Regulatory Updates

TGRAs and the NIGC: Are There Conflicts?

Jamie Hummingbird
Jamie Hummingbird

Jamie Hummingbird, Director
Cherokee Nation Gaming Commission

At the Global Gaming Expo (G2E) recently I spoke on a panel titled, “Tribal Gaming Regulators – Protectors of the Industry,” sharing the stage with Lena Hammons (Tulalip) and John Roberts (San Pasqual). My portion of the program dealt with the subject of Tribal Gaming Regulatory Authorities (TGRAs) and the National Indian Gaming Commission (NIGC) in which I examined some – not all – of the ways that conflicts have arisen between the two regulatory bodies. Some of what follows may sound like “NIGC bashing,” but is not my intent; my intent is to point out areas of disagreement and offer what could be the beginnings of a new spirit of cooperation.

In preparing for the presentation I thought there was no better way than to look at the document that set the stage for potential conflict, the Indian Gaming Regulatory Act (IGRA). I needed to look only at the ‘Findings’ section of the IGRA to find what I think is at the heart of each area of disagreement between tribes and the NIGC. Section 2701 (4) states “a principal goal of Federal Indian policy is to promote tribal economic development, tribal self-sufficiency, and strong tribal government” (emphasis added). One of the more important “findings,” in my opinion, comes in the next section, Section 2701 (5), which states:

“Indian tribes have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of criminal law and public policy, prohibit such gaming activity” (emphasis added).

At the time the IGRA was passed twenty years ago, tribes may not have exhibited the level of sophistication they now master. Congress did not feel that anyone – tribes, states, or the federal government – was adequately prepared to protect (i.e. regulate) Indian gaming and, therefore, felt it necessary to put in an ‘overseer’ in the form of the National Indian Gaming Commission. This was to allay their fears that tribes would be taken advantage of and organized crime would become rampant in Indian Country. Further, the notion that tribes could not be relied upon to report or address these issues (the old “fox watching the hen house” cliché) help form the shape of the IGRA.

The NIGC was set up to monitor tribal gaming. Yes, they were given the authority to review and approve tribal gaming ordinances, but the main point was, and is, that tribes drafted and implemented a regulatory structure of their own design. The driving force behind that design also separates the tribes from the NIGC. Whereas the NIGC was formed in part to ensure tribes are the sole beneficiaries of the gaming revenues, so too were the TGRAs. The respective roles may be similar, but the distinction is made by looking to who each is responsible: the NIGC is a federal bureaucratic agency while TGRAs are accountable to elected tribal officials and, ultimately, to the tribal citizens.

Over the years, the relationship between tribes and the NIGC has remained strained as new regulations and NIGC legal decisions, whether in the form of game approvals or statutory interpretations, has put the NIGC in the role of active regulator versus their intended oversight role.

This has led a number of tribes to question the necessity if not the legality of some of these actions. In some cases, tribes have resisted their effects through litigation. To their credit, tribes have won many of these cases, demonstrating skill and ability in appropriately interpreting and applying the tenets of the IGRA.

Absent two minor revisions, the IGRA has not seen any changes since its inception. That does not mean that there haven’t been any other attempts. Tribes and the NIGC can agree that certain provisions of the IGRA are in need of revision; however, the objectives of those revisions are on opposite ends of the spectrum. Tribes have longed for a Seminole fix while the NIGC has sought a “CRIT fix.” Tribes have successfully opposed legislation that would have been detrimental to tribes and can most certainly be counted on to oppose any amendment to the IGRA that would expand the authorities of the NIGC.

The question is – does it have to be this way? My answer would be “no.” Tribes have strongly encouraged the NIGC to become, if not a proponent of Indian gaming, a non-adversarial partner in the industry. Rather than issue exhaustive regulations, such as the minimum internal control standards, work with tribes to develop best practices and publish them in the form of a bulletin. This will allow tribes to adapt the practices to best fit their unique regulatory position instead of trying to comply with a rule that may not fit their operation. Rather than apply strict standards, such as the technical standards for Class II games, work with tribes to develop regulatory guidelines that can be molded to tribal specific economic, environmental, and regulatory conditions.

The NIGC should consider returning to its intended role of promoting tribal economic development, which could best be done by them providing technical assistance to those tribes in need of guidance in areas as identified by the tribe. The NIGC could also offer assistance in areas it identifies through its monitoring role.

The direction and role of the NIGC may see changes in the new Obama administration and will be watched closely by all tribes. The future activities of tribes and tribal gaming regulatory authorities, however, will be guided by the same principles as in the findings of the IGRA. The tribal position as the primary regulator of Indian gaming remains unchanged.

Jamie Hummingbird is Director of the Cherokee Nation Gaming Commission. He can be reached by calling (918) 207-3848 or email jamie-hummingbird@cherokee.org.