Here we go again?

Summer is typically a tranquil time along the Potomac, especially in an election year when many congressmen and senators are tending to their districts. The July 29th hearing before the Senate Committee on Indian Affairs, however, was anything but dull. Ostensibly, the meeting was to “examine priorities established by the new leadership of the National Indian Gaming Commission (NIGC)” on a variety of fronts. The new chair of the NIGC, Traci Stevens, struck a conciliatory note in prepared remarks that stressed the need for tribal-federal cooperation, consultation and strict adherence to the law. All seemed placid until Senator John McCain showed up and started asking some pointed questions about the NIGC’s ability to regulate and oversee Class III gaming in light of the 2006 decision in the Colorado River Indian (CRIT) case, which basically held that the NIGC was powerless to enforce its Minimum Internal Control Standards (MICS). McCain’s questions made it clear that he remains committed to his oft-stated belief that tribal-state regulation is inadequate without NIGC oversight to prevent corruption. Other witnesses, notably National Indian Gaming Association Chair Ernie Stevens, took issue with McCain and pointed out Indian nations collectively spend approximately $350 million a year on regulation and have standards at least as strong or stronger than those adopted by the NIGC.
This debate, to paraphrase that great sage Yogi Berra, is like déjà vu all over again. We’ve heard the same exchange in different contexts and formulations for years. The bottom line is that critics like McCain simply do not trust tribes to self-regulate. As a corollary, they also believe that the tribal-state compacts by and large do not confer adequate authority on the states to oversee tribal gaming.
The arguments for more or better oversight have always struck us as fundamentally misplaced and more than a little paternalistic. No federal agency “looks over the shoulder” of state gaming agencies. If there is a question about the effectiveness of the state agency’s regulatory programs, they are addressed within state governmental processes. Similarly, as tribes have democratically elected governments and, it seems to us, that if something is wrong with their regulatory agency it is up to tribal government to fix it.
We’re not suggesting that federal or state government should have no role in tribal gaming or never undertake an enforcement action in appropriate circumstances, but under the Indian Gaming Regulatory Act (IGRA) that role is necessarily limited. The bottom line is that day-to-day regulatory activities must be carried out by tribal gaming commissions. The main focus of the NIGC and state agencies should be to support this effort through technical assistance and training programs. For example, the NIGC already offers a number of excellent training sessions on a variety of regulatory topics on a regular basis and this program could be expanded in scope and accessibility. Last year, the NIGC made available a centralized licensing database to assist tribes in completing background investigations. Initiatives of this nature do more to advance the quality of regulation than intrusive or adversarial directives that endeavor to tell the tribes how to do its regulatory job. Good regulation is in everyone’s best interest. Federal, state and tribal cooperation along with proper respect for the lead role of the tribal gaming agency is the most certain way to achieve this common goal.
Of course, the power to regulate entails the responsibility to do it properly. Tribes must be accountable and have a responsibility to ensure that the gaming agencies have adequate resources and authority. Regulation must be a reality and not a façade that exists only on paper. In our article entitled “The Independent Tribal Gaming Commission” (Casino Enterprise Management, May 2008), we lay out the blueprint for an accountable commission. Each commission needs to demonstrate that it is fully functional by documenting its meetings, programs and regulatory actions. Proof of an independent, functioning commission is neither burdensome, difficult nor an intrusion on sovereignty. The absence of such a demonstration simply provides fodder for the critics of tribal gaming.