BIA Finalizes Rule In Record Time

The Bureau of Indian Affairs finalized a gaming compact rule on Friday in one of the last regulatory actions of the outgoing Bush administration.

Publication of the rule in the Federal Register marks the first time since the Indian Gaming Regulatory Act was passed in 1988 that the BIA has taken steps to define how it will review tribal-state gaming compacts

The regulation doesn't appear to break much new ground, as it closely tracks IGRA. But it goes into effect on January 5, 2009, barely two weeks before president-elect Barack Obama takes office.

Obama and his transition team have been busy reviewing President Bush's activities across the federal government and gaming has surfaced as a potential area of concern. A senior BIA official, however, recently told tribes that it is difficult to change a rule that has been finalized in the Federal Register without going through the rule-making process all over again.

"It's been my experience within the Department of the Interior that once the regulations go into place" they are harder to rescind within the executive branch, Paula Hart of the BIA's Office of Indian Gaming Management said at the Global Gaming Expo in Las Vegas last month.

Had the Bush administration waited any longer to finalize the "Class III Tribal State Gaming Compact Process" rule, it might not have been published in time to go into effect before Obama's January 20, 2009, inauguration. Although it was signed at the BIA on October 14, it wasn't sent to the Federal Register until last Thursday.

The rule itself was developed in record time for the BIA, whose regulations often take years to complete. The agency only held two consultation sessions on the subject back in April, amid discussion of a different gaming regulation that took effect in August.

Though the regulation is not particularly complex, one significant change will affect how compacts are submitted for review. It requires documentation from both the tribe and the state that certifies they have approved the compact.

The change addresses a situation that arose in California with four controversial gaming compacts. Prior to an election in which voters were asked to approve or reject the agreements, the Secretary of State mailed the compacts to the BIA.

But one of the tribes, the Sycuan Band of Kumeyaay Indians, never ratified the agreement at the tribal level, prompting the BIA to take another look at the issue. Just last week, the tribe backed out of the compact, citing the downturn in the national economy.

To address the situation in the future, the rule now requires documentation "that certifies that the tribe has approved the compact or amendment in accordance with applicable tribal law."

Voters backed the Sycuan compact and the other three compacts in a February election. But by that time, the BIA had already published a notice of approval of the agreements in the Federal Register.

Somehow, the compacts were misplaced after the state mailed them to the Interior Department. As a result, the BIA was forced to publish the compacts because IGRA requires an answer within 45 days.

The BIA has since instituted internal changes to prevent recurrences, officials said. The new rule also seeks to ensure compacts are mailed to the right office in Washington, D.C.

The new rule whis was published in the Federal Register last Friday can be found here:
http://64.62.196.98/FederalRegister/2008/12/05/e8-28882.asp

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