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THURSDAY, JUNE 6, 2002

The National Indian Gaming Commission has reaffirmed its authority over Indian casino operations despite a judicial officer's conclusion that hundreds of Clinton-era mandates violate tribal sovereignty.

Overturning the recommendations of a Department of Interior administrative official, the NIGC last week issued an order stating its continued oversight of the $10 billion and growing Indian gaming industry. The decision, signed by Chairman Montie R. Deer and commissioner Teresa Poust, asserts that all aspects of tribal casinos are subject to federal regulation.

But rather than respond in detail to a 34-page legal opinion that poked large holes in such logic, the two Clinton appointees based their reversal on the strongly-held "conviction" that the NIGC can force tribes to comply with rules that govern the day-to-day operation of casinos. Admitting that federal law is silent on the issue, they instead refer back to a 1999 internal determination that expanded the commission's powers under the Indian Gaming Regulatory Act (IGRA).

"IGRA grants to the NIGC broad enforcement powers to ensure continuing compliance," the May 30 order states.

At issue are a set of controversial rules finalized during the Clinton administration. Known as "minimum internal control standards," or MICS, they detail in minutiae how tribes are to run their casinos, from cash management to employee background checks to financial audits.

Specifically, the standards apply to the highly lucrative Class III market of tribal casinos. Games such as slot machines, poker and blackjack can only be operated pursuant to a tribal-state agreement. And, based on the Clinton administration's "reasonable interpretation" of IGRA, under the MICS.

The Colorado River Indian Tribes (CRIT) of Arizona, considered in many circles to be among the staunchest defenders of tribal sovereignty, challenged the regulations under the grounds that federal law is indeed silent on Class III gaming. Tribal officials refused entrance to federal regulators who wanted to audit the Bluewater Resort and Casino. The NIGC subsequently imposed a $20,000 fine.

Agreeing with the tribes, Candida S. Steel of the Office of Hearings Affairs (OHA) recommended on May 2 that the fine be dismissed. She also found that the NIGC not only lacks the authority to enforce its Class III mandates but can't impose the rules on tribes at all.

"[T]he NIGC is not achieving the carefully orchestrated purpose of the IGRA because it impinges on the very sovereignty of the tribes and the states," Steel wrote.

The tribes can seek judicial review of the reversal of Steel's opinion, according to Richard R. Schiff, the chief of staff at the NIGC, but only after the second part of the case has been resolved. Tribal and government attorneys agreed to resolve the MICS issue first, according to OHA documents.

Commissioner Liz Homer did not participate in the decision. Her husband, Pete Homer, is a CRIT tribal member.

Deer, Poust and Homer are all Clinton administration political appointees. Deer's term officially ended this spring but President Bush has not named a replacement. He plans to stay at the NIGC until the Senate confirms a new chairman.

Poust and Homer serve at the will of the Secretary of Interior. Their terms are due to expire this summer.

Relevant Documents:
Memorandum Decision and Order (5/30)

Relevant Links:
National Indian Gaming Commission - http://www.nigc.gov
Colorado River Indian Tribes - http://www.critlibrary.com

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