Turtle Talk

4 thoughts on “Written Testimony in SCIA Hearing on Indian Gaming Regulation”

1. hamlaw July 29, 2011 / 1:34 pm

   Here’s a copy of my testimony.
2. hamlaw July 29, 2011 / 1:39 pm

   WRITTEN TESTIMONY OF

   HAROLD A. MONTEAU

   BEFORE THE UNITED STATES SENATE COMMITTEE ON INDIAN AFFAIRS JULY 28, 2011 OVERSIGHT HEARING ON INDIAN GAMING: ENFORCEMENT OF THE INDIAN GAMING REGULATORY ACT-THE ROLE OF THE NATIONAL INDIAN GAMING COMMISSION (NIGC).

   Thank you Chairman Akaka and Senators of the Committee for the invitation to testify. Unfortunately, I am unable to travel at this time to appear in person before the Committee. I take the opportunity to submit the following Written Testimony.

   My testimony today will address the issue of the lack of adherence to the tenets of “Buy Indian and Indian Preference in Procurement, Hiring and Contracting” within the Indian Gaming Industry and the real and potential loss to tribal economies and to the future sustainability of tribal economies.

   I am a Chippewa Cree Indian from Montana and I live in Albuquerque, New Mexico. I am an attorney, having practiced in the area of Federal Indian Law, including Indian Gaming, for at least two decades. I am presently unemployed although I do realize a small income from writing a periodic column for Indian Country Today Media, which is owned by the Oneida Nation of New York.

   My present unemployment/underemployment is actually the genesis of my on-going advocacy in the area of Buy Indian and Indian Preference in Hiring, Contracting and Procurement, as it pertains to the Indian Gaming Industry and Tribal Governmental activities that are supported though federal funds authorized by the Indian Self-determination and Education Assistance Act (P.L. 93-638, sometimes simply called “638”). I believe these two issues are closely related and the solutions to one may facilitate a solution to the other.

   I will use my own experience to illustrate the lack of adherence to Indian Preference in the Tribal Gaming Industry. However, I can assure you that my experience is not unique. Indian Small Business Owners are experiencing, on a daily basis, what I call the “Red Ceiling”, when it comes to their repeated attempts to break into the “Indian Gaming Supply Chain” which is now 95% dominated by non-Indian owned companies.

   I believe that our failure as Tribal People and Tribal Governments to adhere to the tenets of Buy Indian and Indian Preference within the Indian Gaming Industry may be directly correlated to the lack of Federal Enforcement of Buy Indian and Indian Preference requirement in Federal Law, Federal Policy and Federal Contracting; particularly P. L. 93-638 Self-determination Contracting and Self-governance Compacting. What the National Indian Gaming Commission can do about this issue is probably limited to “advocacy” and “encouragement” as, the Indian Gaming Regulatory Act (IGRA) does not address the issue although the passage of the Act was premised on maximizing the benefits of Indian Gaming for Tribes and Tribal people.

   Over the last four (4) years I have submitted job applications to some two dozen Tribal Governments, Tribal Business Entities and the U.S. Government, most of which have a written law or policy mandating Indian Preference in hiring, contracting and Indian Preference. Having served as a Presidential Appointee (National Indian Gaming Commission Chairman 1994-1997) I have what amounts to SES (Senior Executive Service) experience both in the Federal Government and the Private Sector, I was overqualified for many of these positions. Here is just a sampling of the Tribes or Tribal Business Entities to which I applied or sent job inquires to: Seneca Nation of New York, Oneida Nation of New York, Mohegan Tribe of Connecticut, Mashantucket Pequot Tribe, Sault Ste. Marie Chippewa, Bay Mills Indian Community, Gila River Indian Community, Salt River Indian Community, Puyallup Tribe, Snoqualmie Tribe, Stillaguamish Tribe, Sauk-Seattle Tribe, Blackfeet Tribe, Spokane Tribe, Kalispel Tribe, Coeur d’Alene Tribe, Santa Ana Pueblo, Laguna Pueblo, Acoma Pueblo, Isleta Pueblo, Colville Tribe, National Congress of American Indians (NCAI), National Center for American Indian Enterprise Development (NCAIED), National Indian Council on Aging (NICOA), Bureau of Indian Affairs (BIA), Office of Special Trustee, Assistant Secretary for Indian Affairs, AMERIND (Indian Housing Insurance Pool), Columbia River Fish Commission and Mille Lacs Band of Ojibwa.

