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Article “Stacked Deck”
From The Legal Times
Vol XXI
No. 44
MARCH 29, 1999
“STACKED DECK”- Tribes Claim Gaming
Panel Favors Old-Line Casinos. With the federal commission on
gambling in the midst of drafting its final report—which
will include recommendations to Congress on how to address the
rapid growth of the gaming industry—pro- and anti-gambling
forces of all stripes are girding for a fresh lobbying battle.
So it’s no surprise that when the panel, known
as the National Gambling Impact Study Commission, held its last
scheduled hearings in Washington earlier this month, there was
no shortage of anxious advocates in the audience, from the American
Gaming Association to the National Council on Problem Gambling.
But few were as distressed as Thomas Rodgers,
a lobbyist for the National Indian Gaming Associations, which
represents the 168 Indian nations with gambling operations.
“This is a fundamentally flawed process,” Rodgers
says. Rodgers, a member of the Blackfoot Tribe in Montana, and
others point to a series of events since the commission was
first established that they say illustrates a disturbing pattern.
For example:
• The commission has only one Native American
representative—Robert Loescher, a member of Alaska’s Tlingit
Tribe, which has no gambling facilities. President Clinton planned
to nominate Tadd Johnson, a Native American with ties to a gaming
tribe, but passed him over after pressure from critics who said
Johnson would leave the commission with too many pro-gambling
members.
The Nevada and New Jersey gaming interests, on
the other hand, have J. Terrence Lanni, CEO of the MGM Grand
in Las Vegas; William Bible, former chairman of Nevada’s State
Gaming Control Board, who has also held a number of other state
government posts; and John Wilhelm, president of Hotel Employees
and Restaurant Employees International Union, which represents
75,000 casino employees. And anti-gambling forces have two representatives,
the most vocal being James Dobson, president of Focus on the
Family and a harsh critic of all gambling.
Loescher says it’s been hard for him at times
to get the Indian’s message across to his colleagues: “It’s
been a difficult exercise to educate the full commission about
the aspects of tribal sovereignty.”
But Shosky says none of the commissioners arrived
with the preconceived ideas about gambling or what kinds of
recommendations they should make to Congress. “The Commissioners
have been more than open to the facts and arguments that have
been presented” by all sides, he says.
• Rodgers and two other sources familiar with
the panel say a staffer hired to draft the Indian gaming section
of the report had her role diminished … Ellis & Rouvelas Meeds
who represents the Mississippi Band of Choctow Indians, says
a first draft seemed fair in its treatment of tribal gaming,
and finds it “very troubling” that the final report may be tainted
by indications of improper meddling.
Shosky adamantly denies this, saying that while
the commission did make some staff changes, the moves were dictated
solely by workload demands.
• The chairman of the Indian gaming subcommittee,
Paul Harold Moore, a Mississippi native appointed by Senate
Majority Leader Trent Lott (R-Miss.), has made a few remarks
that the Native Americans found offensive.
At one point in the proceedings, for example,
Moore noted that the tribal gaming regulations were self-enforced
and seemed to indicate that he had a problem with, as he puts
it, “Indians checking Indians.” In another instance, Moore asked
whether Native Americans were going to “scalp” the new California
governor to get a gambling compact.
Moore was traveling last week and unavailable
for comment. But Shosky says that Moore has been one of the
Indian’s most ardent defenders and that his remarks were taken
out of context. “He’s one of the best, fairest, most open-minded
people anyone could ask for,” Shosky says.
• The only two major votes the commission has
taken to date related to Native American issues, and in both
cases, Loescher was outvoted 8-1. In one, the commission voted
to ask the interior secretary not to issue regulations on Indian
gaming agreements until its report is finished. Without the
secretary’s involvement, Native Americans say, they have nowhere
to turn if states and tribes can’t come to an agreement on their
own or if a governor doesn’t bargain with them in good faith.
That move raised eyebrows on the Hill; Sen. Ben
Nighthorse Campbell (R-Col), chairman of the Indian Affairs
Committee, issued a letter calling the commission’s move inappropriate
and “beyond the scope” of its legislative charge.
Shosky says the commission weighed in on the Interior
Department regulations because it made sense; after all, he
asks, why should that agency write regulations without benefit
of the commission’s research and input?
• The commission has repeatedly clashed with Native
Americans over the panel’s requests for financial and other
data that tribes say is proprietary but that commissioners argue
is necessary for them to evaluate Indian gaming. In February,
the commissioners voted to set up a procedure to subpoena the
National Indian Gaming Commission, the regulatory body for tribal
gaming, to get that data, although the panel is still trying
to resolve the dispute without taking that legal step. For non-Indian
casinos, the information is already public, but Native Americans
say the 1988 Indian Gaming Regulatory Act (IGRA) makes their
financial information proprietary.
Shosky says the commission’s requests are straightforward.
“We believe we have a congressional mandate to look at this
information because we need it to do the job that was assigned
to us by Congress, “ he says.
But Rodgers and others aren’t persuaded by any
of the commissioner’s explanations and suggest that the panel
has ignored facts that didn’t fit their preconceptions.
He and others are concerned that the commission’s
report will call for taxation of tribes’ gaming revenues or
for federal regulations forcing the wealthier gaming tribes
to share revenues with poorer tribes—trampling on tribal sovereignty
in the process.
“The tribes believe they are 100 percent taxed
because of IGRA, which requires they spend all the money on
tribal governance, infrastructure, and social and welfare programs,”
says Loescher. “But the notion of adding another tax seems to
be where the full commission wants to go.”
Of course, whether any commission recommendations
ever become law is another question entirely. Once the report
lands on the Hill, the tribes and other gaming interests will
have to grapple with a different dynamic—one they’re more accustomed
to.
The gambling industry has long wielded considerable
political clout on the Hill, and Indian tribes have recently
started to ratchet up their Washington activities.
In 1991-92 election cycle, for example, the gambling
industry gave more the $1.1 million in campaign contributions;
Native American gaming money made up 11 percent of that total,
according to a study by the Center for Responsive Politics.
In the 1995-96 cycle, Indian contributions made
up 27 percent of the more than $6.7 million the gambling industry
doled out to the candidates in individual, soft and PAC contributions.
(In the last election cycle, the industry forked over about
$5.7 million, although the center didn’t break out of the Native
American contributions.)
And there’s no question that Native American advocates
will crank up their lobbying engine on the Hill now that the
commission’s work is starting to wrap up.
“This report might come out and it might just
nick us, but we’re preparing for the worst.” Rodgers says. “We
will now turn our attention to educating policy-makers on Capitol
Hill… as to the process that was followed with this commission
and the true story of what gaming has provided to a few Indian
nations.”
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