NIGA Chairman Ernie Stevens Jr. Weighs In on Carcieri and Internet Gaming

Gale Courey Toensing
10/1/12

National Indian Gaming Association (NIGA) Chairman Ernie Stevens Jr., a citizen of the Oneida Tribe of Wisconsin, says there was “a real sense of tribal unity” at the Democratic National Convention in Charlotte, North Carolina, which he attended in early September along with more than 140 Native American Democratic delegates. Indians could have a major impact on the November national elections, he insists. “There are 18 states that are up for grabs, and most of these states have large Native populations of more than 10 percent, enough to help decide this election.”

With the election drawing near, Indian Country Today Media Network asked Stevens to weigh in on the major unresolved issues related to gaming that Indian country faces and to assess the chances for making progress on them, depending on which party prevails in November.

In February 2013 it will have been four years since the U.S. Supreme Court handed down its devastating Carcieri v. Salazar ruling. Is there any hope of Congress passing a Carcieri fix this year? Since the Democrats haven’t been able to pass a fix, is there any hope if a Republican administration comes in? And how is the Carcieri ruling affecting Indian gaming?

The Supreme Court’s Carcieri decision was a direct attack on tribal sovereignty. It attacks the ability of tribes to restore our homelands, and that is a core aspect of tribal sovereignty. The case is a jobs killer for Indian country, which is already facing unemployment rates averaging 50 percent, and it’s further harming tribal economies by deterring investment in Indian country.

I think the chances of Congress passing a clean Carcieri fix prior to the election are minimal. Congress is in D.C. for less than 10 days of work before they leave town to campaign for the November 6 elections. Our best window of opportunity in 2012 will be the lame-duck session from mid-November to mid-December. Most members of Congress understand that this is about jobs and about protecting tribal sovereignty. We have broad bipartisan support in the House, and Senator [Daniel] Akaka [D-Hawaii] has made it one of his top priorities.

However, some obstacles remain, and for the most part those obstacles come from folks who view Carcieri as an Indian gaming issue. It’s important to remind the congressional decision-makers that the Carcieri case involved a housing development for tribal elders, not a gaming project. Indian gaming remains subject to the Indian Gaming Regulatory Act [IGRA], and off-reservation gaming is subject to that act and the regulations put in place by Interior. None of this involves the land-into-trust process under the Indian Reorganization Act. So to directly answer your question, Carcieri is not impacting Indian gaming. Our industry is strong. Indian gaming has prevailed through the worst of the recession, and we had a three percent increase in gross revenues in 2012. But to overcome our obstacles, we need to remind Congress that this isn’t about gaming—it’s about jobs, cultural preservation and lands to improve Indian housing, education, health care and other basic tribal government services for our citizens.

I think everyone in Indian country would agree that the Obama administration has gone to the mat to support a clean Carcieri fix. From President Obama to his Office of Management and Budget to [Interior] Secretary [Ken] Salazar and everyone involved at the [Bureau of Indian Affairs], they’ve been there to support a legislative fix. The president has included language in each of his past three budgets, and his attorneys have continued to fight off attacks that stem from the decision. I’m not sure we can have a stronger advocate. However, if the administration changes, I’m confident Indian country will work with the new administration [and] will fight to limit the impact of the decision, and work to bring jobs to our people.

Another year has gone by, umpteen more congressional hearings have taken place, and there’s still no enacted Internet gaming legislation. But things are changing. A couple of tribes have partnered with a free play venture that could turn into pay-for-play. The Democrats are calling for 98 percent of the country to have wireless Internet service—although their platform doesn’t mention Internet gaming—and the Republicans are calling for a prohibition on Internet gaming and a reversal of the Department of Justice’s (DOJ) December 2011 opinion that opened Internet gaming, with the exception of sports betting, to tribes and states. So where are we with Internet gaming? Has NIGA shifted from its position a year ago or are you holding fast? Are the Republicans on to something—should Internet gaming remain illegal?

NIGA’s position on Internet gaming has not changed. We continue to fight to protect tribal sovereignty and preserve the existing rights of tribal governments under IGRA and those contained in tribal-state compacts. We are aware that leaders of both parties in the Senate have come to an agreement on draft legislation to legalize Internet poker, while partially reversing the DOJ opinion through an amendment [in other legislation].

NIGA continues to work with members of Congress to ensure that if any Internet gaming legislation moves, it includes provisions to protect existing tribal rights, provide tribal governments with equal access—as governments—to operate and regulate the new industry and that tribal revenues—which will be used 100 percent to benefit tribal communities—not be subject to taxation.

What about statewide online gaming and the possibility that states will open up gaming to any and all and not restrict it to Indians only? Where does that leave Indian gaming, whether it’s in a bricks-and-mortar facility or online?

When the DOJ opinion came out in December 2011, we immediately recognized that this would provide an opportunity for state governments to move their lotteries online. Tribal governments also viewed the decision as opening the door to move Indian gaming operations online. However, both tribes and states also acknowledge that many legal obstacles and questions remain, and for that reason, most states have moved very slowly and cautiously. [The DOJ ruling] was on just one law, and there are several other federal criminal laws that impact gaming that have to be examined. No one involved wants to subject their existing operations or lotteries to litigation or criminal prosecution.

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