The National Indian Gaming Commission issued a draft, proposed set of regulations that would require each tribal gaming facility operator to request a license from the Commission or else be subject to shutdown. H/T Indianz.com.

The regs require tribal gaming operators to submit a showing to NIGC that the proposed facility would be compliant with applicable public safety and environmental laws — and to identify the laws that are applicable. On first glance, the question of whether some local or state laws are applicable to tribal gaming facilities is an open question in many, if not most, areas. Tribes may not want to concede that some of these laws might apply. Moreover, there are no standards as to how the NIGC would consider these submissions to be in compliance with the regs (perhaps not a big deal), so if the NIGC thinks some laws apply that the tribes doesn’t, the NIGC could hold up a license on this question. And will there be different standards for renewal applications as opposed to original applications? And that begs the question of how long the NIGC will take to review the applications — a month, a year? Can the regs be enforced against the agency (obviously, I’m not an administrative law scholar, so this might be answered by the APA)?

And, finally, to me the biggest question — does the NIGC have the authority to license tribal gaming facilities at all? There’s nothing in the Indian Gaming Regulatory Act that explicitly authorizes the Commission to license tribal gaming facilities. And then there’s that ongoing litigation that the NIGC is losing — Colorado River Indian Tribes v. NIGC [DC Cir opinion] — holding that the NIGC had no authority to issue minimum internal control standards. If the NIGC can’t issue MICS, then how are they going to require these licenses?

Sounds like a lot more litigation if these regs are promulgated, in whatever form.