National Indian Gaming Commission
The NIGC has had nearly 20 years of experience in not making up its mind what constitutes a Class II game. Its initial instinct was to prohibit all electronic forms of bingo and pull tabs. After growing courtroom losses, it modified that position, through a series of advisory opinions (non-binding) and 2002 regulations defining what designs were permissible for Class II use as “technologic aids,” and what constituted a “facsimile,” which requires a compact. Even following promulgation of those 2002 rules, however, the NIGC continued to issue confusing advisory opinions (non-binding) and undertook its ill-fated “classification standards.” Under the guise of clarification, those standards attempted to redefine the statutory definition of “bingo,” eliminated “games similar to bingo,” and created an intricate structure apparently designed to render Class II games commercially non-viable. Tribal interests invested thousands of hours in opposing the proposal, which was ultimately withdrawn-and is, therefore, non-binding. The NIGC is due for some significant personnel changes. One commissioner position has been vacant for more than a year, and should be filled before too long. The chairman’s three-year term has now lasted more than six years, and he expects to leave as soon as a replacement can be nominated and confirmed. The direction and ambition of a reconstituted commission will bear watching.
States
States have neither the authority nor the expertise to determine whether a Class II game complies with the provision of the Indian Gaming Regulatory Act. Most such efforts focus on a game’s appearance, and on whether, from an outside perspective, it looks, plays and feels like a Class III game. Some years ago, when the United States Department of Justice proposed a similar test-that IGRA did not permit games that were “too fast, fun and lucrative”-even the NIGC fought back. In recent months, some states have attempted to apply the provisions of the NIGC’s withdrawn criteria for Class II games. But those criteria never made it to law, and if the NIGC cannot enforce those standards, even less can the states do so. Further, the states have no right to enforce any standards. When Congress enacted the Indian Gaming Regulatory Act, it did not do so in a vacuum. The Supreme Court had acknowledged tribes’ inherent regulatory authority over bingo operations on their tribal lands, exclusive of state regulation. In the IGRA, Congress took away some of that exclusivity as to a gaming category it called Class III. To operate Class III games, therefore, a tribe must reach agreement with a state over Class III regulatory provisions or, when an agreement cannot be reached, enter the labyrinthine process of litigation and administrative challenges. But Congress did not abrogate any measure of tribal exclusive regulation of Class II games, and provided an oversight role only to the NIGC. State power over Indian gaming is limited to Class III. Since the United States Supreme Court invalidated tribes’ ability to enforce good faith compacting (Seminole Tribe of Florida v. Florida), states can stonewall compact negotiations, or impose unfair compact demands without judicial retribution. Their power is substantial, but it is limited to Class III.
Tribes
Tribes have always been the primary regulators of Class II gaming. Tribal gaming regulatory agencies staff the front lines in assuring the integrity and fairness of the tribal facility, and in that role, have learned much about the functioning of Class II games. Class II technologic aids were developed entirely in response to tribal needs to enhance Class II gaming. In general, such gaming systems were needed in jurisdictions that refused to enter into compacts to permit tribal Class III gaming. Tribal regulatory agencies developed and implemented rules necessary to protect the interests of both the tribe and the gaming public. The first, because the purpose of the IGRA is to provide for tribal economic development. The second, because the public will not long return to a crooked facility. Over the years, Class II gaming has matured at much the same rate as technology in other comparable areas. Tribal gaming regulators have reviewed and evaluated each new game, and have dealt with the inevitable bugs and fixes. That expertise was manifest in the advice provided to the NIGC in connection with the MICS and technical standards proposals. That same expertise can be utilized to provide a better foundation for understanding the proper classification of technological aids to Class II games.
