13232 Federal Register / Vol. 89, No. 35 / Wednesday, February 21, 2024 / Rules and Regulations 

1California v. Cabazon Band of Mission Indians, 

480 U.S. 202, 217 (1987) (Cabazon). 

2See Cohen’s Handbook of Federal Indian Law, 

2012 edition, sec. 12.91 The Emergence of Gaming. 

3Chicken Ranch Rancheria v. California, 42 F.4th 

1024 (9th Cir. 2022). 

DEPARTMENT OF THE INTERIOR 

Bureau of Indian Affairs 

25 CFR Part 293 

[245A2100DD/AAKC001030/ 

A0A501010.999900] 

RIN 1076–AF68 

Class III Tribal State Gaming Compacts 

AGENCY: Bureau of Indian Affairs, 

Interior. 

ACTION: Final rule. 

SUMMARY: The Department of the 

Interior (Department) is issuing 

revisions to its regulations governing the 

review and approval of Tribal-State 

gaming compacts. The revisions add 

factors and clarify how the Department 

reviews ‘‘Class III Tribal-State Gaming 

Compacts’’ (Tribal-State gaming 

compacts or compacts). 

DATES: This rule is effective on March 

22, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Oliver Whaley, Director, Office of 

Regulatory Affairs and Collaborative 

Action (RACA), Office of the Assistant 

Secretary—Indian Affairs; Department 

of the Interior, telephone (202) 738– 

6065, RACA@bia.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule is published in exercise of authority 

delegated by the Secretary of the Interior 

to the Assistant Secretary—Indian 

Affairs (Assistant Secretary; AS–IA) by 

209 DM 8. 

Table of Contents 

I. Statutory Authority 

II. Executive Summary 

III. Background 

IV. Summary of Comments Received 

A. General Comments 

B. Section Comments 

V. Summary of Changes by Section 

A. Proposed Subpart A—General 

Provisions and Scope 

B. Proposed Subpart B—Submission of 

Tribal-State Gaming Compacts 

C. Proposed Subpart C—Secretarial Review 

of Tribal-State Gaming Compacts 

D. Proposed Subpart D—Scope of TribalState Gaming Compacts 

VI. Procedural Requirements 

A. Regulatory Planning and Review (E.O. 

12866) 

B. Regulatory Flexibility Act 

C. Congressional Review Act (CRA) 

D. Unfunded Mandates Reform Act of 1995 

E. Takings (E.O. 12630) 

F. Federalism (E.O. 13132) 

G. Civil Justice Reform (E.O. 12988) 

H. Consultation With Indian Tribes (E.O. 

13175) 

I. Paperwork Reduction Act 

J. National Environmental Policy Act 

(NEPA) 

K. Effects on the Energy Supply (E.O. 

13211) 

L. Clarity of This Regulation 

M. Public Availability of Comments 

I. Statutory Authority 

In enacting the Indian Gaming 

Regulatory Act of 1988 (Pub. L. 100– 

497) 102 Stat. 2467 dated October 17, 

1988, (Codified at 25 U.S.C. 2701–2721 

(1988)) (hereinafter IGRA), Congress 

delegated authority to the Secretary to 

review compacts to ensure compliance 

with IGRA, other provisions of Federal 

law that do not relate to jurisdiction 

over gaming on Indian lands, and the 

trust obligations of the United States. 25 

U.S.C. 2710(d)(8)(B)(i)–(iii). 

II. Executive Summary 

The Department of the Interior 

(Department) is issuing revisions to its 

regulations located at 25 CFR part 293, 

which govern the Department’s review 

and approval of Tribal-State gaming 

compacts under IGRA. The final rule 

includes revisions to the Department’s 

existing part 293 regulations and adds 

provisions clarifying how the 

Department reviews ‘‘Class III TribalState Gaming Compacts’’ (Tribal-State 

gaming compacts or compacts). 

The Department’s current regulations 

do not identify the factors the 

Department considers when reviewing a 

compact; rather, those factors are 

contained in a series of letters issued by 

the Department dating back to 1988. 

Evolution in the gaming industry and 

ongoing litigation highlight the need for 

the Department to clarify how it will 

analyze Tribal-State gaming compacts to 

determine whether they comply with 

IGRA, 25 U.S.C. 2701, et seq., other 

provisions of Federal law that do not 

relate to jurisdiction over gaming on 

Indian lands, and the trust obligations of 

the United States to Indians. 

III. Background 

In the early 1970s, as part of the 

Federal shift away from the termination 

era policies towards Tribal selfgovernance, Federal support grew for 

Indian gaming as a means of generating 

revenue for Tribal governments. During 

that period, the United States was taking 

affirmative steps to encourage Tribal 

gaming operations as a way for Tribes to 

improve self-governance by reducing 

their dependence on Federal funds.1 In 

response, States began to take police 

and regulatory based legal actions in an 

attempt to restrain Tribal gaming.2

Then, in 1987, the Supreme Court 

issued its Cabazon decision, effectively 

holding that Tribes have the exclusive 

right to regulate gaming activities on 

Indian lands, provided that gaming is 

not prohibited by Federal law, and the 

State permits such gaming. Cabazon, 

480 U.S. 202. 

One year later, Congress enacted 

IGRA, which acknowledged that many 

Tribes were already engaged in gaming 

and placed limits on Tribes’ sovereign 

right to conduct gaming. The IGRA 

divided gaming into three classes. Class 

I gaming includes social games for 

prizes of minimal value and traditional 

forms of Indian gaming that are engaged 

in as part of Tribal ceremonies and 

celebrations. 25 U.S.C. 2703(6) and 25 

CFR 502.2. Class II gaming includes 

bingo and bingo like games as well as 

non-house banked card games for 

example traditional poker. 25 U.S.C. 

2703(7) and 25 CFR 502.3. Class III 

gaming includes all other forms 

including: house backed card games, for 

example baccarat or blackjack; casino 

games for example roulette and craps; 

slot machines; sports betting and 

parimutuel wagering including horse 

racing; and lotteries. 25 U.S.C. 2703(8) 

and 25 CFR 502.4. Congress through 

IGRA sought to ensure that Tribes are 

the primary beneficiaries of Indian 

gaming operations, but also authorized 

State governments to play a limited role 

in the regulation of class III Indian 

gaming by negotiating agreements with 

Tribes called ‘‘Class III Tribal-State 

Gaming Compacts’’ (class III gaming 

compacts or compacts). Class III gaming 

compacts govern the conduct of class III 

gaming on the Indian lands of the Tribe 

by providing the jurisdictional 

framework for the licensing and 

regulation of the class III gaming. 

Congress sought to strike a balance 

between Tribal sovereignty and States’ 

interests in regulating gaming and 

‘‘shield[ing] it from organized crime and 

other corrupting influences.’’ 25 U.S.C. 

2702(2). 

With IGRA, Congress sought to 

balance State interests while 

safeguarding Tribes against aggressive 

States by providing a specific list of 

permissible topics in a compact and 

requiring States to negotiate in good 

faith.3 In addition to the good faith 

negotiation requirements and the 

limited list of permissible topics, 

Congress also provided both judicial 

remedies and administrative oversight 

in the form of Secretarial review. 

Congress provided the United States 

district courts with jurisdiction over 

causes of action stemming from IGRA’s 

requirement that States enter into 

negotiations with Tribes who request 


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4 25 U.S.C. 2710(d)(8)(B)(iii). 

5See, e.g., ‘‘The Economic Impact of Tribal 

Gaming: A State-By-State Analysis,’’ by Meister 

Economic Consulting and American Gaming 

Association dated November 8, 2018. 

6See, e.g., ‘‘The National Indian Gaming 

Commission’s annual gross gaming revenue report 

for 2022;’’ see also American Gaming Association’s 

press release ‘‘2022 Commercial Gaming Revenue 

Tops $60B, Breaking Annual Record for Second 

Consecutive Year.’’ 

negotiations, and that the State negotiate 

in good faith. 25 U.S.C. 2710(d)(7)(A)(i). 

Under IGRA, the district courts review 

the negotiation process which often 

includes reviewing if the negotiations 

have strayed beyond IGRA’s limited list 

of permissible topics in a compact. The 

Secretary’s review of a compact begins 

after the parties have executed the 

compact and necessarily includes 

reviewing if it contains terms that 

strayed beyond IGRA’s limited list of 

permissible topics in a compact. 

Congress expressly included ‘‘the 

trust obligations of the United States to 

Indians’’ as part of the Secretary’s 

review of a compact.4 In that respect, 

IGRA’s use of the term trust obligation 

invokes the broader general 

government-to-government trust 

relationship to Tribes, not a specific 

fiduciary trust duty. These provisions in 

IGRA support the application of the 

government-to-government trust 

relationship, as well as its protection of 

Tribal sovereignty, to IGRA’s carefully 

balanced encroachment into Tribal 

sovereignty. It is, therefore, appropriate 

for the Department to consider the 

general government-to-government trust 

relationship and protect Tribal 

sovereignty during its review of 

compacts. Further, this rulemaking 

upholds the government-to-government 

trust relationship by codifying 

longstanding Departmental policy and 

interpretations of caselaw addressing 

IGRA’s limited list of permissible topics 

in a compact. The final rule will ensure 

Tribes have the tools they need to 

protect themselves against further 

encroachment by aggressive States that 

insist on including compact provisions 

that are not directly related to the 

operation of gaming activities. The final 

rule provides clarity by articulating the 

Department’s ‘‘direct connection’’ test 

and by giving examples of provisions 

the Department has found are directly 

connected to a Tribe’s operation of 

gaming activities and of provisions that 

do not meet this test. Some examples of 

improper provisions States have sought 

to require include requiring compliance 

with State tobacco regulations; requiring 

memoranda of understanding with local 

governments; adopting State 

environmental regulations of projects 

that are not directly related to the 

operation of gaming activities; or 

regulating non-gaming Tribal economic 

activities. 

At the time of IGRA’s enactment, 

Indian gaming represented an 

approximately $121 million segment of 

the total United States gaming industry, 

while Nevada casinos reported 

approximately $4.1 billion in gross 

gaming revenue.5 By the end of fiscal 

year 2022, Indian gaming represented an 

approximately $40.9 billion segment of 

the total United States gaming industry, 

with commercial gaming reporting 

approximately $60.4 billion.6 In the 

Casino City’s 2018 Edition of the Indian 

Gaming Industry Report, Allen Meister, 

Ph.D., of Meister Economic Consulting 

estimated that in 2016, Indian Gaming 

represented a total economic 

contribution of $105.4 billion across the 

U.S. economy. 

In line with the growth in Indian 

gaming, State licensed commercial 

gaming and State lotteries have also 

experienced growth. When Congress 

began considering legislation addressing 

Indian gaming in the early 1980s, two 

States had legalized commercial casino 

gaming and seventeen had State run 

lotteries. By 2017, 24 States had 

legalized commercial casino gaming, 

resulting in approximately 460 

commercial casino locations, excluding 

locations with State licensed video 

lottery terminals, animal racetracks 

without gaming machines, and card 

rooms. In 2017, the gross gaming 

revenue for the commercial casino 

industry represented approximately 

$40.28 billion and generated 

approximately $9.2 billion in gaming 

tax revenue. Further, 44 States were 

operating State lotteries in 2017. 

The expansion of State lotteries and 

State licensed commercial gaming can 

place Tribes and States in direct 

competition for market share. 

Advancements in gaming technology 

and changes in State and Federal 

gaming law since the passage of IGRA 

have consequently shaped the compact 

negotiation process. As a result, class III 

gaming compacts have expanded in 

scope and complexity as the parties seek 

mutually beneficial provisions. IGRA, 

however, anticipated the compact 

negotiation process would be between 

sovereign governments seeking to 

regulate and safeguard Indian gaming, 

an arrangement protected by judicially 

enforceable limits on the provisions a 

State could seek to include in a 

compact. 

Through IGRA, Congress diminished 

Tribal sovereignty by requiring Tribes to 

enter into compacts with States 

governing the Tribes’ conduct of class III 

gaming before Tribes may conduct 

casino style or ‘‘class III gaming.’’ 25 

U.S.C. 2710(d)(1)(C). IGRA requires 

States to negotiate class III gaming 

compacts in good faith, limits the scope 

of negotiation for class III gaming 

compacts to seven enumerated subjects, 

and prohibits States from using the 

process to impose any tax, fee, charge, 

or other assessment on Tribal gaming 

operations. 25 U.S.C. 2710(d)(3)(A); 

2710(d)(3)(C); and 2710(d)(4). However, 

States have often sought to include 

provisions in compacts which test the 

limits Congress provided in IGRA. 

Tribes have sought both judicial and 

administrative relief resulting in a body 

of case law and administrative decisions 

clarifying the proper scope of compacts. 

Under IGRA, the Department has 45 

days to complete its review and either 

approve or disapprove a class III gaming 

compact. 25 U.S.C. 2710(d)(8). If the 

Department takes no action within that 

45-day period, the Tribal-State gaming 

compact is considered approved by 

operation of law—to the extent that it is 

consistent with IGRA. 25 U.S.C. 

2710(d)(8)(C). In order for a compact to 

take effect, notice of its approval or 

approval by operation of law must be 

published in the Federal Register. 25 

U.S.C. 2710(d)(3)(B). 

The regulations that codify the 

Department’s review process for TribalState gaming compacts are found at 25 

CFR part 293 and were promulgated in 

2008 (‘‘2008 Regulations’’). 73 FR 74004 

(Dec. 5, 2008). The Department’s 2008 

Regulations were designed to ‘‘address[ ] 

the process for submission by Tribes 

and States and consideration by the 

Secretary of Class III Tribal-State 

Gaming Compacts, and [are] not 

intended to address substantive issues.’’ 

73 FR 74004–5. The Department’s 

consideration of substantive issues 

appears in decision letters, ‘‘deemed 

approved’’ letters, and technical 

assistance letters. In addition, a body of 

case law has developed that addresses 

the appropriate boundaries of class III 

gaming compacts. With this final rule, 

the Department codifies longstanding 

Departmental policies and 

interpretation of case law in the form of 

substantive regulations, which will 

provide certainty and clarity on how the 

Secretary will review certain provisions 

in a compact. 

On March 28, 2022, the Department 

published a Dear Tribal Leader Letter 

announcing Tribal consultation 

regarding proposed changes to 25 CFR 

part 293, pursuant to the Department’s 

consultation policy and under the 

criteria in E.O. 13175. The Department 

held two listening sessions and four 


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7The Department notes § 293.25 has been 

redesignated as § 293.27 in the final rule. 

8See, e.g., Letter to the Honorable Peter S. 

Yucupicio, Chairman, Pascua Yaqui Tribe of 

Arizona, from the Director, Office of Indian Gaming, 

dated June 15, 2012, at 5, and fn. 9, discussing the 

American Recovery & Reinvestment Act of 2009 

and the IRS’s ‘‘safe harbor’’ language to reassure 

potential buyers that tribally-issued bonds would be 

considered tax exempt by the IRS because the 

bonds did not finance a casino or other gaming 

establishment. 

formal consultation sessions. The 

Department also accepted written 

comments until June 30, 2022. 

The Dear Tribal Leader Letter 

included a Consultation Draft of the 

proposed revisions to 25 CFR part 293 

(Consultation Draft); a Consultation 

Summary Sheet of Draft Revisions to 

part 293; and a redline reflecting 

proposed changes to the 2008 

Regulations. The Dear Tribal Leader 

Letter asked for comments on the 

Consultation Draft, as well as responses 

to seven consultation questions. 

The Department received numerous 

written and verbal comments from 

Tribal leaders and Tribal advocacy 

groups. The Department also received 

written comments from non-Tribal 

entities, which are not addressed in the 

Tribal consultation comment and 

response. The Department has included 

and addressed those comments as part 

of the public comment record for the 

proposed rule. 

On December 6, 2022, the Department 

published a notice of proposed 

rulemaking announcing the public 

comment period for the proposed 

revisions to 25 CFR part 293 (proposed 

rule). 87 FR 74916. The Department 

published a Dear Tribal Leader Letter 

dated December 5, 2022, announcing a 

second round of Tribal consultation 

sessions on the proposed rule. The 

Department also published a redline 

version of the proposed rule reflecting 

changes to the 2008 Regulations, a 

redline version reflecting changes made 

in response to Tribal consultation 

comments, and a Table of Authorities 

identifying case law and Departmental 

decisions and other policy statements 

considered when drafting the proposed 

rule. The Department held one inperson Tribal consultation and two 

virtual Tribal consultation sessions. The 

Department also accepted written 

comments until March 1, 2023. Over 56 

entities commented on part 293, 

including Tribal, State, and local 

governments, industry organizations, 

and individual citizens. In total, the 

submissions were separated into 607 

individual comments. Generally, around 

258 comments were supportive, 136 

were not supportive, and 213 were 

neutral or provided constructive 

criticism. 

IV. Summary of Comments Received 

A. General Comments 

Several commenters commented on 

the process and timing of the proposed 

rulemaking process. Some commenters 

requested additional time to comment 

and further consultations or listening 

sessions during the rulemaking process. 

Other commenters requested detailed 

records of the government-togovernment Tribal consultation sessions 

held between March 28 and June 30, 

2022. Others encouraged the 

Department to proceed with the 

rulemaking expeditiously. 

The Department acknowledges the 

comments. The Department seeks to 

balance robust consultation and public 

participation with expeditious 

processing of the rulemaking. The 

Department held two virtual 

consultation sessions, one in-person 

listening session, and provided an 85- 

day public comment period on the 

proposed rule. The final rule reflects 

public input on the proposed rule and 

builds on the input of Tribal leaders 

from the government-to-government 

Tribal consultation process. 

B. Section Comments 

Comments on § 293.1—What is the 

purpose of this part? 

Several commenters expressed 

support for the proposed amendments 

to § 293.1 and some commentors noted 

it is helpful that the Department states 

the regulations contain substantive 

requirements for class III compacts. 

The Department acknowledges the 

comments. 

Comments on § 293.2—How are key 

terms defined in this part? 

Many commenters expressed support 

and approval for the proposed 

amendments to existing definitions and 

the proposed new definitions— 

including, but not limited to, ‘‘gaming 

facility,’’ ‘‘gaming spaces,’’ 

‘‘amendment,’’ and ‘‘meaningful 

concession.’’ 

The Department acknowledges the 

comments. 

One commenter suggested the 

Department include a definition for 

‘‘primary beneficiary’’ as the term is 

used in § 293.25(b)(3) 7 of the proposed 

rule, noting that the current version 

suggests that this be measured against 

projected revenue to the Tribe and State 

but that market circumstances often 

change. One commenter requested 

additional defined terms and clarified 

definitions. Requested definitions 

include: ‘‘Beneficiary,’’ ‘‘Projected 

Revenue,’’ and clarification of the 

difference (if any) between ‘‘great 

scrutiny’’ and ‘‘strict scrutiny.’’ 

The Department declines to accept the 

recommendation to define ‘‘primary 

beneficiary.’’ The IGRA sets a 

benchmark that requires the Tribe 

receive at least 60 percent of net 

revenue. The National Indian Gaming 

Commission relies on Sole Proprietary 

Interest and IGRA at 25 U.S.C. 

2710(b)(2)(A), consistent with 25 U.S.C. 

2710(b)(4)(B)(III) and 2711(c), which 

collectively requires that the Tribe 

receive at least 60 percent of net 

revenue. See, e.g., NIGC Bulletin No. 

2021–6. The IGRA at 25 U.S.C. 2711(c) 

sets a presumptive cap on management 

contracts of 30 percent of net revenue 

but allows for some management 

contracts to go up to 40 percent of net 

revenue if the Chairman is satisfied that 

the income projections and capital 

investment required justify the higher 

fee. 

One commenter believes the 

Department is artificially limiting the 

scope of compacts with the new defined 

terms ‘‘gaming facility’’ and ‘‘gaming 

space’’ in § 293.2(e) and § 293.2(f). The 

commenter also raised concerns these 

terms may bring compacts which are 

currently in effect out of compliance 

with the proposed rule. 

The Department acknowledges the 

concern regarding existing compacts 

and notes that § 293.30 clarifies that the 

final rule is prospective and does not 

alter the Department’s prior approval of 

compacts now in effect. As explained in 

the Notice of proposed rulemaking, 

IGRA limits the review period to 

approve or disapprove compacts or 

amendments to 45 days. As a result, the 

Department cannot retroactively 

approve or disapprove compacts or 

amendments after the 45-day review 

period has run. Therefore, any compacts 

already in effect for the purpose of 

Federal law will remain in effect. The 

definition of gaming spaces in the final 

rule continues to seek the smallest 

physical footprint of potential State 

jurisdiction over a Tribe’s land under 

IGRA. This definition is intended to 

codify the Department’s long-standing 

narrow read of 25 U.S.C. 2710(d)(3)(C) 

as applying only to the physical spaces 

in which the operation of class III 

gaming actually takes place. The 

definition of gaming facility addresses 

building maintenance and licensing 

under the second clause of 25 U.S.C. 

2710(d)(3)(C)(vi) and is intended to be 

narrowly applied to only the building or 

structure where the gaming activity 

occurs on Indian lands.8


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9 IRS Tax Exempt Bonds Notice 2009–51 (Tribal 

Economic Development Bonds) Section 10 (b). 

10 Id. 

11The Department notes § 293.21 of the proposed 

rule has been redesignated as § 293.20 in the final 

rule, and § 293.28 of the proposed rule has been 

redesignated as § 293.29 in the final rule. 

One commenter requested the 

Department define ‘‘Gaming facility’’ as 

follows: ‘‘Gaming facility means any 

physical space within a building or 

structure, or portion thereof, where the 

gaming activity occurs.’’ The commenter 

stated this definition would avoid 

relying on structural design of buildings 

to determine the scope of a compact. 

The commenter noted that the 

definition of ‘‘gaming facility’’ is too 

broad and is concerned that it may 

allow the State more control than it is 

entitled to. Additionally, the commenter 

opined that the Department’s reliance 

on the IRS’ safe harbor provision for taxfree bonds may result in a compact 

which extends well beyond the gaming 

spaces based on the structural 

engineering of the building. Finally, the 

commenter is concerned that the 

Department has not incorporated its 

own definition of ‘‘gaming spaces’’ into 

the substantive portions of the draft. 

The Department declines to accept the 

proposed change. As explained in the 

Notice of proposed rule Making, the 

Department included the defined terms 

‘‘gaming facility’’ and ‘‘gaming spaces.’’ 

The definition of gaming spaces seeks 

the smallest physical footprint of 

potential State jurisdiction over a 

Tribe’s land under IGRA. This 

definition is intended to codify the 

Department’s long-standing narrow read 

of 25 U.S.C. 2710(d)(3)(C) as applying 

only to the spaces in which the 

operation of class III gaming actually 

takes place. The definition of gaming 

facility addresses building maintenance 

and licensing under the second clause 

of 25 U.S.C. 2710(d)(3)(C)(vi) and is 

intended to be narrowly applied to only 

the building or structure where the 

gaming activity occurs on Indian lands. 

The IRS safe harbor definition of 

building was developed through 

consultation with the Secretary as a 

workable test for Tribes to use tax 

exempt bonds to fund economic 

development provided the bond was not 

being used to finance ‘‘any portion of a 

building in which class II or class III 

gaming . . . is conducted or housed’’. 