   Each and every one of these entities either receives federal funds under a “638” contract which requires that Indians who meet the minimum qualifications are given preference. Almost all have a written Human Resource or Affirmative Action Policy or a Tribal Human Resources Law or Tribal Employment Rights Ordinance (TERO) that would require that Indians who meet the minimum qualifications for a position should be given first preference in hiring. Almost every tribe that has an Indian Gaming Operation has a similar written policy or is subject to the Tribal Government Law or Policy on the issue. The problem is not that policies and laws do not exist to address this issue; the problem is non-enforcement and improper application of the law.

   While each and every Indian Casino Executive, Board Member or Tribal Leader associated with an Indian Casino will tell you that they adhere to Indian Preference; what they really mean is they have a written policy or law. The degree to which it is followed by both Tribal Government and Casino Managers is a different story. How it’s applied is also problematic.

   Attached to this testimony is an Exhibit “A”. Exhibit A is an article I recently wrote for Indian Country Today Media on the issue of the lack of both Federal and Tribal enforcement of the Federal Law Requirements of Buy Indian and Indian Preference in hiring, contracting and procurement.
   I have written previous articles on the lack of enforcement of Indian Preference, especially as it pertains to procurement, within the Indian Gaming Industry. As to the former, enforcement falls on the Contract Officers of BIA, IHS, HUD, DOL and other agencies. The Inspectors General of these offices have the investigatory power to investigate complaints. Unfortunately most Indian People do not know that you can even complain to these entities. In their mind the Tribes can do what they want and Sovereign Immunity protects them against any complaints. As with regard to commerce and positions created using Gaming Revenues, this is true. Only Tribal Law and Policy applies when Indian Gaming revenues are involved and if the Tribe or Tribal Managers either misapply Indian Preference or don’t apply it at all, there is not one to complaint to except perhaps a TERO office, if one exists, the Human Resources Office that did the wrongful application in the first place and the Tribal Government itself.

   The lack of enforcement or wrongful application of Indian Preference and Buy Indian in the Indian Gaming Industry has resulted in over 95% of the Indian Gaming Supply Chain being serviced by non-Indian Companies. Indian Companies make up a very small percentage and Tribal Companies and even small percentage. We have failed dismally to “vertically integrate” our own industry despite decades of talking about it. No incentives seem to exist for such organization like NIGA and NCAI to make development of a an on-the-ground strategy a priority. No incentives seem to exist for Tribes to make sure their managers in both government and business are properly enforcing Indian Preference and Buy Indian. You would think that the potential to create locally owned Indian Businesses and jobs would be enough but that has not been the case. One major gaming tribe just recently made it very difficult for local Indian owned companies to obtain goods and services contract with its, casino. They cited “too much money going to just a few tribal individuals”. It makes one wonder, “who would they rather it go to?”.

   About five years ago the National Tribal Development Association (NTDA), which was started by my mentor the late John “Roddy” Sunchild, introduced a concept for “vertical integration” of tribal and Indian owned businesses into the Indian Gaming Supply Chain. NTDA and other convinced NIGA to pass a resolution at it’s convention setting a goal of 10% purchasing by its member tribes from Indian owned sources. Not much has happened since then other than a list of Tribal Businesses was made and it turned out to be not such a long list. Also, very few of the NIGA member Tribes actually went back to their communities and took action to implement and enforce the 10% Buy Indian Initiative. There were no local Tribal Resolutions or amendments to existing policy and codes or requirements placed upon managers to meet the 10% goal. It was rendered meaningless. Indian and Tribally owned businesses continue to have the door blocked when they try to get into the Indian Casino Supply and Service Supply Chain, which some estimates say is in the $15 Billion dollar a year range if you count Tribal Governmental spending. Tribal Managers and Casino Managers still appear to enjoy an “immunity by default” when they fail to implement honest Buy Indian and Indian Preference.

