First, we recommend that, should this draft section be adopted, the final sentence of the primary segment of subsection (a) be revised to read as follows, to mirror the final sentence of subsection (c): “Examples include, but are not limited to:” Second, we recommend adding citations to the authoritative basis, if any, for the categorization and selection of topics as either “directly related to gaming” in draft § 293.23 (a)(1)-(3) or “not directly related to the operation of gaming activities” in draft § 293.23 (c)(1)-(6). IGA is of the opinion that citing to such authorities, whether gleaned from long-standing case law or official opinions of the Department, would serve to strengthen the force of the new regulatory provisions, while also explaining their inclusion to regulated tribal governments. We believe the greatest benefit to tribal governments, however, would be affected by including standards and/or a procedure within this regulatory section outlining how “the parties must show that [provisions included in the compact or amendment] are directly related to the [tribal government’s] conduct of class III gaming.” As proposed, § 293.23 requires tribal governments to justify the inclusion of certain topics in a compact or amendment by proving that those topics are related to gaming; however, the Department does not establish how a tribal government might effectively do so. For example, would it be sufficient to merely cite to the examples in the regulation? Must the parties draft and include a specific statement explaining the topics’ direct relation to gaming in the transmission letter to the Department? If so, are there certain factors that must be addressed within such a statement? We recommend that any standards in this regard include, at minimum, 1) the means for showing the relation (e.g., in a submission letter, within the text of compact itself, by checking a box from a selection of categories on a worksheet, etc.), and 2) manners by which the parties can prove the connection (e.g., showing that the activity falls under a regulatory example or falls under a category of specific topics added to the regulation following this consultation).
7.
§ 293.24 - “What factors will the Secretary analyze to determine if revenue sharing is lawful?”
[Tribe/Nation] is generally supportive of the Department’s intent to codify the rebuttable presumption that revenue sharing provisions constitute prohibited taxes, fees, charges, or other assessments, and we particularly support the inclusion of the test that the Department will use when assessing whether
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