H.R.511 gains momentum as members of the House Committee on Education and the Workforce attend the July 22, 2015 markup session which was packed with members of the National Indian Gaming Association in Washington, D.C., for a legislative summit.
The Act which exempts tribes and their casinos from the National Labor Relations Act (NLRA), the Tribal Labor Sovereignty Act was passed on Wednesday at the short markup session on Capitol Hill.
According to the Chairman of the Committee, Rep. John Kline (R-Minnesota) who introduced the bill, “it’s not about big business versus big labor and it’s not about Republican versus Democrat.”
Kline went on to add that “the bill we are considering today is about whether Native Americans should be free to govern employee-employer relations in a way they determine is best for their workplace.”
In what Rep. Todd Rokita (R-Indiana) described as a “bipartisan, commonsense proposal that will provide legal certainty to the Native American community,” the Act would exempt tribes and their casinos from the National Labor Relations Act (NLRA), and prohibit the National Labor Relations Board from asserting jurisdiction at those businesses.
Rokita also went on to state that the Act would give authority back to tribal leaders and end the National Labor Review Board’s (NLRB) overreach, and restore the standard that was in place long before the National Labor Relations Board made the misguided decision to change course. An amendment in the nature of a substitute to clarify that tribal governments are also exempt from the NLRA, was offered by Rokita.
Opposition to the Sovereignty Act was voiced by the only Democrats present, Rep. Mark Pocan (D-Wisconsin), Rep. Joe Courtney (D-Connecticut) and Rep. Ruben Hinojosa (D-Texas), who accused Republicans and their allies of using tribal sovereignty as a smokescreen to attack the NLRB.
Representative Pocan accused proponents of the bill, such as the U.S. Chamber of Commerce, of endorsing the bill in an attempt to help destroy the NLRB rather than support for the sovereignty of the tribes.
The three also noted that most employees of tribal casinos are non-Indians and argued that the bill will degrade labor standards Indian Country.
Although it hasn’t been taken up by the full Senate, on June 10th the Senate Indian Affairs Committee approved S.248, its version of the bill which is gaining traction among lawmakers from both parties.
At that legislative summit which opened Tuesday on Capitol Hill (hosted by the National Indian Gaming Association (NIGA)), Sen. Heidi Heitkamp (D-North Dakota) stressed that every conversation about gaming should begin by stating that gaming is not something that the federal government authorized you to do, but a sovereign right.
She added that, “If the Indian Gaming Regulatory Act went away tomorrow, you would still be able to conduct gaming,”
Exemption from the NLRA has been sought after by the tribes ever since a 2004 ruling in which the NLRB asserted jurisdiction over Indian Country for the first time in decades, but efforts to address the issue ran into serious opposition from Democrats and their labor union allies at that time.
Since that 2004 ruling, tribes have won support from key Democrats by pitching the issue as one of parity with other governments, and with Republicans in control of the House and Senate, the bill has moved quickly in the 114th Congress.
The bill would resolve uncertainties like the one that arose in early June when the NLRB declined to assert jurisdiction at the WinStar World Casino and Resort, a casino owned by the Chickasaw Nation of Oklahoma, citing the tribe’s treaty-protected right to self-governance.
Less than a week later, the 6th Circuit Court of Appeals backed the NLRB’s jurisdiction over the Little River Casino and Resort, a casino owned by the Little River Band of Ottawa Indians in Michigan, and three weeks later, expressing serious doubts about the application of the NLRA in Indian Country, the same court rejected the treaty claims of the Saginaw Chippewa Tribe, also in Michigan.
The U.S. federal law that establishes the jurisdictional framework that governs Indian gaming, the Indian Gaming Regulatory Act (IGRA), has been a source of extensive controversy and litigation since it was passed in 1988.
ALBUQUERQUE, N.M. (AP) — Gambling compacts negotiated by the state and a handful of American Indian tribes have cleared their final hurdle.
The U.S. Interior Department reviewed the compacts but took no action. Under federal law, the agreements are considered approved by the agency as long as they’re consistent with the Indian Gaming Regulatory Act.
The assistant secretary for Indian Affairs, Kevin Washburn, spelled out some concerns the department had with the compacts in a four-page letter sent Tuesday to Gov. Susana Martinez and tribal leaders.
Washburn pointed to an apparent increase in revenue sharing rates for some tribes, but he acknowledged that the agreements had the support of the tribes.
Under the compacts, the Navajo Nation, Jicarilla and Mescalero Apache nations and three pueblos can operate casinos for another two decades.
WASHINGTON, April 29, 2015 /PRNewswire-USNewswire/ — National Indian Gaming Commission (NIGC) Chairman Jonodev Chaudhuri announced Eric Shepard as the Commission’s General Counsel. Shepard has been acting General Counsel since September 2012. Shepard will continue to provide legal oversight, guidance and assistance to the Commission in carrying out its responsibilities under the Indian Gaming Regulatory Act.
