ST. PAUL, Minn. - Two organizations teamed up to further a pro-active agenda against new policies of the National Indian Gaming Commission.
Discussions about commission growth in the past few years led to criticism that it has overstepped its boundaries and original intent.
Recent development of Minimum Internal Control Standards written by the commission prompted the National Indian Gaming Association to consider litigation to stop the standards implementation because, gaming officials claim, it invades tribal sovereignty.
"The NIGC should honor sovereignty. They lost sight of that. They violated our reading of the Indian Gaming Regulatory Act," said Rick Hill, association president.
"The commission is ten years behind the times."
Litigation brings a fear that the rest of the country will be led to believe tribes don't want regulation or at the least want regulation lessened, members of a NIGA and National Congress of American Indians Task Force said during the annual congress sessions here.
Task force participants discussed litigation and decided to move in an orderly manner to develop material for the lawsuit over a two-month period.
The commission was established by Congress under the authority of the Indian Gaming Regulatory Act to serve as a federal regulator of Class II gaming. Hill said the IGRA does not provide that the commission regulate Class III or casino-type gaming, that regulation is up to the tribes and the states with which the tribes sign gaming compacts.
Another contentious issue from the commission are new Environmental, Health and Safety regulations.
"Tribes already have regulations in place and have on-the-ground auditors to monitor the regulations. This can be very problematic. The commission is now getting to be environmental experts. We're waiting for them to become gaming experts," Hill said.
He said tribes make the casinos environmentally friendly and accessible because of business. The imposition of the new regulations directly clash with the sovereign-nation status exercised by the federally recognized tribes.
"Let the NIGC know there is no more need for regulations. Tribes build buildings according to building codes. The new rules propose regulations on parking lots," Hill said.
Sharon House, attorney for the Indian gaming industry, said the commission did not know how to regulate the industry on a day-to-day basis. She said commissioners took it upon themselves to develop regulations and took the process of regulation away from the tribes.
"The Indian Gaming Regulatory Act recognized the sovereignty and protects it. But the commission is now approving tribal ordinances and taking on Class III gaming. In (Senate bill 2920, Indian Gaming Regulatory Act amended version) the commission is given the authority to regulate Class II and III," said Mark Van Norman, executive director of NIGA.
As an alternative to the strict regulation by the commission, task force members were open to working under a guideline and bulletin system, as other agencies such as the Federal Aviation Administration do.
NIGC Chairman Montie Deer said the proposed Minimum Internal Control Standards could use some adjustment, but he said in some cases the regulations are needed because, "casinos are not safe for patrons and employees. We have some casinos where fire lanes are blocked. We have to be consistent. A group of tribal leaders supported the prepared standards."
He said only 15 nations and a few organizations have come forward during the public comment period which ends Nov. 30. Hill said comments from the NIGA, which represents 175 tribes, were counted as a single comment.
The reason for the new MICS or standards was to help smaller tribes which could not afford to invest in the development of self-regulation, yet had some guidelines to use.
"It's not that tribes are opposed to regulation," Van Norman said, "It's just that the NIGC went beyond its boundary and now takes on new authority. It's an infringement on sovereignty."
An audience member asked the task force panel where the commission got the authority to tell the tribal governments what to do. It wasn't clear that the NIGC was subject to President Clinton's executive order directing all federal agencies to work with the tribes on a government-to-government basis.
Van Norman said some legislative issues that continually surface and resurface with different authors or under different names bear watching in the 107th Congress. Legislation that prevents taking land into trust was defeated, but Van Norman predicted the issue will resurface.
Tribes will have to fight efforts to impose taxation on certain sales on tribal lands in the next Congress, NIGA officials said.
Payment of unemployment taxes remains an issue. Van Norman said tribes must be treated as governments under the unemployment guidelines. There is no mention of tribal governments in the language of the regulations, therefore tribes are treated as profit organizations. Federal and state governments do not pay unemployment taxes.
Van Norman reminded audience members that Indian gaming still has some friends in Congress, which has helped to defeat anti-gaming legislation in the past.