FROM THE ARCHIVE

Gaming commission ignoring Norton order

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MONDAY, JANUARY 28, 2002

The nation's Indian gaming regulators have thumbed their nose at Secretary of Interior Gale Norton and are refusing to shut down their Internet connections unless a court investigator orders them to do so.

In a letter sent to Norton this past Saturday, National Indian Gaming Commission Chairman Montie Deer, a Clinton appointee, said removing his independent agency from the Internet could have a negative impact on Indian Country. Questioning whether she has appropriately interpreted a court order requiring protection of the trust data of 300,000 American Indians, he told Norton that a disruption would impede "important" functions of the commission and could hurt innocent Native Americans.

"[D]isconnecting from the Internet would not only frustrate our ability to ensure that Indian gaming is free of the influence of organized crime and other unsuitable influences," wrote Deer on January 26, "it could also have an unfortunate economic effect on poor Native Americans seeking work on their reservations."

Only until special master Alan Balaran decides the NIGC is subject to U.S. District Judge Royce Lamberth's December 5 court order will the regulators shut down, continued Deer. "If the special master indicates that the order was intended to apply to the commission, we will take immediate action," he wrote.

Deer's letter caps off more than a week of heated letters, phone calls and communications between his agency and Norton's legal team at the Department of Interior and the Department of Justice. Although the NIGC is an independent federal body created by Congress, Norton's attorneys believe it -- like every other Interior agency, bureau and office -- must turn off e-mail, web access and other network functions to comply with the judicial directive.

According to Deer's legal staff, however, no one informed them of the shutdown until earlier this month. Nevertheless, the commission sought the advice of an information technology specialist at the Interior, who said the NIGC could stay online, according to lead counsel Kevin Washburn.

But on January 18, attorneys within the Interior -- including Tim Elliot and Edith Blackwell, both of whom Solicitor Bill Myers recused from working on individual Indian trust matters last fall -- began to express views otherwise. In response, the NIGC voluntarily took itself offline the following holiday weekend "out of an abundance of caution," Washburn wrote in a letter recapping the conversation.

Then came a wave of "fruitless," according to Washburn, conversations with Elliot, Blackwell and others at the Interior and Justice attorneys Sandra Spooner and Matt Fader, who have been handling the shutdown. When NIGC concluded it wasn't subject to the court order and reinstated its Internet connection, the exchanges escalated, culminating in Norton's January 25 letter directing Deer to cut his network access.

The same day, Norton's attorneys informed Balaran that the NIGC was still connected to the Internet. But, according to Washburn, Spooner and Fader failed to include the legal analyses which backed up the decision to remain online despite indicating they would do so.

"Accordingly, the commission was forced to provide its view to you directly," Washburn told Balaran in a January 26 letter summarizing the dispute and NIGC's position.

From failing to pay Indian landowners to hampering dissemination of information, the Internet shutdown has had a far-reaching impact on the Interior's daily business, a situation the NIGC wishes to avoid. Already, NIGC's web site (http://www.nigc.gov) has been inactive since last month.

NIGC's email and other network-enabled systems are still working, however. And to avoid being associated with the Interior's security woes, NIGC has cut its network line to the department, according to Washburn.

Otherwise, the regulatory agency operates, both financially and legally, independent of Norton, Washburn notes in his analyses. For this reason, she "cannot direct the commission to comply with" the computer order, he wrote.

Read the Letters:
Norton to NIGC (1/25) | NIGC to Norton (1/26)

Relevant Links:
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Trust Reform, NCAI - http://130.94.214.68/main/pages/
issues/other_issues/trust_reform.asp

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