“I am grateful to Eric for his steadfast leadership as the acting General Counsel at a time of transition for the NIGC,” said Chaudhuri. “Eric has been a consistent source of counsel, legal insight, strategic thinking and collaborative spirit and he will continue to serve the NIGC well in the years ahead.”
Prior to joining the Office of General Counsel (OGC), Shepard was the Attorney General for the Colorado River Indian Tribes, for more than a decade. While in this position, he served as the chief legal officer and principal advisor to the Chairman and Tribal Council on litigation, federal and state legislative and regulatory affairs, land use and economic development proposals. Before serving the Colorado River Indian Tribes Shepard clerked for the Indian Country Environmental Justice Clinic and the Conservation Law Foundation, and served as a fellow at the Soros Open Society Institute in Bucharest, Romania.
“I am honored Chairman Chaudhuri has asked me to serve as the General Counsel of the NIGC,” said Shepard. “I look forward to continuing my work with the talented and committed attorneys and staff of the Office of General Counsel. I am committed to serving my client, the Commission, as well as maintaining and building relationships with tribes, tribal regulators, and the Indian gaming industry.”
The National Indian Gaming Commission is committed to the prompt and efficient regulation of the Indian gaming industry spanning more than 450 gaming establishments, associated with nearly 242 tribes across 28 states. The Commission’s dedication to compliance with the Indian Gaming Regulatory Act ensures the integrity of the $28 billion Indian gaming industry. To learn more, visit www.nigc.gov and follow us on Facebook and Twitter.
The National Indian Gaming Commission is an independent regulatory agency established within the Department of the Interior pursuant to the Indian Gaming Regulatory Act of 1988.
Source: United States Senate Committee on Indian Affairs
U.S. SENATE – Nearly 25 years following the passage of the Indian Gaming Regulatory Act (IGRA), Senate Committee on Indian Affairs Chairman Jon Tester (D-Mont.) held a hearing today to examine the current state of tribal gaming. Congress passed IGRA in 1988 to regulate gaming on Indian lands.
“Indian gaming has come a long way in the 25 years since IGRA was enacted,” Tester said. “While gaming is not a cure-all for the challenges facing Indian Country, it has provided numerous benefits to the communities who operate successful facilities. We need to make sure all tribal nations can determine the best possible future for their people, whether that’s gaming or not.”
Indian gaming is conducted in 28 states by 43 percent of the 566 federally recognized tribes. Tribal governments employ nearly 6,000 gaming regulators and States employ approximately 570 regulators. At the federal level, the National Indian Gaming Commission employs more than 100 regulators and related staff members.
Kevin Washburn, Assistant Secretary Indian Affairs, at the Department of the Interior, assessed the current state of Indian gaming. “We frequently face a misperception that tribes are acquiring land and opening gaming facilities at a fast pace. The growth numbers alone belie this argument. Of the over 1,700 successful trust acquisitions processed since the beginning of the Obama administration in 2009, fewer than 15 were for gaming purposes and even fewer were for off-reservation gaming purposes.”
Michell Hicks, Principal Chief of the Eastern Band of Cherokee Indians spoke of the transformation his tribe experienced due to successful gaming operations. “The Cherokee Preservation Foundation, funded by gaming revenues to create new businesses and initiatives, has contributed a leveraged impact of about $99 million for additional social improvements, environmental enhancements, workforce development, and cultural preservation in the region. With gaming dollars, the tribe spent $5 million on a downtown revitalization project, $13 million on affordable housing, and $20 million on a new justice center.”
National Indian Gaming Association Chairman Ernest Stevens said, “Nationwide, Indian gaming is a proven job creator. Indian gaming delivered over 665,000 direct and indirect American jobs in 2013 alone. Indian gaming has provided many Native Americans with their first opportunity at work at home on the reservation. Just as importantly, jobs on the reservation generated by Indian gaming are bringing back entire families that had moved away.”
A. T. Stafne, Chairman of Assiniboine and Sioux Tribes of Fort Peck, noted that despite the success of many gaming operations, gaming has not been the economic solution for all tribes. “Despite the success of some tribes, Indian gaming has provided little benefit to many tribes. Geographical location is a barrier for economic development of any kind, and certainly Indian gaming is not immune from geographical limitations.”
Senator Tester reiterated his commitment to tribal sovereignty and self-governance and noted that Indian gaming has made a substantial difference for many tribes. He is monitoring ongoing research on the state of Indian gaming from the Government Accountability Office.
Background
The Indian Gaming Regulatory Act (IGRA) was enacted in 1988 to provide a statutory basis for the regulation of gaming on Indian lands. The Act established the following three classes of gaming:
• Class I gaming consists of social gaming solely for nominal prizes or traditional gaming played in connection with tribal ceremonies or celebrations and is regulated solely by tribes and not subject to IGRA.
