(1) The Tribe has requested and the State has offered specific meaningful concessions the State was otherwise not required to negotiate; (2) The value of the specific meaningful concessions offered by the State provides substantial economic benefits to the Tribe in a manner justifying the revenue sharing required by the compact; and (3) The Tribe is the primary beneficiary of the gaming measured by projected revenue to the Tribe against projected revenue shared with the State. (c) The inclusion of revenue sharing provisions to the State that is not justified by meaningful concessions of substantial economic benefit to the Tribe may be considered evidence of a violation of IGRA.” Finally, the Department has redesignated proposed § 293.29 as § 293.26. This new section is now titled “ § 293.26—May a compact or amendment include provisions addressing Statewide remote wagering or internet gaming?” From the DOI’s section-by-section analysis, they describe the new § 293.26 as follows: “The Department proposed a new § 293.26, which clarifies that a compact may include provisions allocating jurisdiction to address Statewide remote wagering or internet gaming. The IGRA provides that a Tribe and State may negotiate for “the application of the criminal and civil laws and regulations of the Indian Tribe or the State that are directly related to, and necessary for, the licensing and regulation of such activity” and “the allocation of criminal and civil jurisdiction between the State and the Indian Tribe necessary for the enforcement of such laws and regulations.” 25 U.S.C. 2710(d)(3)(c)(i)–(ii). The IGRA also provides that a Tribe and State may negotiate over “any other subjects that are directly related to the operation of gaming activities.” 25 U.S.C. 2710(d)(3)(c)(vii). The Department's position, consistent with the D.C. Circuit's decision in West Flagler Associates, Ltd. v. Haaland, 71 F. 4th 1059 (D.C. Cir. 2023), is that Tribes and States may negotiate, consistent with IGRA and other Federal law, over how wagers placed outside Indian land within a State and received by a Tribe on Indian lands are treated for purposes of State and Tribal law, and how regulation of such activity is allocated between Tribes and States. Such topics fall under these broad categories of criminal and civil jurisdiction and such wagering is inherently directly related to the operation of gaming. Accordingly, provided that a player is not physically located on another Tribe's Indian lands, a Tribe should have the opportunity to engage in this type of gaming pursuant to a Tribal-State gaming compact. The Department notes that the ultimate legality of gaming activity occurring off Indian lands remains a question of State law, notwithstanding that a compact discusses the activity. However, in enacting IGRA, Congress did not contemplate the Department would address or resolve complex issues of State law during the 45-day review period, [30] and such issues are outside the scope of the Secretary's review. West Flagler, 71 F. 4th at 1065. Further, non-IGRA Federal law may also place restrictions on that activity. The Department codifies § 293.26 in the final rule, with edits for consistency with West Flagler, and, in response to comments, includes the phrase “unless that Tribe has lawfully consented” to paragraph (c).”
3
Made with FlippingBook - Online catalogs