June 1, 2017

Mr. Jonodev Chaudhuri, Chairman

National Indian Gaming Commission

1849 C Street NW

Mail Stop #1621

Washington, DC 20240

Dear Chairman Chaudhuri:

Included with this letter are the Fort Belknap Gaming Commission’s comments 

regarding the National Indian Gaming Commission’s 2017 Consultation on the Technical 

Standards. The Commission thanks the NIGC for the opportunity to provide comments 

on this topic. As a small tribe with roughly 7,000 enrollees, our tribe faces severe 

obstacles to the continued viability of our gaming operations should the grandfather 

provisions take effect in 2018. As a result, we respectfully urge the Commission to 

consider our request for the withdrawal of the sunset provision for grandfathered Class II 

gaming systems.

Thank you for your consideration of our comments.

Sincerely,

Julie Schwenke, Commissioner

Fort Belknap Gaming Commission
Comments from the Fort Belknap Gaming Commission Regarding the National 

Indian Gaming Commission’s

Part 547 Grandfather Sunset Provision

The Fort Belknap Gaming Commission welcome the opportunity to provide its comments 

to the National Indian Gaming Commission (“NIGC”) on the “sunset” provision of the 

Techncal Standards found in 25 C.F.R. Part 547 (“Class II Technical Standards”) on behalf

of the Fort Belknap Indian Community of the Fort Belknap Reservation of Montana (“Fort 

Belknap Community”) We hope that by engaging in a meaningful dialogue with tribal 

representatives, the NIGC will modify its regulatory framework to better comport with the 

purposes and goals of the Indian Gaming Regulatory Act (“IGRA”).

The Fort Belknap Community is a small tribe of roughly 7,000 members, and operates only 

one gaming location. The small size and limited resources of the Fort Belknap Community

makes enforcement of the “sunset” provision especially impactful. If allowed to stay, the 

regulation will directly defeat IGRA’s goal “to promote tribal economic development, 

tribal self-sufficiency, and strong tribal governments,”

1

particularly for those tribes which 

lack sufficient resources to bring their Class II gaming systems into compliance with the 

Part 547 Technical Standards. The economic harm wrought by enforcement of the Part 547 

grandfather “sunset” provision2 will have disastrous consequences for tribes such as the 

Fort Belknap Community, directly impairing the ability of our tribe to provide essential 

services to our members.

Economic Impact

When the previous NIGC administration proposed the Part 547 Technical Standards, there 

was virtual unanimity amongst tribal gaming stakeholders that such standards would be 

inimical to tribal gaming. At the time, the NIGC never satisfactorily addressed these tribal 

concerns, and we remain dissatisfied with the NIGC’s solution to continuously extend the 

effective date of these provisions rather than simply withdraw them.

All data points to the necessity of withdrawal of the “sunset” provision of the Technical 

Standards. In an NIGC commissioned economic study, the anticipated impact of the 

regulation was a loss of tribal gaming revenue of approximately $1.4 to $2.2 billion 

dollars.

3

 

 

1 25 U.S.C. § 2702(1).

2 25 C.F.R. § 547.5(b).

3 Alan Meister, The Potential Impacts of the October 2007 Proposed Class II Gaming Regulations (2008).
In addition to the impact of the sunset provision on tribal gaming revenue, the Fort 

Belknap Community also faces another unique challenge as a tribe located in Montana. 

Unlike many other states, our state does not have a model or uniform Class III gaming 

compact. The state currently has Class III compacts with five of the seven reservations in 

the state, including the Fort Belknap Community, and each tribe’s Class III gaming 

operations are subject to different terms.4 Because of the uncertainty associated with 

Class III gaming in Montana, Class II gaming is important to the state’s tribes as both a 

source of revenue and an important bargaining chip in compact negotiations. 

Statutory Authority 

The enactment of these regulations represents an exercise of rulemaking and enforcement 

powers beyond those given to the agency under the IGRA. An agency may only exercise 

powers granted to it in its authorizing statute.5 The Act defines the powers of the NIGC 

relating to Class II gaming. 6 Specifically, the NIGC is tasked with monitoring Class II 

gaming on Indian lands and inspecting Indian lands on which Class II gaming is 

conducted. The IGRA’s grant of rulemaking authority is limited to regulations necessary 

to implement the express provisions of IGRA. 