• Class II gaming includes bingo, pull-tabs, punch boards, and certain card games and is regulated by the tribes and the Commission.
• Class III gaming includes all other forms of gaming, including casino games and slot machines, and although both Interior and the Commission play a role in overseeing certain aspects of Class III gaming, it is regulated by the tribes and the states pursuant to compacts.
Gale Courey Toensing, Indian Country Today Media Network, March 27, 2013
IGRA architect Frank Ducheneaux (left), Macarro (AP)
This year marks the 25th anniversary of the passage of the Indian Gaming Regulatory Act, the legislation that dramatically changed the economic landscape for tribal nations with casinos. In recognition of that momentous event, Indian Country Today Media Network decided to take a look at some of the early heroes of Indian gaming—the tribes and individuals who advanced it both before and after the passage of the Indian Gaming Regulatory Act.
TABLE STAKES
The precursor to IGRA was the 1987 U.S. Supreme Court ruling in California v. Cabazon Band of Indians, which upheld the right of sovereign Indian nations to conduct gaming on Indian lands free of state control when similar gaming is permitted by the state elsewhere. While Cabazon is often cited as the legal foundation for Indian gaming, a Supreme Court ruling more than a decade earlier paved the way for Cabazon: Bryan v. Itasca County. Russell and Helen Bryan, the Chippewa couple who brought the case forward, deserve a top spot on the list of early Indian gaming heroes, even though they had nothing to do with gaming.
In June 1972, the Bryans received a personal property tax bill for $29.85 from Itasca County in Minnesota, an assessment on their trailer home on the Leech Lake Indian Reservation. They took it to the local Legal Aid Society office, and attorneys there brought a lawsuit to challenge the tax bill in state court. The assessment, which kept going up over time, was challenged all the way up to the U.S. Supreme Court, and in June 1976, the high court ruled that states do not have authority to tax Indians on Indian reservations or to regulate Indian activities on reservations.
“Bryan thus was the bedrock upon which the Indian gaming industry began,” Kevin K. Washburn wrote in a Minnesota Law Review article entitled: “The Legacy of Bryan v. Itasca County: How an Erroneous copy47 Tax Notice Helped Bring Tribes $200 Billion in Indian Gaming Revenue”. Washburn, who was Oneida Nation Visiting Associate Professor of Law at Harvard Law School when his article was published in 2007, is currently the Interior Department’s Assistant Secretary—Indian Affairs. “If economic impact is a useful measure of importance, Bryan may be the most important victory for American Indian tribes in the U.S. Supreme Court in the latter half of the 20th century. Indian gaming is simply the most successful economic venture ever to occur consistently across a wide range of American Indian reservations,” Washburn wrote. If there’s any doubt about the importance of Bryan, he added, “consider that on the basis of the Bryan precedent, the Indian gaming industry was generating between copy00 million and $500 million in annual revenue before Cabazon was decided.”
And, indeed, all across the U.S., Indian country was bustling with gaming activities during the 1970s and 1980s.
THE BIRTH OF RED CAPITALISM
One of Turtle Island’s greatest advocates for Indian sovereignty and self-determination was the late, iconic Mescalero Apache leader Wendell A. Chino. Born in 1923, Chino was elected chairman of the Mescalero Apache’s tribal governing committee at the age of 28 and was reelected every two years until 1965 when he was named the first president of the Mescalero Apache Tribe, serving in that capacity for 16 consecutive terms.
Chino spearheaded the tribe’s shift to controlling its own natural resources, and by the same philosophy of “red capitalism,” in 1975 the Mescalero Apache Nation built the Ski Apache Ski Resort and the Inn of the Mountain Gods resort in the Sierra Blanca Peak, including the first tribal-owned golf course in the United States. At the Mescalero resort property, Chino was also instrumental in establishing one of the earliest Indian casinos (now called the Inn of the Mountain Gods Resort and Casino) by asserting that the state of New Mexico could not outlaw gaming on sovereign tribal land.
Chino led his Nation until his death in 1998 at the age of 74. “In the scheme of the 20th century, it has been said that Wendell Chino was a Martin Luther King or a Malcolm X of Indian country. He was truly a modern warrior,” said Roy Bernal, then chairman of the All Indian Pueblo Council and a member of the Taos Pueblo, in Chino’s obituary in the The New York Times.
From left: Hayward, Tommie and Halbritter (Courtesy Seminole Tribune/Seminole Tribe of Florida [Tommie]; courtesy Mashantucket Pequot Tribal Nation [Hayward]; Onieda Indian Nation [Halbritter])
Fifteen years ago, the National Indian Gaming Association (NIGA) established the Wendell Chino Humanitarian Award in his name to recognize tribal leaders whose actions have improved the lives of citizens in Indian country. For the first time, in 20 the award was presented to an entire tribe, the Quapaw Tribe of Oklahoma, whose altruistic and humanitarian actions helped tornado victims and their devastated community of Joplin, Missouri.
