Winter Legislative Summit Agenda January 31 – February 1 Washington, D.C.
**Panel and Speaker Times are subject to change**
Tuesday, January 31
9:00 am
Opening Prayer & Invocation
9:10 am
Welcome Remarks Ernest L. Stevens, Jr. – Chairman, Indian Gaming Association Indian Gaming Association Update Jason Giles – Executive Director, Indian Gaming Association 2023 Outlook – Engaging with the new 118 th Congress John Harte – Partner, Mapetsi Aurene Martin – Managing Partner, Spirit Rock Consulting
9:20 am
9:30 am
10:00am
Senator Martin Heinrich (D-NM)
10:30 am
Native Farm Bill – 2023 Outlook Abi Fain – Intertribal Agricultural Coalition John Van Pool – Director of Policy and Governance, Indigenous Food and Agriculture Initiative, University of Arkansas School of Law Phil Baker-Shenk – Holland & Knight LLP
11:00 am
Treasury Update Chief Lynn Malerba – Treasurer, U.S. Treasury
Fatima Abbas – Director, Office of Tribal & Native Affairs, U.S. Treasury Rico Frias – Executive Director, Native American Financial Officers Association
12:00pm
Lunch Break
1:00pm
Sports Betting in the 118 th *invited, to be confirmed* Rep. Dina Titus (NV-01)
1:15pm
Rep. Jared Huffman (CA-02)
1:30 pm
NIGC Update Sequoyah Simermeyer – Chairman, National Indian Gaming Commission SBA Update Jackson Brossy – Assistant Administrator for the Office of Native Affairs, U.S. Small Business Administration Broadband Spectrum Licensing Panel Danae Wilson – Assistant Director for Internet Access, The White House Heidi Todacheene – Senior Advisor to the Secretary, Department of Interior Barbara Esbin – Deputy Bureau Chief - Consumer and Governmental Affairs Bureau, Federal Communications Commission *invited, to be confirmed*
2:00pm
2:30pm
3:00pm
Adjourn
5:00pm
Tribal Leaders Reception
Wednesday, February 1
10:00am
Rep. Ruben Gallego (AZ-03)
10:30am
Supreme Court Update
11:00am
Update from The White House Daron Carreiro, Senior Policy Advisor for Native Affairs - The White House Domestic Policy Council PaaWee Rivera, Senior Advisor and Tribal Affairs Director - The White House Office of Intergovernmental Affairs Update from BIA Bryan Newland, Assistant Secretary of Indian Affairs – Department of Interior
11:30am
FEDERAL POLICY PRIORITIES Indian Gaming Association: 2023 Winter Legislative Summit
118 th Congress: Leadership and Tribal Priorities ……….…..
2-3
FY’2023 Omnibus Appropriations ………………………………
4-5
Proposed Revisions to Part 293 – IGRA Compacting ………
6
Proposed Revisions to Part 151 – Tribal Land Into Trust ….
7
Mobile Sports Betting on Indian Lands ………………………..
8
Sports Betting Across the Country …………………………….
9
Reintroduction of Tax-Related Gaming Bills …………………
11
NIGC Regulatory Updates ………………………………………...
12
Federal Court Updates ……………………………………….…..
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Outlook for the 118 th Congress: Leadership / Tribal Priorities The 118 th Congress will need to work through divided leadership and narrow majorities in both chambers over the next two years. Senate Democrats retain a slim 51-49 majority that includes three Independents caucusing with the Democrats. Republicans take control of the U.S. House of Representatives with a 222-212 majority. Senate Leadership. Senator Chuck Schumer (D-NY) and Senator Mitch McConnell (R-KY) retain their respective leadership posts in the United States Senate. Likewise, Sen. Dick Durbin (D-IL) and Sen. John Thune (R-SD) retain the #2 posts in their respective caucuses. House leadership . After some debate, Rep. Kevin McCarthy (R-CA) was elected Speaker of the House on Saturday, January 7, 2023. The remaining Members of House Leadership include: Majority Leader - Steve Scalise (R-LA); Majority Whip - Tom Emmer (R-MN); Conference Chair - Elise Stefanik (R-NY); and Republican Policy Committee Chair - Gary Palmer (R-AL). Former Speaker Nancy Pelosi and her top deputies handed over caucus leadership to the next generation. The following were elected to Democratic Leadership: Democratic Leader - Hakeem Jeffries (D-NY); Minority Whip - Katherine Clark (D-MA); and Democratic Caucus Chair - Pete Aguilar (D-CA). Legislative Outlook Senate Priorities. After two years of work to enact an aggressive agenda that included passage of the American Rescue Plan, bipartisan gun safety, infrastructure, and CHIPS and science laws, and the highly partisan Inflation Reduction Act, Senate Democrats plan a more moderate agenda for the 118 th Congress. Leader Schumer has indicated that the chamber will focus on must-pass bills that include passing debt limit legislation, the annual defense bill, the farm bill, and the annual appropriations / funding bills. Senators will also press to advance President Biden’s judicial and agency nominees. House Priorities. House Republicans are taking a more hardline approach. In the first weeks of reclaiming the majority, House Leadership has advanced bills to cut funding for the IRS included in the Inflation Reduction Act, address reproductive rights, and increase energy production. House leaders also made clear that it will focus on investigations of the Biden Administration and President Biden’s family, origins of the COVID-19 pandemic, and “the Weaponization of the Federal