Indian Country’s Wish List For Obama’s 2010 Tribal Gaming Policy

James Kilsby / GamblingCompliance Ltd.

Overturning Bush-era rules on off-reservation casinos and ensuring fairness in tribal-state compact negotiations should take top priority in President Obama’s nascent tribal gaming policy, experts suggest.

An “unprecedented” gathering of tribal leaders at the White House in early November marked an end to President Obama’s “A+” first year of tribal relations, said a panel of Indian gaming experts at last week’s Global Gaming Expo (G2E) in Las Vegas.

But following the promises extended to Native Americans during his successful election campaign and through his first year in office, the next 12 months are likely to see Obama and his administration under greater pressure to more clearly define its policy on Indian issues and on tribal gaming in particular, the experts agreed.

“They seem determined to make an announcement on what the policy will be,” noted Loretta Tuell, partner at Washington DC-based law firm Anderson Tuell, adding that she believed the administration would be working on a review of controversial Bush-era off-reservation gaming rules as a matter of priority.

The Bush Administration - through the office of ex-Secretary of the Interior Dirk Kempthorne - sparked ire in Indian Country in early 2008 when it pronounced that it would allow only Indian gaming tribes to set up casinos within a “commutable” distance of 40 miles from traditional Indian lands.

President Obama is likely to revisit the rules in some fashion, said Larry Rosenthal, an Indian affairs lobbyist with the firm Ietan Consulting. However, Rosenthal warned that wider political opposition meant it was uncertain whether the president would actually make it easier for tribes to set up off-reservation gaming facilities during his time in office.

“In my own view, they’ll have to pull back [on the Kempthorne rules]. I don’t think it’s a defensible regulation,” Rosenthal said. “[But] across the country, there is not a real appetite out there for more off-reservation gaming; I think it’s the opposite.”

While Indian tribes are practically unanimous in their opposition to the perceived heavy-handed nature of the Kempthorne rules, a number of established tribal gaming interests - as well as prominent US senators - are believed to harbour concerns about the potential spread of off-reservation gaming in the United States.

“I’d be surprised if there’s any significant change to allow unfettered off-reservation gaming,” Rosenthal said of the Obama Administration’s putative policy.

“I expect a decision [on off-reservation gaming] will come,” Tuell predicted. “I expect some folks are not going to like it one way or the other.”

In the meantime, fallout from the recent US Supreme Court decision in ‘Carcieri v Salazar’ continues to cloud the new administration’s off-reservation policy, said John Tahsuda, a tribal affairs lawyer with the firm Navigators Global LLC and a former general counsel for the National Indian Gaming Assocation (NIGA).

In February, the Supreme Court interpreted federal statutes as allowing only Indian tribes formally recognised before 1934 as being entitled to take off-reservation land into trust in order to set up casinos or other tribal facilities such as schools or hospitals.

The decision effectively means that tribes recognised after that date may not be able to establish off-reservation casinos regardless of any change of approach on the Kempthorne rules.

“Frankly, the ‘Carcieri’ decision has allowed the Obama Administration to go slow on revising their gaming policy,” Tahsuda said. “This case and its impact has allowed them to do that.”

The Obama Administration - via the Bureau of Indian Affairs - is backing a legislative amendment to ‘fix’ the ‘Carcieri’ verdict and allow all recognised tribes to take off-reservation land into trust, said George Skibine, President Obama’s acting deputy Assistant Secretary of Indian Affairs and acting chairman of the National Indian Gaming Commission (NIGC).

Two US Representatives and one Senator all recently filed separate bills to amend federal law to take out the requirement for tribes to be recognised before 1934 in order to take off-reservation land into trust.

But, as with the Kempthorne rules, whether any legislative action would get past potential political opposition from the Republican Party is unclear, experts at G2E said.

“I don’t think a bill will get out of the Senate,” Rosenthal said, adding that a ‘Carcieri fix’ would be more likely to pass only if attached to a broader Senate appropriations bill. “But I don’t know how easy that’s going to be,” he warned.

“It will be very difficult to find a quick and easy solution,” Tahsuda agreed.

The Supreme Court’s ‘Carcieri’ ruling led a number of tribal interests to express concern that land already taken into trust by the federal government could be subject to legal challenge, including by anti-gambling groups.

But speaking during a tribal gaming keynote session at G2E, the NIGC’s acting chairman Skibine said he was confident Barack Obama’s Department of Justice would defend any litigation launched against past or pending tribal land into trust applications that were based on the Supreme Court’s ‘Carcieri’ ruling.

Skibine also confirmed that the Obama Administration would be “taking a close look” at the Bush-era off-reservation rules that have blocked off-reservation casino proposals in states including New York and Wisconsin.

But Skibine also reacted to tribal concerns over the nature of tribal-state compact negotiations to suggest that these, too, should form part of the Obama Administration’s tribal agenda.

The 1988 Indian Gaming Regulatory Act (IGRA) requires states to negotiate revenue-sharing agreements - or compacts - with Indian tribes “in good faith”, without forcing tribes into paying a tax on their gaming revenues.

But tribal observers at G2E pointed to recent examples in California and with the Seminole Tribe in Florida to suggest that US states had been stepping beyond their powers in attempting to negotiate more lucrative gambling deals with tribes.

State economic woes meant state governments “want to go to tribes to see if they can help solve the budget deficits,” said Kevin Leecy, chairman of the Minnesota Indian Gaming Association.

“States are using tribes and tribal gaming to take care of budget deficits and that’s absurd,” furthered Scott Crowell, a California-based lawyer who has represented Indian tribes in compact negotiations with Governor Schwarzenegger.

“Any revenue share, in my view, is all a tax that tribes should not be required to pay,” Crowell added, suggesting that the federal government should now step in to end the impasse between the Florida Seminoles and the state legislature that has refused to ratify a compact negotiated between the tribe and Florida’s Republican governor Charlie Crist.

“Now is the time for tribes to say ‘this has got to stop’,” Crowell told G2E delegates.

“My experience is that state legislatures really don’t care at all that states can’t tax tribes [under IGRA],” the NIGC’s Skibine said.

“Issues of tribal sovereignty are not in their minds and this needs to be reinforced to avoid going down a slippery slope.

“I’m concerned that especially for tribes with a large membership, once that tap is turned on we won’t go back.”

In a move widely interpreted as an overt change of approach from the Bush Administration, Skibine’s NIGC recently declared that it would postpone the introduction of new security standards for Class II slot machines in tribal casinos until late 2010.

Tom Brierton, an independent Indian affairs lobbyist, told G2E delegates he thought it could still take up to a year for the Obama Administration to formulate its broader tribal gaming policy.

“There is a 12-month window of opportunity for tribes to advance their agenda,” Brierton said.

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Posted on November 24th, 2009 by hunwut
Filed under: Federal Government, Gaming