NIGC issues letter-of-the-law violation to Yakama Nation

Gale Courey Toensing
9/11/09

WASHINGTON – The Yakama Nation has been issued a notice of violation from the National Indian Gaming Commission and could face fines of up to $25,000 a day per violation for distributing per capita payments to its members last Christmas before getting approval from the Interior Department.

The approval process was in the works, but was held up in part because of normal pre-holiday bureaucratic disruptions, such as people who needed to sign off on the document being on vacation.

NIGC Chairman Phil Hogen issued the notice of violation Sept. 1 to Ralph Sampson Jr., chairman of the Yakama Nation Tribal Council; Wallace Yallup, chairman of the nation’s Tribal Gaming Corporation; and Roger Fiander, chairman of its Gaming Commission. Yakama is located in Toppenish, Wash.

The Indian Gaming Regulatory Act allows tribes to distribute per capita payments to members when a Revenue Allocation Plan has been approved by the Interior. The Yakama Nation submitted a RAP in December, but it was not immediately approved.

“By distributing payments to each tribal member in December 2008, the Yakama Nation violated IGRA’s prohibition against per capita payments of net gaming revenue in the absence of an approved RAP,” Hogen said.

The tribal council had approved a one-time economic stimulus payment in the amount of $2,000 to all enrolled members “to provide for the general welfare of our tribal members and to promote our tribal economic development,” read the notice of violation.

The notice indicates that Interior intended to approve the RAP after a “minor” modification was made in the definition of “full-time student.” That correction was made and submitted.

On Dec. 15, BIA Superintendent Guy Rogers sent an urgent e-mail to Interior Department officials Nancy Pierskalla and Paula Hart, saying the Yakama Nation really wanted to distribute the stimulus funds to its members before Christmas.

“At your earliest convenience, please let us know when you are able to approve this plan as modified. … The tribal attorney is drafting the exact language of the definition of this term which is to be sent to you today. Ms. Pierskalla will be on vacation beginning tomorrow, as will I.”

When the documents arrived, Interior staff members were on vacation and the paperwork was set aside until their return.

In the midst of the e-mailing and urgent requests to expedite the approval, NIGC Region Director Mark Phillips called Fiander Dec. 18 and told him “the distribution was not authorized without an approved revenue allocation plan, and, therefore, the NIGC would object to any such distribution.”

Around the same time, Yakama distributed the $2,000 per capita payment to its 10,213 enrolled members.

On Feb. 23, the RAP approval was issued by George Skibine, the DOI’s Deputy Assistant Secretary of Indian Affairs.

Even though the RAP was approved, Hogen went forward with the notice of violation. It is not clear, however, why he waited until September to issue the notice.

“The Yakama Nation has been resourceful and productive in its economic development efforts through their gaming operations, and it knows best how to identify and meet tribal needs,” Hogen said. “However, when gaming revenues are utilized, IGRA specifies the process to be complied with. Despite cautionary advice, the nation’s December distribution to the tribal membership did not comply with this process. There are consequences to such non-compliance, and the overall integrity of the regulation of Indian gaming dictates that we address such non-compliance.”

The nation has 30 days to appeal the notice of violation and may request a hearing at which it can present oral testimony and witnesses.

The violation may result in a “civil fine in an amount not to exceed $25,000 per violation per day.” It is not clear if that means the commission can fine Yakama $25,000 per day for each of the 10,213 members who received payments.

Yakama officials could not be reached for comment.

Members of the Indian gaming community expressed disappointment at Hogen’s decision to issue a violation notice under the circumstances.

“Among several views of this, I think my most important view is that the equities in this situation are out of balance,” said Joe Valandra, a former chief of staff at NIGC and current consultant to tribal gaming commissions and tribal governments primarily on Indian gaming regulations.

One of the most important functions the NIGC chair or anyone with discretion to levy fines or prosecute is to seek that balance in each situation, he said.

“In this case, a Revenue Allocation Plan had been filed with Interior, there was every indication it was going to be approved, and it was approved shortly after the first of the year. In my mind, if you’re going to be the chairman of NIGC, especially with a tribe like Yakama, which is not one of the largest gaming tribes, but is trying desperately to provide for its members, you would exercise your discretion in favor of the tribe that was trying to do the right thing. That isn’t what happened here.”

Yakama may have violated the letter of the law, but the NIGC has violated the spirit of the law, said an Indian law attorney who asked to remain anonymous.

“Yes, there is a violation in that the tribe didn’t submit its RAP timely, and it wasn’t approved timely, partly because of vacation scheduling,” the attorney said.

“But, because there can be no remediation, the tribe is facing the possibility of significant fines. If all this is just the NIGC throwing its weight around, that would be an unseemly use of power. I suspect that Yakama doesn’t have all that much money to spare to the fine process, which goes right out of Indian country and directly into the federal government’s general fund. So what purpose is served?”

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