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Metlakatla decision still haunts NIGC chairman

WASHINGTON – Beleaguered National Indian Gaming Commission Chairman Phil Hogen showed up at the Oklahoma Indian Gaming Association conference in Oklahoma City Aug. 10 – 12, but strongly worded language from Reps. Tom Cole and Nick Rahall got there first.

Cole, R-Okla., a citizen of the Chickasaw Nation, issued a scalding statement to the Tulsa (Okla.) World that accused Hogen of duplicity, “back-door regulatory actions,” abuse of due process, misuse of power, a breach of the government’s trust obligation toward tribes and “disregard for the rights of Native Americans.”

Rahall, D-W.Va., is chairman of Natural Resources, the principal committee of Indian jurisdiction in the House of Representatives. As the only enrolled tribal member in Congress, Cole is an active member of the committee. Rahall issued a letter to Hogen at about the same time Cole’s statements appeared, directing him to withdraw controversial Class II gaming regulations and start consulting properly with tribes.

The congressmen were responding in large part to a pair of decisions Hogen made June 4. One of them, announced in Oklahoma June 5, “set aside” classification standards that tribes “were going to litigate until the cows came home,” Hogen said. The other denied a modifying amendment to the gaming ordinance of the Alaska Native village of Metlakatla, in effect outlawing “one-touch” bingo games for Class II gaming tribes as actual electronic facsimiles of Class III games of chance. Under terms of the Indian Gaming Regulatory Act, Class III games of chance are legal for tribes only in light of a tribal-state compact. Class II games are not subject to a compact.

But Class II tribes overwhelmingly, almost unanimously, reject Hogen’s definition, arguing instead that technological advances in machines have made electronic bingo more entertaining than in the past, without evolving the game itself from the realm of bingo into a game of chance.

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Cole maintains, as others have before him, that in essence Hogen tried to preserve the “set aside” standards with the Metlakatla decision – “to impose the same policies through administrative fiat,” in Cole’s words. Hogen denied it, insisting there was no intent on his part except to rule on the Metlakatla amendment without keeping tribes in the dark about it as he announced the “set aside” classification standards. “It would have been disingenuous of me to go out to Oklahoma [in June] and say, ‘Good news, guys, I’m withdrawing the part you don’t want,’ without saying anything about this other development.”

According to Joe Webster, representing the Metlakatla council for the firm of Hobbs, Straus, Dean & Walker LLP in Washington, Hogen could go some way toward ending the controversy over his intent by withdrawing the classification standards, rather than simply putting them on the shelf where they could be pulled down again for implementation, potentially at least. “He must move forward now to withdraw those,” Webster said.

But he hadn’t as the August OIGA conference ended.
Billions of dollars hinge on the classification standards, according to an NIGC study and other sources. David Qualls, chairman of OIGA, explained that the entertainment value of Class II machines Hogen approves cannot compete with the one-touch machines he disapproves, let alone the slot machines of the Class III industry. The Metlakatla action, if it becomes the industry standard, will cost tribes between $1.8 billion and $2.8 billion, along with 7,500 jobs, Cole stated. “More than half of those losses would be to tribes based in Oklahoma.”

Hogen, as the head of an independent federal agency, is under no compulsion to heed his critics. As he put it in characterizing NIGC’s relation to other federal agencies, “It’s nice if the federal family can speak with one voice. But I’m not their boss and they’re not mine.”

He added afterward, “We all want Indian gaming to work.” But it has to work in conformity with IGRA and congressional intent in passing the 1988 law, he said.

“All I want is a fair shake,” which he defined as a full, detailed look at the language from IGRA and related congressional committee reports, side by side with his interpretations of Class II and Class III characteristics.