The NIGC cannot rely on the auspices of the IGRA as authority for the promulgation of 

the Technical Standards. The IGRA’s stated purpose is to ensure that tribal gaming be 

“conducted fairly and honestly by both operator and players” and “to ensure that the 

Indian tribe is the primary beneficiary of the gaming operation.”7 This general policy 

 

4 https://dojmt.gov/gaming/state-tribal-gaming-compacts/

5 See e.g. BMW of North America, Inc. v. New Motor Vehicle Bd. (1984) 162 Cal.App.3d 980, 994, 209 

Cal. Rptr. 50 [“It is fundamental that an administrative agency has only such power as has been 

conferred upon it by the constitution or statute and an act in excess of the power conferred upon the 

agency is void.”]

6

(b) The Commission—

(1) shall monitor class II gaming conducted on Indian lands on a continuing basis;

(2) shall inspect and examine all premises located on Indian lands on which class II gaming is conducted;

(3) shall conduct or cause to be conducted such background investigations as may be necessary;

(4) may demand access to and inspect, examine, photocopy, and audit all papers, books, and records 

respecting gross revenues of class II gaming conducted on Indian lands and any other matters necessary to 

carry out the duties of the Commission under this chapter;

(5) may use the United States mail in the same manner and under the same conditions as any department or 

agency of the United States;

(6) may procure supplies, services, and property by contract in accordance with applicable Federal laws and 

regulations;

(7) may enter into contracts with Federal, State, tribal and private entities for activities necessary to the 

discharge of the duties of the Commission and, to the extent feasible, contract the enforcement of the 

Commission’s regulations with the Indian tribes;

(8) may hold such hearings, sit and act at such times and places, take such testimony, and receive such 

evidence as the Commission deems appropriate;

(9) may administer oaths or affirmations to witnesses appearing before the Commission; and

(10) shall promulgate such regulations and guidelines as it deems appropriate to implement the provisions 

of this chapter.

7 25 U.S.C. § 2702(2).
statement should not be construed broadly to authorize the Commission’s removal of 

grandfathered Class II gaming systems. 

TGRA Authority

The IGRA’s express language vests tribal governments with exclusive regulatory 

authority over their gaming operations, subject to NIGC oversight.

8

 As mandated by the 

IGRA, Tribal Gaming Regulatory Authorities (“TGRA”) exercise significant regulatory 

authority over tribal gaming operations, particularly in regards to day-to-day gaming 

activities. Tribes have a heightened interest in ensuring the integrity of their gaming 

operations, so it is appropriate that TGRAs exercise a primary role in regulating tribal 

gaming operations. We ask that the NIGC remove the sunset provision and allow 

TRGAs the ability to fulfill their role as primary regulator as assigned by Congress.

Grandfathered Gaming Systems-Integrity

Since the implementation of the Technical Standards, no documented failure of the 

grandfathered gaming machines or equipment has been published by the NIGC. In fact, 

historical data evidences success of the grandfathered machines. Therefore, the 

mandated removal of the machines at the “sunset” date is clearly arbitrary and capricious. 

The 2008 Commission openly acknowledged that there were no known threats to the 

integrity of Class II gaming posed by these gaming systems; justification for these 

regulations relied solely on a possibility that the integrity may be jeopardized in the 

future. The Commission stated that “grandfathered machines have, for the most part, 

continued to operate with relatively few problems to the patron or the gaming operations. 

Nevertheless, lack of a major incident in the past does not mean that the grandfathered 

Class II gaming systems pose no risk to patrons and the gaming operation.”9 The 

concerns of the NIGC have yet to arise. The Fort Belknap Gaming Commission requests 

that the current NIGC administration review the evidence and remove the “sunset” 

provision from the current regulation.

Conclusion

In closing, the Fort Belknap Gaming Commission again urges the NIGC to remove the 

sunset provisions from the Part 547 Technical Standards as a means of restoring the 

primary regulatory role in Class II gaming to the tribes. The economic impact on small 

tribes such as ours are too great to justify the unwarranted removal or modification of 

these Class II systems. Again, we thank you for the consideration of our comments on 

this critical gaming matter. 

 

8 25 U.S.C. § 2710(a)(2).

9 77 Fed. Reg. 58473, 58475.