Government”. FY’24 Appropriations. House Republicans have pledged to cut discretionary spending by $130 billion from the FY’23 levels, aiming to limit federal agency and program funding to FY’22 levels. The House will press appropriators to return to regular order to enact annual funding bills, vowing to reject the massive year-end omnibus bills that have kept government operations and programs open in recent years. Senate Appropriations leaders, Chair Patty Murray (D-WA) and Ranking Member Susan Collins (R- ME), released a joint statement promising to “reach sensible solutions” to fund the government for FY’24. They have also resolved a return to regular order, which has delayed the advancement of the individual appropriations in the Senate. House Republicans are working to tie their pledge to cut federal spending to any vote that would increase the federal debt limit. The Treasury Department indicated that the United States could exhaust extraordinary measures needed to meet government financial obligations in June of 2023. Indian Country Priorities . Indian Country will continue to press Congress to advance many of the longstanding priorities, such as basic reauthorization and updating of the Native American Housing Assistance and Self-Determination Act and others, that have been held up in recent years by a few Senators seeking to advance bills to acknowledge groups as federally recognized Indian tribes. Limit Impacts of Castro-Huerta . Tribes nationwide continue to debate how to address expected fallout from the Supreme Court’s 2022 decision in Castro-Huerta v. Oklahoma , which held that state governments have concurrent jurisdiction to prosecute crimes committed by non-Indians against
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Native victims on Indian lands. The Court reasoned that under its “precedents, federal law may preempt state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.” (Citing the Tenth Amendment to the U.S. Constitution for this statement). The long-standing test for state authority in Indian country is that a state only has power to exercise authority on Indian lands pursuant an express act of Congress or consent of the Tribe. The Castro-Huerta Court turns this presumption on its head, imposing a new test: “unless [affirmatively] preempted [by an Act of Congress], States may exercise jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.” Indian Country will work through the Senate Committee on Indian Affairs, the House Natural Resources Committee and with the Biden Administration to blunt the impacts of this decision on tribal sovereignty, including potential down the road impacts on Tribal Government taxing authority, civil and regulatory jurisdiction over non-Indians, and related impacts on Tribal government economies. ICWA Protection. In November of 2022, the U.S. Supreme Court heard oral arguments in Brackeen v. Haaland where several states contend that ICWA’s placement preferences violates the Constitution’s equal protection clause and unlawfully commandeers state governments. The Court’s decision in this case is expected as early as February of 2023 but could be delayed until the end of the Court’s 2022-23 term. Tribes nationwide are laying groundwork with congressional leaders and the Biden Administration to address any potential adverse impacts from this case on Indian child placement decision-making and possible broader impacts on tribal sovereignty and federal laws that acknowledge the governmental status of Indian tribes. Tribal Tax Provisions. Indian Country will continue to press Congress to enact key reforms to the U.S. Tax Code to respect the governmental status of Indian Tribes for purposes of issuing tax exempt bonds and acknowledge direct tribal government access to the Low-Income Housing and New Markets tax credit programs, respect tribal court rulings for purpose of the federal child adoption tax credit, provide parity to the tax and pension treatment of tribal police officers and other key tribal government officials, among other longstanding needed reforms. Indian Health Service Advanced Appropriations. As will be detailed below, Indian Country achieved a historic victory in securing advance appropriations for Indian health care services and programs as part of the FY’23 Omnibus Appropriations Act. However, this achievement fell short of permanent advance appropriations funding. As a result, while funding is secure to prevent impacts from delayed funding or a government shutdown for FY’24, tribes nationwide will work to retain at least one-year advance appropriations in the next spending package. Work with the Biden Administration. As noted above, legislative activity will be difficult in the divided Congress. Indian Country will lean into work with the Biden Administration and the various executive agencies to secure policy achievements, including work to build on the Administration’s initiatives to restore tribal government homelands, protect sacred places on federal lands, expand on tribal government co-management and use of traditional indigenous knowledge in managing federal lands, and new initiatives to expand economic opportunities throughout Indian Country.
