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Lobbying scandal prompts new look at tribal rules
Monday, May 9, 2005

As the Jack Abramoff scandal continues to unfold with new revelations surfacing nearly every day, attention is turning toward lobbying rules that affect Indian Country.

Democrats have already unveiled legislation aimed at overhauling the way lobbyists work in the nation's capitol. So far, none of their proposals directly address the millions of dollars tribal governments spend to advance their interests in Washington, D.C.

But the one person who appears intent on bringing reform to tribal lobbying practices is Sen. John McCain (R-Arizona). As chairman of the Senate Indian Affairs Committee, he is leading the investigation into how six tribes spent an estimated $82 million on lobbyists.

As the next hearing on the scandal approaches, McCain has raised one rule he may seek to change. Last month, he questioned whether Interior Department officials should be allowed to lobby on behalf of tribes soon after they leave public office.

Under existing law, ex-officials who represent tribal governments aren't subject to a one-year "cooling off" period imposed on other lobbyists. The exception was drafted so that tribes could hire people with knowledge of their issues, as is often the case with Interior employees.

But "it seems to me there have clearly been abuses of that," McCain said at an April 27 hearing on Indian gaming.

Interior Department Inspector General Earl E. Devaney supported the repeal of the exemption. While he acknowledged his investigations haven't turned up any major improprieties involving Interior employees and lobbyists, he said the existing rule perpetuates the "classic revolving door."

"At the time, the only persons with expertise in Indian matters were Interior employees," Devaney said when the Indian Gaming Regulatory Act was passed in 1988. "Today that dynamic has obviously changed and the statute has outlived its original intent," he added. "In fact it's hard to find a law firm in Washington today that doesn't have a thriving Indian practice area."

Controversy over the exemption grew when Kevin Gover and Michael Anderson, the two top former officials at the Bureau of Indian Affairs, left the Clinton administration to lobby for tribes. The practice continued into the Bush administration with the recent departures of Aurene Martin, another top BIA official, and Michael G. Rosetti, Interior Secretary Gale Norton's former legal counsel, to top Washington firms. Both ex-officials now lobby on tribal issues.

At an Indian law conference last year, Martin herself warned that the Abramoff scandal could prompt changes in the tribal lobbying world. She cited an old rule that once required the BIA to review contracts tribes made with law firms.

The BIA's role was eliminated in the late 1990s, when Congress removed the provision affecting "legal services" from the law. But lawmakers "are going to start looking at the Indian Gaming Regulatory Act and what it says about contracting" in response to the controversy, Martin said in April 2004.

Bringing back this provision is troublesome, Gover said in an interview at the time because it smacks of paternalism. He added that the BIA lacks expertise to review law-related contracts.

"Do you really want to have the federal government picking the tribes' lawyer?" asked Gover, who has since left the lobbying world for academics but still consults for tribes, including one he placed back on the list of federally recognized entities. Martin and her new firm are also registered to lobby for the same tribe, according to Congressional records.

A situation involving the Meskwaki Tribe of Iowa highlights the difficulty the BIA is likely to encounter in lobbying matters. As two factions battled for control of the tribe and their lucrative casino, they also fought over the law firm the tribe should employ. The winning faction ended up going with Greenberg Traurig, Abramoff's old law firm.

In McCain's eyes, the federal government plays an important role in ensuring the integrity of tribes and their operations, especially casinos, and in protecting tribes from people who might try to misuse money meant for housing, education, health and other programs. "Some unscrupulous people have lived long enough to do extremely well by doing good," he said.

Yet the attention has some in Indian Country worried about more mandates imposed from Washington. "I personally feel there is sufficient legislation, there is sufficient regulation. It's up to us to now enforce it," said Norman DesRosiers, the longtime gaming commissioner for the Viejas Band of Kumeyaay Indians from California, when asked by McCain about potential reforms.

Kevin Washburn, a University of Minnesota law professor and former Department of Justice official, warned of returning to an era where tribes and Indian people were treated as wards rather than sovereigns. He said giving the government more power to review tribal contracts of any sort is not in anyone's best interests.

"I'm not sure that [federal employees] are the people that ought to be looking over tribes' shoulder when the tribes are represented with very savvy business advisers and very savvy law firms," he said at the hearing. "My sense is we would have trouble with the Department of Interior second-guessing those [contracts] in this day and age of self-determination."

The next hearing in the lobbying scandal is set to take place in late June.

Relevant Links:
Sen. John McCain - http://mccain.senate.gov
Senate Indian Affairs Committee - http://indian.senate.gov