HOLLYWOOD — More than 400 representatives from Tribes throughout Indian Country convened in Hollywood for the National Indian Gaming Association (NIGA) mid-year conference at the Seminole Hard Rock Hotel & Casino Nov. 2-4. The conference highlighted several legislative issues NIGA is tackling in Washington, D.C. and touted its 30 years of accomplishments on behalf of Indian gaming.
“The leadership is here to discuss the matters at hand,” said NIGA Chairman Ernest L. Stevens Jr. as he opened the meeting.
After a welcome from Chairman James E. Billie, President Mitchell Cypress and Big Cypress Board Rep. Joe Frank, the issues facing Indian Country took center stage.
NIGA is addressing several legislative issues, including tribal government parity in the National Labor Relations Act (NRLA); Internet gaming legislation; implementation of the Tribal General Welfare Exclusion Act of 2013; and restoration of tribal homelands – reversing Carcieri v. Salazar.
Passage of the Tribal Labor Sovereignty Act (TLSA) would amend NLRA and bring tribal casinos on par with other commercial enterprises wholly owned and operated by governments within the U.S., including states, counties, cities, the District of Columbia and U.S. territories who by law do not have to allow its employees to unionize. According to the NIGA website, “current law singles out Indian Tribes as the only governmental entity subject to the NLRA – essentially making tribal governments second-class sovereigns.”
The issue began in 2004 when the National Labor Relations Board (NLRB), in NLRB v. San Manuel Band of Serrano Mission Indians, overturned three decades of its own precedent in ruling the NRLA applies to Indian casinos wholly owned and operated by Tribal governments. In 2007, the U.S. Court of Appeals for the Ninth Circuit upheld the NLRB decision. Since then, organized labor has targeted Indian gaming.
NIGA worked with Congress to introduce TLSA in the House of Representatives and the Senate, which would amend the NLRA to exempt tribal enterprises on Indian lands from unionization. But the bill needs more support to pass into law.
NIGA Executive Director Jason Giles said John Boehner’s resignation as House Speaker has delayed the bill.
“The Boehner resignation threw a wrench in the plan and pushed our agenda back,” Giles said. “Democrats will vote against it, but we have support from Republicans.”
Federal attempts to legalize Internet gaming have been unsuccessful. The Internet Poker Freedom Act, which would allow Internet gaming for poker only, and the Restoring America’s Wire Act, which would ban Internet gaming altogether, died in Congress in 2013. But both acts were reintroduced in June. While the bills languish in Congress, states are rolling out their own Internet regulations.
“There are two sides to their regulations; either ban it or put the states in charge,” Giles said. “Indian Country shouldn’t be left out.”
NIGA is united behind the Principles of Sovereignty, which were developed by the NIGA Internet Gaming Subcommittee five years ago. According to NIGA, the principles “demand that any federal Internet gaming legislation treat Tribes as governments, that tribal Internet revenue not be subject to any form of outside taxation and that the bill respect and protect existing tribal governments’ right to conduct Indian gaming under IGRA and existing tribal-state compacts.”
“These principles have bonded us together,” Stevens said.
NIGA is also focused on implementing the Tribal General Welfare Exclusion Act of 2013 by the Department of Treasury and the IRS to protect tribal government programs from federal income taxation. Congress passed and President Barack Obama signed the act in September 2014 to mandate that the Internal Revenue Service not tax Tribal members on the services they receive from essential tribal government programs.
NIGA is working to reverse the 2009 Carcieri v. Salazar Supreme Court decision, which only allows Tribes that were under federal jurisdiction in 1934 to put land into federal trust under the Indian Reorganization Act (IRA) and restore tribal homelands. The decision has slowed development of housing, education, health care and other services on Indian land.
The U.S. Court of Appeals for the Ninth Circuit issued a decision in Big Lagoon Rancheria v. California in 2014 that stated California is under no obligation under IGRA to negotiate with the Tribe because they did not have jurisdiction over an 11-acre parcel put into trust under IRA in 1994.
“These decisions have created an atmosphere of uncertainty that has discouraged investment and threatens reservation jobs and economic development. The decisions also have paralyzed the administrative tribal land to trust process, making it impossible for tribes to rebuild their communities,” NIGA wrote in a memo to members.
In June, the U.S. Government Accountability Office released a report on tribal gaming and recommended that National Indian Gaming Commission continue to obtain input from states on gaming control standards.