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Tribal Provisions in the FY’23 Omnibus Appropriations Act President Biden signed the FY’23 Omnibus Appropriations Act into law on December 29, 2022, to secure funding for government agencies and programs through the remainder of Fiscal Year 2023 – September 30, 2023. The law includes historic policy victories for Indian Country health care and increases funding to meet the public safety and justice, economic development, and other funding needs of Native communities. Below is a summary of those top line achievements. Indian Health Service Advanced Appropriations. Tribal governments and organizations nationwide have worked congressional leaders for more than a decade to provide for advanced appropriations for Indian Health Services. The IHS is the only major federal healthcare program exposed to government shutdowns and continuing resolutions. The budgetary uncertainty undermines the ability to recruit and retain quality doctors and nurses and increases administrative costs that should be used for patient care. In the wake of the 2018-19 shutdown, Tribal health programs were forced to reduce hours and services, faced staff resignations, and other negative impacts on patient care. Thanks to a united nationwide effort, the FY’23 Omnibus Act provides an advance appropriation of $5.129 billion for fiscal year 2024 to provide budget certainty for Indian health programs, guarding them from essential service disruptions due to government shutdowns. The law brings the IHS into parity with other federal health care providers, all of which either receive advance appropriations or mandatory funding. The provision helps recruitment and retention of Indian healthcare providers, and prevents impacts on IHS funding uncertainty, while reducing administrative burdens and costs. At its core, this provision will go far in helping fulfil the federal government’s treaty and trust responsibility to provide Native Americans with quality health care. Native Behavioral Health Resources. The bill appropriated “$80 million for each of fiscal years 2023 through 2027” to address behavioral health and substance abuse prevention in Native communities. The provision directs the DHHS Assistant Secretary of Mental Health and Substance Abuse (SAMHSA) to coordinate with the Director of the Indian Health Service – and in consultation with Indian tribes – to develop a formula and award funds to tribal governments. Funding may be awarded to tribes through ISDEAA contracts or compacts. This historic level of new funding will help Native communities nationwide address a crisis of substance abuse that has intensified during the pandemic. COVID Relief Funding Extension and Flexibility. The FY’23 Omnibus also included a provision that extends the deadline for tribes to utilize COVID relief funding that is budgeted for eligible infrastructure projects. The American Rescue Plan Act of 2021 made water, wastewater, and broadband infrastructure eligible for pandemic funding. Thanks to an effort by Senators Padilla (D- CA) and Cornyn (R-TX), the new law provides flexibility for governments to spend relief allocations. The FY’23 Omnibus also includes substantial increases to essential federal programs and services that both respect the status of Indian Tribes as governments and attempts to meet the governments solemn treaty and trust obligations to Native Nations. Below are some of the top line programmatic increases included in the new law: Indian Health Care. $6.928 billion for IHS (+$297 million over FY’22) for Indian health programs and services to reduce wait times, build hospitals in areas that currently have insufficient access to healthcare, better equip health facilities with medical equipment, and modernize health records. Bureau of Indian Affairs / Indian Education. $3.842 billion for BIA/BIE programs and services (+$297 million / 7% increase over FY’22 levels). The Omnibus Act provides funding increases for critical needs facing Tribal governments, including public safety and justice, special initiatives to address Missing and Murdered Indigenous Women cases, Tribal courts, and Indian land consolidation. This Act also boosts the BIE by $119 million, or 9 percent, over the fiscal year 2022 level to support BIE and tribal schools and Tribal Colleges.
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The Omnibus also includes funding increases for Native housing programs, DOJ’s public safety and violence prevention programs, Native language revitalization, climate and environmental resiliency, clean water and wastewater systems, and more. HUD: $1+ billion for Native American housing programs (HUD) $937 million for the Indian Housing Block Grant Program $75 million for the Indian Community Development Block Grant Program DOJ: $200 million to address public safety and violence against Native women $60 million for DOJ’s Office of Justice Programs assistance to Indian Tribes (CTAS grants) $11 million for DOJ’s OVW Tribal VAWA implementation grant program $3 million to support cross-designation of Tribal prosecutors as Special Assistant U.S. Attorneys $1.5 million for ongoing analysis and a national training clearinghouse to stop violence and sexual assault of American Indian & Alaska Native women 5 percent set-aside for Indian Tribes to receive direct funding from the Crime Victims Fund DOI/HHS: $349+ million for programs to support Native American languages and cultures $23 million for Tribal Historic Preservation Officers $295 million for Native American/Hawaiian museum services $15 million for HHS’s Administration for Native Americans Native language grant programs $12.4 million for Native American language immersion schools and programs EPA: $74+ million to support the delivery of clean drinking water and control water pollution $4 million for the Indian Reservation Drinking Water Program 1.5% increase in set-aside for Tribes from the Federal Water Pollution Control Act $70 million for tribes for rural water and water disposal DOI/EPA/DOE: $289+ million for environmental resiliency funding for Tribal communities $35 million for DOI’s Tribal Climate Resilience program $1.5 million for DOI’s Tribal climate relocation grants $11.74 million for reclamation of abandoned mines on Tribal lands $70 million for EPA water and wastewater disposal grants $6.2 million for tribal wildlife grants $16.4 million for tribal air quality management $44.5 million for BIA operations to address wildfires, hurricanes, and other natural disasters $75 million for Indian Energy policy and programs $4 million for Tribal Energy Loan Guarantee Program administration and loan costs
