WASHINGTON -- Section 20 of the Indian Gaming Regulatory Act provides the
authority that makes it possible for tribes to engage in gaming on lands
acquired after the 1988 passage of IGRA, no small matter as tribes have
increasingly sought trust status for lands near the population centers that
can drive casino profits upward. At a Senate Indian Affairs Committee
hearing Feb. 1, Sen. John McCain charged the Interior Department with
providing regulations for Section 20, which has operated under the less
stringent guidelines for 17 years.
George Skibine, Interior's acting deputy assistant secretary of Indian
Affairs, told the committee chairman that draft regulations might be
forthcoming within two months. McCain, R-Ariz., didn't seem to be
particularly heartened by the offer, observing that after 17 years the
department still has a consultation process to go through before
regulations can find their way into draft form. Byron Dorgan, D-N.D., the
committee's ranking Democratic senator, emphasized to Skibine that seeking
permission from tribes to sign off on a draft is not consultation.
Consultation is participative, an important part of a reciprocal process,
and Dorgan recommended it to the department in the full meaning of the
McCain then asked on how many occasions tribes have changed use-of-land
statements, required by Section 20, to include gaming, as subsequent tribal
governments are entitled to do. "A few," Skibine said, adding that he'd
have to check on the exact number. McCain stayed with his line of
questioning, wondering aloud whether a change in land-use plans to include
gaming, when an original statement made no mention of it, should at least
require a whole new application for land-into-trust approval. Skibine
replied that Interior places no encumbrance on land that is approved for
This led McCain to the lament that has in some part motivated the quest in
Congress for new IGRA regulations: "We hear every hour of every day" from
non-Indian citizens who complain that they didn't get a chance to
participate in a land-into-trust approval process that placed a casino in
or near their community.
But they do have the chance to participate, Skibine insisted, leading a
later panel witness to detail charges of carefully designed "last-minute"
participation opportunities for the citizenry at large long after
negotiations have gone forward between tribal representatives and local
elected officials, who are usually impressed by the sums of money mentioned
by the tribe.
But in questioning yet another witness, McCain laid out something of a
civics lesson in representative democracy as historically practiced in
America: the will of the local community is exercised through elected
officials; and the decisions of these officials -- to support a tribal
casino in their locale, for instance -- is held to reflect the majority
view of the community, no matter how strenuously minority factions may
oppose it. Their remedy under this system would come at the next round of
local elections or through the courts.
If "a local, public referendum on every tribal casino project" were held
"to ensure the majority of the community actually wants it," as advocated
by Liz Thomas of Taxpayers of Michigan Against Casinos, McCain wondered if
the communities in question would ever approve so much as a cell phone
tower. The answer that came back from the panel was "Probably not."
No word on whether Thomas' plans would single out tribes to a
The last word on the hearing -- though very far from the last ones on the
topic of gaming-related land-into-trust applications and its alleged seamy
underside, "reservation shopping" -- came from Dorgan. The method of
administrating Section 20 is vital to the integrity of Indian gaming as a
whole, and so is "updating these laws. That's the purpose of this hearing."