Regulatory Updates

IGRA - If It Ain’t Broke, Don’t Fix It

Ben Nighthorse Campbell
Ben Nighthorse Campbell

Ben Nighthorse Campbell, Senior Policy Adviser, Holland & Knight LLP
and Former Chairman of the U.S. Senate Committee on Indian Affairs

Many people have the mistaken impression that Indian people were granted the "right to game" by an act of Congress. However, Indian people have been gaming since the beginning of time. It was ingrained in our culture through hand games, horse races and other venues long before the advent of casino gaming. It was only when our right to game was challenged by outside entities that the courts were called upon to rule on the right of tribal governments to promote gaming as a means of economic development. After listening to the reasoned arguments of both sides, the courts upheld the sovereign right of tribes to game. Note, they did not grant such rights, they upheld our right to game…a right that was already ours.

Faced with the knowledge that Indian tribal rights had been upheld and that gaming would continue to be a reality, Congress was faced with the political realities of ensuring that Indian gaming was properly regulated to assuage the concerns of the states in which such gaming would occur, while protecting tribal sovereignty. As a Congressman at that time on the committee of jurisdiction, I was proud to be one of many voices, both in Congress and from Indian Country, who worked on the creation and passage of the Indian Gaming Regulatory Act, which was signed into law by President Reagan on October 17, 1988.

To be honest, my colleagues and I hoped that IGRA would be a vehicle that would enable Indian tribes to create a few jobs and offset some of the economic burden faced by tribal governments. We had no idea that Indian gaming would become "the new buffalo" providing economic prosperity for so many in Indian Country. That is not to say that gaming has "risen all canoes" equally. Only 224 tribes game, less than half of all federally recognized tribes. Of those, due to location, many operations only provide a few much-needed jobs on the reservation, and fewer than 50 are making significant revenues for their tribes. However, as is the "Indian way," as these tribes have prospered, they have increasingly shared their good fortune with less fortunate tribes by investing in other tribal businesses and circulating more dollars into the Indian economy. After more than a century and a half of economic devastation and failed programs and policies for Indian people, Indian gaming has proven to be the one avenue to self sufficiency that has actually worked.

History has shown us, whenever something works better than was expected, there are always those who feel the need to change it. As Chairman of the Senate Committee on Indian Affairs, I always took the position that we do not make changes to something that is working, unless one can demonstrate proof that there is a drastic problem that needs to be addressed. Despite the fact that Indian gaming is working economically, and Indian gaming is already more tightly regulated than its corporate counterparts in Nevada and Atlantic City, and Indian gaming has suffered no major scandals that need to be addressed, we have still been forced to fight against needless legislative attempts by some well-meaning, and others with ill-intent in Congress to change IGRA, and thus far we have succeeded. However, the latest attempts to alter the course of Indian gaming have not come from Congress, but rather from the NIGC, in the form of their proposed revisions of the IGRA Class II Indian gaming regulations.

IGRA promotes tribal self-governance by calling upon tribal governments to enact a tribal gaming regulatory ordinance for Indian gaming, subject to the review of the National Indian Gaming Commission to ensure that the ordinance meets the minimum statutory requirements. For Class II bingo, games similar to bingo, non-banked card games and pull-tabs, the NIGC then provides background monitoring to support tribal regulators.

I have always been troubled that although IGRA acknowledges tribal gaming regulators as the primary, day-to-day regulators of Indian gaming, the NIGC has continually tried to expand its duties beyond its statutory mandate, often to the detriment of tribes. In fact, an independent economist reported that the proposed NIGC Class II regulations would cost Indian tribes between $1.2 billion and $2.8 billion annually, yet tribes were not properly consulted with, nor were alternatives offered.

Thus, I was pleased, on June 5th, 2008, when the NIGC announced they "put aside" the Class II "game classification" and "definition" portions of the Class II Regulations. However, to be clear, the "put aside" only becomes official when NIGC Chairman Hogen has his intention published in the Federal Register, an action which has to date not been taken. Chairman Hogen continues to state that the NIGC intends to withdraw the classification and definition sections of the Class II regulations at an appropriate time in the future.

It is time to hold Chairman Hogen to his word and ask that these onerous regulations be permanently withdrawn, and that NIGC set a new course for true government-to-government consultation in the future.

Ben Nighthorse Campbell is Senior Policy Adviser for Holland & Knight LLP and former Chairman of the U.S. Senate Committee on Indian Affairs. He can be reached by calling (202) 955-3000 or email ben.campbell@hklaw.com.