BIA official warns of Congressional maneuvering

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BIA official warns of Congressional maneuvering
Friday, April 16, 2004

A "super-charged political atmosphere" will contribute to attempts to change Indian gaming law and the federal recognition process, a top Bureau of Indian Affairs official said on Thursday.

In a warning of sorts to Indian Country, principal deputy assistant secretary Aurene Martin said members of Congress are being pressed to act on the two controversial subjects. She predicted legislative proposals would surface this summer, possibly through riders on the Department of Interior's annual appropriations bill.

"Every year in the summer it seems that we as a community are caught off-guard by whatever amendment of the moment is being presented," Martin said at the Federal Bar Association's annual Indian law conference in Albuquerque, New Mexico.

"For some reason, we are just not prepared when everything seems to go awry," she added.

On the subject of gaming, Martin cited high-profile cases in which tribes are seeking to establish casinos far away from their existing reservations and, in some cases, in other states. She said lawmakers in New York are particular angered about this growing development.

"In looking at what's been going on," she said, "I think there's a very real chance that this year ... the pressures might be such that there are going to be some make serious efforts to change the Indian Gaming Regulatory Act."

BIA officials and their colleagues at the National Indian Gaming Commission, the federal agency that regulates tribal casinos, aren't in total agreement on whether federal law limits these types of far-away land acquisitions. Last month, a BIA official told a Senate committee that his staff has found no reason to reject such requests.

But an NIGC attorney that same week issued a legal opinion pointing to a "clear" Congressional intent to restrict gaming on newly acquired lands. Martin said lawmakers in affected states might try to impose their own solution in response to complaints from their constituents.

"[R]epresentatives in Congress are also very upset, and they continue to call us and ask us what we are going to do about it and I think they want to do something about it on the Hill," she told conference attendees.

Martin also mounted a spirited defense of her recent decision recognize the Schaghticoke Tribal Nation of Connecticut. In her first and most extensive public comments on the issue to date, she rejected criticism originating from the state and its Congressional delegation against her reliance on the state's historic relationship with the tribe to bolster the tribe's petition for federal status.

"How do you treat a petition from a state that has basically replicated the federal recognition at the state level, a recognition which, at the federal level, is at its core a recognition of another sovereign entity?" she asked.

The Schaghticoke decision is under appeal but Martin said members of Congress are considering legislation to codify the BIA's federal recognition regulations into law and to change the standards by which a petition is evaluated. Two hearings have already been held on the process, and the Senate Indian Affairs Committee will hold a hearing next week on a bill to address the level of proof required to demonstrate federal status.

Martin also predicted legislation to eliminate the tribal exemption to the "cooling off" period imposed on federal employees who leave their government jobs. In the private sector, these employees are prohibited from lobbying their old agency for one year but an exemption is allowed for those who lobby on behalf of tribal, state and local governments.

"Because of the charged atmosphere with regard to the Schaghticoke decision and the mistaken perception that Indian gaming is absolutely and completely intertwined with the recognition process, I think this is going to continue to be an emotional and charged, heated debate in Congress," she said.

Martin's boss, assistant secretary Dave Anderson, was originally scheduled to speak at the conference but due to a conflicting engagement, he stayed in Washington, D.C., yesterday. Martin is an attorney; Anderson is an entrepreneur who has no legal training but has worked in tribal government and gaming.

During her lunch hour address, Martin did not make reference to repeated Congressional efforts to limit the federal government's trust responsibilities to individual Indians. Last summer, the Bush administration supported a controversial rider to delay a court-ordered accounting of billion of Indian funds.

The conference wraps up today with discussions on Indian gaming, criminal jurisdiction in Indian Country, ethical issues and energy development.

Relevant Links:
Federal Bar Association - http://www.fedbar.org