Last week the National Indian Gaming Commission (“NIGC”) finalized revisions to 25 CFR part 518 relating to the self-regulation of Class II Gaming. The revisions to 25 CFR part 518, in part, streamlined the process for review of a self-regulating petition and considerably revised the annual reporting requirements for self-regulating tribes.
Under IGRA, the NIGC may authorize a tribal gaming commission to self-regulate Class II gaming. Class II gaming consists of bingo (electronic or traditional) and any non-house banked card game. However, under IGRA, the NIGC is responsible for monitoring, on a continuing basis, Class II gaming conducted by a tribe. The NIGC must also inspect the premises, conduct background investigations, and demand access to all books and records regarding revenues. Tribes view this as a burdensome process. Accordingly, eligible tribes can take advantage of “self-regulation,” whereby the tribe’s gaming commission is responsible for primary regulation of Class II gaming. Before a tribe can self-regulate, it must receive a certificate of self-regulation from the IGRC, which must be sought by petition.
Criteria for Evaluation of a Tribal Petition for Self-Regulation
Tribes are eligible for self-regulation if the tribe has conducted licensed class II gaming for a minimum of 3 years, the tribe has adopted an ordinance or resolution approved by the chair of the NIGC, the tribe has complied with 25 U.S.C. 2710 (which requires an appropriate tribal regulatory authority to be in place) and the tribe has maintained all the records necessary to support its petition for self-regulation.
A tribal petition for self-regulation must include information such as a brief history of each gaming operation within the tribe, a description of the criteria tribal regulators must meet before being eligible for employment, and a description of the accounting systems at the gaming operation. These criteria are being streamlined as part of the current revision.
NIGC's Self-Regulating Review Process
The Office of Self-Regulation reviews all self-regulation petitions. This review includes an on-site review and verification of information submitted by the tribe followed by a report to the NIGC within 120 days after the filing of a completed petition.
After submission of the report by the Office of Self-Regulation, tribes are given an opportunity to respond prior to the NIGC's preliminary finding. Tribes are also offered the opportunity to request a formal hearing before the NIGC prior to the Commission's final determination. The 2013 revisions revised the formal hearing process. If the NIGC grants the petition, the certificate of self-regulation becomes effective on January 1 of the year following the Commission's final determination.
Reporting Requirements For Self-Regulating Tribes
Self-Regulating tribes are required to submit an annual audit, and complete resumes of all employees of the tribal regulatory body. The revised regulations make this submission requirement far less burdensome to the tribe. Of course, a self-regulating tribe has a continuing duty to advise the NIGC of any changes to circumstances that are material to the self-regulating approval criteria, thus ensuring that the NIGC’s supervisory authority remains intact.