NIGA resolutions: Carcieri, compact procedures, tribal tax credits

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SAN DIEGO – While the National Indian Gaming Association tabled a controversial resolution on Internet gaming for further study and discussion, three resolutions regarding trust land, compact procedures and tax credits passed with unanimous support during the Indian Gaming Trade Show & Convention.

Mark Van Norman, NIGA’s executive director, led the discussion and votes on the resolutions during the convention’s last membership meeting April 8.

The resolution called “Supporting Secretarial Procedures in Lieu of Compact” resulted from a 2007 case involving the State of Texas v. the Interior Department and the Kickapoo Traditional Tribe of Texas.

The State of Texas successfully challenged the Secretarial Procedures in Lieu of Compact Regulations (25 C.F.R., Part 291), which gives the Interior secretary the authority to issue procedures to permit Class III gaming if a state fails to negotiate a tribal-state compact in good faith.

State officials, including former Gov. George W. Bush, had refused for years to negotiate with tribes even though some Class III gaming is legal in the state. The Kickapoo Tribe finally asked the Interior Department to intervene and former Interior Secretary Dirk Kempthorne issued procedures to allow the Kickapoo to offer some Class III games, but no slot machines.

A panel of the 5th Circuit Court in a 2-1 decision ruled that former Interior Secretary Dirk Kempthorne had exceeded his authority under the provisions of the Indian Gaming Regulatory Act by cutting the state out of the compacting process, even though the state had refused to negotiate in good faith.

The presiding judge ruled “flat out” that the secretary does not have the authority, Van Norman said. A conferring opinion said the secretary has the authority, but did not exercise it properly under the existing procedures, and a dissenting opinion said the secretary has the authority and the regulations are correct.

“This creates a kind of problem and doubt about existing regulations. It would be a positive thing to take these regulations back and have them revised by the Department of the Interior to meet the concerns that were raised in the concurring opinion in order to remove the doubt over the current regulations,” Van Norman said.

NIGA’s proposed resolution to call on the Interior secretary to issue revised regulations concerning procedures in lieu of a compact and to consult with tribal governments to develop and approve the revised regulations was amended and broadened by a representative of the Poarch Creek Band of Indians.

“In addition, the federal government in accordance with its trust responsibility should support tribes through any and all means in their efforts to resolve the inequities that arise when states refuse to negotiate Class III gaming compacts, including bringing bad faith claims on behalf of the tribes, and further should not hinder the Department of Interior’s current efforts with tribes who are seeking secretarial procedures under the existing regulations,” the amended resolution adds.

The amended resolution passed unanimously.

NIGA members also unanimously passed a resolution “to Support Legislation to Address the Supreme Court decision in Carcieri v. Salazar,” the notorious high court decision last year that the Interior secretary does not have the authority to take land into trust for Indian tribes that were not federally recognized in 1934 when the Indian Reorganization Act passed.

“We had a resolution from last year supporting legislation to resolve the Carcieri Supreme Court case to ensure that all tribes can request that their governments take land into trust. We did not specify what the language would be. There is now legislation pending before Congress and we’d like to support the legislation on the Carcieri fix,” Van Norman said.

The resolution supports the Senate bill introduced last September by Sen. Byron Dorgan, D-N.D. – S. 1703, “A Bill to amend the Act of June 18, 1934, to reaffirm the authority of the Secretary of the interior to take land into trust for Indian tribes.”

The Senate Committee on Indian Affairs held a hearing on the bill Dec. 17, 2009 and ordered it to be reported out of committee favorably with amendments.

Dorgan’s office did not respond to a recent inquiry for an update on the bill.

Two congressional bills similar to S. 1703 are pending – H.R. 3697 and H.R. 3742 – introduced by Rep. Dale Kildee, D-Mich., and Rep. Tom Cole, R-Okla., respectively. The NIGA resolution supports H.R. 3742.

A spokesperson at Kildee’s office said in late March, “The Congressman is currently working with House Natural Resources Committee Chairman Nick Rahall and we fully expect that there will be a markup of this legislation shortly after recess. Congressman Kildee is committed to moving forward with this bi-partisan legislation.”

A spokesperson in Cole’s office said at the same time, “The status of the bill remains unchanged. Committee members are working to find a date for committee markup, but nothing has been scheduled yet. There has been some talk about attaching it to appropriations bills, but there are no concrete details to report at this time. We expect to see more attention devoted to Carcieri  once funding for the Cobell settlement is finalized.”

The NIGA members also voted unanimously in support of legislation to stop taxation of tribal education benefits, cultural activities and other tribal government services and “to provide Indian tribes a 35 percent transferrable tax credit for charitable donations, including charitable donations to other Indian tribes.”

Some tribes, notably the Shakopee Mdewakanton Sioux Community and the San Manuel Band of Serrano Mission Indians, donate millions of dollars to Indian and non-Indian organizations.