The future of tribal gaming and online sports betting in the United States could soon look a bit different, at least if the Bureau of Indian Affairs’ proposed rules go into effect.
Among the rules proposed by the department are a much more liberal allowance of Class III gaming on tribal land and giving tribes the ability to offer online gaming options beyond their borders.
Additionally, the department’s proposed updates to the Indian Gaming Regulatory Act of 1988, which are open to public commentary through March 1, would allow tribes easier access to trust lands, expanding their ability to build casino properties.
The rules have garnered strong responses from tribal law experts and industry experts alike. Some see the measures as a routine extension of tribal gaming, while others see them as governmental overreach.
What Tribal Law Experts Say
For longtime tribal law experts, such as Derrick Beetso, who serves as the director of Arizona State University’s College of Law Indian Gaming and Self Governance Programs, the department’s proposals are a natural evolution of American gaming.
Beetso told U.S. Betting Report the department’s proposals are in line with their previous rules updates, as they try to keep up with the rapid expansion of non-tribal gaming in the U.S.
“I think tribes have depended on and relied upon gaming since 1988,” Beetso said. “… I think this kind of follows that same blueprint in a lot of ways. Because what it’s basically saying is that when IGRA was passed in 1988, that Congress intended that it’d be interpreted in a way that kept up with changes in the industry.”
Beetso added the updates to the IGRA allow federal regulators to keep up with the speedy changes that have come, largely due to the influx of states that have legalized wagering both on and off reservation land in recent years.
Given that rapid evolution since the fall of PASPA in 2018, Beetso believes the IGRA needs to continue to be amended so tribes can keep up with their commercial competitors in an ever-changing landscape.
“With all the different changes with respect to sports wagering specifically, I think these regulations make sense, because they try to ensure that the tribes still have a role to play under their IGRA compacts to participate in these activities,” Beetso said. “Whereas, if they were not clear about it, then the federal interest or federal perspective isn’t conveyed.
“So, a lot of times, it’s necessary for the federal government to kind of convey how they feel about these big issues in order to help ensure that the statute’s interpreted in a way that’s kept up with the times.”
Industry Experts See Problems
B Global Managing Partner Brendan Bussmann told U.S. Betting Report the bureau’s proposed rules are out-of-line with what they’ve put forth in the past.
He believes the newest set of rules go too far in trying to level the playing field for tribes, with the federal government superimposing the rules states have put in place regarding Class III gaming.
“The proposed rules would be a dramatic change from the current policy that has governed states and the oversight from BIA for decades,” Bussmann said. “Gaming has and should always be a state-based decision, and the same should hold true on how tribal nations interact with their immediate community.”
Bussmann added the bureau’s proposed rules try to stuff the genie back in the bottle in terms of mobile betting apps regulation, which is no longer possible given the rapid changes that have occurred in states from New York to Arizona since the start of 2019.
The longtime gaming insider believes any updates regarding federal gaming regulation should go through Congress and not be imposed by a federal agency with little input from the states themselves.
With a divided Congress that’s shown little interest in gaming regulation, such an option might not be likely, but Bussmann believes it should be pursued, nonetheless.
“There seems to be a desire by this administration to upend about every policy with gaming, whether it be on the proposed rule changes to trying to legislate various aspects of sports betting,” Bussmann said. “If we want to have a thoughtful conversation about this, then it needs to take the proper route through legislative channels and not have executive branch overreach in making policy.”
Where Tribal Gaming Rules Go From Here
Both Beetso and Bussmann pointed out the public can comment on the bureau’s gaming rules until the first of March, meaning the changes that have been published might eventually get scrapped should they not pass muster.
Both insiders also mentioned litigation could be on the horizon if the current rules go into place as written, given how touchy of a subject gaming compacts have been in states like Florida.
“This is a sweeping change of policy that will likely end up in years of litigation,” Bussmann said. “It also appears as though this is legislating from agency.”
Beetso said possible future litigants will need to “put up or shut up” by providing their input on the bureau’s proposed rules before filing any lawsuits should those rules take effect.
For now, the ASU law professor sees tribal gaming regulation as a matter the courts have largely resolved, leading to the natural evolution in verbiage included in the BIA’s latest rules.
“A large part of what is in the regulations in the proposed regulations right now is a result of past litigation,” Beetso said. “And so that’s kind of firming up positions that have been taken already by different courts and circuits on these different issues.
“I think those [issues] are fairly resolved, though I wouldn’t be surprised if there was someone or some entity that might bring some sort of a litigation. But, in order to do that, to preserve litigation, they have to come in and participate in the notice and comment process.”