As he attempts to strengthen the regulation of the $19 billion Indian gaming industry, Sen. John McCain (R-Arizona) reiterated his support for tribal sovereignty last week.

"I respect tribal sovereignty and have a clear record of support for tribal sovereignty sometimes to the dismay, perhaps, of some of my constituents," McCain said at a September 21 hearing before the Senate Indian Affairs Committee, which he chairs.

But in defending his record, McCain advocated a somewhat controversial view. He said that sovereignty is limited in areas like tribal gaming, an industry that employs tens of thousands of non-Indians and attracts non-Indians to casinos across the country.

"To assert tribal sovereignty over an operation that does not involve Indians but non-Indians to me is not a valid enough argument because I have an obligation under the Constitution ... to all of our citizens," McCain said. Tribal sovereignty is "overridden to some degree" by a need to protect "all citizens" from potential corruption at casinos, he added.

That kind of reasoning was behind a recent labor law decision that overturned 30 years of precedent in dealing with tribes. By a 3-1 vote in May 2005, the National Labor Relations Board asserted jurisdiction over tribal enterprises that employ or affect non-Indians.

"As tribal businesses prosper, they become significant employers of non-Indians and serious competitors with non-Indian owned businesses," the ruling, which has been heavily criticized by tribal leaders, stated. "When Indian tribes participate in the national economy in commercial enterprises, when they employ substantial numbers of non-Indians, and when their businesses cater to non-Indian clients and customers, the tribes affect interstate commerce in a significant way."

The federal courts have taken a similar route in attempting to resolve tribal-state disputes over taxes, land and jurisdiction. When off-reservation or non-Indians interests are involved, the test favors states, an issue that will be considered when the U.S. Supreme Court convenes on October 3 to hear a critical Indian tax case.

It wasn't always that way. Historically, tribes and reservations were hands off when it came to non-Indians and states. In the 1830s, the Supreme Court's rulings in the Cherokee Nation cases set precedent that was followed for more than a century.

But as federal policy shifted and swayed, the lines have been redrawn. From assimilation to reorganization to termination to self-determination, states and non-Indians have just as much as stake in Indian Country as tribes do.

Indian gaming is only just the latest example of the trend, tribal advocates say. Although gaming has been a boon to many, tribes are under pressure not only to give up more of their rights to states but to address the impacts of their casinos on off-reservation communities.

"From our point of view," said Mark Van Norman, the executive director of the National Indian Gaming Association, said at the hearing, "there already had been some inroad on Indian sovereignty by requiring tribes to work with states through the tribal-state compact process."

The debate is coming to a head as McCain examines ways to amend the Indian Gaming Regulatory Act of 1988. He is joined in the effort by Sen. Byron Dorgan (D-North Dakota), the vice-chair of the committee, who has said the growth of the industry demands renewed scrutiny by Congress.

According to McCain, a recent court decision involving the Colorado River Indian Tribes of Arizona may force action sooner rather than later. On August 24, a federal judge ruled that the National Indian Gaming Commission has no authority to issue and enforce regulations for Class III gaming, the most lucrative segment of the industry.

At the hearing, McCain said the decision "defies logic" because it limits the NIGC's role. "I think we're going to have to try come up with some fix for this," he added.

But Van Norman, in his testimony, and tribes, as part of the court case, are arguing that the proper resolution of the dispute lies with the compacting process that they say limited sovereignty. The judge gave the Colorado River Indian Tribes and the state of Arizona time to modify their compact, which has been hailed as a model for the rest of the nation.

Although he said he didn't know whether the Department of Justice would appeal, McCain indicated that the tribal arguments don't carry much weight with him.

"Issues of tribal sovereignty not only entail activities on Indian lands that are conducted by Indians," he said. "Ninety-nine percent of the patrons of these Indian gaming activities are non-Indians. So we have an obligation to non-Indians as well as Indians to make sure that these gaming activities are honest, straightforward and adequately regulated."

Court Decision:
Colorado River Indian Tribes v. NIGC | Order (August 24, 2005)

Relevant Links:
Colorado River Indian Tribes - http://www.critonline.com
Senate Indian Affairs Committee - http://indian.senate.gov