26 U.S.C. 7871(f)(3)(B)(i). The IRS safe 

harbor provides that a structure will be 

treated as a separate building—for the 

purpose of tax exempt Tribal Economic 

Development Bonds—if it has ‘‘an 

independent foundation, independent 

outer walls, and an independent roof.’’ 9

Further, ‘‘connections (e.g., doorways, 

covered walkways or other enclosed 

common area connections) between two 

adjacent independent walls of separate 

buildings may be disregarded’’.10 We 

are sensitive to the commenters concern 

that our reliance on the IRS safe harbor 

definition may result in the portions of 

the compact that address building 

maintenance and licensing under the 

second clause of 25 U.S.C. 

2710(d)(3)(C)(vi), reaching beyond the 

gaming spaces as defined in § 293.2(f). 

One commenter requested that 

proposed § 293.2(h)(2) be revised to 

include the word ‘‘activity’’ so that the 

provision would read ‘‘Directly related 

to gaming activity.’’ 

The Department has modified 

§ 293.2(h)(2) in the final rule to include 

the word ‘‘activity.’’ 

Several commenters expressed 

concern with the definitions of 

‘‘meaningful concessions’’ and 

‘‘substantial economic benefit’’ as too 

narrow and vague. Several commenters 

stated that ‘‘meaningful concessions’’ 

and ‘‘substantial economic benefits’’ are 

not clear terms and suggested the 

proposed regulations include examples. 

Another commenter recommended the 

Department should make clear that 

‘‘meaningful concessions’’ require the 

State to give something up and that 

proposed regulations should also 

address what constitutes ‘‘substantial’’ 

with respect to ‘‘economic benefits.’’ 

The Department acknowledges the 

comments and understands that the 

Tribe and State, during their 

negotiations, determine what a 

substantial economic benefit and 

meaningful concession means to them. 

The final rule at § 293.27 sets forth the 

Department’s criteria for reviewing 

revenue sharing provisions to ensure 

they provide a substantial economic 

benefit in exchange for a meaningful 

concession. 

One commenter suggested that the 

terms ‘‘ancillary agreement’’ and 

‘‘documents’’ need further defining 

because it is still unclear how those 

terms apply to §§ 293.4, 293.8, 293.21, 

and 293.28 in the proposed rule.11

Particularly in States like Arizona, 

where all tribes are required to come to 

the table with a single compact, one 

change to one tribe’s compact might 

trigger changes to other Arizona tribes’ 

compacts. 

The Department acknowledges the 

comment and has reviewed the final 

rule for consistency. The Department 

declines to define the terms ‘‘ancillary 

agreement’’ or ‘‘documents’’ as used in 

§§ 293.4(b) and 293.8(d). Section 

293.4(b) contains descriptions of the 

types of ancillary agreements or 

documents the Department will require 

be submitted for review as well as types 

of documents which are exempt from 

review. 

Comments on § 293.3—What authority 

does the Secretary have to approve or 

disapprove compacts and amendments? 

Many commenters support the 

proposed changes to § 293.3. 

The Department acknowledges the 

comments. 

Comments on § 293.4—Are compacts 

and amendments subject to review and 

approval? 

Many commentors support the 

proposed changes made to § 293.4 

because they help clarify what are 

considered to be compact amendments, 

while also clarifying the timelines to 

submit agreements between political 

subdivisions and Tribes. Commenters 

also support the opportunity for Tribes 

to submit documents to the Department 

for review. 

The Department acknowledges the 

comments. 

A commenter requested clarification 

if the Department’s review of an 

amendment includes reviewing the 

underlying compact for consistency 

with the proposed rule. 

The Department acknowledges the 

comment and notes IGRA limits the 

Secretary’s authority to review and 

approve or disapprove a compact or 

amendment to 45 days. As a result, the 

Department cannot retroactively 

approve or disapprove a compact or 

amendment after the 45-day review 

period has run. Instead, the 

Department’s review is limited to the 

text of the document under review 

during the 45-day review period. The 

Department treats restated and 

resubmitted compacts as a new compact 

because the parties have submitted 

entire text of the compact for review. 

The Department encourages parties to 

utilize restated compacts or amended 

and restated compacts as a best practice 

to incorporate a series of amendments 

into a single document. The Department 

finds it helpful if the Tribe or State also 

submits a redlined copy of the restated 

compact. 

Several commenters expressed 

concerns whether proposed § 293.4(b) 

requires review or exempts from review 

certain types of intergovernmental and 

inter-tribal agreements including 

‘‘Transfer Agreements’’ and ‘‘Pooling 

Agreements.’’ 

The Department has made some 

stylistic revisions to § 293.4(b) in the 

final rule in an effort to further clarify 


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12The Department notes §§ 293.24 and 293.28 

have been redesignated as §§ 293.23 and 293.29 in 

the final rule. 

13The Department notes proposed § 293.28 has 

been redesignated as § 293.29 in the final rule. 

which documents are considered 

compacts or amendments subject to 

review and which documents are 

exempt from review. Further, § 293.4(c) 

of the final rule allows parties to submit 

documents for a determination if the 

document is a compact or amendment 

subject to review under IGRA. 

Several commenters expressed 

support for proposed § 293.4(b), noting 

that revisions from the Consultation 

Draft resolved many concerns about the 

scope of § 293.4(b). Commenters stated 

proposed § 293.4(b) appears to exempt 

from review minor changes through 

mutual agreement under provisions in 

existing compacts that allow for such 

changes. Examples offered by 

commenters included adding class III 

games or adopting a more favorable 

provision in a newly negotiated 

compact or amendment through ‘‘most 

favored nations’’ provisions. 

The Department notes that some 

compacts include provisions which 

allow for the Tribe and the State to add 

class III games, or forms of games, 

which are approved through changes in 

State law or regulations without 

amending the Compact. The final rule at 

§ 293.4(b)(2) and (3) exempts from 

review a document memorializing the 

automatic addition of a class III game 

pursuant to such a provision. The final 

rule at § 293.4(b)(1) however clarifies 

that the incorporation of a more 

favorable compact term through a ‘‘most 

favored nation’’ provision would be 

treated as an amendment because it acts 

to modify or change a term in a compact 

or amendment. The Department also 

encourages parties to forgo submitting 

stand-alone amendments, and instead 

utilize restated compacts or amended 

and restated compacts as a best practice 

to incorporate a series of amendments 

into a single document. 

A commentor requested the 

Department strike proposed 

§ 293.4(b)(3), arguing the provision is 

redundant with proposed § 293.8(d), 

and contains various vague and 

undefined terms (e.g., ‘‘expressly 

contemplates’’). 

The Department acknowledges the 

comment and notes that the final rule at 

§ 293.4 addresses whether a document 

is a compact or amendment to a 

compact. The final rule at § 293.8 

addresses what documents are required 

to be submitted as part of the Secretary’s 

review of a compact or amendment. 

Further, § 293.4(b)(3) exempts internal 

control standards and other documents 

between Tribal and State regulators 

from review as a compact or 

amendment. The final rule at § 293.8(d) 

requires the submission of agreements 

required by a compact which either 

requires the Tribe to make payments to 

the State, its agencies, or its political 

subdivisions, or restricts or regulates the 

Tribe’s use and enjoyment of its Indian 

lands. 

Several commenters discussed the 

Department’s efforts to limit and review 

agreements between Tribal and local 

governments through the inclusion of 

§§ 293.4(b)(4), 293.8(d), 293.24(c)(5), 

and § 293.28 in the proposed rule.12

Some commenters expressed support for 

the Department’s effort in the rule 

making to prevent local governments 

from disrupting Tribal gaming through 

revenue sharing demands noting this is 

a continuation of the Department’s 

recent disapprovals of compacts 

containing similar language. Other 

commenters questioned if the proposed 

provisions were sufficiently holistic to 

address the efforts of local governments 

to disrupt Tribal gaming. Other 

commenters questioned the Secretary’s 

authority to review intergovernmental 

agreements, suggesting that the 

Department’s efforts were misplaced, 

encroached on Tribal sovereignty, and 

may result in uncertainty regarding the 

validity of existing intergovernmental 

agreements between Tribes and local 

governments. Some commenters opined 

that these sections contain inherent 

internal conflicts that could be 

interpreted as both prohibiting the 

inclusion of provisions addressing 

intergovernmental agreements in 

compacts, while also requiring the 

submission of intergovernmental 

agreements for review as a compact. 

Some commenters noted these 

agreements have resulted in strong cooperative working relationships 

between Tribes and local governments 

with overlapping or abutting 

jurisdictions. 

The Department notes that 

intergovernmental agreements between 

Tribes and States or local governments 

can be beneficial; Congress, however, 

provided a narrow scope of topics that 

Tribes and States may include when 

negotiating a Tribal-State gaming 

compact. As explained in the Notice of 

proposed rulemaking, the Department 

revised these provisions in the proposed 

rule—which are codified with minor 

clarifying edits in the final rule—to 

clarify that these provisions cover only 

agreements between Tribes and States, 

or States’ political subdivisions, which 

govern gaming, include payments from 

gaming revenue, or are required by a 

compact or amendment. Agreements 

that are not required by a compact and 

that do not regulate gaming do not need 

to be submitted to the Department for 

approval as part of a Tribal-State gaming 

compact. Likewise, agreements between 

Tribes and the State and/or local 

governments that facilitate cooperation 

and good governance, but that do not 

regulate gaming or require gaming 

revenue sharing payments, should not 

be incorporated into or referenced as a 

requirement of a Tribal-State gaming 

compact. The Department also included 

the phrase ‘‘restricts or regulates a 

Tribe’s use and enjoyment of its Indian 

lands’’ to clarify these agreements may 

be considered both as a contract which 

encumber Tribal lands under 25 U.S.C. 

81 and the Department’s regulations at 

25 CFR part 84, and as a compact or 

amendment under IGRA. The 

Department has included the § 293.4(c) 

process for a determination if an 

agreement or other document is a 

compact or amendment in the final rule. 

A commenter recommends qualifying 

proposed § 293.4(b)(4) by including a 

reference to ‘‘the State, its agencies or 

political subdivisions’’ to make it 

consistent with proposed § 293.8(d). 

Another recommends that the 

Department remove ‘‘or includes any of 

the topics identified in 25 CFR 292.24’’ 

from proposed § 293.4(b)(4). A 

commenter recommends qualifying 

§ 293.4(b)(4) by including a reference to 

‘‘the State, its agencies or political 

subdivisions’’ because adding this 

language would improve the clarity of 

the regulatory text by ensuring that this 

provision is consistent with proposed 

rule § 293.8(d) and proposed rule 

§ 293.28.13 The commenter argued it 

would also eliminate any uncertainty 

regarding whether a contract with a 

private party (e.g., financing documents, 

management contracts, development 

agreements, etc.) could be subject to this 

provision. Others requested changes to 

proposed § 293.4(b)(4). Many 

commentors submitted draft language. 

The Department has modified 

§ 293.4(b)(4) in the final rule to state 

that if an ancillary agreement or 

document interprets language in a 

compact or an amendment concerning a 

Tribe’s revenue sharing to the State, its 

agencies or political subdivisions under 

§ 293.27, or includes topics which are 

directly related to the operation of 

gaming activities under § 293.23, then it 

may constitute an amendment subject to 

review and approval by the Secretary. 

Several commenters noted the 

proposed § 293.4(b)(4) appeared to 

contain a typographical error in the 

cross-reference to 25 CFR 292.24 and 


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14The Department notes proposed § 293.24 has 

been redesignated as § 293.23 in the final rule. 

15The Department notes proposed § 293.24 has 

been redesignated as § 293.23 in the final rule. 

suggested the correct cross-reference is 

25 CFR 293.24.14

The Department has corrected the 

error and changed the cross-reference to 

§ 293.23 in the final rule.15

Several commenters recommended 

the Department make a technical 

amendment to proposed § 293.4(c) to 

provide clarity regarding when the clock 

begins to run on the opinion letter 

issuance timeline and offered suggested 

language. Commenters noted that the 

usefulness of proposed § 293.4(c) would 

be limited without including reasonable 

parameters on review time. Other 

commenters requested the Department 

reduce the timeline of review in 

§ 293.4(c). 

The Department has accepted the 

comments in part and modified 

§ 293.4(c) in the final rule to state that 

the Department will issue a letter within 

30 days of receipt of the written request, 

providing notice of the Secretary’s 

determination. The revised language 

clarifies when the clock starts. 

Additionally, the Department has 

adjusted the review period to 30 days, 

for consistency with section 81, 

Encumbrances of Tribal Land Contract 

Approvals under 25 CFR 84.005. The 

Department notes some agreements may 

trigger both IGRA and section 81 review. 

Should the Secretary determine that an 

ancillary agreement or document is a 

compact or amendment subject to 

review and approval by the Secretary, 

the Department has included clarifying 

language that the Tribe or State must 

resubmit the ancillary agreement or 

document consistent with § 293.8. 

Several commenters suggested the 

Department revise proposed § 293.4(c) 

by including a ‘‘deeming’’ language so 

that if the deadline is missed, the 

document or agreement submitted 

pursuant to § 293.4(c) would be 

presumed ‘‘not a compact or 

amendment.’’ 

The Department declines to include 

‘‘deeming’’ language as it could result in 

unintended consequences, including 

compacts or amendments which are not 

in effect as a matter of Federal law. 

Rather, the Department has included 

clarifying language that should the 

Secretary determine that an ancillary 

agreement or document is a compact or 

amendment subject to review and 

approval by the Secretary, the Tribe or 

State must resubmit the ancillary 

agreement or document consistent with 

§ 293.8. 

Several commenters requested the 

Department clarify if an agreement or 

other document submitted for review 

under proposed § 293.4(c) would be 

subjected to adverse action. 

The Department acknowledges the 

comments and notes that the review 

process in § 293.4(c) of the final rule 

builds on the Department’s longstanding 

practice of providing compact technical 

assistance to Tribes and States. The 

review process found in § 293.4(c) 

utilizes a shorter review period and 

does not include the formal submission 

requirements of § 293.8. The § 293.4(c) 

review process culminates in a written 

determination if the submitted 

document is a compact or amendment 

under IGRA. 

Comments on § 293.5—Are extensions 

to compacts or amendments subject to 

review and approval? 

Several commenters expressed 

support for proposed changes to § 293.5, 

opining the revisions are consistent 

with other provisions of the rule. Some 

commenters appreciate the addition of 

‘‘[t]he extension becomes effective only 

upon publication in the Federal 

Register.’’ One commenter appreciates 

the lessened documentation 

requirements for processing compact 

extensions under proposed § 293.5. 

The Department acknowledges the 

comments. 

Comments on § 293.6—Who can submit 

a compact or amendment? 

Several commenters expressed 

support for the proposed changes to 

§ 293.6. 

The Department acknowledges the 

comments. 

Comments on § 293.7—When should 

the Tribe or State submit a compact or 

amendment for review and approval? 

Several commenters expressed 

support for the proposed changes to 

§ 293.7. One commenter supported the 

inclusion of the phrase ‘‘otherwise 

binding on the parties’’ and explained 

that language acknowledges some 

documents and ancillary agreements 

become binding on parties outside of an 

affirmative consent process. 

The Department acknowledges the 

comments. 

Comments on § 293.8—What documents 

must be submitted with a compact or 

amendment? 

Several commenters support the 

proposed changes to § 293.8, and many 

commenters support the addition of 

proposed § 293.8(d). 

The Department acknowledges the 

comments. 

Several commenters requested that 

proposed § 293.8(d) be further clarified 

to avoid confusion about what 

documents should be submitted with a 

compact or amendment. One 

commenter offered the following edit to 

§ 293.8(d) for clarity: ‘‘Any agreement 

between a Tribe and a State, its agencies 

or its political subdivisions required by 

a compact or amendment (including 

ancillary agreements, documents, 

ordinances, or laws required by the 

compact or amendment).’’ The 

commenter also recommended the 

Department strike the remainder of 

§ 293.8(d). 

The Department has accepted the 

revisions in part to reduce duplication 

with other sections of the final rule. The 

Department has changed the language of 

§ 293.8(d) to state any agreement 

between a Tribe and a State, its agencies 

or its political subdivisions required by 

a compact or amendment (including 

ancillary agreements, documents, 

ordinances, or laws required by the 

compact or amendment) which the 

Tribe determines is relevant to the 

Secretary’s review. 

One commenter requested the 

Department strike proposed § 293.8(d) 

from the final rule, stating the 

subsection is unnecessary. 

The Department declines to remove 

proposed § 293.8(d). The Department 

notes that intergovernmental agreements 

between Tribes and States or local 

governments can be beneficial; 

Congress, however, provided a narrow 

scope of topics that Tribes and States 

may include when negotiating a TribalState gaming compact. As explained in 

the notice of proposed rulemaking, and 

above, the Department included 

§ 293.8(d) to address agreements 

between Tribes and States, or States’ 

political subdivisions, which are 

required by a compact or amendment 

and require the Tribe to make payments 

to the State, its agencies, or its political 

subdivisions, or restricts or regulates the 

Tribe’s use and enjoyment of its Indian 

lands. This provision ensures that such 

agreements receive proper scrutiny by 

the Department as required by IGRA and 

other Federal laws. The Department 

included the phrase ‘‘restricts or 

regulates a Tribe’s use and enjoyment of 

its Indian Lands’’ to clarify these 

agreements may be considered both 

contracts which encumber Tribal lands 

under 25 U.S.C. 81 and the 

Department’s regulations at 25 CFR part 

84, and as a compact or amendment 

under IGRA. The Department has 

included the § 293.4(c) process for a 

determination if an agreement or other 

document is a compact or amendment 

in the final rule. 


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16The Department notes proposed § 293.28 has 

been redesignated as § 293.29 in the final rule. 

One commenter requested the 

language in § 293.8(e) be narrowed by 

including the phrase ‘‘directly related to 

and necessary for making a 

determination.’’ 

The Department declines to accept the 

suggested change to the language in 

§ 293.8(e). The relevant text of § 293.8(e) 

remains unchanged from the 2008 

Regulations, where it was numbered as 

§ 293.8(d) and allows the Secretary to 

request documentation relevant to the 

decision-making process. 

A commenter expressed support that 

the proposed rule included a 

requirement of a market analysis, or 

similar documentation, as part of the 

compact submission package for 

compacts that include revenue sharing 

in § 293.8(e). This would require 

compacting parties to prove revenue 

sharing agreements provide actual 

benefits to Tribes. 

The Department acknowledges the 

comment and notes concerning 

§ 293.8(e). 

A commenter expressed concern that 

the proposed rule contained a new 

requirement of a market analysis, or 

similar documentation, for compacts 

that include revenue sharing in 

§ 293.8(e). The commenter stated this 

requirement creates unnecessary delay 

and expense. 

The Department acknowledges the 

comment and notes that the requirement 

in § 293.8(e) of the final rule represents 

a codification of the existing 

Departmental practice of requiring a 

market analysis, or similar 

documentation, as part of the 

submission package for compacts or 

amendments that include revenue 

sharing provisions. The Department 

routinely requests this information 

through § 293.8(d) of the 2008 

Regulations. The Department included 

in § 293.8(e) of the proposed rule a cross 

reference to § 293.28,16 codifying the 

Department’s longstanding rebuttable 

presumption that any revenue sharing 

provisions are a prohibited tax, fee, 

charge, or other assessment. The 

Department has long required evidence, 

including market studies or other 

documentation, that a State’s 

meaningful concession provides a 

substantial economic benefit to the 

Tribe in a manner justifying the revenue 

sharing required by the compact. 

Comments on § 293.9—Where should a 

compact or amendment or other 

requests under this part be submitted for 

review and approval? 

A number of commenters support the 

proposed changes to § 293.9—especially 

the Department’s proposal to accept 

electronic submissions. Commenters 

argue that electronic submissions will 

allow for increased efficiency and 

decreased processing times. 

The Department acknowledges the 

comments. 

Comments on § 293.10—How long will 

the Secretary take to review a compact 

or amendment? 

Several commenters expressed 

support for the proposed changes to 

§ 293.10. 

The Department acknowledges the 

comments. 

Comments on § 293.11—When will the 

45-day timeline begin? 

Several commenters expressed 

support for the inclusion of a 

requirement for the Department to 

provide an acknowledgment email for 

electronically submitted compacts in 

§ 293.11 of the final rule and note that 

a confirmation email works well with 

the proposed changes to § 293.9. 

The Department acknowledges the 

comments. The Department also notes 

that § 293.8(a) requires submission of at 

least one original paper copy of the fully 

executed compact if the compact or 

amendment was submitted 

electronically and the compact or 

amendment was executed utilizing 

‘‘wet’’ or ink signatures. 

Comments on § 293.12—What happens 

if the Secretary does not act on the 

compact or amendment within the 45- 

day review period? 

Several commenters expressed 

support for the proposed changes made 

to § 293.12, including the codification of 

a letter informing the parties when a 

compact has gone into effect by 

operation of law, commonly referred to 

as ‘‘deemed approved letters.’’ 

Commenters also expressed support for 

the routine inclusion of language 

discussing provisions that may be 

inconsistent with the Department’s 

interpretation of IGRA in ‘‘deemed 

approved letters.’’ Commenters also 

requested the Department increase the 

specificity included in ‘‘deemed 

approved letters,’’ including identifying 

the provisions that the Department 

considers are in violation of IGRA, as 

well as an explanation of the 

Department’s reasoning. 

The Department acknowledges the 

comments and notes that the final rule, 

consistent with the proposed rule, 

requires the Secretary to issue a 

ministerial letter informing the parties 

to the compact or amendment that it has 

gone into effect by operation of law. 

That letter may, at the Secretary’s 

discretion, include guidance to the 

parties reflecting the Department’s 

interpretation of IGRA. 

Several commenters requested 

additional clarification on the potential 

uses of ‘‘deemed approved’’ letters, 

including if the deemed approved letter 

is ‘‘final agency action’’ and if the 

underlying compact would be ripe for 

litigation that challenges provisions the 

Department identifies in a ‘‘deemed 

approved letter.’’ Commenters offered 

proposed regulatory language: 

‘‘Accordingly, the signatory Tribe or 

State may subsequently challenge the 

non-compliant Compact provisions as 

unenforceable or severable from the 

Compact.’’ 

The Department acknowledges the 

comment. The Department declines to 

include the proposed language in the 

final rule. Under IGRA, the Department 

has 45 days to complete its review and 

either approve or disapprove a class III 

gaming compact. If the Department 

takes no action within that 45-day 

period, the Tribal-State gaming compact 

is considered approved by operation of 

law—to the extent that it is consistent 

with IGRA. The Department takes no 

position on whether a Tribe or a State 

may subsequently challenge any 

compact provisions as unenforceable or 

severable from the compact. 

One commenter requested the 

timeline for issuing a deemed approved 

letter be shortened to 60 days and 

provided draft language to that effect. 

The Department declines to shorten 

the timeframe and refers to the second 

sentence of § 293.12, which states that 

the Secretary will issue a letter 

informing the parties that the compact 

or amendment has been approved by 

operation of law after the 45th day and 

before the 90th day. The 60-day 

suggestion falls within this timeframe. 

The final rule at § 293.14(b) states that 

the notice of affirmative approval or 

approval by operation of law must be 

published in the Federal Register 

within 90 days from the date the 

compact or amendment is received by 

the Office of Indian Gaming. 

Several commenters are concerned 

that the proposed § 293.12 conflicts 

with Amador County v. Salazar, 640 

F.3d 373 (D.C. Circuit 2011), in which 

the D.C. Circuit held that IGRA requires 

the Secretary to disapprove compacts 

that violate IGRA. Commenters raised 

both policy and legal concerns with the 

Department’s practice of permitting 


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compacts with problematic provisions 

to be approved by operation of law. 