“The government spent a lot of money reviewing Indian Country and found out how efficient Indian gaming is,” Stevens said. “They saw an amazing business function out there. The bottom line is we are responsible to our communities. We stand strong, spend millions to protect our industry and are stringent and assertive.”
Tribes use revenue from Indian gaming to provide essential government services including health care, education, public safety and infrastructure.
During a session on tribal gaming’s unique history and purpose, Joel M. Frank Sr. explained how the Seminole Tribe fought for the right to operate high-stakes bingo games. In 1979, cigarette sales drove the Tribe’s economic development but the Tribe believed they had the right to open a bingo hall.
“We were on the verge of what I call a renaissance period of new prosperity,” said Frank, chief operations officer. “We wanted to find a way for our families to become economically stable.”
Frank said Chairman Billie went to 68 law firms to get legal opinions on high-stakes bingo. Every one of them said it could not be done because there was no law that said it could.
“We thought about that and decided to try it,” said Frank, who was the tribal administrator at the time. “We can always ask for forgiveness later.”
The Broward County sheriff tried to shut down the Tribe’s bingo, but the Tribe sued the state claiming sovereignty protected them from state interference. In 1981, the case was decided in the Tribe’s favor by the U.S. Court of Appeals for the Fifth Circuit, which helped open the door for Indian gaming nationwide.
“We knew we would have an impact on Indian Country and said somebody had to do it,” Frank said. “So we took it upon ourselves to push this issue.”
Shortly after, tribal leaders invited other Tribes to Florida to discuss creating a regulatory process for Indian gaming. A committee was formed to develop standards; Frank served as vice chairman. A few years later, members of the committee served as the first leaders of NIGA.
“As a result, a lot of us have stable economic development on our reservations,” he said. “I can’t believe it’s been 30 years. If it wasn’t for gaming, we wouldn’t have Hard Rock International. Imagine what you can do when you set your mind to it.”
NIGA Chairman Emeritus Rick Hill recalled that first meeting in a hotel room in Florida that led to the formation of NIGA.
“We gathered around a bed,” said Hill, of the Oneida Tribe of Wisconsin. “We didn’t have a meeting room; no one had any money. NIGA started with a shoebox full of records.”
Today, Indian gaming is big business. Of the 567 federally recognized Tribes, 244 participate in gaming and 184 are members of NIGA. In 2013, 479 Indian gaming casinos in 28 states earned revenue of $28.6 billion, according to the 2015 Indian Gaming Industry Report by Nathan Associates Inc. The report stated the impact on surrounding communities and the general U.S. economy totaled approximately $91 billion. The report also found that the industry supports 612,000 jobs and its employees earn $28 billion in wages.
The Indian Gaming Regulatory Act of 1988 (IGRA) gives Tribes the responsibility for regulating their gaming operations. IGRA promotes tribal economic development, self-sufficiency and strong tribal governments through gaming revenues. The act also established the National Indian Gaming Commission.
In 1983, the Bureau of Indian Affairs coordinated with Tribes to form the National Indian Gaming Task Force. Leaders spent a year meeting with federal and tribal officials around the country to work out the details of what would become IGRA.
Members of the task force formed NIGA in 1985.
Attorney Sharon House, of the Onieda Tribe of Wisconsin, recalled her experience on the task force during the conference. They met with representatives of the BIA, state attorneys general and governors’ representatives on reservations around the U.S. that did not have gaming.
“We really saw the people that needed help from a casino’s money,” House said. “One of the best things we ever did was to have meetings on those reservations. It took a year for them (the government officials) to realize we were real people with real issues.”
House mentioned a meeting in New Mexico where the state attorney general asked tribal officials what they really wanted.
“They said they wanted sewers and bathrooms like you have,” she said. “All along they (the government officials) thought it was all about the money; they couldn’t understand the need.”
Hill said the states “just didn’t like Indians,” but added that the task force was enthusiastic. When IGRA was created, Tribes had to deal with “lesser sovereigns – the states” to finalize compacts. Studies citing economic impact of Indian gaming were a turning point in the negotiations with states.
“It wasn’t just about sovereignty; it was about money,” he said. “That opened their eyes about how Indian gaming could help states’ economies.”
Even today, small Tribes are being challenged by states, Hill said. He cautioned that the war for tribal sovereignty continues.
“We have to fight fire with fire,” he said. “Sovereignty is what this is all about so our kids can have a good education and a better life than we and our parents did.”