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An early look into the 109th congressional session

WASHINGTON -- Early in the second session of the current 109th Congress,
bills to amend the Indian Gaming Regulatory Act and "reform" lobbying
practices at the expense of tribes still dominate the legislative calendar
as far as tribes are concerned.

For Indian country, the weightiest piece of legislation now active has got
to be Senate Bill 2078, the bill offered by Sen. John McCain, R-Ariz., that
would amend IGRA and open it to further change. Many tribal nations and
national organizations oppose the Senate Committee on Indian Affairs
chairman on this one.

IGRA has been the most successful engine of economic development for
Indians ever stumbled upon by Congress, sparking growth in Indian gaming
from $200 million annually at limited venues in 1988 when IGRA became law
to more than $19 billion nationwide today, in the process sending revenue
streams out to ripple through Indian country and rural counties where none
were before.

But that kind of money will heat up anything it touches, and it has
apparently touched a few too many small rural communities for the comfort
of many lawmakers. Such communities have raised a steady refrain to the
effect that they're never consulted when tribal casinos come to town,
though in fact all casino projects approach non-Indian communities through
local elected officials. The other regular feature of the populist front
against Indian gaming is the claim that "reservation shopping" is rampant,
with wealthy casino investors basically buying tribes as a front for Indian
gaming at lucrative sites far removed from legitimate reservations. But one
simple fact would seem to argue otherwise: only three tribes have gotten
approval for off-reservation gaming sites since 1988, each with the
concurrence of the state governors.

A more persuasive argument for IGRA amendments, advanced by McCain and
others, is that Indian gaming is too lightly regulated for a $19 billion
industry. But that light touch has played a significant role in the growth
of the industry, just as conventional Republican free market theory
predicts it must.

Indian gaming is hardly unregulated anyway under IGRA, the National Indian
Gaming Commission and various tribal policies. Should he find enough
support in Congress to amend IGRA, one of McCain's tasks will be to get a
regulatory grip on Indian gaming without throttling its potential growth.
Tribes also fear S. 2078's potential intrusions on tribal sovereignty and
regulatory authority.

But McCain shows no signs of withdrawing S. 2078. And having "listened to
but rejected tribal concerns" about the bill, in the estimation of the
National Indian Gaming Association, he has yet to back off on those
provisions most objectionable to gaming tribes. Among these, according to a
NIGA analysis that circulated at the recent "Impact Week" gathering of
United South and Eastern Tribes in Washington, is one that broadens NIGC
authority to "gaming-related" contracts of $250,000 or more instead of only
"management contracts," as at present; another that permits NIGC oversight
of Class III gaming; still others that enable NIGC to conduct background
investigations of anyone party to a "gaming-related contract" and to fine
any entity found in violation of any IGRA provision while executing a
"gaming-related contract"; and another that would cancel the two-part
determination test that permits off-reservation gaming on trust lands if
tribes can satisfy the secretary of Interior that gaming on newly acquired
lands will serve the best interest of tribes without impairing the local

S. 2078 has been referred to the SCIA, which held an oversight hearing on
off-reservation gaming Feb. 1. It can be accessed on the Internet at

The other active legislation with far-reaching prospects for tribes isn't
even directed at Indians, but at lobbyists. S. 2128 is a direct response to
the misdeeds of former lobbyist Jack Abramoff with more than $80 million of
tribal money. A variety of reforms have been packed into the bill, but a
funny thing happened on the way to reform -- Republicans have begun to
decide in droves that the lobbying business as usual is better than reform
and that Abramoff was an outcast of the lobbying profession from the
outset. Witness the mighty reform measures Republicans have gotten around
to inflicting on the House of Representatives -- former congressional
members and their spouses-turned-lobbyists will now be banned from the
House gym.

But while lobbying reform loses steam among the leadership elite that
attracted $2.1 billion in known lobbying expenditures in Washington in 2005
(this according to James Thurber, director of the Center for Congressional
and Presidential Studies at American University), tribes that contributed
less than $10 million in the 2004 election cycle between all 562 of them
are explaining themselves to Congress. McCain, who presided over another
SCIA hearing on tribes and the Federal Election Campaign Act, may offer a
bill that would standardize the tracking of tribal donations through
identifier numbers, or introduce Political Action Committee-like
characteristics to tribal donating practices. An aggregate limit on tribal
political donations seemed less likely to come from McCain's committee
after the Feb. 8 hearing, where testimony emerged in favor of avoiding
aggregate limits for tribes as a reflection of their sovereignty and
special characteristics within the federal system.

S. 1312 is before the House, having passed the Senate; it imposes a
one-year moratorium on the lobbying activities of former Interior
Department employees hired by tribes.

House Bill 4696 has been introduced by Rep. Mike Rogers, R-Mich., along
with co-sponsor Randy Kuhl, R-N.Y. It is a lobbying reform bill that only
briefly singles out tribes, in Section 401, defining them as corporations
for purposes of political donations. As explained to McCain's committee by
Michael Toner of the Federal Election Commission, H.R. 4696 "would apply
the restrictions on corporate political activity to unincorporated Indian
tribes ... As a consequence, tribes would be barred from making
contributions or expenditures from their general treasury funds. Like
corporations, tribes would be allowed to sponsor a separate segregated
fund, or PAC."

Several Indian organizations offered commentary against that line of
reasoning. The National Congress of American Indians can be said to
summarize them all:

"Treating tribes as corporations ... is inconsistent with the status of
tribes in the federal system. Tribes are constitutionally-recognized
sovereigns with whom the government has a trust responsibility. The same
cannot be said of corporations."

Health care remains a top priority of tribes. A bill to reauthorize the
Indian Health Care Improvement Act has yet to see the full light of day,
but the NCAI issued a strong call for the reauthorization in its State of
the Indian Nations address. Meanwhile, two less sweeping but highly
practical health bills have progressed in the House and Senate. H.R. 4447,
offered by Reps. Frank Pallone, D-N.J., and Henry Waxman, D-Calif., would
forbid the imposition by states and the federal government of cost-sharing
formulas on low-income Medicaid recipients, including American Indians, as
contemplated by a Republican-sponsored deficit reduction bill that is on
the verge of making it into law. Under current law, Pallone explained in a
release, American Indian Medicaid beneficiaries with incomes below the
poverty line are not required to pay premiums, co-payments and other forms
of cost-sharing with their health care providers.

In the Senate, S. 1239 would amend the Indian Health Care Improvement Act
to permit IHS, a tribe, tribal organization or urban Indian organization to
pay the monthly premium for the "Part D" prescription drug plans of
Medicare beneficiaries. (Part D is shorthand for the complex prescription
drug plan that offers senior citizens a choice between competing
pharmaceutical providers.) Without S. 1239, IHS Director Charles Grim said
during a Feb. 16 conference call on Part D in Indian country, the IHS has
no authority to use its funding to pay premiums for its beneficiaries.

Finally, in S. 147 and its companion in the House, H.R. 309, the
congressional delegation for Hawaii continues on its quest to establish a
vehicle for federal recognition of a Native Hawaiian governing entity.
Democrat Sen. Daniel Akaka told a NIGA reception of Feb. 1 that he's been
assured the Native Hawaiian bill "would be considered early in the second
session of the 109th Congress." He said that the debate has not been
scheduled, but added that he's talking with the Senate leadership about
scheduling it.