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Tribal gaming still faces challenges in Congress

Efforts to restrict the $23 billion tribal gaming industry may resurface when Congress returns to work after the November elections, Indian advocates said last week.

Key lawmakers in the House and Senate have introduced measures to limit the acquisition of land for casinos. Former Sen. Ben Nighthorse Campbell (R-Colorado) called the proposals an attack on tribal rights.

"Whether your're a large land-based tribe or a small one, it's an affront to sovereignty," Campbell said last week during the National Congress of American Indians annual conference in Sacramento.

Sen. John McCain (R-Arizona), the chairman of the Senate Indian Affairs Committee, is sponsoring S.2078, a major overhaul of the tribal gaming industry. The highly controversial measure is subject to a dozen holds by senators on all sides of the issue.

"It looks like that bill will not pass this year," said Campbell, who was chairman of the Senate Indian Affairs Committee before he retired in 2004.

But Campbell warned that McCain or other lawmakers may try to push the changes through by using other pieces of legislation. "I know the rules in the Senate," he said. "That could be attached to anything."

Mark Van Norman, the executive director of the National Indian Gaming Association, agreed with the forecast. He said Senate staffers have indicated they will raise the issue during the "lame-duck" session after the November elections.

"Our opposition so S.2078 was unanimous," Van Norman said at NCAI. "This needs to go back to Congress" for further consideration, rather than be pushed through at the last minute, he added.

Campbell expressed similar concerns about H.R.4893, a bill sponsored by Rep. Richard Pombo (R-California), the chairman of the House Resources Committee. Pombo lost a critical vote on the measure last month but could revive the bill before the end of the year.

"That may also come back up," Campbell said of the bill. "We don't know."

Rather than seek legislative changes, Van Norman wants Congress to wait until the Bush administration finalizes its gaming land acquisitions. Last Thursday, the Bureau of Indian Affairs published a proposed set of rules in the Federal Register, the first step in the regulatory process.

"Tribes don't want to reopen the Indian Gaming Regulatory Act," said Van Norman.

The rules define how the BIA considers off-reservation casinos and other types of gaming proposals under Section 20 of IGRA. They are the first concrete set of rules since the law was passed in 1988.

But they don't go far enough, Pombo said in response. "This week's regulations, while admirable in their intent, do not substantially rein in the exploitation of the Section 20 exceptions process, and will not halt the practice of reservation shopping."

Under Section 20, land acquired in trust after 1988 can't be used for gaming unless the tribe qualifies for one of four exceptions. They apply to Oklahoma tribes with former reservations, newly recognized tribes, restored tribes and tribes with land claim settlements.

If the tribe doesn't qualify for an exception, the tribe can proceed under the two-part determination process of Section 20. This requires BIA approval and concurrence from the state governor.

The two-part determination has only allowed three tribes to open casinos on land that was not part of an existing reservation. But the other exceptions have been used to open nearly 40 casinos, according to a count by Indianz.Com that Pombo has cited on the House floor.

The most common exceptions are the ones for Oklahoma tribes and restored tribes. The least common exception is the land claim settlement one -- only one tribe has been able to open a casino pursuant to a land claim settlement that has been ratified by a separate act of Congress.

The BIA is taking comments on the rules until December 4. It could be several more months before they are finalized.

Section 20 Regulations:
Text | PDF

Pombo IGRA Bill:
H.R.4893 [As Passed by Committee] | H.R.4893 [As Introduced] | MP3: House Resources Committee Debate | Substitute | Explanation

McCain IGRA Bill:
S.2078 | Senate Indian Affairs Committee Report

National Indian Gaming Association Resolutions:
Section 20 | IGRA Amendments

Relevant Links:
National Indian Gaming Commission -
National Indian Gaming Association -