From Indian Country Today:

“ The DoJ and the NIGC have relegated their trust responsibility to tribes to a secondary position in favor of enforcing states’ rights and championing state causes. The monetary and societal damages that DoJ’s position has caused to tribes by its position on Class II gaming and its failure to enforce the provisions of IGRA, when states raise their sovereign immunity against the tribes, has resulted in tens of billions of dollars in damage to tribal economies. It has also resulted in untold damages to the health, safety and welfare of the trust beneficiaries: the tribes and individual Indians.

“Just like water or land rights, the United States has a responsibility to protect our reserved and statutory rights under Supreme Court rulings and the IGRA. Why should our economic rights under IGRA be any different than land or water rights? Even the U.S. Supreme Court recognized that our right to have gaming was not a statutory right, but a right reserved by inherent sovereignty. The DoJ cannot pick and choose which Indian rights it chooses to defend – not without exposing the U.S. government to tens of billions of dollars in liability for trust violations. If you thought Cobell was a doozy, wait until this one hits the courts.”

I agree with most everything here, given my reading of the legislative history of the Indian Gaming Regulatory Act (my paper is here). The post-IGRA history is even more troubling if held up to this light. My sense is that Congress (and Indian tribes) never wanted a wholesale federal regulatory presence involved in Indian Country gaming. The NIGC’s budget at the beginning and for several years after enactment was eight million dollars. IGRA did nothing more than codify existing common law as to Indian bingo and left Class III gaming entirely to the tribes and the states in the compacting process. The NIGC reviews management contracts, makes Indian lands determinations, and conducts very limited enforcement actions. I seriously doubt that, absent a wide-ranging amendment to IGRA, much if any of these regs, if adopted, will withstand federal court review.

What particularly irks me about this whole round of regulations is that no one has provided a conclusive factual predicate of need for these regs. Where’s the corruption? Where’s the crime? More and more studies keep coming out expecting to find increased crime and poverty around Indian gaming operations, but nothing significant is found.

Commissioner Monteau’s recollection of the Department of Justice intending to classify “anything that had a video face as a ‘Johnson Act’ device” smacks of Justice’s objections to IGRA in 1987 and 1988. This seems to be re-hashing old fights that Justice lost 20 years ago.

If nothing else, this seems to be a case of agency creep. Consider Michigan as the analog. In 1993, Gov. Engler wanted nothing to do with Indian gaming regulation when he executed the first round of Class III compacts in Michigan [check out section 8]. He left it entirely to the tribes (possibly thinking the tribes would botch the whole thing). The same was true in the 1998 compacts. But now that Michigan has the Michigan Gaming Control Board, a whole new state agency charged with regulating Detroit casinos, Michigan tribes are finding themselves under threat of (partly unauthorized) audits and enforcement actions from a state agency in a state that expressly disclaimed any interest in regulating Indian gaming.

What’s most unfortunate is that the NIGC has firmly placed itself in an adversarial position with regard to Indian gaming. As Commissioner Monteau’s op-ed demonstrates, each of these regs will face a stiff political and legal opposition from tribes. That’s not the way to conduct business.