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Proposed Rule to Amend 25 C.F.R. Part 293 – IGRA Class III Compact Regulations On Tuesday, December 6, 2022, the Interior Department published a rule that proposes changes to regulations governing the IGRA compacting process at 25 C.F.R. Part 293. The proposed rule stems from draft revisions to Part 293 that the Department released in March of 2022. The Department hosted four tribal leader consultation sessions on the draft revisions and accepted written comments. The Department's current Part 293 regulations were promulgated in 2008. The 2008 Regulations were designed to "address[es] the process for submission by Tribes and States and consideration by the Secretary of Class III Tribal-State Gaming Compacts, and [are] not intended to address substantive issues ." The proposed rule would address these substantive issues by codifying Departmental policy developed since 1988 through decision letters and federal case law. These decisions address the appropriate scope of class III gaming compacts, revenue sharing provisions, and other factors. In publishing the proposed rule, Interior acknowledged that “the Indian gaming industry remains one of the most significant sources of Tribal economic development in Indian Country. The changes proposed to 25 C.F.R. Part 293 … would provide clarity on the criteria the Department would consider when deciding whether to approve compacts by clarifying boundaries as to allowable topics of negotiation, better defining key terms, and clearly outlining when the Department must review a gaming compact.” The most substantive provisions in the proposed rule are located at Subpart D, which examines the "Scope of Tribal-State Gaming Compacts." This Subpart clarifies provisions/topics deemed permissible and impermissible for purposes of tribal-state gaming compact negotiations. For example, permissible provisions include those relating to the application of laws or regulations or that address tribal or state jurisdiction "that are directly related to, and necessary for, the licensing and regulation of gaming activity" (Part 293.17-18); provisions "directly related to the operation of gaming activities" (Part 293.23). Proposed Part 293.24 will govern how the Department will determine whether a provision is "directly related to the operation of gaming activities." Part 293.25 would codify the Department's policy governing whether "revenue sharing" provisions in tribal- state gaming compacts are lawful under IGRA. The proposal states that compacts may include "revenue sharing in exchange for a State's meaningful concessions resulting in a substantial economic benefit for the Tribe." The term "meaningful concession" is defined at Part 293.2(h). Proposed Part 293.27 would clarify that “If the State allows any form of class III gaming, then the State is regulating all forms of class III gaming. A State’s refusal to negotiate in a compact over all forms of class III gaming, not prohibited in the State, is considered evidence of a violation of IGRA.” This position is referred to as the “class-based test” and has been adopted by the Second Circuit in Mashantucket Pequot Tribe v. Connecticut and the Tenth Circuit in Northern Arapahoe Tribe v. Wyoming . Proposed Part 293.29 would make clear that compacts may include provisions allocating State and Tribal jurisdiction over remote wagering originating outside Indian lands where state law or the compact deems the gaming to take place on the Tribe's Indian lands where the server accepting the wager is located. The federal register notice explains that "the overwhelming majority of commenters agreed that the Department should include provisions related to i-gaming," noting the need for Tribes to be able to compete in the digital industry. However, the notice also acknowledged that "a handful of commenters opposed the Department addressing i-gaming in the draft revisions." Text of the federal register notice of the proposed rule, executive summary, and summary of comments received can be found at this link: https://www.govinfo.gov/content/pkg/FR-2022-12-06/pdf/2022- 25741.pdf. The Department hosted an in-person consultation at the BLM National Training Center in Phoenix, Arizona, on January 13, 2023, from 1:00 pm - 4:00 pm MT, and held two virtual consultations on January 19 and January 30, 2023. The deadline to submit written comments is March 1, 2023. Comments should be e-mailed to consultation@bia.gov with the subject line " RIN 1076-AF68, 25 CFR Part 293".
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Proposed Rule to Amend 25 C.F.R. Part 151 – Fee to Trust Process
On Monday, December 5, 2022, the Interior Department published a proposed rule to amend regulations governing the discretionary acquisition of tribal land into trust applications at 25 C.F.R. Part 151. These regulations implement the land into trust provision included in the Indian Reorganization Act of 1934. Interior indicates that the proposed rule seeks to streamline the tribal land to trust process, reduce costs for tribal government applicants, and establish clear decision-making criteria. The proposed rule is part of the Biden Administration’s two-year initiative to help restore tribal government homelands. In October 2021, Interior held Tribal Leader consultation sessions that discussed the need to improve the administrative process to restore tribal homelands. On March 28, 2022, the Department released draft revisions to Part 151, based on comments received from the October 2021 consultation. The Department then held four Tribal Leader consultations, which led to the current proposed rule. The proposed rule makes minor changes throughout the existing land into trust regulations, which were last substantially amended in 1995. Proposed Part 151.3 establishes that it is the Department’s policy to acquire tribal trust land to strengthen self-determination and sovereignty, ensure that every Tribe has protected homelands where its citizens can maintain their Tribal existence and way of life, and consolidate land ownership to strengthen Tribal governance over reservation lands and reduce checkerboarding. To help expedite the process and increase certainty, Proposed Part 151.8 would require the Department to make a final determination on tribal fee-to-trust applications within 120 calendar days of assembling a complete application package. To help reduce costs, Proposed Part 151.15 would limit trust land applications to a single environmental assessment, with a potential update - if necessary - after notice of the decision has been signed. The proposed rule, at Part 151.9 – 12, would establish clear criteria by requiring that great weight be given to establishing a Tribal land base or protecting Tribal homelands, protecting sacred sites or cultural resources and practices, establishing or maintaining conservation or environmental mitigation areas, consolidating land ownership, acquiring land lost through allotment, protecting treaty or subsistence rights, or facilitating Tribal self-determination, economic development, and Indian housing. One significant change, set forth at Proposed Part 151.4, would set criteria for the Department to determine whether a Tribe was “under federal jurisdiction” in 1934. The lack of a regulatory definition for the term “under federal jurisdiction” (“UFJ”) has plagued the land into trust process since the Supreme Court’s 2009 Carcieri v. Salazar decision. Codifying this definition in regulation would make this critical determination more durable than the existing M-Opinion that Interior currently employs to make a determination of whether an Indian tribe was “under federal jurisdiction” for purposes of the Indian Reorganization Act. Text of the federal register notice of the proposed rule and Interior’s Executive summary can be found at this link: https://www.govinfo.gov/content/pkg/FR-2022-12-05/pdf/2022-25735.pdf. The Department hosted an in-person consultation at the BLM National Training Center in Phoenix, Arizona, on January 13, 2023, from 1:00 pm - 4:00 pm MT, and held two virtual consultations on January 19 and January 30, 2023. The deadline to submit written comments is March 1, 2023. Comments should be e-mailed to consultation@bia.gov with the subject line " RIN 1076-AF68, 25 CFR Part 293".
