More than a decade after the courts took action, the
National Indian Gaming Commission is suspending federal regulations that were once the subject of considerable controversy.
In a
notice being published in the Federal Register, the NIGC said the minimum internal control standards (MICS) for Class III gaming will remain "on the books." But as of Monday, the agency is telling tribes and the public that the regulations are "not enforceable."
The move is of little legal consequence because the
D.C. Circuit Court of Appeals in 2006 ruled that the NIGC lacked the authority to issue the regulations. In a unanimous decision, a panel of judges said
tribes and states are responsible for regulating Class III gaming, such as slot machines, blackjack and related offerings, through their gaming compacts.
"The NIGC did not appeal the circuit court’s decision to the United States Supreme Court, so it is the law of the land and the NIGC has no discretion in regard to following the court’s mandates," reads the notice, which was signed on July 18 by only two of the three
commissioners of the independent federal agency.
But at the time of the litigation, the
NIGC took a vastly different view. The agency -- then under the control of commissioners who were chosen by a Republican president -- claimed that the court decision only applied to the
Colorado River Indian Tribes (CRIT) and not to the rest of Indian Country.
Although the tribe was indeed the only plaintiff in the case, the
National Indian Gaming Association, the largest inter-tribal gaming organization, and other tribes submitted briefs in support of CRIT's position.
Save the Date! The National Indian Gaming Commission will mark the 30th anniversary of the Indian Gaming Regulatory Regulatory Act at an event in Washington, D.C., on October 16, 2018.
And as the
case was making its way to the D.C. Circuit, a key lawmaker intervened.
Sen. John McCain (R-Arizona), a former two-time chairman of the
Senate Committee on Indian Affairs, introduced legislation that would have essentially reversed the court ruling by authorizing the NIGC to issue the rules.
The bill did not become law but it was the subject of heated debate on Capitol Hill and in Indian Country. At the time, tribes were facing significant resistance from the NIGC on a
wide range of
significant and
equally controversial matters, not just the disputed regulations.
But it turns out that tribes were right about their ability to
serve as the primary regulators of their gaming facilities. Doomsday warnings about the court ruling never came to pass and tribes and states have continued to negotiate agreements in the way the 2006 ruling anticipated.
"Technology has advanced rapidly, though, making some standards obsolete and introducing new areas of risk not contemplated by the outdated standards, the forthcoming notice states.
As of Monday, the NIGC will consider the Class III MICS to be "non-binding guidance." Some tribes and states have continued to adopt, or refer to, the same standards in their compacts but that decision will be up to those governments and not the U.S.
"This guidance is not intended to modify or amend any terms in a state compact," the forthcoming notice reads.
The CRIT court decision did not disturb the NIGC's ability to
regulate Class II gaming like bingo, pull tabs and electronic versions of those games. In June, all three commissioners of the agency took action to propose changes to those
federal regulations.
Additionally, the NIGC finalized minimum technical standards for Class II gaming last December. And in April, the
Agua Caliente Band of Cahuilla Indians became the first tribe with approved
alternate technical standards for Class II gaming.
"Here at the NIGC, we support each tribes' inherent sovereign authority to serve
as the primary regulator of its gaming," NIGC Chairman Jonodev Chaudhuri said in June as the agency announced
another year of growth in the industry. Tribes took in $32.4 billion at their casinos in 2017, an increase of 3.9 percent from the year prior.
Forthcoming Federal Register Notice:
Minimum Internal Control Standards [Class III]
(To Be Published August 13, 2018)
Prior Federal Register Notices:
Minimum Internal Control Standards [Class II]
(June 8, 2018)
Minimum Technical Standards for Class II Gaming Systems and Equipment; Correction
(January 19, 2018)
Minimum Technical Standards for Class II Gaming Systems and Equipment
(December 27, 2017)
Join the Conversation
