Senate Once Again Looking to Amend IGRA

by Brad Jolly, Partner
Jul 1, 2007

In response to the D.C. Circuit's decision in CRIT v. NIGC, the Senate is working on a draft amendment to IGRA to, once again, expand the power and authority of the National Indian Gaming Commission ("NIGC"). In CRIT v. NIGC, the D.C. Circuit was the third judicial or quasi-judicial body to instruct the NIGC that it lacks authority to regulate class III gaming. But, of course, the NIGC cannot be satisfied in its unending quest for unfettered and unlimited authority over Indian gaming.

When Congress enacted the IGRA, it carefully struck a balance over the regulation of gaming in Indian country. For class III gaming, Congress entrusted regulation to tribes and states. One purpose of the IGRA was to promote tribal self-government and self-determination. However, this purpose seems to have been lost. Promoting and strengthening tribal gaming commissions as the primary regulators of Indian gaming is an elemental aspect of promoting tribal self-government and self-determination. But, the NIGC, Congress, and even the states seem to conveniently ignore the tribal end of class III gaming regulation.

Unfortunately, the call for expanding federal regulatory authority over class III gaming, at this point, has not been supported by any concrete showing of a need for greater or even better class III gaming regulation. Instead, it is backed up only by rhetoric of growing gaming operations and slow-to-respond state regulatory efforts. It is interesting that even though non-Indian gaming continues to expand throughout the United States, Congress is not calling for any federal oversight or minimum internal control standards to ensure the Nevada, New Jersey, Iowa, Louisiana, and the numerous other states with riverboat and land-based casinos are sufficiently regulated. Perhaps there is more than just a hint of paternalism, perhaps even latent (though probably unintentional) racism, in the claim that somehow it is Indians that need the additional regulation. After all, it is currently the only gaming in the United States with three separate sovereigns involved in its regulation. By contrast, private non-Indian gaming is subject to only one regulatory jurisdiction and it is questionable whether state-run lotteries are subject to any regulation at all. Despite the fact that corruption and crime have been an infection of private non-Indian gaming and not Indian gaming, is there really any better explanation than paternalism and unintentional racism? We do not have to look very far back in our history to see the consistent pattern of the majority culture constantly declaring that Indians cannot take care of themselves and always need the "protection" of non-Indians.

Regardless of evidence of need or motivations, Congress must stop and ask the question of whether the NIGC or its current structure and procedures are the best way to even accomplish greater regulation of class III gaming. The NIGC at the Washington level has consistently proven to be a self-interested and self-biased regulator in administrative proceedings and, in many cases, shown itself to be an ineffective regulator at the Washington level. On the other hand, NIGC regional offices have often actually demonstrated an ability to provide effective regulation while respecting the independence and effectiveness of tribal gaming commissions. The pattern has demonstrated that local control is the best means of accomplishing effective Indian gaming regulation. But, Congress has not seemed very interested in considering reality when it comes to questions of the NIGC's eternal crusade for more power. And, interestingly, Republican cries for smaller government and local control have become very quiet.

Of course, increased power for the NIGC will also mean more money for the NIGC. And, be sure, that money will come again from the pockets of Indian nations. So, instead of tribal gaming revenues being used to fund fundamental governmental programs, provide health care and other social services to members, assist local governments, and fund charitable organizations, money will simply be swallowed by an ineffective and unnecessary Washington-level bureaucracy which is not even subject to cabinet-level review for its actions.

If Congress seriously considers expansion of NIGC authority, it simultaneously must consider the structure of the NIGC for while the NIGC grabs more and more power, no one seems to notice that the power remains nearly unchecked. Actions of the NIGC do not receive independent review unless and until the NIGC has exhausted its own internal and biased review of itself and someone seeks relief from a federal court. But, under the law, that court review itself is very limited and the NIGC receives the same deference afforded other federal agencies. Any expansion of the NIGC's authority must come with a clarification of the IGRA's provisions on the applicability of the APA to the NIGC's actions as well as subjecting the NIGC to the same administrative appeals process applicable to other agencies in the Department of Interior. The provisions of IGRA providing appeal to the NIGC for actions of its own Chairman must be removed and replaced with a process that includes use of Interior's Office of Hearings and Appeals to provide some independence and impartiality to the NIGC's regulatory process. At some point, there is a problem with continuing to feed power to the regulator without making sure there is someone to effectively keep a check on how that power is used.