department include a grandfather clause
for established settlement agreements to
protect the settled expectations of
parties to existing agreements. The
commenter explained a party may seek
to relitigate a settled dispute by arguing
the agreement is not valid.
The Department declines to include a
grandfather clause for settlement
agreements which have not been
submitted for Secretarial review and
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publication of a notice in the Federal
Register. The Department has included
revisions to the proposed § 293.21 as
well as § 293.4 to clarify and limit the
scope of this review. The Department
encourages parties to seek § 293.4
review if the parties are concerned their
settlement agreement is an
‘amendment.’
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Comments on § 293.22 May a compact
or amendment include provisions
addressing standards for the operation
of gaming activity and maintenance of
the gaming facility?
A number of commenters expressed
support for the proposed § 293.22 and
requested the Department strengthen the
provision by defining what qualifies as
‘‘maintenance’’ in greater detail.
Commenters explained some States seek
expansive regulatory standards that are
not related to the maintenance of a
facility. Other commenters noted State’s
may seek to require a Tribe to adopt
State law equivalent ordinances and
requested the Department add the
following sentence to § 293.22, ‘‘[i] f a
compact or amendment mandates that
the Tribe adopt standards equivalent or
comparable to the standards set forth in
a State law or regulation, the parties
must show that these mandated Tribal
standards are both directly related to
and necessary for, the licensing and
regulation of the gaming activity.’’
The Department acknowledges the
comments and has revised § 293.22 by
including the requested sentence.
Comments on § 293.23—Which Has
Been Renumbered as 293.24—What
factors will be used to determine
whether provisions in a compact or
amendment are directly related to the
operation of gaming activities?
The Department has renumbered the
proposed § 293.23 as § 293.24 comments
have been edited to reflect the new
section number.
Several commenters expressed
support for the proposed § 293.24.
Commenters explained the provision
would improve compact negotiations by
providing parties with clear guidance on
which topics are consistent with IGRA
and which topics are outside of IGRA’s
narrow scope of compact terms under
25 U.S.C. 2710(d)(3)(C). Commenters
noted the proposed § 293.24 is
consistent with the Departments long
standing requirement of a direct
connection and repudiation of some
States’ application of a ‘‘but for’’ test.
The Department acknowledges the
comments.
One commenter expressed concern
that the Department was inadvertently
creating additional tests including a
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‘‘incidental benefit’’ test in § 293.24.(b)
and a ‘‘not directly related’’ test in
§ 293.24(b) and (c) as well as an
‘‘unrelated to’’ test in § 293.24(c)(4).
The Department acknowledges the
comments. The Department has revised
§ 293.24(b) and (c)(4) for consistency
and notes the phrase ‘‘not directly
related’’ as used in § 293.24 as the
inverse of the phrase ‘‘directly related.’’
One commenter recommended the
Department include a section
immediately preceding proposed
§ 293.24 mirroring the question-andanswer format of the proceeding
sections in Subpart D. The section
would be titled ‘‘[m]ay a compact or
amendment include provisions that are
not directly related to the operation of
gaming activities?’’ With a firm
declaration that provisions which are
not directly related to the operation of
gaming activities is a violation of IGRA.
The Department has incorporated the
recommended section with
modifications for consistency with the
proceeding section in Subpart D. The
new section is numbered § 293.23 and
the following sections have been
renumbered.
Several commenters recommended
the Department revise § 293.24 by
inserting the word ‘‘activity’’ or
‘‘activities’’ after the phrase ‘‘class III
gaming’’ for consistency with other
sections in part 293.
The Department has added the word
‘‘activity’’ or ‘‘activities’’ as appropriate
in § 293.24.
Several commenters requested the
Department provide a table of authority
for provisions considered ‘‘directly
related to the operation of gaming
activities’’ under § 293.24(a) as well as
provisions considered ‘‘not directly
related to the operation of gaming
activities’’ under § 293.24(c).
Commenters recommended the
Department revise or remove provisions
which were not supported by past
decisions issued by the Department
and/or case law.
The Department has prepared a table
of authorities addressing these and other
provisions.
Several commenters recommended
the Department provide standards and/
or a procedure within the regulatory text
outlining how the parties are expected
to comply with the requirement in
§ 293.24(a) to ‘‘show that [provisions
included in the compact or amendment]
are directly connected to the Tribe’s
conduct of class III gaming.’’
Commenters also recommended the
Department include in the part 293
regulations deference to a reasonable
Tribal determination that a provision is
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directly connected to the Tribe’s
conduct of class III gaming.
The Department declines to provide a
specific procedure for complying with
§ 293.24 in order to provide the parties
with the necessary flexibility to address
the specific terms of their agreement.
Some parties chose to provide a
justification brief explaining key or
novel provisions to the Department as
part of their compact or amendment
submission. When necessary, the
Department’s practice is to request
additional information from the parties
regarding specific provisions in the
compact or amendment. Additionally,
the Department frequently provides
technical assistance to parties
negotiating a compact or amendment by
flagging provisions which may violate
IGRA or may require additional
justification. A best practice for
compacts requiring State legislative
approval is to seek technical assistance
before the compact is formally adopted
by legislative action.
A number of commenters responded
to the Department’s third consultation
question ‘‘[s]hould the draft revisions
include provisions that facilitate or
prohibit the enforcement of State court
orders related to employee wage
garnishment or patron winnings?’’
Commenters encouraged the
Department to include provisions which
prohibit Tribal enforcement of State
court orders related to employee wage
garnishment and/or patron winnings in
compacts. The commenters explained
that these provisions are not directly
related to operation of gaming activities
under 25 U.S.C. 2710(d)(3)(C)(vii).
Further some commenters explained
they have prevailed in litigation arguing
that State court wage garnishment
orders are not binding on the Tribe or
the Tribe’s employees. Commenters
noted that while comity agreements
between sovereigns may be mutually
beneficial, compact negotiations should
not be used to force Tribes to enforce
these provisions. Commenters also
explained without a Tribal law
mechanism for domesticating a State
court order, enforcing such an order
erodes Tribal sovereignty and exposes
the Tribe and the Tribal gaming
operation to unwarranted liability.
The Department has added
enforcement of State court orders to the
list of provisions which are not directly
related to the operational gaming
activities in § 293.24(c). The Department
notes this is consistent with the 9th
Circuit decision in Chicken Ranch
Ranchera of Me-Wuk Indians v.
California, 42 F.4th 1024 (9th Cir. 2022).
Several commenters requested the
Department include in the § 293.24(c)
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list of provisions which are not directly
related to the operation of gaming
activities provisions which require the
Tribe to negotiate memorandum of
understanding or intergovernmental
agreements with local governments.
The Department has added requiring
memorandum of understanding or
intergovernmental agreements with
local governments to the list of
provisions which are not directly
related to the operational gaming
activities in § 293.24(c). The Department
notes this is consistent with the 9th
Circuit decision in Chicken Ranch
Ranchera of Me-Wuk Indians v.
California, 42 F. 4th 1024 (9th Cir.
2022).
Several commenters requested the
Department include in the § 293.24(c)
list of provisions, which are not directly
related to the operation of gaming
activities, provisions which require the
Tribe to submit to State court
jurisdiction over tort claims arising from
the Tribe’s conduct of class III gaming
activities.
The Department has added requiring
State court jurisdiction over tort claims
arising from the Tribe’s conduct of class
III gaming activities to the list of
provisions which are not directly
related to the operational gaming
activities in § 293.24(c). The Department
notes this is consistent with the District
of New Mexico’s decision in Pueblo of
Santa Ana v. Nash, 972 F. Supp. 2d
1254 (D.N.M 2013).
Several commenters requested the
Department include an additional
paragraph to § 293.24 codifying the
Department’s practice of providing
technical assistance letters to
negotiating parties regarding whether a
proposed compact provision is ‘directly
related’ to the Tribe’s operation of
gaming activities consistent with IGRA.
Commenters requested the Department
further include avenues for parties to
obtain assistance from the Department
in seeking guidance letters or legal
opinions from the National Indian
Gaming Commission and the United
States Department of Justice.
The Department declines to adopt a
formal codification of its practice
providing technical assistance to Tribes
and States. The Department will
continue to coordinate with the
Department of Justice and the National
Indian Gaming Commission regarding
enforcement of IGRA.
Comments on § 293.24(a)
Several commenters objected to the
Department’s inclusion of provisions in
§ 293.24(a) addressing patron conduct
within the gaming facility as ‘‘directly
related to the Tribe’s conduct of
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gaming.’’ Commenters argued the
examples provided—without further
clarification or supporting past
precedent and or case law—may cause
confusion and invite State overreach.
Other commenters noted the examples
provided of subjects regulating patron
conduct included subjects which
resulted in contentious negotiations
with their respective States, including
State attempts to ban alcohol and
smoking in Tribal facilities while
requiring State licensed facilities serve
alcohol. Other commenters
recommended the Department revise the
list of examples in § 293.24(a) to reflect
non-controversial subjects that are
‘‘directly related to the Tribe’s conduct
of gaming’’ including minimum age
restrictions and the transportation of
gaming devices and equipment.
The Department acknowledges the
comments. The Department has
provided a comprehensive table of
authorities supporting the examples
included in § 293.24(a). The Department
has also revised the list to reflect noncontroversial subjects the Department
has found to be ‘‘directly related to the
Tribe’s conduct of gaming.’’ We note the
inclusion of an item in the Department’s
‘‘directly related’’ list in § 293.24(a) does
not suggest a State may insist on any
requirement addressing a ‘‘directly
related’’ item.6
Several commenters recommended
stylistic edits to § 293.24(a) for
consistency with § 293.24(c).
The Department has revised § 293.24
for consistency.
One commenter noted the reference to
patron conduct in § 293.24(a) could
include illegal patron conduct including
trafficking in the gaming facility and
adjacent non-gaming amenities. The
commenter requested the Department’s
view on provisions which address
criminal jurisdiction.
The Department acknowledges the
comment. The phrase ‘‘patron conduct’’
has been removed from § 293.24(a).
Further, criminal jurisdiction is
addressed in § 293.17.
Comments on § 293.24(b)
Several commenters questioned the
Department’s inclusion of Tribal
infrastructure projects in § 293.24(b) and
noted provisions addressing those
projects may be beneficial to Tribes.
The Department acknowledges the
comments. The Department notes that
infrastructure projects may be beneficial
for Tribes. The Department included
Tribal infrastructure in § 293.24(b) to
6 See, e.g., Chicken Ranch Ranchera of Me-Wuk
Indians v. California, 42 F.4th 1024, 1063 (9th Cir.
2022).
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highlight that these projects should not
be ‘‘considered directly related to the
Tribe’s conduct of gaming’’ simply
because they may be funded using
gaming revenue or may provide a
benefit to the gaming facility.
Several commenters requested the
Department remove the word
‘‘incidental’’ from § 293.24(b).
Commenters noted the phrase
‘‘incidental benefits’’ may cause
confusion and result in unintended
State overreach.
The Department has removed the
word ‘‘incidental’’ from § 293.24(b).
Comments on § 293.24(c)
One commenter requested the
Department revise § 293.24(c) to state
‘‘Provisions which the Department may
consider not directly related to the
operation of gaming activities includes
. . .’’
The Department declines to adopt the
requested revision.
Several commenters raised concerns
with the Department’s interpretation in
§ 293.24(c)(1) that ‘‘[l]imiting third party
Tribes’ rights to conduct gaming’’ is not
directly related to operation of gaming
activities under 25 U.S.C.
2710(d)(3)(C)(vii). Several commenters
requested clarification and noted the
Department has approached compact
provisions impacting third party Tribes
differently and cited to the Department’s
discussion and approval of ‘‘section 9’’
in the 1993 Michigan compacts. Other
commenters noted that § 293.24(c)(1)
could include Tribal parity provisions
or ‘most favored nation’ provisions.
Other commenters recommended the
Department remove this provision
arguing it is ambiguous and potentially
limits geographic exclusivity provisions.
Other commenters applauded
§ 293.24(c)(1) and noted it appeared
consistent with the Departments long
standing objection to compact
provisions which sought to limit third
party Tribes’ rights under IGRA.
The Department acknowledges the
comments. The Department has
consistently distinguished compacts
with Statewide gaming market
regulatory scheme from compacts which
limit third party Tribes rights under
IGRA. In both Michigan and Arizona,
the States and the Tribes negotiated
mutually beneficial agreements
addressing the location and size of
Tribal gaming as part of a Statewide
scheme. These and similar compacts
included Tribe-to-Tribe revenue sharing
provisions to offset market disparities
between urban and rural Tribes. These
compacts are identical across the State
or contain identical relevant provisions.
The Department has consistently found
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these types of agreements consistent
with IGRA.7
These are contrasted by compacts
which act to prevent a Tribe, who is not
party to the compact or the broader
Statewide scheme, from exercising its
full rights to conduct gaming under
IGRA, most notably in the form of
geographic exclusivity from Tribal
competition. The Department has
consistently expressed concern with
these types of arrangements, and in
some cases disapproved compacts
containing such provisions.8 The
Department has not limited this
provision to ‘‘anti-compete’’ or
‘‘geographic exclusivity from Tribal
competition’’ to permit the Secretary
flexibility in evaluating other provisions
which may also improperly limit a
third-party Tribe’s rights under IGRA.
Commenters recommended the
Department include examples of ‘‘nongaming Tribal economic activities’’ to
clarify the Department’s standard
articulated in § 293.24(b).
The Department has included
examples of non-gaming Tribal
economic development in § 293.24(c)(8).
7 See, e.g., Letter from Ada Deer, Assistant
Secretary—Indian Affairs to Jeff Parker,
Chairperson, Bay Mills Indian Community dated
November 19, 1993, approving the 1993 Michigan
Compact; Letter from Bryan Newland, Principal
Deputy Assistant Secretary—Indian Affairs, to
Robert Miguel, Chairman Ak-Chin Indian
Community, dated May 21, 2021, at 2, discussing
the Tribe-to-Tribe revenue sharing and gaming
device leasing provisions.
8 See, e.g., Letter from Gale Norton, Secretary of
the Interior, to Cyrus Schindler, Nation President,
Seneca Nation of Indians dated November 12, 2002,
discussing the limits placed on Tonawanda Band
and the Tuscarora Nation in the Seneca Nation’s
exclusivity provisions, and describing such
provisions as ‘‘anathema to the basic notion of
fairness in competition and . . . inconsistent with
the goals of IGRA’’; Letter from Aurene Martin,
Assistant Secretary—Indian Affairs (acting), to
Harold ‘‘Gus’’ Frank, Chairman, Forest County
Potawatomi Community, dated April 25, 2003,
addressing the parties removal of section XXXI.B
which created a 50 mile ‘no fly zone’ around the
Tribe’s Menominee Valley facility and explained
‘‘we find a provision excluding other Indian gaming
anathema to basic notions of fairness in competition
and inconsistent with the goals of IGRA’’; Letter
from Aurene Martin, Assistant Secretary—Indian
Affairs (acting), to Troy Swallow, President, HoChunk Nation, dated August 15, 2003, addressing
section XXVII(b), limiting the Governor’s ability to
concur in a two-part Secretarial Determination
under section 20(b)(1)(A) of IGRA for another Tribe
as ‘‘repugnant to the spirit of IGRA’’; Letter from
Kevin Washburn, Assistant Secretary—Indian
Affairs, to Harold Frank, Chairman, Forest County
Potawatomi Community dated January 9, 2013,
disapproving an amendment which would have
made the Menominee Tribe guarantee Potawatomi’s
Menominee Valley facility profits as a condition of
the Governor’s concurrence for Menominee’s
Kenosha two-part Secretarial Determination,
affirmed by Forest Cty. Potawatomi Cmty. v. United
States, 330 F. Supp. 3d 269 (D.D.C. 2018). See also
Letter from Bryan Newland, Assistant Secretary—
Indian Affairs to Claudia Gonzales, Chairwoman,
Picayune Rancheria of Chukchansi Indian of
California, dated November 5, 2021, at 13.
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Comments on § 293.24—Which Has
Been Renumbered as § 293.25—What
factors will the Secretary analyze to
determine if revenue sharing is lawful?
The Department has renumbered the
proposed § 293.24 as § 293.25 and
comments have been edited to reflect
the new section number.
A number of commenters responded
to the Department’s fifth consultation
question: ‘‘[s]hould the draft revisions
include provisions that identify types of
meaningful concessions that a Tribe
may request from State, other than
protection from State-licensed
commercial gaming (i.e., exclusivity),
for which a Tribe could make revenuesharing payments? How would such
provisions affect compact negotiations?’’
Many commenters expressed support
for including an illustrative list of
potential concessions similar to the lists
in § 293.24. Commenters noted such a
list would aid negotiating parties in
identifying types of concessions a State
may offer in exchange for revenue
sharing. Commenters suggested
examples could include: geographic
exclusivity, Statewide mobile sports
wagering, and a Governor’s concurrence
in a Secretarial Two-Part Determination
under section 2719(b)(1)(A). Other
commenters opposed including an
illustrative list of potential concessions
similar to the lists in § 293.24. Those
commenters noted States may
improperly use such a list to demand
revenue sharing while offering a
concession of limited value to the Tribe.
Commenters recommended the
Department follow a case-by-case
evaluation which provides negotiating
parties flexibility.
The Department acknowledges the
comments and notes these comments
highlight the sensitive nature of revenue
sharing in compacts. The Department
declines to include a list of meaningful
concessions as both the concession and
the revenue sharing rate must be
evaluated on a case-by-case basis. The
Department has approved revenue
sharing in exchange for meaningful
concessions including geographic
exclusivity from State-licensed gaming
and Statewide mobile or i-gaming
exclusivity.9 The Department cautions
parties not to negotiate for a future
9 See, e.g., Letter from Bryan Newland, Assistant
Secretary—Indian Affairs to the Honorable R. James
Gessner, Jr., Chairman, Mohegan Tribe of Indians
dated September 10, 2021, approving the Tribe’s
compact amendment with the State of Connecticut;
and Letter from Bryan Newland, Assistant
Secretary—Indian Affairs to the Honorable Rodney
Butler, Chairman, Mashantucket Pequot Indian
Tribe dated September 10, 2021, approving the
Tribe’s amendment to its Secretarial Procedures, as
amended in agreement with the State of
Connecticut.
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meaningful concession which may
require intervening Federal or State
actions as that concession may be
considered illusory.
A number of commenters expressed
support for the proposed § 293.25.
Commenters noted the proposed
§ 293.25 appeared to codify existing
case law as well as the Department’s
articulation of the test for determining if
revenue sharing is appropriately
bargained for exchange or an improper
tax. Commenters noted that some States
seek to require—or heavily
incentivize—intergovernmental
agreements with political subdivisions
of the State, such as a local government,
requiring payments by the Tribe as a
disguised tax. Commenters noted this
will assist parties in compact
negotiations by clearly articulating the
Department’s test for evaluating revenue
sharing. Several commenters
recommended the Department review
revenue sharing provisions in compacts
on a case-by-case basis with deference
to a Tribe’s sophisticated negotiations
and cautioning against a paternalistic
review.
The Department acknowledges the
comments and notes the proposed
§ 293.25 codifies the Department’s
longstanding test for evaluating revenue
sharing. The Department included
payments to local governments in
§§ 293.4, 293.8, 293.25, and 293.28, in
an effort to address mandated
intergovernmental agreements which
may disguise improper taxes.
Several commenters requested the
Department define ‘‘meaningful
concession’’ and ‘‘substantial economic
benefit.’’ Commenters proposed the
Department define meaningful
concession as: (1) something of value to
the Tribe; (2) related to gaming; (3)
which carries out the purposes for
which the IGRA was enacted, and (4)
which is not a proper subject of
negotiation that the State already has an
obligation to negotiate with the Tribe
under IGRA.
The Department accepted this
comment. A new definition for
‘‘meaningful concession’’ is adopted in
§ 293.2, which reads as follows: a
‘‘meaningful concession’’ is: (1)
something of value to the Tribe; (2)
directly related to gaming; (3) something
that carries out the purposes of IGRA,
and (4) not a subject over which a State
is otherwise obligated to negotiate under
the IGRA.
A new definition for ‘‘substantial
economic benefits’’ is adopted in
§ 293.2, which reads as follows:
‘‘substantial economic benefits’’ is: ‘‘(1)
a beneficial impact to the Tribe, (2)
resulting from a meaningful concession,
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(3) made with a Tribe’s economic
circumstances in mind, (4) spans the life
of the compact, and (5) demonstrated by
an economic/market analysis or other
similar documentation submitted by a
Tribe or a State.’’
Several commenters requested the
Department include a requirement
within §§ 293.8 and 293.25 for the
compacting Tribe to submit a market
analysis to demonstrate that any
revenue sharing arrangements will
provide actual benefits to the Tribe
which justify the payment amount.
The Department acknowledges the
comments. The Department has added
the requested requirement to §§ 293.8
and 293.25. Section 293.8(e) is amended
to require a Tribe or a State to submit
a market analysis along with their
compact when the compact contains
revenue sharing provisions.
Additionally, § 293.25(b)(2) is amended
to include ‘‘the value of the specific
meaningful concessions offered by the
State provides substantial economic
benefits to the Tribe in a manner
justifying the revenue sharing required
by the compact.’’
Several commenters requested the
Department include IGRA’s primary
beneficiary test to the Department’s
revenue sharing analysis.
The Department acknowledges the
comments. The Department has added
the requested requirement to § 293.25 as
a new § 293.25(b)(3), which now
requires evidence showing that the
Tribe is the primary beneficiary of its
conduct of gaming, if the parties adopt
revenue sharing.
A number of commenters described
their varying experiences under
differing revenue sharing arrangements.
Some noted revenue sharing has become
a necessary negotiation tactic to bring a
reluctant State to the negotiation table
after the Supreme Court’s decision in
Seminole. Some commenters discussed
revenue sharing with local governments
through intergovernmental agreements.
Others noted that some particularly high
revenue sharing rates based on gross
revenue have resulted in the State
receiving more revenue than the Tribe’s
portion of the net revenue. Commenters
also discussed situations when States
have either actively sought to
undermine the Tribe’s exclusivity—
while not technically violating the
compact—or refusing to enforce State
law to protect the Tribe’s exclusivity.
The Department acknowledges these
comments. The Department has long
expressed concern with relatively high
revenue sharing arrangements, often
permitting compacts containing them to
go into effect and occasionally
disapproving them. The Department’s
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understanding of revenue sharing
provisions, as well as exclusivity
provisions, has evolved consistent with
case law and experiences of Tribes
operating under differing revenue
sharing provisions for more than 30
years. The Department has long offered,
and will continue to offer, technical
assistance—highlighting the
Department’s precedents as well as
observed best practices—to parties
negotiating revenue sharing provisions.
A number of commenters questioned
the Secretary’s authority to review
revenue sharing with ‘‘great scrutiny’’ or
include a bad faith standard to
evaluations of revenue sharing
provisions. One commenter opined
revenue sharing payments are an
improper workaround for IGRA’s
prohibition on the assessment of a tax,
fee, charge, or other assessment. Other
commenters expressed concern with the
proposed § 293.25 and cautioned the
proposed provisions may cause
unintended consequences including
limiting a Tribe’s options to contribute
reasonable revenue share to a State to
protect exclusivity or redistribute funds
to non-gaming Tribes. One commenter
opined the Department’s past
precedents on revenue sharing and
exclusivity is suspect, citing the
Department’s decisions in New Mexico
and New York and questioning the
value of the exclusivity over the lives of
those compacts.
The Department acknowledges the
comments. The proposed regulations
codify the Department’s longstanding
test for determining when revenue
sharing in a compact is a prohibited
‘‘tax, fee, charge, or other assessment’’
because it goes beyond what is
permitted by guidance in relevant court
decisions. The Department notes that its
evaluation of revenue sharing has
evolved to incorporate changes in case
law including Rincon v.
Schwarzenegger, 602 F.3d 1019 (9th Cir.
2010). The Department finds persuasive,
but not binding, the language in Rincon
where the Ninth Circuit explained that
IGRA requires courts to consider a
State’s demand for taxation as evidence
of bad faith, not conclusive proof (citing
In re Indian Gaming Related Cases
(Coyote Valley II), 331 F.3d 1094, 1112–
13 (9th Cir. 2003), which in turn cited
section 2710(d)(7)(B)(iii)(II)). The
Department’s great scrutiny standard is
consistent with IGRA’s prohibition on a
State demanding a tax, fee, charge, or
other assessment under section
2710(d)(4) and IGRA’s instruction to the
courts in section 2710(d)(7)(B)(iii)(II).
The Department notes the Secretary
expressed concerns with the exclusivity
provisions in both the 2015 New Mexico
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deemed approval letters and the 2002
Seneca Nation deemed approval letter
but deferred to the judgment of the
Tribes.10 As explained above, the
Department has replaced the phrase
‘‘evidence of bad faith’’ with ‘‘evidence
of a violation of IGRA.’’
Several commenters suggest the
Department expand the bad faith
standard in § 293.24(c). Some
commenters requested the Department
include a State’s continued insistence
that the Tribe accept the proposed
‘‘meaningful concession’’ in exchange
for revenue sharing as evidence of bad
faith. Commenters opined that the
provision is consistent with the Ninth
Circuit’s analysis of the issue in Rincon
Band v. Schwarzenegger, 602 F.3d 1019
(9th Cir. 2010). Other commenters
requested the Department include a
State’s request for revenue sharing, or
insistence on a specified rate paid by
other Tribes, either in the State or in a
neighboring State, or past rates that are
no longer supported by the current
market, as presumptive evidence of bad
faith. Other commenters requested the
Department include a State’s disparate
treatment of similarly situated Tribes in
the State as presumptive evidence of
bad faith.
The Department declines to include
additional examples as bad faith or
adopt a ‘‘presumptive bad faith’’
standard. As explained above, the
Department has replaced the phrase
‘‘evidence of bad faith’’ with ‘‘evidence
of a violation of IGRA.’’ The compact
negotiation process in IGRA envisions a
negotiation between two sovereigns,
although the Department notes in some
instances Tribes have successfully
engaged in collective negotiations with
the State. If a State makes an offer which
the Tribe rejects, the Tribe may make a
counteroffer. The IGRA provides that if
a State does not negotiate, or does not
negotiate in good faith, the remedial
provisions of the statute permit a Tribe
to bring an action in Federal district
court. The Department will continue to
coordinate with the Department of
Justice and the National Indian Gaming
Commission regarding enforcement of
IGRA.
Some commenters requested the
Department revise § 293.25 to require
the Tribe to initiate revenue sharing
negotiations and to tie the revenue
sharing provision’s specific payments to
specific concessions. The proposed
revised text would read: ‘‘(1) the Tribe
10 See Letter from Gale Norton, Secretary of the
Interior, to Cyrus Schindler, Nation President,
Seneca Nation of Indians dated November 12, 2002;
see also Letter from Kevin Washburn, Assistant
Secretary—Indian Affairs, to Ty Vicenti, President,
Jicarilla Apache Nation, dated June 9, 2015.
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requested and the State has offered
specific meaningful concessions the
State was otherwise not required to
negotiate; and (2) the value of the
specific meaningful concessions offered
by the State provides substantial
economic benefits to the Tribe in a
manner justifying the revenue sharing
required by the compact.’’
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The Department accepts the requested
revision as § 293.25(b)(1) and (2).
One commenter requested the Department
include a provision in § 293.25 permitting
the Tribe, during the life of the compact, to
request technical assistance or a legal
opinion if the meaningful concession
continues to provide substantial economic
benefits to the Tribe justifying continued
revenue sharing payments and, if not, to
what extent the revenue sharing payments
should be adjusted to remain in compliance
with IGRA.
The Department declines to adopt the
requested provision in § 293.25. The
Department will continue to offer
technical assistance to Tribes and
States, including identification of best
practices. The Department notes best
practices include careful drafting of
both the terms of the Tribe’s
exclusivity—or other meaningful
concession—along with remedies for
breach and triggers for periodic
renegotiation of specific provisions.
Several commenters requested the
Department clarify that a State’s
obligation under IGRA to negotiate a
compact is not a ‘‘meaningful
concession’’ for the purposes of revenue
sharing.
The Department acknowledges the
comments. Congress required Tribes
and States to negotiate class III gaming
compacts in good faith, provided a
remedy if States refused to negotiate in
good faith, limited the scope of
bargaining for class III gaming compacts,
and prohibited States from using the
process to impose any tax, fee, charge or
other assessment on Tribal gaming
operations. 25 U.S.C. 2710(d).
Several commenters noted the
proposed § 293.25, while helpful for
most Tribes and States, is without a
Seminole fix effectively a dead letter.
The Department has addressed
comments requesting a Seminole fix
above under general comments. There
the Department notes it has long
coordinated with the Department of
Justice and the National Indian Gaming
Commission regarding enforcement of
IGRA.
Several commenters requested the
Department clarify that the result of a
‘‘bad faith’’ determination under
§ 293.25 would result in automatic
disapproval of the compact or
amendment.
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The Department declines to establish
an automatic disapproval standard. As
explained above, the Department has
replaced the phrase ‘‘evidence of bad
faith’’ with ‘‘evidence of a violation of
IGRA.’’ The Secretary’s discretion to
disapprove or take no action is
discussed under §§ 293.12, 293.15, and
293.16.
One commenter noted that the
proposed regulation at § 293.25, when
read in conjunction with § 293.24, is
ambiguous and needs to be clarified.
The two proposed regulations, taken
together, seem to imply that the
‘‘meaningful concession exception’’ is
limited to a State’s demand for a fee.
The Department acknowledges the
comments. The Department notes
§ 293.24 addresses provisions which are
considered ‘‘directly related to gaming’’
while § 293.25 addresses revenue
sharing. The Department also notes the
recent decision by the Ninth Circuit in
Chicken Ranch overturned the district
court’s application of the meaningful
concession test to provisions which
were tangentially related to gaming. The
Department finds the Ninth Circuit’s
reasoning persuasive, but not binding,
that meaningful concessions cannot
make an out-of-scope topic proper
under IGRA. Chicken Ranch Ranchera
of Me-Wuk Indians v. California, 42
F.4th 1024 (9th Cir. 2022)
Comments on § 293.25—Which Has
Been Renumbered as § 293.26—May a
compact or extension include
provisions that limit the duration of the
compact?
The Department has renumbered the
proposed § 293.25 as § 293.26 comments
have been edited to reflect the new
section number.
Several commenters expressed
support for the proposed § 293.26 and
explained compacts should be very long
term or perpetual. Commenters noted
the negotiation process can be lengthy
and require a significant investment of
resources.
The Department acknowledges the
comments.
Several commenters expressed
support for the inclusion of a bad faith
standard in the proposed § 293.26.
Several commenters requested the
Department add the word
‘‘presumptive’’ so the relevant sentence
would read ‘‘[a] refusal to negotiate a
long-term compact, or a short-term
extension to allow for negotiations to
continue, is considered presumptive
evidence of bad faith.’’
The Department acknowledges the
comments but declines the requested
revision. As explained above the
Department has replaced the phrase
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‘‘evidence of bad faith’’ with ‘‘evidence
of a violation of IGRA.’’
One commenter requested the
Department define ‘‘long-term’’ as at
least 15-years, and ‘‘short-term’’ as at
least one year.
The Department declines the
proposed definition of ‘‘at least 15years’’ for long term but has accepted
the proposed definition of ‘‘at least 1
year’’ for short term.
Several commenters requested the
Department clarify that the existence of
a compact with a Tribe does not negate
a State’s obligation to negotiate a new
compact or an amended compact for the
period after the current compact
expires.
The Department acknowledges the
comments. The Department notes IGRA
at 25 U.S.C. 2710(d)(3)(A) obligates a
State to negotiate with a Tribe in good
faith at the request of the Tribe. The
existence of a compact does not absolve
the State of its duty under IGRA.
Comments on § 293.26—Which Has
Been Renumbered as 293.27—May a
compact or amendment permit a Tribe
to engage in any form of class III gaming
activity?
The Department has renumbered the
proposed § 293.26 as 293.27 comments
have been edited to reflect the new
section number.
Several commenters expressed their
support for this provision, noting that it
will assist Tribes in negotiating scope of
gaming provisions.
The Department acknowledges the
comments.
A few commenters, while expressing
support for the provision, stated that the
provision was unclear as to its intent,
and requested that the Department
clarify that ‘‘any’’ means ‘‘all.’’ One
commenter suggested the Department
modify the second sentence to clarify
the intent of the provision as follows:
‘‘A State’s refusal to negotiate a compact
over all forms of class III gaming if it
allows any form of class III gaming, is
considered evidence of bad faith.’’
While one commenter suggested the
Department revise the second sentence
to remove ‘‘not prohibited by the State.’’
The Department acknowledges the
comments but declines the requested
revisions. As explained above, the
Department has replaced the phrase
‘‘evidence of bad faith’’ with ‘‘evidence
of a violation of IGRA.’’ The language
used by the Department follows the
authority granted by IGRA.
One commenter noted that the term
‘‘not prohibited’’ has been the subject of
much debate, interpretation, and
litigation since IGRA was enacted and
that a State, although its laws may
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prohibit such gaming, the State allows
it to occur through non-enforcement.
The commenter suggested that the
Department revise the provision to make
it clear that the mere existence of laws
which state that class III gaming or a
form of class III gaming is prohibited
alone are not determinative of whether
a State in fact prohibits class III gaming
or a form of class III gaming, and that
the Department will also examine the
State’s policies and practices regarding
enforcement of laws that purport to
prohibit class III gaming or a form of
class III gaming in determining whether
a State in fact prohibits such gaming.
The Department acknowledges the
comment but declines the requested
revision. The language used by the
Department follows the authority
granted by IGRA.
Many commenters, while expressing
support for the provision, noted that
courts have disagreed with this
approach, particularly the Tenth Circuit,
Ninth Circuit, and Eighth Circuit, where
those courts adopted a narrower
interpretation of the term ‘‘permits such
gaming,’’ adopting the view that the
phrase ‘‘such gaming’’ refers to specific
types of class III games that a State
permits. These commenters expressed
concern that the provision is thus
inconsistent with these more recent
Federal court decisions and may lead to
unnecessary litigation and cause some
confusion and obstruction in future
compact negotiations. One commenter
questioned the language of § 293.27,
noting that there is a body of Federal
case law regarding the distinction
between ‘‘permitted’’ and ‘‘prohibited’’
gaming activities. The commenter did
not believe that § 293.27 adds value to
existing case law.
The Department acknowledges these
comments. The Department takes the
position that the Second Circuit’s
decision in Mashantucket Pequot Tribe
v. Connecticut, 913 F. 2d 1–24 (2d Cir.
1990) holding that Congress intended to
codify the test set out in California v.
Cabazon Band of Mission Indians, 480
U.S. 202 (1987) when it used the phrase
‘‘permits such gaming’’ such that IGRA
refers to class III gaming categorically is
correct. Under the Secretary’s delegated
authority to interpret and promulgate
rules for IGRA, the Department finds
that if a State allows any form of class
III gaming, it is regulating all forms of
class III gaming, which are a subject for
good faith negotiations.
