by AJ Naff, Editor
Indian Gaming Magazine
Tribes are already responding to these proposed Class II regulations from the NIGC. Tribes are talking to their legislators, senators and congressmen, telling them they think this proposal goes to far. I was here in 1988 when they wrote IGRA and I was one of the participants in writing that bill. We had no idea in those days that Indian gaming was going to mushroom into such a big industry. It's been overwhelmingly successful and I think we're getting caught up in a backlash of petty jealousies and people with an, “I'm going to reform everything in Washington,” attitude. I will say that when you put something like IGRA in place, it's not unreasonable to reexamine it after twenty years to ensure that it's functioning the way it should. I don't think most Indian tribes mind reexamining it. What tribes are really worried about is being overregulated by the federal government. To me, that's a real erosion of sovereignty.
Unfortunately, as I understand it, S.2078, and maybe the House bill, too, will literally give local commissioners veto power over a sovereign nation. Where have you heard that in the Constitution before? Indian governments are one of the sovereignties recognized in our Constitution. They weren't put into law, they were put into our Constitution. The federal government didn't give tribes sovereignty, they recognized the inherent sovereignty of tribes. Why should local government - which is not a sovereign nation, but chartered by law - have veto power over a tribe? To put either of these bills in place is going to jeopardize sovereignty.
I think S.2078 will have a really chilling effect on the growth of the industry. There have been a number of strategy sessions to discuss how tribes thought it would affect them and there could be some really detrimental effects. I'm reluctant to talk about any specifics on how we're addressing this issue, but we're very active on the Hill. Tribes are not telling anybody that they are absolutely resistant to any change. What they are saying is that they believe a lot of these issues can be addressed through regulatory mechanisms that are already in place. If these proposals all go away - we don't know if they will or not, but if they do - then next year tribes intend, through the Indian Gaming Association, to be proactive and to offer some things that they think they can live with that will satisfy those that have been pushing the bills this year. They're not going to just bury their heads in the sand if they get it stopped and say, “Aha, we won that one!” That's not their attitude at all. In fact, they've offered some suggestions already on how to improve the bill, but unfortunately their suggestions have been pretty much rejected.
I don't know what the effect of the DOJ proposal is going to be, but it just seems to me that the DOJ is taking on something that they don't have the authority to. I don't know how they got into this discussion, very frankly, but it seems to me that they shouldn't be. The DOJ is not the lead agency dealing with tribes; the Department of Interior is. When we set up IGRA in 1988, I don't remember anybody giving any authority to the DOJ. The authority to deal with the tribes and with gaming compacts was all given to the Department of Interior. Also, to my understanding, the DOJ has been rebuffed twice already in the federal courts. So they're trying to do something through legislation that the federal courts have already told them they can't do - bringing up the Johnson Act.
I think S.2078 and the DOJ proposal could create a stranglehold on the industry. As I understand the Senate bill, it will be so restrictive and give so much authority to the NIGC that if tribes want to do literally anything, they would not be able to without the expressed authority of the NIGC. They will literally be in control, as I understand it, of all background checks. That means someone that wants to bid on providing the hamburger for the kitchen in a tribal casino would have to go through a federal inquisition of the NIGC to get background clearance. It's just overreaching and not necessary. The fact is that tribes do their own background checks and they're pretty intensive. They do a few hundred background checks a year, but I've heard the number of background checks could increase to over 10,000 a year. There is no way the NIGC can accomplish this with their existing manpower. That means there is going to be a huge appropriation of money to hire a lot more people, which means there will be a continual growth of another agency in Washington. I happen to be a Republican and the way I understand Republican philosophy it's not for bigger government and more agencies in Washington. It's for smaller government and more local control, less intrusion by Washington, D.C. in the lives of the people - and that includes Indians. So it kind of flies in the face of what I think the Republican philosophy is.
Perhaps the only redeeming feature of this whole debate this year is that it's been such a shock for Indian tribes to recognize they're still on the defensive and still have to protect themselves. It has reemphasized the fact that tribes have to be involved in the political process. I often talk about they way we, as tribes, defended ourselves in the old days. We no longer defend ourselves in the prairies and the woodlands anymore with a lance and spear and a warhorse. Now it's in corporate boardrooms, voting rights, and in the halls of Congress. Tribes are becoming more politically active all the time and that political activism is tough sometimes. We're still learning. Many groups that work in Washington have been here for decades, and they know the system better than a lot of our people, so once in a while, we get hoodwinked by people like Abramoff. I know of no tribe, though, that was a willing partner to any wrongdoing at all in that whole Abramoff mess. But a political spin was put on it so now we have some people over here on the Hill trying to out-reform one another. Unfortunately it's on the backs of American Indians and I resent that, quite frankly.
We've been working very hard with our former colleagues, trying to educate them on what the detrimental effects would be of both bills. We want to be a proactive part in making changes if they're necessary. I think one of the few things we really have working on our side this year is time, because they're going to adjourn sooner than they had planned and they have a number of front-burner issues - Iraq, the expanding war in the Middle East with Israel and Lebanon at war, and how to finance FEMA for future hurricane disasters. Those are front-burner issues. Indian gaming is not a front-burner issue for all of our colleagues, but rather only for a few senators and congressmen.
Ben Nighthorse Campbell is a Senior Policy Advisor for Holland & Knight LLP. He is also a former member of Congress and former U.S. Senator. He can be reached at (202) 457-7035 or by email at email@example.com