Let's consider that the National Indian Gaming Commission is sincere in its desire to maintain the integrity of bingo and other Class II games, what commission Chairman Phil Hogen rightly describes as ''the bedrock upon which Indian gaming was built.'' How does NIGC reconcile its mission of protecting tribal gaming interests with a regulatory program that will inevitably limit the profitability of many tribes' gaming operations? And will the parties that have fostered the tremendous growth of Indian gaming over the last two decades find ways to work together to reach their very similar goals? The desire to create tribal economic stability and protect Indian gaming from predictable outside interests should and must serve as common ground or the divide will surely draw further congressional scrutiny of the Indian Gaming Regulatory Act.
Anticipated rules proposed in October by the NIGC are another attempt of the federal agency to regulate tribal Class II gaming, including high-stakes bingo and video lottery terminals. A failed effort in 2006 led to the revision of certain compliance regulations. The commission contends that the new rules would reduce the economic impact of compliance, specifically regarding the characteristics of Class II machines that attract players. These characteristics, argue tribes, are the bread and butter of their gaming enterprises. Where Class III gaming compacts have not been attempted or negotiated in good faith by states, some tribes rely on Class II gaming as an economic engine in order to deliver essential services for members. ''Class II gaming is the economic lifeblood for tribes,'' said Ernie Stevens Jr., chairman of the National Indian Gaming Association.
Other critics have not been as charitable toward the NIGC's proposal. ''It's like these regulations are penalizing us for our ingenuity,'' said Seneca-Cayuga Tribe of Oklahoma gaming commissioner Jerry Dilliner in an Associated Press report. ''It's logical for states to be behind Class III games because they're regulated, and that means more money for them.'' It is hard to disagree with that, given the attention the media is paying to the proposed rules. Tellingly, when reported in local and regional media, the word most often used to describe tribal Class II operations is ''illegal,'' a term often used to describe Indian-controlled economic activity that does not enrich states.
The danger for tribes ensnared in this debate is not necessarily in accepting the NIGC's Class II rules; it's in obscuring the relationship between the health of tribal gaming and cooperating with an Indian-led oversight body at the federal level. This is another issue that needs a ''bright line'' drawn through it. Tribal gaming, as successful as it has been over the past two decades, is at a crossroads. States, emboldened by Congress' desire to amend IGRA, are taking ever-increasing shares from tribal gaming revenues. It is not unusual now for states to demand up to 25 percent of Class III gaming revenues as part of tribal/state compact negotiations. Tribes are leaning heavily on Class II to turn an untouched profit.
Although tribes have prevailed in legal battles over Class II gaming, there are myriad examples of public opinion leading public policy. The tribal gaming industry, to remain a success story for the Indian people, organizations and federal agencies that have a stake in it, must face Class II regulation with shared goals in mind before the impasse is received as an inability to collaborate on a solution.