One commenter stated that § 293.27
appears to take a broader approach in
scope of class III games and that it was
unclear whether as currently drafted if
§ 293.27 speaks in class III games
regulated by the State and not
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prohibited in the State and how
provisions regarding Statewide remote
wagering or internet wagering would be
addressed under this provision.
The Department acknowledges this
comment. § 293.27 provides that if a
State allows any form of class III
gaming, the State is regulating all forms
of class III gaming, which are permitted
under IGRA and thus a subject for good
faith negotiations. In response to
comments received during consultation
the Department has added a new
proposed section addressing i-gaming,
§ 293.29.
Several commenters suggested that a
State’s refusal to allow all forms of class
III gaming as allowed under a State’s
constitution or other laws should be
considered presumptive evidence of bad
faith.
The Department acknowledges these
comments but declines to make this
revision. IGRA does not permit a
presumptive determination of bad faith.
Additionally, as explained above the
Department has replaced the phrase
‘‘evidence of bad faith’’ with ‘‘evidence
of a violation of IGRA.’’
Comments on § 293.27—Which Has
Been Renumbered as § 293.28—May any
other contract outside of a compact
regulate Indian gaming?
The Department has renumbered the
proposed § 293.27 as § 293.28 and
comments have been edited to reflect
the new section number.
Several commenters expressed
support for the proposed § 293.28.
The Department acknowledges the
comments.
Several commenters expressed
concern with proposed § 293.28.
Commenters stated that the provisions
requiring Tribes to submit all the
agreements encompassed under § 293.28
and § 293.4(b) are overly broad and
should be revised to ensure they do not
impact existing jurisdiction agreements,
in lieu tax agreements, mutual aid
agreements for law enforcement, health
and safety agreements, alcohol
regulation agreements, utility
agreements, necessary roadway
improvements, lending agreements,
vendor agreements, and
intergovernmental agreements with
units of local governments. Commenters
assert that the breadth of § 293.28 would
create doubt over the validity of many
existing jurisdiction agreements,
undermine Tribal sovereignty, and
interfere with the Tribes’ ability to
negotiate necessary local agreements
according to what the Tribe believes is
in its best interest based on its
circumstances and experience.
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Other commenters stated that the
proposed new requirement for the
Secretary to approve any ‘‘Agreements
which include provisions for the
payment from a Tribe’s gaming revenue
. . . .’’ is unnecessary and will result in
the submission of an ‘‘exponential’’
number of agreements to the Office of
Indian Gaming causing unnecessary
delay and creating new roadblocks to a
Tribe’s economic development efforts.
Moreover, offering a vague declination
type remedy, with no time limit on
agency action and no deemed approval
mechanism will create further
unnecessary delay. Further, IGRA at 25
U.S.C. 2710(d)(3) specifies ‘‘compacts’’
that are executed between Tribes and
States under Federal and applicable
State law, not counties or other political
subdivisions of the State.
The Department accepted the
comments, in part. Section 293.28 is
modified to indicate that only
agreements between Tribes and States,
or States’ political subdivisions, which
govern gaming and include payments
from gaming revenue, are covered by
this section. Agreements that do not
regulate gaming need not be submitted
to the Department for approval as part
of a Tribal-State gaming compact.
Likewise, agreements between Tribes
and the State and/or local governments
that facilitate cooperation and good
governance, but that do not regulate
gaming, should not be incorporated into
or referenced as a requirement of a
Tribal-State gaming compact.
Additionally, the Department has
revised § 293.4(b) to require the
Department to issue a determination
whether a submitted document is a
compact or amendment within 60 days
of it being received and date stamped by
the Office of Indian Gaming.
Several commenters requested the
Department revise § 293.28 to permit
rather than require a Tribe to submit the
targeted documents and narrow which
documents are targeted. Commenters
explained the proposed revisions to
§ 293.28 would ensure that compacts
and amendments do not include
provisions that are not directly related
to the operation of a Tribe’s class III
gaming operation. Commenters stated
Tribes should have the option to request
the Department’s review and approval
of other agreements, mandated or
required by a compact or amendment,
that do not exceed the scope permitted
under IGRA.
The Department accepted the
requested revisions. The Department
revised § 293.28 to reflect the section
only covers agreements between a Tribe
and a State or the State’s political
subdivisions, which regulates the
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Tribe’s right to conduct gaming or
includes payments from the Tribe’s
gaming revenue. The Department has
also revised § 293.4 as discussed above.
Agreements between a Tribe and the
State and/or local governments that
facilitate cooperation and good
governance, but that do not regulate
gaming or include payments from
gaming revenue, should not be
incorporated into, or referenced as a
requirement of, a Tribal-State gaming
compact.
Several commenters requested the
Department revise proposed § 293.28, to
exclude lending/loan agreements. The
commenter argued the proposed
language in § 293.28 would require
Tribes to send lending agreements (loan
documents) for Department review and
approval under IGRA because it is not
uncommon for lending agreements to
require a Tribe hold gaming revenue in
accounts for collateral or similar
purposes. Commenters questioned if the
Department intends to review financial
documentation and lending agreements
between Tribes and third-party lenders,
which are subject to the National Indian
Gaming Commission’s review to
determine if the agreement constitutes a
management contract. Commenters
opined subjecting lending agreements to
review by the Department and the
National Indian Gaming Commission
would be extremely burdensome.
The Department accepted the
requested revisions. The Department
revised § 293.28 to reflect the section
only covers agreements between a Tribe
and a State or the State’s political
subdivisions, which regulates the
Tribe’s right to conduct gaming or
includes payments from the Tribe’s
gaming revenue. Third-party
agreements, such as lending documents
and regular course of business
agreements need not be submitted to the
Department for approval as part of a
Tribal-State gaming compact.
Several commenters questioned the
Secretary’s authority to review all
documents included in the proposed
§ 293.28. Commenters explained section
2710(d)(3) of IGRA specifies that
compacts are executed between Tribes
and States under Federal and applicable
State law, not counties or other political
subdivisions of the State. Commenters
explained this provision would arguably
require submission of a vast number of
agreements between Tribes and State
and local governments. Commenters
asserted that the use of gaming revenue
is governed by 25 U.S.C. 2710(b)(2)(B)
and many compacts and gaming
ordinances have similar requirements.
Commenters argued policing noncompact agreements, which call for
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payment from gaming revenue, is far
afield of the Secretary’s limited
authority to approve or disapprove a
compact.
The Department acknowledges the
comments. IGRA directs that the
Secretary review and either approve or
disapprove compacts within a 45-day
review period. In enacting IGRA,
Congress delegated authority to the
Secretary to review compacts to ensure
that they comply with IGRA, other
provisions of Federal law that do not
relate to jurisdiction over gaming on
Indian lands, and the trust obligations of
the United States. 25 U.S.C.
2710(d)(8)(B)(i)–(iii). IGRA establishes a
limited scope of appropriate topics in a
Tribal-State gaming compact. Thus, in
reviewing submitted compacts and
amendments, the Secretary is vested the
authority to determine whether the
compacts contain topics outside IGRA’s
limited scope. IGRA limits a Tribe’s use
of gaming revenue to: funding Tribal
governmental operations or programs;
providing for the general welfare of the
Tribe and its members; promoting Tribal
economic development; donating to
charitable organizations; or help fund
operations of local governmental
agencies. 25 U.S.C. 2710(b)(2)(B).
However, IGRA in section 2710(d)(4)
prohibits the State or its political
subdivisions from imposing a tax, fee,
charge, or other assessment. The
Department reads section 2710(b)(2)(B)
to permit a Tribe to voluntarily help
fund operations of local governmental
agencies, not as an end-run around the
prohibition against imposed taxes, fees,
charges, or other assessments in section
2710(d)(4). Section 293.25 includes a
discussion of the Department’s
interpretation of IGRA’s prohibition
against the imposition of a tax, fee,
charge, or other assessment.
Comments on § 293.28—Which Has
Been Renumbered as § 293.31—How
does the Paperwork Reduction Act
affect this part?
The Department has renumbered the
proposed § 293.28 as § 293.31 comments
have been edited to reflect the new
section number.
Several commenters expressed
support for the proposed § 293.31.
The Department acknowledges the
comments and notes the proposed
§ 293.31 is the renumbered but
unrevised § 293.16 in the Department’s
2008 Regulations.
V. Summary of Changes by Section
The Department proposes to provide
primarily technical amendments to the
existing process-based regulations,
including the title. The proposed
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technical amendments are intended to
clarify the process and contain edits for
internal consistency and improved
readability. The Department also
proposes to add 15 sections addressing
substantive issues and organize part 293
into 4 subparts. The Department
proposes to amend the title to part 293
by removing the word ‘‘process’’ from
the title. The proposed amended title
would be ‘‘part 293 Class III Tribal State
Gaming Compacts.’’ The Proposed
Amendments incorporate comments
received during Tribal consultation on
the Consultation Draft and discussed
above in the Tribal Consultation section.
A. Proposed Subpart A—General
Provisions and Scope
The Proposed Subpart A, titled
‘‘General Provisions and Scope’’ would
contain §§ 293.1 through 293.5.
Proposed Amendments to § 293.1—
What is the purpose of the part?
The Department proposes technical
amendments to clarify that the proposed
part 293 Regulations contain both
procedural and substantive regulations.
Proposed Amendments to § 293.2—How
are key terms defined in this part?
The Proposed Amendment
restructures the existing § 293.2 by
removing the paragraph for the
introductory sentence and editing that
sentence for clarity. The proposed
restructuring improves clarity by using
the paragraphs for each defined term.
The existing definitions for
Amendment, Compact or Tribal-State
Gaming Compact, and Extension reflect
proposed edits to improve clarity and
respond to comments received during
consultation. The Proposed
Amendments includes seven new
definitions: gaming activity or gaming
activities, gaming facility, gaming
spaces, IGRA, meaningful concession,
substantial economic benefit, and Tribe.
• Gaming activity or gaming activities
are interchangeable terms repeatedly
used in IGRA but not defined by IGRA.
Therefore, the Department proposes to
define these terms as used in part 293
and in Tribal-State gaming compacts as
‘‘the conduct of class III gaming
involving the three required elements of
chance, consideration, and prize.’’
• Gaming Facility is a term used in
IGRA at 25 U.S.C. 2710(d)(3)(C)(vi), but
is not defined by IGRA. IGRA permits a
compact to include ‘‘standards for the
operation of such activity and
maintenance of the gaming facility,
including licensing.’’ As a result,
compacting parties have on occasion
used this provision to extend State
regulatory standards beyond the
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maintenance and licensing of the
physical structure where the Tribe is
conducting gaming. The definition of
gaming facility addresses building
maintenance and licensing under the
second clause of 25 U.S.C.
2710(d)(3)(C)(vi) and is intended to be
narrowly applied to only the building or
structure where the gaming activity
occurs. Therefore, the Department
proposes to define gaming facility as
‘‘the physical building or structure
where the gaming activity occurs.’’ 11
• Gaming spaces is a term the
Department has used to clarify the
physical spaces a compact may regulate.
The Department proposed to define
Gaming Spaces as ‘‘the areas within a
Gaming Facility that are directly related
to and necessary for the conduct of class
III gaming such as: the casino floor;
vault; count room; surveillance,
management, and information
technology areas; class III gaming device
and supplies storage areas; and other
secured areas. where the operation or
management of class III gaming takes
place, including the casino floor, vault,
count, surveillance, management,
information technology, class III gaming
device, and supplies storage areas.’’
• IGRA is the commonly used
acronym for the Indian Gaming
Regulatory Act of 1988 (Pub. L. 100–
497) 102 Stat. 2467 dated October 17,
1988, (Codified at 25 U.S.C. 2701–2721
(1988)) and any amendments. The
Department proposes to include IGRA
as a defined term to facilitate
consistency and readability in the
regulations.
• Meaningful concession is a term the
Department has adopted from Ninth
Circuit caselaw as part of the
Department’s long-standing test for
revenue sharing provisions. The
Department proposes to define
meaningful concession as: ‘‘something
of value to the Tribe; directly related to
gaming; something that carries out the
purposes of IGRA; and not a subject
over which a State is otherwise
obligated to negotiate under IGRA.’’
• Substantial economic benefit is a
term the Department has adopted from
Ninth Circuit caselaw as part of the
Department’s long-standing test for
revenue sharing provisions. The
Department proposes to define
substantial economic benefit as: a
beneficial impact to the Tribe; resulting
from a meaningful concession; made
with a Tribe’s economic circumstances
11 See, e.g. Letter to the Honorable Peter S.
Yucupicio, Chairman, Pascua Yaqui Tribe of
Arizona, from the Director, Office of Indian Gaming,
dated June 15, 2012, at 5, and fn. 9, discussing the
American Recovery & Reinvestment Act of 2009
and the IRS’s ‘‘safe harbor’’ language.
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in mind; spans the life of the compact;
and demonstrated by an economic/
market analysis or similar
documentation submitted by the Tribe
or the State.
• Tribe—the Department is proposing
to include Tribe as a defined term to
facilitate consistency and readability in
the regulations.
Proposed Amendments to § 293.3—
What authority does the Secretary have
to approve or disapprove compacts and
amendments?
The Proposed Amendment contains a
conforming edit to existing § 293.3.
Proposed Amendments to § 293.4—Are
compacts and amendments subject to
review and approval?
The Proposed Amendments contains
clarifying edits combining paragraphs
(a) and (b) from the 2008 Regulations
into a new paragraph (a); a new
paragraph (b) which was proposed
during Tribal consolation, and a new
paragraph (c) which creates a process by
which the Parties may seek a
determination if an agreement or other
documentation is a ‘‘compact or
amendment’’ without submitting that
agreement for review and approval
pursuant to IGRA. These proposed
changes clarify that any document
between a Tribe and the State or its
political subdivisions which establish,
change, or interpret the terms of a
Tribe’s compact or amendment
regardless of whether they are
substantive or technical, must be
submitted for review and approval by
the Secretary. The Department is
concerned that compacting parties have
read the existing definition of Compact
in § 293.2(b)(2) and the existing § 293.4,
narrowly to exclude from Secretarial
review a range of agreements or other
documents which often impact the
parties understanding and application
of the terms of their compact, or
payments made by a Tribe from gaming
revenue. The Department is proposing a
new paragraph (b) to clarify the scope of
documents that may be considered an
amendment and a new paragraph (c) to
allow parties to seek a determination
from the Department that their
agreement is or is not a compact. This
process is modeled on the National
Indian Gaming Commission’s practice of
issuing declination letters for
agreements which do not trigger NIGC’s
review and approval of management
contracts as required by IGRA at 25
U.S.C. 2711.
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Proposed Amendments to § 293.5—Are
extensions to compacts subject to
review and approval?
The Proposed Amendments contain
clarifying edits for consistency and
readability. Additionally, the
Department is proposing to add a
sentence which codifies the
Department’s long-standing practice that
an extension must be published in the
Federal Register to be in effect.12
B. Proposed Subpart B—Submission of
Tribal-State Gaming Compacts
The Proposed Subpart B, titled
‘‘Submission of Tribal-State Gaming
Compacts’’ would contain §§ 293.6
through 293.9.
Proposed Amendments to § 293.6—Who
can submit a compact or amendment?
The Proposed Amendments contains
conforming edits for consistency to
§ 293.6.
Proposed Amendments to § 293.7—
When should the Indian Tribe or State
submit a compact or amendment for
review and approval?
The Proposed Amendments contains
conforming edits for consistency to both
the heading and the body of § 293.7.
Proposed Amendments to § 293.8—
What documents must be submitted
with a compact or amendment?
The Proposed Amendments contains
conforming edits for consistency to
§ 293.8. Additionally, the Department is
proposing to renumber the existing
paragraphs and add a new paragraph
(d). The proposed paragraph (d) would
clarify that compact submission package
should include any agreements between
the Tribe and the State or its political
subdivisions which are required by the
compact or amendment and either
involve payments made by the Tribe
from gaming revenue, or restricts or
regulates the Tribe’s use and enjoyment
of its Indian lands, as well as any
ancillary agreements, documents,
ordinances, or laws required by the
compact which the Tribe determines is
relevant to the Secretary’s review. The
Department’s review of the compact
includes analyzing if the provision(s)
requiring ancillary agreements,
documents, ordinances, or laws violate
IGRA or other Federal law because the
underlying agreement includes
provisions prohibited by IGRA, and
therefore the Secretary may disapprove
the compact.
12 See, e.g. Notice of Final Rulemaking Part 293,
73 FR 74004, 74007 (Dec. 5, 2008).
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Proposed Amendments to § 293.9—
Where should a compact or amendment
be submitted for review and approval?
The Proposed Amendments contains
conforming edits for consistency and
proposed new sentence to permit
electronic submission of compacts. The
Office of Indian Gaming will accept and
date stamp electronic submissions for
the purpose of initiating the 45-day
review period. The first copy of a
compact or amendment that is received
and date stamped initiates the 45-day
review period.
C. Proposed Subpart C—Secretarial
Review of Tribal-State Gaming
Compacts
The Proposed Subpart C, titled
‘‘Secretarial Review of Tribal-State
Gaming Compacts’’ would contain
§§ 293.10 through 293.16. The Proposed
Amendments include renumbering the
existing § 293.14 When may the
Secretary disapprove a compact or
amendment? as § 293.16. Renumbering
and renaming the existing § 293.15
When does an approved or consideredto-have-been-approved compact or
amendment take effect? as § 293.14
When does a compact or amendment
take effect? And adding a new § 293.15
Is the Secretary required to disapprove
a compact or amendment that violates
IGRA?
Proposed Amendments to § 293.10—
How long will the Secretary take to
review a compact or amendment?
The Proposed Amendments contains
conforming edits for consistency to
§ 293.10.
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Proposed Amendments to § 293.11—
When will the 45-day timeline begin?
The Proposed Amendments contains
conforming edits to § 293.11 for
consistency with proposed changes to
§ 293.9, and a new sentence providing
the Department will send an email
confirming receipt of electronically
submitted compacts or amendments
including when the Secretary’s 45-day
review period ends.
Proposed Amendments to § 293.12—
What happens if the Secretary does not
act on the compact or amendment
within the 45-day review period?
The Proposed Amendments contain
clarifying edits for consistency and
readability. Additionally, the
Department proposes to include a new
provision codifying the Department’s
practice of issuing letters informing the
parties that the compact or amendment
has been approved by operation of law
after the 45th day. The letter may
include guidance to the parties
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identifying certain provisions that are
inconsistent with the Department’s
interpretation of IGRA—also known as
Deemed Approval Letters.
Proposed Amendments to § 293.13—
Who can withdraw a compact or
amendment after it has been received by
the Secretary?
The Proposed Amendments contains
conforming edits for consistency to
§ 293.13.
Proposed Amendments to § 293.14—
When does a compact or amendment
that is affirmatively approved or
approved by operation of law take
effect?
The Proposed Amendments renumber
the existing § 293.15 as § 293.14 to
improve overall organization of the
regulations. The Proposed Amendments
contain clarifying edits for consistency
and readability to both the heading and
the body of § 293.14.
Proposed § 293.15—Is the Secretary
required to disapprove a compact or
amendment that violates IGRA?
The Proposed Amendments contain a
new § 293.15, which clarifies IGRA’s
limits on the Secretary’s authority to
review compacts. Congress, through
IGRA at 25 U.S.C. 2710 (d)(8), provided
the Secretary with time-limited
authority to review a compact and
discretionary disapproval authority.
Within this limited time period, the
Secretary may approve or disapprove a
compact. IGRA further directs that if the
Secretary does not approve or
disapprove a compact within IGRA’s
limited time frame for review, then the
compact shall be considered to have
been approved by the Secretary, but
only to the extent the compact is
consistent with the provisions of IGRA.
25 U.S.C. 2710(d)(8)(C). The Department
notes that one Circuit has held that the
Secretary must disapprove a compact if
it violates any of the three limitations in
IGRA and may not approve the compact
by operation of law. Amador County v.
Salazar, 640 F.3d 373, 381 (DC Cir.
2011). The Department, however,
strongly disagrees with the court’s
holding, finding that it conflicts with
and negates a specific provision of
IGRA.
Proposed § 293.16—When may the
Secretary disapprove a compact or
amendment?
The Proposed Amendments renumber
and restructure the existing § 293.14 as
§ 293.16 to improve overall organization
of the regulations. Additionally, the
Department proposes to renumber the
existing paragraphs and add a new
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paragraph (b). The proposed paragraph
(b) would clarify that if a compact
submission package is missing the
documents required by § 293.8 and the
parties decline to cure the deficiency,
the Department will presume that the
compact or amendment violates IGRA.
D. Proposed Subpart D—Scope of
Tribal-State Gaming Compacts
The Proposed Subpart D, titled
‘‘Scope of Tribal-State Gaming
Compacts’’ would contain §§ 293.17
through 293.31. The Proposed
Amendments include substantive
provisions addressing the appropriate
scope of a compact under IGRA. These
provisions continue the question-andanswer approach utilized in the existing
regulations. These provisions codify
existing Departmental practice and
provide compacting parties clear
guidance on the appropriate scope of
compact negotiations.
Proposed § 293.17—May a compact
include provisions addressing the
application of the Tribe’s or State’s
criminal and civil laws and regulations?
The Proposed Amendments contains
a new § 293.17 clarifying the
appropriate scope of terms addressing
the application of the criminal and civil
laws and regulations in a compact.
Congress through IGRA at 25 U.S.C.
2710(d)(3)(C)(i) provided that a compact
may include provisions addressing the
application of criminal and civil laws
and regulations of the Tribe or the State
that are directly related to, and
necessary for, the licensing and
regulation of the gaming activity.
Proposed § 293.18—May a compact
include provisions addressing the
allocation of criminal and civil
jurisdiction between the State and the
Tribe?
The Proposed Amendments contains
a new § 293.18 clarifying the
appropriate scope of terms addressing
the allocation of criminal and civil
jurisdiction in a compact. Congress
through IGRA at 25 U.S.C. 2701(5)
found that ‘‘[T]ribes have the exclusive
right to regulate gaming activity on
Indian lands if the gaming activity is not
specifically prohibited by Federal law
and is conducted within a State which
does not, as a matter of criminal law and
public policy, prohibit such gaming
activity.’’ Congress then provided that a
compact may include provisions
addressing the allocation of criminal
and civil jurisdiction between the Tribe
and the State necessary for enforcement
of the laws and regulations described in
section 2710(d)(3)(C)(i). See IGRA at 25
U.S.C. 2710(d)(3)(C)(ii).
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Proposed § 293.19—May a compact
include provisions addressing the
State’s costs for regulating gaming
activities?
The Proposed Amendments contains
a new § 293.19 clarifying the
appropriate scope of assessments by the
State to defray the costs of regulating the
Tribe’s gaming activity. Congress
through IGRA at 25 U.S.C.
2710(d)(3)(C)(iii) provided that a
compact may include provisions
relating to the assessment by the State
of the gaming activity in amounts
necessary to defray the costs of
regulating the gaming activity. Congress
through IGRA at 25 U.S.C. 2710(d)(4)
clarified any assessments must be
negotiated and at no point may a State
or its political subdivisions impose any
taxes, fees, charges, or other assessments
upon a Tribe through the compact
negotiations. The Proposed
Amendments further clarify that the
compact should include requirements
for the State to show actual and
reasonable expenses over the life of the
compact and the absence of such
provisions is considered evidence of a
violation of IGRA.
Proposed § 293.20—May a compact
include provisions addressing the
Tribe’s taxation of gaming?
The Proposed Amendments contains
a new § 293.20 clarifying the
appropriate scope of provisions
addressing a Tribe’s taxation of tribally
licensed gaming activity. Congress
through IGRA at 25 U.S.C.
2710(d)(3)(C)(iv) provided that a
compact may include provisions
relating to the Tribe’s taxation of gaming
activities in amounts comparable to the
State’s taxation of gambling. A TribalState gaming compact may not be used
to address the Tribe’s taxation of other
activities that may occur within or near
the Tribe’s gaming facility. The
inclusion of provisions addressing the
Tribe’s taxation of other activities is
considered evidence of a violation of
IGRA.
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Proposed § 293.21—May a compact or
amendment include provisions
addressing the resolution of disputes for
breach of the compact?
The Proposed Amendments contains
a new § 293.21 clarifying the
appropriate scope of provisions
addressing remedies for breach of the
compact. Congress through IGRA at 25
U.S.C. 2710(d)(3)(C)(v) provided that a
compact may include provisions
relating to remedies for breach of
contract. Compacts often include
alternative dispute resolution including
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binding arbitration as part of the parties’
remedies for allegations of breach of
contract. Despite the Department’s
existing regulations clarifying that
compacts and all amendments are
subject to Secretarial review, some
compacting parties have resolved
disputes in manners which seek to
avoid Secretarial review. Therefore, the
Department proposes § 293.21 to clarify
that any dispute resolution agreement,
arbitration award, settlement agreement,
or other resolution of a dispute outside
of Federal court must be submitted for
review and approval by the Secretary.
Further, the proposed § 293.21
references the § 293.4 determination
process for review prior to formal
submission of a dispute resolution
agreement as an amendment. The
inclusion of provisions addressing
dispute resolution in a manner that
seeks to avoid the Secretary’s review is
considered evidence of a violation of
IGRA.
Proposed § 293.22—May a compact or
amendment include provisions
addressing standards for the operation
of gaming activity and maintenance of
the gaming facility?
The Proposed Amendments contains
a new § 293.22 clarifying the
appropriate scope of provisions
addressing the Tribe’s standards for the
operation of the gaming activity as well
as the Tribe’s standards for the
maintenance of the gaming facility,
including licensing in a compact.
Congress through IGRA at 25 U.S.C.
2710(d)(3)(C)(vi) provided that a
compact may include provisions
relating to standards for the operation of
such activity and maintenance of the
gaming facility, including licensing. The
Department interprets 2710(d)(3)(C)(vi)
narrowly as two separate clauses
addressing separate Tribal and State
interests. First, a compact may include
provisions addressing the standards for
the operation and licensing of the
gaming activity. Second, a compact may
include provisions addressing the
maintenance and licensing of the
gaming facility building or structure.
The Proposed Amendments in § 293.2
includes definitions of both gaming
facility and gaming spaces to provide
parties with clarity regarding the
appropriate limits of State oversite
under IGRA. Any compact provisions
addressing the maintenance and
licensing of a building or structure must
be limited to the building or structure
where the gaming activity occurs—the
gaming facility. Further, if a compact or
amendment mandate that the Tribe
adopt standards equivalent or
comparable to the standards set forth in
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a State law or regulation, the parties
must show that these mandated Tribal
standards are both directly related to
and necessary for, the licensing and
regulation of the gaming activity.
Proposed § 293.23—May a compact or
amendment include provisions that are
directly related to the operation of
gaming activities?
The Proposed Amendments contains
a new § 293.23 clarifying a compact may
include provisions that are directly
related to the operation of gaming
activities. Congress through IGRA at 25
U.S.C. 2710(d)(3)(C)(vii) provided that a
compact may include provisions
relating to any other subjects that are
directly related to the operation of
gaming activities. The Proposed
Amendments in § 293.24 codify the
Department’s longstanding narrow
interpretation of section
2710(d)(3)(C)(vi).
Proposed § 293.24—What factors will be
used to determine whether provisions in
a compact or amendment are directly
related to the operation of gaming
activities?
The Proposed Amendments contains
a new § 293.24 which codifies existing
case law and the Department’s
longstanding narrow interpretation of
section 2710(d)(3)(C)(vi) as requiring a
‘‘direct connection.’’ The Department
notes the Ninth Circuit in Chicken
Ranch found the Department’s
longstanding direct connection test
persuasive and consistent with the
court’s own independent analysis of
IGRA and case law. The proposed
§ 293.24 provides compacting parties
with examples of provisions which have
a direct connection to the Tribe’s
conduct of class III gaming activities as
well as examples the Department has
found do not satisfy the direct
connection test.
Proposed § 293.25—What factors will
the Secretary analyze to determine if
revenue sharing is lawful?
The Proposed Amendments contains
a new § 293.25 which clarifies the
appropriate scope of provisions
addressing revenue sharing. Congress,
through IGRA at 25 U.C.S. 2710 (d)(4),
prohibited States from seeking to
impose any tax, fee, charge, or other
assessment upon an Indian Tribe or
upon any other person or entity
authorized by an Indian Tribe to engage
in a class III activity. The Proposed
Amendments codifies the Department’s
longstanding rebuttable presumption
that any revenue sharing provisions are
a prohibited tax, fee, charge, or other
assessment. The Proposed Amendments
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also contains the Department’s test to
rebut that presumption.
Proposed § 293.26—May a compact or
extension include provisions that limit
the duration of the compact?
The Proposed Amendments contains
a new § 293.26 which addresses the
appropriate duration of a compact. The
Department and IGRA anticipate that
compacts are long-term agreements
between a Tribe and a State that reflect
carefully negotiated compromises
between sovereigns.
Proposed § 293.27—May a compact
permit a Tribe to engage in any form of
class III gaming activity?
The Proposed Amendments contains
a new § 293.27, which clarifies the
appropriate scope of class III gaming
that a State permits. Congress, through
IGRA at 25 U.C.S. 2710(d)(1)(B),
requires that a Tribe seeking to conduct
class III gaming be located in a State that
permits such gaming for any purpose by
any person, organization, or entity.
The Department takes the position
that the Second Circuit’s decision in
Mashantucket Pequot Tribe v.
Connecticut, 913 F. 2d 1–24 (2d Cir.
1990) holding that Congress intended to
codify the test set out in California v.
Cabazon Band of Mission Indians, 480
U.S. 202 (1987) when it used the phrase
‘‘permits such gaming’’ such that IGRA
refers to class III gaming categorically is
correct. Under the Secretary’s delegated
authority to interpret and promulgate
rules for IGRA, the Department finds
that if a State allows any form of class
III gaming, it is regulating all forms of
class III gaming, which are a subject for
good faith negotiations.
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Proposed § 293.28—May any other
contract outside of a compact regulate
Indian gaming?
The Proposed Amendments contains
a new § 293.28 which clarifies that any
agreement between a Tribe and a State
or its political subdivisions which seeks
to regulate a Tribe’s right to conduct
gaming—as limited by IGRA—is a
gaming compact that must comply with
IGRA and be submitted for review and
approval by the Secretary.
Proposed § 293.29—May a compact or
amendment include provisions
addressing Statewide remote wagering
or internet gaming?
The Proposed Amendments contains
a new § 293.29, which clarifies a
compact may include provisions
allocating jurisdiction to address
Statewide remote wagering or internet
gaming. The IGRA provides that a Tribe
and State may negotiate for ‘‘the
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application of the criminal and civil
laws and regulations of the Indian Tribe
or the State that are directly related to,
and necessary for, the licensing and
regulation of such activity’’ and ‘‘the
allocation of criminal and civil
jurisdiction between the State and the
Indian Tribe necessary for the
enforcement of such laws and
regulations.’’ 25 U.S.C. 2710(d)(3)(c)(i)(ii). The Department’s position is that
the negotiation between a Tribe and
State over Statewide remote wagering or
i-gaming falls under these broad
categories of criminal and civil
jurisdiction. Accordingly, provided that
a player is not physically located on
another Tribe’s Indian lands, a Tribe
should have the opportunity to engage
in this type of gaming pursuant to a
Tribal-State gaming compact. The
Department notes the ultimate legality
of gaming activity outside Indian lands
remains a question of State law,
notwithstanding that a compact
discusses the activity. However,
Congress in enacting IGRA did not
contemplate the Department would
address or resolved complex issues of
State law during the 45-day review
period.13 Further, non-IGRA Federal
law may also place restrictions on that
activity.
Proposed § 293.30—What effect does
this part have on pending requests, final
agency decisions already issued, and
future requests?
The Proposed Amendments contains
a new § 293.30 which clarifies the
proposed regulations are prospective
and the effective date of the proposed
regulations.
Proposed § 293.31—How does the
Paperwork Reduction Act affect this
part?
The Proposed Amendments
renumbers existing § 293.16 as § 293.31
to improve overall organization of the
regulations.
VI. Procedural Requirements
A. Regulatory Planning and Review
(E.O. 12866)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs in the Office of Management and
Budget will review all significant rules.
The Office of Information and
Regulatory Affairs has determined that
this rule is not significant. Executive
Order 13563 reaffirms the principles of
E.O. 12866 while calling for
improvements in the nation’s regulatory
system to promote predictability, to
13 See, e.g., Pueblo of Santa Ana v. Kelly, 104 F.3d
1546, 1556 (10th Cir. 1997).
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reduce uncertainty, and to use the best,
most innovative, and least burdensome
tools for achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
B. Regulatory Flexibility Act
The Department of the Interior
certifies that this proposed rule would
not have a significant economic effect
on a substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). This proposed rule
would codify longstanding
Departmental policies and
interpretation of case law in the form of
substantive regulations which would
provide certainty and clarity on how the
Secretary will review certain provisions
in a compact.
C. Congressional Review Act (CRA)
This rule is not a major rule under 5
U.S.C. 804(2). This rule:
• Does not have an annual effect on
the economy of $100 million or more.
• Will not cause a major increase in
costs or prices for consumers,
individual industries, federal, State, or
local government agencies, or
geographic regions.
• Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act of
1995
This rule would not impose an
unfunded mandate on State, local, or
Tribal governments, or the private sector
of more than $100 million per year. The
rule would not have a significant or
unique effect on State, local, or Tribal
governments or the private sector. A
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not
required).
E. Takings (E.O. 12630)
This rule would not affect a taking of
private property or otherwise have
taking implications under Executive
Order 12630 because this rulemaking, if
adopted, does not affect individual
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property rights protected by the Fifth
Amendment or involve a compensable
‘‘taking.’’ A takings implication
assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of
Executive Order 13132, this rule would
not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement. A federalism summary
impact statement is not required
because, the Department seeks to codify
longstanding Departmental policies and
interpretation of case law in the form of
substantive regulations which would
provide certainty and clarity on how the
Secretary will review certain provisions
in a compact.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the
requirements of Executive Order 12988.
This rule:
• Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
• Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.
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H. Consultation With Indian Tribes
(E.O. 13175)
The Department will conduct two
virtual session, one in-person
consultation, and will accept oral and
written comments. The consultations
sessions will be open to Tribal
leadership and representatives of
federally recognized Indian Tribes and
Alaska Native Corporations.
• In-Person Session: The in-person
consultation will be held on January 13,
2023, from 1 p.m. to 4 p.m. MST, at the
BLM National Training Center (NTC),
9828 N. 31st Ave, Phoenix, AZ 85051.
• 1st Virtual Session: The first virtual
consultation session will be held on
January 19, 2023, from 1 p.m. to 4 p.m.
EST. Please visit https://
www.zoomgov.com/meeting/register/
vJIsd2qrjwiH2bVXpLvS2VPUZESt2HgtKk to
register in advance.
• 2nd Virtual Session: The second
virtual consultation will be held on
January 30, 2023, from 2 p.m. to 5 p.m.
EST. Please visit https://
www.zoomgov.com/meeting/register/
vJIsduGtqzgtE1hw9EIFrDf3-X_
1gy5wGR0 to register in advance.