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Indian Gaming and Mobile Sports Betting Sports and mobile wagering have rapidly expanded in the United States since the Supreme Court’s May 2018 decision in Murphy v. NCAA , which struck down the federal Professional and Amateur Sports Prohibition Act as unconstitutional. In the nearly five years since Murphy , at least 35 states and the District of Columbia have legalized sports betting, with at least 20 offering some form of online sports wagering. Dozens of Tribal Governments have added sports wagering to Indian gaming operations pursuant to existing IGRA compacts. The issue of whether Tribes can operate online sports betting is a topic of ongoing legal debate. Some Tribes have worked through the compacting process to either implement geo-fenced mobile gaming that requires both the bettor and the server to be on Indian lands. Other Tribes have worked with states to participate under state-run mobile licensing and regulatory models that take place outside of IGRA. Tribes are working with Congress, with the Biden Administration, and in federal court to ensure that Indian gaming maintains equal footing as state governments increasingly authorize mobile sports wagers with a goal towards securing authority for Tribes to accept wagers from bettors off Indian lands where the server is located on Indian lands to better ensure that Tribal Governments benefit from mobile gaming revenue. No bill has been introduced to date in the 118 th Congress, but there are efforts to reintroduce some version of the “Removing Federal Barriers to Offering Mobile Wagers on Indian Lands Act” that Rep. Lou Correa (D-CA) with co-sponsor and now former Rep. John Katko (R-NY) introduced in the 117 th Congress. The bill sought to clarify that Tribal Governments can operate online sports wagering under IGRA where the server – that accepts and processes the bet – is located on Indian lands. The bill also qualified that wagers will be considered to occur on Indian lands if the person placing the wager and server are located in the same state, and only if the Tribe and the State have entered into a compact pursuant to IGRA. The bill sought to align current law with the original congressional intent of IGRA to enable Tribal Governments to utilize emerging technology and access emerging gaming markets. The Biden Administration is also working to clarify that IGRA provides enough flexibility for Tribes to add mobile sports wagering to their existing operations. In August of 2021, the Interior Department “deemed approved” a compact between the Seminole Tribe of Florida. That compact included a provision referred to as a "hub and spoke" model, where the Tribe's servers are the hub, and the spokes are the mobile devices and contracted facilities where the wagers originate. The State legislature authorized mobile sports betting exclusively for the Tribe through legislation enacted at the same time it ratified the compact. In its “deemed approved” letter, the Biden Interior Department rightly acknowledged that “other jurisdictions are deeming wagers to occur at a specified location. Multiple states have enacted laws that deem a bet to have occurred at the location of the servers, regardless of where the player is physically located in the state. The compact reflects this modem understanding of how to regulate online gaming.” However, this legal argument faced a setback in the ongoing West Flagler Associates v. Haaland case decided by the U.S. District Court for the District of Columbia. The court narrowly read IGRA to limit this activity. This is a misguided and narrow interpretation of IGRA that directly conflicts with congressional intent and growing practice in other states. The Biden Administration has appealed the case to the D.C. Circuit Court of Appeals. Additional details about this case are posted in the federal litigation update below. Finally, the Interior Department is also seeking to clarify the ability of Tribes to conduct mobile wagering through the IGRA compact process. As noted above, Interior’s proposed rule to change regulations at Part 293 would acknowledge that Tribes can operate mobile wagering originating outside Indian lands where state law and/or the compact or amendment deem the gaming to take place on the Tribe’s Indian lands where the server accepting the wagers is located.
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Sports Betting at a Glance
Sports betting legal, full mobile betting: • Arizona (since Sept. 2021) • Arkansas (in-person since July 2019, mobile since Mar. 2022) • Colorado (since 2020) • Connecticut (since 2021) • Delaware (legal, but not yet established) • Illinois (since June 2020) • Indiana (since 2019) • Iowa (since 2019) • Kansas (since 2022) • Louisiana (since 2022) • Massachusetts (since 2022, but not yet established) • Maryland (in-person since 2021, mobile since 2022)
• Michigan (since 2021) • Nevada (since 2018) • N ew Jersey • New York • Ohio (since 2023) • Pennsylvania • Tennessee • Virginia • West Virginia • Wyoming Sports betting legal, limited mobile betting:
• New Hampshire (online permitted with DraftKing operating as sole mobile operator) • Rhode Island (online permitted with IGT/William Hill operating as sole mobile operator) • Washington D.C. (GambetDC operates anywhere, but other active sportsbooks are limited by geographic regions) Sports betting legal, only in-person/on tribal lands: • Mississippi (since 2018) • Montana (since 2020, permitting the preparation for sports betting online, but wagers may only be placed at an in-person Sports Bet Montana kiosk). • New Mexico (no legislation has been passed, but Tribes have interpreted sportsbooks to be legal at tribal casinos under existing state-tribal compacts) • Oregon (tribes may offer wagering on college sports, but no online betting – DraftKing is the sole mobile operator for mobile betting) • North Carolina (since July 2019)
• North Dakota • South Dakota • Washington (online permitted on tribal lands only) • Wisconsin (heavily restricted) Sports betting halted: • Florida (Halted due to litigation)
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Passed in 2022 – Awaiting Implementation: • Maine (Signed into law in April 2022, proposed rules released January 2023 - permits Maine’s four native tribes to partner with commercial operators and offer online sports betting. It sets the state up for up to four mobile sportsbooks.) • Nebraska (In October 2022, the Nebraska Racing and Gaming commission voted to approve rules for sports betting, so we should expect this to launch sometime in 2023) Under Consideration: • Kentucky (a bill has been introduced that would legalize in-person and mobile sports betting) • Minnesota (within the coming weeks, lawmakers are planning to introduce a new bill that would be similar to a failed 2022 bill that would have given control to the legal sports betting market to the tribes). • Missouri (lawmakers are expected to introduce legislation that would legalize sports betting later this year). • North Carolina (lawmakers are expected to attempt to introduce a bill that would legalize online sports betting, following a failed attempt last year).