The Department acknowledges the 

comments. Congress, through IGRA at 

25 U.S.C. 2710(d)(8), provided the 

Secretary with time-limited authority to 

review a compact and discretionary 

disapproval authority. Within this 

limited review period, the Secretary 

may approve or disapprove a compact. 

IGRA further directs that if the Secretary 

does not approve or disapprove a 

compact within IGRA’s 45-day review 

period, then the compact shall be 

considered to have been approved by 

the Secretary, but only to the extent the 

compact is consistent with the 

provisions of IGRA. 25 U.S.C. 

2710(d)(8)(C). The Department notes 

that one Circuit has held that the 

Secretary must disapprove a compact if 

it is inconsistent with IGRA and thus, 

may not approve such compact by 

operation of law. Amador County v. 

Salazar, 640 F.3d 373, 381 (D.C. Cir. 

2011). The Department also notes that 

the D.C. Circuit in West Flagler 

Associates, Ltd. v. Haaland, 71 F.4th 

1059, 1067 (D.C. Cir. 2023), explained 

that its holding in Amador County was 

premised on the requirement under 25 

U.S.C. 2710(d)(8)(A) that compacts 

govern gaming on Indian lands. In 

Amador County, the central, thenunanswered question at issue in the 

case was whether the gaming 

contemplated by the compact at issue 

would occur on property that qualified 

as ‘‘Indian lands’’ under IGRA. The D.C. 

Circuit found that the Secretarial 

disapproval was obligatory in this 

context because the particular statutory 

requirement that compacts govern 

gaming on Indian lands could not be 

satisfied. West Flagler, 71 F.4th at 1064. 

Comments on § 293.13—Who can 

withdraw a compact or amendment after 

it has been received by the Secretary? 

Several commenters expressed 

support for the proposed changes made 

to § 293.13. 

The Department acknowledges the 

comments. 

Comments on § 293.14—When does a 

compact or amendment take effect? 

Several commenters expressed 

support for the proposed changes made 

to § 293.14. 

The Department acknowledges the 

comments. 

Comments on § 293.15—Is the Secretary 

required to disapprove a compact or 

amendment that violates IGRA? 

Several commenters support the 

proposed § 293.15. 

The Department acknowledges the 

comments and after further 

consideration and review of all 

comments, the Department declines to 

adopt proposed § 293.15 in the final 

rule. 

Several commenters opposed the 

entirety of proposed § 293.15. Several 

commenters expressed concern that the 

proposed § 293.15 would permit 

compacts with unlawful provisions to 

go into effect by operation of law and 

limit the ability of the compacting 

parties to challenge the legality of such 

compacts. 

The Department acknowledges the 

comments, and after further 

consideration, the Department declines 

to adopt proposed § 293.15 in the final 

rule. 

One commenter requested the 

Department include in the final rule a 

non-exhaustive list of IGRA violations 

which would compel a disapproval. 

The Department acknowledges the 

comments, and after further 

consideration, the Department declines 

to adopt proposed § 293.15 in the final 

rule. 

Several commenters argued that 

Amador County held that the 

Department has an affirmative duty to 

disapprove illegal compacts and 

provided draft language to effect that 

duty. Commenters further noted that the 

Department’s brief in West Flagler 

appeared to adopt the Amador County 

standard as binding on the Department, 

which appeared to conflict with the 

proposed § 293.15. 

The Department acknowledges the 

comments, and after further 

consideration, the Department declines 

to adopt proposed § 293.15 in the final 

rule. 

Comments on § 293.16—Which has 

been redesignated as § 293.15—When 

may the Secretary disapprove a compact 

or amendment? 

The Department has redesignated 

proposed § 293.16 as § 293.15 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

Two commenters support the 

proposed changes made to § 293.15. 

The Department acknowledges the 

comments. 

One commenter requested clarifying 

language regarding the Secretary’s 

ability to approve or disapprove 

compacts. 

The Department acknowledges the 

comment, but notes this provision is 

consistent with Congress’ grant of 

discretionary disapproval authority to 

the Secretary. 25 U.S.C. 

2710(d)(8)(B)(iii). The Department notes 

the proposed § 293.15(b) would clarify 

that if a compact submission package is 

missing the documents required by 

§ 293.8 and the parties decline to cure 

the deficiency, the Secretary may 

conclude that the compact or 

amendment was not ‘‘entered into’’ by 

the Tribe and State as required by IGRA, 

25 U.S.C. 2710(d)(1)(C), and will 

disapprove the compact or amendment 

on that basis. See, e.g., Pueblo of Santa 

Ana v. Kelly, 104 F.3d 1546, 1555 (10th 

Cir. 1997) (a compact or amendment 

must have been ‘‘validly entered into’’ 

before it can go into effect through 

Secretarial approval). The Department 

notes this is a change from an earlier 

practice of returning incomplete 

compact submission packages. The 

Department has reconsidered this 

practice so as to better fulfill Congress’s 

goal of avoiding unnecessary delay in 

the Secretary’s review process. If the 

Department cannot determine, based on 

the lack of documentation, that the 

compact was validly entered into by 

both the Tribe and the State, then 

approval—affirmative or by operation of 

law—exceeds the Secretary’s authority. 

Several commenters believe proposed 

§ 293.15(b) is unnecessarily punitive 

unless the parties are provided a timely 

opportunity to cure deficiencies within 

the submission package or provide the 

Secretary with any missing documents. 

Several commenters offered draft 

regulatory text, including differing 

timeframes for submitting missing 

information or explaining why the 

required information was not submitted. 

The Department acknowledges the 

comments and has accepted the 

revisions in part, changing § 293.15(b) of 

the final rule to state that if the 

documents required in § 293.8 are not 

submitted and the Department has 

informed the parties in writing of the 

missing documents, and provided the 

parties with an opportunity to supply 

those documents, the Secretary may 

conclude the compact or amendment 

was not validly entered into between 

the Tribe and the State and will 

disapprove the compact or amendment 

on those grounds. 

Another commenter suggested an 

additional paragraph (c): ‘‘At any time 

after the compact or amendment is 

submitted, the tribal party may submit 

a written request to pause the 45-day 

deadline for the Secretary to make a 

decision for purposes of supplying any 

missing document(s). Effective the date 

such request is received by the 

Department, no more days toward the 

45-day deadline will accrue until 

written request to resume the 45-day 

period is received from the tribal 

applicant.’’ 


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17Chicken Ranch Rancheria of Me-Wuk Indians 

v. Cal., 42 F.4th 1024, 1034 (9th Cir. 2022). Internal 

citations and quotations omitted. 

The Department declines to 

incorporate the suggested new 

paragraph (c) in § 293.16 of the final 

rule and notes that IGRA’s 45-day 

review period cannot be tolled. If the 

Tribe or the State is unable to provide 

missing documents within the 45-day 

review period, the parties may 

withdraw the compact from Secretarial 

review under § 293.13, then resubmit 

the compact with the documents 

required under § 293.8. 

Comments on Subpart D 

Several commenters expressed 

opposition to the part 293 Rulemaking 

effort and requested the Department 

remove all substantive provisions in 

subpart D. 

The Department acknowledges the 

comments but declines to remove the 

substantive provisions contained in 

subpart D. 

Several commenters objected to the 

rulemaking effort, questioned the 

Secretary’s authority to engage in 

rulemaking or provide substantive rules 

on the scope of Tribal-State gaming 

compacts. Commenters also questioned 

the Department’s inclusion of evidence 

of ‘‘bad faith’’ or ‘‘violations of IGRA.’’ 

The Secretary has authority to 

promulgate regulations regarding the 

Department’s procedures for the 

submission and review of compacts and 

amendments based on the statutory 

delegation of powers contained in IGRA 

and 25 U.S.C. 2 and 9. In enacting IGRA, 

Congress delegated authority to the 

Secretary to review compacts to ensure 

that they comply with IGRA, other 

provisions of Federal law that do not 

relate to jurisdiction over gaming on 

Indian lands, and the trust obligations of 

the United States. 25 U.S.C. 

2710(d)(8)(B)(i)–(iii). IGRA establishes 

the parameters for topics that may be 

the subject of compact and amendment 

negotiations and included in compacts. 

Thus, in reviewing submitted compacts 

and amendments, the Secretary is 

vested with the authority to determine 

whether the compacts contain 

impermissible topics. The Department 

recognizes that section 2710(d)(7)(A)(i) 

of IGRA vests jurisdiction in district 

courts over ‘‘any cause[s] of action . . . 

arising from the failure of a State . . . 

to conduct [ ] negotiations in good 

faith.’’ The district courts review of the 

negotiation process often includes 

reviewing if the negotiations have 

strayed beyond IGRA’s limited list of 

permissible topics in a compact. The 

Secretary’s review of a compact begins 

after the parties have executed the 

compact and necessarily includes 

reviewing if it contains terms that 

strayed beyond IGRA’s limited list of 

permissible topics in a compact. This 

overlap has resulted in a body of case 

law the Department has interpreted and 

incorporated into longstanding 

Departmental policies. Additionally, 

courts have looked to prior 

Departmental decisions, ‘‘deemed 

approved’’ letters, and policy statements 

to guide the courts review. Therefore, 

the Department has replaced the phrase 

‘‘is considered evidence of bad faith’’ 

with the phrase ‘‘may be considered 

evidence of a violation of IGRA’’ in the 

final rule. This change harmonizes the 

Department’s regulations with IGRA’s 

plain language by enumerating the 

specific topics that are appropriately 

addressed in compacts. The 

Department’s regulations also identify 

examples of impermissible topics that 

may be considered evidence of a 

violation of IGRA. 

Several commenters argued that the 

Department’s interpretation of 25 U.S.C. 

2710(d)(3)(C) as an exclusive list of 

proper compact terms is improper, and 

that the Department’s interpretation that 

25 U.S.C. 2710(d)(3)(C)(vii) must be 

narrowly applied is not supported by 

IGRA or case law. 

The Department acknowledges the 

comment and notes that the 

Department’s longstanding 

interpretation of IGRA’s list of 

permissible topics for compacts, located 

at 25 U.S.C. 2710(d)(3)(c), as exhaustive 

is consistent with prevailing caselaw. 

For example, the Ninth Circuit in 

Chicken Ranch stated: ‘‘IGRA, we made 

clear, does not permit the State and the 

[T]ribe to negotiate of any subjects the 

desire; rather, IGRA anticipates a very 

specific exchange of rights and 

obligations.’’ 17

Comments on § 293.17—Which has 

been redesignated as § 293.16—May a 

compact or amendment include 

provisions addressing the application of 

the Tribe’s or the State’s criminal and 

civil laws and regulations? 

The Department has redesignated 

proposed § 293.17 as § 293.16 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

Many commenters expressed support 

for the proposed § 293.16. 

The Department acknowledges the 

comments. 

One commenter requested the 

Department strike the phrase ‘‘At the 

request of the Secretary pursuant to 

§ 293.8(e)’’ from the second sentence of 

§ 293.16. The commenter argued the 

change would allow Tribal control over 

what State regulations apply. 

The Department declines the 

proposed revision to § 293.16, which 

allows the Secretary to determine when 

additional information is needed during 

the Department’s review and approval 

process. 

Comments on § 293.18—Which has 

been redesignated as § 293.17—May a 

compact or amendment include 

provisions addressing the allocation of 

criminal and civil jurisdiction between 

the State and the Tribe? 

The Department has redesignated 

proposed § 293.18 as § 293.17 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

Many commenters expressed support 

for the proposed § 293.17. 

The Department acknowledges the 

comments. 

One commenter would like the 

Department to add ‘‘reasonable’’ to 

§ 293.17 describing criminal and civil 

jurisdiction between the State and the 

Tribe necessary for the enforcement of 

the laws and regulations described in 

§ 293.16. 

The Department declines to accept the 

recommendation to add the word 

‘‘reasonable.’’ This is not needed 

because the final rule at § 293.17 

authorizes only those provisions 

‘‘necessary for the enforcement of the 

laws and regulations described in 

§ 293.16,’’ which in turn requires that 

the ‘‘laws and regulations are ‘‘directly 

related to and necessary for the 

licensing and regulation of the gaming 

activity.’’ (emphasis added). 

Two commenters requested the 

Department clarify proposed §§ 293.16 

and 293.17 to confirm that the Tribe and 

the State may agree, as a matter of 

contract, that the Tribe will adopt 

standards that are equivalent to State 

standards. 

The Department acknowledges the 

comments and notes that neither IGRA, 

nor the Department’s regulations, 

prohibit a Tribe from adopting 

standards that are equivalent to State 

standards. Additionally, the final rule in 

§ 293.21, directly addresses a Tribe’s 

adoption of standards equivalent or 

comparable to State standards. 

Comments on § 293.19—Which has 

been redesignated as § 293.18—May a 

compact or amendment include 

provisions addressing the State’s costs 

for regulating gaming activities? 

The Department has redesignated 

proposed § 293.19 as § 293.18 in the 

final rule. Comments have been edited 


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to reflect the new section number in the 

final rule. 

Several commenters stated the 

proposed rule contained a typographical 

error with the use of the word ‘‘is’’ in 

the final sentence of proposed § 293.18 

and offered a conforming edit. 

The Department has accepted the 

conforming edit to the last sentence of 

§ 293.18 in the final rule, which now 

states that if the compact does not 

include requirements for the State to 

show actual and reasonable annual 

expenses for regulating the specific 

Tribe’s gaming activity over the life of 

the compact, the lack of such 

requirement may be considered 

evidence of a violation of IGRA. 

Several commenters would like the 

Department to require greater proof of 

the reasonableness of a State’s 

regulatory costs. Commenters requested 

the Department include the additional 

language to § 293.18, requiring specific 

forms of proof of both the actual cost 

and the reasonableness of the cost 

during the life of the compact. 

The Department acknowledges the 

comments but declines to require 

specific forms of proof of both actual 

cost and the reasonableness of the cost 

or to define or require proof of 

reasonableness. The Department reads 

IGRA’s provision permitting the State to 

assess regulatory costs narrowly and as 

inherently limited to the negotiated 

allocation of regulatory jurisdiction. The 

final rule at § 293.18 allows Tribes and 

States flexibility to determine how the 

parties will incorporate IGRA’s limits on 

a State’s assessment of regulatory costs 

into a compact, including flexibility in 

negotiating the terms that determine 

how the State will show aggregate costs 

are actual and reasonable. Providing 

specific definitions would diminish the 

parties’ flexibility in negotiating 

reasonable compact terms that best meet 

the needs of the parties. 

Several commenters expressed 

concern with the Department’s 

inclusion of reporting requirements in 

§ 293.18. The commenters argued that 

requirement would make it difficult for 

States to recoup the cost of regulating 

class III gaming, particularly in States 

with multiple Tribes who operate 

differing numbers and sizes of gaming 

facilities. 

The Department acknowledges the 

comment. The final rule at § 293.27 

includes a discussion of the 

Department’s interpretation of IGRA’s 

prohibition against the imposition of a 

tax, fee, charge, or other assessment. 

IGRA provides that a compact may 

include provisions relating to ‘‘the 

assessment by the State of [the Tribe’s 

class III gaming activity] in such 

amounts as are necessary to defray the 

costs of regulating [the Tribe’s class III 

gaming activity].’’ 25 U.S.C. 

2710(d)(3)(C)(iii). In section 2710(d)(4), 

IGRA then prohibits the State from 

imposing a tax, fee, charge, or other 

assessment except for any assessments 

that may be agreed to under section 

2710(d)(3)(C)(iii). The Department reads 

IGRA’s provision permitting the State to 

assess regulatory costs narrowly and as 

inherently limited to the negotiated 

allocation of regulatory jurisdiction. 

Further, the Department has revised 

§ 293.18 in the final rule to give the 

parties flexibility in negotiating the 

terms of a compact to determine how 

the State will show aggregate costs are 

actual and reasonable. 

Comments on § 293.20—Which has 

been redesignated as § 293.19—May a 

compact or amendment include 

provisions addressing the Tribe’s 

taxation of gaming? 

The Department has redesignated 

proposed § 293.20 as § 293.19 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

Several commenters support the 

proposed § 293.19. 

The Department acknowledges the 

comments. 

Several commenters expressed 

concerns with the Department’s 

inclusion of § 293.19 in the proposed 

rule and argued that States may begin 

demanding compact provisions 

addressing the taxation of Tribal 

gaming. Others requested the 

Department strike specific language 

referencing State tax rates. Another 

commenter requested the Department 

include a ‘‘directly related’’ nexus for 

Tribal tax equivalents. 

The Department acknowledges the 

comments but declines to make the 

requested changes to § 293.19 in the 

final rule. IGRA provides that a compact 

may address Tribal taxation of Tribal 

class III gaming in amounts comparable 

to State taxation of State gaming. 25 

U.S.C. 2710(d)(3)(C)(iv). 

Comments on § 293.21—Which has 

been redesignated as § 293.20—May a 

compact or amendment include 

provisions addressing the resolution of 

disputes for breach of the compact? 

A number of commenters expressed 

support for proposed § 293.20, 

especially regarding the opportunity for 

Tribes to submit dispute resolution 

documents, settlement agreements, or 

arbitration decisions they are concerned 

act to amend the terms of their compact. 

The Department acknowledges the 

comments. 

Several commenters expressed 

concerns with the scope of review under 

§ 293.20 and questioned how those 

provisions may impact existing 

compacts. 

The Department acknowledges the 

comments and notes that § 293.32(b) of 

the final rule clearly states that the final 

rule is prospective and does not alter 

prior Departmental decisions on 

compacts. Additionally, § 293.20 allows 

the Tribe to use the § 293.4 process, 

including requesting a determination 

from the Department under § 293.4(c), to 

determine if their dispute resolution 

agreement or other document amends or 

alters the compact from which the 

dispute arose, or addresses matters not 

directly related to the operation of 

gaming. 

One commenter requested the 

Department include within § 293.20 a 

duty on the Secretary to disapprove any 

compact which provides that the only 

remedy for a breach of compact is 

suspension or termination of the 

compact. The commenter argued that 

compacts should be required to include 

reasonable notice of alleged breach of 

compact with opportunities to cure any 

alleged violations. 

The Department acknowledges the 

comment but declines to include an 

affirmative duty to disapprove a 

compact in all instances. The 

Department is concerned that a mandate 

requiring the Secretary to affirmatively 

disapprove compacts that contain 

illusory remedies for breach of compact 

would narrow the discretion IGRA 

provides the Secretary to either approve 

or disapprove a compact within the 

prescribed 45-day review period. The 

Department also notes that many 

compacts include opportunities for 

parties to the compact to meet and 

discuss alleged breaches of compact and 

arrange reasonable timelines for either 

curing the breach or negotiating an 

amendment to the compact addressing 

the breach. 

Several commenters suggested that 

the Department is acting beyond its 

authority in proposed § 293.20 by 

impermissibly interpreting IGRA and 

acting without authority to review any 

and all court orders between Tribes and 

States as if they are compact 

amendments. The commenters also 

argued the proposed § 293.20 violates 

the Federal Arbitration Act. 

The Department acknowledges the 

comments but disagrees with the 

commenters’ view of the reach of 

§§ 293.20 and 293.4. These provisions 

provide Tribes the opportunity to seek 

a determination from the Department of 

whether their dispute resolutions, 

settlement agreements, or arbitration 


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18 In re Indian Gaming Related Cases (Coyote 

Valley II), 331 F.3d 1094 (9th Cir. 2003). 

19 In re Indian Gaming Related Cases (Coyote 

Valley II), 331 F.3d 1094 (9th Cir. 2003). 

20Rincon Band of Luiseno Mission Indians v. 

Schwarzenegger, 602 F.3d 1019, 1038–39 (9th Cir. 

2010). 

21Chicken Ranch Ranchera of Me-Wuk Indians v. 

California, 42 F.4th 1024 (9th Cir. 2022). 

decisions amend their compact such 

that Secretarial review and approval is 

required. The Department has observed 

Tribes and States resolving compact 

disputes through agreements that act to 

amend or change the terms in the 

underlying compact. Further, the 

Federal Arbitration Act permits an 

arbitration award to be vacated where 

the arbitrators exceeded their powers or 

so imperfectly executed them that a 

mutual, final, and definite award was 

not made. 9 U.S.C. 10(a)(4). When an 

arbitration award acts to amend or 

change a term in the underlying 

compact it necessarily triggers IGRA’s 

Secretarial review and approval 

requirement prior to becoming effective 

or final. 

Comments on § 293.22—Which has 

been redesignated as § 293.21—May a 

compact or amendment include 

provisions addressing standards for the 

operation of gaming activity and 

maintenance of the gaming facility? 

The Department has redesignated 

proposed § 293.22 as § 293.21 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

A number of commenters expressed 

support for § 293.21 because it helps to 

specify what provisions may be 

included in a compact. 

The Department acknowledges the 

comments. 

One commenter requested the 

Department add the phrase ‘‘within 

gaming spaces’’ to proposed § 293.21. 

The commenter argued this edit would 

be consistent with other portions of the 

proposed rule and IGRA by 

distinguishing between the physical 

space where the ‘‘standards for the 

operation of gaming’’ may properly 

reach, and from the gaming facility 

spaces where the standards for 

maintenance and licensing may 

properly reach. 

The Department acknowledges the 

comment and has added the suggested 

phrase ‘‘within gaming spaces’’ to 

§ 293.21 in the final rule. 

A commenter expressed concerns that 

§ 293.21 may have unintended 

consequences by restricting provisions 

which a Tribe may consider germane 

and arising from the Tribe’s conduct of 

gaming. 

The Department acknowledges the 

comment and notes § 293.21 in the final 

rule requires evidence that the required 

standards are ‘‘both directly related to 

and necessary for the licensing and 

regulation of the gaming activity.’’ The 

Department seeks to clarify and enforce 

the proper scope of compacts negotiated 

under IGRA while deferring to and 

respecting a Tribe’s sovereign decision 

making. 

Comments on § 293.23—Which has 

been redesignated as § 293.22—May a 

compact or amendment include 

provisions that are directly related to 

the operation of gaming activities? 

The Department has redesignated 

proposed § 293.23 as § 293.22 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

A number of commenters expressed 

support for proposed § 293.22, 

explaining §§ 293.22 and 293.23 will 

help limit State overreach into class III 

gaming. 

The Department acknowledges the 

comments. 

One commenter requested that the 

proposed § 293.22 be struck as 

unnecessary. 

The Department declines to strike the 

proposed § 293.22 from the final rule. 

The Department notes that the proposed 

§ 293.22 was added in response to 

comments received during the Tribal 

consultation process. The final rule 

further clarifies, consistent with the 

holding of West Flagler Associates., Ltd. 

v. Haaland, 71 F.4th 1059 (D.C. Cir. 

2023), that ‘‘directly related’’ activities 

may include activities that occur off 

Indian lands. 

Comments on § 293.24—Which has 

been redesignated as § 293.23—What 

factors will be used to determine 

whether provisions in a compact or 

amendment are directly related to the 

operation of gaming activities? 

The Department has redesignated 

proposed § 293.24 as § 293.23 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

A number of commenters expressed 

support for § 293.23 and applauded 

revisions the Department included in 

response to comments received during 

Tribal consultation. Commenters noted 

that the provisions would codify the 

Department’s longstanding ‘‘direct 

connection test,’’ which was found 

persuasive by the Ninth Circuit in 

Chicken Ranch, 42 F.4th at 1036. 

Commenters also stated that the 

proposed § 293.23 would help Tribes 

and States understand the limits that 

IGRA imposes on Tribal-State gaming 

compacts. 