• Comment Deadline: Please see
DATES and ADDRESSES sections for
submission instructions.
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The Department of the Interior strives
to strengthen its government-togovernment relationship with Indian
Tribes through a commitment to
consultation with Indian Tribes and
recognition of their right to selfgovernance and Tribal sovereignty. We
have evaluated this rule under the
Department’s consultation policy and
under the criteria in E.O. 13175 and
have hosted extensive consultation with
federally recognized Indian Tribes in
preparation of this proposed rule,
including through a Dear Tribal Leader
letter delivered to every Federallyrecognized Tribe in the country, and
through three consultation sessions held
on May 9, 13, and 23, 2022.
I. Paperwork Reduction Act
OMB Control No. 1076–0172
currently authorizes the collection of
information related to Class III TribalState Gaming Compact Process, with an
expiration of August 31, 2024. This rule
requires no change to that approved
information collection under the
Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq.
J. National Environmental Policy Act
(NEPA)
This rule would not constitute a major
Federal action significantly affecting the
quality of the human environment. A
detailed statement under the National
Environmental Policy Act of 1969
(NEPA) is not required because this is
an administrative and procedural
regulation. (For further information see
43 CFR 46.210(i)). We have also
determined that the rule does not
involve any of the extraordinary
circumstances listed in 43 CFR 46.215
that would require further analysis
under NEPA.
K. Effects on the Energy Supply (E.O.
13211)
This rule is not a significant energy
action under the definition in Executive
Order 13211. A Statement of Energy
Effects is not required.
L. Clarity of This Regulation
We are required by Executive Orders
12866 (section 1 (b)(12)), 12988 (section
3(b)(l)(B)), and 13563 (section l(a)), and
by the Presidential Memorandum of
June 1, 1998, to write all rules in plain
language. This means that each rule we
publish must:
(a) Be logically organized;
(b) Use the active voice to address
readers directly;
(c) Use common, everyday words and
clear language rather than jargon;
(d) Be divided into short sections and
sentences; and
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(e) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in the ADDRESSES
section. To better help us revise the
rule, your comments should be as
specific as possible. For example, you
should tell us the numbers of the
sections or paragraphs that you find
unclear, which sections or sentences are
too long, the sections where you feel
lists or tables would be useful, etc.
M. Public Availability of Comments
Before including your address, phone
number, email address, or other
personal identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
List of Subjects 25 CFR Part 293
Administrative practice and
procedure, Gambling, Indians-tribal
government, State and local
governments.
For the reasons stated in the preamble,
the Department of the Interior, Bureau
of Indian Affairs, proposes to revise 25
CFR part 293 to read as follows:
■
PART 293—CLASS III TRIBAL-STATE
GAMING COMPACT
Subpart A—General Provisions and Scope
Sec.
§ 293.1 What is the purpose of this part?
§ 293.2 How are key terms defined in this
part?
§ 293.3 What authority does the Secretary
have to approve or disapprove compacts
and amendments?
§ 293.4 Are compacts and amendments
subject to review and approval?
§ 293.5 Are extensions to compacts or
amendments subject to review and
approval?
Subpart B—Submission of Tribal-State
Gaming Compacts
§ 293.6 Who can submit a compact or
amendment?
§ 293.7 When should the Tribe or State
submit a compact or amendment for
review and approval?
§ 293.8 What documents must be submitted
with a compact or amendment?
§ 293.9 Where should a compact or
amendment or other requests under this
part be submitted for review and
approval?
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Subpart C—Secretarial Review of TribalState Gaming Compacts
§ 293.10 How long will the Secretary take to
review a compact or amendment?
§ 293.11 When will the 45-day timeline
begin?
§ 293.12 What happens if the Secretary does
not act on the compact or amendment
within the 45-day review period?
§ 293.13 Who can withdraw a compact or
amendment after it has been received by
the Secretary?
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§ 293.14 When does a compact or
amendment take effect?
§ 293.15 Is the Secretary required to
disapprove a compact or amendment
that violates IGRA?
§ 293.16 When may the Secretary
disapprove a compact or amendment?
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§ 293.1
What is the purpose of this part?
This part contains:
(a) Procedures that Indian Tribes and/
or States must use when submitting
Tribal-State compacts and compact
amendments to the Department of the
Interior (Department); and
(b) Procedures and criteria that the
Secretary of the Interior (Secretary) will
use for reviewing such Tribal-State
compacts or compact amendments.
§ 293.2
part?
Subpart D—Scope of Tribal-State Gaming
Compacts
§ 293.17 May a compact or amendment
include provisions addressing the
application of the Tribe’s or the State’s
criminal and civil laws and regulations?
§ 293.18 May a compact or amendment
include provisions addressing the
allocation of criminal and civil
jurisdiction between the State and the
Tribe?
§ 293.19 May a compact or amendment
include provisions addressing the State’s
costs for regulating gaming activities?
§ 293.20 May a compact or amendment
include provisions addressing the Tribe’s
taxation of gaming?
§ 293.21 May a compact or amendment
include provisions addressing the
resolution of disputes for breach of the
compact?
§ 293.22 May a compact or amendment
include provisions addressing standards
for the operation of gaming activity and
maintenance of the gaming facility?
§ 293.23 May a compact or amendment
include provisions that are directly
related to the operation of gaming
activities?
§ 293.24 What factors will be used to
determine whether provisions in a
compact or amendment are directly
related to the operation of gaming
activities?
§ 293.25 What factors will the Secretary
analyze to determine if revenue sharing
is lawful?
§ 293.26 May a compact or extension
include provisions that limit the
duration of the compact?
§ 293.27 May a compact or amendment
permit a Tribe to engage in any form of
class III gaming activity?
§ 293.28 May any other contract outside of
a compact regulate Indian gaming?
§ 293.29 May a compact or amendment
include provisions addressing Statewide
remote wagering or internet gaming?
§ 293.30 What effect does this part have on
pending requests, final agency decisions
already issued, and future requests?
§ 293.31 How does the Paperwork
Reduction Act affect this part?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9,
2710.
Subpart A—General Provisions and
Scope
How are key terms defined in this
This part relies on but does not restate
all defined terms set forth in the
definitional section of IGRA.
(a) Amendment means:
(1) A change to a class III Tribal-State
gaming compact other than an
extension, or
(2) A change to secretarial procedures
prescribed under 25 U.S.C.
2710(d)(7)(B)(vii) when such change is
agreed upon by the Tribe and State.
(b) Compact or Tribal-State Gaming
Compact means an intergovernmental
agreement executed between Tribal and
State governments under IGRA that
establishes between the parties the
terms and conditions for the operation
and regulation of the Tribe’s Class III
gaming activities.
(c) Extension means an
intergovernmental agreement executed
between Tribal and State governments
under IGRA to change the duration of a
compact or amendment.
(d) Gaming activity or gaming
activities means the conduct of class III
gaming involving the three required
elements of chance, consideration, and
prize or reward.
(e) Gaming facility means the physical
building or structure, where the gaming
activity occurs.
(f) Gaming spaces means the areas
within a gaming facility (as defined in
paragraph (e) of this section) that are
directly related to and necessary for the
conduct of class III gaming such as: the
casino floor; vault; count room;
surveillance, management, and
information technology areas; class III
gaming device and supplies storage
areas; and other secured areas. where
the operation or management of class III
gaming takes place, including the casino
floor, vault, count, surveillance,
management, information technology,
class III gaming device, and supplies
storage areas.
(g) IGRA means the Indian Gaming
Regulatory Act of 1988 (Pub. L. 100–
497) 102 Stat. 2467 dated October 17,
1988, (Codified at 25 U.S.C. 2701–2721
(1988)) and any amendments.
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(h) Meaningful concession means:
(1) Something of value to the Tribe;
(2) Directly related to gaming;
(3) Something that carries out the
purposes of IGRA; and
(4) Not a subject over which a State
is otherwise obligated to negotiate under
IGRA.
(i) Substantial economic benefit
means:
(1) A beneficial impact to the Tribe;
(2) Resulting from a meaningful
concession;
(3) Made with a Tribe’s economic
circumstances in mind;
(4) Spans the life of the compact; and
(5) Demonstrated by an economic/
market analysis or similar
documentation submitted by the Tribe
or the State.
(j) Tribe means Indian Tribe as
defined in 25 U.S.C. 2703(5).
§ 293.3 What authority does the Secretary
have to approve or disapprove compacts
and amendments?
The Secretary has the authority to
approve a compact or amendment
‘‘entered into’’ by a Tribe and a State.
See § 293.15 for the Secretary’s
authority to disapprove compacts or
amendments.
§ 293.4 Are compacts and amendments
subject to review and approval?
(a) Yes. All compacts and
amendments, regardless of whether they
are substantive or technical, must be
submitted for review and approval by
the Secretary.
(b) If an ancillary agreement or
document:
(1) Changes a term to a compact, then
it must be submitted for review and
approval by the Secretary
(2) Implements or clarifies a provision
contained in a compact or an
amendment and is not inconsistent with
an approved compact or amendment, it
does not constitute a compact or an
amendment and need not be submitted
for review and approval by the
Secretary.
(3) If an approved compact or
amendment expressly contemplates an
ancillary agreement or document, such
as internal controls or a memorandum
of agreement between the Tribal and
State regulators, then such agreement or
document is not subject to review and
approval so long as it is not inconsistent
with the approved compact or
amendment.
(4) If an ancillary agreement or
document interprets language in a
compact or an amendment concerning
the payment of a Tribe’s gaming revenue
or includes any of the topics identified
in 25 CFR 292.24, then it may constitute
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an amendment subject to review and
approval by the Secretary.
(c) If a Tribe or a State (including its
political subdivisions) are concerned
that their agreement or other document,
including, but not limited to, any
dispute resolution agreement,
arbitration award, settlement agreement,
or other resolution of a dispute outside
of Federal court, may be considered a
‘‘compact’’ or ‘‘amendment,’’ either
party may request in writing a
determination from the Department if
their agreement is a compact or
amendment and therefore must be
approved and a notice published in the
Federal Register prior to the agreement
becoming effective. The Department
will issue a letter within 60 days
providing notice of the Secretary’s
determination.
§ 293.5 Are extensions to compacts or
amendments subject to review and
approval?
No. Approval of an extension to a
compact or amendment is not required
if the extension does not include any
changes to any of the other terms of the
compact or amendment. However, the
parties must submit the documents
required by § 293.8(a) through (c). The
extension becomes effective only upon
publication in the Federal Register.
Subpart B—Submission of Tribal-State
Gaming Compacts
§ 293.6 Who can submit a compact or
amendment?
Either party (Tribe or State) to a
compact or amendment can submit the
compact or amendment to the Secretary
for review and approval.
§ 293.9 Where should a compact or
amendment or other requests under this
part be submitted for review and approval?
Submit compacts, amendments, and
all other requests under 25 CFR part 293
to the Director, Office of Indian Gaming,
U.S. Department of the Interior, 1849 C
Street NW, Mail Stop 3543, Main
Interior Building, Washington, DC
20240. If this address changes, a
document with the new address will be
sent for publication in the Federal
Register within 5 business days.
Compacts and amendments may also be
submitted electronically to
IndianGaming@bia.gov as long as the
original copy is submitted to the address
listed in this section.
§ 293.7 When should the Tribe or State
submit a compact or amendment for review
and approval?
Subpart C—Secretarial Review of
Tribal-State Gaming Compacts
The Tribe or State should submit the
compact or amendment after it has been
duly executed by the Tribe and the State
in accordance with applicable Tribal
and State law, or is otherwise binding
on the parties.
§ 293.10 How long will the Secretary take
to review a compact or amendment?
§ 293.8 What documents must be
submitted with a compact or amendment?
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they are authorized under State law to
enter into the compact or amendment;
(d) Any agreement between a Tribe
and a State, its agencies or its political
subdivisions required by a compact or
amendment if the agreement requires
the Tribe to make payments to the State,
its agencies, or its political subdivisions,
or it restricts or regulates a Tribe’s use
and enjoyment of its Indian Lands and
any other ancillary agreements,
documents, ordinances, or laws
required by the compact or amendment
which the Tribe determines is relevant
to the Secretary’s review; and
(e) Any other documentation
requested by the Secretary that is
necessary to determine whether to
approve or disapprove the compact or
amendment. If a compact includes
revenue sharing, a market analysis or
similar documentation as required by
§ 293.24.
Documentation submitted with a
compact or amendment must include:
(a) At least one original compact or
amendment executed by both the Tribe
and the State;
(b) A Tribal resolution or other
document, including the date and place
of adoption and the result of any vote
taken, that certifies that the Tribe has
approved the compact or amendment in
accordance with applicable Tribal law;
(c) Certification from the Governor or
other representative of the State that
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(a) The Secretary must approve or
disapprove a compact or amendment
within 45 calendar days after receiving
the compact or amendment.
(b) The Secretary will notify the Tribe
and the State in writing of the decision
to approve or disapprove a compact or
amendment.
§ 293.11
begin?
When will the 45-day timeline
The 45-day timeline will begin when
a compact or amendment is received,
and date stamped by the Office of
Indian Gaming. The Department will
provide an email acknowledgement to
the Tribe and the State of receipt
including the 45th day for electronically
submitted compacts or amendments.
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§ 293.12 What happens if the Secretary
does not act on the compact or amendment
within the 45-day review period?
If the Secretary does not take action
to approve or disapprove a compact or
amendment within the 45-day review
period, the compact or amendment is
approved by operation of law, but only
to the extent the compact or amendment
is consistent with the provisions of
IGRA. The Secretary will issue a letter
informing the parties that the compact
or amendment has been approved by
operation of law after the 45th day and
before the 90th day. The Secretary’s
letter may include guidance to the
parties identifying certain provisions
that are inconsistent with the
Department’s interpretation of IGRA.
The compact or amendment that is
approved by operation of law becomes
effective only upon publication in the
Federal Register.
§ 293.13 Who can withdraw a compact or
amendment after it has been received by
the Secretary?
To withdraw a compact or
amendment after it has been received by
the Secretary, the Tribe and the State
must both submit a written request to
the Director, Office of Indian Gaming at
the address listed in § 293.9.
§ 293.14 When does a compact or
amendment take effect?
(a) A compact or amendment, that is
affirmatively approved or approved by
operation of law takes effect on the date
that notice of its approval is published
in the Federal Register.
(b) The notice of affirmative approval
or approval by operation of law must be
published in the Federal Register
within 90 days from the date the
compact or amendment is received by
the Office of Indian Gaming.
§ 293.15 Is the Secretary required to
disapprove a compact or amendment that
violates IGRA?
No. The IGRA provides the Secretary
with time limited authority to review a
compact or amendment and
discretionary disapproval authority. If
the Secretary does not take action to
approve or disapprove a compact or
amendment within 45 days, IGRA
provides it shall be considered to have
been approved by the Secretary, but
only to the extent the compact or
amendment is consistent with IGRA.
§ 293.16 When may the Secretary
disapprove a compact or amendment?
The Secretary may disapprove a
compact or amendment only if:
(a) It violates:
(1) Any provision of IGRA;
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(2) Any other provision of Federal law
that does not relate to jurisdiction over
gaming on Indian lands;
(3) The trust obligations of the United
States to Indians; or
(b) If the documents required in
§ 293.8 are not submitted and the
Department has informed the parties in
writing of the missing documents.
Subpart D—Scope of Tribal-State
Gaming Compacts
§ 293.17 May a compact or amendment
include provisions addressing the
application of the Tribe’s or the State’s
criminal and civil laws and regulations?
Yes. A compact or amendment may
include provisions addressing the
application of the criminal and civil
laws and regulations of the Tribe or the
State that are directly related to, and
necessary for, the licensing and
regulation of the gaming activity. At the
request of the Secretary pursuant to
§ 293.8(e), the parties must show that
these laws and regulations are both
directly related to and necessary for, the
licensing and regulation of the gaming
activity.
§ 293.18 May a compact or amendment
include provisions addressing the
allocation of criminal and civil jurisdiction
between the State and the Tribe?
Yes. A compact or amendment may
include provisions allocating criminal
and civil jurisdiction between the State
and the Tribe necessary for the
enforcement of the laws and regulations
described in § 293.17.
§ 293.19 May a compact or amendment
include provisions addressing the State’s
costs for regulating gaming activities?
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Yes. If the compact or amendment
includes a negotiated allocation of
jurisdiction to the State for the
regulation of the gaming activity, the
compact or amendment may include
provisions to defray the State’s actual
and reasonable costs for regulating the
specific Tribe’s gaming activity. If the
compact does not include requirements
for the State to show actual and
reasonable annual expenses for
regulating the specific Tribe’s gaming
activity over the life of the compact is
considered evidence of a violation of
IGRA.
§ 293.20 May a compact or amendment
include provisions addressing the Tribe’s
taxation of gaming?
Yes. A compact or amendment may
include provisions addressing the
Tribe’s taxation of the tribally licensed
gaming activity in amounts comparable
to the State’s taxation of State licensed
gaming activities. A compact may not
include provisions addressing the
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Tribe’s taxation of other activities that
may occur within or near the Tribe’s
gaming facility. The inclusion of
provisions addressing the Tribe’s
taxation of other activities is considered
evidence of a violation of IGRA.
§ 293.21 May a compact or amendment
include provisions addressing the
resolution of disputes for breach of the
compact?
Yes. A compact or amendment may
include provisions addressing how the
parties will resolve a breach of the
compact or other disputes arising from
the compact including mutual limited
waivers of sovereign immunity. If a
Tribe is concerned that an agreement or
other document, including but not
limited to any dispute resolution,
settlement agreement, or arbitration
decision, constitutes a compact or
amendment, or if the Tribe is concerned
that the agreement or other document
interprets the Tribe’s compact or
amendment to govern matters that are
not directly related to the operation of
gaming activities, the Tribe may submit
the document to the Department as set
forth in § 293.4. The inclusion of
provisions addressing dispute
resolution in a manner that seeks to
avoid the Secretary’s review is
considered evidence of a violation of
IGRA.
§ 293.22 May a compact or amendment
include provisions addressing standards
for the operation of gaming activity and
maintenance of the gaming facility?
Yes. A compact or amendment may
include provisions addressing the
Tribe’s standards for the operation of
the gaming activity as well as the Tribe’s
standards for the maintenance of the
gaming facility, including licensing. If a
compact or amendment mandate that
the Tribe adopt standards equivalent or
comparable to the standards set forth in
a State law or regulation, the parties
must show that these mandated Tribal
standards are both directly related to
and necessary for, the licensing and
regulation of the gaming activity.
§ 293.23 May a compact or amendment
include provisions that are directly related
to the operation of gaming activities?
Yes. A compact or amendment may
include provisions that are directly
related to the operation of gaming
activities.
§ 293.24 What factors will be used to
determine whether provisions in a compact
or amendment are directly related to the
operation of gaming activities?
(a) The parties must show that these
provisions described in § 293.23 are
directly connected to Tribe’s conduct of
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class III gaming activities. Examples
include, but are not limited to:
(1) Minimum age for patrons to
participate in gaming;
(2) Transportation of gaming devices
and equipment; or
(3) Exclusion of Patrons.
(b) Mutually beneficial proximity, or
even co-management alone is
insufficient to establish a ‘‘direct
connection’’ between the Tribe’s class
III gaming and adjacent business or
amenities. Additionally, Tribal
infrastructure projects or economic
development activities that are funded
by gaming revenue and may service or
otherwise provide a benefit to the
gaming activity are not directly related
to the conduct of gaming without other
evidence of a direct connection.
(c) Provisions which are not directly
related to the operation of gaming
activities include, but are not limited to:
(1) Limiting third party Tribes’ rights
to conduct gaming;
(2) Treaty rights;
(3) Tobacco sales;
(4) Compliance with or adoption of
State environmental regulation of
projects or activities that are not directly
related to the Tribe’s operation of
gaming activities and maintenance of
the gaming facility;
(5) Requiring memorandum of
understanding, intergovernmental
agreements, or similar agreements with
local governments;
(6) Enforcement of State court orders
garnishing employee wages or patron
winnings;
(7) Granting State court jurisdiction
over tort claims arising from the Tribe’s
conduct of class III gaming activities;
(8) Non-gaming Tribal economic
activities including activities in or
adjacent to the gaming facility,
including but not limited to, restaurants,
nightclubs, hotels, event centers, water
parks, gas stations, and convenience
stores; or
(9) Tribal class I or class II gaming
activities.
(d) The inclusion of provisions which
the parties cannot show a direct
connection to the Tribe’s conduct of
class III gaming activities is considered
evidence of a violation of IGRA.
§ 293.25 What factors will the Secretary
analyze to determine if revenue sharing is
lawful?
(a) A compact or amendment may
include provisions that address revenue
sharing in exchange for a State’s
meaningful concessions resulting in a
substantial economic benefit for the
Tribe.
(b) The Department reviews revenue
sharing provisions with great scrutiny.
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We begin with the presumption that a
Tribe’s payment to a State or local
government for anything beyond
§ 293.19 regulatory fees are a prohibited
‘‘tax, fee, charge, or other assessment.’’
In order for the Department to approve
revenue sharing the parties must show
through documentation, such as a
market study or other similar evidence,
that:
(1) The Tribe has requested, and the
State has offered specific meaningful
concessions the State was otherwise not
required to negotiate;
(2) The value of the specific
meaningful concessions offered by the
State provides substantial economic
benefits to the Tribe in a manner
justifying the revenue sharing required
by the compact; and
(3) The Tribe is the primary
beneficiary of the gaming, measured by
projected revenue to the Tribe against
projected revenue shared with the State;
(c) The inclusion of revenue sharing
provisions to the State that is not
justified by meaningful concessions of
substantial economic benefit to the
Tribe is considered evidence of a
violation of IGRA.
§ 293.26 May a compact or extension
include provisions that limit the duration of
the compact?
Yes. However, IGRA anticipates
compacts are long-term agreements
between a Tribe and a State. These
agreements reflect carefully negotiated
compromises between sovereigns. A
refusal to negotiate a long-term compact,
or a short-term extension of at least one
year to allow for negotiations to
continue, is considered evidence of a
violation of IGRA.
§ 293.27 May a compact or amendment
permit a Tribe to engage in any form of
class III gaming activity?
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Yes. If the State allows any form of
class III gaming, then the State is
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regulating all forms of class III gaming.
A State’s refusal to negotiate in a
compact over all forms of class III
gaming, not prohibited in the State, is
considered evidence of a violation of
IGRA.
§ 293.28 May any other contract outside of
a compact regulate Indian gaming?
No. Any contract or other agreement
between a Tribe and a State or its
political subdivisions which seeks to
regulate a Tribe’s right to conduct
gaming—as limited by IGRA—is a
gaming compact that must comply with
IGRA and be submitted for review and
approval by the Secretary. A Tribe may
submit any agreement between the Tribe
and the State or its political
subdivisions, mandated or required by a
compact or amendment, which includes
provisions for the payment from a
Tribe’s gaming revenue or restricts or
regulates a Tribe’s use and enjoyment of
its Indian Lands, including a Tribe’s
conduct of gaming, for a determination
if the agreement is a compact or
amendment under § 293.4(c).
§ 293.29 May a compact or amendment
include provisions addressing Statewide
remote wagering or internet gaming?
Yes. A compact or amendment
consistent with § 293.17 may include
provisions addressing Statewide remote
wagering or internet gaming that is
directly related to the operation of
gaming activity on Indian lands. A
compact may specifically include
provisions allocating State and Tribal
jurisdiction over remote wagering or
internet gaming originating outside
Indian lands where:
(a) State law and/or the compact or
amendment deem the gaming to take
place, for the purposes of State and
Tribal law, on the Tribe’s Indian lands
where the server accepting the wagers is
located;
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74947
(b) The Tribe regulates the gaming;
and
(c) The player initiating the wager is
not located on another Tribe’s Indian
lands.
§ 293.30 What effect does this part have
on pending requests, final agency
decisions already issued, and future
requests?
(a) Compacts and amendments
pending on [EFFECTIVE DATE OF
FINAL RULE], will continue to be
processed under 25 CFR part 293,
promulgated on December 5, 2008, and
revised June 4, 2020, unless the
applicant requests in writing to proceed
under this part. Upon receipt of such a
request, the Secretary shall process the
pending compact or amendment under
this part.
(b) This part does not alter final
agency decisions made pursuant to this
part before [EFFECTIVE DATE OF
FINAL RULE].
(c) All compacts and amendments
submitted after [EFFECTIVE DATE OF
FINAL RULE] will be processed under
this part.
§ 293.31 How does the Paperwork
Reduction Act affect this part?
The information collection
requirements contained in this part have
been approved by the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act of 1995,
44 U.S.C. 3507(d), and assigned control
number 1076–0172. A Federal agency
may not conduct or sponsor, and you
are not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number.
Bryan Newland,
Assistant Secretary—Indian Affairs.
[FR Doc. 2022–25741 Filed 12–5–22; 8:45 am]
BILLING CODE 4337–15–P
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[Federal Register Volume 87, Number 233 (Tuesday, December 6, 2022)]
[Proposed Rules]
[Pages 74916-74947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25741]
[[Page 74915]]
Vol. 87
Tuesday,
No. 233
December 6, 2022
Part IV
Department of the Interior
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Bureau of Indian Affairs
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25 CFR Part 293
Class III Tribal State Gaming Compacts; Proposed Rule
Federal Register / Vol. 87, No. 233 / Tuesday, December 6, 2022 /
Proposed Rules
[[Page 74916]]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 293
[2231A2100DD/AAKC001030/A0A501010.999900]
RIN 1076-AF68
Class III Tribal State Gaming Compacts
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Proposed rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) seeks input on changes to
its regulations governing the review and approval of Tribal-State
gaming compacts. The revisions would add factors and clarify how the
Department reviews ``Class III Tribal-State Gaming Compacts'' (Tribal-
State gaming compacts or compacts).
DATES: Interested persons are invited to submit comments on or before
March 1, 2023.
ADDRESSES: You may submit comments by any one of the following methods.
Federal eRulemaking Portal: Please upload comments to
https://www.regulations.gov by using the ``search'' field to find the
rulemaking and then following the instructions for submitting comments.
Email: Please send comments to [email protected] and
include ``RIN 1076-AF68, 25 CFR part 293'' in the subject line of your
email.
Mail: Please mail comments to Indian Affairs, RACA, 1001
Indian School Road NW, Suite 229, Albuquerque, NM 87104.
FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of
Regulatory Affairs and Collaborative Action (RACA), Office of the
Assistant Secretary--Indian Affairs; Department of the Interior,
telephone (202) 738-6065, [email protected].
SUPPLEMENTARY INFORMATION: This proposed rule is published in exercise
of authority delegated by the Secretary of the Interior to the
Assistant Secretary--Indian Affairs (Assistant Secretary; AS-IA) by 209
DM 8.
Table of Contents
I. Statutory Authority
II. Executive Summary
III. Background
IV. Summary of Comments Received
A. General Comments
B. Section Comments
V. Summary of Changes by Section
A. Proposed Subpart A--General Provisions and Scope
B. Proposed Subpart B--Submission of Tribal-State Gaming
Compacts
C. Proposed Subpart C--Secretarial Review of Tribal-State Gaming
Compacts
D. Proposed Subpart D--Scope of Tribal-State Gaming Compacts
VI. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
B. Regulatory Flexibility Act
C. Congressional Review Act (CRA)
D. Unfunded Mandates Reform Act of 1995
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act (NEPA)
K. Effects on the Energy Supply (E.O. 13211)
L. Clarity of This Regulation
M. Public Availability of Comments
I. Statutory Authority
In enacting IGRA, Congress delegated authority to the Secretary to
review compacts to ensure that they comply with IGRA, other provisions
of Federal law that do not relate to jurisdiction over gaming on Indian
lands, and the trust obligations of the United States. 25 U.S.C.
2710(d)(8)(B)(i)-(iii).
II. Executive Summary
The Department of the Interior (Department) is considering
revisions to its regulations governing the review and approval of
Tribal-State gaming compacts (25 CFR part 293). The revisions would add
factors and clarify how the Department reviews ``Class III Tribal-State
Gaming Compacts'' (Tribal-State gaming compacts or compacts).
The Department's current regulations do not identify the factors
the Department considers; rather, those factors are contained in a
series of decision letters issued by the Department dating back to
1988. Evolution in the gaming industry and ongoing litigation highlight
the need for the Department to clarify how it will analyze Tribal-State
gaming compacts to determine whether they comply with the Indian Gaming
Regulatory Act of 1988 (IGRA), 25 U.S.C. 2701, et. seq., other
provisions of Federal law that does not relate to jurisdiction over
gaming on Indian lands, or the trust obligations of the United States
to Indians.
III. Background
In 1988 the Indian Gaming Regulatory Act acknowledged that many
Tribes were already engaged in gaming, and placed limits on Tribes'
sovereign right to conduct gaming. It sought to ensure that Indian
Tribes are the primary beneficiaries of the gaming operation, but also
authorized State governments to play a limited role in the regulation
of class III Indian gaming by negotiating agreements with Tribes called
``Class III Tribal-State Gaming Compacts'' (class III gaming compacts
or compacts). Congress sought to strike a balance between Tribal
sovereignty and States' interests in regulating gaming and ``shield it
from organized crime and other corrupting influences.'' 25 U.S.C.
2702(2).
At the time of IGRA's enactment, Indian gaming represented an
approximately $121 million segment of the total United States gaming
industry, while Nevada casinos reported approximately $4.1 billion in
gross gaming revenue.\1\ By the end of fiscal year 2021, Indian gaming
represented an approximately $39 billion segment of the total United
States gaming industry, with commercial gaming reporting $53
billion.\2\ In the Casino City's Indian Gaming Industry Report 2018
Edition, Allen Meister, Ph.D. of Meister Economic Consulting, estimated
that Indian Gaming gross gaming revenue for 2016 of approximately $31.5
billion represented a total economic contribution of $105.4 billion
across the U.S. economy.
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\1\ See, e.g., ``The Economic Impact of Tribal Gaming: A State-
By-State Analysis,'' by Meister Economic Consulting and American
Gaming Association dated November 8, 2018.
\2\ See, e.g., ``The Nation Indian Gaming Commission's annual
gross gaming revenue report for 2021;'' see also American Gaming
Association's press release ``2021 Commercial Gaming Revenue
Shatters Industry Records, reaches $53B.''
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In line with the growth in Indian gaming, State licensed commercial
gaming and State lotteries have also experienced growth. In the early
1980's when Congress began considering legislation addressing Indian
gaming, two States had legalized commercial casino gaming and seventeen
had State run lotteries. By 2017, twenty-four States had legalized
commercial casino gaming resulting in approximately 460 commercial
casino locations, excluding locations with State licensed video lottery
terminals, animal racetracks without gaming machines, and card rooms.
In 2017, the gross gaming revenue for the commercial casino industry
represented approximately $40.28 billion and generated approximately
$9.2 billion in gaming tax revenue. Further, 44 States were operating
State lotteries in 2017.
The expansion of State lotteries and State licensed commercial
gaming can place Tribes and States in direct competition for market
share. Also, advancements in gaming technology and changes in State and
Federal gaming law since the passage of IGRA
[[Page 74917]]
has shaped the compact negotiation process. As a result, class III
gaming compacts have expanded in scope and complexity as the parties
seek mutually beneficial provisions. However, IGRA did not anticipate
the compact negotiation process would be between competitors, rather
sovereign governments seeking to regulate gaming.
Through IGRA, Congress required Tribes to enter into a compact with
a State to conduct class III gaming. 25 U.S.C. 2710(d)(1)(C). IGRA
requires States to negotiate class III gaming compacts in good faith,
limits the scope of bargaining for class III gaming compacts, and
prohibits States from using the process to impose any tax, fee, charge,
or other assessment on Tribal gaming operations. 25 U.S.C.
2710(d)(3)(A); 2710(d)(3)(C); and 2710(d)(4).
Under IGRA, the Department has 45 days to complete its review and
either approve or disapprove a class III gaming compact. If the
Department takes no action within that 45-day period, the Tribal-State
gaming compact is considered approved by operation of law--to the
extent that it is consistent with IGRA. In order for a compact to take
effect, notice of its approval must be published in the Federal
Register.
The regulations that codify the Department's review process for
Tribal-State gaming compacts are found at 25 CFR part 293 and were
promulgated in 2008 (``2008 Regulations''). 73 FR 74004 (Dec. 5, 2008).
The Department's 2008 Regulations were designed to ``address[es] the
process for submission by Tribes and States and consideration by the
Secretary of Class III Tribal-State Gaming Compacts, and [are] not
intended to address substantive issues.'' 73 FR 74004-5. The
Department's consideration of substantive issues appears in a number of
decision letters. In addition, a body of case law has developed
addressing the appropriate boundaries of class III gaming compacts.
Through this rule making, the Department seeks to codify longstanding
Departmental policies and interpretation of case law in the form of
substantive regulations which would provide certainty and clarity on
how the Secretary will review certain provisions in a compact.
On March 28, 2022, the Department published a Dear Tribal Leader
Letter announcing Tribal consultation pursuant to the Department's
consultation policy and under the criteria in E.O. 13175, regarding
proposed changes to 25 CFR part 293. The Department held two listening
sessions and four formal consultation sessions. The Department also
accepted written comments until June 30, 2022.
The Dear Tribal Leader Letter included a Consultation Draft of the
proposed revisions to 25 CFR part 293 (hereinafter Consultation Draft);
a Consultation Summary Sheet of Draft Revisions to part 293; and a
redline reflecting proposed changes to the 2008 Regulations. The Dear
Tribal Leader Letter asked for comments on the Consultation Draft as
well as responses to seven consultation questions.
The Department received a number of written and verbal comments
from Tribal leaders and Tribal advocacy groups. The Department also
received written comments from non-Tribal entities which are not
addressed in the Tribal consolation comment and response but will be
included and addressed as part of the public comment record.
IV. Summary of Comments Received
A. General Comments
Several commenters commented on the process and timing of the
proposed rulemaking process. Some requested additional consultations
during the rulemaking process, some requested the Department engage in
extensive consultations equating to negotiated rulemaking, and others
encouraged the Department to proceed with the rulemaking expeditiously.
The Department acknowledges the comments. The Department seeks to
balance robust consultation with expeditious processing of the
rulemaking. The Department held four virtual consultation sessions, two
in-person listening sessions, and is providing additional opportunities
for comment on the proposed regulations, which reflect the significant
input of Tribal leaders during the scheduled consultation sessions and
their written comments.
A number of commenters responded to the Department's first
consultation question: ``[d]o the draft revisions increase certainty
and clarity in the Secretary's compact review process? Are there
additional ways to increase certainty and clarity?'' Commenters
expressed support for the proposed revisions to part 293 and noted the
Consultation Draft appeared to codify longstanding Departmental
policies and interpretation of case law in the form of substantive
regulations which would provide certainty and clarity on how the
Secretary will review certain provisions in a compact. Commenters also
provided a number of specific suggested improvements to specific
propose sections, including expressing concerns that some provisions as
written are overly broad or vague and may cause confusion. Other
commenters cautioned the Department should not apply the proposed
regulations in a rigid or paternalistic manner and when possible, defer
to a Tribe's sovereign decision making.