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Tax-Related Gaming Legislation In the 118 th Congress, the House is again expected to examine needed updates to federal tax-related gambling laws. In the 117 th Congress, Co-Chairs of the Congressional Gaming Caucus, Representatives Dina Titus (D-NV) and Guy Reschenthaler (R-PA) introduced the Shifting Limits on Thresholds Act (or “SLOT Act”) and the Discriminatory Gaming Tax Repeal Act. The SLOT Act would modernize the Tax Code by increasing the tax reporting threshold for slot jackpots to $5,000 and provide a mechanism for future increases based on inflation. This change will ease operational and paperwork burdens on casinos and their patrons and enable the IRS to focus its limited resources and staff on filers most likely to have net slot winnings and owe taxes at the end of the year. The current threshold for reporting slot winnings was set at $1,200 in 1977 and has not been updated in 45 years. In 1977, the IRS set the tax information reporting threshold for a patron’s slot jackpot win at $1,200. Accordingly, when a casino patron wins a slot machine jackpot of $1,200 or more, the machine immediately shuts down and a casino employee must issue that patron the tax reporting form known as a W-2G. This threshold has not been updated in the 45 years since, and if indexed for inflation, the threshold would be around $5,000. Due to inflation and this stagnant requirement, the number of jackpots hitting that threshold, triggering a shutdown of the machine and necessitating excessive paperwork for patrons, has increased dramatically. This has also led to a deluge of W-2G forms inundating an underbudgeted and understaffed IRS every year. If indexed for inflation, the threshold would be $5,000. Due to inflation, the number of jackpots hitting that threshold, triggering a shutdown of the machine and necessitating excessive paperwork requirements for the patron, has increased dramatically. This creates an unnecessary burden on the gaming industry, an economic driver for Southern Nevada and other communities nationwide where slot machines exist. While I believe appropriate taxes should be collected on winnings, raising the threshold would reduce paperwork and ensure this is accomplished more efficiently.” The bill was endorsed by the Indian Gaming Association (IGA), California Nations Indian Gaming Association (CNIGA), Santa Ynez Band of Chumash Indians, Choctaw Nation, Chickasaw Nation, Kalispel Indian Tribe, and the American Gaming Association (AGA). The Discriminatory Gaming Tax Repeal Act would repeal the outdated gambling excise tax. Congress enacted the wagering excise tax in 1951 to target organized crime and discourage gambling. Over the past 70 years, provisions concerning the wagering excise tax have been amended to exempt parimutuel wagering, effectively exempting bets on horse and dog racing activity, as well as state sponsored lotteries. The wagering excise tax assesses 0.25 percent of the full amount of money wagered on a sporting event as well as an additional $50 annual tax for every employee engaged in receiving wagers on behalf of any legal sports betting operator. The law has also been found to apply to pull tabs and certain lotteries. In the late 1990s and early 2000s, Tribal Governments fought the application of the wagering excise tax to wagers on pull-tab games conducted by tribal gaming enterprises. Tribal Governments have argued that since state lotteries are expressly exempt from the wagering excise tax and IGRA requires that the wagering excise tax must be applied to Tribal Governments “in the same manner as such provisions apply to States,” Class II pull-tab games should also be exempt from the tax. Nevertheless, in Chickasaw Nation v. United States , the U.S. Supreme Court held that tribal governments are subject to the wagering excise tax. The wagering excise tax imposes the burden of increased operating costs on legal sports betting operations regulated by Tribal and state governments. The bill would eliminate the increased burden of the wagering excise tax on Indian gaming operations that now employ sports betting, and effectively overturn the Supreme Court’s misguided 2001 decision in Chickasaw Nation v. United States .
