On December 3rd and 9th, 2021, we issued Alerts advising that the National Indian Gaming Commission (“NIGC”) published several proposed rules in the Federal Register to amend various provisions of the NIGC’s regulations that had been subject to the NIGC’s “Tribal Consultation Series A.” Notwithstanding that these proposed rules were published during the holiday season and at the beginning of a major Covid surge, the NIGC provided only a 30-day comment period. Three of the deadlines ran on January 3, 2022, the day after a federal holiday, and the fourth one expires on Monday, January 10, 2022.
While some of the proposed rule revisions are relatively minor, such as the amendment to 25 CFR Part 522 authorizing the submission of documents in electronic or physical form, there are a couple that warrant tribal comment and we note that few comments have been submitted. One proposed amendment to Part 522 requires Tribal governments to submit copies of its constitution, governing documents, or its authority to enact the submitted ordinance or resolution. The purpose tendered for this new submission requirement is that it will permit the NIGC to determine whether the tribe has followed its laws in enacting its gaming ordinance or amendment to its gaming ordinance. Our attached comments describe why we took issue with this proposed amendment, but it should be noted that the Department of Interior provides full faith and credit to all official Tribal Government Documents, without the supporting documents the NIGC is claiming it needs.
Perhaps the most significant proposed amendment adds a subsection to 25 C.F.R. § 514.4 that would exclude promotional credits (ie. “free play”) from the “total amount of money wagered” when calculating the amount of NIGC’s annual fees. While this would appear on its face to be beneficial to tribal governments, the language does not affect a true exclusion of free play from the definition of assessable gross gaming revenue, rather it leaves it “to the discretion of each Tribal government whether to exclude such promotional credits.” It also leaves the door open to disputes between the NIGC and tribes as no clear standard or formula is provided.
Please review the Indian Gaming Association’s comments submitted to the NIGC and our concerns with the timing of the proposed rules and their impact.
Comments to the proposed rule governing the submission of gaming ordinances must submitted no later than January 10, 2021. This proposed rule, as published in the Federal Register, may be found here. The comment period for the other proposals ran on January 3, 2022, but comments can be submitted directly to the NIGC.
If you have any questions concerning this alert, please contact Danielle Her Many Horses at firstname.lastname@example.org.