   This phenomenon of “immunity by default” has spilled over from the Indian Gaming Industry into Tribal Government. Despite the Buy Indian and Indian Preference requirements of Federal Law as they apply to “638” Contracts, Compacts and Grants, the lack of enforcement by Contracting Officers, and the improper application by Tribal Human Resources and other hiring authorities, results in a “nullification” of the Federal Requirements as well as the expressions in Tribal Law. Sometimes with the tacit approval of the Tribal Governments or Tribal Officers involved. My recent experience with the Coeur d’Alene Tribe is but one example and there are many others. I met the minimum qualifications for their Chief Judge position, as advertised, including the Indian Preference qualification, and I was interviewed. However, a non-Indian former County Prosecutor was hired. How could that have happened under a proper application of Indian Preference? I sought appeal only to find out that most of the Tribal Government Executive Team, including the TERO Director, were non-Indian. Apparently this Tribe believes and/or has been informed by its legal counsel that merely giving Indian a “chance to apply” or “giving Indians “an interview” is compliance with Indian Preference. It is not. It defeats the intent of Congress when a Tribe applies Indian Preference in this manner. I would have no complaints if a Coeur d’Alene Tribal member had been hired as under “638” that is permissible. How are we ever going to get our Indian People in charge of our own affairs if we pass them over, even if they meet the advertised qualifications, and hire a non-Indian?

   You probably have heard the story from other Indian Entrepreneurs, of how hard it is to break through the “red ceiling” that keeps us out of the Casino Supply Chain. Even when Tribal Officials, such as TERO, open the doors for us, we still run into many, many obstacles thrown in our paths by Casino Procurement and Marketing Managers. One major problem is that what the “Buy Indian Preference” is, even if the Tribe has a written code or policy. It is not defined. So managers, including Tribal Government Managers, are free to implement it as they want. As a result, Indian Firms are losing bids for as little as a penny an item. You would think that being within a penny of the high bid, under a Buy Indian or Indian Preference Policy or Law would make the Indian Firm the winner. It is not happening.

   Are their solutions. Absolutely. I think one solution is an immediate direction to BIA, IHS and other federal contracting officers to investigate non-enforcement or miss-enforcement by Tribal Contractors to determine how wide-spread the problem may be in the governmental sector and to take action to facilitate proper enforcement and the train contractors as to the proper “preference” parameters that will be applied.

   This would have a spill-over effect leading to the proper application and enforcement of Tribal law and policy as it pertains to positions, contracts and procurement by the Indian Gaming Industry.

   I think it is not only ludicrous, but dishonest, for anyone to argue that proper enforcement of Buy Indian and Indian Preference in the Indian Gaming Industry would result in lowered profits for Tribes. How insulting to the mentality of Tribal people it is to argue that. The amount of money that is involved in a 5% or 10% Buy Indian Preference is miniscule in the overall scheme. It is a small price to pay for building local businesses owned by Indian People or the Tribe and which employ Indian People and contribute, in the long run, to a sustainable tribal economy. After all, under the present circumstances the 5-10% Buy Indian Preference would only apply to less than 5% of procurement contracts. The other 95% non-Indian segment would not even be effected. The argument is dishonest and self-serving.

   I thank the Chairman and the Committee for this opportunity to testify and to submit written testimony. Please Contact me if there is any further information you need or I can be of assistance. My email is hamlaw@live.com and my Telephone number is: 208-659-2657.
3. Russ Brien July 29, 2011 / 2:04 pm

   Matt, do you have access to any summaries or transcripts of the Internet Gaming roundtable conducted by the SCIA on Tuesday the 26th?

   RAB
4. Matthew L.M. Fletcher July 29, 2011 / 3:00 pm

   No, sorry.

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