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NIGC Regulatory Updates Since the completion of the NIGC’s Series A, B, and C Tribal consultations held between July 12, 2021, and February 11, 2022, there have been several final rules published in the Federal Register that amend regulations governing various aspects of tribal gaming. Further, two proposed rules have been published in the Federal Register that, if formally promulgated, would amend additional regulations governing various aspects of tribal gaming. Facility License Notification Submission Requirements On July 25, 2022, the NIGC published a final rule amending 25 C.F.R. § 559.2(b) to eliminate the requirement to include certain information about a gaming facility when submitting a Facility License Notification to the NIGC Chair. Specifically, the final rule changes the requirement so that the name and address of the proposed gaming facility be included only if known when the facility license notification is submitted to the NIGC Chair. This final rule was initially proposed on December 1, 2021, with an initial comment period that ended on January 3, 2022, which was subsequently re-opened until June 23, 2022. This final rule became effective on August 24, 2022. Background Investigations and Gaming Licenses for Primary Management Officials and Key Employees On August 10, 2022, the NIGC published a proposed rule that would amend the NIGC’s regulations governing background investigations and the issuance of gaming licenses to Primary Management Officials (“PMOs”) and Key Employees (“KEs”) in 25 C.F.R. Parts 502, 556, and 558. Comments to this proposed rule were due September 9, 2022. Specifically, this proposed rule, if promulgated, would amend the NIGC’s regulations by: 1) amending the definition of a KE in § 502.14 to include any person authorized by the gaming operation for unescorted access to restricted areas as so designated by the Tribal Gaming Regulatory Authority; 2) updating the definition of a KE so that it no longer automatically includes individuals whose total cash compensation is over $50,000 per year and to allow Tribal governments to designate other employees of a gaming enterprise as a KE so long as that designation is included in the Tribe’s gaming ordinance; 3) specifying that the definition of a PMO in § 502.19 applies to those with management authority over some facet of a gaming operation or enterprise, including the gaming operation’s general manager and its chief financial officer; 4) adding definitions for the terms “Gaming Enterprise” and “Tribal Gaming Regulatory Authority”; 5) clarifying in Part 556 that all KEs and PMOs of the gaming enterprise must be subject to a background investigation; and 6) amending Part 558 to require Tribal governments to notify the NIGC if it revokes a gaming license of a KE or PMO as well as to forward copies of the license revocation decision and a summary of the evidence it used to the NIGC. This proposed rule also clarifies that ordinances already in effect would not need to be amended to be consistent with the changes proposed to Part 556 or Part 558, but that all future ordinance submissions would have to comply.
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Appeals to the Commission On August 10, 2022, the NIGC published a proposed rule that would amend its regulations governing appeals made to the NIGC. Comments to this proposed rule were due September 9, 2022.This proposed rule would amend the NIGC’s regulations at 25 C.F.R. Part 585 by: 1) amending § 585.5(a) to only allow motions for extension of time, motions to supplement the record, motions to intervene, and motions for reconsideration in the context of appeals to the NIGC; 2) removing the NIGC’s discretion under § 585.5(a) to consider any other types of motions offered by an appealing party; and 3) creating a new section at § 585.8 establishing a process for pursuing a settlement in an appeal on written submissions to the NIGC. The settlement process would allow parties to jointly move to stay an appellate proceeding for a reasonable time to allow negotiation of a settlement or another agreement that would dispose of the whole or any part of the proceeding. The process would require that a settlement include mandatory provisions waiving further proceedings before the NIGC regarding the specific matter that was settled under the agreement, and that the settlement would constitute a dismissal of the appeal and a final agency action. NIGC Fee Calculations On September 6, 2022, the NIGC published a final rule amending its regulations in 25 C.F.R. § 515.4 governing the calculation of annual fees owed by a gaming operation to the NIGC. The final rule excludes amounts wagered as promotional credits from the “total amount of money wagered” when calculating the amount of annual fees owed to the NIGC. This rule was initially proposed on December 2, 2021. The NIGC received some comments opposing the initial proposal which it took into consideration when amending the proposal into the final rule. This final rule went into effect on October 6, 2022. Gaming Ordinance and Amendment Submission Requirements On September 21, 2022, the NIGC published a final rule amending the NIGC’s regulations controlling the submission and approval requirements for Tribal gaming ordinances and resolutions and amendments thereof. This rule was initially proposed on December 9, 2021, with the comment period initially ending on January 10, 2022, and subsequently being re-opened until June 23, 2022. Specifically, this proposed rule amends the NIGC’s regulations at 25 C.F.R. Part 522 in several ways. These amendments include: 1) authorizing the submission of documents in electronic or physical form; 2) clarifying that the submission requirements apply to amendments of ordinances or resolutions; 3) eliminating the requirement that a Tribal government provide copies of all gaming regulations with the submission of a gaming ordinance or resolution and amendments thereof unless the copies are requested; 4) clarifying that the 90-day deadline for the NIGC Chair’s ruling begins upon receipt of a complete submission; and 5) eliminating the regulatory requirement that the Chair publish a Tribe’s entire gaming ordinance or amendment in the Federal Register upon the Chair’s approval and instead establishing that a notice of the approval is sufficient. This final rule went into effect on October 21, 2022. Audit Standards On September 21, 2022, the NIGC published a final rule amending the NIGC’s regulations concerning its audit standards at 25 C.F.R. Part 571. This rule was originally proposed on June 1, 2022, with the
