BIA proposes new rule for tribal-state gaming compacts

National | Politics

Wednesday, July 2, 2008

With just a few months left in the Bush administration, the Bureau of Indian Affairs is proposing a new regulation to address review and approval of tribal-state gaming compacts.

Notice of the rulemaking was published in the Federal Register today. The regulation doesn't appear to break new ground but it's the first time since the Indian Gaming Regulatory Act was passed in 1988 that the agency has taken steps to define the process.

"The submission process for the tribal-state compact or compact amendment is not clear," the notice stated. "Therefore this proposed rule establishes procedures for submitting tribal-state compacts and compact amendments."

The notice was actually signed by former assistant secretary Carl Artman on May 22, the day before he left office. Review of the regulation by the White House Office of Management and Budget likely delayed its final publication in the Federal Register.

Even though he was nearly out the door, Artman narrowly escaped a deadline to get the rule finished. The White House ordered federal agencies to stop proposing new regulations by the end of May and OMB won't allow final rules to be published after November 1.

Although Artman barely made the deadline, the regulation faces uncertainty should any delays arise in the rulemaking process. Comments are being accepted until September 2, giving the BIA less than two months to publish a final rule before the November deadline.

Though the new rule is not particularly complicated, it deals with a controversial subject. Another gaming regulation that Artman finalized before he left office took months to publish even after all comments were received.

The BIA, however, rushed the proposal in what appears to be record time. The rule didn't even show up on any of the regulatory agendas that federal agencies are required to submit to Congress every six months.

The BIA only held two tribal consultation sessions -- both in April -- before the rule published. "The draft regulation was modified to reflect comments received during the consultation, as well as written comments received from Indian tribes," the notice stated.

The proposed rule closely tracks the provisions of IGRA that address review and approval of Class III gaming compacts. The law gives BIA 45 days to consider a compact or an amendment to an existing compact.

The rule states that extensions to existing compacts will be considered an amendment that is subject to review and approval. The issue has surfaced in litigation in Wisconsin.

Under IGRA, the BIA may only disapprove a compact or an amendment if it violates IGRA, provisions of other federal laws, or the "trust obligations" of the federal government. Trust obligations aren't defined in IGRA or in the proposed rule.

If the BIA doesn't take action within 45 days, a compact is considered "deemed approved" under IGRA. This situation recently occurred with four controversial compacts in California that somehow got misplaced after the state mailed them to the Interior Department.

As a result, the BIA was forced to publish notice of the compacts even though state voters had not approved them. The BIA has since instituted internal changes to prevent recurrences, officials said.

The final decision on the rule will be made by George Skibine, who has been assigned the duties of assistant secretary. He is a career BIA employee who serves as director of the Office of Indian Gaming Management, which reviews gaming compacts.

Federal Register Notice:
. Class III Tribal State Gaming Compact Process (July 2, 2008)