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Tribal Enrollment is not an Issue for Federal Regulators

Phil Hogen, chairman of the National Indian Gaming Commission, drew the ire
of California tribal leaders recently when he suggested the federal
regulatory agency have a role in tribal membership and enrollment issues.

A presentation by the NIGC at a March 25 meeting of the California Nations
Indian Gaming Association in Washington, D.C., generated little response
from tribal leaders until Hogen flashed a power point slide on the screen
reading: "Enrollment/Tribal Membership Issues."

Bullet points below the headline read:

  • Fairness?
  • Due Process?
  • Withstand Scrutiny?
  • Tribal Issues
  • Role for Regulators? Feds?

Hogen said his agency has been receiving telephone calls regarding tribal
enrollment issues, which have of late been generating quite a few headlines
in the nation's press. The tenor of the articles have suggested that gaming
tribes are somehow paring down enrollment or rejecting membership
applications in an effort to generate more per capita revenue for remaining
tribal members, a conclusion that has little basis in fact.

Tribal leaders at the CNIGA meeting were at first stunned, then grew quite
upset at the notion that the NIGC, a gaming regulatory agency often accused
of exceeding its authority under the Indian Gaming Regulatory Act of 1988,
would extend its regulatory reach to include tribal enrollment.

As sovereign governments, tribal nations have a right to determine their
membership criteria and enrollment procedures.

Federal courts have routinely turned away cases by those claiming they were
unjustly denied membership in a tribe, ruling instead that it was a matter
for the tribes to decide. The Bureau of Indian Affairs has stated time and
time again that enrollment issues are not matters for outside agencies.

Tribal leaders agree.

And so do I.

STRETCHING AUTHORITY

The NIGC has long been accused of misinterpreting its authority under IGRA,
which gives primacy for the regulation of tribal government gaming to the
tribes.

In recent testimony before the Senate Committee on Indian Affairs, National
Indian Gaming Association Chairman Ernest Stevens expressed serious
reservations about proposed amendments to the IGRA as they applied to the
NIGC.

S. 1529 amendments suggested expanding the NIGC's jurisdiction over Class
III, casino-style gaming. It also called for federal background
investigations of tribal gaming commissioners.

The creation of tribal commissions and their powers and authorities are set
down in tribal gaming ordinances enacted by tribal legislative bodies, as
required by IGRA. For a federal regulatory agency to encroach to such a
degree into tribal government authority and decision-making is simply
wrong.

Stevens noted that the proposed amendments represented an ongoing effort by
some congressional leaders and federal bureaucrats to expand the regulatory
agency's authority over tribal affairs.

Past commissions lost focus of their statutory responsibilities under IGRA,
Stevens said, which is to provide technical assistance to tribal regulators
and background oversight of Class II gaming.

"They have instead sought to regulate matters wholly unrelated to Indian
gaming," Stevens said.

The NIGC's attempt to get involved in tribal enrollment matters is,
perhaps, the most egregious example of the agency's abuse of power.

CITIZENSHIP CRUCIAL TO GOVERNANCE

The congressional intent of IGRA is to help tribes build strong governments
and economies. Tribes throughout California victimized by generations of
poverty are doing just that, using gaming resources to rebuild governmental
systems that in many cases have crumbled from benign neglect.

"We're just beginning to grow as governments," Anthony Pico, chairman of
the Viejas Band of Kumeyaay Indians of Alpine, told a recent Harvard and
UCLA symposium on American Indian issues and the California Press.

It's a difficult process. It takes time. And it's only natural that, as the
evolution of nation rebuilding occurs in Indian country, issues of
enrollment will take center stage. Examining enrollment is a function of an
efficient tribal government. For many tribes, these enrollment matters
should have been dealt with long ago, but tribal leaders lacked the legal
means and other resources necessary to confront them.

Suggestions by the media that enrollment issues are steeped in greed over
gaming revenues are harsh and unsubstantiated.

Few issues are more crucial to the strength and legitimacy of a government
than its laws defining citizenship. And the responsibility for crafting
those laws in Indian country must be left to the tribes, without
interference from outside agencies or non-Indian governments and court
systems.