The Department acknowledges the comments. The Department seeks to
clarify and enforce the proper scope of compacts negotiated under IGRA
while deferring to and respecting Tribes' sovereign decision making.
The proposed regulations codify existing limitations on Tribes and
States negotiating compacts pursuant to IGRA. The Department has
addressed specific suggested improvements in the relevant sections
below including narrowing some provisions.
A number of commenters responded to the Department's second
consultation question: ``[d]o the draft revisions provide sufficient
guidance to parties engaged in compact negotiations? Are there ways to
provide additional guidance?'' Commenters expressed support for the
Consultation Draft and opined that the proposed new substantive
provisions would improve the guidance for negotiating parties.
Commenters also recommended the Department include in the proposed rule
a codification of the Department's longstanding practice of offering
``technical assistance'' to negotiating parties. Other commenters noted
``sufficient guidance'' was a laudable but ultimately unachievable
goal. One commenter expressed concern with the Consultation Draft and
argued the proposed substantive provisions are cumbersome, unnecessary,
and would result in increased requests for technical assistance as
Tribes negotiate with State and local governments as required by IGRA.
The Department acknowledges the comments. The Department addresses
technical assistance in a separate comment summary and response below.
The Department notes the proposed substantive provisions reflect a
codification of longstanding Department policy and case law, including
the proper scope of a compact. The Department notes intergovernmental
agreements between Tribes and States, or local governments can be
beneficial, however, Congress provided a narrow scope of topics Tribes
and States may include when negotiating a Tribal-State gaming compact.
Commenters requested clarification on whether the proposed
regulations would impact ongoing negotiations.
The Department notes the Consultation Draft, and the proposed
[[Page 74918]]
regulations are prospective and reflect a codification of existing
Departmental policy, past precedent, and case law. The Consultation
Draft has been made public and the Department encourages Tribes and
States that are engaged in negotiations to review the Consultation
Draft and the proposed regulations.
A number of commenters requested the Department clarify the
effective date of the proposed substantive provisions and questioned
whether they would be retroactive. Commenters requested clarification
when parties may submit under the new regulations once promulgated. One
commenter provided proposed text for a section addressing the effective
date and grandfather clause.
The Department has accepted the proposed regulatory text in part
and added a section to the proposed rule addressing the effective date
of the proposed regulations. The new section is numbered Sec. 293.30.
IGRA limits the review period to approve or disapprove compacts or
amendments to 45 days. As a result, the Department cannot retroactively
approve or disapprove compacts or amendments after the 45-day review
period has run.
A number of commenters questioned the Secretary's authority to
promulgate substantive regulations interpreting IGRA's scope of compact
negotiations. Commenters further questioned the Secretary's authority
to determine evidence of bad faith noting IGRA delegated that role to
the courts and requested clarification on how the Secretary will find
bad faith.
The Secretary has authority to promulgate these regulations on the
procedures for the submission and review of compacts and amendments
based on the statutory delegation of powers contained in IGRA and 25
U.S.C. 2, and 9. In enacting IGRA, Congress delegated authority to the
Secretary to review compacts to ensure that they comply with IGRA,
other provisions of Federal law that do not relate to jurisdiction over
gaming on Indian lands, and the trust obligations of the United States.
25 U.S.C. 2710(d)(8)(B)(i)-(iii). IGRA establishes the parameters for
topics that may be the subject of compact and amendment negotiations
and included in compacts. Thus, in reviewing submitted compacts and
amendments, the Secretary is vested the authority to determine whether
the compacts contain impermissible topics. The Department recognizes
that section 2710(d)(7)(A)(I) vests jurisdiction in district courts
over any causes of action . . . arising from the failure of a State . .
. to conduct [ ] negotiations in good faith.'' Therefore, the
Department has replaced the phrase ``evidence of bad faith'' with the
phrase ``evidence of a violation of IGRA'' in the proposed rule. This
change harmonizes the Department's regulations, with IGRA's plain
language, is prescribing those topics, as addressed by IGRA, that may
provide evidence of a violation of IGRA and which a court may find as
evidence of bad faith negotiations to assist Tribes with their
negotiations.
A number of commenters requested the Department include a
``Seminole Fix'' in the proposed rule, referencing the decision by
Supreme Court of the United States in Seminole Tribe v. Florida, 517
U.S. 44 (1996), holding Congress could not waive a State's sovereign
immunity through IGRA. Some commenters recommended the Department
provide technical amendments to 25 CFR part 291 in response to Texas v.
United States (Traditional Kickapoo Tribe), 497 F.3d 491 (5th Cir.
2007) and New Mexico v. United States (Pueblo of Pojoaque), 854 F.3d
1207 (10th Cir. 2017). Commenters stated the Fifth Circuit and the
Tenth Circuit found part 291 did not provide for an independent forum
to make the threshold finding that the subject State failed to conclude
negotiations in good faith and therefore part 291 was too far adrift
from Congressional intent to be allowed to stand. Other commenters
recommended providing a mechanism for the Department to seek
intervention by the Department of Justice when States raise their 11th
Amendment Immunity to a Tribe's challenge of bad faith negotiations
under IGRA. Commenters noted without a workable Seminole fix, Tribes
are often at the mercy of the States who are often the Tribe's gaming
competitor and seek to undermine Tribal sovereignty. Commenters noted
some Tribes are forced to either accept a State's demand for improper
provisions or revenue sharing, or risk a notice of violation and
closure for operating without a compact.
The Department notes a minority of circuits have invalidated the
Department's part 291 Regulations, which were promulgated to provide
Tribes with Secretarial Procedures in response to the Supreme Court's
decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996),
which found that Congress lacked the authority to subject States to
suits by Indian Tribes under IGRA. The Department is considering all
avenues including technical amendments to part 291. The proposed part
293 regulations reflect the Department's efforts to ensure all Tribes
may benefit from the goals of IGRA while enforcing IGRA's limited scope
of compacts. The inclusion of clear guidance and codification of key
tests as well as articulating situations that may be evidence of a
violation of IGRA and therefore evidence of bad faith negotiations is a
step in this direction. The Department declines to codify a formal
process by which Tribes may submit evidence of bad faith in
negotiations to the Department for its consideration and referral to
the Department of Justice. The Department has long coordinated with the
Department of Justice and the National Indian Gaming Commission
regarding enforcement or non-enforcement of IGRA's requirement that a
Tribe conduct class III gaming pursuant to a compact or secretarial
procedures.\3\ The Department will continue to coordinate with the
Department of Justice and the National Indian Gaming Commission
regarding enforcement of IGRA.
---------------------------------------------------------------------------
\3\ See, e.g., Statement of Indian Gaming in New Mexico, DOJ 95-
459 (August 28, 1995); Statement of Indian Gaming in New Mexico, DOJ
95-553 (October 27, 1995); and Justice Department and California
announce plan for orderly transition to legal Indian Gaming, DOJ 98-
102 (March 6, 1998).
---------------------------------------------------------------------------
Several commenters requested the Department include additional
examples of ``bad faith'' including: take it or leave it compacts; a
State's refusal to offer substantially similar compacts to all Tribes
in the State; and a State's refusal to negotiate a compact or amendment
until an existing compact is set to expire.
The Department acknowledges these may be examples of bad faith
negotiations under IGRA. The Department has included in the proposed
rule several provisions which the Department considers to be evidence
of a violation of IGRA. The Department will continue to coordinate with
the Department of Justice and the National Indian Gaming Commission
regarding enforcement of IGRA.
Several commenters requested the Department provide notice to the
Department of Justice when a compact is disapproved and request the
Department of Justice file a bad faith lawsuit against the State on
behalf of the Tribe.
On its face, the disapproval of a compact or amendment is not
evidence of bad faith negotiations. If, however, the Tribe provides
evidence that the State forced the Tribe to include the disapproved
provision, the Department may request the Department of Justice file a
bad faith lawsuit on behalf of the Tribe in certain situations.
Several commenters requested the Department publish all compact
decision letters as well as deemed approval letters in an accessible
index.
[[Page 74919]]
The Department acknowledges the comments. The Department strives to
publish all compact decision letters as well as deemed approval letters
on the Office of Indian Gaming's website, which includes an accessible
index.
A number of commenters requested the Department include in the
proposed rule a formal codification of the Office of Indian Gaming's
practice of providing technical assistance to Tribes and States. Some
commenters requested a fixed timeline for the Department to issue a
technical assistance letter. Other commenters requested the Department
include the option for a `legal opinion' or formal Departmental action
in response to some requests for technical assistance.
The Department declines to accept the recommendation. Technical
assistance is neither a `pre-determination' nor `legal guidance,'
rather it is often an explanation of past precedent and interpretation
of case law. The Department notes Tribes and States have presented a
wide range of unique questions to the Office of Indian Gaming, which
may require extensive policy and legal research. Further, depending on
the parties' needs and the scope of their requests, some may prefer
verbal technical assistance over written technical assistance. The
Department will continue to provide technical assistance.
Several commenters discussed their experiences negotiating compacts
with States or seeking to enforce disputes under their compacts. Other
commenters discussed the importance of Indian gaming to their Tribes as
a source of revenue, job growth, and economic self-sufficiency.
The Department acknowledges these comments.
Several commenters discussed legal articles, including work by
former Assistant Secretary--Indian Affairs Kevin Washburn.
The Department acknowledges these comments.
Several commenters recommended the Department quote IGRA's
statutory language rather than paraphrase the statute as that can
result in unintended changes. A commenter recommended the Department
narrowly tailor the proposed substantive provisions. Other commenters
also noted a primary concern is the definition of gaming activity in
Sec. 293.2(d) and used in Sec. 293.23 of the Consultation Draft,
Sec. 293.24 of the proposed draft regulations.
The Department adhered closely to the statutory text in the
Consultation Draft and the proposed substantive provisions codify
longstanding Departmental policy and case law. The Department notes the
term ``gaming activity'' is not defined in IGRA. As discussed below,
the Department has revised the definition of ``gaming activity'' in
Sec. 293.2, as well as addressed it in Sec. 293.24.
Consultation Question: Should the draft revisions include provisions
that facilitate Statewide remote wagering or internet gaming?
A number of commenters responded to the Department's sixth
consultation question: ``[s]hould the draft revisions include
provisions that facilitate Statewide remote wagering or internet
gaming?'' The overwhelming majority of commenters agreed that the
Department should include provisions relating to i-gaming. Several
commenters believe that i-gaming provisions are necessary because
Tribes need to be able to compete in the digital industry. Other
commenters pointed out that the draft revisions should address i-gaming
and provide for its allowance as negotiated between a Tribe and State.
Another commenter explained that IGRA encourages agreements between
sovereigns.
Several other commenters stated that the State law model of i-
gaming is not a substitute for i-gaming under IGRA and Tribes should be
able to engage in internet gaming under IGRA. A handful of comments
also expressed support for the Department's inclusion but questioned
the need to define gaming activity as including the elements of prize,
consideration, and chance, as it could potentially be misconstrued in a
court ruling that requires all three elements to be present on Indian
lands.
Finally, several of the commenters in support of inclusion of i-
gaming also praised the Department's i-gaming analysis in the June 21,
2021, Deemed Approved letter to the Seminole Nation. At least three
commenters also submitted proposed language for the Department to
address i-gaming.
A handful of commenters opposed the Department addressing i-gaming
in the draft revisions. One commenter stated that the issue was not
ripe for inclusion; another stated that i-gaming was subject to State
law and there's no case law to state that the Secretary has power over
this topic; another thought that the issue is an unresolved matter of
Federal law and the Department should not weigh in; and another
believed there is a lack of ability to regulate i-gaming and would harm
brick and mortar facilities.
Two commenters did not expressly support or oppose the inclusion of
i-gaming; one noted that the Department should further consult with
Tribes before making any decisions and the other noted that while the
Department's views on the legality of such a provision would be
helpful, it is unclear what further provisions would be proposed. Other
commenters shared personal experiences and/or legal analysis which
helped inform their decision-making.
The Department acknowledges the comments and has added a new
section to the proposed rule ``Sec. 293.29 May a compact of amendment
include provisions addressing Statewide remote wagering or internet
gaming,'' addressing Statewide remote wagering and internet gaming. The
IGRA provides that a Tribe and State may negotiate for ``the
application of the criminal and civil laws and regulations of the
Indian Tribe or the State that are directly related to, and necessary
for, the licensing and regulation of such activity'' and ``the
allocation of criminal and civil jurisdiction between the State and the
Indian Tribe necessary for the enforcement of such laws and
regulations.'' 25 U.S.C. 2710(d)(3)(c)(i)-(ii). The Department's
position is that the negotiation between a Tribe and State over
Statewide remote wagering or i-gaming falls under these broad
categories of criminal and civil jurisdiction. Accordingly, provided
that a player is not physically located on another Tribe's Indian
lands, a Tribe should have the opportunity to engage in this type of
gaming pursuant to a Tribal-State gaming compact.
B. Section Comments
Comments on Sec. 293.1 What is the purpose of this part?
Several commenters recommended the Department revise Sec. 293.1(a)
by including the word ``or'' after the word ``and'' so that the
relevant provision would read ``[p]rocedures that Indian Tribes and/or
States must use when submitting . . . .'' The commenters suggested
change would clarify either party may submit compacts or compact
amendments.
The Department has accepted this suggested revision and notes that
Sec. 293.6 explains either the Tribe or the State may submit the
compact or amendment.
Several commenters supported the proposed revisions to Sec. 293.1.
The Department acknowledges the comment.
Comments on Sec. 293.2 How are key terms defined in this part?
Several commenters recommended the Department retain the 2008
Regulation's introductory text for Sec. 293.2 ``[f]or purposes of this
part, all
[[Page 74920]]
terms have the same meaning as set forth in the definitional section of
the Indian Gaming Regulatory Act of 1988, 25 U.S.C. 2703 and any
amendments thereto.''
The Department declines to accept the recommendation to retain the
2008 Regulation's introductory text for Sec. 293.2. The Department
proposed changes to the introductory text in Sec. 293.2 to improve
clarity.
One commenter recommended the phrasing ``[i]n addition to terms
already defined in IGRA, this part defines the following additional key
terms.''
The Department declines to accept the recommendation. One term
``Indian Tribe'' is defined in IGRA at 25 U.S.C. 2703(5) and refined
here as ``Tribe.'' The proposed language indicates the defined terms in
Sec. 293.2 are all new or additional terms, which could cause
confusion.
Several commenters expressed support for the proposed revisions to
Sec. 293.2 and noted the new definitions for key terms are consistent
with IGRA.
The Department acknowledges the comments.
Comments on Sec. 293.2(a)--Amendment
Several commenters suggested the definition of Amendment in Sec.
293.2(a) and as applied in Sec. 293.4 is too broad. Other commenters
suggested the Department clarify the definition of Amendment to exclude
strictly administrative or procedural amendments from review under
Sec. 293.4.
The Department has revised Sec. 293.4 to address these and related
comments on that section.
One commenter requested the Department revise the definition of
Amendment to include ``or an amendment to secretarial procedures
prescribed under 25 U.S.C. 2710(d)(7)(B)(vii) when such amendment is
agreed upon by the Indian Tribe and State.'' The commenter explained
this addition would clarify that any such agreements are treated as a
``compact'' or ``compact amendment'' for the purposes of IGRA's 45-day
review period.
The Department has accepted the recommendation and include the
proposed text in Sec. 293.2(a).
Comments on Sec. 293.2(c)--Extension
Several commenters expressed support for the revised definition of
Extension in Sec. 293.2(c).
The Department acknowledges the comments.
One commenter recommended the Department remove the words ``or
amendment'' from the definition of Extension and noted that Sec. 293.5
does not include the words ``or amendment.''
The Department notes the terms ``Compact'' and ``Amendment'' are
frequently used interchangeably depending on the underlying facts and
needs of the parties to the agreement. For that reason, the Department
used the phrase ``compact or amendment'' throughout the Consultation
Draft of part 293. The Department has made a conforming edit to Sec.
293.5.
Comments on Sec. 293.2(d)--Gaming Activity
Several commenters recommended the Department revise the definition
of ``gaming activity or gaming activities'' in Sec. 293.2(d) by
replacing the word ``prize'' with the word ``reward.'' The commenters
explained the term `reward' is the more commonly used term in the
Tribal gaming industry.
The Department accepted the recommended revision to Sec. 293.2(e),
in part. The definition of gaming activity or gaming activities now
reads ``[g]aming activity or gaming activities means the conduct of
class III gaming involving the three required elements of change,
consideration, and prize or reward.''
Several commenters expressed concern that including a definition of
Gaming Activity in part 293 could be construed to require all elements
of the gaming activity to occur on a Tribe's Indian lands thereby
precluding Tribes from negotiating Statewide mobile or i-gaming in
compacts.
The Department acknowledges this concern and has included a new
proposed Sec. 292.29 which addresses i-gaming in compacts.
Comments on Sec. 293.2(e)--Gaming Facility
One commenter recommended the Department include a defined term for
``gaming spaces'' consistent with the rational in the Department's 2021
disapprovals of three California compacts. The commenter explained that
including ``gaming spaces'' defined term would resolve a logical
conflict between the Department's definition of gaming facility and 25
U.S.C. 2710(d)(3)(C)(vi), which permits a compact to include
``standards for the . . . maintenance of the gaming facility, including
licensing.'' The commenter explained that by defining gaming facility
as the whole structure for the purposes of building maintenance under
the second clause of 25 U.S.C. 2710(d)(3)(C)(vi); and gaming spaces for
section 2710(d)(3)(C)(i), (ii), the first clause of (vi), and (vii),
would provide parties with clarity regarding the appropriate limits of
State oversite under IGRA.
The Department accepted the recommendation and has included gaming
spaces as a defined term and revised the definition of gaming facility
by moving the clause addressing the gaming spaces to the new paragraph
(f) gaming spaces. The revised definition of gaming facility addresses
the commenter's concern regarding building maintenance and licensing
under the second clause of 25 U.S.C. 2710(d)(3)(C)(vi).
A number of commenters addressed the clause addressing the gaming
spaces in the proposed definition of gaming facility in Sec. 293.2(e).
Several commenters recommended the Department replace the phrase
``the spaces that are necessary for conduct of gaming'' with the phrase
``the spaces that are directly related to, and necessary for, the
operation of class III gaming activities.'' Commenters explained that
phrasing is more consistent with how the Department has described the
appropriate reach of the term ``gaming facility'' in a compact.
Several commenters recommended the Department replace the phrase
``including the casino floor'' with the phrase ``such as the casino
floor.'' Commenters explained this change would permit the parties to
determine which areas should be properly included and which areas
should properly be excluded.
Several commenters recommended the Department revise the phrase
``class III gaming device, and storage areas'' by adding the word
``and'' before the phrase and deleting the comma after the word
``device'' so that the phrase would read ``and class III gaming devices
and supplies storage areas.'' Another commenter recommended adding the
work ``gaming'' before the word ``supplies'' to read ``gaming supplies
storage areas.''
Several commenters recommended adding the phrase ``and other
secured areas'' at the end of the definition.
Several commenters recommended clarifying that the definition of
gaming facility excludes areas that merely provide amenities to gaming
patrons--hotels, restaurants, and other spaces that are not directly
used for the conduct of class III gaming.
The Department has accepted the recommended revisions to the clause
addressing the gaming spaces in the definition of gaming facility in
part. The new definition of gaming spaces incorporates the suggested
revisions and continues to seek the smallest physical footprint of
potential State jurisdiction over a Tribe's land under IGRA. This
[[Page 74921]]
definition is intended to codify the Department's long-standing narrow
read of 25 U.S.C. 2710(d)(3)(C) as applying only to the spaces in which
the operation of class III gaming actually takes place. The revised
definition of gaming facility addresses building maintenance and
licensing under the second clause of 25 U.S.C. 2710(d)(3)(C)(vi) and is
intended to be narrowly applied to only the building or structure where
the gaming activity occurs.\4\
---------------------------------------------------------------------------
\4\ See, e.g., Letter to the Honorable Peter S. Yucupicio,
Chairman, Pascua Yaqui Tribe of Arizona, from the Director, Office
of Indian Gaming, dated June 15, 2012, at 5, and fn. 9, discussing
the American Recovery & Reinvestment Act of 2009 and the IRS's
``safe harbor'' language to reassure potential buyers that tribally-
issued bonds would be considered tax exempt by the IRS because the
bonds did not finance a casino or other gaming establishment.
---------------------------------------------------------------------------
One commenter recommended the Department include the term
``structure'' to reflect the diversity of structures Tribes utilize for
the conduct of Gaming.
The Department has accepted the recommended revision to the
definition of gaming facility. The definition of gaming facility in
Sec. 293.2(e) now reads ``the physical building or structure, where
the gaming activity occurs.
Several commenters recommended the Department include a definition
for the term ``project'' in Sec. 293.2, as part of the definition of
the term ``gaming facility'' in Sec. 293.2(e). The commenters
explained that some States have used the term ``project'' or ``gaming
project'' in conjunction with ``gaming facility'' to extend State
oversight and taxation through triggering extensive environmental
reviews and impact or mitigation payments when a Tribe seeks to develop
or expand a ``gaming facility.''
The Department declines to include a definition for the term
``project.'' Proposed revisions to part 293, including the definitions
of gaming facility and gaming spaces, and proposed substantive
provisions in Sec. Sec. 293.24, 293.25, and 293.28 build on the
Department's narrow read of the permissible scope of a Tribal State
compacts, and is consistent with the Department's disapproval of
compacts from the State of California in part due to expansive
definitions of ``gaming facility'' and ``project.''
Comments on the Term Necessary for
Several commenters recommended the Department define or otherwise
articulate a standard for interpreting the term ``necessary for'' as it
is used in 25 U.S.C. 2710(d)(3)(C) and 25 CFR part 293. The commenters
further recommended the Department defer to a Tribe's reasonable
determination of which provisions in a compact are ``necessary for the
operation of class III gaming.''
The Department notes there is not a strict definition for
``necessary,'' therefore, we must look to the context in which it is
used in the statute. As used in IGRA, ``necessary'' is a limiting
phrase, or one that employs the common law use of ``necessary'' in the
strict sense of indispensable or essential.\5\ When applying provisions
which incorporate ``necessary for'' in IGRA and in part 293 the
Department will ask ``is this provision absolutely needed for the Tribe
to operate class III gaming?''
---------------------------------------------------------------------------
\5\ ``Like ordinary English speakers, the common law uses
`necessary' in this strict sense of essential or indispensable.''
Vorchheimer v. Philadelphian Owners Ass'n, 903 F.3d 100, 106 (3d
Cir. 2018) (discussing Congress' use of ``necessary'' in legislation
where no definition provided). ``[W]hen Congress wants to loosen
necessity to mean just `sufficiently important,' it uses the phrase
`reasonably necessary.' '' Id. at 107; see Ayestas v. Davis, __ U.S.
__, 138 S. Ct. 1080, 1093 (2018) (``[18 U.S.C. 3599] appears to use
the term `necessary' to mean something less than essential. The
provision applies to services that are `reasonably necessary,' but
it makes little sense to refer to something as being `reasonably
essential.' '').
---------------------------------------------------------------------------
Comments on Sec. 293.3 What authority does the Secretary have to
approve or disapprove compacts and amendments?
Several commenters supported the proposed revisions to Sec. 293.3,
but questioned if the internal cross-reference to Sec. 293.14 is
accurate.
The Department acknowledges the comments. The internal cross-
reference to Sec. 293.14 appears in the current Sec. 293.3 and the
redline reflects a strikeout of ``293.14'' with the updated cite to
Sec. 293.15.
Several commenters recommend that Sec. 293.3 cite the statutory
authority of the Secretary to approve or disprove a compact or
amendment. Commenters noted other sections in part 293 address the
baseline requirements of compact execution and submissions.
The Department has revised Sec. 293.3 to remove references to the
signatures of the parties.
One commenter recommended the Department revise Sec. 293.3 by
adding the phrase: ``and an amendment resulting from another agreement,
including, but not limited to, agreements, other documents, dispute
resolutions, settlement agreements, or arbitration decisions.''
The Department declines to include the proposed language in Sec.
293.3. The Department notes revisions to Sec. Sec. 293.4, 293.7, and
293.21, address amendments caused by dispute resolution agreement,
arbitration award, settlement agreement, or other resolution of a
dispute outside of Federal court.
Several commenters recommended the Department revise Sec. 293.3 by
adding the phrase: ``and applicable approvals of both parties.''
The Department declines to include the proposed language in Sec.
293.3. The Department notes revisions to Sec. Sec. 293.7 and 293.8
address the execution and approval requirements for a compact or
amendment.
Comments on Sec. 293.4 Are compacts and amendments subject to review
and approval?
Several commenters recommended the Department revise Sec. 293.4 by
moving the references to ``agreements or other documents'' from
paragraph (a) to paragraph (b) and removing references to the State
including its political subdivisions from paragraph (b). Commenters
noted these changes would allow a Tribe to determine which documents
are not `amendments.'
The Department accepted the proposed revisions in part. The
Department notes that proposed Sec. 293.21 addresses compact
amendments arising from dispute resolution procedures and proposed
Sec. 293.27 addresses intergovernmental agreements or memoranda of
understanding between the Tribe and the State or its political
subdivisions. The Department notes the Sec. 293.4 determination
process is open to either party consistent with the submission
procedures in Subpart B.
Several commenters recommended the Department split Sec. 293.4(b)
into a new section addressing ancillary agreements. The commenters
noted this proposed section would strike a balance between documents
that amend a compact and are properly subject to Secretarial review and
documents or agreements between Tribal regulators and State regulators
addressing technical implementation of compact terms. The proposed new
section would be titled ``[w]hen are ancillary agreements and documents
subject to review and approval?'' The proposed new section would
include three new paragraphs and contain revisions to the text of Sec.
293.4(b).
The Department accepted the proposed revisions in part and
incorporated the proposed ancillary agreement test in Sec. 293.4(b).
Several commenters requested the Department codify a streamlined
approach for review and approval of technical amendments.
The Department declines to provide a separate ``streamlined''
procedure for
[[Page 74922]]
technical amendments. IGRA provides the Secretary with a 45-day review
period, which also applies to technical amendments.
Comments on Sec. 293.4(a)
Several commenters questioned if the Secretary's authority under
IGRA extended to `non-compact' agreements between Tribes and States or
local governments. Commenters noted that Tribes often find agreements
with local governments addressing a myriad of topics--including
payments in leu of taxes, service agreements, and mutual aid
agreements--are mutually beneficial and in the Tribe's best interest.
Commenters further questioned the Department's inclusion of ``[a]ny
agreement which includes provisions for the payment from a Tribe's
gaming revenue . . .'' in Sec. 293.27 as requiring review and
determination under Sec. 293.4(c), if such agreements are a
``compact'' or ``amendment.''
The Department declines to accept the comments. The Department
notes some States have included a requirement in compacts for the Tribe
to enter into agreements with local governments often addressing
payments by the Tribe for the loss of tax revenue. Some of these
agreements are designed to avoid Secretarial review and impose
impermissible taxes or other assessments on the Tribes. IGRA at 25
U.S.C. 2710(b)(2)(B) permits a Tribe to utilize net gaming revenue to
fund the Tribe's government, provide for general welfare of the Tribe
and its members, promote Tribal economic development, to donate to
charitable organizations, and help fund operations of local
governments. However, IGRA then at 25 U.S.C. 2710(d)(4) prohibits a
State and its political subdivisions from imposing any ``tax, fee,
charge, or other assessment'' on the Tribe for engaging in class III
gaming. The proposed Sec. 293.4(c) process is designed to ensure these
agreements receive proper scrutiny and are not the result of a State
improperly demanding--through its political subdivisions--a tax, fee,
charge, or other assessment.
Several commenters requested the Department narrow the scope of
Sec. 293.4. The commenters explained that many compacts anticipate the
utilization of ancillary agreements between the Tribe and the State to
interpret specific compact terms for the purpose of effective operation
and regulation of the day-to-day minutiae of operating class III
gaming. Commenters noted that the consultation draft of Sec. 293.4
could be construed to capture internal controls, memorandum of
understanding between Tribal and State regulatory and licensing bodies,
and other documents utilized by the parties to effectively and
efficiently ensure the Tribe's class III gaming operation is in
compliance with the compact and with IGRA.
The Department has revised Sec. 293.4 to clarify which documents
the Department considers within the definition of ``amendment'' subject
to Secretarial review.
Other commenters noted some compacts include mechanisms for the
Tribe and the State to add games pursuant to changes in State or
Federal law without amending the Compact and noted that the
consultation draft of Sec. 293.4 could be construed to capture the
Tribe and the State's documentation of games added pursuant to changes
in State or Federal law.
The Department has revised Sec. 293.4 to clarify which documents
the Department considers within the definition of ``amendment'' subject
to Secretarial review.
Several commenters requested the Department revise Sec. 293.4(a)
for consistency with Sec. 293.21 by exempting Federal court decisions
from Secretarial review as an `amendment.'
The Department has revised Sec. 293.4 for consistency with Sec.
293.21 to clarify which documents the Department considers within the
definition of ``amendment'' subject to Secretarial review.
Several commenters raised concerns that the Department's inclusion
of ``dispute resolution, settlement agreements, or arbitration
decisions'' within Sec. 293.4's list of documents subject to
Secretarial review may discourage parties from utilizing potentially
cost-effective dispute resolution methods and would increase burdens on
the parties. The commenters argued the expansion of Secretarial review
to include dispute resolution, settlement agreements, or arbitration
decisions may increase uncertainty. Commenters also recommended the
Department defer to a Tribe's determination if a document warrants
Departmental review.
The Department has revised Sec. 293.4 for consistency with Sec.
293.21 to clarify which documents the Department considers within the
definition of ``amendment'' subject to Secretarial review.
Other commenters expressed support for the Department's inclusion
of ``dispute resolution, settlement agreements, or arbitration
decisions'' within Sec. 293.4's list of documents subject to
Secretarial review and noted examples of settlement agreements and
arbitration awards which materially change the parties' obligations
under the compact in a manner that may conflict with IGRA and would
otherwise have been considered an amendment subject to Secretarial
review. Commenters noted an example where an arbitration panel decision
added a term to the compact changing the Tribe's revenue sharing
obligation beyond the compact provisions reviewed by the Secretary.
Commenters noted the Tribe determined the arbitration decision amended
the compact and sought Secretarial review but was prevented by the
State's refusal to certify the arbitration decision as an amendment.
The Department acknowledges the concerns raised by the commenters.
The Department notes the proposed changes to part 293 are intended to
address these and similar situations. The Department has revised Sec.
293.4 in response to these comments.
Several commenters requested the Department revise Sec. 293.4(a)
by removing the phrase ``regardless of whether they are substantive or
technical.''
The Department declines the requested revision and notes that
phrase is found in the 2008 Regulations at Sec. 293.4(b). When
promulgating the 2008 Regulations the Department had proposed an
exception for ``technical amendments'' but in response to comments on
the 2008 Notice of Proposed Rulemaking, removed that provision. 73 FR
74005 (Dec. 5, 2008). The Department explained many commenters
questioned how to determine if an amendment was `substantive' and
subject to Secretarial review, or `technical' and not subject to
Secretarial review.
One commenter recommended the Department clarify Sec. 293.4(a) by
moving the words ``agreements or other documents'' after the phrase
``including but not limited to'' along with conforming grammatical
edits.
The Department incorporated the suggested edit in the revised Sec.
293.4(a) and (c).
Comments on Sec. 293.4(b)--Which Has Been Renumbered as Sec. 293.4(c)
The Department has renumbered the proposed Sec. 293.4(b) as Sec.
293.4(c) and comments have been edited to reflect the new section
number.
Several commenters expressed support for the Department's proposed
process in Sec. 293.4(c) to provide parties a determination if an
agreement is a ``compact'' or ``amendment'' and must be submitted for
review and approval by the Secretary. Commenters noted this proposed
process provides Tribes with a similar service as the National Indian
Gaming Commission's ``declination
[[Page 74923]]
letters,'' which determine if an agreement is a ``Management Contract''
requiring approval by the NIGC Chair.
The Department acknowledges the comments.
Several commenters requested the Department amend Sec. 293.4(c) by
including a deadline for the Department to review the submitted
document and to issue a determination letter.
The Department has added a 60-day review period for a determination
under Sec. 293.4.
Other commenters requested the Department clarify if a non-party
may submit a request for a Sec. 293.4(c) determination.
The Department notes the existing 2008 Regulations at Sec. 293.6
address the processes by which the parties to a Compact may submit it
for Secretarial review. In relevant part, Sec. 293.6 states ``either
party [ ] to the compact or amendment can submit.'' The Consultation
Draft of Sec. 293.4(c) utilized similar language and stated, ``either
party may request in writing a determination . . . if their agreement
is a compact or amendment.'' The Department has consistently and will
continue to exclude third parties from the submission and review
process.
Several commenters requested the Department amend Sec. 293.4(c) to
clarify if the Department's determination letter or materials submitted
pursuant to this review would be used by the Department as the basis
for an adverse action against the Tribe. Commenters also requested the
Department include in a Sec. 293.4(c) determination letter a
discussion of any provisions in the underlying document which may lead
to subsequent disapproval as a compact under IGRA.
The Department intends for the Sec. 293.4(c) determination process
to provide parties with improved clarity whether their agreement or
other document is a compact or amendment, without submitting the
document for Secretarial review and approval or disapproval. The
Department historically has provided parties with technical assistance
as well as deemed approval letters which identify problematic
provisions. The Department anticipates a Sec. 293.4(c) determination
letter may include similar guidance; however, the Department declines
to revise Sec. 293.4(c) to require such guidance.
Several commenters requested the Department clarify how and where a
party may submit a request and encouraged the Department to allow
flexibility in submitting such requests.
The Department has revised Sec. 293.9 to clarify that compacts,
amendments, written requests for a determination pursuant to Sec.
293.4(c), or requests for technical assistance must be submitted to the
Office of Indian Gaming at the address listed in Sec. 293.9. The
Department further notes that Sec. 293.9 has been revised to include
the email address ``[email protected]''.
Several commenters requested the Department amend Sec. 293.4(c) to
require the Department's determination letter clearly state in the
introduction of the letter either: ``Yes. This agreement constitutes a
[compact/amendment] requiring secretarial approval'' or ``No. This
agreement does not constitute a [compact/amendment] . . . .''
The Department declines to include the requested requirement within
the regulatory text of Sec. 293.4(c). The Department is required to
utilize plain writing--in other words clear, concise, and well-
organized writing. The Department implements this requirement by
providing a brief summary of the document submitted and the
Department's determination in the introductory section of decision
letters.
Several commenters requested the Department revise the concluding
sentence of Sec. 293.4(c) to state: ``[t]he Department will issue a
letter providing notice of the Secretary's determination.'' Commenters
suggested this would reduce potential ambiguity.
The Department has accepted the requested revision to the
concluding sentence of Sec. 293.4(c).
Comments on Sec. 293.5 Are extensions to compacts or amendments
subject to review and approval?
