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Tribal message on Class II regulations is getting through

An interview with National Indian Gaming Association Chairman Ernie Stevens Jr.

Part two

Indian Country Today: Off-reservation gaming remains controversial in some quarters - in fact, a minority of tribes have been known to oppose it, especially when an off-reservation initiative proposes siting a casino across state lines. What is the National Indian Gaming Association's position on off-reservation gaming generally? Does NIGA have a distinct position on off-reservation gaming proposals that would establish a casino outside the borders of the state where it is located?

Ernie Stevens Jr.: In general, NIGA has sought to preserve the integrity of the Indian Gaming Regulatory Act and NIGA has always stood firm in calling for a ''Seminole fix'' as part of any IGRA amendments. We have always opposed IGRA amendments that do not include a Seminole fix. [Editor's note: A Supreme Court decision that went against the Seminole Nation has made it impossible for tribes to sue states for bad-faith negotiation in the tribal/state compacting process established by IGRA. Only Congress has the authority to try to ''fix'' or rectify a Supreme Court ruling.]

Specifically concerning Section 20 [of IGRA], based on the guidance of our tribal leaders after many, many meetings, NIGA strongly opposed both the [Sen. John] McCain and [Rep. Richard] Pombo bills. Most Indian tribes believed that the actual record under IGRA did not justify stripping existing Section 20 secretarial procedures for acquisition of Indian lands after 1988, eliminating the recognition of land claims and subordinating tribal governments to counties and local governments in regard to the initial reservations of landless, restored and newly acknowledged tribes.

Moreover, we did not believe that ''landless, restored and newly acknowledged'' tribes were properly considered to be ''off-reservation,'' since their lands would actually be their initial reservation. In other words, because the United States had taken all of their lands, there was no reservation to be ''off'' of. Therefore, NIGA supported the right of these tribes to reacquire ''a portion of their aboriginal or historical lands,'' to be held on the same basis as other Indian lands.

At the outset, it is important to point out that 98 to 99 percent of Indian gaming is on-reservation. Yet, a majority of Indian tribes were opposed to amending IGRA's Section 20 because they were concerned that the amendments would diminish tribal rights that, once lost, would be very difficult to restore. Tribal governments were also very concerned that extraneous side-amendments could be added in the legislative process that would undercut tribal self-government more generally. For example, one senator indicated a desire to add his own amendment that would undercut the scope of gaming permitted in tribal/state compacts.

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NIGA reported to Congress concerning after-acquired lands that a new regulation under Section 20 that would clarify the right of state and local officials, including nearby Indian tribes, to consult with the Secretary of [the Department of the] Interior [on casino citing] would be better than legislation completely eliminating this process. At the end of the day, Congress determined that amendments to Section 20 were not its priority. In October, Secretary of the

Interior Dirk Kempthorne published Section 20 regulations to clarify the right of state, local and nearby tribal officials to comment in the Section 20 process; and those regulations are likely to be finalized before the end of the year.

ICT: The National Indian Gaming Commission accepted its final comments on proposed Class II gaming regulations on Jan. 31. Tribes have largely opposed the regulations, a study ordered by the commission reports that the new regulations would damage many reservation economies and the court system has so far ruled against the commission's expansive view of its own authority. Has NIGA decided on a course of action if the NIGC promulgates a set of new Class II regulations tribes find objectionable? What are the chances that if NIGC's regulatory initiative falters, sentiment would emerge in Congress to enact the regulations as law?

Stevens: NIGA and our member tribes have worked hard to send a clear message to NIGC: IGRA's statutory provisions on Class II technologic aids and the five Federal Court of Appeals decisions in favor of Class II technologic aids must be respected in any regulations.

Right now, after a series of meetings with manufacturers, experts and some tribal leaders, NIGC has taken its Class II technical standards regulation under advisement. In our view, there will likely be substantial changes to the regulation from the proposal that was published more than two years ago. Therefore, we believe that NIGC must republish under the Administrative Procedures Act requirements for fair notice. We also think that it makes sense to defer or drop the more contentious Class II classification regulation until after the technical standards. It is premature to discuss litigation, especially since NIGC appears to be hearing the message from our tribal leaders, industry experts and manufacturers.

We think the Justice Department's proposed legislation was a nonstarter last year, and tribal leaders made clear their firm opposition to giving Justice supervisory authority over NIGC. We may not always agree, but NIGC is a federal agency with its primary mission in Indian country and Justice is not. Given the long list of congressional priorities, the Justice proposal is unlikely to move this year.

(Continued in part three)