To: IGA Member Tribes From: Ernest L. Stevens, Jr., Chairman Jason C. Giles, Executive Director
Danielle Her Many Horses, Deputy Executive Director Re: BIA Publishes Final Rule for Section 293 Class III Tribal State Gaming Compacts Date: February 21, 2024 On February 21, 2024, the Bureau of Indian Affairs (“BIA”) through the Department of the Interior (“Department”) published a final rule in the Federal Register that amends the regulations at 25 C.F.R. Part 293, governing the review and approval of Class III Tribal-State Gaming Compacts. This final rule has been published almost one year after the public notice and comment period closed on March 1, 2023. The BIA published this proposed rule on December 6, 2022, and received comments from over 56 entities. Of the 607 individual comments received, the BIA reports that about 258 comments were supportive of the changes, 136 were not supportive, and 213 were neutral. The long-awaited final rule stems from the significant evolution in the gaming industry and ongoing litigation over tribal-state gaming compacts that signify a need for further clarity in the compacting process under the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. 2701, et seq., federal law, and trust obligations of the United States to tribal nations. The Department incorporated most of the submitted comments with the ultimate goal that the final rule would allow for greater consistency and comprehension by those seeking to participate in the compacting process. Importantly, the Department chose to include new definitions including Gaming Activity or Gaming Activities , Gaming Facility , Gaming Spaces , IGRA , Meaningful Concession , Substantial Economic Benefit , and Tribe . One of the most substantive of these additions includes Meaningful Concession , which has been adopted from Ninth Circuit case law, is defined as the following: “(1) Something of value to the Tribe; (2) Directly related to gaming activity; (3) Something that carries out the purposes of IGRA; and (4) Not a subject over which a State is otherwise obligated to negotiate under IGRA.” Likewise, Substantial Economic Benefit means: “(1) A beneficial impact to the Tribe; (2) Resulting from a meaningful concession; (3) Made with a Tribe’s economic circumstances in mind; (4) Spans the life of the compact; (5) Demonstrated by an economic market analysis or similar documentation submitted by the Tribe or the State.”
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