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Gaming proposal moving forward despite opposition
Monday, January 16, 2006

The Bush administration is moving forward with its controversial gaming legislation despite overwhelming opposition from Indian Country.

After just three meetings, the Department of Justice is closing the comment period on the proposal to amend the Johnson Act at the end of this month. Officials will then review the comments, make changes and search for a Capitol Hill sponsor to introduce the bill by March or April.

"I don't think we're going to have a problem since Sen. [John] McCain tasked us," Doug Crow, an attorney with DOJ's criminal division, said at the Western Indian Gaming Conference in Palm Springs last Thursday.

The swift action, coming three months after the legislation was unveiled to the public and four months after it was announced in Las Vegas, brought criticism from tribal leaders and their representatives. At the conference, they repeatedly blasted the administration, saying the proposal would dramatically hurt the $19 billion Indian gaming industry and the jobs, revenues and other benefits casinos have generated.

"Every time, heaven forbid, some type of economic freedom and democracy might break out in Indian Country, the playing field gets a little bit, you know, slanted back towards the Indians and all of a sudden the rug gets jerked out from under us," said Wesley Edmo, a council member for the Shoshone-Bannock Tribes of Idaho.

Michael Lombardi, a gaming commissioner for the Augustine Band of Cahuilla Indians in California, accused the administration of playing politics. By eliminating any leverage that tribes have in negotiating gaming compacts, he said the legislation will help states extract more money and demands from tribes.

"We believe in Indian Country that this not about justice but about the [state] governors' association trying to get one hand up on Indians in Florida, California, Oklahoma, and in all those states where we use Class II gaming to force the states to come to the table and do what federal law requires them to do: negotiate in good faith," he said.

The government officials at the meeting bristled at the comments and insisted the legislation was written to clarify the difference between Class II games like bingo, which can be operated free of state control, and Class III games like slot machines, which can only be operated pursuant to a tribal-state compact. "We are not showing for the states," said Crow. "We don't want to litigate. You guys don't want to litigate."

But Lombardi pointed out that tribes went to court over the Class II-Class III distinction and emerged victorious in every case. The U.S. Supreme Court, in March 2004, refused to hear appeals sought by the Department of Justice, a move that seemed to put an end to the issue -- until the proposal was announced last September.

Phil Hogen, the chairman of the National Indian Gaming Commission, defended the administration's decision to turn to Congress to address the situation. "That's the way the system works," he told more than 300 people who attended the meeting.

Hogen also said tribes were pushing the legal and technological limits in a way that requires federal action. "My concern is ... you may have gone too far," he said. "Somebody's got to be to say this is where you draw a line between Class II and Class III.'"

Thomas Heffelfinger, the U.S. Attorney for Minnesota, responded to criticism that the three meetings that have been held are not true government-to-government consultation meetings. "We have listened, we have heard what has been said," he told attendees.

In addition to the Palm Springs meeting, the Department of Justice presented the proposal in Tulsa, Oklahoma, and in Ft. Lauderdale, Florida. A large number of tribal leaders attended the sessions and a large number of comments have been received, officials said.

But Heffelfinger said the administration won't be extending its outreach. "It is simply not practicable to go out on a tribe-by-tribe basis," he said. No other sessions in other parts of the country are planned.

At a hearing last April, Sen. John McCain pressed Hogen and Heffelfinger to work together and come up with a proposal that would clarify the difference between Class II and Class II games. "I believe it has been blurred by technology and I am going to try to act, and this committee [will] act, so that there is a distinction," said McCain, the chairman of the Senate Indian Affairs Committee.

The result of the effort was the proposal unveiled in October by the Department of Justice. It would limit the types of games tribes can offer without a tribal-state compact and impose harsher penalties on tribes if they offer games that don't meet new standards.

For example, a game that resembles a slot machine in appearance or play would automatically be considered a slot machine. Tribes would be fined and face closure of their casinos if they offer such a game without state approval.

Some games previously considered Class II would be moved to the Class III category if the legislation goes into effect. Tribes would have a year to get rid of the games, or negotiate a compact for them, before facing legal action from the Department of Justice.

Officials have characterized the proposal as a "criminal" bill, meaning it would be heard by the House and Senate Judiciary committees. The legislation, once it is introduced, is also likely to be heard by McCain's committee.

Written comments are being accepted until January 31. They can be e-mailed to tribalconsultation@usdoj.gov, or sent to the Office of Tribal Justice, Attention: Johnson Act Tribal Consultation, Room 2318, Main Justice Building, 930 Pennsylvania Ave NW, Washington, DC, 20530.

Relevant Links:
Johnson Act Amendments, Office of Tribal Justice - http://www.usdoj.gov/otj/johnson.html
National Indian Gaming Commission - http://www.nigc.gov