The Department acknowledges the 

comments. 

A commenter requested the 

Department revise proposed § 293.23(a) 

by adding the phrase ‘‘within gaming 

spaces’’ for consistency with other 

provisions in the proposed rule. 

The Department acknowledges the 

comment but declines to include the 

proposed revision, which would create 

a logical conflict with § 293.23(a)(2) 

which addresses the transportation of 

gaming devices and equipment. 

Several commenters expressed 

concern that, as drafted, the proposed 

§ 293.23 could be construed to prohibit 

provisions addressing the collective 

bargaining rights of employees of a 

Tribal gaming facility. The commenters 

argued such an interpretation of the 

regulations conflicts with existing Ninth 

Circuit caselaw, citing to Coyote Valley 

II 18 and the Biden Administration’s 

stated policies in Executive Order 

14025. One commenter requested the 

Department include clarifying language 

in § 293.23 and offered proposed 

regulatory text. 

The Department acknowledges the 

comments and has included a new 

provision § 293.24 addressing rights of 

employees. The proposed regulations 

codify existing case law, including 

Coyote Valley II,19 Rincon,20 and 

Chicken Ranch.21 These cases 

collectively recognize that a compact 

can include provisions addressing labor 

relations for employees, including 

service and hospitality workers (such as 

food and beverage, housekeeping, 

cleaning, bell and door services, and 

laundry employees) of the gaming 

facility or at a facility whose only 

significant purpose is to facilitate 

patronage at the gaming facility because 

gaming activities could not operate 

without someone performing those jobs 

and thus the labor is directly related to 

gaming activities and inseparable from 

gaming itself. Additionally, Tribes and 

Unions may negotiate labor relations 

agreements or labor relations ordinances 

outside of a compact. In light of this 

body of caselaw, in this labor-relations 

context only, gaming compacts may 

include provisions addressing labor 

relations, or the process for reaching a 

labor relations agreement, although 

portions of these provisions or processes 

may include labor activities performed 

beyond the physical areas where class 

III gaming actually takes place. Nothing 

in these regulations alters Unions’ 

existing ability to negotiate labor 

relations agreements with Tribes or to 

advocate for Tribes to pass Tribal labor 


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22See, e.g., Letter from Ada Deer, Assistant 

Secretary—Indian Affairs to Jeff Parker, 

Chairperson, Bay Mills Indian Community dated 

November 19, 1993, approving the 1993 Michigan 

Compact; Letter from Bryan Newland, Principal 

Deputy Assistant Secretary—Indian Affairs, to 

Robert Miguel, Chairman Ak-Chin Indian 

Community, dated May 21, 2021, at 2, discussing 

the Tribe-to-Tribe revenue sharing and gaming 

device leasing provisions. 

23See, e.g., Letter from Gale Norton, Secretary of 

the Interior, to Cyrus Schindler, Nation President, 

Seneca Nation of Indians dated November 12, 2002, 

discussing the limits placed on Tonawanda Band 

and the Tuscarora Nation in the Seneca Nation’s 

exclusivity provisions, and describing such 

provisions as ‘‘anathema to the basic notion of 

fairness in competition and . . . inconsistent with 

the goals of IGRA’’; Letter from Aurene Martin, 

Assistant Secretary—Indian Affairs (acting), to 

Harold ‘‘Gus’’ Frank, Chairman, Forest County 

Potawatomi Community, dated April 25, 2003, 

addressing the parties removal of section XXXI.B 

which created a 50 mile ‘no fly zone’ around the 

Tribe’s Menominee Valley facility and explained 

‘‘we find a provision excluding other Indian gaming 

anathema to basic notions of fairness in competition 

and inconsistent with the goals of IGRA’’; Letter 

from Aurene Martin, Assistant Secretary—Indian 

Affairs (acting), to Troy Swallow, President, HoChunk Nation, dated August 15, 2003, addressing 

section XXVII(b), limiting the Governor’s ability to 

concur in a two-part Secretarial Determination 

under section 20(b)(1)(A) of IGRA for another Tribe 

as ‘‘repugnant to the spirit of IGRA’’; Letter from 

Kevin Washburn, Assistant Secretary—Indian 

Affairs, to Harold Frank, Chairman, Forest County 

Potawatomi Community dated January 9, 2013, 

disapproving an amendment which would have 

made the Menominee Tribe guarantee Potawatomi’s 

Menominee Valley facility profits as a condition of 

the Governor’s concurrence for Menominee’s 

Kenosha two-part Secretarial Determination, 

affirmed by Forest Cty. Potawatomi Cmty. v. United 

States, 330 F. Supp. 3d 269 (D.D.C. 2018). See also 

Letter from Bryan Newland, Assistant Secretary— 

Indian Affairs to Claudia Gonzales, Chairwoman, 

Picayune Rancheria of Chukchansi Indian of 

California, dated November 5, 2021, at 13. 

relations laws outside of the compacting 

process. 

One commenter expressed concern 

that, as drafted, the proposed § 293.23(b) 

could be construed to prohibit 

provisions addressing employee 

licensing and back of house security 

requirements for non-gaming business 

and amenities which in some instances 

may be necessary due to proximity to 

gaming spaces and gaming facility 

design. 

The Department acknowledges the 

comment and has included a new 

provision § 293.25 in the final rule 

clarifying that a compact may include 

provisions addressing employee 

licensing. The Department notes the 

National Indian Gaming Commission’s 

regulations at 25 CFR part 556 and part 

558 set minimum standards for 

background investigations and 

suitability determinations for triballyissued licenses. The final rule includes 

a reference to these minimum standards 

as a baseline for employee background 

investigations and licenses issued 

pursuant to a compact to allow 

flexibility in the compact negotiation 

process while ensuring appropriate 

vetting and licensing of employees. 

Several commenters requested the 

Department make typographical and 

stylistic edits to proposed § 293.23(c) to 

improve readability of the rule. 

The Department acknowledges the 

comments and has accepted some of the 

proposed revisions in the final rule. 

A commenter requested the 

Department clarify if the Department 

will defer to Tribes’ sovereign decision 

making and negotiations when applying 

§ 293.23. The commenter requested the 

Department include the phrase ‘‘the 

Department may consider’’ to 

§ 293.23(c) and the phrase ‘‘and the 

department will defer to the Tribe 

regarding whether a direct connection 

exists’’ in § 293.23(d). 

The Department acknowledges the 

comment but declines to accept the 

proposed language in the final rule. 

Several commenters expressed 

concerns that proposed § 293.23(c)(1) 

could be misconstrued to limit or 

prohibit Statewide compacting schemes 

or compacts with ‘‘most favored nation’’ 

provisions. A commenter offered draft 

language to clarify the intended reach of 

§ 293.23(c)(1). 

The Department acknowledges the 

comments and has made a clarifying 

edit to § 293.23(c)(1) in the final rule, 

which states, ‘‘Expressly limiting third 

party Tribes’ rights to conduct gaming 

activities under IGRA.’’ The Department 

has consistently distinguished compacts 

with Statewide gaming market 

regulatory schemes from compacts 

which limit third party Tribes’ rights 

under IGRA. In both Michigan and 

Arizona, the States and the Tribes 

negotiated mutually beneficial 

agreements addressing the location and 

size of Tribal gaming as part of a 

Statewide scheme. These and similar 

compacts included Tribe-to-Tribe 

revenue sharing provisions to offset 

market disparities between urban and 

rural Tribes. These compacts are 

identical across the State or contain 

identical relevant provisions. The 

Department has consistently found 

these types of agreements consistent 

with IGRA.22

These are contrasted with compacts 

which act to prevent a Tribe who is not 

party to either the compact or the 

broader Statewide scheme from 

exercising its full rights to conduct 

gaming under IGRA, most notably in the 

form of geographic exclusivity from 

Tribal competition. The Department has 

consistently expressed concern with 

these types of arrangements, and in 

some cases disapproved compacts 

containing such provisions.23 The 

Department has not limited this 

provision in the final rule to strictly 

‘‘anti-compete’’ or ‘‘geographic 

exclusivity from Tribal competition.’’ 

The final rule at § 293.23(c)(1) provides 

the Secretary flexibility when evaluating 

other provisions which may also 

improperly limit a third-party Tribe’s 

rights under IGRA. 

A commenter questioned the legality 

and public policy rationale of protecting 

third-party Tribes while not offering 

similar protections to State-licensed 

commercial gaming operators. 

The Department acknowledges the 

comment and notes Tribal gaming under 

IGRA is a critical source of revenue for 

Tribal governments. The compact 

negotiation process in IGRA envisions a 

negotiation between two sovereigns over 

gaming on Indian lands and therefore 

does not directly address provisions a 

State seeks to institute regarding nonIndian gaming. The final rule at § 293.27 

addresses when it is appropriate for a 

compact to include revenue sharing 

provisions through which a State may 

also receive a source of governmental 

revenue. We note that the expansion of 

State lotteries and State licensed 

commercial gaming can place Tribes 

and States in direct competition for 

market share. 

A commenter requested the 

Department revise proposed 

§ 293.23(c)(5) to clarify that any 

intergovernmental agreements 

containing provisions that are not 

directly related to the Tribe’s gaming 

activities are not enforceable through a 

compact. 

The Department acknowledges the 

comment but declines to include the 

requested language in § 293.23(c)(5) of 

the final rule. The Department notes 

§ 293.30 provides a grandfather clause 

for compacts previously approved by 

the Department. Compacts that were 

approved by operation of law, also 

known as ‘‘deemed approved’’ 

compacts, are approved only to the 

extent they are consistent with IGRA. 25 

U.S.C. 2710(d)(8)(C). The Department 

takes no position on whether a Tribe or 

a State may subsequently challenge 

compact provisions as unenforceable or 

severable from the compact. 

A number of commenters offered 

differing opinions on whether 

regulations should allow, require, or 

prevent tort claims from being heard in 

State courts. Some commenters noted 

the proposed § 293.23(c)(7) was 

consistent with case law, citing to 

Pueblo of Santa Ana v. Nash, 972 F. 

Supp. 2d 1254 (D.N.M. 2013). Other 

commenters requested the Department 

defer to a Tribe’s sovereign decision 

making and amend § 293.23(c)(7) to 


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allow for Tribes to request tort claims be 

heard in State court. Other commenters 

requested the Department revise 

§ 293.23(c)(7) to effectively prohibit the 

inclusion of provisions addressing tort 

claims from compacts, arguing that such 

provisions can be overly burdensome on 

Tribes, while noting that the resolution 

of tort claims is not absolutely necessary 

for the licensing and regulation of 

gaming. Commenters offered proposed 

edits to § 293.23(c)(7) reflecting their 

stances on tort claims. 

The Department acknowledges the 

comments and notes that these 

comments highlight the sensitive nature 

of provisions addressing tort claims in 

compacts. The Department declined to 

revise § 293.23(c)(7) in the final rule. 

A commenter requested the 

Department revise proposed 

§ 293.23(c)(8) to include provisions that 

would regulate conduct outside of the 

gaming spaces in addition to nongaming Tribal economic development. 

The Department has revised 

§ 293.23(c)(8) in the final rule to reflect 

the proposed revision. 

Several commenters requested the 

Department clarify in proposed 

§ 293.23(c)(9) that class I and class II 

gaming are subject to the jurisdiction of 

Tribes and the United States at the 

exclusion of the States. Commenters 

offered draft language. 

The Department acknowledges the 

comments but declines to accept the 

proposed language. The Department 

notes that IGRA at section 2710(a)(1) 

provides that class I gaming on Indian 

lands is within the exclusive 

jurisdiction of the Tribe and is not 

subject to the provisions of IGRA. IGRA 

further provides that class II gaming is 

subject to the jurisdiction of the Tribe 

and the National Indian Gaming 

Commission. 

Comments on § 293.29—Which has 

been redesignated as § 293.26—May a 

compact or amendment include 

provisions addressing Statewide remote 

wagering or internet gaming? 

The Department has redesignated 

proposed § 293.29 as § 293.26 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

Several commenters requested the 

Department clarify, either in the final 

rule or in the preamble, that players 

who are located on a Tribe’s Indian land 

must comply with IGRA when initiating 

an i-gaming wager. The commenters 

noted that not all States or commercial 

i-gaming operators are properly 

mapping and geo-fencing Indian lands 

within the State, which could result in 

a player inadvertently violating IGRA 

and other Federal laws by initiating a 

wager from the Indian lands of a Tribe 

who has not authorized the placement 

of such wagers. 

The Department acknowledges the 

comments and encourages Tribes who 

are concerned that i-gaming wagers are 

being improperly initiated on their 

lands and being accepted off their lands 

to report concerns to the Secretary and 

the Department of Justice. In order for 

an i-gaming wager to be legally received 

on a Tribe’s land, the wager must 

comply with both IGRA and other 

Federal laws, including the Unlawful 

internet Gambling Enforcement Act. 31 

U.S.C. 5361–67 (UIGEA). The UIGEA 

requires that wagers must be legal both 

where they are initiated and where they 

are received. See, e.g., State of Cal. v. 

Iipay Nation of Santa Ysabel, 898 F.3d 

960, 965 (9th Cir. 2018) (internal 

quotations omitted). 

Several commenters requested the 

Department provide some flexibility to 

the requirement in proposed § 293.26(c) 

that the player initiating the wager not 

be located on another Tribe’s land. The 

commenters noted that such flexibility 

may result in agreements between 

Tribes, through which novel solutions 

may emerge that allow for more Tribes 

to benefit from i-gaming. 

The Department acknowledges the 

comments and has revised § 293.26(c) in 

the final rule to allow for wagers to be 

initiated on another Tribe’s Indian lands 

if the Tribe has provided lawful 

consent. The Department also notes this 

is consistent with the UIGEA’s 

exemption for Intratribal Transactions at 

31 U.S.C. 5362(10)(C). 

Several commenters requested the 

Department amend proposed § 293.26 to 

clarify that if a State allows any person, 

organization, or entity to engage in 

statewide mobile gaming for any 

purpose, the State is required under 

IGRA to negotiate with Tribes in the 

State to offer statewide mobile gaming, 

even if the State is unwilling to allocate 

its jurisdiction over wagers made by 

patrons located off of Indian lands to the 

Tribes. The commenters offered draft 

language for inclusion in proposed 

§ 293.26. 

The Department acknowledges the 

comments but declines to include the 

requested language in the final rule. 

Consistent with the D.C. Circuit’s 2023 

decision in West Flagler Associates, Ltd. 

v. Haaland, 71 F.4th 1059 (D.C. Cir. 

2023), a compact may include 

provisions addressing regulatory issues 

concerning statewide mobile wagering 

provided that State law authorizes the 

portion of the wagering transaction 

occurring off of Indian lands. The 

Secretary, however, does not have the 

authority to unilaterally require a State 

to allocate jurisdiction over wagers 

made by patrons located off Indian 

lands in the State. 

Many commenters support the 

inclusion of proposed § 293.26, 

especially in the rapidly changing 

digital world. However, many 

commenters argued Tribes already have 

the authority to conduct online gaming 

without the language proposed § 293.26. 

Some commenters requested the 

Department include language in the 

proposed § 293.26 to reflect that preexisting authority. 

The Department acknowledges the 

comments. The final rule incorporates 

and codifies existing Departmental 

practice and, where relevant, existing 

case law. Consistent with the D.C. 

Circuit’s 2023 decision in West Flagler 

Associates, Ltd. v. Haaland, 71 F.4th 

1059 (D.C. Cir. 2023), a compact may 

include provisions addressing 

regulatory issues concerning statewide 

mobile wagering provided that State law 

authorizes the portion of the wager 

transaction occurring off of Indian 

lands. 

Many non-Tribal organizations 

expressed deep concern about proposed 

§ 293.26. These comments state that the 

Department has no authority to 

implement proposed § 293.26 under 

Chevron or the major questions 

doctrine, and that this provision 

illegally expands Indian gaming 

statewide and off-reservation. 

The Department acknowledges the 

comments. The final rule incorporates 

and codifies existing Departmental 

practice and, where relevant, existing 

case law. Consistent with the D.C. 

Circuit’s 2023 decision in West Flagler 

Associates, Ltd. v. Haaland, 71 F.4th 

1059 (D.C. Cir. 2023), a compact may 

include provisions addressing 

regulatory issues concerning statewide 

mobile wagering provided that State law 

authorizes the portion of the wager 

transaction occurring off of Indian 

lands. 

Comments on § 293.25—Which has 

been redesignated as § 293.27—What 

factors will the Secretary analyze to 

determine if revenue sharing is lawful? 

The Department has redesignated 

proposed § 293.25 as § 293.27 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

Several commenters expressed 

support for the proposed § 293.27, and 

note it appears to codify existing 

Departmental practice while 

incorporating Tribal consultation 

comments. 


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24See, e.g., Letter from Bryan Newland, Assistant 

Secretary—Indian Affairs to the Honorable R. James 

Gessner, Jr., Chairman, Mohegan Tribe of Indians 

dated September 10, 2021, approving the Tribe’s 

compact amendment with the State of Connecticut; 

and Letter from Bryan Newland, Assistant 

Secretary—Indian Affairs to the Honorable Rodney 

Butler, Chairman, Mashantucket Pequot Indian 

Tribe dated September 10, 2021, approving the 

Tribe’s amendment to its Secretarial Procedures, as 

amended in agreement with the State of 

Connecticut. 

25See, e.g., Letter from Kevin Foley, Assistant 

Secretary—Indian Affairs to the Honorable George 

E. Pataki, Governor of New York, disapproving the 

Tribal-State Compact between the State of New 

York and the St. Regis Mohawk Tribe dated July 26, 

2000. 

The Department acknowledges the 

comments. 

Several commenters expressed 

concern that § 293.27 is overly 

restrictive and may result in 

incentivizing direct competition from 

State lotteries and State licensed 

commercial gaming. 

The Department acknowledges the 

comments and notes the final rule in 

§ 293.27 codifies the Department’s 

longstanding test for evaluating revenue 

sharing. IGRA prohibits a State from 

seeking to impose any tax, fee, charge, 

or other assessments on a Tribe’s 

conduct of gaming. The final rule in 

§ 293.27 addresses when it is 

appropriate for a compact to include 

revenue sharing provisions through 

which a State may also receive a source 

of governmental revenue. Alternatively, 

States may choose to license and tax 

commercial gaming operations within 

the State. We note the expansion of 

State lotteries and State licensed 

commercial gaming can place Tribes 

and States in direct competition for 

market share. 

Several commenters requested the 

Department include examples of 

previously approved ‘‘meaningful 

concessions,’’ similar to the lists found 

in § 293.23. 

The Department acknowledges the 

comments and notes these comments 

highlight the sensitive nature of revenue 

sharing in compacts. The Department 

declines to include a list of meaningful 

concessions as both the concession and 

the revenue sharing rate must be 

evaluated on a case-by-case basis. The 

Department has previously approved 

revenue sharing in exchange for 

meaningful concessions, including 

geographic exclusivity from Statelicensed gaming and statewide mobile 

or i-gaming exclusivity.24 The 

Department cautions parties not to 

negotiate for a future meaningful 

concession which may require 

intervening Federal or State actions as 

that concession may be considered 

illusory. 

A commenter requested carve out 

language for payments to local 

governments. The commenter argued 

that payments to local governments are 

consistent with IGRA’s restrictions on 

the use of net gaming revenue in section 

2710(b)(2)(B). The commenter argued 

Intergovernmental Agreements that 

include revenue sharing with local 

governments are beneficial to the 

relationship between the Tribe and local 

governments and help support critical 

needs of both governments. The 

commenter offered draft language 

establishing a test for such payments: 

• In considering whether a compact 

provision providing for the Tribe’s 

payment of gaming revenues to local 

governments is permissible, the 

Department may consider evidence 

submitted, at the insistence of the Tribe, 

that such a provision: 

Æ was created voluntarily by the 

Tribe; 

Æ is in exchange for benefits received 

by the Tribe; and/or 

Æ to offset the costs borne by such 

local governments as a result of the 

Tribe conducting its gaming activities. 

The Department acknowledges the 

comment. The Department declines to 

accept the proposed regulatory text as it 

may result in unintended consequences. 

The Department notes the proposed test 

is consistent with past Departmental 

review and approval of revenue sharing 

provisions that included payments to 

local governments. The Department also 

notes intergovernmental agreements 

between Tribes and States, or local 

governments can be beneficial; however, 

Congress provided a narrow scope of 

topics Tribes and States may include 

when negotiating a Tribal-State gaming 

compact. IGRA limits a Tribe’s use of 

gaming revenue to: funding Tribal 

governmental operations or programs; 

providing for the general welfare of the 

Tribe and its members; promoting Tribal 

economic development; donating to 

charitable organizations; or helping 

fund operations of local governmental 

agencies. 25 U.S.C. 2710(b)(2)(B). 

However, IGRA in section 2710(d)(4) 

prohibits the State or its political 

subdivisions from imposing a tax, fee, 

charge, or other assessment. The 

Department reads section 2710(b)(2)(B) 

of IGRA to permit a Tribe to voluntarily 

help fund operations of local 

governmental agencies, not as an endrun around the prohibition against 

imposed taxes, fees, charges, or other 

assessments in section 2710(d)(4). The 

Department included payments to local 

governments in §§ 293.4, 293.8, 293.27, 

and 293.29, of the final rule in an effort 

to address mandated intergovernmental 

agreements which may disguise 

improper taxes. 

Several commenters requested the 

Department clarify, either in the 

regulatory text or the preamble, that 

exclusivity provisions which contain 

enforceable remedial provisions (also 

referred to as ‘‘poison pill’’ provisions) 

triggered by State action are considered 

directly related to gaming and permitted 

under IGRA. 

The Department acknowledges the 

comments and notes that revenue 

sharing for geographic or game specific 

exclusivity from State sponsored or 

State licensed commercial gaming 

without enforceable remedial provisions 

can be considered illusory.25 The 

Department notes the ‘‘poison pill’’ 

provision must also comply with 

§ 293.23(c)(1). 

A commenter requested the 

Department cease its practice of 

approving ‘‘exclusivity compacts,’’ 

which limit commercial gaming 

operators’ access to some gaming 

markets. 

The Department acknowledges the 

comment and notes Tribal gaming under 

IGRA is a critical source of revenue for 

Tribal Governments. The compact 

negotiation process in IGRA envisions a 

negotiation between two sovereigns. 

IGRA prohibits a State from seeking to 

impose any tax, fee, charge, or other 

assessments on a Tribes conduct of 

gaming. The final rule in § 293.27 

addresses when it is appropriate for a 

compact to include revenue sharing 

provisions through which a State may 

also receive a source of governmental 

revenue. Alternatively, States may 

choose to license and tax commercial 

gaming operations within the State. We 

note the expansion of State lotteries and 

State licensed commercial gaming can 

place Tribes and States in direct 

competition for market share. 

A commenter requested that the 

Department define the term ‘‘projected 

revenue’’ because most compacts with 

revenue sharing call for the State to 

receive a percentage of gross revenue 

regardless of the costs required to 

develop, maintain, and regulate gaming 

activities. The commenter also asks the 

Department to analyze the need to 

distinguish ‘‘gross revenue’’ from ‘‘net 

revenue.’’ Another commenter 

requested the Department address ‘‘free 

play’’ and ‘‘point play’’ as part of the 

revenue calculation in the regulations. 

