After many years of inactivity on the subject, Congress is again starting to look at reforming the Indian Gaming Regulatory Act (IGRA), which sets the rules for how the federal government regulates Indian gaming.
Several comments made during hearings held by the House Subcommittee on Indian Affairs last year and just last month during the Senate Committee on Indian Affairs, give clues to what issues may be explored in coming months leading up to the November election.
Some have accused tribes of lying about off-reservation casinos. Others noted that tribes themselves often clash over competing gaming interests. Still others say that regulators are not doing enough to police the industry. Tribes, on the other hand would prefer to talk about the successes of Indian gaming and to pave the way for more tribes to take advantage of it.
All of this probably doesn’t fit into what the Senate Committee Chairman Jon Tester had in mind when he began holding hearings on Indian gaming earlier this year.
One member of the committee, Minnesota Senator Al Franken, commented during the hearings, “There is a lot of debate about gaming in general, but one aspect that is undeniable is the economic development benefit of gaming to tribes.” He added, “If Indian gaming vanished tomorrow, and all tribal needs shifted to federal trust responsibility, what would that look like?”
However, one issue that threatens the expansion of Indian gaming is the very controversial one of off-reservation Indian gaming. Tester’s committee has heard testimony from all sides of this issue, including tribes, and state and federal officials.
One of the most passionate is the powerful Senator Dianne Feinstein of California, who has requested to speak before the committee but has not yet done so. In the face of tribal opposition Feinstein has pushed legislation that would make it harder for tribes to put land into trust far from their historic homeland. She accuses the administration of making the problem worse by approval several such applications, including two in her state.
Feinstein has a powerful lever in her hands: The ability to hold hostage any “fix” of the 2009 Carcieri v. Salazar Supreme Court decision that makes it harder for tribes recognized after 1934 to put land into trust.
The senator had been expected to appear at the most recent hearing, but was a no-show, due to scheduling difficulties. So far the chairman continues to insist that a “Carcieri fix” not be tied to off-reservation land acquisition.
California isn’t the only state where the off-reservation casino issue is burning. It’s red hot right now in Arizona, with gaming tribe vs. gaming tribe. Two existing gaming tribes oppose the efforts of the Tohono O’odham tribe’s efforts to build a third casino in Glendale, on land it purchased using funds paid to it in exchange for its historic homeland being inundated in the 1980s by a dam project. The Gila Bend Indian Reservation Land Replacement Act authorized this purchase.
A bill has already passed the House that would prevent this casino from ever happening. The Senate has not yet passed the bill, although Tester’s committee heard testimony for and against it.
Last week National Indian Gaming Association Chairman Ernest Stevens testified before the committee, noting that, “Nationwide, Indian gaming is a proven job creator. Indian gaming delivered over 665,000 direct and indirect American jobs in 2013 alone.”
According to Stevens, “Indian gaming has provided many Native Americans with their first opportunity at work at home on the reservation. Just as importantly, jobs on the reservation generated by Indian gaming are bringing back entire families that had moved away.”
He called the 445 Indian casinos in 28 states, “the most successful tool for economic development for many Indian tribes in over two centuries.”
Kevin Washburn, who runs the BIA, told the committee, “We frequently face a misperception that tribes are acquiring land and opening gaming facilities at a fast pace. The growth numbers alone belie this argument. Of the over 1,700 successful trust acquisitions processed since the beginning of the Obama administration in 2009, fewer than 15 were for gaming purposes and even fewer were for off-reservation gaming purposes.”
However the growth of Indian gaming appears to have hit a temporary slump, having leveled off, according to Washburn. Revenues are currently around $26 to $28 billion and have been since 2007, he said. “The days of tremendous growth are probably behind us for Indian gaming,” he said. Commercial casino revenue has increased 23 percent since 2009.
That doesn’t please Washburn. “Commercial gaming goes to enrich shareholders,” he the senators. “Indian gaming goes to help poor people, usually. I would much rather see Indian gaming existing than commercial gaming expanding.”
Many lawmakers are awaiting a 2015 report by the Government Accountability Office (GAO) on Indian gaming before taking action. Tester, McCain, Senators Maria Cantwell and John Barrasso requested the report; with McCain being the most insistent that it was needed.
Anne-Marie Fennell, director of the GAO’s Natural Resources and Environment team told senators last week that the study will look at what works and what doesn’t in Indian gaming, with a global approach that will include just about every government entity that intersects with tribal gaming.
“We hope to provide a broad description and evaluation of the regulation and oversight of Indian gaming in our final report,” Fennel told Indian Country Today Media Network.
The GAO last looked at Indian gaming in May of 1998. That report looked at five states. The anticipated report will deal with 240 tribes and 28 states.
Senator John McCain was the principal author of the 1988 IGRA, so which way he blows as various winds move back and forth are closely watched. McCain has over the years occasionally tried to amend the bill and to urge more federal oversight. He also appeared to ally himself with Feinstein on the issue of off-reservation approvals.
Tester has made some false steps, including drawing wrath on himself by holding up the Eastern Band of Cherokee as a good example of the good that Indian gaming does, when the tribe is being criticized by trying to prevent other tribes from opening competing casinos in the same part of the state.
He has also announced himself exasperated that Indian gaming has generated more interest than hearings he held on “Native youth, education and language” as reported by Indian Country Today. “What we need to do as a committee is do our due diligence on all these issues,” he declared when he adjourned one hearing.
Many tribal supporters urge Tester to try to “fix” Carcieri and ignore calls for reforming how land is taken into trust for gaming.
An editorial in Indian Country Today recently declared, “Despite the hysteria generated by some tribes and members of Congress, the fact is the Carcieri “fix” bills proposed by Indian Affairs Committee Chairman Tester and Rep. Tom Cole have nothing to do with taking land into trust for gaming.
Senator Heidi Heitkamp, who was once the attorney general of North Dakota, says that Indian gaming may be overregulated. “We have tribal regulations, we have state regulations and we have federal regulations, all to respond to concerns that Indian gaming may be fraudulent in some places.”
She added, “I can tell you from my experience that has not been true. We need to rethink the regulatory structure. I think at some point we anticipated problem that haven&rsq
uo;t shown up.”
