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Indian Gaming Reform: What Is Congress Plotting, and How Will SCIA Chair Jon Tester Respond?

Undercurrents of legislative reform of the Indian Gaming Regulatory Act (IGRA) — the 1988 law that gives the federal government the power to regulate tribal gaming — are once again flowing through Congress.

That legislators are intent on fiddling has been confirmed twice in recent months at congressional hearings, first in September with the House Subcommittee on Indian Affairs, where off-reservation California casino battles took center-stage, and most recently at a July 23 meeting of the Senate Committee on Indian Affairs (SCIA). 

Allegations of lies by a tribal government about an off-reservation casino, competing Indian interests in many states, flat earnings and the responsibility of regulators were all topics of discussion during the latter hearing, which was originally intended to showcase the success stories of IGRA and to seek out ways for more tribal victories.

Such bleak matters were perhaps not what SCIA Chairman Jon Tester (D-Mont.) hoped would prevail during his first gaming-focused gathering as chair of the committee, titled, “Indian Gaming: The Next 25 Years.” After all, there is an amazing and complex story to be told about how Indian gaming has helped some of the most struggling tribes over the last quarter century, as various tribal leaders noted during the hearing. And there are many more tribes that could benefit from the law as it is written.

“There is a lot of debate about gaming in general, but one aspect that is undeniable is the economic development benefit of gaming to tribes,” Sen. Al Franken (D-Minn.) said halfway through the over two-hour-long meeting, as he attempted to remind everyone of the positive side of this $28 billion per year industry currently operated by approximately 245 tribes. “If Indian gaming vanished tomorrow, and all [tribal] needs shifted to federal trust responsibility, what would that look like?”

“I would shudder to think what Indian country would look like without the revenues that come in from Indian gaming,” responded the Department of the Interior’s Assistant Secretary for Indian Affairs Kevin Washburn, who had noted earlier in his testimony, “No one believes… that [the federal government has] enough money to fulfill our trust responsibility to Indian tribes in the federal appropriations process.” 

The Off-Reservation Casino Conundrum

But Tester knew that the dark issues – and the calls for reform – were coming, just as they had come in spurts many times over the last 25 years, especially regarding portions of IGRA that allow off-reservation gaming in limited circumstances. His staff, in the weeks leading up to the main event, had been hearing from a variety of federal, state, and tribal sources, each wanting to get their pressing problems on the table.

One of those interested parties was Sen. Dianne Feinstein (D-Calif.), who wished to appear before the committee for the second time since November to discuss off-reservation gaming and tribal casino competition in her state, which she has said the Obama administration has exacerbated by approving and considering several applications for new trust lands from tribes that have not had traditional reservations.

Despite widespread tribal opposition, Feinstein introduced a bill in the Senate last year that would make it more difficult for tribes to acquire land that could be utilized for gaming. She has continued to push that bill this year, and she has said she will only support a legislative fix to the 2009 Supreme Court Carcieri decision that limits Interior’s ability to take lands into trust for tribes so long as it including gaming limitations for tribes.

Feinstein’s appearance was announced by SCIA staff two days before the hearing, but on the day of, she was missing in action—much to the surprise of tribal advocates who expected her to firmly press her case against Indian gaming once again, and to the wonder of SCIA staff, too, who thought that maybe a foreign relations conflict came up for her.

Tom Mentzer, a spokesman for Feinstein, said that the senator “unfortunately had a last-minute scheduling conflict and was unable to make the hearing,” and he has been unable to provide her written testimony to date. Tester has previously vowed to discuss the Carcieri issue with Feinstein, as he supports and has introduced a clean fix that does not tie gaming to trust lands acquisition by Interior.

All Eyes on Arizona

Even without Feinstein, the off-reservation casino issue was in the spotlight thanks to Reps. Paul Gosar (R-Arizona) and Raul Grijalva (D- Arizona), tribal leaders Diane Enos, president of the Salt River Pima-Maricopa Indian Community, and Tohono O’odham Chairman Ned Norris Jr.

Gosar and Enos at the hearing made fervent pleas against the Tohono’s successful efforts to date to establish a casino in the Phoenix metro area, despite previous promises made by the tribe not to do so. Grijalva and Norris countered that the project, which recently gained approval by the city of Glendale, was lawful.

Gosar testified in favor of a House bill that would require the tribe to wait until 2027 to proceed with its plan. “[Tohono O’odham’s] promise to build no additional casinos in Phoenix is not something that Congress can ignore,” the congressman testified before SCIA. “No entity, governmental or otherwise, should be rewarded for deceptive conduct that violates a compact and is contrary to the will of the voters.”

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Grijalva testified in response that the House legislation is a “special-interest bill” that should be put to rest.