The Department acknowledges the 

comment but declines to define the 

terms or include a discussion of ‘‘free’’ 

or ‘‘point’’ play in the regulations in 

order to retain some flexibility in what 

evidence can be submitted. The IGRA 

sets a benchmark that requires the Tribe 


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26See, e.g., Letter from Gale Norton, Secretary of 

the Interior, to Cyrus Schindler, Nation President, 

Seneca Nation of Indians dated November 12, 2002, 

at 3; and Letter from Gale Norton, Secretary of the 

Interior, to Christobal ‘‘Chris’’ Severs, Chairperson, 

Pauma Band of Luiseno Mission Indians dated 

August 20, 2004, at 2; see also, Letter from Larry 

Echo Hawk, Assistant Secretary—Indian Affairs to 

Sherry Treppa, Chairperson, Habematolel Pomo of 

Upper Lake dated August 17, 2010. 

27See, e.g., Letter from Ada Deer, Assistant 

Secretary—Indian Affairs to Jeff Parker, 

Chairperson, Bay Mills Indian Community dated 

November 19, 1993, approving the 1993 Michigan 

Compact; Letter from Bryan Newland, Principal 

Deputy Assistant Secretary—Indian Affairs, to 

Robert Miguel, Chairman Ak-Chin Indian 

Community, dated May 21, 2021, at 2, discussing 

the Tribe-to-Tribe revenue sharing and gaming 

device leasing provisions. 

receive at least 60 percent of net 

revenue. The National Indian Gaming 

Commission relies on Sole Proprietary 

Interest and IGRA section 2710(b)(2)(A), 

consistent with sections 

2710(b)(4)(B)(III) and 2711(c), which 

collectively require that the Tribe 

receive at least 60 percent of net 

revenue. See, e.g., NIGC Bulletin No. 

2021–6. Section 293.27(b)(3) reinforces 

this requirement and set an upper limit 

for revenue sharing. The National 

Indian Gaming Commission’s 

regulations at 25 CFR 514.4(c) provide 

guidance on revenue calculation. 

One commenter requested the 

Department clarify if there is a 

difference between ‘‘great scrutiny’’ and 

‘‘strict scrutiny.’’ 

The Department acknowledges the 

comment. The Department’s description 

of its review of revenue sharing 

provisions has evolved over time. Some 

of the Department’s early revenue 

sharing decisions stated, ‘‘the 

Department has sharply limited the 

circumstances’’ of revenue sharing; that 

phrasing was replaced with ‘‘great 

scrutiny,’’ which is the standard 

adopted in these regulations.26

One commenter requested adding 

language to allow Tribes to request 

guidance from the Secretary regarding 

revenue sharing terms during the life of 

the compact to ensure the Tribe remains 

the primary beneficiary of gaming. The 

commenter provided draft language, 

which included adding several 

paragraphs to § 293.27. The proposed 

additional language would provide a 

process for Tribes to request guidance 

letters, including a formal legal opinion 

regarding revenue sharing during the 

life of the compact. The Department 

acknowledges the comments but 

declines to include the requested 

provisions in the final rule. The 

Department has long expressed concern 

with relatively high revenue sharing 

arrangements, often permitting 

compacts containing them to go into 

effect by operation of law while 

occasionally disapproving them. The 

Department’s understanding of revenue 

sharing provisions, as well as 

exclusivity provisions, has evolved 

consistent with case law and 

experiences of Tribes operating under 

differing revenue sharing provisions for 

more than 30 years. The Department has 

long offered, and will continue to offer, 

technical assistance—highlighting the 

Department’s precedents as well as 

observed best practices—to parties 

negotiating revenue sharing provisions. 

The Department notes that best 

practices include careful drafting of 

both the terms of the Tribe’s 

exclusivity—or other meaningful 

concession—along with remedies for 

breach and triggers for periodic 

renegotiation of specific provisions. 

A commenter requested the 

Department include carve out language 

for Tribe-to-Tribe revenue sharing but 

did not provide proposed regulatory 

text. 

The Department acknowledges the 

comment but declines to include a 

specific carveout for Tribe-to-Tribe 

revenue sharing. The Department notes 

there are several existing examples of 

compacts which contain a Statewide 

gaming market regulatory scheme and 

include Tribe-to-Tribe revenue sharing 

provisions to offset market disparities 

between urban and rural Tribes. These 

compacts are identical across the State 

or contain identical relevant provisions. 

The Department has consistently found 

these types of agreements consistent 

with IGRA.27

Comments on § 293.26—Which has 

been redesignated as § 293.28—May a 

compact or extension include 

provisions that limit the duration of the 

compact? 

The Department has redesignated 

proposed § 293.26 as § 293.28 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

Many commenters expressed support 

for the proposed § 293.28—especially 

regarding the Department’s preference 

for long-term compacts. The 

commenters noted compact negotiations 

are a time and resource intensive effort. 

The Department acknowledges the 

comments. 

Several commenters requested the 

Department define ‘‘long-term’’ and 

offered suggested minimum terms 

ranging from 15–20 years. 

The Department declines to define 

what a ‘‘long-term’’ compact is because 

that may have unintended 

consequences. 

Other commenters requested the 

Department allow flexibility for 

compacts with ‘‘stacked renewal terms,’’ 

which allow the compact to 

automatically renew for a defined 

period of time if neither party objects. 

Commenters also requested the 

Department include flexibility for 

reopener provisions. 

The Department acknowledges the 

comments and notes that § 293.28 

allows flexibility for ‘‘stacked renewal 

terms’’ or other duration provisions 

which meet the needs of the parties. The 

Department notes that a best practice 

includes triggers for periodic 

renegotiation of specific provisions, 

including adding games, adjusting for 

technological changes, and market 

conditions. 

A commenter believes that proposed 

§ 293.28 will needlessly limit compact 

negotiations, arguing that the proposed 

§ 293.28 is inconsistent with prior 

affirmative approvals of compacts with 

fixed termination dates. 

The Department acknowledges the 

comment and notes § 293.28 in the final 

rule allows for compacts with fixed 

termination dates. The Department 

notes the compact negotiation process 

can be lengthy and often requires a 

significant investment of resources. 

A commenter requested the 

Department clarify that the existence of 

a compact between a Tribe and the State 

does not alleviate the State’s obligation 

under IGRA to negotiate new compacts 

or amendments in good faith at the 

request of the Tribe, particularly for a 

period of time not covered by the 

existing compact. 

The Department acknowledges the 

comments. The Department notes IGRA 

at 25 U.S.C. 2710(d)(3)(A) obligates a 

State to negotiate with a Tribe in good 

faith at the request of the Tribe. The 

existence of a compact does not absolve 

the State of its duty under IGRA. 

Comments on Proposed § 293.27—May 

a compact or amendment permit a Tribe 

to engage in any form of class III gaming 

activity? 

Several commenters expressed 

support for the proposed § 293.27. 

Commenters noted that the proposed 

§ 293.27 is consistent with existing case 

law, citing to Mashantucket Pequot 

Tribe v. Connecticut, 913 F. 2d 1024 (2d 

Cir. 1990), which the commenter 

described as holding that Congress 

intended to codify the test set out in 

California v. Cabazon Band of Mission 

Indians, 480 U.S. 202 (1987). According 

to these commenters, the Second Circuit 

concluded in the Mashantucket Pequot 

case that when Congress used the 

phrase ‘‘permits such gaming’’ in IGRA, 


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Congress categorically refers to class III 

gaming. Commenters also opined this 

rule would benefit Tribes during 

compact negotiations. 

The Department acknowledges the 

comments and, after further 

consideration and review of all 

comments, the Department declines to 

adopt proposed § 293.27 in the final 

rule. 

Several commenters request that the 

Department provide additional analysis 

of the Department’s interpretation of 

conflicting caselaw to bolster proposed 

§ 293.27 against expected litigation. 

The Department acknowledges the 

comments, and after further 

consideration, the Department declines 

to adopt proposed § 293.27 in the final 

rule. 

Several commenters are concerned 

the proposed § 293.27 would take away 

States’ power to limit class III gaming. 

Commenters argued that a State’s 

allowance of charitable casino nights 

should not necessarily result in full 

blown casino gambling under IGRA. 

Others misconstrued the proposed 

§ 293.27 as requiring a State to negotiate 

over forms of gaming expressly 

prohibited by State law. Commenters 

also noted proposed § 293.27 conflicts 

with some caselaw, citing to Rumsey 

Indian Rancheria of Wintun Indians v. 

Wilson, 64 F. 3d 1250 (9th Cir. 1994) 

and Cheyenne River Sioux Tribe v. 

South Dakota, 3 F. 3d 273 (8th Cir. 

1993). 

The Department acknowledges the 

comments, and after further 

consideration, the Department declines 

to adopt proposed § 293.27 in the final 

rule. 

One commenter argued that the 

proposed § 293.27 impermissibly 

expands the scope of the Secretary’s 

review of a compact to include the 

compact negotiation process. The 

Department acknowledges the 

comments, and after further 

consideration, the Department declines 

to adopt proposed § 293.27 in the final 

rule. 

Comments on § 293.28—Which has 

been redesignated as § 293.29—May any 

other contract outside of a compact 

regulate Indian gaming? 

The Department has redesignated 

proposed § 293.28 as § 293.29 in the 

final rule. Comments have been edited 

to reflect the new section number in the 

final rule. 

Several commenters expressed 

support for proposed § 293.29. 

Commenters requested that the 

Department include internal cross 

references to § 293.4 and § 293.8, as well 

as make clarifying edits for consistency 

across the proposed rule. 

The Department acknowledges the 

comments and has made edits for clarity 

and consistency in the final rule and has 

included in § 293.29 cross references to 

§ 293.4 and § 293.8. 

One commenter requested clarity as to 

what agreements the Department may 

consider as regulating gaming, thus 

triggering § 293.29. The commenter also 

requested the Department clarify that 

agreements addressing public health 

and safety are allowable as either a 

separate agreement, or as part of the 

compact. 

The Department acknowledges the 

comment. The final rule in §§ 293.4, 

293.8, and 293.29 provide guidance on 

what types of agreements the 

Department is addressing. IGRA 

establishes a limited scope of 

appropriate topics in a Tribal-State 

gaming compact. Thus, in reviewing 

submitted compacts and amendments, 

the Secretary is vested with the 

authority to determine whether the 

compacts contain topics outside IGRA’s 

limited scope. Agreements that do not 

regulate gaming do not need to be 

submitted to the Department for 

approval as part of a Tribal-State gaming 

compact. Likewise, agreements between 

Tribes and the State and/or local 

governments that facilitate cooperation 

and good governance, but that do not 

regulate gaming, limit a Tribe’s use and 

enjoyment of its lands, or require 

payment of gaming revenue to local 

governments, should not be 

incorporated into or referenced as a 

requirement of a Tribal-State gaming 

compact. 

Several commenters objected to 

proposed § 293.29 and argued that it 

exceeds the Secretary’s authority to 

review compacts under IGRA. The 

commenters argue that many Tribes 

have intergovernmental agreements 

with local governments that address a 

wide range of topics which may affect 

a Tribe’s gaming operation. The 

commenters argue that such agreements 

should not be subject to Secretarial 

Review as compacts or amendments 

under IGRA. 

The Department acknowledges the 

comments and notes that § 293.29 has 

been revised to clarify that only 

agreements between Tribes and States, 

or States’ political subdivisions, which 

govern gaming and include payments 

from gaming revenue, are covered by 

this section. In enacting IGRA, Congress 

delegated authority to the Secretary to 

review compacts and ensure that they 

comply with IGRA, other provisions of 

Federal law that do not relate to 

jurisdiction over gaming on Indian 

lands, and the trust obligations of the 

United States. 25 U.S.C. 

2710(d)(8)(B)(i)–(iii). IGRA establishes a 

limited scope of appropriate topics in a 

Tribal-State gaming compact. Thus, in 

reviewing submitted compacts and 

amendments, the Secretary is vested 

with the authority to determine whether 

the compacts contain topics outside 

IGRA’s limited scope. IGRA limits a 

Tribe’s use of gaming revenue to: 

funding Tribal governmental operations 

or programs; providing for the general 

welfare of the Tribe and its members; 

promoting Tribal economic 

development; donating to charitable 

organizations; or helping fund 

operations of local governmental 

agencies. 25 U.S.C. 2710(b)(2)(B). 

However, IGRA in section 2710(d)(4) 

prohibits the State or its political 

subdivisions from imposing a tax, fee, 

charge, or other assessment. The 

Department reads section 2710(b)(2)(B) 

to permit a Tribe to voluntarily help 

fund operations of local governmental 

agencies, not as an end-run around the 

prohibition against imposed taxes, fees, 

charges, or other assessments in section 

2710(d)(4). Agreements that do not 

regulate gaming do not need to be 

submitted to the Department for 

approval as part of a Tribal-State gaming 

compact. Likewise, agreements between 

Tribes and the State and/or local 

governments that facilitate cooperation 

and good governance, but that do not 

regulate gaming or require payment of 

gaming revenue to local governments, 

should not be incorporated into or 

referenced as a requirement of a TribalState gaming compact. 

Comments on § 293.30—What effect 

does this part have on pending requests, 

final agency decisions already issued, 

and future requests? 

Several commenters expressed 

support for proposed § 293.30. 

The Department acknowledges the 

comments. 

A commenter requested that this 

regulation include a grandfather clause 

for currently valid compacts. 

The Department acknowledges the 

comment and notes the final rule in 

§ 293.30(b) contains a grandfather clause 

and states that part 293 does not alter 

final agency decisions made pursuant to 

this part before March 22, 2024. 

Comments on § 293.31—How does the 

Paperwork Reduction Act affect this 

part? 

No comments were submitted 

regarding proposed § 293.30. 


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General Comments Not Otherwise 

Addressed Above 

Various commenters requested more 

time to comment on the regulations. 

The Department acknowledges the 

comment and notes that the Department 

issued a Dear Tribal Leaders letter with 

an attached Consultation Draft of 

Proposed Changes to part 293 on March 

28, 2022. The letter and Consultation 

Draft were made publicly available on 

the Department’s website at https://

www.bia.gov/as-ia/oig. The Department 

then held two listening sessions, four 

formal consultation sessions, and 

accepted written comments until June 

30, 2022. The Department incorporated 

Tribal feedback into the proposed rule 

and included a summary and responded 

to comments received during Tribal 

Consultation in the Department’s Notice 

of proposed rulemaking. Additionally, 

the Department published a follow up 

Dear Tribal Leaders letter on December 

6, 2022, held two virtual consultation 

sessions and one in-person consultation, 

and accepted written comments until 

March 1, 2023. The Department 

received written and verbal comments 

from over 56 entities during the public 

comment period on part 293. 

Commenters included members of 

Congress; Tribal, State, and local 

governments; Tribal and commercial 

gaming industry organizations; and 

individual citizens. In total, the 

submissions were separated into 607 

individual comments. 

Many Tribes commented to express 

appreciation for the hard work and 

consideration exhibited in the Notice of 

proposed rulemaking. Many Tribes also 

stated the Proposed Regulations are a 

step in the right direction, but do not go 

far enough to protect Tribal sovereignty 

and Indian gaming. 

The Department acknowledges the 

comments. 

Some non-Tribal commenters 

commented to discourage any allowance 

of Indian gaming. 

The Department acknowledges the 

comments and notes IGRA provides 

statutory limits on Tribes’ sovereign 

right to conduct gaming. 

One commenter requested the 

Department publish a gaming handbook. 

The Department is in the process of 

finalizing a handbook addressing the 

Department’s part 292 regulations (25 

CFR part 292), which implement IGRA’s 

exceptions to its general prohibition on 

the conduct of gaming on lands 

acquired in trust after October 17, 1988, 

and revisions to the fee-to-trust 

regulations in part 151. The 

Department’s part 292 regulations were 

promulgated in 2008 and are not 

impacted by this rule making or the 

Department’s part 151 rulemaking. 

Several commenters stated the 

process was not transparent and that 

Tribes received unfair special treatment. 

They suggest releasing detailed records 

of Tribal comments from June 2022. 

Some commenters asked if the 

Department had engaged with 

commercial gaming interests in addition 

to Tribal governments during the 

development of the proposed rule. 

The Department followed the 

procedures outlined in the 

Administrative Procedure Act at 5 

U.S.C. 553, 556, and 557, as well as 

relevant White House, Congressional, 

and Departmental policies on Tribal 

consultations. The Department’s part 

293 regulations address the Tribal-State 

gaming compact review and approval 

process. The Department’s Notice of 

proposed rulemaking contained a 

detailed summary and response to 

comments received during the Tribal 

Consultation process. The Department 

also posted a copy of the Tribal 

Consultation materials on the BIA’s 

public Tribal-Consultations website, 

including a copy of the Dear Tribal 

Leader Letter, consultation dates, and 

transcripts of the consultation sessions. 

See https://www.bia.gov/service/tribalconsultations/nprm-25-cfr-151-landacquisitions-and-25-cfr-293-class-iiitribal. 

One commenter requested a process 

for Tribes to seek Department of Justice 

intervention as part of a Seminole fix. 

The Department declines to adopt a 

formal codification of its practice of 

providing technical assistance to Tribes 

and States. The Department will 

continue to coordinate with the 

Department of Justice and the National 

Indian Gaming Commission regarding 

enforcement of IGRA. 

Some Tribes believe that the proposed 

changes to part 293 will be hollow 

without changes to part 291. 

The Department notes that a minority 

of Federal circuits have invalidated the 

Department’s part 291 regulations (25 

CFR part 291), which were promulgated 

to provide Tribes with Secretarial 

Procedures in response to the Supreme 

Court’s decision in Seminole Tribe of 

Florida v. Florida, 517 U.S. 44 (1996), 

which found that Congress lacked the 

authority to subject States to suits by 

Indian Tribes under IGRA. The 

Department is considering all avenues, 

including technical amendments to part 

291. The proposed rule reflects the 

Department’s efforts to ensure all Tribes 

benefit from the goals of IGRA, while 

enforcing IGRA’s limited scope of 

compacts. The inclusion of clear 

guidance and codification of key tests is 

a step in this direction. The Department 

declines to codify a formal process by 

which Tribes may submit evidence of 

bad faith in negotiations to the 

Department for its consideration and 

referral to the Department of Justice. 

The Department has long coordinated 

with the Department of Justice and the 

National Indian Gaming Commission 

regarding enforcement or nonenforcement of IGRA’s requirement that 

a Tribe conduct class III gaming 

pursuant to a compact or secretarial 

procedures. See, e.g., Statement of 

Indian Gaming in New Mexico, DOJ 95– 

459 (August 28, 1995); Statement of 

Indian Gaming in New Mexico, DOJ 95– 

553 (October 27, 1995); and Justice 

Department and California announce 

plan for orderly transition to legal 

Indian Gaming, DOJ 98–102 (March 6, 

1998). The Department will continue to 

coordinate with the Department of 

Justice and the National Indian Gaming 

Commission regarding enforcement of 

IGRA. 

Some non-Tribal commenters believe 

the Department has failed to conduct a 

detailed review of the economic effects 

of the proposed rule despite being 

required to conduct one under the law. 

Additionally, these commenters believe 

a NEPA analysis must be undertaken 

before adopting a final rule. 

The Department acknowledges the 

comments and notes that the final rule 

codifies existing case law and 

Departmental process. The Department 

notes comments suggesting specific 

economic impacts of the proposed rule 

contained material misrepresentations 

of the effect of the proposed rule and 

conflated the Department’s part 293 

rulemaking with the Department’s part 

151 fee-to-trust rulemaking efforts as 

part of the assessment of economic 

impacts of the rule (25 CFR part 151). 

The Department also notes that the 

notice of proposed rulemaking 

addressed the Department’s compliance 

with NEPA. 

One commenter believes the 

Department is asserting too much 

authority in a way that challenges Tribal 

sovereignty. 

The Department acknowledges the 

comment and notes that the Department 

strives to strengthen its government-togovernment relationship with Tribes 

and recognizes their right to selfgovernance and Tribal sovereignty. 

Several commenters asked various 

process and implementation questions. 

Other commenters included comments 

addressing the Department’s part 151 

fee-to-trust rulemaking efforts. 

The Department addressed the 

comments on the proposed 25 CFR part 

151 in the part 151 rulemaking 


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28See, e.g., Letter to the Honorable Peter S. 

Yucupicio, Chairman, Pascua Yaqui Tribe of 

Arizona, from the Director, Office of Indian Gaming, 

dated June 15, 2012, at 5, and fn. 9, discussing the 

American Recovery & Reinvestment Act of 2009 

and the IRS’s ‘‘safe harbor’’ language. 

published December 12, 2023, at 88 FR 

86222. 

V. Summary of Changes by Section 

The Department primarily proposed 

technical amendments to the existing 

process-based regulations, including the 

title. The proposed technical 

amendments are intended to clarify the 

submission and review process and 

conforming edits for internal 

consistency and improved readability. 

The Department also proposed to add 15 

sections addressing substantive issues 

and to organize part 293 into 4 subparts. 

The Department proposed to amend the 

title of part 293 by removing the word 

‘‘process’’ from the title to read: ‘‘Part 

293 Class III Tribal State Gaming 

Compacts.’’ The Department’s proposed 

amendments incorporated comments on 

the Consultation Draft that were 

received during Tribal consultation and 

were discussed in the notice of 

proposed rulemaking. The Department 

makes these changes in the final rule. 

The final rule incorporates comments 

received during the public comment 

period and during Tribal consultation 

on the proposed rule, and as discussed 

above in the summary and response to 

comments section. 

A. Subpart A—General Provisions and 

Scope 

The Department proposed to organize 

part 293 into 4 subparts with subpart A, 

titled ‘‘General Provisions and Scope’’ 

containing §§ 293.1 through 293.5. The 

Department implements this 

organizational change in the final rule. 

Amendments to § 293.1—What is the 

purpose of this part? 

The Department proposed technical 

amendments to clarify that the proposed 

part 293 regulations contain both 

procedural and substantive regulations 

for the submission and review of TribalState gaming compacts. The Department 

implements this change in the final rule 

with additional clarifying edits to 

improve readability. 

Amendments to § 293.2—How are key 

terms defined in this part? 

The Department proposed 

restructuring the existing § 293.2 by 

removing the subsection paragraph for 

the introductory sentence and editing 

that sentence for clarity. The 

restructuring improves clarity by using 

subsection paragraphs for each defined 

term. The Department proposed edits to 

the existing definitions for Amendment, 

Compact or Tribal-State Gaming 

Compact, and Extension to improve 

clarity and respond to comments 

received during the government-togovernment Tribal consultation process. 

The Department also proposed seven 

new definitions: gaming activity or 

gaming activities, gaming facility, 

gaming spaces, IGRA, meaningful 

concession, substantial economic 

benefit, and Tribe. The Department 

implements these changes in the final 

rule with additional clarifying edits in 

response to comments received during 

the public comment period. Each 

defined term is discussed below: 

• Amendment is a defined term in the 

2008 Regulations. The Department 

proposed a clarifying revision to the 

definition, as well as adding a new 

§ 293.2(a)(2) addressing agreements 

between a Tribe and a State to change 

the Tribe’s Secretarial Procedures 

prescribed under 25 U.S.C. 

2710(d)(7)(B)(vii). The Department 

implements these changes in the final 

rule. 

• Compact or Tribal-State Gaming 

Compact is a defined term in the 2008 

Regulations. The Department proposed 

clarifying and conforming edits to the 

definition. The Department implements 

these changes in the final rule. 

• Extension is a defined term in the 

2008 Regulations. The Department 

proposed clarifying and conforming 

edits to the definition. The Department 

implements these changes in the final 

rule. 

