3) adding a provision clarifying that submitting 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 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 contract, including Tribal governments, wholly owned Tribal entities, national banks, and certain institutional investors. This rule 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. Federal Court Updates Haaland v. Brackeen (June 15, 2023)— The case dates back to 2017, when Texas joined the Brackeen family (petitioners) in suing the United States, claiming that ICWA: (1) exceeded Congress’ power to enact laws relating to Indian affairs; (2) violated the Tenth Amendment’s anti-commandeering doctrine; and (3) violated the Constitution’s equal protection clause. In 2018, the U.S. District Court in Texas sided with the petitioners, holding that ICWA unlawfully discriminated against non-Natives. The U.S. Court of Appeals for the Fifth Circuit Court reviewed the District Court’s decision, reversing in part and upholding in part, causing both sides to seek Supreme Court review. The Supreme Court granted review and heard oral arguments in November 2022.
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