Biden Administration Seeks To Streamline Indian Gaming Regulations

January 12, 2023
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The U.S. Department of the Interior wants to expedite the negotiation process between tribes and states on gambling compacts and make it easier for the federal government to obtain land for Native Americans.

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The U.S. Department of the Interior wants to expedite the negotiation process between tribes and states on gambling compacts and make it easier for the federal government to obtain land for Native Americans.

Unveiled during the Tribal Nations Summit on November 30 at the White House, the two proposed federal regulations are intended to follow through on the Biden administration’s commitment to help Indian Country.

“The federal government has a treaty and trust responsibility to protect tribal sovereignty and revitalize tribal communities by strengthening their homelands and economic self-sufficiency through a timely and efficient process for taking land into trust and providing clarity on Class III [casino] gaming compact negotiations,” Bryan Newland, the Interior Department’s assistant secretary for Indian affairs, said in a statement released on December 5.

Newland said the tribal gaming industry remains one of the most significant sources of economic development for Indian Country and the new compact regulation would clarify “allowable topics of negotiation.”

The new compact regulation also would clearly define when the Interior Department must review a compact.

Dates have not yet been set, but the Interior Department intends to conduct two virtual consultation sessions and one in-person consultation with tribes to obtain additional input on the proposed regulations.

The department also will receive written comments from the public at consultation@bia.gov.

The deadline for submitting the written statements is March 1.

“The proposed changes to the land-into-trust process are good news for tribes and good news for tribal gaming,” said Kathryn Rand, co-director of the Institute for the Study of Tribal Gaming Law & Policy at the University of North Dakota.

Rand said the new regulations “should result in increased transparency, speedier decisions, and streamlined processes which in turn should result in decreased costs and delays, fewer post-decision legal challenges, and a more certain and stable business environment.”

One of the reasons the Interior Department may want to clarify the negotiating process for gambling compacts might be traced to Florida.

In 2021, the department allowed a gambling compact, which authorized the Seminole Tribe to offer both in-person and mobile sports betting in Florida, to become law by simply not taking any action within 45 days.

U.S. District Judge Dabney Friedrich of Washington, D.C. overruled the department’s wink-and-nod approval of the Florida gambling compact.

The department appealed, and a decision is pending in the U.S. Court of Appeals for the D.C. Circuit.

The proposed regulation regarding compacts includes a new provision specifying that compacts “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.”

The new regulation on gambling compacts also might discourage states from adding non-gambling issues, such as environmental restrictions, to negotiations.

“The proposed regulations should come as no surprise because they have been a priority of Bryan Newland since he became the assistant secretary for Indian affairs [in 2021],” said Larry Rosenthal, a tribal gaming lobbyist in Washington, D.C.

Newland was an enthusiastic advocate of internet gambling and formed a partnership with DraftKings when he was chairman of the Bay Mills Indian Community on the Upper Peninsula of Michigan before becoming assistant secretary for Indian affairs.

In other Indian gaming developments during the lame duck session of Congress in November and December, Congress rejected an Alabama senator’s effort to gain federal recognition for a tribe in his state.

Retiring Republican Senator Richard Shelby’s bill would have circumvented federal guidelines to bestow federal recognition on the Mobile-Washington County Band of Choctaw Indians, also known as MOWA, in Alabama.

Similar efforts by another retiring senator, Republican Richard Burr of North Carolina, to obtain federal recognition for his state’s Lumbee Tribe also failed.

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