• Gaming activity or gaming activities 

are interchangeable terms repeatedly 

used in IGRA, but not defined by IGRA 

or the Department’s 2008 Regulations. 

The Department proposed defining 

these terms as used in part 293 and in 

Tribal-State gaming compacts as, ‘‘the 

conduct of class III gaming involving the 

three required elements of chance, 

consideration, and prize.’’ The 

Department includes this definition in 

the final rule. 

• Gaming Facility is a term used in 

IGRA at 25 U.S.C. 2710(d)(3)(C)(vi) but 

is not defined by IGRA. The IGRA 

permits a compact to include ‘‘standards 

for the operation of such activity and 

maintenance of the gaming facility, 

including licensing.’’ As a result, 

compacting parties have occasionally 

used this provision to extend State 

regulatory standards beyond the 

maintenance and licensing of the 

physical structure where the Tribe is 

conducting gaming. The Department 

proposed defining gaming facility as 

‘‘the physical building or structure 

situated on Indian lands where the 

gaming activity occurs.’’ 28 This 

definition of gaming facility addresses 

building maintenance and licensing 

under the second clause of 25 U.S.C. 

2710(d)(3)(C)(vi) and is intended to be 

narrowly applied to only the building or 

structure where the gaming activity 

occurs. The Department includes this 

definition in the final rule. 

• Gaming spaces is a term that the 

Department has used to clarify the 

physical spaces a compact may regulate. 

The Department proposed defining 

Gaming Spaces in the proposed rule and 

notes that proposed definition 

contained a typographical error. The 

Department includes Gaming Spaces as 

a defined term in the final rule with 

edits to correct the typographical error. 

• IGRA is the commonly used 

acronym for the Indian Gaming 

Regulatory Act of 1988 (Pub. L. 100– 

497) 102 Stat. 2467 dated October 17, 

1988, (Codified at 25 U.S.C. 2701–2721 

(1988)) and any amendments. The 

Department proposed including IGRA as 

a defined term to facilitate consistency 

and readability in the regulations. The 

Department includes this definition in 

the final rule. 

• Meaningful concession is a term 

that the Department has adopted from 

Ninth Circuit case law as part of the 

Department’s long-standing test for 

revenue sharing provisions. The 

Department proposed including 

meaningful concession as a defined 

term. The Department includes 

meaningful concession as a defined 

term. The Department revised the 

definition of meaningful concession in 

§ 293.2(h)(2) of the final rule by adding 

the word ‘‘activity’’ in response to 

comments received on the proposed 

rule. The final rule defines Meaningful 

concession as: 

Æ Something of value to the Tribe; 

Æ Directly related to gaming activity; 

Æ Something that carries out the 

purposes of IGRA; and 

Æ Not a subject over which a State is 

otherwise obligated to negotiate under 

IGRA. 

• Substantial economic benefit is a 

term that the Department has adopted 

from Ninth Circuit case law as part of 

the Department’s long-standing test for 

revenue sharing provisions. The 

Department proposed (and includes in 

the final rule) defining substantial 

economic benefit as: 

Æ A beneficial impact to the Tribe; 

Æ Resulting from a meaningful 

concession; 

Æ Made with a Tribe’s economic 

circumstances in mind; 

Æ Spans the life of the compact; and 


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29See, e.g., final rule, 25 CFR part 293, 73 FR 

74004, 74007 (Dec. 5, 2008). 

Æ Demonstrated by an economic/ 

market analysis or similar 

documentation submitted by the Tribe 

or the State. 

• Tribe is a term the Department 

proposed as a defined term to facilitate 

consistency and readability in the 

regulations. The Department includes 

this definition in the final rule. 

Amendments to § 293.3—What 

authority does the Secretary have to 

approve or disapprove compacts and 

amendments? 

The Department proposed clarifying 

and conforming edits to the existing 

§ 293.3. The Department implements 

these changes in the final rule and has 

added the phrase ‘‘under IGRA’’ to the 

first sentence of § 293.3. 

Amendments to § 293.4—Are compacts 

and amendments subject to review and 

approval? 

The Department proposed clarifying 

edits to the existing § 293.4 by 

combining paragraphs (a) and (b) from 

the 2008 Regulations into a new 

paragraph (a), adding a new paragraph 

(b) which was proposed during Tribal 

consultation, and adding a new 

paragraph (c) which creates a process by 

which the parties may seek a 

determination if an agreement or other 

documentation is a ‘‘compact or 

amendment’’ without submitting that 

agreement for review and approval 

pursuant to IGRA. This process is 

modeled on the National Indian Gaming 

Commission’s practice of issuing 

declination letters for agreements which 

do not trigger the Chairman’s review 

and approval of management contracts 

as required by IGRA at 25 U.S.C. 2711. 

The Department implements these 

changes in the final rule with additional 

clarifying edits in response to comments 

received during the public comment 

period. These revisions include changes 

to the sentence structure in § 293.4(b)(1) 

through (4) for improved clarity 

including duplicative phrasing and 

starting each subsection sentence with a 

verb, and revisions to § 293.4(c) to 

clarify when the 30-day review period 

begins. The Department has also revised 

the timeline for a § 293.4(c) 

determination from 60 days to 30 days 

in response to comments received, and 

for consistency with 25 CFR 84.005, 

which implements the Departments 

review of ‘‘section 81’’ contracts. The 

Department has also included a 

clarification that if an agreement is 

determined to be a compact or 

amendment, it must be resubmitted for 

Secretarial review and approval. 

Amendments to § 293.5—Are extensions 

to compacts subject to review and 

approval? 

The Department proposed clarifying 

and conforming edits for consistency 

and readability to the existing § 293.5. 

The Department also proposed adding a 

sentence which codifies the 

Department’s long-standing practice that 

notice of an extension must be 

published in the Federal Register to be 

in effect.29 The Department implements 

these changes in the final rule with a 

conforming edit to the citation to 

§ 293.8(a) through (c). 

B. Proposed Subpart B—Submission of 

Tribal-State Gaming Compacts 

The Department proposed to organize 

part 293 into 4 subparts with subpart B, 

titled ‘‘Submission of Tribal-State 

Gaming Compacts’’ containing §§ 293.6 

through 293.9. The Department 

implements this organizational change 

in the final rule. 

Amendments to § 293.6—Who can 

submit a compact or amendment? 

The Department proposed a 

conforming edit for consistency to 

§ 293.6. The Department implements 

this change in the final rule. 

Amendments to § 293.7—When should 

the Tribe or State submit a compact or 

amendment for review and approval? 

The Department proposed conforming 

edits for consistency to both the heading 

and the body of § 293.7. The Department 

implements these changes in the final 

rule. 

Amendments to § 293.8—What 

documents must be submitted with a 

compact or amendment? 

The Department proposed conforming 

edits for consistency to § 293.8. 

Additionally, the Department proposed 

to renumber the existing paragraphs and 

add a new paragraph (d). The proposed 

paragraph (d) clarifies that a compact 

submission package should include any 

agreements between the Tribe and the 

State, or its political subdivisions, 

which are required by the compact or 

amendment and either involve 

payments made by the Tribe from 

gaming revenue, or restricts or regulates 

the Tribe’s use and enjoyment of its 

Indian lands, as well as any ancillary 

agreements, documents, ordinances, or 

laws required by the compact which the 

Tribe determines is relevant to the 

Secretary’s review. The Department’s 

review of the compact includes 

analyzing if the provision(s) requiring 

ancillary agreements, documents, 

ordinances, or laws violate IGRA or 

other Federal law because the 

underlying agreement includes 

provisions prohibited by IGRA, and 

therefore the Secretary may disapprove 

the compact. 

The Department incorporates the 

proposed changes to § 293.8 with 

additional clarifying and conforming 

edits in the final rule. 

Amendments to § 293.9—Where should 

a compact or amendment be submitted 

for review and approval? 

The Department proposed conforming 

edits for consistency to § 293.9 and a 

proposed new sentence to permit 

electronic submission of compacts. The 

Office of Indian Gaming will accept and 

date stamp electronic submissions for 

the purpose of initiating the 45-day 

review period. The first copy of a 

compact or amendment that is received 

and date stamped initiates the 45-day 

review period. The Department notes, 

however, that § 293.8(a) requires 

submission of at least one original paper 

copy of the fully executed compact or 

amendment if the compact or 

amendment was submitted 

electronically and the compact or 

amendment was executed utilizing 

‘‘wet’’ or ink signatures. The 

Department will accept digitally signed 

original copies provided digital 

signatures are consistent with 

applicable Tribal and State law. The 

Department implements these changes 

in the final rule. 

C. Proposed Subpart C—Secretarial 

Review of Tribal-State Gaming 

Compacts 

The Department proposed to organize 

part 293 into 4 subparts with subpart C, 

titled ‘‘Secretarial Review of Tribal-State 

Gaming Compacts’’ containing §§ 293.10 

through 293.16. The proposed change 

included renumbering the existing 

§ 293.14 When may the Secretary 

disapprove a compact or amendment? 

as § 293.16; renumbering and renaming 

the existing § 293.15 When does an 

approved or considered-to-have-beenapproved compact or amendment take 

effect? as § 293.14 When does a compact 

or amendment take effect?; and adding 

a new § 293.15 Is the Secretary required 

to disapprove a compact or amendment 

that violates IGRA?. The Department 

implements these organizational 

changes in the final rule. The 

Department after further consideration 

declines to adopt proposed § 293.15 in 

the final rule. The existing § 293.14 

When may the Secretary disapprove a 

compact or amendment? is redesignated 

as § 293.15 in the final rule. 


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Amendments to § 293.10—How long 

will the Secretary take to review a 

compact or amendment? 

The Department proposed a 

conforming edit to § 293.10 for 

consistency. The Department 

implements this change in the final rule. 

Amendments to § 293.11—When will 

the 45-day timeline begin? 

The Department proposed conforming 

edits to § 293.11 for consistency with 

proposed changes to § 293.9, and a new 

sentence providing the Department will 

provide an email acknowledgement to 

the Tribe and the State of receipt and 

provide the date of the 45th day for 

electronically submitted compacts or 

amendments. The Department 

implements these changes, along with 

clarifying edits to § 293.11, in the final 

rule. 

Amendments to § 293.12—What 

happens if the Secretary does not act on 

the compact or amendment within the 

45-day review period? 

The Department proposed clarifying 

edits to § 293.12 for consistency and 

readability. Additionally, the 

Department proposed a new provision 

codifying the Department’s practice of 

issuing ministerial letters that inform 

the parties that the compact or 

amendment has been approved by 

operation of law after the 45th day. The 

proposed § 293.12, also codifies the 

Department’s practice of occasionally 

including guidance to the parties, 

reflecting the Department’s 

interpretation of IGRA—also known as 

‘‘Deemed Approved’’ Letters. The 

Department implements these changes 

in the final rule. 

Amendments to § 293.13—Who can 

withdraw a compact or amendment after 

it has been received by the Secretary? 

The Department proposed conforming 

edits to § 293.13 for consistency. The 

Department implements these changes 

in the final rule. 

Amendments to § 293.14—When does a 

compact or amendment that is 

affirmatively approved or approved by 

operation of law take effect? 

The Department proposed 

redesignating the existing § 293.15 as 

§ 293.14 to improve overall organization 

of the regulations. The Department also 

proposed clarifying and conforming 

edits for consistency and readability to 

both the heading and the body of 

§ 293.14. The Department implements 

these changes in the final rule. 

§ 293.15—When may the Secretary 

disapprove a compact or amendment? 

The Department proposed 

redesignating and restructuring the 

existing § 293.14 as § 293.16 to improve 

the overall organization of the 

regulations, for the reasons stated above 

it is designated as § 293.15 in the final 

rule. Additionally, the Department 

proposed to renumber the existing 

paragraphs and add a new paragraph 

(b). The proposed paragraph (b) would 

clarify that if a compact submission 

package is missing the documents 

required by § 293.8 and the parties 

decline to cure the deficiency, the 

Secretary may conclude that the 

compact or amendment was not 

‘‘entered into’’ by the Tribe and State as 

required by IGRA, 25 U.S.C. 

2710(d)(1)(C) and will disapprove the 

compact or amendment on that basis. 

See, e.g., Pueblo of Santa Ana v. Kelly, 

104 F.3d 1546, 1555 (10th Cir. 1997) (a 

compact or amendment must have been 

‘‘validly entered into’’ before it can go 

into effect through Secretarial approval). 

The Department notes this is a change 

from an earlier practice of ‘‘returning’’ 

incomplete compact submission 

packages. The Department has 

reconsidered this practice so as to better 

fulfill Congress’s goal of avoiding 

unnecessary delay in the Secretary’s 

review process. If the Department 

cannot determine, based on the lack of 

documentation, that the compact was 

validly entered into, then approval— 

affirmative or by operation of law— 

exceeds the Secretary’s authority. The 

Department implements these changes 

in the final rule, and in response to 

comments received has added clarifying 

language stating it provided the parties 

with an opportunity to supply those 

documents, the Secretary may conclude 

the compact or amendment was not 

validly entered into between the Tribe 

and the State and will disapprove the 

compact or amendment on those 

grounds. 

D. Proposed Subpart D—Scope of 

Tribal-State Gaming Compacts 

The Department proposed to organize 

part 293 into 4 subparts with subpart D, 

titled ‘‘Scope of Tribal-State Gaming 

Compacts’’ containing §§ 293.17 

through 293.31. The Department 

proposed substantive provisions that 

address the appropriate scope of a 

compact under IGRA. These provisions 

continue the question-and-answer 

approach utilized in the existing 

regulations. These provisions codify 

existing Departmental practice and 

provide compacting parties with clear 

guidance on the appropriate scope of 

compact negotiations. The Department 

implements this organizational change, 

and consistent with the proposed rule, 

codifies the new substantive provisions 

in the final rule. These provisions are 

renumbered in the final rule consistent 

with the removal of § 293.15. 

In response to comments received on 

the proposed rule, the Department has 

added two new sections in the final 

rule. The first is numbered § 293.24 and 

addresses rights of employees. The 

second is numbered § 293.25 and 

addresses licensing of employees. The 

Department also redesignated proposed 

§ 293.29 as § 293.26. Proposed §§ 293.25 

and 293.26 have been redesignated in 

the final rule as §§ 293.27 and 293.28 

respectively. The Department after 

further consideration declines to adopt 

proposed § 293.27 in the final rule. 

Proposed § 293.28 has been 

redesignated in the final rule as § 2 

93.29. Proposed §§ 293.30 and 293.31 

retain these section numbers in the final 

rule. The Department makes this 

organizational change so that two 

provisions courts have determined are 

‘‘directly related to the operation of 

gaming activities’’ are positioned with 

the Department’s other sections 

addressing 25 U.S.C. 2710(d)(3)(C)(vii). 

The new § 293.24 titled ‘‘May a compact 

or amendment include provisions 

addressing rights of employees?’’ 

codifies case law and the Department’s 

precedent that a compact may include 

provisions addressing rights of 

employees that have a direct connection 

to the operation of gaming activity. The 

new § 293.25 titled ‘‘May a compact or 

amendment include provisions 

addressing employee licensing?’’ 

clarifies, consistent with IGRA and the 

National Indian Gaming Commission’s 

regulations, that compacts may include 

provisions addressing employee 

licensing. The redesignated § 293.26 

titled ‘‘May a compact or amendment 

include provisions addressing Statewide 

remote wagering or internet gaming?’’ 

consistent with West Flagler, codifies 

the Department’s positions that the 

negotiation between a Tribe and State 

over Statewide remote wagering or igaming falls under these broad 

categories of criminal and civil 

jurisdiction and is inherently directly 

related to the operation of gaming. 

§ 293.16—May a compact include 

provisions addressing the application of 

the Tribe’s or State’s criminal and civil 

laws and regulations? 

The Department has redesignated 

proposed § 293.17 as § 293.16 in the 

final rule for the reasons explained 

above in the summary of changes to 


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subpart D. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.16, clarifying the appropriate 

scope of terms that address the 

application of the criminal and civil 

laws and regulations in a compact. 

Congress, through IGRA at 25 U.S.C. 

2710(d)(3)(C)(i), provided that, to the 

extent permitted by law, a compact may 

include provisions addressing the 

application of criminal and civil laws 

and regulations of the Tribe or the State 

that are directly related to, and 

necessary for, the licensing and 

regulation of the gaming activity. The 

Department codifies § 293.16 in the final 

rule with an edit to the reference to 

§ 293.8 for constancy with revisions 

made to that section. 

§ 293.17—May a compact include 

provisions addressing the allocation of 

criminal and civil jurisdiction between 

the Tribe and the State? 

The Department has redesignated 

proposed § 293.18 as § 293.17 in the 

final rule for the reasons explained 

above in the summary of changes to 

subpart D. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.17, clarifying the appropriate 

scope of terms addressing the allocation 

of Tribal and State criminal and civil 

jurisdiction in a compact. Congress, 

through IGRA at 25 U.S.C. 2701(5), 

found that ‘‘[T]ribes have the exclusive 

right to regulate gaming activity on 

Indian lands if the gaming activity is not 

specifically prohibited by Federal law 

and is conducted within a State which 

does not, as a matter of criminal law and 

public policy, prohibit such gaming 

activity.’’ Congress then provided that a 

compact may include provisions 

addressing the allocation of criminal 

and civil jurisdiction between the Tribe 

and the State that are necessary for the 

enforcement of laws and regulations 

described in section 2710(d)(3)(C)(ii). 

We note that a compact or compact 

amendment may not, however, alter 

otherwise applicable Federal law. The 

Department codifies § 293.17 in the final 

rule with conforming edits to the title 

and text for consistency with other 

provisions in part 293. 

§ 293.18—May a compact include 

provisions addressing the State’s costs 

for regulating gaming activities? 

The Department has redesignated 

proposed § 293.19 as § 293.18 in the 

final rule for the reasons explained 

above in the summary of changes to 

subpart D. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.18, clarifying the appropriate 

scope of assessments by the State to 

defray the costs of regulating the Tribe’s 

gaming activity. Congress, through IGRA 

at 25 U.S.C. 2710(d)(3)(C)(iii), provided 

that a compact may include provisions 

relating to the assessment by the State 

of the gaming activity in amounts 

necessary to defray the costs of 

regulating the gaming activity. Congress, 

through IGRA at 25 U.S.C. 2710(d)(4), 

clarified that any assessments must be 

negotiated, and at no point may a State 

or its political subdivisions impose any 

taxes, fees, charges, or other assessments 

upon a Tribe through the compact 

negotiations. The Department’s 

proposed new section clarifies that the 

compact should include requirements 

for the State to show actual and 

reasonable expenses over the life of the 

compact, and that the absence of such 

provisions may be considered evidence 

of a violation of IGRA. The Department 

codifies § 293.18 in the final rule, and 

in response to comments received has 

added the phrase ‘‘the lack of such a 

requirement shall be’’ to the final 

sentence of § 293.18. 

§ 293.19—May a compact include 

provisions addressing the Tribe’s 

taxation of gaming? 

The Department has redesignated 

proposed § 293.20 as § 293.19 in the 

final rule for the reasons explained 

above in the summary of changes to 

subpart D. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.19 clarifying the appropriate scope 

of provisions that address a Tribe’s 

taxation of tribally licensed gaming 

activity. Congress, through IGRA at 25 

U.S.C. 2710(d)(3)(C)(iv), provided that a 

compact may include provisions 

relating to the Tribe’s taxation of gaming 

activities in amounts comparable to the 

State’s taxation of gambling. A TribalState gaming compact may not be used 

to address the Tribe’s taxation of other 

activities that may occur within or near 

the Tribe’s gaming facility. The 

inclusion of provisions addressing the 

Tribe’s taxation of other activities may 

be considered evidence of a violation of 

IGRA. The Department codifies § 293.19 

in the final rule with a conforming edit. 

§ 293.20—May a compact or amendment 

include provisions addressing the 

resolution of disputes for breach of the 

compact? 

The Department has redesignated 

proposed § 293.21 as § 293.20 in the 

final rule for the reasons explained 

above in the summary of changes to 

subpart D. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.20, clarifying the appropriate 

scope of provisions addressing remedies 

for breach of the compact. Congress, 

through IGRA at 25 U.S.C. 

2710(d)(3)(C)(v), provided that a 

compact may include provisions 

relating to remedies for breach of 

contract. Compacts often include 

alternative dispute resolution, including 

binding arbitration, as part of the 

parties’ remedies for allegations of 

breach of contract. Despite the 

Department’s existing regulations 

clarifying that compacts and all 

amendments are subject to Secretarial 

review, some compacting parties have 

resolved disputes in manners which 

seek to avoid Secretarial review. The 

Department proposed § 293.20 to clarify 

that any dispute resolution agreement, 

arbitration award, settlement agreement, 

or other resolution of a dispute outside 

of Federal court must be submitted for 

review and approval by the Secretary. 

Further, the proposed § 293.20 

references the § 293.4 determination 

process for review, prior to a formal 

submission of a dispute resolution 

agreement as an amendment. The 

inclusion of provisions addressing 

dispute resolution in a manner that 

seeks to avoid the Secretary’s review 

may be considered evidence of a 

violation of IGRA. The Department 

codifies § 293.20 in the final rule. 

§ 293.21—May a compact or amendment 

include provisions addressing standards 

for the operation of gaming activity and 

maintenance of the gaming facility? 

The Department has redesignated 

proposed § 293.22 as § 293.21 in the 

final rule for the reasons explained 

above in the summary of changes to 

subpart D. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.21, clarifying the appropriate 

scope of provisions addressing the 

Tribe’s standards for the operation of 

the gaming activity, as well as the 

Tribe’s standards for the maintenance of 

the gaming facility, including licensing 

in a compact. Congress, through IGRA at 

25 U.S.C. 2710(d)(3)(C)(vi), provided 

that a compact may include provisions 

relating to standards for the operation of 

such activity and maintenance of the 

gaming facility, including licensing. The 

Department interprets section 

2710(d)(3)(C)(vi) narrowly and as two 

separate clauses addressing separate 

Tribal and State interests. First, a 

compact may include provisions 

addressing the standards for the 

operation and licensing of the gaming 


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activity. Second, a compact may include 

provisions addressing the maintenance 

and licensing of the gaming facility 

building or structure. The final rule in 

§ 293.2 includes definitions of both 

gaming facility and gaming spaces to 

provide parties with clarity regarding 

the appropriate limits of a State’s 

oversight under IGRA. Any compact 

provisions addressing the maintenance 

and licensing of a building or structure 

must be limited to the building or 

structure situated on Indian lands where 

the gaming activity occurs—the gaming 

facility. Further, if a compact or 

amendment mandates that the Tribe 

adopt standards equivalent or 

comparable to the standards set forth in 

a State law or regulation, the parties 

must show that these mandated Tribal 

standards are both directly related to 

and necessary for the licensing and 

regulation of the gaming activity. The 

Department codifies § 293.21 in the final 

rule, and in response to comments 

received, has added the phrase ‘‘within 

gaming spaces’’ to the second sentence. 

§ 293.22—May a compact or amendment 

include provisions that are directly 

related to the operation of gaming 

activities? 

The Department has redesignated 

proposed § 293.23 as § 293.22 in the 

final rule for the reasons explained 

above in the summary of changes to 

subpart D. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.22, clarifying that a compact may 

include provisions that are directly 

related to the operation of gaming 

activities. Congress, through IGRA at 25 

U.S.C. 2710(d)(3)(C)(vii), provided that a 

compact may include provisions 

relating to any other subjects that are 

directly related to the operation of 

gaming activities, including activities 

occurring off Indian lands. The 

Department also proposed a new 

§ 293.23, codifying the Department’s 

longstanding narrow interpretation of 

section 2710(d)(3)(C)(vi). The 

Department codifies § 293.22 in the final 

rule. 

