The National Indian Gaming Commission (NIGC) should not capitulate its
agency's discretion to the United States Department of Justice (DOJ) by
further restricting the play of Class II gaming devices. The NIGC stands in
the role of a fiduciary as well as a regulatory agency in its relationship
with tribal nations.
Fiduciary obligations include a certain degree of advocacy when other
parties, such as the state or federal government, do something in
contravention of statutory law and tribal rights. The commissioners have an
obligation to weigh in on the side of tribes when the law is with the
tribes, and even when it is ambiguous. The NIGC appears to be operating
strictly from a law enforcement standpoint without regard to its fiduciary
responsibility regarding Class II gaming issues.
The DOJ and various U.S. attorneys continually back up states that have
refused to negotiate Class III gaming compacts "in good faith" with Indian
tribes. The U.S. attorneys have taken action against Indian tribes where
the tribes turned to Class II machines to put in place viable gaming
U.S. attorneys work hand in hand with attorneys general from those states
in which some of the poorest American Indians in the country live, to keep
tribes from using Class II devices. They even attempt to criminally
prosecute tribal leaders who will not knuckle under.
The U.S. attorneys do this, knowing full well that the states are in
flagrant and open violation of the Indian Gaming Regulatory Act in their
refusal to negotiate "in good faith" with the tribes while allowing other
persons or entities to engage in a plethora of gaming activities, including
prizes in the multimillions of dollars.
Montana, for instance, allows bars, restaurants, gas stations and
benevolent associations to engage in slot machine gaming in the form of
poker, keno and lottery. Prizes are allowed in the tens of thousands of
dollars in "scratch games" and in the hundreds of millions of dollars in
the multi-state Power Ball lottery. Yet Montana continues to insist that
its "public policy" does not allow "casino" gaming nor does it allow large
progressive prizes. Talk about doublespeak! Drive down any business
district in a Montana town and observe the "casino" signs on virtually
One family-owned corporation in Montana owns more than 1,500 gaming
devices. This is more than all the tribes in the state are running. In
truth, "public policy" in Montana is that one entity can run 1,500 devices
in a "casino" and other entities can offer prizes in the millions: but not
the tribes. This is economic terrorism in the form of state-endorsed
In light of these circumstances, tribes have a choice of continued poverty
or turning to Class II gaming. Yet the U.S. attorneys continue to take
action, or threaten to take action, against them. This despite the U.S.
attorneys' losing major Class II cases in federal circuit courts, where the
courts found that the tribes were using NIGC-approved Class II devices that
comported with Congress' intent when it passed the Class II sections of
The Supreme Court rejected DOJ's position and let stand the Circuit Court
reasoning that IGRA is not "inconsistent" with the Johnson Act; it creates
a congressionally-endorsed exception to it. The NIGC regulations passed in
2002 are a reflection of Congress' intent in making that exception and are
consistent with federal court decisions. These decisions and the 2002 NIGC
regulations should have stabilized this area of the law.
The DOJ now threatens to continue to destabilize Class II gaming with its
continued campaign against tribes using Class II devices. In the normal
scheme of things, attorneys who continue to file actions based on a
clearly-repudiated legal position can be sanctioned for filing "frivolous"
actions. The arrogance and vindictiveness of DOJ's campaign in this area
amounts to harassment of tribes and tribal leaders.
DOJ has now brought political pressure to bear on the NIGC to use its
regulatory process to overturn those court decisions and restrict the play
of Class II gaming devices. The proposed NIGC regulations have little to do
with genuine regulatory concerns and seek to make the play of these games
slower and less attractive to players. Yet the NIGC's attempt at
"appeasement" does not go far enough for DOJ.
In a March 16 letter to NIGC Chairman Phil Hogan, then-DOJ Assistant
Attorney General Tom Sansonetti threatened to advocate for "legislative
reform" of the IGRA by clarifying and defining the scope of permissible
gaming "to avoid litigation and inconsistencies." The letter calls the
proposed regulations "inconsistent with the Johnson Act and IGRA." The
letter also, quite arrogantly, instructed the NIGC to "read the DOJ
petitions for certiorari in the Santee Sioux and Seneca-Cayuga cases" if
the NIGC does not get the DOJ position.
The NIGC's response to this politically-backed pressure from DOJ was to
appoint individuals to serve on a Class II Technical Standards Committee to
advise them in writing regulations. The DOJ now claims that NIGC's product
from this process, which it is about to publish in the Federal Register,
was the result of a "government-to-government" consultation process.
Nothing could be further from the truth.
The individuals serving on the Technical Standards Committee never had
decision-making authority from tribal governments. Some of them are
non-Indians nominated from the gaming industry. Few were actually nominated
by tribal governments. The members of the Technical Standards Committee
complained publicly that they did not represent tribal governments and that
the NIGC was not allowing tribal legal and technical expertise to even
participate in the process.
The NIGC and other branches of our "federal trustee" know how to conduct
government-to-government consultation utilizing existing law when engaging
in policymaking. The Federal Advisory Committee Act (FACA) is the only
statutory authorization that even comes close to complying with the federal
government's obligation to deal with the Indian Nations on a
government-to-government basis while developing policy or regulations
affecting the tribes.
The United States used FACA to carry out government-to-government
consultation with tribal governments during the Joint Tribal/DOI/BIA Task
Force on BIA Reorganization in the '90s. The tribal leaders who served on
that task force were "elected leaders" chosen from throughout Indian
country by tribal governments. Word-for-word records were kept. Tribal
technical and legal experts were allowed to provide testimony. There were
tribal and federal co-chairs. Feedback was solicited through a
communications network that ran from the Secretary of Interior to the
reservation/BIA agency level. Periodic reports were given to congressional
As unilateral and arbitrary as the conduct of the NIGC has been in the
present process, there seems to be complacency in Indian country. I
certainly hope no one believes that the NIGC's 11th-hour "consultation"
sessions or the post-publication "comment period" renders the process
meaningful, let alone meets any legal standard for government-to-government
When the Salish and Kootenai tribes of Montana and the Tachi Yokut Tribe of
California recently filed their federal court injunctive actions against
the NIGC, they got little support and even experienced some anger that they
had filed the lawsuit without consulting the D.C. lawyers and lobbyists.
Also, not one member of the Technical Standards Committee filed an
affidavit regarding whether they were in fact representing tribal
governments in a government-to-government process.
Without such affidavits the U.S. District Court in D.C. would not issue the
injunction, but did put the NIGC on notice that if the court finds at trial
in 60 days that the process was not "in fact" government-to-government, it
will be inclined to throw out the product.
Once these courageous tribal governments engaged the NIGC in this action,
they should have been able to depend on the full force of Indian country
behind them. Sadly, that support didn't materialize. It is time for all
Indian country to support these tribal governments.
If these regulations are left to stand, the NIGC and DOJ will have stepped
in on the side of state governments against some of the poorest tribes in
the nation. Congress should be asked to intervene and prohibit NIGC and DOJ
from spending one penny of their budgets on this continued campaign against
tribes and tribal leaders.
The 2002 NIGC regulations and the court cases render these proposed
regulations unnecessary, arbitrary and an abuse of discretion, as they do
not comport with existing law.
Harold Monteau is a partner in the law firm of Monteau & Peebles, a
majority Indian-owned nationwide firm engaged in the practice of federal
Indian Law, tribal economic development, gaming and finance.