Several commenters supported the proposed revisions to Sec. 293.5
and noted the revisions reflected the Department's longstanding
practice of treating extensions as a type of amendment which is
exempted from Secretarial approval prior to publication of a notice in
the Federal Register.
The Department acknowledges the comments.
Several commenters requested the Department clarify the
distinctions between an ``amendment'' and an ``extension'' as defined
in Sec. 293.2 and applied in Sec. Sec. 293.4 and 293.5. Commenters
noted an extension may have the effect of changing the ``operation and
regulation'' of a Tribe's Class III gaming activities.
The Department has revised Sec. 293.2(c). The 2008 Regulations
adopted the provision exempting extensions from Secretarial review in
response to a comment on the draft rule, which had proposed to exempt
``technical amendments'' but not substantive amendments or extensions.
See 73 FR 37909 (July 2, 2008) and 73 FR 74005. Extensions are a form
of amendment, which changes only the term of the compact, but not other
provisions in the compact.
One commenter suggested the Department provide a mechanism for a
Tribe to unilaterally extend an existing compact in the event the Tribe
and the State are unable to successfully negotiate an amendment or new
compact. The commenter noted such a mechanism would incentivize the
State to engage in timely good faith negotiations and protect Tribes
from risking the expiration of an existing compact due to a State's
negotiation delays.
The Department appreciates the concern raised by the commenter but
lacks the authority to provide a mechanism for unilateral compact
extensions. We will include this type of provision as a best practice
in providing technical assistance.
Several commenters questioned if the parties to an approved compact
with an automatic renewal provision or automatic extension provision
are subject to Sec. 293.5, when the provisions of the compact are
satisfied thereby extending the compact.
The Department notes compacts may have provisions allowing for
renewal or extensions of the term of the compact if certain provisions
are met. The Department does not consider the renewal or extension of
the term of the compact under the very terms of the compact as an
extension as defined in Sec. 293.2(e) and requiring publication of
notice in the Federal Register under Sec. 293.5. The Department has
revised the definition of extension to clarify extensions are new
agreements between the parties to extend the compact term rather than
the exercise of an existing provision.
Several commenters requested the Department amend Sec. 293.5 to
limit the reference to documents required under Sec. 293.8 to
paragraph (b) and (c) as required by the 2008 Regulations. Commenters
stated the requiring compliance with all of Sec. 293.8 would be a
burden on Tribes seeking an extension.
The Department has revised the reference in Sec. 293.5 to 293.8 in
response to these comments. Section 293.5 now requires the documents
listed in Sec. 293.8(a) through (c). The Department notes the
provision in Sec. 293.8(a) reflects the definition of extension in
Sec. 293.2(e).
Several commenters questioned the necessity for the Department to
publish a notice of compact extension in the Federal Register in order
for the
[[Page 74924]]
extension to be ``in effect.'' Commenters questioned if the process for
extensions may result in undue delay because the extension requires a
Federal Register document but is exempted from Secretarial review and
not subject to the statutory 45-day review period.
The Department disagrees with the comment. An extension is subject
to the 45-day statutory review period. Proposed revisions to Sec.
293.5 in the Consultation Draft included clarifying that IGRA requires
publication of a notice of extension in the Federal Register for the
extension to be in effect. The Department notes an extension is an
amendment to the duration of the compact and under the proposed
regulations continues to receive expedited processing.
Several commenters requested the Department revise Sec. 293.5 to
require publication of a notice of compact extension within 14 days of
the submission of the extension.
The Department declines to revise Sec. 293.5 to include a 14-day
deadline for publishing a notice of compact extension in the Federal
Register. The Department notes an extension is a type of amendment that
receives expedited processing. Further Sec. 293.14 addresses timing of
publication of notices in the Federal Register in compliance with IGRA.
Several commenters requested the Department revise Sec. 293.5 to
exempt restated compacts in the same manner as extensions.
The Department declines the requested revision. A restated compact
is a new restatement of existing provisions as amended in a compact,
and thus, a new compact subject to review. An extension is an amendment
that changes only the duration of the compact, and is not subject to
review. IGRA limits the Secretary's authority to review and approve or
disapprove a compact or amendment to 45 days. The Department encourages
parties to utilize restated compacts or amended and restated compacts
as a best practice to incorporate a series of amendments into a single
document. The Department finds it helpful if the Tribe or State also
submits a redlined copy of the restated compact.
Comments on Sec. 293.6 Who can submit a compact or amendment?
Several commenters sought clarification on whether Sec. 293.6, or
other provisions in part 293, exclude third party submissions.
The Department has consistently and will continue to exclude third
parties from the submission and review process. The Department's
longstanding application of Sec. 293.6 is to permit either party to
the compact or amendment to submit the required documents for
Secretarial review and approval. The Consultation draft of Sec. 293.6
contained minor stylistic edits for clarity and consistency.
Several commenters expressed support for the proposed revisions to
Sec. 293.6.
The Department acknowledges the comments.
Comments on Sec. 293.7 When should the Tribe or State submit a compact
or amendment for review and approval?
Several commenters requested the Department revise Sec. 293.7 to
more accurately reflect the legal status of the document pending
secretarial review, and in some instances, how an amendment may be
created through compact dispute resolution procedures. One commenter
requested the Department replace the phrase ``legally entered into by
the parties'' with the phrase ``duly executed by the Tribe and State in
accordance with applicable Tribal and State law.'' Another commenter
suggested adding the phrase ``or the amendment has been issued by an
arbitration panel'' to the end of Sec. 293.7.
The Department notes the Consultation Draft of Sec. 293.7 remained
unchanged from the 2008 Regulations. The phrase ``legally entered
into'' reflects the requirements of the statutory text in IGRA at 25
U.S.C. 2710(d)(8)(A), and is consistent with the requirements in Sec.
293.8, in compliance with both Tribal law and State law. The Department
has revised Sec. 293.7 by adding the phrase ``or is otherwise binding
on the parties'' to more accurately reflect how an amendment or other
ancillary agreement may be created, as described in Sec. 293.4.
One comment suggested the phrase ``legally entered into by the
parties'' in Sec. 293.7 contradicts Sec. 293.14 because the compact
does not take effect until it is published in the Federal Register.
The Department has revised Sec. 293.7 to state ``duly executed by
the Tribe and the State in accordance with applicable Tribal land State
law, or is otherwise binding on the parties.'' IGRA requires the
compact or amendment to first be entered into by the parties; second,
submitted for review by the Secretary; and third, have notice published
in the Federal Register prior to the compact or amendment being ``in
effect.'' 25 U.S.C. 2710(d)(3)(B).
Comments on Sec. 293.8 What documents must be submitted with a compact
or amendment?
Several commenters noted the documents required for submission
under Sec. 293.8 may contain confidential business information of the
Tribe and requested the Department maintain confidentiality of
sensitive business information and protect it from release under the
Freedom of Information Act.
The Department routinely receives confidential Tribal business
information in response to requests for additional information under
Sec. 293.8(d) of the 2008 Regulations. This information is protected
from public disclosure under exemption 4 of the Freedom of Information
Act. Additionally, prior to releasing any requested tribally submitted
information, the Department consults with the submitting Tribe to
confirm such information is confidential business information and can
properly be withheld. The Department recommends that as a best
practice, Tribes should notify the Department when confidential
information is submitted, so that it can be properly withheld if
requested under the Freedom of Information Act.
Several commenters noted the documents required by Sec. 293.8, if
not submitted, are grounds of disapproval of a compact under Sec.
293.16(b). Commenters requested clarity on how the Department will
determine if the requirements of Sec. 293.8 have been met and if the
Department will provide parties opportunities to submit missing
documents or cure deficiencies in the submitted documents.
The Department notes that Sec. 293.16(b) clarifies that the
Department must inform the parties in writing of any missing documents
required by Sec. 293.8.
Several commenters requested the Department revise Sec. 293.8 to
include an express waiver the Secretary may invoke if or when either
party shows a need for additional flexibility in submitting a compact
or amendment. Commenters noted parties to a compact who resort to
arbitration or similar dispute resolution may be reluctant to provide
the required certification of an arbitration panel decision under Sec.
293.8(b) and (c) in an effort to avoid Secretarial review or
enforcement of an unfavorable decision.
The Department declines to include a blanket waiver under Sec.
293.8, but notes the Secretary may consider issuing a discretionary
waiver in certain circumstances after consideration of the submitted
documents. Certain documents, such as arbitration decisions, are self-
certifying. Section
[[Page 74925]]
293.16 addresses the Secretary's discretionary authority to disapprove
a compact or amendment.
Some commenters also noted that a Tribe may choose to adopt a
compact or amendment, including an arbitration award, under protest and
requested the Department revise Sec. 293.8(b) to allow for a Tribe to
adopt a compact or amendment under protest.
The Department declines to include the requested revision. Section
293.8(b) requires a Tribal resolution or other document that certifies
that the Tribe has approved the compact or amendment in accordance with
applicable Tribal law. The Department notes that a Tribal resolution or
cover letter may articulate that the Tribe's `approval' is under
protest or identify provisions in the compact or amendment that the
Tribe disagrees with or is concerned violate IGRA.
One commenter questioned the Department's proposed change of
pronoun in Sec. 293.8(c) from ``he or she'' to ``they.''
The Department made certain stylistic edits including using a
gender-neutral pronoun in Sec. 293.8(c), which is the only section
that uses a pronoun.
Several commenters expressed support for the proposed revisions to
Sec. 293.8. Commenters noted that the proposed Sec. 293.8(d) reflects
proposed changes to Sec. Sec. 293.4, 293.21, and 293.27, which address
certain types of ancillary documents which are sometimes referenced or
required by a compact or amendment.
The Department acknowledges the comments.
Several commenters expressed concern with Sec. 293.8(d) and
questioned if the documents required by Sec. 293.8 were subject to
secretarial review and approval. Commenters noted that the Consultation
Draft of Sec. 293.4 expanded the Department's definition of compacts
or amendments subject to Secretarial review and appeared to conflict
with Sec. 293.8(d). Commenters further noted Sec. Sec. 293.4 and
293.8(d) could capture Tribal Gaming ordinances and/or minimum internal
control standards which may not be drafted at the time of compact
submission. Commenters noted a broad reading of Sec. 293.8(d) posed an
undue burden on Tribes and impermissibly intruded into Tribal self-
governance and self-determination.
The Department has revised Sec. 293.8(d) to clarify this provision
does not apply to Tribal Gaming Ordinances subject to review and
approval by the Nation Indian Gaming Commission pursuant to 25 U.S.C.
2710 and 25 CFR part 522. Further, the Department has revised Sec.
293.4 to clarify which documents are compact or amendments subject to
Secretarial review. The documents identified in Sec. 293.8(d) allow
the Department to understand how the compact or amendment interacts
with other documents and agreements, which in some instances are
treated as grounds for material breach of the compact. The Department
notes in some instances compacts have utilized ancillary documents to
improperly impose State law or State law equivalent onto Tribal
governments and a Tribe's Indian lands.
Several commenters requested the Department revise Sec. 293.8(d)
by including the phrase ``provided however that nothing herein shall
prohibit the amendment, modification, or other changes to Tribal
ordinance or laws and any such change, amendment, or modification is
not required to be submitted for review and approval unless otherwise
expressly required by Federal law.''
Several commenters requested the Department amend proposed Sec.
293.8(d) to state that any agreement between a Tribe and a State, its
agencies or its political subdivisions required by a compact or
amendment if the agreement requires the Tribe to make payments to the
State, its agencies, or its political subdivisions, or it restricts or
regulates a Tribe's use and enjoyment of its Indian Lands. Commenters
argued this language is more narrowly tailored and addresses the
concerns raised in Sec. 293.28 of the Consultation Draft. Commenters
requested the Department defer to a Tribe's decision to provide
voluntary payments to local governments as permitted by IGRA at 25
U.S.C. 2710(b)(2)(B)(v).
One commenter suggested comprehensive revisions to Section 293.8,
including renumbering the subsections and adding two new sections. The
commenter proposed adding references to amendments arising out of
dispute resolution processes including arbitration. The commenter
proposed adding a new section addressing the Secretary's authority to
waive the requirements of Sec. 293.8. The commenter also proposed
adding a section requiring the Secretary to provide notice to the
parties within 14 business days if the Secretary determines documents
required by Sec. 293.8 are missing and permit the parties to either
submit the documents or request a waiver of Sec. 293.8.
The Department declines to include the requested new provisions in
Sec. 293.8. The Department notes that the requested provision
addressing the Secretary's authority to offer a wavier under 25 CFR 1.2
is not required for the Secretary to issue a waiver of specific
requirements. The Department also notes that the requested provision
addressing a notice to the parties providing an opportunity to cure
deficiencies reflects the Department's longstanding practice.
Additionally, the remaining language in that provision addresses the
Secretary's authority to disapprove a compact or amendment and is
addressed in Sec. 293.16.
Several commenters expressed concerns with Sec. 293.8(e), arguing
the section is vague and ambiguous, potentially permitting the
Department to request documents unrelated to the Secretary's review of
the submitted compact.
The Department notes Sec. 293.8(e) in the Consultation Draft
retains the text of Sec. 293.8(d) in the 2008 Regulations. This
provision allows the Department to request additional information--when
needed--to determine if a submitted compact complies with IGRA.
Comments on Sec. 293.9 Where should a compact or amendment be
submitted for review and approval?
A number of commenters responded to the Department's seventh
consultation question ``[s]hould the draft revisions include provisions
that offer or require the submission of electronic records?''
Commenters encouraged the Department to include provisions allowing
electronic submission but cautioned against requiring electronic
submission. Commenters noted electronic submission is less expensive
and is faster than traditional methods of submission. Commenters also
noted parties should be provided reasonable flexibility when submitting
compacts or amendments for Secretarial Review. Several commenters
questioned the need for the inclusion of electronic submission in the
proposed regulations, noting in their experience the technical
requirements of submission are not a significant consideration between
parties negotiating a compact.
The Department acknowledges the comments and has included the
Office of Indian Gaming's email address in Sec. 293.9. The Department
notes the Consultation Draft included proposed revisions to the 2008
Regulations which were stylistic or technical in nature including
electronic submission.
Several commenters requested the Department revise Sec. 293.9 by
removing the requirement for hard copy submission of the ``original
copy'' when a party chooses to utilize email submission. Commenters
noted that the Department could request an original hard copy if needed
under Sec. 293.8(e). Commenters also noted many Tribal and
[[Page 74926]]
State governments as well as the gaming industry are utilizing
electronically signed and verified documents.
The Department will reevaluate the requirements in Sec. 293.8(a)
for an ``original compact or amendment executed by both the Tribe and
the State'' and Sec. 293.9 ``as long as the original copy is submitted
to the address listed above'' as the Department updates the record
keeping requirements. The Office of Indian Gaming is the formal record
keeper and archivist of Tribal-State gaming compacts for the
Department. The Office is bound by Departmental record keeping
requirements, including electronic records.
Comments on Sec. 293.10 How long will the Secretary take to review a
compact or amendment?
Several commenters expressed support for the proposed revisions to
Sec. 293.10.
The Department acknowledges the comments.
Comments on Sec. 293.11 When will the 45-day timeline begin?
Several commenters recommended the Department amend Sec. 293.11 to
allow for electronic submissions to trigger the 45-day review period
upon submission by removing the requirement for the Office of Indian
Gaming to stamp the document received. Commenters argued that the
inclusion of a date stamp for electronically submitted documents is no
longer necessary to confirm when the document was received. Commenters
also noted the requirement for the Office of Indian Gaming to date
stamp a document received could result in administrative delays.
The Department declines to remove the requirement for the Office of
Indian Gaming to stamp the document received in order for the 45-day
review period to begin for electronically submitted documents. The
Department notes the Consultation Draft of Sec. 293.11 reflects the
removal of the cross reference to Sec. 293.9 and the address of the
Office of Indian Gaming. The consultation draft of Sec. 293.9 was
amended to include a dedicated email address for the Office of Indian
Gaming to facilitate email submission of documents. The application of
a date stamp for submitted documents irrespective of the submission
method allows for consistent timely processing of all documents.
Several commenters requested the Department amend Sec. 293.11 to
include a requirement that the Office of Indian Gaming provide
submitters with an email acknowledgement of receipt with confirmation
of the 45-day review period.
The Department has revised Sec. 293.11 to include an emailed
acknowledgement of receipt to the parties when the parties have
provided their email addresses.
Several commenters noted an apparent conflict between Sec. Sec.
293.11 and 293.9 and requested clarification if the 45-day review
period begins with the receipt of the electronic copy or upon receipt
of the mailed original copy.
The Consultation Draft reflected revisions in Sec. Sec. 293.9 and
293.11 to allow for electronic or hard copy submission. The Department
has revised Sec. 293.9 to clarify the Department will accept either
email or hard copy submission but requires a hard copy submission in
addition to the emailed copy. The 45-day review period starts when the
Office of Indian Gaming date stamps a hard copy original or an
electronic copy of the document.
Comments on Sec. 293.12 What happens if the Secretary does not act on
the compact or amendment within the 45-day review period?
Several commenters noted that it was unclear what the legal effect
is for a compact or amendment ``approved by operation of law'' or
``deemed approved'' when a guidance letter is issued after the 45-day
review period.
The Department acknowledges the comments. A guidance letter issued
after the 45th day review period does not alter the effective date of
the compact or amendment. The effective date of a compact or amendment
is the date the document is published in the Federal Register, as
explained in Sec. 293.14. A compact or amendment approved by operation
of law is considered to have been approved by the Secretary, but only
to the extent the compact or amendment is consistent with the
provisions of IGRA. A guidance letter explains the provisions the
Department believes to be inconsistent with IGRA.
Many commenters noted that the added language effectively codifies
the Secretary's current practice.
The Department acknowledges the comments.
One commenter indicated that the provision conflicts with the
Secretarial requirements under Sec. 293.10.
The Department disagrees with the comment. The proposed regulations
at Sec. 293.12 explain what happens if the Secretary does not act on
the compact or amendment within the 45-day review period.
Several commenters stated that it was unclear if there would be a
process to appeal a guidance letter issued after the 45-day review
period, with one commenter suggesting that the Secretary should
consider including an appeal or review process.
The Department acknowledges the comments but declines to amend the
provision to include an appeal or review process.
One commenter stated that it was unclear from the provision if the
Secretary's issuance of a guidance letter under this provision would
impact the publication of a ``deemed approved'' compact in the Federal
Register.
The Secretary's issuance of a guidance letter under this provision
does not impact the publication of a ``deemed approved'' compact in the
Federal Register. A guidance letter issued after the 45-day review
period does not alter the effective date of the compact or amendment.
The effective date of a compact or amendment is the date the notice is
published in the Federal Register, as explained in Sec. 293.14.
Several commenters expressed concern that the Secretary could
``unapprove'' a compact or amendment through issuance of a guidance
letter. These commenters requested that the Department specifically
address the effect of a guidance letter on a compact's approval and
which provisions are not deemed approved. One commenter expressed
concern that if the Secretary takes no action or issues a guidance
letter, a court may interpret the Secretary's guidance letter or
inaction to mean that the compact violates IGRA and is void,
potentially leaving a Tribe without the authority to continue to offer
gaming under the compact. One commenter based its concern on the
relationship between Sec. Sec. 293.12 and 293.15.
The Department acknowledges the comments. Under IGRA, the
Department has 45 days to complete its review and either approve or
disapprove a class III gaming compact. If the Department takes no
action within that 45-day period, the Tribal-State gaming compact is
considered approved by operation of law--to the extent that it is
consistent with IGRA. A guidance letter issued after the 45th day of
the review period does not alter the effective date of the compact or
amendment. The effective date of a compact or amendment is the date the
notice is published in the Federal Register, as explained in Sec.
293.14. A compact or amendment approved by operation of law is
considered to have been approved by the Secretary, but only to the
extent the compact or amendment is consistent with the provisions of
IGRA. A guidance letter explains the provisions the
[[Page 74927]]
Department believes to be inconsistent with IGRA.
One commenter disagreed with the inclusion of Sec. 293.12 and
stated that the Secretary should not issue guidance letters after the
45-day review period because the Secretary should only act within the
45-day review period and not beyond.
The Department disagrees with the comment. A compact is not
``considered to have been approved'' by operation of law also known as
``deemed approved'' until after the 45-day review period. The
Department cannot issue a guidance letter until after the 45th day.
One commenter stated that the Secretary has an obligation to ensure
that compacts between Tribes and States are rejected if they violate
the provisions of IGRA and stated that Sec. 293.12 appears to permit
the Secretary to allow compacts that violate IGRA to be ``deemed
approved'' without alerting the relevant State, Tribe, or the public
that provisions of the ``approved'' compact violate IGRA. The commenter
recommended that Sec. 293.12 be amended to state that ``[t]he
Secretary, after the 45th day, is required to issue a guidance letter
to the parties identifying any provisions that are inconsistent with
IGRA and thus not approved by operation of law.'' Another commenter
suggested the Department add language stating ``Accordingly, the
signatory Tribe or State may subsequently challenge the non-compliant
compact provisions as unenforceable or severable from the compact.''
The Department accepts the comments in part and will make the
appropriate changes to Sec. 293.12, indicating the Secretary will
issue a letter confirming the 45-day review period has lapsed and
therefore the compact or amendment has been approved by operation of
law. The Secretary's letter may identify provisions of the ``deemed
approved'' compact that violate IGRA. The Department takes no position
on whether a Tribe or a State may subsequently challenge the non-
compliant compact provisions as unenforceable or severable from the
compact.
One commenter recommended that the language in this section stating
that ``[t]he Secretary is not required to issue a letter, and if the
Secretary does issue a letter, any such letter may offer guidance to
the parties on the Department's interpretation of IGRA,'' be stricken.
The Department agrees with the changes and will strike the language
from Sec. 293.12. The Secretary will issue a letter confirming the 45-
day review period has lapsed and therefore the compact or amendment has
been approved by operation of law.
Many commenters requested that the Department state how it will
determine whether to issue a guidance letter and articulate a standard
to promote the uniform issuance of guidance letters. These commenters
expressed concern that if the Secretary is not required to issue a
guidance letter, the lack of a guidance letter may place some Tribes on
unequal footing. These commenters request that Sec. 293.12 be revised
to articulate a standard that will ensure the uniform issuance of
guidance letters.
The Department accepts the comments in part and will make the
appropriate changes to Sec. 293.12, indicating the Secretary will
issue a letter confirming the 45-day review period has lapsed and
therefore the compact or amendment has been approved by operation of
law. The Secretary's letter may include guidance identifying provisions
of the ``deemed approved'' compact that violate IGRA.
One commenter recommended that the Department clarify whether
revised Sec. 293.12 is intended to be a change in Department policy or
a drafting error.
The Department acknowledges the comment. Section 293.12 will
reflect a change in policy to issue a letter in each instance when a
compact is deemed approved and clarify that letter may include guidance
identifying provisions of the ``deemed approved'' compact that violate
IGRA.
Several commenters requested the inclusion of a deadline by which
the Secretary will issue a guidance letter. One commenter requested
that Sec. 293.12 be revised to provide that guidance letters be issued
within 60 days of the date a compact is approved by operation of law in
order to provide Tribes with certainty with respect to renegotiating
terms of a compact and avoid lost time negotiating provisions the
Department finds are in conflict with IGRA.
The Department accepts the comments in part. Section 293.12 will
reflect that the Secretary will issue a letter after the 45th day but
within 90 days from the date of submission. This timeline is consistent
with the requirement to publish notice in the Federal Register in Sec.
293.14.
Several commenters expressed concerns that the Secretary has no
explicit statutory authority to issue a guidance letter. One commenter
expressed concerns that a guidance letter, which is not required to be
issued under IGRA, could be used as a litigation roadmap, potentially
to oppose the project, and may pin the Secretary to a litigation
position. The commenter suggested further discussion and requested that
the Secretary consider a process that would provide confidentiality to
the Tribe and State by, for example, communicating to the attorneys for
the respective Tribe and State the Secretary's concerns if any
provisions were inconsistent with IGRA to discuss perceived
inconsistencies.
The Department acknowledges the comment. The Secretary has
authority to promulgate these regulations based on the statutory
delegation of powers contained in IGRA and 25 U.S.C. 2, and 9 to review
compacts and amendments. A guidance letter issued after the 45th day
review period does not alter the effective date of the compact or
amendment. A compact or amendment approved by operation of law is
considered to have been approved by the Secretary, but only to the
extent the compact or amendment is consistent with the provisions of
IGRA. A guidance letter explains the provisions the Department believes
to be inconsistent with IGRA. The Department currently offers technical
assistance to Tribes and States; however the Department does not
provide pre-approvals or legal opinions.
One commenter noted that ``deemed approval'' letters have had the
effect of allowing States like California to attempt to use the letter
as a way of forcing impermissible provisions into compacts.
The Department accepts the comments in part and will make the
appropriate changes to Sec. 293.12, indicating the Secretary will
issue a letter informing the parties that the compact or amendment has
been approved by operation of law, the letter may identify provisions
of the ``deemed approved'' compact that violate IGRA.
One commenter recommended that the revised regulations be modified
to expressly state the principles underlying the policy of issuing
``deemed approved'' letters and the limits of that policy.
The Department accepts the comments in part and will make the
appropriate changes to Sec. 293.12, indicating the Secretary will
issue a letter informing the parties that the compact or amendment has
been approved by operation of law. The letter may identify provisions
of the ``deemed approved'' compact that violate IGRA. The Department
declines to expressly state when the letter will include guidance or
limits to that policy.
One commenter noted that States are often dismissive of ``deemed
approved'' letters and requested that the Department revise the
language to state that ``[a]ccordingly, the signatory Tribe
[[Page 74928]]
or State may subsequently challenge the non-compliant compact
provisions as unenforceable or severable from the compact,'' stating
that this additional language would eliminate State's false perception
that an approval by operation of law is de facto approval of a State's
``illicit agenda in compact negotiations.''
The Department acknowledges the comment. Under IGRA, the Department
has 45 days to complete its review and either approve or disapprove a
class III gaming compact. If the Department takes no action within that
45-day period, the Tribal-State gaming compact is considered approved
by operation of law--to the extent that it is consistent with IGRA. The
Department takes no position on whether a Tribe or a State may
subsequently challenge the non-compliant compact provisions as
unenforceable or severable from the compact.
Several commenters recommended that Sec. 293.12 be amended to
allow Tribal governments to request guidance letters and legal opinions
from the Secretary or the Office of Solicitor for compacts.
The Department acknowledges the comment. The Department currently
offers technical assistance to Tribes and States; however the
Department does not provide pre-approvals or legal opinions.
One commenter stated that the issuance of a guidance letter
explaining why a submitted compact was not affirmatively approved but
``deemed approved'' by operation of law was a solid improvement, noting
that such letters provide an excellent source to inform and improve the
negotiation process.
The Department acknowledges the comment.
Comments on Sec. 293.13 Who can withdraw a compact or amendment after
it has been received by the Secretary?
Several commenters requested the Department revise Sec. 293.13 by
adding the word ``both'' so that the relevant provision reads ``Tribe
and State must both submit.''
The Department accepts the requested revision. The Department notes
the parties may submit a joint request for withdrawal of the compact or
amendment, or submit individual requests for withdrawal.
One commenter recommended the Department accept electronically
submitted requests for withdrawal.
The Department accepts the requested revision and has revised Sec.
293.9 to clarify all submissions and requests under part 293 must be
submitted to the Office of Indian Gaming, either at the physical
address or the email address.
One commenter requested the Department revise Sec. 293.9 to permit
a Tribe to unilaterally withdraw a compact or amendment after
submission.
The Department declines the requested change and notes this
requirement remains unchanged from the 2008 Regulations, which requires
both parties to request withdrawal. The compact process under IGRA is a
formalized contract between sovereigns which is submitted to the
Department for review and approval only after it is legally entered
into or is otherwise binding on the parties.
Comments on Sec. 293.14 When does a compact or amendment take effect?
Several commenters requested clarity of the effect of an approval
by operation of law on a compact and subsequent publication of a notice
in the Federal Register.
The Department acknowledges the comments. The Department notes IGRA
provides a 45-day review period after which a compact is approved by
operation of law but only to the extent the compact is consistent with
IGRA. 25 U.S.C. 2710(d)(8)(C). A notice must also be published in the
Federal Register for the compact to be in effect. 25 U.S.C.
2710(d)(8)(D).
One commenter requested the Department amend Sec. 293.14 by
changing the timeline for publication of a notice in the Federal
Register from 90 days to 55 days from the date the compact or amendment
is received to, or within 10 days of approval/disapproval, whichever is
shorter.
The Department declines the requested change in the Federal
Register notice timeline, which remains unchanged from the 2008
Regulations and is considered reasonable. The Department notes IGRA
does not require publication of a notice in the Federal Register if the
compact or amendment is disapproved.
Comment on Sec. 293.15 Is the Secretary required to disapprove a
compact or amendment that violates IGRA?
Several commenters agreed with the Department's proposed language
in Sec. 293.15, explaining that the Secretary has the discretionary
authority to disapprove a compact that violates IGRA, but is not
required to do so. However, many of the commenters that agreed with the
Department's proposed language did express concern over the possibility
that the language could encourage future administrations to avoid
disapproving compacts where appropriate. Other commenters noted the
importance of Deemed Approval determinations to empower Tribes to
reject the non-compliant provisions of a deemed approved compact
through litigation or other means.
The Department acknowledges the comments. The Department retains
its proposed language in Sec. 293.15. The Department is concerned a
mandate that the Secretary affirmatively disapprove compacts that
violate IGRA would narrow the discretion IGRA provides to the Secretary
to either disapprove or approve a compact within a 45-day review
period. Furthermore, this type of mandate could create unintended
consequences if the Department fails to act within the prescribed 45-
day review period on a compact that violates IGRA. The current
language, which tracks the language of IGRA, provides that if the
Secretary fails to act within the 45-day review period, the compact is
deemed approved but only to the extent it is consistent with IGRA.
Several commenters expressed concern with the Department's proposed
language in Sec. 293.15 and argued that a compact which violates IGRA
must be affirmatively disapproved. Another commenter went as far as
stating that allowing compacts to go into effect that should be
disapproved is a violation of IGRA.
The Department acknowledges the comments. The Department retains
its proposed language in Sec. 293.15. The Department is concerned a
mandate that the Secretary affirmatively disapprove compacts that
violate IGRA would narrow the discretion IGRA provides the Secretary to
either approve or disapprove a compact within the prescribed 45-day
review period. Furthermore, this type of mandate could create
unintended consequences if the Department fails to act within the
prescribed 45-day review period on a compact that violates IGRA. The
current language, which tracks the language of IGRA, provides that if
the Secretary fails to act within the 45-day time period, the compact
is deemed approved but only to the extent it is consistent with IGRA.
Finally, a few commenters agreed that the Secretary has
discretionary authority over whether to disapprove a compact but should
be required to issue a guidance letter or legal opinion identifying
provisions not approved under IGRA. Commenters recommended the
Secretary defer to a Tribe's sovereign decision-making and permit
compacts to go into effect rather than disapprove.
The Department acknowledges the comments. The Department retains
its proposed language in Sec. 293.15. The Department is concerned a
mandate that
[[Page 74929]]
the Secretary affirmatively disapprove compacts that violate IGRA would
narrow the discretion IGRA provides the Secretary to either approve or
disapprove a compact within the prescribed 45-day review period.
Furthermore, this type of mandate could create unintended consequences
if the Department fails to act within the prescribed 45-day time period
on a compact that violates IGRA. The current language, which tracks the
language of IGRA, provides that if the Secretary fails to act within
the 45-day time period, the compact is deemed approved but only to the
extent it is consistent with IGRA. The Department has revised Sec.
293.12 to provide the Secretary will issue a letter informing the
parties that the compact or amendment has been approved by operation of
law and the letter may include guidance.
Comments on Sec. 293.16 When may the Secretary disapprove a compact or
amendment?
Several commenters requested the Department clarify Sec.
293.16(a)(3) and suggested the provision is overly broad.
The Department acknowledges the comments, but notes this provision
is consistent with Congress's grant of discretionary disapproval
authority to the Secretary. 25 U.S.C. 2710(d)(8)(B)(iii).
Several commenters recommended the Department revise Sec.
293.16(a)(3) to include an opportunity for an appropriate designee of
the Secretary to serve as a mediator to facilitate fair compact
negotiations between a Tribe and a State and to ensure that Federal law
is complied with by the parties.
The Department acknowledges the comments. The Department routinely
provides technical assistance to Tribes and States including guidance
on Departmental precedents and past procedures, the Departments
interpretation and application of case law, as well as best practices.
One commenter requested the Department include a new section titled
``[m]ay a compact or amendment include provisions that violate the
trust obligations of the United States to Indians?'' The proposed text
for this section would explain that a compact may not include
provisions that violate the trust obligations of the United States and
cited to provisions limiting third-party Tribe's rights to conduct
gaming as an example of a provision violating the trust obligation.
The Department declines the requested new section and notes Sec.
293.24(c)(1) addresses compact provisions which act to limit a third-
party Tribe's rights to conduct gaming.
Several commenters expressed support for the proposed Sec.
293.16(b) and noted it helps enforce the requirements in other sections
of part 293.
The Department acknowledges the comments.
Several commenters objected to the proposed Sec. 293.16(b) which
provides the Secretary may disapprove a compact if the documents
required in Sec. 293.8 are not submitted. Commenters questioned the
Secretary's authority to disapprove a compact based on the parties'
failure to submit specific documents. Several commenters expressed
concerns that the document required by Sec. 293.8(d) may be overly
broad and burdensome. Other commenters recommended the Department
revise Sec. 293.16 to require written notice of deficiencies and an
opportunity to cure before disapproving a compact under Sec.
293.16(b).
The Department accepts the comments and notes Sec. 293.16(b)
provides the Secretary with grounds to disapprove a compact if the
documents required by Sec. 293.8 are not submitted. The Department has
revised Sec. 293.16(b) to require written notice of deficiencies,
which is consistent with the Department's longstanding practice of
informing parties of deficiencies and permitting parties to cure the
deficiencies. IGRA provides the Secretary with discretionary authority
to disapprove a compact if it violates one of the three specified
criteria. 25 U.S.C. 2710(d)(8)(B). Section 293.16(b) allows a
presumption that a compact violates one of the three specified criteria
if the parties fail to cure deficiencies in the record.
Several commenters requested the Department revise Sec. 293.16(b)
to provide if the parties fail to submit the required documents in
Sec. 293.8, the Secretary will return the compact as incomplete. The
commenters recommended the Department clarify that the parties may
resubmit the compact or amendment after it has been returned based on
the failure to submit the required documents, but must submit all of
the required supporting documents.
The Department declines to accept the requested provisions. IGRA
provides the Secretary with 45-days to review and approve or disapprove
a compact. The Secretary does not have the authority to return a
compact as incomplete which could frustrate Congress's clear intent to
prevent unnecessary delay by providing a 45-day review period.