§ 293.23—What factors will be used to 

determine whether provisions in a 

compact or amendment are directly 

related to the operation of gaming 

activities? 

The Department has redesignated 

proposed § 293.24 as § 293.23 in the 

final rule for the reasons explained 

above in the summary of changes to 

subpart D. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.23, codifying existing case law 

and the Department’s longstanding 

narrow interpretation of section 

2710(d)(3)(C)(vi) of IGRA as requiring a 

‘‘direct connection.’’ The Department 

notes that the Ninth Circuit in Chicken 

Ranch found the Department’s 

longstanding direct connection test 

persuasive and consistent with the 

Court’s own independent analysis of 

IGRA and case law. The proposed 

§ 293.23 provides compacting parties 

with examples of provisions which have 

a direct connection to the Tribe’s 

conduct of class III gaming activities, as 

well as examples the Department has 

found that do not satisfy the direct 

connection test. The Department 

codifies § 293.23 in the final rule, and 

in response to comments received has 

made some clarifying edits. 

§ 293.24—May a compact or amendment 

include provisions addressing the rights 

of employees? 

In response to comments received on 

the proposed rule, the Department has 

added a new § 293.24, which addresses 

organizational and representational 

rights of employees in the final rule. 

This provision continues the questionand-answer approach utilized in the 

existing regulations and the remainder 

of the final rule. The new § 293.24 titled 

‘‘May a compact or amendment include 

provisions addressing rights of 

employees?’’ The text of § 293.24 states 

that, yes, notwithstanding § 293.23(c)(8), 

a compact or amendment may include 

provisions or procedures addressing the 

organizational and representational 

rights of employees, including service or 

hospitality workers, where such 

provisions or procedures are ‘‘directly 

related’’ to the operation of gaming 

activities as articulated by the Ninth 

Circuit in Chicken Ranch Rancheria of 

Me-Wuk Indians v. California, 42 F.4th 

1024, 1035–1040 & n.2 (citing Coyote 

Valley Band of Pomo Indians v. 

California (In re Indian Gaming Related 

Cases Chemehuevi Indian Tribe), 331 

F.3d 1094, 1116 (9th Cir. 2003)). The 

Department notes this provision codifies 

case law that a compact may include 

provisions addressing organizational 

and representational rights of 

employees. 

§ 293.25—May a compact or amendment 

include provisions addressing employee 

licensing? 

In response to comments received on 

the proposed rule, the Department has 

added a new § 293.25, which addresses 

standards for employee licensing. The 

Department notes the National Indian 

Gaming Commission’s regulations at 25 

CFR part 556 and part 558 set minimum 

standards for background investigations 

and suitability determinations for 

tribally issued licenses. The final rule 

includes a reference to these minimum 

standards as a baseline for employee 

background investigations and licenses 

issued pursuant to a compact to allow 

flexibility in the compact negotiation 

process while ensuring appropriate 

vetting and licensing of employees. 

§ 293.26—May a compact or amendment 

include provisions addressing Statewide 

remote wagering or internet gaming? 

The Department has redesignated 

proposed § 293.29 as § 293.26 in the 

final rule for the reasons explained 

above in the summary of changes to 

subpart D. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.26, which clarifies that a compact 

may include provisions allocating 

jurisdiction to address Statewide remote 

wagering or internet gaming. The IGRA 

provides that a Tribe and State may 

negotiate for ‘‘the application of the 

criminal and civil laws and regulations 

of the Indian Tribe or the State that are 

directly related to, and necessary for, 

the licensing and regulation of such 

activity’’ and ‘‘the allocation of criminal 

and civil jurisdiction between the State 

and the Indian Tribe necessary for the 

enforcement of such laws and 

regulations.’’ 25 U.S.C. 2710(d)(3)(c)(i)– 

(ii). The IGRA also provides that a Tribe 

and State may negotiate over ‘‘any other 

subjects that are directly related to the 

operation of gaming activities.’’ 25 

U.S.C. 2710(d)(3)(c)(vii). The 

Department’s position, consistent with 

the D.C. Circuit’s decision in West 

Flagler Associates, Ltd. v. Haaland, 71 

F. 4th 1059 (D.C. Cir. 2023), is that 

Tribes and States may negotiate, 

consistent with IGRA and other Federal 

law, over how wagers placed outside 

Indian land within a State and received 

by a Tribe on Indian lands are treated 

for purposes of State and Tribal law, 

and how regulation of such activity is 

allocated between Tribes and States. 

Such topics fall under these broad 

categories of criminal and civil 

jurisdiction and such wagering is 

inherently directly related to the 

operation of gaming. Accordingly, 

provided that a player is not physically 

located on another Tribe’s Indian lands, 

a Tribe should have the opportunity to 

engage in this type of gaming pursuant 

to a Tribal-State gaming compact. The 

Department notes that the ultimate 

legality of gaming activity occurring off 

Indian lands remains a question of State 

law, notwithstanding that a compact 

discusses the activity. However, in 

enacting IGRA, Congress did not 

contemplate the Department would 


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30See, e.g., Pueblo of Santa Ana v. Kelly, 104 F.3d 

1546, 1556 (10th Cir. 1997). 

address or resolve complex issues of 

State law during the 45-day review 

period,30 and such issues are outside the 

scope of the Secretary’s review. West 

Flagler, 71 F. 4th at 1065. Further, nonIGRA Federal law may also place 

restrictions on that activity. The 

Department codifies § 293.26 in the final 

rule, with edits for consistency with 

West Flagler, and, in response to 

comments, includes the phrase ‘‘unless 

that Tribe has lawfully consented’’ to 

paragraph (c). 

§ 293.27—What factors will the 

Secretary analyze to determine if 

revenue sharing is lawful? 

The Department has redesignated 

proposed § 293.25 as § 293.27 in the 

final rule. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.27, clarifying the appropriate 

scope of provisions addressing revenue 

sharing. Congress, through IGRA at 25 

U.C.S. 2710 (d)(4), prohibited States 

from seeking to impose any tax, fee, 

charge, or other assessment upon an 

Indian Tribe or upon any other person 

or entity authorized by an Indian Tribe 

to engage in a class III gaming activity. 

The proposed § 293.27 codifies the 

Department’s longstanding rebuttable 

presumption that any revenue sharing 

provisions are a prohibited tax, fee, 

charge, or other assessment. The 

proposed § 293.27 also contains the 

Department’s test to rebut that 

presumption. The Department codifies 

§ 293.27 in the final rule with edits to 

improve readability. 

§ 293.28—May a compact or extension 

include provisions that limit the 

duration of the compact? 

The Department has redesignated 

proposed § 293.26 as § 293.28 in the 

final rule. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.28, addressing the appropriate 

duration of a compact. The Department 

and IGRA anticipate that compacts are 

long-term agreements between a Tribe 

and a State that reflect carefully 

negotiated compromises between 

sovereigns. The Department codifies 

§ 293.28 in the final rule. 

§ 293.29—May any other contract 

outside of a compact regulate Indian 

gaming? 

The Department has redesignated 

proposed § 293.28 as § 293.29 in the 

final rule. This summary reflects the 

final rule section number. 

The Department proposed a new 

§ 293.29, clarifying that any agreement 

between a Tribe and a State, or its 

political subdivisions, which seeks to 

regulate a Tribe’s right to conduct 

gaming—as limited by IGRA—is a 

gaming compact that must comply with 

IGRA and be submitted for review and 

approval by the Secretary. The 

Department codifies § 293.29 in the final 

rule with edits to improve readability. 

§ 293.30—What effect does this part 

have on pending requests, final agency 

decisions already issued, and future 

requests? 

The Department proposed a new 

§ 293.30, clarifying that the proposed 

regulations are prospective and 

establishing the effective date of the 

regulations is 30 days after this final 

rule is published. The proposed 

§ 293.30(b) includes a grandfather 

clause, which clarifies that the final rule 

does not alter prior Departmental 

decisions on compacts submitted under 

the 2008 Regulations. The Department 

codifies § 293.30 in the final rule with 

edits to improve certainty and clarity. 

Proposed § 293.31—How does the 

Paperwork Reduction Act affect this 

part? 

The Department proposed 

renumbering the existing § 293.16 as 

§ 293.31 to improve overall organization 

of the regulations. The Department 

implements this change in the final rule. 

VI. Procedural Requirements 

A. Regulatory Planning and Review 

(E.O. 12866) 

E.O. 12866, as reaffirmed by E.O. 

13563 and E.O. 14094, provides that the 

Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget (OMB) will 

review all significant rules. OIRA 

determined that this rule is significant 

under E.O. 12866 section 3(f), but not 

significant under section 3(f)(1). 

Executive Order 14094 reaffirms the 

principles of E.O. 12866 and E.O. 13563 

and states that regulatory analysis 

should facilitate agency efforts to 

develop regulations that serve the 

public interest, advance statutory 

objectives, and are consistent with E.O. 

12866, E.O. 13563, and the Presidential 

Memorandum of January 20, 2021 

(Modernizing Regulatory Review). 

Regulatory analysis, as practicable and 

appropriate, shall recognize distributive 

impacts and equity, to the extent 

permitted by law. E.O. 13563 

emphasizes further that regulations 

must be based on the best available 

science and that the rulemaking process 

must allow for public participation and 

an open exchange of ideas. The 

Department and BIA developed this 

final rule in a manner consistent with 

these requirements. 

Summary of Final Rule and Need for 

Rulemaking 

The Department of the Interior 

(Department) is issuing revisions to its 

regulations located at 25 CFR part 293, 

which govern the Department’s review 

and approval of Tribal-State gaming 

compacts under IGRA. The final rule 

includes revisions to the Department’s 

existing part 293 regulations and adds 

provisions clarifying how the 

Department reviews Tribal-State gaming 

compacts or compacts. 

The regulations that codify the 

Department’s review process for TribalState gaming compacts are found at 25 

CFR part 293 and were promulgated in 

2008 (‘‘2008 Regulations’’). 73 FR 74004 

(Dec. 5, 2008). The Department’s 2008 

Regulations were designed to address 

the process for submission by Tribes 

and States and consideration by the 

Secretary of Class III Tribal-State 

Gaming Compacts, and are not intended 

to address substantive issues. 73 FR 

74004–5. The Department’s 

consideration of substantive issues 

appears in decision letters, ‘‘deemed 

approved’’ letters, and technical 

assistance letters. In addition, a body of 

case law has developed that addresses 

the appropriate boundaries of class III 

gaming compacts. Negotiating parties 

have been forced to review both the 

body of case law as well as the 

Department’s library of decision letters, 

‘‘deemed approved’’ letters, and 

technical assistance letters to evaluate 

how the Department views both routine 

and more novel issues in compacts. 

With this final rule, the Department 

codifies longstanding Departmental 

policies and interpretation of case law 

in the form of substantive regulations, 

which will provide certainty and clarity 

on how the Secretary will review certain 

provisions in a compact. 

In addition, with this final rule, the 

Department makes primarily technical 

amendments to the existing processbased regulations, including the title. 

The technical amendments clarify and 

modernize the submission and review 

process and contain conforming edits 

for internal consistency and improved 

readability. Some of the key process 

improvements include: 

• updated definitions; 

• clarifications of when ancillary 

agreements or documents are 

amendments requiring Secretarial 

review under IGRA; 


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• updates to the submission process 

and documents required with a 

submission; 

• a process change requiring the 

Department to provide an email 

acknowledging receipt of a compact and 

provide the date on which the 45 day 

review period expires; 

• a process change requiring the 

Department to issue a letter to the 

parties if the compact or amendment 

has been approved by operation of law 

due to the 45-day review period 

expiring; and 

• clarification that Tribes may submit 

any document or agreement to the 

Department for technical assistance and 

a determination if the agreements or 

documents are amendments. 

With this final rule, the Department 

adds 15 sections addressing substantive 

issues and organizes part 293 into 4 

subparts. Some of the key longstanding 

Departmental policies and 

interpretation of case law codified in the 

final rule include: 

• requiring the parties to show that 

for any compact or amendment that 

requires the Tribe to adopt standards 

equivalent to State law or regulation, 

these mandated Tribal standards are 

both directly related to and necessary 

for the licensing and regulation of the 

gaming activity; see final rule § 293.21; 

• distinguishing between compact 

provisions that are and are not directly 

related to the operation of gaming 

activities, based on specific factors and 

providing specific examples (including 

a section confirming that gaming 

compacts may include statewide remote 

wagering or internet gaming); see final 

rule §§ 293.22, 293.23, 293.24, 293.25, 

and 293.26; 

• requiring the parties justify any 

revenue sharing provisions by 

demonstrating that the Tribe is the 

primary beneficiary of the gaming; see 

final rule § 293.27; and 

• clarifying the final rule does disrupt 

or alter previously issued agency 

decisions; see final rule § 293.30. 

Anticipated Benefits 

With this final rule, the Department 

upholds the Federal-Tribal government 

to government trust relationship by 

codifying longstanding Departmental 

policies and interpretation of case law 

in the form of substantive regulations. 

The substantive provisions in the final 

rule will provide nationwide certainty 

and clarity on how the Secretary will 

review certain provisions in a compact. 

The final rule also reinforces Congress’s 

intent that Indian gaming continue to 

provide a critical revenue source for 

Tribal government and reflect an 

exercise of Tribal sovereignty and 

governance. 25 U.S.C. 2702(1). States, 

similarly, exercise State sovereignty and 

generate State revenue through State 

lotteries and tax revenue from State 

licensed gaming. 

The Department also expects the final 

rule will reduce the need for protracted 

litigation and dispute resolution 

between Tribes, States, and third parties 

over permissible topics in a compact. 

The Department notes the body of 

Departmental policy and interpretations 

of case law codified in the final rule is 

built on numerous examples of 

protracted litigation and dispute 

resolution. Both West Flagler and 

Chicken Ranch are recent examples of 

this type of litigation. The final rule will 

improve employee licensing by 

requiring compacts to be consistent with 

NIGC’s licensing regulations. 

Anticipated Costs 

The Department anticipates the final 

rule will have minimal costs because 

the final rule codifies longstanding 

Departmental policies and 

interpretation of case law. Tribes and 

States seeking to negotiate a compact 

will be able to rely on the substantive 

provisions in the final rule for guidance 

on what may or may not be included in 

a compact or amendment. Section 

293.26, which addresses remote 

wagering or internet gaming, is 

consistent with existing case law. 

Additionally, States will remain free to 

choose whether or not to permit mobile 

or internet gaming in the State as well 

as if such gaming will be State-licensed 

and taxed or compact based Tribal 

gaming potentially with government-togovernment revenue sharing. 

The Department does expect the 

Office of Indian Gaming will experience 

a slight increase in requests for 

technical assistance. However, that 

increased demand will be offset by the 

Department’s ability to rely on the final 

rule to provide such guidance rather 

than the existing body of case law and 

Department policy statements in 

decision letters and other guidance 

letters. Additionally, this increased 

demand for technical assistance will be 

offset by an expected reduction in legal 

counsel costs for Tribes and States 

during negotiations. 

Alternatives Considered 

The Department considered but 

ultimately rejected three rule making 

alternatives to the final rule. The first 

alternative the Department considered 

was to not engage in an update to the 

part 293 Rule, effectively take no rule 

making action. The Department rejected 

this alternative because it would not 

allow for modernization of the 

Department’s process and would not 

resolve some of the key issues which 

continue to result in litigation between 

Tribes, States, and some third parties. 

The second alternative the Department 

considered was to update the existing 

process-based regulations, to allow for 

modernizations to the Department’s 

compact submission and acceptance 

process including digital submission. 

This alternative would codify some of 

the process improvements the 

Department has made including 

accepting email submissions. However, 

this alternative would not codify any of 

the Department’s longstanding policy 

and case law interpretation resulting in 

continued litigation. The third 

alternative the Department considered 

was to update the existing process-based 

regulations with some substantive 

provisions but excluding § 293.26, 

which addresses remote wagering or 

internet gaming. The Department notes, 

the rule making effort as well as the 

inclusion of remote wagering or internet 

gaming received overwhelming support 

form Tribal leaders. 

B. Regulatory Flexibility Act 

The Department certifies that this 

final rule would not have a significant 

economic effect on a substantial number 

of small entities under the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

This final rule codifies longstanding 

Departmental policies and 

interpretation of case law in the form of 

substantive regulations, which would 

provide certainty and clarity on how the 

Secretary will review certain provisions 

in a compact. 

C. Congressional Review Act (CRA) 

This rule does not meet the criteria in 

5 U.S.C. 804(2). Specifically, it: 

• Does not have an annual effect on 

the economy of $100 million or more. 

• Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

• Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

The Administrative Pay-As-You-Go 

Act of 2023 (Fiscal Responsibility Act of 

2023, Pub. L. 118–5, div. B, title II). 

applies to actions that meet the 

definition of a rule under 5 U.S.C. 

804(3). The rule does not affect direct 

spending and does not have any 

mandatory net outlays because there 

will be no additional full-time 

equivalent (FTE) costs or any other 

additional administrative costs to 


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13256 Federal Register / Vol. 89, No. 35 / Wednesday, February 21, 2024 / Rules and Regulations 

review Class III Tribal State Gaming 

Compacts. The rule clarifies case law, 

Department Policy, and other related 

guidance over the last 30 plus years, so 

the review and approval of Class III 

Tribal Gaming Compacts is more 

efficient and better streamlined. 

D. Unfunded Mandates Reform Act of 

1995 

This rule would not impose an 

unfunded mandate on State, local, or 

Tribal governments, or the private sector 

of more than $100 million per year. The 

rule would not have a significant or 

unique effect on State, local, or Tribal 

governments or the private sector. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

E. Takings (E.O. 12630) 

This rule would not affect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630 because this rulemaking, if 

adopted, does not affect individual 

property rights protected by the Fifth 

Amendment or involve a compensable 

‘‘taking.’’ A takings implication 

assessment is not required. 

F. Federalism (E.O. 13132) 

Under the criteria in section 1 of 

Executive Order 13132, this rule would 

not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. A federalism summary 

impact statement is not required 

because the Department seeks to codify 

longstanding Departmental policies and 

interpretation of case law in the form of 

substantive regulations which would 

provide certainty and clarity on how the 

Secretary will review certain provisions 

in a compact. 

G. Civil Justice Reform (E.O. 12988) 

This rule complies with the 

requirements of Executive Order 12988. 

This rule: 

• Meets the criteria of section 3(a), 

requiring that all regulations be 

reviewed to eliminate errors and 

ambiguity and be written to minimize 

litigation; and 

• Meets the criteria of section 3(b)(2), 

requiring that all regulations be written 

in clear language and contain clear legal 

standards. 

H. Consultation With Indian Tribes 

(E.O. 13175) 

The Department conducted two 

virtual session, one in-person 

consultation, and accepted oral and 

written comments. The consultations 

sessions were open to Tribal leadership 

and representatives of federally 

recognized Indian Tribes and Alaska 

Native Corporations. 

• In-Person Session: The in-person 

consultation was held on January 13, 

2023, from 1 p.m. to 4 p.m. MST, at the 

BLM National Training Center (NTC), 

9828 N 31st Ave, Phoenix, AZ 85051. 

• 1st Virtual Session: The first virtual 

consultation session was held on 

January 19, 2023, from 1 p.m. to 4 p.m. 

EST. 

• 2nd Virtual Session: The second 

virtual consultation was held on January 

30, 2023, from 2 p.m. to 5 p.m. EST. 

• The Department also accepted 

written comments until March 1, 2023. 

The Department strives to strengthen 

its government-to-government 

relationship with Indian Tribes through 

a commitment to consultation with 

Indian Tribes and recognition of their 

right to self-governance and Tribal 

sovereignty. The Department evaluated 

this rule under its consultation policy 

and the criteria in E.O. 13175 and 

hosted extensive consultation with 

federally recognized Indian Tribes in 

preparation of this final rule, including 

through two Dear Tribal Leader letters 

delivered to every federally recognized 

Tribe in the country. The Department 

held two listening sessions and four 

formal consultation sessions on the 

Consultation Draft. The Department has 

included and addressed those 

comments as part of the public 

comment record for the proposed rule. 

The Department then held three 

consultation sessions on the proposed 

rule. The Department has included and 

addressed those comments as part of the 

public comment record for the final 

rule. 

I. Paperwork Reduction Act 

OMB Control No. 1076–0172 

currently authorizes the collection of 

information related to the Class III 

Tribal-State Gaming Compact Process, 

with an expiration of August 31, 2024. 

This rule does not require a change to 

that approved information collection 

under the Paperwork Reduction Act 

(PRA), 44 U.S.C. 3501 et seq. 

J. National Environmental Policy Act 

(NEPA) 

This rule would not constitute a major 

Federal action significantly affecting the 

quality of the human environment. A 

detailed statement under the National 

Environmental Policy Act of 1969 

(NEPA) is not required because this is 

an administrative and procedural 

regulation. (For further information see 

43 CFR 46.210(i)). The Department also 

determined that the rule does not 

involve any of the extraordinary 

circumstances listed in 43 CFR 46.215 

that would require further analysis 

under NEPA. 

K. Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects is not required. 

L. Clarity of This Regulation 

The Department is required by 

Executive Orders 12866 (section 1 

(b)(12)), 12988 (section 3(b)(l)(B)), and 

13563 (section l(a)), and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

• Be logically organized; 

• Use the active voice to address 

readers directly; 

• Use common, everyday words and 

clear language rather than jargon; 

• Be divided into short sections and 

sentences; and 

• Use lists and tables wherever 

possible. 

List of Subjects 25 CFR Part 293 

Administrative practice and 

procedure, Gambling, Indians-Tribal 

government, State and local 

governments. 

■ For the reasons stated in the preamble, 

the Department of the Interior, Bureau 

of Indian Affairs, revises 25 CFR part 

293 to read as follows: 

PART 293—CLASS III TRIBAL-STATE 

GAMING COMPACTS 

Subpart A—General Provisions and Scope 

Sec. 

293.1 What is the purpose of this part? 

293.2 How are key terms defined in this 

part? 

293.3 What authority does the Secretary 

have to approve or disapprove compacts 

and amendments? 

293.4 Are compacts and amendments 

subject to review and approval? 

293.5 Are extensions to compacts or 

amendments subject to review and 

approval? 

Subpart B—Submission of Tribal-State 

Gaming Compacts 

293.6 Who can submit a compact or 

amendment? 

293.7 When should the Tribe or State 

submit a compact or amendment for 

review and approval? 

293.8 What documents must be submitted 

with a compact or amendment? 

293.9 Where should a compact or 

amendment or other requests under this 

part be submitted for review and 

approval? 


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Subpart C—Secretarial Review of TribalState Gaming Compacts 

293.10 How long will the Secretary take to 

review a compact or amendment? 

293.11 When will the 45-day timeline 

begin? 

293.12 What happens if the Secretary does 

not act on the compact or amendment 

within the 45-day review period? 

293.13 Who can withdraw a compact or 

amendment after it has been received by 

the Secretary? 

293.14 When does a compact or 

amendment take effect? 

293.15 When may the Secretary disapprove 

a compact or amendment? 

Subpart D—Scope of Tribal-State Gaming 

Compacts 

293.16 May a compact or amendment 

include provisions addressing the 

application of the Tribe’s or the State’s 

criminal and civil laws and regulations? 

