National Indian Gaming Commission Announces New Guidance

LAS VEGAS, NV – During the recent Global Gaming Expo in Las Vegas, NV, National Indian Gaming Commission (NIGC) Chairman Sequoyah Simermeyer announced the publication of new Agency Guidance on sports betting activity on Indian lands. This guidance reflects the federal regulatory Agency’s efforts to keep pace with the industry’s growth in this area.

The guidance is part of a series of bulletins the NIGC is issuing on management and sole proprietary interest: Bulletin No. 2021-3, Submission of Agreements for Review; Bulletin No. 2021-4, Submission of Loan Documents and Financing Agreements for Review; Bulletin No. 2021-5, Submission of Sports Book Agreements for Review; and Bulletin No. 2021-6, Sole Proprietary Interest.

This guidance coincides with the withdrawal of NIGC Bulletin No. 1993-3, which reflects the regulatory community’s growth over the last 30 years – particularly in the sophistication of gaming related contracts and agreements. In Bulletin No. 1993-3, the NIGC and the BIA determined that certain gaming-related agreements, such as consulting agreements or leases or sales of gaming equipment, should be submitted to the NIGC for review. When the bulletin was published, the Indian Gaming Regulatory Act was only five years old and NIGC had only recently passed regulations implementing the Act. The NIGC had not yet developed the body of guidance clarifying what exactly constituted management or control of all or part of a gaming operation.

In the nearly 30 years since Bulletin No. 1993-3 was published, however, the tribal gaming industry has grown exponentially in both size and experience. In that time, the NIGC has issued guidance on what activities constitute management, and has reviewed thousands of agreements for management and sole proprietary interest, resulting in a vast body of guidance, and enforcement actions.

During his presentation, the Chairman Simermeyer said, “Both sportsbook and financing-related inquiries have increased substantially leading up to and during the pandemic … The NIGC’s guidance can help bring clarity to management and sole proprietary interest issues as they pertain to agreements. If they so choose, tribes may develop appropriate partnerships that comply with IGRA’s regulatory framework and present an opportunity for new and sustainable growth that serves tribal communities and protects tribal assets derived from gaming.”

Chairman Simermeyer first announced timely agency guidance on sports betting early in his term with the release of Bulletin No. 2020-1 during a New Mexico Indian Gaming Regulators meeting in March 2020. This recent announcement expands on the 2020 guidance.

Although the NIGC’s Office of General Counsel will still review contracts for declination letters upon request, the NIGC no longer believes that the submission of agreements is “necessary” to inform tribes and their contractors of contract provisions that may implicate management or violated IGRA’s sole proprietary interest requirement. Rather, the agency is confident that the vast guidance that has been developed over the last 30 years, including these newly published bulletins, gives tribes and their contracting partners the information necessary to determine whether an agreement violates IGRA’s sole proprietary interest requirement or needs to be submitted for the NIGC Chairman’s approval as a management agreement.