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comment period initially open until July 1, 2022, before it was extended to August 1, 2022. Specifically, this final rule amends NIGC regulations at 25 C.F.R. Part 571 by: 1) eliminating the Commission’s waiver requirement and allowing all gaming operations grossing less than $2 million the prior fiscal year to submit financial statements for review in lieu of an audit, so long as the gaming operation’s regulatory agency permits such a disclosure; 2) creating a new financial reporting tier for charitable gaming operations with annual gross revenues of $50,000 or less and establishing financial reporting regulations for such operations where, if permitted by a Tribal government, a charitable gaming operation can submit financial information monthly to the Tribal government or TGRA, and the TGRA will provide an annual certification to the NIGC regarding the operation’s compliant with financial reporting requirements; and 3) adding a provision clarifying that the submission of an adverse opinion does not satisfy the regulation’s reporting requirements. This final rule became effective on October 21, 2022. Self-Regulation of Class II Gaming On October 18, 2022, the NIGC published a final rule amending the NIGC’s regulations concerning Tribal governments’ self-regulation of Class II gaming. This rule was initially proposed on April 7, 2022. The comment period was extended to June 23, 2022. The final rule amends the NIGC’s regulations at 25 C.F.R. Part 518 by: 1) clarifying the NIGC may make a final decision on issuing a certification of self-regulation within thirty (30) days rather than after thirty (30) days; 2) removing the requirement that the director of the Office of Self-Regulation (“OSR”) must be an NIGC Commissioner; 3) specifying that the OSR is the correct party to receive notifications of material changes from self- regulated Tribal governments; 4) extending the deadline for Tribal governments to report material changes to the OSR from three (3) business days to ten (10) business days; 5) designating OSR as the proponent of any case to revoke a certificate of self-regulation before the NIGC; and 6) specifying that the OSR bears the burden to show just cause for a revocation based on the preponderance of the evidence in any certificate revocation hearing before the NIGC. This final rule will go into effect on November 18, 2022. Background Investigations for Persons and Entities with a Financial Interest in or having a Management Responsibility for a Management Contract. On November 14, 2022, the NIGC published a final rule revising its procedures for processing a request for the approval of a management contract under 25 C.F.R. § 537.1. This rule was initially proposed on December 2, 2021, and had an additional comment period ending January 3, 2022, which was then re- opened until June 23, 2022. The final rule requires background investigations of all persons who have 10 percent or more direct or indirect financial interest in a management contract, all entities with 10 percent or more financial interest in a management contract, and of all persons or entities with a direct or indirect financial interest in a management contract otherwise designated by the NIGC. This final rule also authorizes the NIGC Chair, upon request or in his or her discretion, to reduce the scope of information to be furnished and background investigation to be conducted for certain entities with a direct or indirect financial interest in a management
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contract, including Tribal governments, wholly owned Tribal entities, national banks, and certain institutional investors. This rule apparently provides the NIGC Chair with the discretion to reduce the background investigation requirements set forth in § 537.1(a)(3)-(4) for the specified entities. This final rule becomes effective on December 14, 2022.
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Federal Court Updates
Oklahoma v. Castro- Huerta (SCOTUS) . Argued late April 2022; Decided June 29, 2022. Issue: Whether the General Crimes Act prohibits Oklahoma’s prosecution of non-Indians who commit crimes against Indian victims in Indian country. Holding: the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country. The Court found that Indian country is not separate from state territory and states have jurisdiction to prosecute crimes committed on Indian land unless preempted, and this situation was not preempted, granting states jurisdiction to prosecute crimes committed by non- Indians against Indians in Indian country. Dissent: Justices Gorsuch, Breyer, Sotomayor, and Kagan Topic: Criminal Jurisdiction Brackeen v. Haaland (SCOTUS) . Argued November 9, 2022; Expecting a decision in Spring or early Summer 2023. Issue: (1) whether ICWA’s placement preferences, favoring placing Indian children with Indian adoptive families, discriminates on the basis of race in violation of the 14 th amendment; and (2) whether ICWA’s placement preferences exceeded Congress’ Article I authority by becoming involved in the child placement process and commandeering state courts and agencies to carry out a federal child placement program. Plenary Power : Justices Gorsuch and Kagan did not seem to see an issue with Congress’ plenary power to regulate Indian affairs, as it is a relatively broad power and is necessary for other laws intended to benefit Indians. Justice Alito, however, worried about that acceptance of this would lead to unlimited Congressional plenary power. Equal Protection : Justices Gorsuch and Kagan did not see a Constitutional issue with equal protection laws because the tribes are considered separate sovereigns, classified by their political distinction, rather than the racial distinction. Justice Kavanaugh seemed divided between recognizing Indians by their race or by their longstanding history with the United States States’ Rights Argument: Justices Gorsuch, Sotomayor, and Jackson did not seem worried about the involvement of ICWA in state family courts, which use their own “best interests of the child” standard, nor was the anticommandeering doctrine and issue because it was not intended as a means to coopt state resources. Justices Kavanaugh and Barrett seemed to disagree with both sentiments. Justice Roberts posed a hypothetical to the representatives for the tribes, but it is unclear if he was convinced by the answer. Standing: Both Justices Gorsuch and Thomas raised questions pertaining to the individual plaintiffs and Maverick Gaming LLC v. United States of America, et al. (Case No. 1:22-cv-00068)— Maverick Gaming LLC, a Washington-based company that owns and operates 19 card rooms within the State of Washington, filed suit against the United States, the Department of Interior, Sec. Haaland, and Asst. Sec. Bryan Newland, and a number of Washington state officials, for allowing tribes to engage in Class III gaming, including sports betting, while prohibiting commercial, non-Indian entities from participating in such gaming. To date, the State of Washington has approved gaming compacts with 29 Indian Tribes, with 16 of those compacts being amended and approved to permit sports betting. Commercial entities, such as Maverick, are barred under Washington criminal law from offering sports betting. Declaring the Tribes to have a “monopoly over most forms of casino-style gaming,” Maverick alleges that such monopoly is inconsistent with IGRA and federal criminal statutes, as well as in violation of the Constitution’s guarantee of equal protection by “irrationally and impermissibly discrimination on the basis of race and the state’s right to sue. Topic: Family Law/ICWA
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