Tribes told to protect their gaming interests

John Wilen

Wednesday, March 25, 1998 | 10:05 a.m.

Indian tribes are fighting a "war of attrition" against Congress over the issue of gaming, experts said Tuesday at the International Gaming Business Exposition at the Sands Convention Center.

If the tribes want to retain their status as sovereign nations, immune from state and federal regulation, they must change tactics, and fast, the experts urged.

"There is in fact essentially a war going on in Washington, D.C.," said Gregory Smith, a Washington attorney and editor of the Native American Law Digest.

Several attempts have been made over the past year to impose taxes on Indian businesses or strip tribes of their sovereign status, Smith said.

One proposal, offered as part of last year's budget bill, would have taxed businesses on Indian reservations up to 34 percent, Smith said. The proposed tax was killed in Ways and Means committee budget negotiations, he said.

But the assault on Indian gaming rights continues this year with a variety of proposed legislation, Smith said. Just last week, a Senate committee held hearings on a bill proposed by Sen. Slade Gorton (R-Wash.), that would simply strip tribes of their sovereignty, subjecting them to state and federal regulations and taxes. And this week, the House is holding hearings on a bill sponsored by Rep. Ray LaHood (R-Ill.) that would prohibit tribes from receiving federal highway funds unless they agree to pay state fuel taxes.

Circulating through Congress are no less than 13 other bills that would affect Indian gaming rights, Smith said.

Indian tribes won the right to authorize, regulate and tax gaming operations on their reservations in a 1987 Supreme Court decision -- widely called the Cabazon decision -- that affirmed the tribes' sovereignty over their own territory. But recognizing the rights of states to have some control over Indian gaming operations in their territories, Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988. IGRA continues to govern state-Native American gaming relations today.

So far, Native American tribes have successfully fought off their opponents by using "just say no" tactics, essentially defending their sovereign status with appeals to history and tradition, Smith said. But Congressional supporters of Indian gaming are increasingly demanding that tribes become more proactive in dealing with their opponents, he said.

According to Sharon House, a member of the Oneida Nation of Wisconsin and a member of the National Indian Gaming Commission, these proactive steps should include rigorous self-regulation and a willingness to pay fees for certain government services.

While it may appear that states charging tribes fees are "a government taxing another government," many tribes are willing to ante up if only to maintain a good working relationship with the states, House said.

Of course, the tribes want to know where the money is going.

"The tribes are willing to pay the fees, we just want to know what we're paying for," House said.

On the self-regulatory front, House said the National Indian Gaming Commission, a body composed of members of various tribes, will draft a number of proposed regulations at a meeting in Portland, Ore., later this month.

If Native American nations don't take some steps in their opponents' direction, the experts warned, either Congress or the courts may make significant changes to existing Indian gaming laws.

Charles Irwin, former vice chairman of the New Jersey Casino Control Commission, and former chairman of the Chitimacha Tribal Gaming Commission in Louisiana, said the Indian Gaming Regulatory Act is in serious trouble if the tribes do not act quickly.

The IGRA established the current regulatory structure under which tribes negotiate agreements, or compacts, with states detailing the rules governing gaming on their reservations, and the fees to be paid the states for regulatory and infrastructure costs.

Under the IGRA, if a state refuses to negotiate with a tribe, the U.S. Secretary of the Interior can sue that state to force compliance. That system is breaking down, Irwin said, because Interior Secretary Bruce Babbitt has refused to sue states that have refused to negotiate with their Indian tribes.

This is giving states virtual veto power over Indian gaming applications, and is weakening the IGRA, Irwin said.

"So you have to sue (the Interior department)," Irwin implored conference attendees. "Everybody's got to sue him."

Both Irwin and Smith also urged less confrontational methods. Noting the boom times many tribes have experienced over the past 10 years as a result of their gaming operations has created a "backlash from the states," Smith suggested public relations as a means of diffusing local opposition to gaming.

People are generally more sympathetic of Indian gaming when educated about Indian history, Smith said.

Irwin agreed, imploring tribes to befriend their local legislators, and to use more subtle means of building local support: being less flashy with gaming earnings.

"As soon as they know how much money you have, they want to take it away," he said.