293.17 May a compact or amendment 

include provisions addressing the 

allocation of criminal and civil 

jurisdiction between the Tribe and the 

State? 

293.18 May a compact or amendment 

include provisions addressing the State’s 

costs for regulating gaming activities? 

293.19 May a compact or amendment 

include provisions addressing the Tribe’s 

taxation of gaming? 

293.20 May a compact or amendment 

include provisions addressing the 

resolution of disputes for breach of the 

compact? 

293.21 May a compact or amendment 

include provisions addressing standards 

for the operation of gaming activity and 

maintenance of the gaming facility? 

293.22 May a compact or amendment 

include provisions that are directly 

related to the operation of gaming 

activities? 

293.23 What factors will be used to 

determine whether provisions in a 

compact or amendment are directly 

related to the operation of gaming 

activities? 

293.24 May a compact or amendment 

include provisions addressing rights of 

employees? 

293.25 May a compact or amendment 

include provisions addressing employee 

background investigations and licensing? 

293.26 May a compact or amendment 

include provisions addressing statewide 

remote wagering or internet gaming? 

293.27 What factors will the Secretary 

analyze to determine if revenue sharing 

is lawful? 

293.28 May a compact or extension include 

provisions that limit the duration of the 

compact? 

293.29 May any other contract outside of a 

compact regulate Indian gaming? 

293.30 What effect does this part have on 

pending requests, final agency decisions 

already issued, and future requests? 

293.31 How does the Paperwork Reduction 

Act affect this part? 

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 

2710. 

Subpart A—General Provisions and 

Scope 

§ 293.1 What is the purpose of this part? 

This part contains: 

(a) Procedures that Indian Tribes and 

States must use when submitting TribalState gaming compacts and compact 

amendments to the Department of the 

Interior (Department); and 

(b) Procedures and criteria that the 

Secretary of the Interior (Secretary) will 

use for reviewing such Tribal-State 

gaming compacts or compact 

amendments. 

§ 293.2 How are key terms defined in this 

part? 

This part relies on but does not restate 

all defined terms set forth in the 

definitional section of IGRA. 

(a) Amendment means: 

(1) A change to a class III Tribal-State 

gaming compact other than an 

extension, or 

(2) A change to secretarial procedures 

prescribed under 25 U.S.C. 

2710(d)(7)(B)(vii) when such change is 

agreed upon by the Tribe and State. 

(b) Compact or Tribal-State Gaming 

Compact means an intergovernmental 

agreement executed between Tribal and 

State governments under IGRA that 

establishes between the parties the 

terms and conditions for the operation 

and regulation of the Tribe’s class III 

gaming activities. 

(c) Extension means an 

intergovernmental agreement executed 

between Tribal and State governments 

under IGRA to change the duration of a 

compact or amendment. 

(d) Gaming activity or gaming 

activities means the conduct of class III 

gaming involving the three required 

elements of chance, consideration, and 

prize or reward. 

(e) Gaming facility means the physical 

building or structure situated on Indian 

lands where the gaming activity occurs. 

(f) Gaming spaces means the areas 

within a gaming facility (as defined in 

paragraph (e) of this section) that are 

directly related to and necessary for the 

conduct of class III gaming such as: the 

casino floor; vault; count room; 

surveillance, management, and 

information technology areas; class III 

gaming device and supplies storage 

areas; and other secured areas where the 

operation or management of class III 

gaming takes place. 

(g) IGRA means the Indian Gaming 

Regulatory Act of 1988 (Pub. L. 100– 

497) 102 Stat. 2467 dated October 17, 

1988, (Codified at 25 U.S.C. 2701–2721 

(1988)) and any amendments. 

(h) Meaningful concession means: 

(1) Something of value to the Tribe; 

(2) Directly related to gaming activity; 

(3) Something that carries out the 

purposes of IGRA; and 

(4) Not a subject over which a State 

is otherwise obligated to negotiate under 

IGRA. 

(i) Substantial economic benefit 

means: 

(1) A beneficial impact to the Tribe; 

(2) Resulting from a meaningful 

concession; 

(3) Made with a Tribe’s economic 

circumstances in mind; 

(4) Spans the life of the compact; and 

(5) Demonstrated by an economic/ 

market analysis or similar 

documentation submitted by the Tribe 

or the State. 

(j) Tribe means Indian Tribe as 

defined in 25 U.S.C. 2703(5). 

§ 293.3 What authority does the Secretary 

have to approve or disapprove compacts 

and amendments? 

The Secretary has the authority to 

approve a compact or amendment 

‘‘entered into’’ by a Tribe and a State 

under IGRA. See § 293.15 for the 

Secretary’s authority to disapprove 

compacts or amendments. 

§ 293.4 Are compacts and amendments 

subject to review and approval? 

(a) Yes. All compacts and 

amendments, regardless of whether they 

are substantive or technical, must be 

submitted for review and approval by 

the Secretary. 

(b) If an ancillary agreement or 

document: 

(1) Modifies a term in a compact or an 

amendment, then it must be submitted 

for review and approval by the 

Secretary. 

(2) Implements or clarifies a provision 

within a compact or an amendment and 

is not inconsistent with an approved 

compact or amendment, it does not 

constitute a compact or an amendment 

and need not be submitted for review 

and approval by the Secretary. 

(3) Is expressly contemplated within 

an approved compact or amendment, 

such as internal controls or a 

memorandum of agreement between the 

Tribal and State regulators, then such 

agreement or document is not subject to 

review and approval so long as it is not 

inconsistent with the approved compact 

or amendment. 

(4) Interprets language in a compact or 

an amendment concerning a Tribe’s 

revenue sharing to the State, its 

agencies, or political subdivisions under 

§ 293.27 or includes any of the topics 

identified in § 293.23, then it may 

constitute an amendment subject to 

review and approval by the Secretary. 

(c) If a Tribe or a State (including its 

political subdivisions) is concerned that 


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its agreement or other document may be 

considered a ‘‘compact’’ or 

‘‘amendment,’’ either party may request 

in writing a determination from the 

Department if their agreement or other 

document is a compact or amendment 

and therefore must be approved and a 

notice published in the Federal Register 

prior to the agreement or other 

document becoming effective. The 

Department will issue a letter within 30 

days of receipt of the written request, 

providing notice of the Secretary’s 

determination. If the agreement or other 

document is determined to be a compact 

or amendment, it must be resubmitted 

for Secretarial review and approval 

consistent with the requirements of 

subpart B of this part. 

§ 293.5 Are extensions to compacts or 

amendments subject to review and 

approval? 

No. Approval of an extension to a 

compact or amendment is not required 

if the extension does not include any 

changes to any of the other terms of the 

compact or amendment. However, the 

parties must submit the documents 

required by § 293.8(a) through (c). The 

extension becomes effective only upon 

publication in the Federal Register. 

Subpart B—Submission of Tribal-State 

Gaming Compacts 

§ 293.6 Who can submit a compact or 

amendment? 

Either party (Tribe or State) to a 

compact or amendment can submit the 

compact or amendment to the Secretary 

for review and approval. 

§ 293.7 When should the Tribe or State 

submit a compact or amendment for review 

and approval? 

The Tribe or State should submit the 

compact or amendment after it has been 

duly executed by the Tribe and the State 

in accordance with applicable Tribal 

and State law or is otherwise binding on 

the parties. 

§ 293.8 What documents must be 

submitted with a compact or amendment? 

Documentation submitted with a 

compact or amendment must include: 

(a) At least one original compact or 

amendment executed by both the Tribe 

and the State; 

(b) A Tribal resolution or other 

document, including the date and place 

of adoption and the result of any vote 

taken, that certifies that the Tribe has 

approved the compact or amendment in 

accordance with applicable Tribal law 

and IGRA; 

(c) Certification from the Governor or 

other representative of the State that 

they are authorized to enter into the 

compact or amendment in accordance 

with applicable State law; 

(d) Any agreement between a Tribe 

and a State, its agencies, or its political 

subdivisions required by a compact or 

amendment if the agreement: 

(1) Requires the Tribe to make 

payments to the State, its agencies, or its 

political subdivisions; or 

(2) Restricts or regulates a Tribe’s use 

and enjoyment of its Indian lands, and 

any other ancillary agreements, 

documents, ordinances, or laws 

required by the compact or amendment 

that the Tribe determines are relevant to 

the Secretary’s review; and 

(e) Any other documentation 

requested by the Secretary that is 

necessary to determine whether to 

approve or disapprove the compact or 

amendment. If a compact includes 

revenue sharing, a market analysis or 

similar documentation as required by 

§ 293.27. 

§ 293.9 Where should a compact or 

amendment or other requests under this 

part be submitted for review and approval? 

Submit compacts, amendments, and 

all other requests under this part to the 

Director, Office of Indian Gaming, U.S. 

Department of the Interior, 1849 C Street 

NW, Mail Stop 3543, Washington, DC 

20240. If this address changes, a 

document with the new address will be 

sent for publication in the Federal 

Register within five business days. 

Compacts and amendments may also be 

submitted electronically to Indian

Gaming@bia.gov as long as the original 

copy is submitted to the address listed 

in this section. 

Subpart C—Secretarial Review of 

Tribal-State Gaming Compacts 

§ 293.10 How long will the Secretary take 

to review a compact or amendment? 

(a) The Secretary must approve or 

disapprove a compact or amendment 

within 45 calendar days after receiving 

the compact or amendment. 

(b) The Secretary will notify the Tribe 

and the State in writing of the decision 

to approve or disapprove a compact or 

amendment. 

§ 293.11 When will the 45-day timeline 

begin? 

The 45-day timeline will begin when 

a compact or amendment is received 

either electronically or hard copy 

submission and date stamped by the 

Office of Indian Gaming. The 

Department will provide an email 

acknowledgement to the Tribe and the 

State of receipt and provide the date on 

which the Secretary’s 45-day review 

period will expire for electronically 

submitted compacts or amendments. 

§ 293.12 What happens if the Secretary 

does not act on the compact or amendment 

within the 45-day review period? 

If the Secretary does not take action 

to approve or disapprove a compact or 

amendment within the 45-day review 

period, the compact or amendment is 

approved by operation of law, but only 

to the extent the compact or amendment 

is consistent with the provisions of 

IGRA. The Secretary will issue a letter 

informing the parties that the compact 

or amendment has been approved by 

operation of law after the 45th day and 

before the 90th day. The Secretary’s 

letter may include guidance to the 

parties reflecting the Department’s 

interpretation of IGRA. The compact or 

amendment that is approved by 

operation of law becomes effective only 

upon publication in the Federal 

Register. 

§ 293.13 Who can withdraw a compact or 

amendment after it has been received by 

the Secretary? 

To withdraw a compact or 

amendment after it has been received by 

the Secretary, the Tribe and the State 

must both submit a written request to 

the Director, Office of Indian Gaming at 

the address listed in § 293.9. 

§ 293.14 When does a compact or 

amendment take effect? 

(a) A compact or amendment, that is 

affirmatively approved or approved by 

operation of law, takes effect on the date 

that notice of its approval is published 

in the Federal Register. 

(b) The notice of affirmative approval 

or approval by operation of law must be 

published in the Federal Register 

within 90 days from the date the 

compact or amendment is received by 

the Office of Indian Gaming. 

§ 293.15 When may the Secretary 

disapprove a compact or amendment? 

The Secretary may disapprove a 

compact or amendment only if: 

(a) It violates: 

(1) Any provision of IGRA; 

(2) Any other provision of Federal law 

that does not relate to jurisdiction over 

gaming on Indian lands; or 

(3) The trust obligations of the United 

States to Indians; or 

(b) The documents required in § 293.8 

are not submitted and the parties have 

been informed in writing of the missing 

documents and are provided with an 

opportunity to supply those documents. 


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Subpart D—Scope of Tribal-State 

Gaming Compacts 

§ 293.16 May a compact or amendment 

include provisions addressing the 

application of the Tribe’s or the State’s 

criminal and civil laws and regulations? 

Yes. A compact or amendment may 

include provisions addressing the 

application of the criminal and civil 

laws and regulations of the Tribe or the 

State that are directly related to and 

necessary for the licensing and 

regulation of the gaming activity. At the 

request of the Secretary pursuant to 

§ 293.8(e), the parties must show that 

these laws and regulations are both 

directly related to and necessary for the 

licensing and regulation of the gaming 

activity. 

§ 293.17 May a compact or amendment 

include provisions addressing the 

allocation of criminal and civil jurisdiction 

between the Tribe and the State? 

Yes. A compact or amendment may 

include provisions allocating criminal 

and civil jurisdiction between the Tribe 

and the State necessary for the 

enforcement of the laws and regulations 

described in § 293.16. 

§ 293.18 May a compact or amendment 

include provisions addressing the State’s 

costs for regulating gaming activities? 

Yes. If the compact or amendment 

includes a negotiated allocation of 

jurisdiction to the State for the 

regulation of the gaming activity, the 

compact or amendment may include 

provisions to defray the State’s actual 

and reasonable costs for regulating the 

specific Tribe’s gaming activity. If the 

compact does not include requirements 

for the State to show actual and 

reasonable annual expenses for 

regulating the specific Tribe’s gaming 

activity over the life of the compact, the 

lack of such a requirement may be 

considered evidence of a violation of 

IGRA. 

§ 293.19 May a compact or amendment 

include provisions addressing the Tribe’s 

taxation of gaming? 

Yes. A compact or amendment may 

include provisions addressing the 

Tribe’s taxation of tribally licensed 

gaming activity in amounts comparable 

to the State’s taxation of State licensed 

gaming activities. A compact may not 

include provisions addressing the 

Tribe’s taxation of other activities that 

may occur within or near the Tribe’s 

gaming facility. The inclusion of 

provisions addressing the Tribe’s 

taxation of other activities may be 

considered evidence of a violation of 

IGRA. 

§ 293.20 May a compact or amendment 

include provisions addressing the 

resolution of disputes for breach of the 

compact? 

Yes. A compact or amendment may 

include provisions addressing how the 

parties will resolve a breach of the 

compact or other disputes arising from 

the compact including mutual limited 

waivers of sovereign immunity. If a 

Tribe is concerned that an agreement or 

other document including, but not 

limited to, any dispute resolution, 

settlement agreement, or arbitration 

decision, constitutes a compact or 

amendment, or if the Tribe is concerned 

that the agreement or other document 

interprets the Tribe’s compact or 

amendment to govern matters that are 

not directly related to the operation of 

gaming activities, the Tribe may submit 

the document to the Department as set 

forth in § 293.4. The inclusion of 

provisions addressing dispute 

resolution outside of Federal court in a 

manner that seeks to avoid the 

Secretary’s review may be considered 

evidence of a violation of IGRA. 

§ 293.21 May a compact or amendment 

include provisions addressing standards 

for the operation of gaming activity and 

maintenance of the gaming facility? 

Yes. A compact or amendment may 

include provisions addressing the 

Tribe’s standards for the operation of 

the gaming activity within gaming 

spaces, as well as the Tribe’s standards 

for the maintenance of the gaming 

facility, including licensing. If a 

compact or amendment mandates that 

the Tribe adopt standards equivalent or 

comparable to the standards set forth in 

a State law or regulation, the parties 

must show that these mandated Tribal 

standards are both directly related to 

and necessary for the licensing and 

regulation of the gaming activity. 

§ 293.22 May a compact or amendment 

include provisions that are directly related 

to the operation of gaming activities? 

Yes. A compact or amendment may 

include provisions that are directly 

related to the operation of gaming 

activities; such provisions may address 

activities occurring off of Indian lands. 

§ 293.23 What factors will be used to 

determine whether provisions in a compact 

or amendment are directly related to the 

operation of gaming activities? 

(a) The parties must show that these 

provisions described in § 293.22 are 

directly connected to the Tribe’s 

conduct of class III gaming activities. 

Examples include, but are not limited 

to: 

(1) Minimum age for patrons to 

participate in gaming; 

(2) Transportation of gaming devices 

and equipment; or 

(3) Exclusion of patrons. 

(b) Mutually beneficial proximity, or 

even co-management alone is 

insufficient to establish a ‘‘direct 

connection’’ between the Tribe’s class 

III gaming and adjacent business or 

amenities. Additionally, Tribal 

infrastructure projects or economic 

development activities that are funded 

by gaming revenue and may service or 

otherwise provide a benefit to the 

gaming activity are not directly related 

to the conduct of gaming without other 

evidence of a direct connection. 

(c) Provisions which are not directly 

related to the operation of gaming 

activities include, but are not limited to: 

(1) Expressly limiting third party 

Tribes’ rights to conduct gaming 

activities under IGRA; 

(2) Relating to treaty rights; 

(3) Relating to tobacco sales; 

(4) Requiring compliance with or 

adoption of State environmental 

regulation of projects or activities that 

are not directly related to the Tribe’s 

operation of gaming activities and 

maintenance of the gaming facility; 

(5) Requiring memorandum of 

understanding, intergovernmental 

agreements, or similar agreements with 

local governments; 

(6) Requiring enforcement of State 

court orders garnishing employee wages 

or patron winnings; 

(7) Granting State court jurisdiction 

over tort claims arising from the Tribe’s 

conduct of class III gaming activities; 

(8) Regulating non-gaming conduct 

not within gaming spaces or non-gaming 

Tribal economic activities, including 

activities in or adjacent to the gaming 

facility, including, but not limited to, 

restaurants, nightclubs, hotels, event 

centers, water parks, gas stations, and 

convenience stores; or 

(9) Relating to the conduct of Tribal 

class I or class II gaming activities. 

(d) The inclusion of provisions for 

which the parties cannot show a direct 

connection to the Tribe’s conduct of 

class III gaming activities may be 

considered evidence of a violation of 

IGRA. 

§ 293.24 May a compact or amendment 

include provisions addressing rights of 

employees? 

Yes. Notwithstanding § 293.23(c)(8), a 

compact or amendment may include 

provisions or procedures addressing the 

organizational and representational 

rights of employees, including service or 

hospitality workers, where such 

provisions or procedures are ‘‘directly 

related’’ to the operation of gaming 

activities as articulated by the Ninth 


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Circuit in Chicken Ranch Rancheria of 

Me-Wuk Indians v. California, 42 F.4th 

1024, 1035–1040 & n.2 (citing Coyote 

Valley Band of Pomo Indians v. 

California (In re Indian Gaming Related 

Cases Chemehuevi Indian Tribe), 331 

F.3d 1094, 1116 (9th Cir. 2003)). 

§ 293.25 May a compact or amendment 

include provisions addressing employee 

background investigations and licensing? 

Yes. Consistent with 25 CFR 558.1, a 

compact or amendment may include 

provisions addressing the Tribe’s 

standards and requirements for 

employee background investigations 

and licensing. If the compact or 

amendment includes a negotiated 

allocation to the State for concurring in 

or processing employee background 

investigations or licenses, the parties 

must show that the licensing process is 

as stringent and timely as the 

background investigation and licensing 

requirements of 25 CFR parts 556 and 

558. The compact may also include 

provisions for the reasonable 

reimbursement of background 

investigation and licensing fees. 

§ 293.26 May a compact or amendment 

include provisions addressing statewide 

remote wagering or internet gaming? 

Yes. A compact or amendment 

consistent with §§ 293.16 and 293.22 

may include provisions addressing 

statewide remote wagering or internet 

gaming that is directly related to the 

operation of gaming activity on Indian 

lands. A compact or compact 

amendment may not, however, alter 

otherwise applicable Federal law. A 

compact may specifically include, for 

regulatory purposes, provisions 

allocating State and Tribal jurisdiction 

within the State over remote wagering 

or internet gaming originating outside 

Indian lands where: 

(a) State law and the compact or 

amendment deem the gaming to take 

place, for the purposes of State and 

Tribal law, on the Tribe’s Indian lands 

where the server accepting the wagers is 

located; 

(b) The Tribe regulates the gaming; 

and 

(c) The player initiating the wager is 

not located on another Tribe’s Indian 

lands within the State, unless that Tribe 

has lawfully consented. 

§ 293.27 What factors will the Secretary 

analyze to determine if revenue sharing is 

lawful? 

(a) A compact or amendment may 

include provisions that address revenue 

sharing in exchange for a State’s 

meaningful concessions resulting in a 

substantial economic benefit for the 

Tribe. 

(b) The Department reviews revenue 

sharing provisions with great scrutiny 

beginning with the presumption that a 

Tribe’s payment to a State or local 

government for anything beyond 

§ 293.18 regulatory fee is a prohibited 

‘‘tax, fee, charge, or other assessment.’’ 

In order for the Department to approve 

revenue sharing the parties must show 

through documentation, such as a 

market study or other similar evidence, 

that: 

(1) The Tribe has requested and the 

State has offered specific meaningful 

concessions the State was otherwise not 

required to negotiate; 

(2) The value of the specific 

meaningful concessions offered by the 

State provides substantial economic 

benefits to the Tribe in a manner 

justifying the revenue sharing required 

by the compact; and 

(3) The Tribe is the primary 

beneficiary of the gaming measured by 

projected revenue to the Tribe against 

projected revenue shared with the State. 

(c) The inclusion of revenue sharing 

provisions to the State that is not 

justified by meaningful concessions of 

substantial economic benefit to the 

Tribe may be considered evidence of a 

violation of IGRA. 

§ 293.28 May a compact or extension 

include provisions that limit the duration of 

the compact? 

Yes. However, IGRA anticipates 

compacts are long-term agreements 

between a Tribe and a State. These 

agreements reflect carefully negotiated 

compromises between sovereigns. A 

refusal to negotiate a long-term compact, 

or a short-term extension of at least one 

year to allow for negotiations to 

continue, may be considered evidence 

of a violation of IGRA. 

§ 293.29 May any other contract outside of 

a compact regulate Indian gaming? 

No. Subject to §§ 293.4(b) and 

293.8(d), any contract or other 

agreement between a Tribe and a State, 

its agencies, or its political subdivisions 

that seeks to regulate a Tribe’s right to 

conduct gaming—as limited by IGRA— 

is a gaming compact that must comply 

with IGRA and be submitted for review 

and approval by the Secretary consistent 

with § 293.8. A Tribe may submit any 

other agreement between the Tribe and 

the State, its agencies, or its political 

subdivisions for a determination if the 

agreement is a compact or amendment 

under § 293.4(c). This includes 

agreements mandated or required by a 

compact or amendment, which contain 

provisions for the payment from a 

Tribe’s gaming revenue or restricts or 

regulates a Tribe’s use and enjoyment of 

its Indian lands, including a Tribe’s 

conduct of gaming. 

§ 293.30 What effect does this part have 

on pending requests, final agency 

decisions already issued, and future 

requests? 

(a) Compacts and amendments 

pending on March 22, 2024, will 

continue to be processed under this 

part, promulgated on December 5, 2008, 

and revised June 4, 2020, unless the 

Tribe or the State requests in writing to 

proceed under this part. Upon receipt of 

such a request, the Secretary shall 

process the pending compact or 

amendment under this part. 

(b) This part does not alter final 

agency decisions made pursuant to this 

part before March 22, 2024. 

(c) All compacts and amendments 

submitted after March 22, 2024 will be 

processed under this part. 

§ 293.31 How does the Paperwork 

Reduction Act affect this part? 

The information collection 

requirements contained in this part have 

been approved by the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995, 

44 U.S.C. 3507(d), and assigned control 

number 1076–0172. A Federal agency 

may not conduct or sponsor, and you 

are not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. 

Bryan Newland, 

Assistant Secretary—Indian Affairs. 

[FR Doc. 2024–03456 Filed 2–20–24; 8:45 am] 

BILLING CODE 4337–15–P 


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