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.