Comments of the National Indian Gaming Association on the National Indian Gaming Commission’s Request for Comments on Potential Regulatory Revisions – Series B. I. Introduction These comments are made in response to the National Indian Gaming Commission’s (“NIGC’s”) Series B topics presented via video conference on September 21-22, 2021, and October 21, 2021. We are pleased to provide input on the NIGC’s proposed changes to its regulations. II. Comments A. Background Investigations (25 U.S.C. § 2706 (b)(3)) 1. “…[W]hat are Tribes’ views on who warrants backgrounding? Should the determination be made based upon access as described above, job duties, a ten percent or more ownership interest in the company, or all these criteria? And how should these criteria be qualified or defined? Should access be limited to routine access? What job duties do Tribes believe warrant backgrounding? What other factors, if any, should be considered? Further, must licenses be issued to these individuals?” It is our understanding that the NIGC’s revised Memorandum of Understanding concerning use of Criminal History Records Information has, in effect, revised NIGC’s background investigations regulatory provisions, resulting in the elimination of provisions granting Tribal Gaming Regulatory Agencies (TGRAs) a degree of discretion in determining whether the occupant of a position should be licensed. The NIGC regulations, 25 C.F.R. § 502.14 (a), outline specific duties that qualify an individual as a Key Employee, including working as a bingo caller, counting room supervisor, chief of security, custodian of gaming supplies or cash, floor manager, pit boss, dealer , croupier, approver of credit, and/or custodian of gambling devices. 1 Persons filling other roles may also be considered Key Employees if that person earns over fifty thousand dollars ($50,000) per year or is among the four (4) most highly compensated individuals in the gaming operation. 2 While we understand that this provision in the MOU limiting TGRA discretion was in response to pressure from the Federal Bureau of Investigation based on concerns about the use of its data, we are concerned that this change may not be in the best interest of tribal governments and the change appears to demonstrate a lack of confidence in the judgment of TGRAs. Since a primary purpose of IGRA is to strengthen tribal governments, these decisions appear inconsistent with the statute.
1 25 C.F.R. §502.14 (a)(1)-(10) (emphasis added). 2 25 C.F.R. § 502.14 (b)-(c).
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