Enter Sen John McCain (R-Arizona), who helped write the Gila Bend Indian Reservation Land Replacement Act, which allowed the Tohono O’odham to buy lands in Glendale for its casino—and which has been a source of consternation for the senator ever since. As the former chair of SCIA, McCain raised points on both sides of the issue, saying that he can understand the concerns of Arizona residents who feel a “casino [is] being air-dropped into the metro Phoenix area,” yet he noted that the federal courts have ruled in favor of Tohono O’odham; and he made sure to ask Washburn whether he has ensured the process has been lawful, which Washburn said it has been.

Beyond the Tohono O’odham casino, many tribal advocates nationwide continue to watch McCain closely for his positions on tribal gaming. Having been an author of IGRA when he served in the House in the 1980s, he has since tried to unsuccessfully limit tribal gaming in some circumstances by amending IGRA, and he has continued to pursue oversight, including an ongoing investigation by the Government Accountability Office. Plus, much to the chagrin of many tribes, he has been supportive of Feinstein’s Carcieri fix machinations.

Concerns Inside – and Outside – the Hearing

Even when Tester attempted to highlight positive instances of Indian gaming during his July 23 hearing, he found himself experiencing challenges from outside the hearing room.

One of these issues centered on Eastern Band of Cherokee Principal Chief Michell Hicks, whom Tester’s staff invited to explain the benefits gaming has provided to his community and beyond. Hicks provided a solid, well-rounded explanation, and he was complimented by Tester after his testimony.

But tribes that have faced negative dealings with the Eastern Band of Cherokee over casino development and federal tribal recognition – namely the nearby Catawba and Lumbee Tribe – were not so pleased that this tribe was being used by Tester as a glowing example of Indian gaming. The Catawba Nation, for one, has experienced a prolonged legal and moral battle with the Eastern Band of Cherokee involving the Catawba’s desire to pursue a casino on its homelands; and the Lumbees have faced intense lobbying from the Eastern Band of Cherokee against their bid for federal recognition. Both tribes have indicated that the Eastern Tribe of Cherokee is usurping their sovereignty to protect its gaming operations.

“Poverty is the worst form of violence,” Paul Brooks, chairman of the Lumbee Tribe, said in a statement after Tester’s hearing. “While a number of tribes such as the Eastern Band of Cherokees have greatly benefitted from economic opportunity, too many tribes and Indian communities live on islands of poverty.

“We must remember that we all breathe the same air, and we must give all our Native brothers and sisters a basic chance,” Brooks added. “Tribal economic development and self-sufficiency are beautiful dreams that are not to be exclusively realized by the few. Poverty of goods in today's world, though difficult, can be cured.”

When Indian Country Today Media Network asked SCIA staff before the hearing about the concerns raised by the tribes regarding the Eastern Band of Cherokee appearance, sensitivity was evident. “[Y]ou know we don’t comment on rumors and speculation,” Reid Walker, a spokesman for Tester, e-mailed in response to questions posed by ICTMN to SCIA Director Mary Pavel over how and why the tribe was invited to testify. “From the questions below, it sounds like this story is already written.” 

No story was already written, ICTMN assured Walker. But the Catawba and Lumbee concerns do remain.

More Oversight to Come

Indian casino competition issues are not going away — if anything, they are getting more pronounced — and therefore, because Congress has oversight authority over this field, it is not going to sit idly by, simply looking to tribal success stories for insight.

The big question is whether Congress will try for incremental changes, passing or not passing bills related to one or few tribes, as the Tohono O’odham legislation would do, or whether sweeping and broader legislation will gain favor, as Feinstein would like to see happen with a potential Carcieri legislative fix. To date, IGRA amendments, even with strong support from McCain have failed, and Feinstein knows this, so many believe she and legislators like her with major off-reservation gaming concerns will continue to seek larger must-pass legislative vehicles to attach their bills.

There are pitfalls for tribal sovereignty in both approaches, notes George Skibine, former Acting Chairman of the National Indian Gaming Commission who is now an Indian affairs lawyer with Dentons. “I have always had an issue with legislative efforts that target specific tribes for disparate treatment,” he said after the hearing. “Of course, a legislative approach that will infuriate only one tribe is more likely to be successful than one that will be opposed by multiple tribes.”

As the tribal gaming industry matures and as revenues have plateaued of late, which Washburn testified to, there is great interest in the complexities of tribal gaming and how they will be resolved, as evidenced by the long, long audience line to get into the July 23 SCIA hearing room, which committee vice-chair Sen. John Barrasso (R-Wyoming) excitedly pointed out to Tester early on. The chairman noticed, lamenting that the same large audiences have not filled his recent hearings on Native youth, education, and language. 

Tester, slightly exasperated, vowed to forge on. “What we need to do as a committee is do our due diligence on all these issues,” he said at the conclusion of his hearing.