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Article “Stacked Deck”
From The Legal Times
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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