Department of the Interior Holding Consultation Sessions on Proposed Revisions to Fee-To-Trust and Class III Gaming Compact Process Regulations

To
National Indian Gaming Association Members
From

Ernie Stevens, Jr., Chairman
Jason Giles, Executive Director

re
Department of the Interior Holding Consultation Sessions on Proposed Revisions to Fee-To-Trust and Class III Gaming Compact Process Regulations
Date
May 5th, 2022

On March 28, 2022, the Department of the Interior (“DOI”) published a Dear Tribal Leader Letter announcing its intent to hold Tribal Consultations regarding potential revisions to the regulations governing the fee-to-trust process and land acquisitions in 25 C.F.R. Part 151, and the Class III Gaming Compact submission and approval process in 25 C.F.R. Part 293. In conjunction with the Letter, the DOI also published summaries and red-lined versions of its proposed regulatory revisions. The DOI has made clear in its materials, however, that these proposed revisions are only for the purposes of the scheduled Tribal Consultations, and only after such consultations will the DOI publish an official Notice of Proposed Rulemaking.

For its proposed revisions to the regulations governing land acquisitions, the DOI is aiming to provide Tribal governments with a more efficient, less cumbersome, and less expensive fee-to-trust process. The DOI’s proposed amendments would add new sections to the existing Part 151 regulations that would: 1) Codify and clarify what it means to be “under federal jurisdiction” in 1934 for the purposes of the Indian Reorganization Act; 2) List out the specific documentation that must be submitted to request that land be acquired in trust status; 3) Identify how the Secretary will evaluate requests involving land contiguous to the boundaries of an Indian reservation; 4) Clarify how the Secretary conducts reviews of environmental conditions; and 5) Set forth how the Secretary will evaluate a request involving land for an “initial Indian acquisition.” The DOI’s proposed revisions would also add definitions, make clarifying edits throughout this Part, and establish the effect of the revised regulations on currently-pending fee-to-trust applications.

For its proposed revisions to the regulations governing the Class III Gaming Compact process, the DOI is seeking to make many technical and clarifying edits to Part 293, many of which are aimed at codifying the Department’s current practices. Notably, this includes authorizing the Secretary to issue a “deemed approved” letter if the Secretary takes no action on a proposed compact or amendment within forty-five (45) days, and to specify that the Secretary has the discretion, but is not required, to disapprove a compact or amendment that violates IGRA. Further, the DOI is proposing to add approximately twelve (12) new sections to Part 293 in order to provide compacting parties with clear guidance on the appropriate scope of compact negotiations. These proposed revisions would deal with issues such as the application of Tribal and State laws and the allocation of jurisdictional authority, revenue sharing, and whether compact provisions are directly related to the operation of gaming activities.
Comments on the DOI’s proposed revisions, as well responses the specific questions posed by the DOI in its Dear Tribal Leader Letter, must be submitted by June 30, 2022. Written comments may be submitted to consultation@bia.gov.

Consultations are scheduled to be held on the following dates and times:

  1. Monday, May 9, 2022, 10:00 a.m. – 1:00 p.m. (EDT);

  2. Monday, May 9, 2022, 2:00 p.m. – 5:00 p.m. (EDT);

  3. Friday, May 13, 2022, 1:00 p.m. – 4:00 p.m. (EDT); and

  4. Monday, May 23, 2022, 1:00 p.m. – 4:00 p.m. (EDT).

The Dear Tribal Leader Letter, consultation materials (including red-lined and summary versions of the proposed revisions), and the registration links for the consultation sessions can be found here.

We strongly encourage our Member Tribes to submit comments on these critical revisions that impact our industry. Please contact Danielle Her Many Horses at dhermanyhorses@indiangaming.org with any questions or concerns regarding this Alert.