by Leah R. Sixkiller
In 2019 we saw several changes to the legal landscape affecting internal tribal gaming regulators. Sometimes these changes go under the radar, so here is a snapshot of the recent developments.
Noncriminal Justice Applicant’s Privacy Rights
In November of 2019, the Federal Bureau of Investigation (FBI) updated the Noncriminal Justice Applicant’s Privacy Rights disclosure notice.[1] Such notice outlines the rights of a person who is subjecting him or herself to a criminal history record information (CHRI) check for noncriminal purposes. The new FBI requirements may impact internal policies and procedures for tribal gaming regulatory authorities (TGRA) that conduct background checks on license applicants. The only substantive change appears to be the addition of the written advisory of procedures for obtaining a change to one’s CHRI. In other words, TGRAs are now required to provide a license applicant with the written procedures for obtaining a change, correction, or update to one’s CHRI, which procedures are outlined at 28 CFR 16.34. Summarily, the FBI’s new form of criminal history record privacy rights notice will likely mean changes to TGRAs’ internal licensing procedures.
National Indian Gaming Commission (NIGC) CHRI Requirements
In July of 2019, the NIGC sent TGRAs two notices regarding updates to its requirements regarding CHRI. Both notices indicated that the updates were a result of a request by the FBI. The first notice set out guidelines for TGRAs to follow during their processes of obtaining a license applicant’s CHRI, specifically indicating the different notices and information that the TGRA must supply to the license applicant. [2] Unfortunately, some of the wording in the notice did not appear to create a clear mandate for TGRAs, but rather to provide a recommendation. In any case, the notice seeks to provide guidance that should certainly affect TGRAs’ policies and procedures.
The second notice addressed the submission of license applicants’ fingerprints through the NIGC for processing CHRI with the FBI. [3] It appears that the FBI (through the NIGC) is attempting to limit the influx of CHRI requests it receives regarding Indian gaming license applicants. Anecdotally, several tribes have also begun to receive correspondence from the NIGC regarding other (perhaps unfounded) requirements for fingerprint submissions. Because each TGRA is unique, it is important to assess the details of these notices to determine the applicability to internal TGRA policies and procedures and whether and how to adjust accordingly.
Federal Minimum Age to Purchase Tobacco Products
In December of 2019, the FDA raised the minimum age to purchase tobacco products to 21 years of age, so now it is illegal for retailers to sell tobacco products to a person under the age of 21.[4] Many states and other local municipalities had or have already followed suit by raising the legal age to purchase tobacco products, and Indian nations appear to be no exception. Most, if not all, TGRAs are required by tribal law to ensure that the tribal gaming enterprises that they regulate comply with all applicable law, which presumably includes federal law that is not necessarily directly related to gaming. If it has not already done so, each TGRA will have to assess the process for ensuring that its respective tribal gaming enterprise complies with this new federal law.
[1] https://www.fbi.gov/services/cjis/compact-council/guiding-principles-noncriminal-justice-applicants-privacy-rights
[2] https://www.nigc.gov/images/uploads/training/1_20190701%20CHRI%20MOU%20Updates.pdf
[3] https://www.nigc.gov/images/uploads/training/2_20190719%20CHRI%20MOU%20Updates%20TGRA%20Employees.pdf
[4] https://www.fda.gov/tobacco-products/ctp-newsroom/newly-signed-legislation-raises-federal-minimum-age-sale-tobacco-products-21