One commenter recommended the Department revise Sec. 293.16 by
including a provision permitting the Secretary while reviewing an
amendment to a compact to disapprove provisions in the underlying
compact or amendment which was approved by operation of law if that
provision violates one of IGRA's three specified criteria.
The Department declines to include the proposed provision. IGRA
limits the Secretary's authority to review and approve or disapprove a
compact or amendment to 45 days. As a result, the Department cannot
retroactively approve or disapprove a compact or amendment after the
45-day review period has run. Instead, the Department's review is
limited to the text of the document under review during the 45-day
review period. The Department treats restated and resubmitted compacts
as a new compact because the parties have submitted entire text of the
compact for review. The Department encourages parties to utilize
restated compacts or amended and restated compacts as a best practice
to incorporate a series of amendments into a single document. The
Department finds it helpful if the Tribe or State also submits a
redlined copy of the restated compact.
Comments on Sec. 293.17 May a compact or amendment include provisions
addressing the application of the Tribe's or the State's criminal and
civil laws and regulations?
Several commenters expressed support for the proposed Sec. 293.17.
The Department acknowledges the comments.
Several commenters recommended the Department revise Sec. 293.17
to clarify how the parties can comply with the requirement to ``show
that these laws and regulations are both directly related to and
necessary for, the licensing and regulation of the gaming activity.''
Commenters noted this provision adds a vague new requirement that could
cause confusion.
The Department accepts this comment in part. The Department has
revised Sec. 293.17, to clarify the Secretary may ask for a showing
that the provisions addressing the application of criminal and civil
laws and regulations are both directly related to and necessary for,
the licensing and regulation of the gaming activity.
Several commenters addressed Sec. 293.17 in responding to the
Department's third consultation question ``[s]hould the draft revisions
include provisions that facilitate or prohibit the enforcement of State
court orders related to employee wage garnishment or patron winnings?''
Commenters suggested the parties may address the effect of such State
(or Tribal) court orders as a jurisdictional matter under Sec. 293.17.
[[Page 74930]]
The Department declines to address the enforcement of State court
orders related to employee wage garnishment or patron winnings in Sec.
293.17. The Department has added enforcement of State court orders to
the list of provisions in a compact which are not directly related to
the operational gaming activities in Sec. 293.24(c). The Department
notes this is consistent with the 9th Circuit decision in Chicken Ranch
Ranchera of Me-Wuk Indians v. California, 42 F.4th 1024 (9th Cir.
2022).
Comments on Sec. 293.18 May a compact or amendment include provisions
addressing the allocation of criminal and civil jurisdiction between
the State and the Tribe?
A number of commenters responded to the Department's fourth
consultation question: ``[s]hould the draft revisions include
provisions that facilitate or prohibit State court jurisdiction over
the gaming facility or gaming operations? Should this apply to all
claims or only certain types of claims?''
Many commenters discouraged the Department from including
provisions which could be perceived as permitting or facilitating State
court jurisdiction because States have a history of leveraging limited
grants of jurisdiction to undermine Tribal sovereignty. Commenters
noted while IGRA includes allocation of jurisdiction it also is
intended to promote strong Tribal governments which includes strong
Tribal courts. Other commenters noted Tribal courts should be the
default jurisdiction, however court jurisdiction could be left to
negotiations between a Tribe and State, at the request of a Tribe when
the Tribal court does not have the capability to take full jurisdiction
over the relevant claims. Commenters also discussed case law supporting
the presumption that Tribal court is the proper venue for third party
claims--including patron disputes, labor disputes, and tort claims
against the Tribe arising out of the Tribe's gaming facility.
The Department acknowledges the comments. The Department proposed
Sec. 293.18 to clarify the Department reads IGRA's provision
permitting Tribes and States to allocate criminal and civil
jurisdiction narrowly and limited by Sec. 293.17. The Department has
addressed third party tort claims in proposed Sec. 293.24(c).
Several commenters supported the proposed Sec. 293.18, as drafted,
and noted it appears consistent with IGRA and case law. Commenters also
noted the proposed provision could help preserve Tribal court systems.
The Department acknowledges the comments.
Several commenters questioned the need for the proposed Sec.
293.18.
The Department acknowledges the comments. The Department notes IGRA
provides a compact may include provisions relating to the allocation of
criminal and civil jurisdiction between the State and the Tribe
necessary for the enforcement of such laws and regulations. 25 U.S.C.
2710(d)(3)(C)(ii).
Several commenters requested the Department include a bad faith
standard for jurisdiction when a State seeks to compel State
jurisdiction of the Tribe or Indian country.
The Department acknowledges the comments. The Department has added
provisions in Sec. 293.24(c) to address these concerns, which Sec.
294.24(d) now states are ``considered evidence of a violation of
IGRA.''
Several commenters requested the Department amend proposed Sec.
293.18 to expressly require the Tribe to request the State take
jurisdiction over claims involving the gaming facility or gaming
operations in order for such an allocation of jurisdiction to be
proper.
The Department did not adopt the comment. A compact or amendment
may include provisions allocating criminal and civil jurisdiction
between the State and the Tribe necessary for the enforcement of the
laws and regulations described in Sec. 293.17.
Several commenters requested the Department revise Sec. 293.18 to
prohibit State court jurisdiction over Tribal gaming operations or
facilities.
The Department did not adopt the comment. A compact or amendment
may include provisions allocating criminal and civil jurisdiction
between the State and the Tribe necessary for the enforcement of the
laws and regulations described in Sec. 293.17.
Comments on Sec. 293.19 May a compact or amendment include provisions
addressing the State's costs for regulating gaming activities?
A number of commenters expressed support for the proposed Sec.
293.19. Commenters noted States have used IGRA's regulatory cost
provision as an indirect tax often funding both regulatory and non-
regulatory functions. Commenters opined the bad faith standard would
assist negotiating parties in limiting regulatory cost provisions and
Tribal oversite over the State's use of those funds. Commenters also
noted the Department will likely receive severe pushback from States on
this provision and encouraged the Department to ``stay the course.''
The Department acknowledges the comments. Section 293.19 addresses
Tribal payments for the State's costs of regulating gaming activities.
As explained above the Department has replaced the phrase ``evidence of
bad faith'' with ``evidence of a violation of IGRA.''
Several commenters expressed concern with the inclusion of a bad
faith standard in proposed Sec. 293.19. Commenters questioned the
Secretary's authority to determine bad faith and questioned how the
Department would enforce such a provision over the life of the compact.
IGRA provides the Secretary with the authority to review and
approve or disapprove a compact within a 45-day review period. The
Department evaluates the terms of the compact including auditing
standards for assessments of regulatory costs as part of this review.
The Department has revised Sec. 293.19 to clarify the Secretary's
review is limited to the terms of the compact. Enforcement of those
terms lies with the parties and is governed by the compact's dispute
resolution provisions, if any. As explained above, the Department has
replaced the phrase ``evidence of bad faith'' with ``evidence of a
violation of IGRA.''
Several commenters requested the Department provide definitions for
``actual and reasonable'' and provide boundaries on the types of costs
for which the State may reasonably seek reimbursement. Other commenters
requested the Department allow flexibility for States to aggregate
costs with limits on what costs can be aggregated.
The Department declines to provide specific boundaries on the types
of gaming regulatory costs for which the State may seek reimbursement.
The Department reads IGRA's provision permitting the State to assess
regulatory costs narrowly and inherently limited to the negotiated
allocation of regulatory jurisdiction. Providing specific definitions
would diminish parties' flexibility in negotiating a reasonable
allocation of regulatory jurisdiction that best meets the needs of the
parties. Further, the Department has revised Sec. 293.19 to give
parties the flexibility in negotiating the terms of a compact to
determine how the State will show aggregate costs are actual and
reasonable.
Several commenters requested the Department require the State to
provide annual audits, prove actual and reasonable expenses, and
periodically negotiate regulatory costs. One commenter requested the
Department
[[Page 74931]]
add the phrase ``and reasonable'' to the last sentence in Sec. 293.19.
Another commenter requested the Department add the phrase ``or refuses
to provide such records'' to the last sentence in Sec. 293.19.
The Department has accepted these suggested edits in part and has
revised Sec. 293.19, to reflect these comments.
Several commenters requested the Department clarify how the
department distinguishes between assessed regulatory costs and a
prohibited tax, fee, charge, or other assessment.
The Department acknowledges the comments. Section 293.25 includes a
discussion of the Department's interpretation of IGRA's prohibition
against the imposition of a tax, fee, charge, or other assessment. IGRA
provides a compact may include provisions relating to ``the assessment
by the State of [the Tribe's class III gaming activity] in such amounts
as are necessary to defray the costs of regulating [the Tribe's class
III gaming activity].'' 25 U.S.C. 2710(d)(3)(C)(iii). IGRA in section
2710(d)(4) then prohibits the State from imposing a tax, fee, charge,
or other assessment except for any assessments that may be agreed to
under paragraph (3)(C)(iii). The Department reads IGRA's provision
permitting the State to assess regulatory costs narrowly and inherently
limited to the negotiated allocation of regulatory jurisdiction.
Section 293.25 includes a discussion of the Department's interpretation
of IGRA's prohibition against the imposition of a tax, fee, charge, or
other assessment.
Comments on Sec. 293.20 May a compact or amendment include provisions
addressing the Tribe's taxation of gaming?
Several commenters expressed support for the proposed Sec. 293.20,
and noted clear guidelines are beneficial to all parties by reducing
the risk that improper provisions will be included. Commenters
expressed support for the inclusion of a bad faith standard in the
proposed Sec. 293.20. Several commenters requested the Department add
the word ``presumptive'' so the relevant sentence would read ``[t]he
inclusion of provisions addressing the Tribe's taxation of other
activities is considered presumptive evidence of bad faith.''
The Department acknowledges the comments but declines to add the
word ``presumptive.'' As explained above the Department has replaced
the phrase ``evidence of bad faith'' with ``evidence of a violation of
IGRA.''
Several commenters expressed opposition for the proposed Sec.
293.20. Commenters raised concerns that the proposed text appears to
allow States to tax gaming revenue. Other commenters noted this may
cause States to demand specific forms of Tribal taxation of Tribal
gaming and argues the provision is unnecessary.
The Department acknowledges the comment, but notes IGRA provides a
compact may address Tribal taxation of Tribal gaming in amounts
comparable to State taxation of State gaming. 25 U.S.C.
2710(d)(3)(C)(iv). The Department has revised Sec. 293.20 to clarify
this provision.
Comments on Sec. 293.21 May a compact or amendment include provisions
addressing remedies for breach of the compact?
Several commenters expressed support for the proposed Sec. 293.21
and the inclusion of a bad faith standard. Several commenters discussed
their experiences with States seeking to enforce dispute resolution
agreements or decisions that violated IGRA.
The Department acknowledges the comments. As explained above, the
Department has replaced the phrase ``evidence of bad faith'' with
``evidence of a violation of IGRA.''
Several commenters questioned the Secretary's authority to review
dispute resolution agreements, arbitration awards, settlement
agreements, or other resolutions of a dispute outside of Federal court.
The Department acknowledges the comments. The Secretary has
authority to promulgate these regulations based on the statutory
delegation of powers contained in IGRA and 25 U.S.C. 2, and 9 to review
compacts and amendments. The Department is aware of arbitration awards,
settlement agreements, and other similar dispute resolution agreements
which have amended the terms of a compact. IGRA requires the Secretary
to review compacts and publish notice in the Federal Register before a
compact is in effect and the Department has made conforming edits to
Sec. 293.4.
Several commenters expressed concern with the proposed Sec.
293.21. Commenters stated the documents sought under the provision was
overly broad. Other commenters suggested the proposed Sec. 293.21
would encourage parties to seek dispute resolution in Federal court and
discourage parties from seeking more cost effective and faster
resolution of disputes because of the risk the Secretary may reject the
agreement. Commenters noted settlement agreements are often
confidential. One commenter requested clarification why the Department
is interested in reviewing dispute resolution agreements and
arbitration awards. Another commenter cautioned the Department's review
of these provisions may prevent Tribes from exercising self-
determination and sovereignty in compact negotiations.
The Department acknowledges the comments. The Department seeks to
ensure all compacts, amendments, and dispute resolution agreements or
awards are consistent with IGRA and are properly in effect. The
Department has made conforming edits to Sec. Sec. 293.2, 293.4, 293.7,
and 293.21 to address concerns raised regarding secretarial review of
compact amendments arising out of dispute resolution. The Department
encourages parties to resolve compact disputes in a timely, cost-
effective manner, which is consistent with IGRA.
Several commenters requested the Department revise the proposed
Sec. 293.21 by amending the title and adding text to Sec. 293.21. The
proposed title would read: ``[m]ay a compact or amendment include
provisions addressing the resolution of disputes for breach of the
compact?''
The Department has accepted the proposed revisions in part. As
explained above, the Department has replaced the phrase ``evidence of
bad faith'' with ``evidence of a violation of IGRA.''
Several commenters requested the Department clarify if compacts
should include dispute resolution options other than termination of a
compact, which only harms the Tribe.
The Department acknowledges the comments. The Department notes that
compacts are carefully negotiated long-term agreements between
sovereigns. IGRA provides compacts may include ``remedies for breach of
contract.'' The Department notes well drafted compacts include options
for the parties to continue operating under the compact, while seeking
to resolve any disputes arising from the compact. If the compact
includes payments to the State for regulatory costs as described in
proposed Sec. 293.19, or revenue sharing as described in Sec. 293.25,
the Department recommends including provisions which permit the Tribe
to divert disputed funds into an escrow account.
One commenter requested the Department include a grandfather clause
for established settlement agreements to protect the settled
expectations of parties to existing agreements. The commenter explained
a party may seek to relitigate a settled dispute by arguing the
agreement is not valid.
The Department declines to include a grandfather clause for
settlement agreements which have not been submitted for Secretarial
review and
[[Page 74932]]
publication of a notice in the Federal Register. The Department has
included revisions to the proposed Sec. 293.21 as well as Sec. 293.4
to clarify and limit the scope of this review. The Department
encourages parties to seek Sec. 293.4 review if the parties are
concerned their settlement agreement is an `amendment.'
Comments on Sec. 293.22 May a compact or amendment include provisions
addressing standards for the operation of gaming activity and
maintenance of the gaming facility?
A number of commenters expressed support for the proposed Sec.
293.22 and requested the Department strengthen the provision by
defining what qualifies as ``maintenance'' in greater detail.
Commenters explained some States seek expansive regulatory standards
that are not related to the maintenance of a facility. Other commenters
noted State's may seek to require a Tribe to adopt State law equivalent
ordinances and requested the Department add the following sentence to
Sec. 293.22, ``[i] f a compact or amendment mandates that the Tribe
adopt standards equivalent or comparable to the standards set forth in
a State law or regulation, the parties must show that these mandated
Tribal standards are both directly related to and necessary for, the
licensing and regulation of the gaming activity.''
The Department acknowledges the comments and has revised Sec.
293.22 by including the requested sentence.
Comments on Sec. 293.23--Which Has Been Renumbered as 293.24--What
factors will be used to determine whether provisions in a compact or
amendment are directly related to the operation of gaming activities?
The Department has renumbered the proposed Sec. 293.23 as Sec.
293.24 comments have been edited to reflect the new section number.
Several commenters expressed support for the proposed Sec. 293.24.
Commenters explained the provision would improve compact negotiations
by providing parties with clear guidance on which topics are consistent
with IGRA and which topics are outside of IGRA's narrow scope of
compact terms under 25 U.S.C. 2710(d)(3)(C). Commenters noted the
proposed Sec. 293.24 is consistent with the Departments long standing
requirement of a direct connection and repudiation of some States'
application of a ``but for'' test.
The Department acknowledges the comments.
One commenter expressed concern that the Department was
inadvertently creating additional tests including a ``incidental
benefit'' test in Sec. 293.24.(b) and a ``not directly related'' test
in Sec. 293.24(b) and (c) as well as an ``unrelated to'' test in Sec.
293.24(c)(4).
The Department acknowledges the comments. The Department has
revised Sec. 293.24(b) and (c)(4) for consistency and notes the phrase
``not directly related'' as used in Sec. 293.24 as the inverse of the
phrase ``directly related.''
One commenter recommended the Department include a section
immediately preceding proposed Sec. 293.24 mirroring the question-and-
answer format of the proceeding sections in Subpart D. The section
would be titled ``[m]ay a compact or amendment include provisions that
are not directly related to the operation of gaming activities?'' With
a firm declaration that provisions which are not directly related to
the operation of gaming activities is a violation of IGRA.
The Department has incorporated the recommended section with
modifications for consistency with the proceeding section in Subpart D.
The new section is numbered Sec. 293.23 and the following sections
have been renumbered.
Several commenters recommended the Department revise Sec. 293.24
by inserting the word ``activity'' or ``activities'' after the phrase
``class III gaming'' for consistency with other sections in part 293.
The Department has added the word ``activity'' or ``activities'' as
appropriate in Sec. 293.24.
Several commenters requested the Department provide a table of
authority for provisions considered ``directly related to the operation
of gaming activities'' under Sec. 293.24(a) as well as provisions
considered ``not directly related to the operation of gaming
activities'' under Sec. 293.24(c). Commenters recommended the
Department revise or remove provisions which were not supported by past
decisions issued by the Department and/or case law.
The Department has prepared a table of authorities addressing these
and other provisions.
Several commenters recommended the Department provide standards
and/or a procedure within the regulatory text outlining how the parties
are expected to comply with the requirement in Sec. 293.24(a) to
``show that [provisions included in the compact or amendment] are
directly connected to the Tribe's conduct of class III gaming.''
Commenters also recommended the Department include in the part 293
regulations deference to a reasonable Tribal determination that a
provision is directly connected to the Tribe's conduct of class III
gaming.
The Department declines to provide a specific procedure for
complying with Sec. 293.24 in order to provide the parties with the
necessary flexibility to address the specific terms of their agreement.
Some parties chose to provide a justification brief explaining key or
novel provisions to the Department as part of their compact or
amendment submission. When necessary, the Department's practice is to
request additional information from the parties regarding specific
provisions in the compact or amendment. Additionally, the Department
frequently provides technical assistance to parties negotiating a
compact or amendment by flagging provisions which may violate IGRA or
may require additional justification. A best practice for compacts
requiring State legislative approval is to seek technical assistance
before the compact is formally adopted by legislative action.
A number of commenters responded to the Department's third
consultation question ``[s]hould the draft revisions include provisions
that facilitate or prohibit the enforcement of State court orders
related to employee wage garnishment or patron winnings?'' Commenters
encouraged the Department to include provisions which prohibit Tribal
enforcement of State court orders related to employee wage garnishment
and/or patron winnings in compacts. The commenters explained that these
provisions are not directly related to operation of gaming activities
under 25 U.S.C. 2710(d)(3)(C)(vii). Further some commenters explained
they have prevailed in litigation arguing that State court wage
garnishment orders are not binding on the Tribe or the Tribe's
employees. Commenters noted that while comity agreements between
sovereigns may be mutually beneficial, compact negotiations should not
be used to force Tribes to enforce these provisions. Commenters also
explained without a Tribal law mechanism for domesticating a State
court order, enforcing such an order erodes Tribal sovereignty and
exposes the Tribe and the Tribal gaming operation to unwarranted
liability.
The Department has added enforcement of State court orders to the
list of provisions which are not directly related to the operational
gaming activities in Sec. 293.24(c). The Department notes this is
consistent with the 9th Circuit decision in Chicken Ranch Ranchera of
Me-Wuk Indians v. California, 42 F.4th 1024 (9th Cir. 2022).
Several commenters requested the Department include in the Sec.
293.24(c)
[[Page 74933]]
list of provisions which are not directly related to the operation of
gaming activities provisions which require the Tribe to negotiate
memorandum of understanding or intergovernmental agreements with local
governments.
The Department has added requiring memorandum of understanding or
intergovernmental agreements with local governments to the list of
provisions which are not directly related to the operational gaming
activities in Sec. 293.24(c). The Department notes this is consistent
with the 9th Circuit decision in Chicken Ranch Ranchera of Me-Wuk
Indians v. California, 42 F. 4th 1024 (9th Cir. 2022).
Several commenters requested the Department include in the Sec.
293.24(c) list of provisions, which are not directly related to the
operation of gaming activities, provisions which require the Tribe to
submit to State court jurisdiction over tort claims arising from the
Tribe's conduct of class III gaming activities.
The Department has added requiring State court jurisdiction over
tort claims arising from the Tribe's conduct of class III gaming
activities to the list of provisions which are not directly related to
the operational gaming activities in Sec. 293.24(c). The Department
notes this is consistent with the District of New Mexico's decision in
Pueblo of Santa Ana v. Nash, 972 F. Supp. 2d 1254 (D.N.M 2013).
Several commenters requested the Department include an additional
paragraph to Sec. 293.24 codifying the Department's practice of
providing technical assistance letters to negotiating parties regarding
whether a proposed compact provision is `directly related' to the
Tribe's operation of gaming activities consistent with IGRA. Commenters
requested the Department further include avenues for parties to obtain
assistance from the Department in seeking guidance letters or legal
opinions from the National Indian Gaming Commission and the United
States Department of Justice.
The Department declines to adopt a formal codification of its
practice providing technical assistance to Tribes and States. The
Department will continue to coordinate with the Department of Justice
and the National Indian Gaming Commission regarding enforcement of
IGRA.
Comments on Sec. 293.24(a)
Several commenters objected to the Department's inclusion of
provisions in Sec. 293.24(a) addressing patron conduct within the
gaming facility as ``directly related to the Tribe's conduct of
gaming.'' Commenters argued the examples provided--without further
clarification or supporting past precedent and or case law--may cause
confusion and invite State overreach. Other commenters noted the
examples provided of subjects regulating patron conduct included
subjects which resulted in contentious negotiations with their
respective States, including State attempts to ban alcohol and smoking
in Tribal facilities while requiring State licensed facilities serve
alcohol. Other commenters recommended the Department revise the list of
examples in Sec. 293.24(a) to reflect non-controversial subjects that
are ``directly related to the Tribe's conduct of gaming'' including
minimum age restrictions and the transportation of gaming devices and
equipment.
The Department acknowledges the comments. The Department has
provided a comprehensive table of authorities supporting the examples
included in Sec. 293.24(a). The Department has also revised the list
to reflect non-controversial subjects the Department has found to be
``directly related to the Tribe's conduct of gaming.'' We note the
inclusion of an item in the Department's ``directly related'' list in
Sec. 293.24(a) does not suggest a State may insist on any requirement
addressing a ``directly related'' item.\6\
---------------------------------------------------------------------------
\6\ See, e.g., Chicken Ranch Ranchera of Me-Wuk Indians v.
California, 42 F.4th 1024, 1063 (9th Cir. 2022).
---------------------------------------------------------------------------
Several commenters recommended stylistic edits to Sec. 293.24(a)
for consistency with Sec. 293.24(c).
The Department has revised Sec. 293.24 for consistency.
One commenter noted the reference to patron conduct in Sec.
293.24(a) could include illegal patron conduct including trafficking in
the gaming facility and adjacent non-gaming amenities. The commenter
requested the Department's view on provisions which address criminal
jurisdiction.
The Department acknowledges the comment. The phrase ``patron
conduct'' has been removed from Sec. 293.24(a). Further, criminal
jurisdiction is addressed in Sec. 293.17.
Comments on Sec. 293.24(b)
Several commenters questioned the Department's inclusion of Tribal
infrastructure projects in Sec. 293.24(b) and noted provisions
addressing those projects may be beneficial to Tribes.
The Department acknowledges the comments. The Department notes that
infrastructure projects may be beneficial for Tribes. The Department
included Tribal infrastructure in Sec. 293.24(b) to highlight that
these projects should not be ``considered directly related to the
Tribe's conduct of gaming'' simply because they may be funded using
gaming revenue or may provide a benefit to the gaming facility.
Several commenters requested the Department remove the word
``incidental'' from Sec. 293.24(b). Commenters noted the phrase
``incidental benefits'' may cause confusion and result in unintended
State overreach.
The Department has removed the word ``incidental'' from Sec.
293.24(b).
Comments on Sec. 293.24(c)
One commenter requested the Department revise Sec. 293.24(c) to
state ``Provisions which the Department may consider not directly
related to the operation of gaming activities includes . . .''
The Department declines to adopt the requested revision.
Several commenters raised concerns with the Department's
interpretation in Sec. 293.24(c)(1) that ``[l]imiting third party
Tribes' rights to conduct gaming'' is not directly related to operation
of gaming activities under 25 U.S.C. 2710(d)(3)(C)(vii). Several
commenters requested clarification and noted the Department has
approached compact provisions impacting third party Tribes differently
and cited to the Department's discussion and approval of ``section 9''
in the 1993 Michigan compacts. Other commenters noted that Sec.
293.24(c)(1) could include Tribal parity provisions or `most favored
nation' provisions. Other commenters recommended the Department remove
this provision arguing it is ambiguous and potentially limits
geographic exclusivity provisions. Other commenters applauded Sec.
293.24(c)(1) and noted it appeared consistent with the Departments long
standing objection to compact provisions which sought to limit third
party Tribes' rights under IGRA.
The Department acknowledges the comments. The Department has
consistently distinguished compacts with Statewide gaming market
regulatory scheme from compacts which limit third party Tribes rights
under IGRA. In both Michigan and Arizona, the States and the Tribes
negotiated mutually beneficial agreements addressing the location and
size of Tribal gaming as part of a Statewide scheme. These and similar
compacts included Tribe-to-Tribe revenue sharing provisions to offset
market disparities between urban and rural Tribes. These compacts are
identical across the State or contain identical relevant provisions.
The Department has consistently found
[[Page 74934]]
these types of agreements consistent with IGRA.\7\
---------------------------------------------------------------------------
\7\ See, e.g., Letter from Ada Deer, Assistant Secretary--Indian
Affairs to Jeff Parker, Chairperson, Bay Mills Indian Community
dated November 19, 1993, approving the 1993 Michigan Compact; Letter
from Bryan Newland, Principal Deputy Assistant Secretary--Indian
Affairs, to Robert Miguel, Chairman Ak-Chin Indian Community, dated
May 21, 2021, at 2, discussing the Tribe-to-Tribe revenue sharing
and gaming device leasing provisions.
---------------------------------------------------------------------------
These are contrasted by compacts which act to prevent a Tribe, who
is not party to the compact or the broader Statewide scheme, from
exercising its full rights to conduct gaming under IGRA, most notably
in the form of geographic exclusivity from Tribal competition. The
Department has consistently expressed concern with these types of
arrangements, and in some cases disapproved compacts containing such
provisions.\8\ The Department has not limited this provision to ``anti-
compete'' or ``geographic exclusivity from Tribal competition'' to
permit the Secretary flexibility in evaluating other provisions which
may also improperly limit a third-party Tribe's rights under IGRA.
---------------------------------------------------------------------------
\8\ See, e.g., Letter from Gale Norton, Secretary of the
Interior, to Cyrus Schindler, Nation President, Seneca Nation of
Indians dated November 12, 2002, discussing the limits placed on
Tonawanda Band and the Tuscarora Nation in the Seneca Nation's
exclusivity provisions, and describing such provisions as ``anathema
to the basic notion of fairness in competition and . . .
inconsistent with the goals of IGRA''; Letter from Aurene Martin,
Assistant Secretary--Indian Affairs (acting), to Harold ``Gus''
Frank, Chairman, Forest County Potawatomi Community, dated April 25,
2003, addressing the parties removal of section XXXI.B which created
a 50 mile `no fly zone' around the Tribe's Menominee Valley facility
and explained ``we find a provision excluding other Indian gaming
anathema to basic notions of fairness in competition and
inconsistent with the goals of IGRA''; Letter from Aurene Martin,
Assistant Secretary--Indian Affairs (acting), to Troy Swallow,
President, Ho-Chunk Nation, dated August 15, 2003, addressing
section XXVII(b), limiting the Governor's ability to concur in a
two-part Secretarial Determination under section 20(b)(1)(A) of IGRA
for another Tribe as ``repugnant to the spirit of IGRA''; Letter
from Kevin Washburn, Assistant Secretary--Indian Affairs, to Harold
Frank, Chairman, Forest County Potawatomi Community dated January 9,
2013, disapproving an amendment which would have made the Menominee
Tribe guarantee Potawatomi's Menominee Valley facility profits as a
condition of the Governor's concurrence for Menominee's Kenosha two-
part Secretarial Determination, affirmed by Forest Cty. Potawatomi
Cmty. v. United States, 330 F. Supp. 3d 269 (D.D.C. 2018). See also
Letter from Bryan Newland, Assistant Secretary--Indian Affairs to
Claudia Gonzales, Chairwoman, Picayune Rancheria of Chukchansi
Indian of California, dated November 5, 2021, at 13.
---------------------------------------------------------------------------
Commenters recommended the Department include examples of ``non-
gaming Tribal economic activities'' to clarify the Department's
standard articulated in Sec. 293.24(b).
The Department has included examples of non-gaming Tribal economic
development in Sec. 293.24(c)(8).
Comments on Sec. 293.24--Which Has Been Renumbered as Sec. 293.25--
What factors will the Secretary analyze to determine if revenue sharing
is lawful?
The Department has renumbered the proposed Sec. 293.24 as Sec.
293.25 and comments have been edited to reflect the new section number.
A number of commenters responded to the Department's fifth
consultation question: ``[s]hould the draft revisions include
provisions that identify types of meaningful concessions that a Tribe
may request from State, other than protection from State-licensed
commercial gaming (i.e., exclusivity), for which a Tribe could make
revenue-sharing payments? How would such provisions affect compact
negotiations?'' Many commenters expressed support for including an
illustrative list of potential concessions similar to the lists in
Sec. 293.24. Commenters noted such a list would aid negotiating
parties in identifying types of concessions a State may offer in
exchange for revenue sharing. Commenters suggested examples could
include: geographic exclusivity, Statewide mobile sports wagering, and
a Governor's concurrence in a Secretarial Two-Part Determination under
section 2719(b)(1)(A). Other commenters opposed including an
illustrative list of potential concessions similar to the lists in
Sec. 293.24. Those commenters noted States may improperly use such a
list to demand revenue sharing while offering a concession of limited
value to the Tribe. Commenters recommended the Department follow a
case-by-case evaluation which provides negotiating parties flexibility.
The Department acknowledges the comments and notes these comments
highlight the sensitive nature of revenue sharing in compacts. The
Department declines to include a list of meaningful concessions as both
the concession and the revenue sharing rate must be evaluated on a
case-by-case basis. The Department has approved revenue sharing in
exchange for meaningful concessions including geographic exclusivity
from State-licensed gaming and Statewide mobile or i-gaming
exclusivity.\9\ The Department cautions parties not to negotiate for a
future meaningful concession which may require intervening Federal or
State actions as that concession may be considered illusory.
---------------------------------------------------------------------------
\9\ See, e.g., Letter from Bryan Newland, Assistant Secretary--
Indian Affairs to the Honorable R. James Gessner, Jr., Chairman,
Mohegan Tribe of Indians dated September 10, 2021, approving the
Tribe's compact amendment with the State of Connecticut; and Letter
from Bryan Newland, Assistant Secretary--Indian Affairs to the
Honorable Rodney Butler, Chairman, Mashantucket Pequot Indian Tribe
dated September 10, 2021, approving the Tribe's amendment to its
Secretarial Procedures, as amended in agreement with the State of
Connecticut.
---------------------------------------------------------------------------
A number of commenters expressed support for the proposed Sec.
293.25. Commenters noted the proposed Sec. 293.25 appeared to codify
existing case law as well as the Department's articulation of the test
for determining if revenue sharing is appropriately bargained for
exchange or an improper tax. Commenters noted that some States seek to
require--or heavily incentivize--intergovernmental agreements with
political subdivisions of the State, such as a local government,
requiring payments by the Tribe as a disguised tax. Commenters noted
this will assist parties in compact negotiations by clearly
articulating the Department's test for evaluating revenue sharing.
Several commenters recommended the Department review revenue sharing
provisions in compacts on a case-by-case basis with deference to a
Tribe's sophisticated negotiations and cautioning against a
paternalistic review.
The Department acknowledges the comments and notes the proposed
Sec. 293.25 codifies the Department's longstanding test for evaluating
revenue sharing. The Department included payments to local governments
in Sec. Sec. 293.4, 293.8, 293.25, and 293.28, in an effort to address
mandated intergovernmental agreements which may disguise improper
taxes.
Several commenters requested the Department define ``meaningful
concession'' and ``substantial economic benefit.'' Commenters proposed
the Department define meaningful concession as: (1) something of value
to the Tribe; (2) related to gaming; (3) which carries out the purposes
for which the IGRA was enacted, and (4) which is not a proper subject
of negotiation that the State already has an obligation to negotiate
with the Tribe under IGRA.
The Department accepted this comment. A new definition for
``meaningful concession'' is adopted in Sec. 293.2, which reads as
follows: a ``meaningful concession'' is: (1) something of value to the
Tribe; (2) directly related to gaming; (3) something that carries out
the purposes of IGRA, and (4) not a subject over which a State is
otherwise obligated to negotiate under the IGRA.
A new definition for ``substantial economic benefits'' is adopted
in Sec. 293.2, which reads as follows: ``substantial economic
benefits'' is: ``(1) a beneficial impact to the Tribe, (2) resulting
from a meaningful concession,
[[Page 74935]]
(3) made with a Tribe's economic circumstances in mind, (4) spans the
life of the compact, and (5) demonstrated by an economic/market
analysis or other similar documentation submitted by a Tribe or a
State.''
Several commenters requested the Department include a requirement
within Sec. Sec. 293.8 and 293.25 for the compacting Tribe to submit a
market analysis to demonstrate that any revenue sharing arrangements
will provide actual benefits to the Tribe which justify the payment
amount.
The Department acknowledges the comments. The Department has added
the requested requirement to Sec. Sec. 293.8 and 293.25. Section
293.8(e) is amended to require a Tribe or a State to submit a market
analysis along with their compact when the compact contains revenue
sharing provisions. Additionally, Sec. 293.25(b)(2) is amended to
include ``the value of the specific meaningful concessions offered by
the State provides substantial economic benefits to the Tribe in a
manner justifying the revenue sharing required by the compact.''
Several commenters requested the Department include IGRA's primary
beneficiary test to the Department's revenue sharing analysis.
The Department acknowledges the comments. The Department has added
the requested requirement to Sec. 293.25 as a new Sec. 293.25(b)(3),
which now requires evidence showing that the Tribe is the primary
beneficiary of its conduct of gaming, if the parties adopt revenue
sharing.
A number of commenters described their varying experiences under
differing revenue sharing arrangements. Some noted revenue sharing has
become a necessary negotiation tactic to bring a reluctant State to the
negotiation table after the Supreme Court's decision in Seminole. Some
commenters discussed revenue sharing with local governments through
intergovernmental agreements. Others noted that some particularly high
revenue sharing rates based on gross revenue have resulted in the State
receiving more revenue than the Tribe's portion of the net revenue.
Commenters also discussed situations when States have either actively
sought to undermine the Tribe's exclusivity--while not technically
violating the compact--or refusing to enforce State law to protect the
Tribe's exclusivity.
