ATTACK ON TRIBAL ECONOMIC RESOURCES
The National Indian Gaming Commission’s Proposed Rules To Amend Class II
Definitions And Establish Classification Standards

On May 25, 2006, the National Indian Gaming Commission (NIGC) published
their proposed rules for Class II Definitions and Classification Standards in the
Federal Register.

IMMENSE ECONOMIC HARM TO TRIBES.
Based on conservative
projections, tribal governments stand to lose over $1 BILLION of revenue a year
under the proposed rules. There are approximately 50,000 Class II electronic
game stations in use by Tribes today generating over $2 billion of revenue
annually- this means that a prime source of funding for tribal governmental
programs will almost be cut in half.

RESERVATION ECONOMIES WILL BE DEVASTATED: If finalized, the
NIGC’s proposed rules will devastate the economies of Tribes that depend
primarily on Class II gaming for revenue to fund vital tribal governmental
programs, infrastructure, and other essential community needs.

JOBS WILL BE LOST: Tribal governments are the largest employer in many of
the areas that would be affected. The NIGC’s proposed rule will cause a
disproportionate loss of jobs at Class II facilities. This means that tens of
thousands of American jobs will be lost in areas of the country that can least
afford it.

DISREGARDS NIGC’S OWN PRECEDENT. The proposed rules outlaw even
the Class II electronic bingo games previously approved by the NIGC. In fact,
NOT ONE single Class II electronic bingo game approved by the NIGC since
IGRA was enacted would be legal under the proposed regulations.

ADMINISTRATIVE REVERSAL OF JUDICIAL DECISIONS. In recent
years, tribes have won important victories before the Ninth and Tenth Circuit
Courts of Appeal in relation to linked electronic bingo games. These cases made
clear that that tribes are not limited to “traditional” bingo games and confirmed
that Class II games can be both fast and profitable. United States v. 103
Electronic Gambling Devices, 223 F.3d 1091 (9th Cir. 2000); United States v. 162
MegaMania Gambling Devices, 231 F.3d 713 (10th Cir. 2000).

THE
RULES
CREATE
UNREASONABLE
AND
UNLAWFUL
RESTRICTIONS. While the proposed rules would not prohibit the use of
electronics in Class II gaming altogether, the games that would be permissible
will be exceptionally slow, less aesthetically pleasing, less enjoyable, and overall
far less appealing to players; making these games dramatically less profitable than
existing Class II games.
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ATTACK ON TRIBAL ECONOMIC RESOURCES

THE REGULATIONS WILL RESULT IN MORE LITIGATION. The
proposed rules will create new legal uncertainties, which – after a decade of
litigation – were thought to have been resolved by the federal courts. The NIGC’s
proposed rules will lead to litigation for decades to come where only the lawyers
will ultimately profit.

LEGISLATION THROUGH REGULATION. These limitations so distort game
play as to make the resulting game not bingo at all. They are legislation rather
than regulation. Through these proposed rules the NIGC usurps Congress’
legislative role and overturns IGRA’s acknowledgement of a tribal right to offer
bingo with the assistance of technologic aids. Contrary to the NIGC’s stated
intent, these proposed rules do not clarify the definition of bingo provided by
Congress, they entirely change the definition altogether!

INDIFFERENCE TO TRIBAL INTERESTS AND CONCERNS. The NIGC
established a seven-member tribal advisory committee to assist in the
development of these Class II regulations. In spite of assurances that the
committee process would be open and transparent, virtually all the drafting was
done by the NIGC behind closed doors. Although the Committee unanimously
objected to unreasonable restrictions on Class II games, none of its significant
objections were accepted by the NIGC. The same is true of recommendations
made by tribal governments and organizations in written comments on the various
drafts of the regulations.
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