Anthony Broadman has published "At a Minimum: The Legal Case for Advisory MICS," in Casino Enterprise Magazine.
For Indian gaming attorneys, the CRIT decision evoked many questions that have yet to be answered. Earlier this year, Norman H. DesRosiers, Commissioner of the San Manuel Tribal Gaming Commission, brought some of these questions to the forefront in his article, A Closer Look at the NIGC’s Class III MICS, INDIAN GAMING, March 2011, at 28. Some of the gaps created by the CRIT opinion and exposed by Mr. DesRosiers deserve further exploration. In denying the NIGC the regulatory authority to issue binding regulations, the CRIT opinion struck the proper balance between tribal and federal regulatory powers. CRIT did not, however, render the NIGC MICS inoperable or unnecessary, nor did it strike down the authority of the NIGC to promulgate MICS pursuant to other administrative procedures. Indeed, CRIT revealed the appropriate place for the NIGC MICS: advisory regulations issued in order to provide a default template for tribal-state compact negotiation. In short, short of an intolerable intrusion of the NIGC into tribal regulatory authority, NIGC MICS are still permissible and potentially useful – if for no other reason than to keep states out of the tribal internal gaming control arena and Congress from seeking to amend the Indian Gaming Regulatory Act (IGRA).
Anthony Broadman is a partner at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on company-critical business litigation and representing tribal governments. He can be reached at 206.691.3631 or firstname.lastname@example.org, or or via galandabroadman.com.