The Department acknowledges these comments. The Department has long
expressed concern with relatively high revenue sharing arrangements,
often permitting compacts containing them to go into effect and
occasionally disapproving them. The Department's understanding of
revenue sharing provisions, as well as exclusivity provisions, has
evolved consistent with case law and experiences of Tribes operating
under differing revenue sharing provisions for more than 30 years. The
Department has long offered, and will continue to offer, technical
assistance--highlighting the Department's precedents as well as
observed best practices--to parties negotiating revenue sharing
provisions.
A number of commenters questioned the Secretary's authority to
review revenue sharing with ``great scrutiny'' or include a bad faith
standard to evaluations of revenue sharing provisions. One commenter
opined revenue sharing payments are an improper workaround for IGRA's
prohibition on the assessment of a tax, fee, charge, or other
assessment. Other commenters expressed concern with the proposed Sec.
293.25 and cautioned the proposed provisions may cause unintended
consequences including limiting a Tribe's options to contribute
reasonable revenue share to a State to protect exclusivity or
redistribute funds to non-gaming Tribes. One commenter opined the
Department's past precedents on revenue sharing and exclusivity is
suspect, citing the Department's decisions in New Mexico and New York
and questioning the value of the exclusivity over the lives of those
compacts.
The Department acknowledges the comments. The proposed regulations
codify the Department's longstanding test for determining when revenue
sharing in a compact is a prohibited ``tax, fee, charge, or other
assessment'' because it goes beyond what is permitted by guidance in
relevant court decisions. The Department notes that its evaluation of
revenue sharing has evolved to incorporate changes in case law
including Rincon v. Schwarzenegger, 602 F.3d 1019 (9th Cir. 2010). The
Department finds persuasive, but not binding, the language in Rincon
where the Ninth Circuit explained that IGRA requires courts to consider
a State's demand for taxation as evidence of bad faith, not conclusive
proof (citing In re Indian Gaming Related Cases (Coyote Valley II), 331
F.3d 1094, 1112-13 (9th Cir. 2003), which in turn cited section
2710(d)(7)(B)(iii)(II)). The Department's great scrutiny standard is
consistent with IGRA's prohibition on a State demanding a tax, fee,
charge, or other assessment under section 2710(d)(4) and IGRA's
instruction to the courts in section 2710(d)(7)(B)(iii)(II). The
Department notes the Secretary expressed concerns with the exclusivity
provisions in both the 2015 New Mexico deemed approval letters and the
2002 Seneca Nation deemed approval letter but deferred to the judgment
of the Tribes.\10\ As explained above, the Department has replaced the
phrase ``evidence of bad faith'' with ``evidence of a violation of
IGRA.''
---------------------------------------------------------------------------
\10\ See Letter from Gale Norton, Secretary of the Interior, to
Cyrus Schindler, Nation President, Seneca Nation of Indians dated
November 12, 2002; see also Letter from Kevin Washburn, Assistant
Secretary--Indian Affairs, to Ty Vicenti, President, Jicarilla
Apache Nation, dated June 9, 2015.
---------------------------------------------------------------------------
Several commenters suggest the Department expand the bad faith
standard in Sec. 293.24(c). Some commenters requested the Department
include a State's continued insistence that the Tribe accept the
proposed ``meaningful concession'' in exchange for revenue sharing as
evidence of bad faith. Commenters opined that the provision is
consistent with the Ninth Circuit's analysis of the issue in Rincon
Band v. Schwarzenegger, 602 F.3d 1019 (9th Cir. 2010). Other commenters
requested the Department include a State's request for revenue sharing,
or insistence on a specified rate paid by other Tribes, either in the
State or in a neighboring State, or past rates that are no longer
supported by the current market, as presumptive evidence of bad faith.
Other commenters requested the Department include a State's disparate
treatment of similarly situated Tribes in the State as presumptive
evidence of bad faith.
The Department declines to include additional examples as bad faith
or adopt a ``presumptive bad faith'' standard. As explained above, the
Department has replaced the phrase ``evidence of bad faith'' with
``evidence of a violation of IGRA.'' The compact negotiation process in
IGRA envisions a negotiation between two sovereigns, although the
Department notes in some instances Tribes have successfully engaged in
collective negotiations with the State. If a State makes an offer which
the Tribe rejects, the Tribe may make a counteroffer. The IGRA provides
that if a State does not negotiate, or does not negotiate in good
faith, the remedial provisions of the statute permit a Tribe to bring
an action in Federal district court. The Department will continue to
coordinate with the Department of Justice and the National Indian
Gaming Commission regarding enforcement of IGRA.
Some commenters requested the Department revise Sec. 293.25 to
require the Tribe to initiate revenue sharing negotiations and to tie
the revenue sharing provision's specific payments to specific
concessions. The proposed revised text would read: ``(1) the Tribe
[[Page 74936]]
requested and the State has offered specific meaningful concessions the
State was otherwise not required to negotiate; and (2) the value of the
specific meaningful concessions offered by the State provides
substantial economic benefits to the Tribe in a manner justifying the
revenue sharing required by the compact.''
The Department accepts the requested revision as Sec.
293.25(b)(1) and (2).
One commenter requested the Department include a provision in
Sec. 293.25 permitting the Tribe, during the life of the compact,
to request technical assistance or a legal opinion if the meaningful
concession continues to provide substantial economic benefits to the
Tribe justifying continued revenue sharing payments and, if not, to
what extent the revenue sharing payments should be adjusted to
remain in compliance with IGRA.
The Department declines to adopt the requested provision in Sec.
293.25. The Department will continue to offer technical assistance to
Tribes and States, including identification of best practices. The
Department notes best practices include careful drafting of both the
terms of the Tribe's exclusivity--or other meaningful concession--along
with remedies for breach and triggers for periodic renegotiation of
specific provisions.
Several commenters requested the Department clarify that a State's
obligation under IGRA to negotiate a compact is not a ``meaningful
concession'' for the purposes of revenue sharing.
The Department acknowledges the comments. Congress required Tribes
and States to negotiate class III gaming compacts in good faith,
provided a remedy if States refused to negotiate in good faith, limited
the scope of bargaining for class III gaming compacts, and prohibited
States from using the process to impose any tax, fee, charge or other
assessment on Tribal gaming operations. 25 U.S.C. 2710(d).
Several commenters noted the proposed Sec. 293.25, while helpful
for most Tribes and States, is without a Seminole fix effectively a
dead letter.
The Department has addressed comments requesting a Seminole fix
above under general comments. There the Department notes it has long
coordinated with the Department of Justice and the National Indian
Gaming Commission regarding enforcement of IGRA.
Several commenters requested the Department clarify that the result
of a ``bad faith'' determination under Sec. 293.25 would result in
automatic disapproval of the compact or amendment.
The Department declines to establish an automatic disapproval
standard. As explained above, the Department has replaced the phrase
``evidence of bad faith'' with ``evidence of a violation of IGRA.'' The
Secretary's discretion to disapprove or take no action is discussed
under Sec. Sec. 293.12, 293.15, and 293.16.
One commenter noted that the proposed regulation at Sec. 293.25,
when read in conjunction with Sec. 293.24, is ambiguous and needs to
be clarified. The two proposed regulations, taken together, seem to
imply that the ``meaningful concession exception'' is limited to a
State's demand for a fee.
The Department acknowledges the comments. The Department notes
Sec. 293.24 addresses provisions which are considered ``directly
related to gaming'' while Sec. 293.25 addresses revenue sharing. The
Department also notes the recent decision by the Ninth Circuit in
Chicken Ranch overturned the district court's application of the
meaningful concession test to provisions which were tangentially
related to gaming. The Department finds the Ninth Circuit's reasoning
persuasive, but not binding, that meaningful concessions cannot make an
out-of-scope topic proper under IGRA. Chicken Ranch Ranchera of Me-Wuk
Indians v. California, 42 F.4th 1024 (9th Cir. 2022)
Comments on Sec. 293.25--Which Has Been Renumbered as Sec. 293.26--
May a compact or extension include provisions that limit the duration
of the compact?
The Department has renumbered the proposed Sec. 293.25 as Sec.
293.26 comments have been edited to reflect the new section number.
Several commenters expressed support for the proposed Sec. 293.26
and explained compacts should be very long term or perpetual.
Commenters noted the negotiation process can be lengthy and require a
significant investment of resources.
The Department acknowledges the comments.
Several commenters expressed support for the inclusion of a bad
faith standard in the proposed Sec. 293.26. Several commenters
requested the Department add the word ``presumptive'' so the relevant
sentence would read ``[a] refusal to negotiate a long-term compact, or
a short-term extension to allow for negotiations to continue, is
considered presumptive evidence of bad faith.''
The Department acknowledges the comments but declines the requested
revision. As explained above the Department has replaced the phrase
``evidence of bad faith'' with ``evidence of a violation of IGRA.''
One commenter requested the Department define ``long-term'' as at
least 15-years, and ``short-term'' as at least one year.
The Department declines the proposed definition of ``at least 15-
years'' for long term but has accepted the proposed definition of ``at
least 1 year'' for short term.
Several commenters requested the Department clarify that the
existence of a compact with a Tribe does not negate a State's
obligation to negotiate a new compact or an amended compact for the
period after the current compact expires.
The Department acknowledges the comments. The Department notes IGRA
at 25 U.S.C. 2710(d)(3)(A) obligates a State to negotiate with a Tribe
in good faith at the request of the Tribe. The existence of a compact
does not absolve the State of its duty under IGRA.
Comments on Sec. 293.26--Which Has Been Renumbered as 293.27--May a
compact or amendment permit a Tribe to engage in any form of class III
gaming activity?
The Department has renumbered the proposed Sec. 293.26 as 293.27
comments have been edited to reflect the new section number.
Several commenters expressed their support for this provision,
noting that it will assist Tribes in negotiating scope of gaming
provisions.
The Department acknowledges the comments.
A few commenters, while expressing support for the provision,
stated that the provision was unclear as to its intent, and requested
that the Department clarify that ``any'' means ``all.'' One commenter
suggested the Department modify the second sentence to clarify the
intent of the provision as follows: ``A State's refusal to negotiate a
compact over all forms of class III gaming if it allows any form of
class III gaming, is considered evidence of bad faith.'' While one
commenter suggested the Department revise the second sentence to remove
``not prohibited by the State.''
The Department acknowledges the comments but declines the requested
revisions. As explained above, the Department has replaced the phrase
``evidence of bad faith'' with ``evidence of a violation of IGRA.'' The
language used by the Department follows the authority granted by IGRA.
One commenter noted that the term ``not prohibited'' has been the
subject of much debate, interpretation, and litigation since IGRA was
enacted and that a State, although its laws may
[[Page 74937]]
prohibit such gaming, the State allows it to occur through non-
enforcement. The commenter suggested that the Department revise the
provision to make it clear that the mere existence of laws which state
that class III gaming or a form of class III gaming is prohibited alone
are not determinative of whether a State in fact prohibits class III
gaming or a form of class III gaming, and that the Department will also
examine the State's policies and practices regarding enforcement of
laws that purport to prohibit class III gaming or a form of class III
gaming in determining whether a State in fact prohibits such gaming.
The Department acknowledges the comment but declines the requested
revision. The language used by the Department follows the authority
granted by IGRA.
Many commenters, while expressing support for the provision, noted
that courts have disagreed with this approach, particularly the Tenth
Circuit, Ninth Circuit, and Eighth Circuit, where those courts adopted
a narrower interpretation of the term ``permits such gaming,'' adopting
the view that the phrase ``such gaming'' refers to specific types of
class III games that a State permits. These commenters expressed
concern that the provision is thus inconsistent with these more recent
Federal court decisions and may lead to unnecessary litigation and
cause some confusion and obstruction in future compact negotiations.
One commenter questioned the language of Sec. 293.27, noting that
there is a body of Federal case law regarding the distinction between
``permitted'' and ``prohibited'' gaming activities. The commenter did
not believe that Sec. 293.27 adds value to existing case law.
The Department acknowledges these comments. The Department takes
the position that the Second Circuit's decision in Mashantucket Pequot
Tribe v. Connecticut, 913 F. 2d 1-24 (2d Cir. 1990) holding that
Congress intended to codify the test set out in California v. Cabazon
Band of Mission Indians, 480 U.S. 202 (1987) when it used the phrase
``permits such gaming'' such that IGRA refers to class III gaming
categorically is correct. Under the Secretary's delegated authority to
interpret and promulgate rules for IGRA, the Department finds that if a
State allows any form of class III gaming, it is regulating all forms
of class III gaming, which are a subject for good faith negotiations.
One commenter stated that Sec. 293.27 appears to take a broader
approach in scope of class III games and that it was unclear whether as
currently drafted if Sec. 293.27 speaks in class III games regulated
by the State and not prohibited in the State and how provisions
regarding Statewide remote wagering or internet wagering would be
addressed under this provision.
The Department acknowledges this comment. Sec. 293.27 provides
that if a State allows any form of class III gaming, the State is
regulating all forms of class III gaming, which are permitted under
IGRA and thus a subject for good faith negotiations. In response to
comments received during consultation the Department has added a new
proposed section addressing i-gaming, Sec. 293.29.
Several commenters suggested that a State's refusal to allow all
forms of class III gaming as allowed under a State's constitution or
other laws should be considered presumptive evidence of bad faith.
The Department acknowledges these comments but declines to make
this revision. IGRA does not permit a presumptive determination of bad
faith. Additionally, as explained above the Department has replaced the
phrase ``evidence of bad faith'' with ``evidence of a violation of
IGRA.''
Comments on Sec. 293.27--Which Has Been Renumbered as Sec. 293.28--
May any other contract outside of a compact regulate Indian gaming?
The Department has renumbered the proposed Sec. 293.27 as Sec.
293.28 and comments have been edited to reflect the new section number.
Several commenters expressed support for the proposed Sec. 293.28.
The Department acknowledges the comments.
Several commenters expressed concern with proposed Sec. 293.28.
Commenters stated that the provisions requiring Tribes to submit all
the agreements encompassed under Sec. 293.28 and Sec. 293.4(b) are
overly broad and should be revised to ensure they do not impact
existing jurisdiction agreements, in lieu tax agreements, mutual aid
agreements for law enforcement, health and safety agreements, alcohol
regulation agreements, utility agreements, necessary roadway
improvements, lending agreements, vendor agreements, and
intergovernmental agreements with units of local governments.
Commenters assert that the breadth of Sec. 293.28 would create doubt
over the validity of many existing jurisdiction agreements, undermine
Tribal sovereignty, and interfere with the Tribes' ability to negotiate
necessary local agreements according to what the Tribe believes is in
its best interest based on its circumstances and experience.
Other commenters stated that the proposed new requirement for the
Secretary to approve any ``Agreements which include provisions for the
payment from a Tribe's gaming revenue . . . .'' is unnecessary and will
result in the submission of an ``exponential'' number of agreements to
the Office of Indian Gaming causing unnecessary delay and creating new
roadblocks to a Tribe's economic development efforts. Moreover,
offering a vague declination type remedy, with no time limit on agency
action and no deemed approval mechanism will create further unnecessary
delay. Further, IGRA at 25 U.S.C. 2710(d)(3) specifies ``compacts''
that are executed between Tribes and States under Federal and
applicable State law, not counties or other political subdivisions of
the State.
The Department accepted the comments, in part. Section 293.28 is
modified to indicate that only agreements between Tribes and States, or
States' political subdivisions, which govern gaming and include
payments from gaming revenue, are covered by this section. Agreements
that do not regulate gaming need not be submitted to the Department for
approval as part of a Tribal-State gaming compact. Likewise, agreements
between Tribes and the State and/or local governments that facilitate
cooperation and good governance, but that do not regulate gaming,
should not be incorporated into or referenced as a requirement of a
Tribal-State gaming compact. Additionally, the Department has revised
Sec. 293.4(b) to require the Department to issue a determination
whether a submitted document is a compact or amendment within 60 days
of it being received and date stamped by the Office of Indian Gaming.
Several commenters requested the Department revise Sec. 293.28 to
permit rather than require a Tribe to submit the targeted documents and
narrow which documents are targeted. Commenters explained the proposed
revisions to Sec. 293.28 would ensure that compacts and amendments do
not include provisions that are not directly related to the operation
of a Tribe's class III gaming operation. Commenters stated Tribes
should have the option to request the Department's review and approval
of other agreements, mandated or required by a compact or amendment,
that do not exceed the scope permitted under IGRA.
The Department accepted the requested revisions. The Department
revised Sec. 293.28 to reflect the section only covers agreements
between a Tribe and a State or the State's political subdivisions,
which regulates the
[[Page 74938]]
Tribe's right to conduct gaming or includes payments from the Tribe's
gaming revenue. The Department has also revised Sec. 293.4 as
discussed above. Agreements between a Tribe and the State and/or local
governments that facilitate cooperation and good governance, but that
do not regulate gaming or include payments from gaming revenue, should
not be incorporated into, or referenced as a requirement of, a Tribal-
State gaming compact.
Several commenters requested the Department revise proposed Sec.
293.28, to exclude lending/loan agreements. The commenter argued the
proposed language in Sec. 293.28 would require Tribes to send lending
agreements (loan documents) for Department review and approval under
IGRA because it is not uncommon for lending agreements to require a
Tribe hold gaming revenue in accounts for collateral or similar
purposes. Commenters questioned if the Department intends to review
financial documentation and lending agreements between Tribes and
third-party lenders, which are subject to the National Indian Gaming
Commission's review to determine if the agreement constitutes a
management contract. Commenters opined subjecting lending agreements to
review by the Department and the National Indian Gaming Commission
would be extremely burdensome.
The Department accepted the requested revisions. The Department
revised Sec. 293.28 to reflect the section only covers agreements
between a Tribe and a State or the State's political subdivisions,
which regulates the Tribe's right to conduct gaming or includes
payments from the Tribe's gaming revenue. Third-party agreements, such
as lending documents and regular course of business agreements need not
be submitted to the Department for approval as part of a Tribal-State
gaming compact.
Several commenters questioned the Secretary's authority to review
all documents included in the proposed Sec. 293.28. Commenters
explained section 2710(d)(3) of IGRA specifies that compacts are
executed between Tribes and States under Federal and applicable State
law, not counties or other political subdivisions of the State.
Commenters explained this provision would arguably require submission
of a vast number of agreements between Tribes and State and local
governments. Commenters asserted that the use of gaming revenue is
governed by 25 U.S.C. 2710(b)(2)(B) and many compacts and gaming
ordinances have similar requirements. Commenters argued policing non-
compact agreements, which call for payment from gaming revenue, is far
afield of the Secretary's limited authority to approve or disapprove a
compact.
The Department acknowledges the comments. IGRA directs that the
Secretary review and either approve or disapprove compacts within a 45-
day review period. In enacting IGRA, Congress delegated authority to
the Secretary to review compacts to ensure that they comply with IGRA,
other provisions of Federal law that do not relate to jurisdiction over
gaming on Indian lands, and the trust obligations of the United States.
25 U.S.C. 2710(d)(8)(B)(i)-(iii). IGRA establishes a limited scope of
appropriate topics in a Tribal-State gaming compact. Thus, in reviewing
submitted compacts and amendments, the Secretary is vested the
authority to determine whether the compacts contain topics outside
IGRA's limited scope. IGRA limits a Tribe's use of gaming revenue to:
funding Tribal governmental operations or programs; providing for the
general welfare of the Tribe and its members; promoting Tribal economic
development; donating to charitable organizations; or help fund
operations of local governmental agencies. 25 U.S.C. 2710(b)(2)(B).
However, IGRA in section 2710(d)(4) prohibits the State or its
political subdivisions from imposing a tax, fee, charge, or other
assessment. The Department reads section 2710(b)(2)(B) to permit a
Tribe to voluntarily help fund operations of local governmental
agencies, not as an end-run around the prohibition against imposed
taxes, fees, charges, or other assessments in section 2710(d)(4).
Section 293.25 includes a discussion of the Department's interpretation
of IGRA's prohibition against the imposition of a tax, fee, charge, or
other assessment.
Comments on Sec. 293.28--Which Has Been Renumbered as Sec. 293.31--
How does the Paperwork Reduction Act affect this part?
The Department has renumbered the proposed Sec. 293.28 as Sec.
293.31 comments have been edited to reflect the new section number.
Several commenters expressed support for the proposed Sec. 293.31.
The Department acknowledges the comments and notes the proposed
Sec. 293.31 is the renumbered but unrevised Sec. 293.16 in the
Department's 2008 Regulations.
V. Summary of Changes by Section
The Department proposes to provide primarily technical amendments
to the existing process-based regulations, including the title. The
proposed technical amendments are intended to clarify the process and
contain edits for internal consistency and improved readability. The
Department also proposes to add 15 sections addressing substantive
issues and organize part 293 into 4 subparts. The Department proposes
to amend the title to part 293 by removing the word ``process'' from
the title. The proposed amended title would be ``part 293 Class III
Tribal State Gaming Compacts.'' The Proposed Amendments incorporate
comments received during Tribal consultation on the Consultation Draft
and discussed above in the Tribal Consultation section.
A. Proposed Subpart A--General Provisions and Scope
The Proposed Subpart A, titled ``General Provisions and Scope''
would contain Sec. Sec. 293.1 through 293.5.
Proposed Amendments to Sec. 293.1--What is the purpose of the part?
The Department proposes technical amendments to clarify that the
proposed part 293 Regulations contain both procedural and substantive
regulations.
Proposed Amendments to Sec. 293.2--How are key terms defined in this
part?
The Proposed Amendment restructures the existing Sec. 293.2 by
removing the paragraph for the introductory sentence and editing that
sentence for clarity. The proposed restructuring improves clarity by
using the paragraphs for each defined term. The existing definitions
for Amendment, Compact or Tribal-State Gaming Compact, and Extension
reflect proposed edits to improve clarity and respond to comments
received during consultation. The Proposed Amendments includes seven
new definitions: gaming activity or gaming activities, gaming facility,
gaming spaces, IGRA, meaningful concession, substantial economic
benefit, and Tribe.
Gaming activity or gaming activities are interchangeable
terms repeatedly used in IGRA but not defined by IGRA. Therefore, the
Department proposes to define these terms as used in part 293 and in
Tribal-State gaming compacts as ``the conduct of class III gaming
involving the three required elements of chance, consideration, and
prize.''
Gaming Facility is a term used in IGRA at 25 U.S.C.
2710(d)(3)(C)(vi), but is not defined by IGRA. IGRA permits a compact
to include ``standards for the operation of such activity and
maintenance of the gaming facility, including licensing.'' As a result,
compacting parties have on occasion used this provision to extend State
regulatory standards beyond the
[[Page 74939]]
maintenance and licensing of the physical structure where the Tribe is
conducting gaming. The definition of gaming facility addresses building
maintenance and licensing under the second clause of 25 U.S.C.
2710(d)(3)(C)(vi) and is intended to be narrowly applied to only the
building or structure where the gaming activity occurs. Therefore, the
Department proposes to define gaming facility as ``the physical
building or structure where the gaming activity occurs.'' \11\
---------------------------------------------------------------------------
\11\ See, e.g. Letter to the Honorable Peter S. Yucupicio,
Chairman, Pascua Yaqui Tribe of Arizona, from the Director, Office
of Indian Gaming, dated June 15, 2012, at 5, and fn. 9, discussing
the American Recovery & Reinvestment Act of 2009 and the IRS's
``safe harbor'' language.
---------------------------------------------------------------------------
Gaming spaces is a term the Department has used to clarify
the physical spaces a compact may regulate. The Department proposed to
define Gaming Spaces as ``the areas within a Gaming Facility that are
directly related to and necessary for the conduct of class III gaming
such as: the casino floor; vault; count room; surveillance, management,
and information technology areas; class III gaming device and supplies
storage areas; and other secured areas. where the operation or
management of class III gaming takes place, including the casino floor,
vault, count, surveillance, management, information technology, class
III gaming device, and supplies storage areas.''
IGRA is the commonly used acronym for the Indian Gaming
Regulatory Act of 1988 (Pub. L. 100-497) 102 Stat. 2467 dated October
17, 1988, (Codified at 25 U.S.C. 2701-2721 (1988)) and any amendments.
The Department proposes to include IGRA as a defined term to facilitate
consistency and readability in the regulations.
Meaningful concession is a term the Department has adopted
from Ninth Circuit caselaw as part of the Department's long-standing
test for revenue sharing provisions. The Department proposes to define
meaningful concession as: ``something of value to the Tribe; directly
related to gaming; something that carries out the purposes of IGRA; and
not a subject over which a State is otherwise obligated to negotiate
under IGRA.''
Substantial economic benefit is a term the Department has
adopted from Ninth Circuit caselaw as part of the Department's long-
standing test for revenue sharing provisions. The Department proposes
to define substantial economic benefit as: a beneficial impact to the
Tribe; resulting from a meaningful concession; made with a Tribe's
economic circumstances in mind; spans the life of the compact; and
demonstrated by an economic/market analysis or similar documentation
submitted by the Tribe or the State.
Tribe--the Department is proposing to include Tribe as a
defined term to facilitate consistency and readability in the
regulations.
Proposed Amendments to Sec. 293.3--What authority does the Secretary
have to approve or disapprove compacts and amendments?
The Proposed Amendment contains a conforming edit to existing Sec.
293.3.
Proposed Amendments to Sec. 293.4--Are compacts and amendments subject
to review and approval?
The Proposed Amendments contains clarifying edits combining
paragraphs (a) and (b) from the 2008 Regulations into a new paragraph
(a); a new paragraph (b) which was proposed during Tribal consolation,
and a new paragraph (c) which creates a process by which the Parties
may seek a determination if an agreement or other documentation is a
``compact or amendment'' without submitting that agreement for review
and approval pursuant to IGRA. These proposed changes clarify that any
document between a Tribe and the State or its political subdivisions
which establish, change, or interpret the terms of a Tribe's compact or
amendment regardless of whether they are substantive or technical, must
be submitted for review and approval by the Secretary. The Department
is concerned that compacting parties have read the existing definition
of Compact in Sec. 293.2(b)(2) and the existing Sec. 293.4, narrowly
to exclude from Secretarial review a range of agreements or other
documents which often impact the parties understanding and application
of the terms of their compact, or payments made by a Tribe from gaming
revenue. The Department is proposing a new paragraph (b) to clarify the
scope of documents that may be considered an amendment and a new
paragraph (c) to allow parties to seek a determination from the
Department that their agreement is or is not a compact. This process is
modeled on the National Indian Gaming Commission's practice of issuing
declination letters for agreements which do not trigger NIGC's review
and approval of management contracts as required by IGRA at 25 U.S.C.
2711.
Proposed Amendments to Sec. 293.5--Are extensions to compacts subject
to review and approval?
The Proposed Amendments contain clarifying edits for consistency
and readability. Additionally, the Department is proposing to add a
sentence which codifies the Department's long-standing practice that an
extension must be published in the Federal Register to be in
effect.\12\
---------------------------------------------------------------------------
\12\ See, e.g. Notice of Final Rulemaking Part 293, 73 FR 74004,
74007 (Dec. 5, 2008).
---------------------------------------------------------------------------
B. Proposed Subpart B--Submission of Tribal-State Gaming Compacts
The Proposed Subpart B, titled ``Submission of Tribal-State Gaming
Compacts'' would contain Sec. Sec. 293.6 through 293.9.
Proposed Amendments to Sec. 293.6--Who can submit a compact or
amendment?
The Proposed Amendments contains conforming edits for consistency
to Sec. 293.6.
Proposed Amendments to Sec. 293.7--When should the Indian Tribe or
State submit a compact or amendment for review and approval?
The Proposed Amendments contains conforming edits for consistency
to both the heading and the body of Sec. 293.7.
Proposed Amendments to Sec. 293.8--What documents must be submitted
with a compact or amendment?
The Proposed Amendments contains conforming edits for consistency
to Sec. 293.8. Additionally, the Department is proposing to renumber
the existing paragraphs and add a new paragraph (d). The proposed
paragraph (d) would clarify that compact submission package should
include any agreements between the Tribe and the State or its political
subdivisions which are required by the compact or amendment and either
involve payments made by the Tribe from gaming revenue, or restricts or
regulates the Tribe's use and enjoyment of its Indian lands, as well as
any ancillary agreements, documents, ordinances, or laws required by
the compact which the Tribe determines is relevant to the Secretary's
review. The Department's review of the compact includes analyzing if
the provision(s) requiring ancillary agreements, documents, ordinances,
or laws violate IGRA or other Federal law because the underlying
agreement includes provisions prohibited by IGRA, and therefore the
Secretary may disapprove the compact.
[[Page 74940]]
Proposed Amendments to Sec. 293.9--Where should a compact or amendment
be submitted for review and approval?
The Proposed Amendments contains conforming edits for consistency
and proposed new sentence to permit electronic submission of compacts.
The Office of Indian Gaming will accept and date stamp electronic
submissions for the purpose of initiating the 45-day review period. The
first copy of a compact or amendment that is received and date stamped
initiates the 45-day review period.
C. Proposed Subpart C--Secretarial Review of Tribal-State Gaming
Compacts
The Proposed Subpart C, titled ``Secretarial Review of Tribal-State
Gaming Compacts'' would contain Sec. Sec. 293.10 through 293.16. The
Proposed Amendments include renumbering the existing Sec. 293.14 When
may the Secretary disapprove a compact or amendment? as Sec. 293.16.
Renumbering and renaming the existing Sec. 293.15 When does an
approved or considered-to-have-been-approved compact or amendment take
effect? as Sec. 293.14 When does a compact or amendment take effect?
And adding a new Sec. 293.15 Is the Secretary required to disapprove a
compact or amendment that violates IGRA?
Proposed Amendments to Sec. 293.10--How long will the Secretary take
to review a compact or amendment?
The Proposed Amendments contains conforming edits for consistency
to Sec. 293.10.
Proposed Amendments to Sec. 293.11--When will the 45-day timeline
begin?
The Proposed Amendments contains conforming edits to Sec. 293.11
for consistency with proposed changes to Sec. 293.9, and a new
sentence providing the Department will send an email confirming receipt
of electronically submitted compacts or amendments including when the
Secretary's 45-day review period ends.
Proposed Amendments to Sec. 293.12--What happens if the Secretary does
not act on the compact or amendment within the 45-day review period?
The Proposed Amendments contain clarifying edits for consistency
and readability. Additionally, the Department proposes to include a new
provision codifying the Department's practice of issuing letters
informing the parties that the compact or amendment has been approved
by operation of law after the 45th day. The letter may include guidance
to the parties identifying certain provisions that are inconsistent
with the Department's interpretation of IGRA--also known as Deemed
Approval Letters.
Proposed Amendments to Sec. 293.13--Who can withdraw a compact or
amendment after it has been received by the Secretary?
The Proposed Amendments contains conforming edits for consistency
to Sec. 293.13.
Proposed Amendments to Sec. 293.14--When does a compact or amendment
that is affirmatively approved or approved by operation of law take
effect?
The Proposed Amendments renumber the existing Sec. 293.15 as Sec.
293.14 to improve overall organization of the regulations. The Proposed
Amendments contain clarifying edits for consistency and readability to
both the heading and the body of Sec. 293.14.
Proposed Sec. 293.15--Is the Secretary required to disapprove a
compact or amendment that violates IGRA?
The Proposed Amendments contain a new Sec. 293.15, which clarifies
IGRA's limits on the Secretary's authority to review compacts.
Congress, through IGRA at 25 U.S.C. 2710 (d)(8), provided the Secretary
with time-limited authority to review a compact and discretionary
disapproval authority. Within this limited time period, the Secretary
may approve or disapprove a compact. IGRA further directs that if the
Secretary does not approve or disapprove a compact within IGRA's
limited time frame for review, then the compact shall be considered to
have been approved by the Secretary, but only to the extent the compact
is consistent with the provisions of IGRA. 25 U.S.C. 2710(d)(8)(C). The
Department notes that one Circuit has held that the Secretary must
disapprove a compact if it violates any of the three limitations in
IGRA and may not approve the compact by operation of law. Amador County
v. Salazar, 640 F.3d 373, 381 (DC Cir. 2011). The Department, however,
strongly disagrees with the court's holding, finding that it conflicts
with and negates a specific provision of IGRA.
Proposed Sec. 293.16--When may the Secretary disapprove a compact or
amendment?
The Proposed Amendments renumber and restructure the existing Sec.
293.14 as Sec. 293.16 to improve overall organization of the
regulations. Additionally, the Department proposes to renumber the
existing paragraphs and add a new paragraph (b). The proposed paragraph
(b) would clarify that if a compact submission package is missing the
documents required by Sec. 293.8 and the parties decline to cure the
deficiency, the Department will presume that the compact or amendment
violates IGRA.
D. Proposed Subpart D--Scope of Tribal-State Gaming Compacts
The Proposed Subpart D, titled ``Scope of Tribal-State Gaming
Compacts'' would contain Sec. Sec. 293.17 through 293.31. The Proposed
Amendments include substantive provisions addressing the appropriate
scope of a compact under IGRA. These provisions continue the question-
and-answer approach utilized in the existing regulations. These
provisions codify existing Departmental practice and provide compacting
parties clear guidance on the appropriate scope of compact
negotiations.
Proposed Sec. 293.17--May a compact include provisions addressing the
application of the Tribe's or State's criminal and civil laws and
regulations?
The Proposed Amendments contains a new Sec. 293.17 clarifying the
appropriate scope of terms addressing the application of the criminal
and civil laws and regulations in a compact. Congress through IGRA at
25 U.S.C. 2710(d)(3)(C)(i) provided that a compact may include
provisions addressing the application of criminal and civil laws and
regulations of the Tribe or the State that are directly related to, and
necessary for, the licensing and regulation of the gaming activity.
Proposed Sec. 293.18--May a compact include provisions addressing the
allocation of criminal and civil jurisdiction between the State and the
Tribe?
The Proposed Amendments contains a new Sec. 293.18 clarifying the
appropriate scope of terms addressing the allocation of criminal and
civil jurisdiction in a compact. Congress through IGRA at 25 U.S.C.
2701(5) found that ``[T]ribes have the exclusive right to regulate
gaming activity on Indian lands if the gaming activity is not
specifically prohibited by Federal law and is conducted within a State
which does not, as a matter of criminal law and public policy, prohibit
such gaming activity.'' Congress then provided that a compact may
include provisions addressing the allocation of criminal and civil
jurisdiction between the Tribe and the State necessary for enforcement
of the laws and regulations described in section 2710(d)(3)(C)(i). See
IGRA at 25 U.S.C. 2710(d)(3)(C)(ii).
[[Page 74941]]
Proposed Sec. 293.19--May a compact include provisions addressing the
State's costs for regulating gaming activities?
The Proposed Amendments contains a new Sec. 293.19 clarifying the
appropriate scope of assessments by the State to defray the costs of
regulating the Tribe's gaming activity. Congress through IGRA at 25
U.S.C. 2710(d)(3)(C)(iii) provided that a compact may include
provisions relating to the assessment by the State of the gaming
activity in amounts necessary to defray the costs of regulating the
gaming activity. Congress through IGRA at 25 U.S.C. 2710(d)(4)
clarified any assessments must be negotiated and at no point may a
State or its political subdivisions impose any taxes, fees, charges, or
other assessments upon a Tribe through the compact negotiations. The
Proposed Amendments further clarify that the compact should include
requirements for the State to show actual and reasonable expenses over
the life of the compact and the absence of such provisions is
considered evidence of a violation of IGRA.
