NIGC opposes bill to mandate tribal consultation

Senate Indian Affairs Committee oversight hearing on the National Indian Gaming Commission. April 17, 2008.
Opening Statement

Testimony [8.4MB] | Q&A [10.2MB]

Webcast | Written Testimony
National Indian Gaming Commission Chairman Phil Hogen eagerly admitted last week that his agency can do a better job when it comes to consulting tribes.

"There is a problem and we are continually working on it," Hogen told the Senate Indian Affairs Committee on Thursday.

But Hogen, a member of the Oglala Sioux Tribe of South Dakota, slammed a bill in Congress that would require agencies like the NIGC to engage in "regular and meaningful consultation and collaboration" with tribes. He said the proposal would only lead to more litigation.

"I think the proposed act of Congress -- that is, the House bill -- would do a disservice to us, the regulators who have a job to do," Hogen said.

H.R.5608 was introduced last month by Rep. Nick Rahall (D-West Virginia), the chairman of the House Natural Resources Committee. Tribal leaders have expressed their support for the bill, both at a House hearing on April 9 and at the Senate hearing last week.

"The United States should operate on a basis of mutual consent with Indian tribes, whenever possible –- just as it does with United States territories," said J.R. Matthews, the vice chair of the Quapaw Tribe of Oklahoma. "A statutory directive to NIGC on government-to-government consultation is both appropriate and necessary."

A comparable version of the bill has not been introduced in the Senate. But Sen. Byron Dorgan (D-North Dakota), the chairman of the Senate Indian Affairs Committee, and Sen. Jon Tester (D-Montana) are interested in finding out whether the NIGC needs direction from Congress.

"If there is one thing that will get me fired up about government quicker than anything, it's lack of public opportunity for input," Tester told Hogen.

In particular, tribal leaders have raised complaints about two of the NIGC's most recent regulatory efforts. The first involves a complex set of regulations that affect how casino machines are classified and the second affects how tribes license their gaming facilities.

The classification regulations seek to clarify the difference between Class II games like bingo and Class III games like slot machines. Tribes can operate Class II games without state approval while Class III games require a tribal-state compact.

Hogen testified that he believes 57 percent of the Class II machines currently in operation are actually Class III machines. He said the regulations would draw a "bright line" and resolve long-standing uncertainty about such games.

Amid complaints that tribal views are being ignored, Hogen said the NIGC has repeatedly revised, and even scaled back, its proposal. But tribes say an economic impact study that warned of a loss of $1 billion in revenues under the regulations should put an end to the effort.

Tribes also have won a number of court cases that overturned the NIGC's classification of certain games. The U.S. Supreme Court refused to take on the dispute despite a request from the Bush administration.

The second regulation, regarding facility license standards, already went into effect despite tribal opposition. The rule requires tribes to certify that their casinos are located on Indian lands and to ensure they are being operated in a way that protects the environment, public health and safety.

"In general, the NIGC is overreaching with its recent regulations and appears to be engaging in empire-bulding as there is no significant reason for them to be involving themselves in areas already regulated by other federal, tribal and state agencies," said Delia Carlyle, the chair of the Arizona Indian Gaming Association and the vice chair of the Ak Chin Indian Community.

Since taking over the committee in January 2007 after Democrats won control of Congress, Dorgan has shied from gaming issues. The hearing last week was only the second time he has focused on the $26 billion tribal casino industry, though he believes in strong regulation.

"We want to make certain that Indian gaming is able to continue free of scandal, free of difficulty, free of any criminal element," Dorgan said.

During the 109th Congress, Dorgan co-sponsored a major overhaul of the Indian Gaming Regulatory Act when Sen. John McCain (R-Arizona) was chairman of he committee. But with McCain focusing on his 2008 presidential campaign, Dorgan has placed his priorities on health, education and other Indian issues that tribes say were ignored under McCain.

Last June, Dorgan held a hearing on a proposed bill to address one area of tribal casino regulation. He has yet introduce a version of the legislation.

Sen. David Vitter (R-Louisiana) has introduced S.2767, the Common Sense Indian Gambling Reform Act, to make several changes to IGRA. The bill has been referred to Dorgan's committee but a hearing has not been scheduled.

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BIA starts new year with off-reservation gaming policy (1/7)
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