On Monday, March 16, 2020, the National Indian Gaming Commission (NIGC) sent letters to tribal gaming regulators offering guidance on actions and considerations regarding COVID-19, including a memorandum to the NIGC Region Directors with protocols in the event of a gaming facility closure. While this new guidance offered assistance from the NIGC and encouraged collaboration in determining responses to COVID-19, it was also markedly more direct than the guidance the NIGC offered on March 12, presumably because President Trump has since declared a state of emergency. Many state and local leaders issued executive orders prohibiting large gatherings and instructing commercial venues to close, and other businesses elected to close or have their employees work remotely.
Generally, only the tribes themselves can decide to close the doors of their commercial facilities, including gaming enterprises. A state, county, city, or other provincial law or order would not necessarily apply to a tribe, unless the tribe had agreed to follow suit through a gaming compact or other related intergovernmental agreement. In the situation at hand, a tribe has the following three options for closing a tribal gaming facility:
- The tribal government issues a law or order forcing the facility to close.
- The gaming facility management elects to close the facility.
- The tribal gaming regulatory agency acts on the gaming facility license (e.g., revocation, suspension, or a notice of violation), thus disallowing the facility to operate gaming.
Many tribal casinos have already closed due to the occurrence of option 1 and/or 2 in consideration of COVID-19. If a tribe does not order its casino(s) to close and the management does not elect to close, then the possibility of closure will default to option 3. The onus will be on the tribal gaming regulators to make a finding under the tribal gaming ordinance and/or regulations on whether the continued operation of the gaming facility protects public health and safety.
The March 16 NIGC letter appears to put more pressure on tribes and, in particular, tribal gaming regulators to at least justify remaining open during the COVID-19 pandemic. The recent NIGC memorandum does not necessarily indicate that any tribe must close its gaming facility doors, but rather reminds the tribal gaming regulators of their duties to ensure the public health and safety in the operation of the facilities they regulate, even if the branches of the tribal governments or the facilities fail to act. The NIGC attached a facility closure notification checklist and a COVID-19 preparedness questionnaire, each of which adds to the message that the tribal gaming regulators must justify any declination to act as the last resort to enforce a casino closure. The preparedness questionnaire first asks if the facility will remain open and, if so, the tribal gaming regulators must answer a deluge of questions regarding the tribe’s standards for public health and safety, containment efforts, plans, and what other nearby jurisdictions are doing regarding their commercial establishments. Thus, the NIGC correspondence as a whole makes clear to tribal gaming regulators that they will be the ones to answer if the tribal gaming facilities they regulate do not close.
If the NIGC determines that the responses are insufficient to justify remaining open for business, then it can issue notices of violation and/or temporary closure orders for failure to protect the public health and safety as required under federal law, in particular the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq., which the NIGC has previously done under other tribe-specific circumstances. Thus, the pressure is on for tribal gaming regulators to act if the tribal government branches or the gaming enterprise fail to do so.