Proposed Sec. 293.20--May a compact include provisions addressing the
Tribe's taxation of gaming?
The Proposed Amendments contains a new Sec. 293.20 clarifying the
appropriate scope of provisions addressing a Tribe's taxation of
tribally licensed gaming activity. Congress through IGRA at 25 U.S.C.
2710(d)(3)(C)(iv) provided that a compact may include provisions
relating to the Tribe's taxation of gaming activities in amounts
comparable to the State's taxation of gambling. A Tribal-State gaming
compact may not be used to address the Tribe's taxation of other
activities that may occur within or near the Tribe's gaming facility.
The inclusion of provisions addressing the Tribe's taxation of other
activities is considered evidence of a violation of IGRA.
Proposed Sec. 293.21--May a compact or amendment include provisions
addressing the resolution of disputes for breach of the compact?
The Proposed Amendments contains a new Sec. 293.21 clarifying the
appropriate scope of provisions addressing remedies for breach of the
compact. Congress through IGRA at 25 U.S.C. 2710(d)(3)(C)(v) provided
that a compact may include provisions relating to remedies for breach
of contract. Compacts often include alternative dispute resolution
including binding arbitration as part of the parties' remedies for
allegations of breach of contract. Despite the Department's existing
regulations clarifying that compacts and all amendments are subject to
Secretarial review, some compacting parties have resolved disputes in
manners which seek to avoid Secretarial review. Therefore, the
Department proposes Sec. 293.21 to clarify that any dispute resolution
agreement, arbitration award, settlement agreement, or other resolution
of a dispute outside of Federal court must be submitted for review and
approval by the Secretary. Further, the proposed Sec. 293.21
references the Sec. 293.4 determination process for review prior to
formal submission of a dispute resolution agreement as an amendment.
The inclusion of provisions addressing dispute resolution in a manner
that seeks to avoid the Secretary's review is considered evidence of a
violation of IGRA.
Proposed Sec. 293.22--May a compact or amendment include provisions
addressing standards for the operation of gaming activity and
maintenance of the gaming facility?
The Proposed Amendments contains a new Sec. 293.22 clarifying the
appropriate scope of provisions addressing the Tribe's standards for
the operation of the gaming activity as well as the Tribe's standards
for the maintenance of the gaming facility, including licensing in a
compact. Congress through IGRA at 25 U.S.C. 2710(d)(3)(C)(vi) provided
that a compact may include provisions relating to standards for the
operation of such activity and maintenance of the gaming facility,
including licensing. The Department interprets 2710(d)(3)(C)(vi)
narrowly as two separate clauses addressing separate Tribal and State
interests. First, a compact may include provisions addressing the
standards for the operation and licensing of the gaming activity.
Second, a compact may include provisions addressing the maintenance and
licensing of the gaming facility building or structure. The Proposed
Amendments in Sec. 293.2 includes definitions of both gaming facility
and gaming spaces to provide parties with clarity regarding the
appropriate limits of State oversite under IGRA. Any compact provisions
addressing the maintenance and licensing of a building or structure
must be limited to the building or structure where the gaming activity
occurs--the gaming facility. Further, if a compact or amendment mandate
that the Tribe adopt standards equivalent or comparable to the
standards set forth in a State law or regulation, the parties must show
that these mandated Tribal standards are both directly related to and
necessary for, the licensing and regulation of the gaming activity.
Proposed Sec. 293.23--May a compact or amendment include provisions
that are directly related to the operation of gaming activities?
The Proposed Amendments contains a new Sec. 293.23 clarifying a
compact may include provisions that are directly related to the
operation of gaming activities. Congress through IGRA at 25 U.S.C.
2710(d)(3)(C)(vii) provided that a compact may include provisions
relating to any other subjects that are directly related to the
operation of gaming activities. The Proposed Amendments in Sec. 293.24
codify the Department's longstanding narrow interpretation of section
2710(d)(3)(C)(vi).
Proposed Sec. 293.24--What factors will be used to determine whether
provisions in a compact or amendment are directly related to the
operation of gaming activities?
The Proposed Amendments contains a new Sec. 293.24 which codifies
existing case law and the Department's longstanding narrow
interpretation of section 2710(d)(3)(C)(vi) as requiring a ``direct
connection.'' The Department notes the Ninth Circuit in Chicken Ranch
found the Department's longstanding direct connection test persuasive
and consistent with the court's own independent analysis of IGRA and
case law. The proposed Sec. 293.24 provides compacting parties with
examples of provisions which have a direct connection to the Tribe's
conduct of class III gaming activities as well as examples the
Department has found do not satisfy the direct connection test.
Proposed Sec. 293.25--What factors will the Secretary analyze to
determine if revenue sharing is lawful?
The Proposed Amendments contains a new Sec. 293.25 which clarifies
the appropriate scope of provisions addressing revenue sharing.
Congress, through IGRA at 25 U.C.S. 2710 (d)(4), prohibited States from
seeking to impose any tax, fee, charge, or other assessment upon an
Indian Tribe or upon any other person or entity authorized by an Indian
Tribe to engage in a class III activity. The Proposed Amendments
codifies the Department's longstanding rebuttable presumption that any
revenue sharing provisions are a prohibited tax, fee, charge, or other
assessment. The Proposed Amendments
[[Page 74942]]
also contains the Department's test to rebut that presumption.
Proposed Sec. 293.26--May a compact or extension include provisions
that limit the duration of the compact?
The Proposed Amendments contains a new Sec. 293.26 which addresses
the appropriate duration of a compact. The Department and IGRA
anticipate that compacts are long-term agreements between a Tribe and a
State that reflect carefully negotiated compromises between sovereigns.
Proposed Sec. 293.27--May a compact permit a Tribe to engage in any
form of class III gaming activity?
The Proposed Amendments contains a new Sec. 293.27, which
clarifies the appropriate scope of class III gaming that a State
permits. Congress, through IGRA at 25 U.C.S. 2710(d)(1)(B), requires
that a Tribe seeking to conduct class III gaming be located in a State
that permits such gaming for any purpose by any person, organization,
or entity.
The Department takes the position that the Second Circuit's
decision in Mashantucket Pequot Tribe v. Connecticut, 913 F. 2d 1-24
(2d Cir. 1990) holding that Congress intended to codify the test set
out in California v. Cabazon Band of Mission Indians, 480 U.S. 202
(1987) when it used the phrase ``permits such gaming'' such that IGRA
refers to class III gaming categorically is correct. Under the
Secretary's delegated authority to interpret and promulgate rules for
IGRA, the Department finds that if a State allows any form of class III
gaming, it is regulating all forms of class III gaming, which are a
subject for good faith negotiations.
Proposed Sec. 293.28--May any other contract outside of a compact
regulate Indian gaming?
The Proposed Amendments contains a new Sec. 293.28 which clarifies
that any agreement between a Tribe and a State or its political
subdivisions which seeks to regulate a Tribe's right to conduct
gaming--as limited by IGRA--is a gaming compact that must comply with
IGRA and be submitted for review and approval by the Secretary.
Proposed Sec. 293.29--May a compact or amendment include provisions
addressing Statewide remote wagering or internet gaming?
The Proposed Amendments contains a new Sec. 293.29, which
clarifies a compact may include provisions allocating jurisdiction to
address Statewide remote wagering or internet gaming. The IGRA provides
that a Tribe and State may negotiate for ``the application of the
criminal and civil laws and regulations of the Indian Tribe or the
State that are directly related to, and necessary for, the licensing
and regulation of such activity'' and ``the allocation of criminal and
civil jurisdiction between the State and the Indian Tribe necessary for
the enforcement of such laws and regulations.'' 25 U.S.C.
2710(d)(3)(c)(i)-(ii). The Department's position is that the
negotiation between a Tribe and State over Statewide remote wagering or
i-gaming falls under these broad categories of criminal and civil
jurisdiction. Accordingly, provided that a player is not physically
located on another Tribe's Indian lands, a Tribe should have the
opportunity to engage in this type of gaming pursuant to a Tribal-State
gaming compact. The Department notes the ultimate legality of gaming
activity outside Indian lands remains a question of State law,
notwithstanding that a compact discusses the activity. However,
Congress in enacting IGRA did not contemplate the Department would
address or resolved complex issues of State law during the 45-day
review period.\13\ Further, non-IGRA Federal law may also place
restrictions on that activity.
---------------------------------------------------------------------------
\13\ See, e.g., Pueblo of Santa Ana v. Kelly, 104 F.3d 1546,
1556 (10th Cir. 1997).
---------------------------------------------------------------------------
Proposed Sec. 293.30--What effect does this part have on pending
requests, final agency decisions already issued, and future requests?
The Proposed Amendments contains a new Sec. 293.30 which clarifies
the proposed regulations are prospective and the effective date of the
proposed regulations.
Proposed Sec. 293.31--How does the Paperwork Reduction Act affect this
part?
The Proposed Amendments renumbers existing Sec. 293.16 as Sec.
293.31 to improve overall organization of the regulations.
VI. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget will review
all significant rules. The Office of Information and Regulatory Affairs
has determined that this rule is not significant. Executive Order 13563
reaffirms the principles of E.O. 12866 while calling for improvements
in the nation's regulatory system to promote predictability, to reduce
uncertainty, and to use the best, most innovative, and least burdensome
tools for achieving regulatory ends. The executive order directs
agencies to consider regulatory approaches that reduce burdens and
maintain flexibility and freedom of choice for the public where these
approaches are relevant, feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes further that regulations must be
based on the best available science and that the rulemaking process
must allow for public participation and an open exchange of ideas. We
have developed this rule in a manner consistent with these
requirements.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this proposed rule
would not have a significant economic effect on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.). This proposed rule would codify longstanding Departmental
policies and interpretation of case law in the form of substantive
regulations which would provide certainty and clarity on how the
Secretary will review certain provisions in a compact.
C. Congressional Review Act (CRA)
This rule is not a major rule under 5 U.S.C. 804(2). This rule:
Does not have an annual effect on the economy of $100
million or more.
Will not cause a major increase in costs or prices for
consumers, individual industries, federal, State, or local government
agencies, or geographic regions.
Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act of 1995
This rule would not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule would not have a significant or unique effect on State,
local, or Tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required).
E. Takings (E.O. 12630)
This rule would not affect a taking of private property or
otherwise have taking implications under Executive Order 12630 because
this rulemaking, if adopted, does not affect individual
[[Page 74943]]
property rights protected by the Fifth Amendment or involve a
compensable ``taking.'' A takings implication assessment is not
required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
would not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. A federalism
summary impact statement is not required because, the Department seeks
to codify longstanding Departmental policies and interpretation of case
law in the form of substantive regulations which would provide
certainty and clarity on how the Secretary will review certain
provisions in a compact.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
This rule:
Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
H. Consultation With Indian Tribes (E.O. 13175)
The Department will conduct two virtual session, one in-person
consultation, and will accept oral and written comments. The
consultations sessions will be open to Tribal leadership and
representatives of federally recognized Indian Tribes and Alaska Native
Corporations.
In-Person Session: The in-person consultation will be held
on January 13, 2023, from 1 p.m. to 4 p.m. MST, at the BLM National
Training Center (NTC), 9828 N. 31st Ave, Phoenix, AZ 85051.
1st Virtual Session: The first virtual consultation
session will be held on January 19, 2023, from 1 p.m. to 4 p.m. EST.
Please visit https://www.zoomgov.com/meeting/register/vJIsd-2qrjwiH2bVXpLvS2VPUZESt2HgtKk to register in advance.
2nd Virtual Session: The second virtual consultation will
be held on January 30, 2023, from 2 p.m. to 5 p.m. EST. Please visit
https://www.zoomgov.com/meeting/register/vJIsduGtqzgtE1hw9EIFrDf3-X_1gy5wGR0 to register in advance.
Comment Deadline: Please see DATES and ADDRESSES sections
for submission instructions.
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and Tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in E.O. 13175 and have hosted extensive consultation with federally
recognized Indian Tribes in preparation of this proposed rule,
including through a Dear Tribal Leader letter delivered to every
Federally-recognized Tribe in the country, and through three
consultation sessions held on May 9, 13, and 23, 2022.
I. Paperwork Reduction Act
OMB Control No. 1076-0172 currently authorizes the collection of
information related to Class III Tribal-State Gaming Compact Process,
with an expiration of August 31, 2024. This rule requires no change to
that approved information collection under the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq.
J. National Environmental Policy Act (NEPA)
This rule would not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because this is an administrative and procedural regulation.
(For further information see 43 CFR 46.210(i)). We have also determined
that the rule does not involve any of the extraordinary circumstances
listed in 43 CFR 46.215 that would require further analysis under NEPA.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
L. Clarity of This Regulation
We are required by Executive Orders 12866 (section 1 (b)(12)),
12988 (section 3(b)(l)(B)), and 13563 (section l(a)), and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that you find unclear, which sections or sentences are
too long, the sections where you feel lists or tables would be useful,
etc.
M. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
List of Subjects 25 CFR Part 293
Administrative practice and procedure, Gambling, Indians-tribal
government, State and local governments.
0
For the reasons stated in the preamble, the Department of the Interior,
Bureau of Indian Affairs, proposes to revise 25 CFR part 293 to read as
follows:
PART 293--CLASS III TRIBAL-STATE GAMING COMPACT
Subpart A--General Provisions and Scope
Sec.
Sec. 293.1 What is the purpose of this part?
Sec. 293.2 How are key terms defined in this part?
Sec. 293.3 What authority does the Secretary have to approve or
disapprove compacts and amendments?
Sec. 293.4 Are compacts and amendments subject to review and
approval?
Sec. 293.5 Are extensions to compacts or amendments subject to
review and approval?
Subpart B--Submission of Tribal-State Gaming Compacts
Sec. 293.6 Who can submit a compact or amendment?
Sec. 293.7 When should the Tribe or State submit a compact or
amendment for review and approval?
Sec. 293.8 What documents must be submitted with a compact or
amendment?
Sec. 293.9 Where should a compact or amendment or other requests
under this part be submitted for review and approval?
[[Page 74944]]
Subpart C--Secretarial Review of Tribal-State Gaming Compacts
Sec. 293.10 How long will the Secretary take to review a compact or
amendment?
Sec. 293.11 When will the 45-day timeline begin?
Sec. 293.12 What happens if the Secretary does not act on the
compact or amendment within the 45-day review period?
Sec. 293.13 Who can withdraw a compact or amendment after it has
been received by the Secretary?
Sec. 293.14 When does a compact or amendment take effect?
Sec. 293.15 Is the Secretary required to disapprove a compact or
amendment that violates IGRA?
Sec. 293.16 When may the Secretary disapprove a compact or
amendment?
Subpart D--Scope of Tribal-State Gaming Compacts
Sec. 293.17 May a compact or amendment include provisions
addressing the application of the Tribe's or the State's criminal
and civil laws and regulations?
Sec. 293.18 May a compact or amendment include provisions
addressing the allocation of criminal and civil jurisdiction between
the State and the Tribe?
Sec. 293.19 May a compact or amendment include provisions
addressing the State's costs for regulating gaming activities?
Sec. 293.20 May a compact or amendment include provisions
addressing the Tribe's taxation of gaming?
Sec. 293.21 May a compact or amendment include provisions
addressing the resolution of disputes for breach of the compact?
Sec. 293.22 May a compact or amendment include provisions
addressing standards for the operation of gaming activity and
maintenance of the gaming facility?
Sec. 293.23 May a compact or amendment include provisions that are
directly related to the operation of gaming activities?
Sec. 293.24 What factors will be used to determine whether
provisions in a compact or amendment are directly related to the
operation of gaming activities?
Sec. 293.25 What factors will the Secretary analyze to determine if
revenue sharing is lawful?
Sec. 293.26 May a compact or extension include provisions that
limit the duration of the compact?
Sec. 293.27 May a compact or amendment permit a Tribe to engage in
any form of class III gaming activity?
Sec. 293.28 May any other contract outside of a compact regulate
Indian gaming?
Sec. 293.29 May a compact or amendment include provisions
addressing Statewide remote wagering or internet gaming?
Sec. 293.30 What effect does this part have on pending requests,
final agency decisions already issued, and future requests?
Sec. 293.31 How does the Paperwork Reduction Act affect this part?
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 2710.
Subpart A--General Provisions and Scope
Sec. 293.1 What is the purpose of this part?
This part contains:
(a) Procedures that Indian Tribes and/or States must use when
submitting Tribal-State compacts and compact amendments to the
Department of the Interior (Department); and
(b) Procedures and criteria that the Secretary of the Interior
(Secretary) will use for reviewing such Tribal-State compacts or
compact amendments.
Sec. 293.2 How are key terms defined in this part?
This part relies on but does not restate all defined terms set
forth in the definitional section of IGRA.
(a) Amendment means:
(1) A change to a class III Tribal-State gaming compact other than
an extension, or
(2) A change to secretarial procedures prescribed under 25 U.S.C.
2710(d)(7)(B)(vii) when such change is agreed upon by the Tribe and
State.
(b) Compact or Tribal-State Gaming Compact means an
intergovernmental agreement executed between Tribal and State
governments under IGRA that establishes between the parties the terms
and conditions for the operation and regulation of the Tribe's Class
III gaming activities.
(c) Extension means an intergovernmental agreement executed between
Tribal and State governments under IGRA to change the duration of a
compact or amendment.
(d) Gaming activity or gaming activities means the conduct of class
III gaming involving the three required elements of chance,
consideration, and prize or reward.
(e) Gaming facility means the physical building or structure, where
the gaming activity occurs.
(f) Gaming spaces means the areas within a gaming facility (as
defined in paragraph (e) of this section) that are directly related to
and necessary for the conduct of class III gaming such as: the casino
floor; vault; count room; surveillance, management, and information
technology areas; class III gaming device and supplies storage areas;
and other secured areas. where the operation or management of class III
gaming takes place, including the casino floor, vault, count,
surveillance, management, information technology, class III gaming
device, and supplies storage areas.
(g) IGRA means the Indian Gaming Regulatory Act of 1988 (Pub. L.
100-497) 102 Stat. 2467 dated October 17, 1988, (Codified at 25 U.S.C.
2701-2721 (1988)) and any amendments.
(h) Meaningful concession means:
(1) Something of value to the Tribe;
(2) Directly related to gaming;
(3) Something that carries out the purposes of IGRA; and
(4) Not a subject over which a State is otherwise obligated to
negotiate under IGRA.
(i) Substantial economic benefit means:
(1) A beneficial impact to the Tribe;
(2) Resulting from a meaningful concession;
(3) Made with a Tribe's economic circumstances in mind;
(4) Spans the life of the compact; and
(5) Demonstrated by an economic/market analysis or similar
documentation submitted by the Tribe or the State.
(j) Tribe means Indian Tribe as defined in 25 U.S.C. 2703(5).
Sec. 293.3 What authority does the Secretary have to approve or
disapprove compacts and amendments?
The Secretary has the authority to approve a compact or amendment
``entered into'' by a Tribe and a State. See Sec. 293.15 for the
Secretary's authority to disapprove compacts or amendments.
Sec. 293.4 Are compacts and amendments subject to review and
approval?
(a) Yes. All compacts and amendments, regardless of whether they
are substantive or technical, must be submitted for review and approval
by the Secretary.
(b) If an ancillary agreement or document:
(1) Changes a term to a compact, then it must be submitted for
review and approval by the Secretary
(2) Implements or clarifies a provision contained in a compact or
an amendment and is not inconsistent with an approved compact or
amendment, it does not constitute a compact or an amendment and need
not be submitted for review and approval by the Secretary.
(3) If an approved compact or amendment expressly contemplates an
ancillary agreement or document, such as internal controls or a
memorandum of agreement between the Tribal and State regulators, then
such agreement or document is not subject to review and approval so
long as it is not inconsistent with the approved compact or amendment.
(4) If an ancillary agreement or document interprets language in a
compact or an amendment concerning the payment of a Tribe's gaming
revenue or includes any of the topics identified in 25 CFR 292.24, then
it may constitute
[[Page 74945]]
an amendment subject to review and approval by the Secretary.
(c) If a Tribe or a State (including its political subdivisions)
are concerned that their agreement or other document, including, but
not limited to, any dispute resolution agreement, arbitration award,
settlement agreement, or other resolution of a dispute outside of
Federal court, may be considered a ``compact'' or ``amendment,'' either
party may request in writing a determination from the Department if
their agreement is a compact or amendment and therefore must be
approved and a notice published in the Federal Register prior to the
agreement becoming effective. The Department will issue a letter within
60 days providing notice of the Secretary's determination.
Sec. 293.5 Are extensions to compacts or amendments subject to
review and approval?
No. Approval of an extension to a compact or amendment is not
required if the extension does not include any changes to any of the
other terms of the compact or amendment. However, the parties must
submit the documents required by Sec. 293.8(a) through (c). The
extension becomes effective only upon publication in the Federal
Register.
Subpart B--Submission of Tribal-State Gaming Compacts
Sec. 293.6 Who can submit a compact or amendment?
Either party (Tribe or State) to a compact or amendment can submit
the compact or amendment to the Secretary for review and approval.
Sec. 293.7 When should the Tribe or State submit a compact or
amendment for review and approval?
The Tribe or State should submit the compact or amendment after it
has been duly executed by the Tribe and the State in accordance with
applicable Tribal and State law, or is otherwise binding on the
parties.
Sec. 293.8 What documents must be submitted with a compact or
amendment?
Documentation submitted with a compact or amendment must include:
(a) At least one original compact or amendment executed by both the
Tribe and the State;
(b) A Tribal resolution or other document, including the date and
place of adoption and the result of any vote taken, that certifies that
the Tribe has approved the compact or amendment in accordance with
applicable Tribal law;
(c) Certification from the Governor or other representative of the
State that they are authorized under State law to enter into the
compact or amendment;
(d) Any agreement between a Tribe and a State, its agencies or its
political subdivisions required by a compact or amendment if the
agreement requires the Tribe to make payments to the State, its
agencies, or its political subdivisions, or it restricts or regulates a
Tribe's use and enjoyment of its Indian Lands and any other ancillary
agreements, documents, ordinances, or laws required by the compact or
amendment which the Tribe determines is relevant to the Secretary's
review; and
(e) Any other documentation requested by the Secretary that is
necessary to determine whether to approve or disapprove the compact or
amendment. If a compact includes revenue sharing, a market analysis or
similar documentation as required by Sec. 293.24.
Sec. 293.9 Where should a compact or amendment or other requests
under this part be submitted for review and approval?
Submit compacts, amendments, and all other requests under 25 CFR
part 293 to the Director, Office of Indian Gaming, U.S. Department of
the Interior, 1849 C Street NW, Mail Stop 3543, Main Interior Building,
Washington, DC 20240. If this address changes, a document with the new
address will be sent for publication in the Federal Register within 5
business days. Compacts and amendments may also be submitted
electronically to [email protected] as long as the original copy is
submitted to the address listed in this section.
Subpart C--Secretarial Review of Tribal-State Gaming Compacts
Sec. 293.10 How long will the Secretary take to review a compact or
amendment?
(a) The Secretary must approve or disapprove a compact or amendment
within 45 calendar days after receiving the compact or amendment.
(b) The Secretary will notify the Tribe and the State in writing of
the decision to approve or disapprove a compact or amendment.
Sec. 293.11 When will the 45-day timeline begin?
The 45-day timeline will begin when a compact or amendment is
received, and date stamped by the Office of Indian Gaming. The
Department will provide an email acknowledgement to the Tribe and the
State of receipt including the 45th day for electronically submitted
compacts or amendments.
Sec. 293.12 What happens if the Secretary does not act on the
compact or amendment within the 45-day review period?
If the Secretary does not take action to approve or disapprove a
compact or amendment within the 45-day review period, the compact or
amendment is approved by operation of law, but only to the extent the
compact or amendment is consistent with the provisions of IGRA. The
Secretary will issue a letter informing the parties that the compact or
amendment has been approved by operation of law after the 45th day and
before the 90th day. The Secretary's letter may include guidance to the
parties identifying certain provisions that are inconsistent with the
Department's interpretation of IGRA. The compact or amendment that is
approved by operation of law becomes effective only upon publication in
the Federal Register.
Sec. 293.13 Who can withdraw a compact or amendment after it has
been received by the Secretary?
To withdraw a compact or amendment after it has been received by
the Secretary, the Tribe and the State must both submit a written
request to the Director, Office of Indian Gaming at the address listed
in Sec. 293.9.
Sec. 293.14 When does a compact or amendment take effect?
(a) A compact or amendment, that is affirmatively approved or
approved by operation of law takes effect on the date that notice of
its approval is published in the Federal Register.
(b) The notice of affirmative approval or approval by operation of
law must be published in the Federal Register within 90 days from the
date the compact or amendment is received by the Office of Indian
Gaming.
Sec. 293.15 Is the Secretary required to disapprove a compact or
amendment that violates IGRA?
No. The IGRA provides the Secretary with time limited authority to
review a compact or amendment and discretionary disapproval authority.
If the Secretary does not take action to approve or disapprove a
compact or amendment within 45 days, IGRA provides it shall be
considered to have been approved by the Secretary, but only to the
extent the compact or amendment is consistent with IGRA.
Sec. 293.16 When may the Secretary disapprove a compact or
amendment?
The Secretary may disapprove a compact or amendment only if:
(a) It violates:
(1) Any provision of IGRA;
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(2) Any other provision of Federal law that does not relate to
jurisdiction over gaming on Indian lands;
(3) The trust obligations of the United States to Indians; or
(b) If the documents required in Sec. 293.8 are not submitted and
the Department has informed the parties in writing of the missing
documents.
Subpart D--Scope of Tribal-State Gaming Compacts
Sec. 293.17 May a compact or amendment include provisions addressing
the application of the Tribe's or the State's criminal and civil laws
and regulations?
Yes. A compact or amendment may include provisions addressing the
application of the criminal and civil laws and regulations of the Tribe
or the State that are directly related to, and necessary for, the
licensing and regulation of the gaming activity. At the request of the
Secretary pursuant to Sec. 293.8(e), the parties must show that these
laws and regulations are both directly related to and necessary for,
the licensing and regulation of the gaming activity.
Sec. 293.18 May a compact or amendment include provisions addressing
the allocation of criminal and civil jurisdiction between the State and
the Tribe?
Yes. A compact or amendment may include provisions allocating
criminal and civil jurisdiction between the State and the Tribe
necessary for the enforcement of the laws and regulations described in
Sec. 293.17.
Sec. 293.19 May a compact or amendment include provisions addressing
the State's costs for regulating gaming activities?
Yes. If the compact or amendment includes a negotiated allocation
of jurisdiction to the State for the regulation of the gaming activity,
the compact or amendment may include provisions to defray the State's
actual and reasonable costs for regulating the specific Tribe's gaming
activity. If the compact does not include requirements for the State to
show actual and reasonable annual expenses for regulating the specific
Tribe's gaming activity over the life of the compact is considered
evidence of a violation of IGRA.
Sec. 293.20 May a compact or amendment include provisions addressing
the Tribe's taxation of gaming?
Yes. A compact or amendment may include provisions addressing the
Tribe's taxation of the tribally licensed gaming activity in amounts
comparable to the State's taxation of State licensed gaming activities.
A compact may not include provisions addressing the Tribe's taxation of
other activities that may occur within or near the Tribe's gaming
facility. The inclusion of provisions addressing the Tribe's taxation
of other activities is considered evidence of a violation of IGRA.
Sec. 293.21 May a compact or amendment include provisions addressing
the resolution of disputes for breach of the compact?
Yes. A compact or amendment may include provisions addressing how
the parties will resolve a breach of the compact or other disputes
arising from the compact including mutual limited waivers of sovereign
immunity. If a Tribe is concerned that an agreement or other document,
including but not limited to any dispute resolution, settlement
agreement, or arbitration decision, constitutes a compact or amendment,
or if the Tribe is concerned that the agreement or other document
interprets the Tribe's compact or amendment to govern matters that are
not directly related to the operation of gaming activities, the Tribe
may submit the document to the Department as set forth in Sec. 293.4.
The inclusion of provisions addressing dispute resolution in a manner
that seeks to avoid the Secretary's review is considered evidence of a
violation of IGRA.
Sec. 293.22 May a compact or amendment include provisions addressing
standards for the operation of gaming activity and maintenance of the
gaming facility?
Yes. A compact or amendment may include provisions addressing the
Tribe's standards for the operation of the gaming activity as well as
the Tribe's standards for the maintenance of the gaming facility,
including licensing. If a compact or amendment mandate that the Tribe
adopt standards equivalent or comparable to the standards set forth in
a State law or regulation, the parties must show that these mandated
Tribal standards are both directly related to and necessary for, the
licensing and regulation of the gaming activity.
Sec. 293.23 May a compact or amendment include provisions that are
directly related to the operation of gaming activities?
Yes. A compact or amendment may include provisions that are
directly related to the operation of gaming activities.
Sec. 293.24 What factors will be used to determine whether
provisions in a compact or amendment are directly related to the
operation of gaming activities?
(a) The parties must show that these provisions described in Sec.
293.23 are directly connected to Tribe's conduct of class III gaming
activities. Examples include, but are not limited to:
(1) Minimum age for patrons to participate in gaming;
(2) Transportation of gaming devices and equipment; or
(3) Exclusion of Patrons.
(b) Mutually beneficial proximity, or even co-management alone is
insufficient to establish a ``direct connection'' between the Tribe's
class III gaming and adjacent business or amenities. Additionally,
Tribal infrastructure projects or economic development activities that
are funded by gaming revenue and may service or otherwise provide a
benefit to the gaming activity are not directly related to the conduct
of gaming without other evidence of a direct connection.
(c) Provisions which are not directly related to the operation of
gaming activities include, but are not limited to:
(1) Limiting third party Tribes' rights to conduct gaming;
(2) Treaty rights;
(3) Tobacco sales;
(4) Compliance with or adoption of State environmental regulation
of projects or activities that are not directly related to the Tribe's
operation of gaming activities and maintenance of the gaming facility;
(5) Requiring memorandum of understanding, intergovernmental
agreements, or similar agreements with local governments;
(6) Enforcement of State court orders garnishing employee wages or
patron winnings;
(7) Granting State court jurisdiction over tort claims arising from
the Tribe's conduct of class III gaming activities;
(8) Non-gaming Tribal economic activities including activities in
or adjacent to the gaming facility, including but not limited to,
restaurants, nightclubs, hotels, event centers, water parks, gas
stations, and convenience stores; or
(9) Tribal class I or class II gaming activities.
(d) The inclusion of provisions which the parties cannot show a
direct connection to the Tribe's conduct of class III gaming activities
is considered evidence of a violation of IGRA.
Sec. 293.25 What factors will the Secretary analyze to determine if
revenue sharing is lawful?
(a) A compact or amendment may include provisions that address
revenue sharing in exchange for a State's meaningful concessions
resulting in a substantial economic benefit for the Tribe.
(b) The Department reviews revenue sharing provisions with great
scrutiny.
[[Page 74947]]
We begin with the presumption that a Tribe's payment to a State or
local government for anything beyond Sec. 293.19 regulatory fees are a
prohibited ``tax, fee, charge, or other assessment.'' In order for the
Department to approve revenue sharing the parties must show through
documentation, such as a market study or other similar evidence, that:
(1) The Tribe has requested, and the State has offered specific
meaningful concessions the State was otherwise not required to
negotiate;
(2) The value of the specific meaningful concessions offered by the
State provides substantial economic benefits to the Tribe in a manner
justifying the revenue sharing required by the compact; and
(3) The Tribe is the primary beneficiary of the gaming, measured by
projected revenue to the Tribe against projected revenue shared with
the State;
(c) The inclusion of revenue sharing provisions to the State that
is not justified by meaningful concessions of substantial economic
benefit to the Tribe is considered evidence of a violation of IGRA.
Sec. 293.26 May a compact or extension include provisions that limit
the duration of the compact?
Yes. However, IGRA anticipates compacts are long-term agreements
between a Tribe and a State. These agreements reflect carefully
negotiated compromises between sovereigns. A refusal to negotiate a
long-term compact, or a short-term extension of at least one year to
allow for negotiations to continue, is considered evidence of a
violation of IGRA.
Sec. 293.27 May a compact or amendment permit a Tribe to engage in
any form of class III gaming activity?
Yes. If the State allows any form of class III gaming, then the
State is regulating all forms of class III gaming. A State's refusal to
negotiate in a compact over all forms of class III gaming, not
prohibited in the State, is considered evidence of a violation of IGRA.
Sec. 293.28 May any other contract outside of a compact regulate
Indian gaming?
No. Any contract or other agreement between a Tribe and a State or
its political subdivisions which seeks to regulate a Tribe's right to
conduct gaming--as limited by IGRA--is a gaming compact that must
comply with IGRA and be submitted for review and approval by the
Secretary. A Tribe may submit any agreement between the Tribe and the
State or its political subdivisions, mandated or required by a compact
or amendment, which includes provisions for the payment from a Tribe's
gaming revenue or restricts or regulates a Tribe's use and enjoyment of
its Indian Lands, including a Tribe's conduct of gaming, for a
determination if the agreement is a compact or amendment under Sec.
293.4(c).
Sec. 293.29 May a compact or amendment include provisions addressing
Statewide remote wagering or internet gaming?
Yes. A compact or amendment consistent with Sec. 293.17 may
include provisions addressing Statewide remote wagering or internet
gaming that is directly related to the operation of gaming activity on
Indian lands. A compact may specifically include provisions allocating
State and Tribal jurisdiction over remote wagering or internet gaming
originating outside Indian lands where:
(a) State law and/or the compact or amendment deem the gaming to
take place, for the purposes of State and Tribal law, on the Tribe's
Indian lands where the server accepting the wagers is located;
(b) The Tribe regulates the gaming; and
(c) The player initiating the wager is not located on another
Tribe's Indian lands.
Sec. 293.30 What effect does this part have on pending requests,
final agency decisions already issued, and future requests?
(a) Compacts and amendments pending on [EFFECTIVE DATE OF FINAL
RULE], will continue to be processed under 25 CFR part 293, promulgated
on December 5, 2008, and revised June 4, 2020, unless the applicant
requests in writing to proceed under this part. Upon receipt of such a
request, the Secretary shall process the pending compact or amendment
under this part.
(b) This part does not alter final agency decisions made pursuant
to this part before [EFFECTIVE DATE OF FINAL RULE].
(c) All compacts and amendments submitted after [EFFECTIVE DATE OF
FINAL RULE] will be processed under this part.
Sec. 293.31 How does the Paperwork Reduction Act affect this part?
The information collection requirements contained in this part have
been approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), and assigned
control number 1076-0172. A Federal agency may not conduct or sponsor,
and you are not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2022-25741 Filed 12-5-22; 8:45 am]
BILLING CODE 4337-15-P
