By Morgan Oakes
The Department of Interior – Indian Affairs has long engaged in the practice of rulemaking. Part 293, issued under the Indian Gaming Regulatory Act (IGRA), governs the regulation of class III gaming. The IGRA requires tribes and states to negotiate class-III gaming compacts in good faith. The 25 C.F.R. Part 293 revised rules were announced in February 2024. The Assistant Secretary for Indian Affairs remarked, “[t]he federal government has treaty and trust responsibilities to Tribal Nations. A key part of that is our obligation to support Tribal Nations as they work to revitalize communities by opening businesses and creating jobs that strengthen their economics.”
The Part 293 regulations have strengthened Tribal governments’ bargaining power by clarifying the permissible subjects of compact negotiation. The IGRA limits negotiations between Tribes and States to subjects directly related to gaming. However, compacts enacted prior to these regulations were extremely expansive, regulating areas such as environmental issues and tobacco sales. In Chicken Ranch Rancheria v. State of California, the Ninth Circuit held that California failed to negotiate a gaming compact in good faith. Since then, Tribes have resumed control over inherently tribal affairs, strengthening tribal sovereignty. Can we attribute this win to the 2024 regulations and the Ninth Circuit opinion, or would California have omitted the impermissible language of its own volition?
Photo: Cayetano Gil via Unsplash
Regulations have not always been favorable for tribes. One of the most controversial regulations is 25 C.F.R. Part 292.12(c), commonly referred to as the “one bite” rule. This regulation provides two paths to land reclamation. A Tribe must either include all parcels of land in their first request for restored lands, or they cannot engage in gaming on other Indian lands. This regulation was promulgated under the IGRA’s restored land exception, which restricts Tribes more than the organic statute. The restored land exception is an exception to IGRA’s general prohibition on Indian lands acquired after 1988. Tribes that submitted a request to acquire land under the restored land exception before the rule was promulgated cannot acquire additional gaming-eligible land through the restored land exception.
However, the Sixth Circuit interpreted the restored land exception more broadly in Grand Traverse Band v. Office of U.S. Attorney, holding that the restored land exception should be interpreted broadly. The Part 293 regulations assist tribes in the compact negotiation process while the Part 292 regulations create barriers to entry despite court rulings. The juxtaposition of Part 292 and Part 293 highlights the positive and negative impacts government regulation can have on Tribal governments.
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