WASHINGTON - Actions by outgoing officials of the BIA in the Clinton administration continue to bring heat from members of the Indian Affairs committee.
At a Senate Committee on Indian Affairs oversight hearing on the Indian Gaming Regulatory Act, a number of controversial issues arose. Tribal and federal officials testified on the status of tribal gaming with issues over federal recognition procedures mixed into the committee's agenda.
After assuming somewhat of a low profile since giving up his leadership position on the committee, Sen. John McCain, R-Ariz., came on with hard questions.
He asked BIA Deputy Commissioner Sharon Blackwell why former Assistant Secretary Kevin Gover and his deputy, Michael Anderson authorized recognition of the Chinook Tribe of Washington and preliminary recognition of the Duwamish Tribe of Washington and the Nipmuc Nation of Massachusetts.
McCain asked Blackwell if she thought it was "unusual" that Gover and Anderson approved recognition despite recommendations from staff.
Blackwell responded, saying that it may be unusual, but that "the assistant secretary is ultimately responsible for making these determinations and reviewing staff work."
Questions over motives behind their recognition decisions have dogged former Clinton officials, raising concerns from a number of members of Congress and the new administration. The Duwamish and Nipmuc decisions are now under review by the new assistant secretary.
Activities of the National Indian Gaming Commission and some of the commission's newly proposed regulations were highlighted as well.
In 1988, the NIGC was established as an independent federal regulatory agency when Congress passed the Indian Gaming Regulation Act (IGRA). Created to regulate gaming activities on tribal lands, it is authorized to conduct activities such as enforcement actions, background investigations, audits, the approval of tribal gaming ordinances and management contracts, and the creation of regulations.
The NIGC issued two sets of proposed regulations of particular interest to tribes. The first are rules that would loosen the definition applied to certain gaming devices, now categorizing certain games once classified as Class III as Class II. Class III gaming is often referred to as "Las Vegas" style gaming, while Class II is commonly viewed as "bingo hall" gaming. This would enable tribes, like those in Oklahoma, who do not have a tribal-state compacts and are restricted to Class II gaming, to access new games.
Monte Deer, chairman of the NIGC, opposed the new regulations, but he was outvoted by other commissioners and the proposed regulations were ultimately recommended by the commission. Gaming tribes overwhelmingly offered their support for the proposed regulations.
The second series of proposed regulations would require tribes to comply with various environmental, health and safety regulations, rather than tribally imposed ordinances. The proposed regulations were developed after the NIGC raised concerns about these standards being inconsistently applied throughout Indian country.
"Some tribes had strong policies in place and other tribes did not," said Teri Poust, associate commissioner.
Tribes and organizations like the National Indian Gaming Association (NIGA) claim tribes should be able to regulate themselves in this area and that proposed regulations exceed authority granted to the commission under the IGRA.
"Despite the facts, some report that tribal gaming is not sufficiently regulated," said Ernie Stevens, chairman of the National Indian Gaming Association. "Over the past decade tribes have developed world-class regulatory systems. In 2001, it is estimated that tribes spent over $150 million on regulation."
The push by the NIGC to draft regulations for non-gaming issues like environmental, health, and safety standards fall to criticism from the gaming tribes. The tribes' argument is that the environmental issues, which regulate parking lots, lighting and indoor environments to improve safety in the facility, go beyond the scope and intent of IGRA.
Tribes claim they already pay attention to the environmental issues to attract customers.
Gaming tribes for months have expressed strong concern over the NIGC's authority to issue Minimum Control Standards. Now that the NIGC has become involved in development of environmental regulations, tribes raised concerns as to how far the commission intends to reach into non-gaming issues and how far it will extend itself into the tribal decision-making process.
At the center of controversy is the issue of Internet gaming. Congress has been debating the issue for years and tribes have been party to some of that debate. NIGA has been most outspoken on the issue. At the hearing Mark Van Norman, its executive director, reiterated the position that if the Internet is made available for gaming, tribes should not be restricted from its use.
"We are not seeking legislation that would expand, promote or prohibit Internet gaming," Van Norman said. "However, we do ask that any legislation that goes forward, preserves the right of tribal governments under existing law, and offers them the same opportunity to participate in Internet gaming as any other entity."
Tribal representatives emphasized the benefits gaming revenues brought to communities in better health care and education, and underlined how gaming enterprises strengthened the tribes overall.
"Perhaps most important, gaming has allowed many Indian nations to get closer to the goals of self-sufficiency and self-determination," said ?, president of the United South and Eastern Tribes, a confederation of 24 nations from the eastern and southern United States.
Other issues addressed at the hearing included the benefits of gaming to local economies, regulations on land-into-trust for gaming and use of tribal revenues derived from gaming, such as per capita payments. Amendments to IGRA are under consideration by Congress.