The winner of this year’s award will be honored on March 26 at the Wendell Chino Humanitarian Award Banquet during NIGA’s Indian Gaming 2013 Tradeshow and Convention in Phoenix.
On the East Coast, the Oneida Indian Nation, the Seminole Indians of Florida and the Mashantucket Pequot Tribal Nation were among the earliest to develop Indian gaming.
FROM THE ASHES
Oneida’s gaming enterprise emerged from a tragedy. In June 1976, the aunt and uncle of Ray Halbritter, Oneida Nation Representative and Chief Executive Officer of Nation Enterprises, parent company of Indian Country Today Media Network, burned to death after their trailer caught fire. “The city of Oneida, which is named after us, refused to send the fire department,” Halbritter says. “It was a very tragic time for us. It was horrible.”
Tensions both on and off the reservation were running high because the nation had filed a lawsuit to restore its land rights, which was opposed by many in the surrounding communities. The reservation by that time had been reduced to 32 acres divided into 36 trailer lots, with a mud road down the center and no services. After that tragic fire, the nation’s leaders knew they needed to provide fire protection for the people, but there was no money, Halbritter recalls. They decided to follow the lead of the small fire departments and charities in the surrounding communities that held bingo and “Las Vegas” gambling nights as fund-raisers.
By October of that year, the Oneidas’ bingo operation was up and running. In an effort to develop a better relationship with the city of Oneida, the nation planned a bingo night fund-raiser for the city police department’s benevolent society. The nation informed the state of its plans and invited members of the police department to the event. “A certain number of police came representing the department, but we didn’t anticipate they would use the opportunity to arrest us for operating bingo without a license,” Halbritter recalls.
The nation didn’t have money to wage a legal battle against the state, so their high-stakes bingo operation was shut down. The Oneidas then opened a high-stakes bingo operation in 1985 after the Seminoles in Florida had fought—and won—some of the most important legal battles for Indian gaming. “After they went through all the legal battles, I went down there to visit and they had a flier that told the story of Seminole bingo and they mentioned the Oneida Nation of New York; they talked about the bingo that we had stared years earlier,” Halbritter says.
By 1993, the Oneida Nation, under Halbritter’s leadership, transformed its high-stakes bingo operation into the hugely successful Turning Stone Resort Casino, a world-class golf, gaming, entertainment and hotel resort destination.
SOVEREIGNTY IN THE SUNSHINE STATE
The Seminoles, under the leadership of Howard Tommie, had opened a high-stakes bingo hall on their reservation on December 14, 1979. It was the first casino on Indian land in the country and Broward County Sheriff Robert Butterworth threatened to shut it down and arrest the Seminoles for allegedly violating a Florida gaming statute the minute it opened. The tribe sued the county in Seminole v. Butterworth and won in both federal district court and in the appeals court, which upheld the lower court ruling that Indian tribes have sovereignty rights that are protected by the federal government from interference by state government. The ruling affirmed the Seminoles’ sovereign right to conduct high-stakes bingo on its land and established the tribe’s leadership in Class II gaming.
THE CONNECTICUT MIRACLE
Meanwhile, in Connecticut Pequot leader Skip Hayward was engaged in a three-pronged battle: (1) to save the Pequot reservation from a state takeover after his grandmother Elizabeth George died in 1973, leaving the 200-acre reservation without any residents; (2) to re-establish the fragmented Pequot people as a tribal community and (3) to gain federal acknowledgment. Working with attorneys in a Legal Aid office in 1974 and following a model set by the Penobscot and Passamaquoddy tribes in Maine, Hayward initiated a land claim lawsuit based on the 1790 Indian Nonintercourse Act and drafted a settlement agreement. The land claim raised a storm of opposition in the community and throughout the state, and was challenged in federal court. In 1983, the Mashantucket Pequot Tribal Nation received from Congress 2,000 acres of land, federal acknowledgement, and $300,000 to invest in tribal economic development. Thus began the path that led to the creation of Foxwoods Resort Casino, the largest gaming facility in the country, and to an authentic and astonishing rags-to-riches story for the Pequot people.
“Clearly, we would not be here today without the remarkable dedication and commitment of our early leadership and that goes back to Skip Hayward,” Mashantucket Pequot Chairman Rodney A. Butler says. “His willingness to stand up and fight for Indian rights in the 1970s and again in the 1980s
Clockwise, top left: Wendell Chino, Jana McKeag, Leonard Prescott, Marge Anderson (Richard Pipes/Albuquerque Journal [Chino]; courtesy Leonard Prescott
on Indian gaming can’t be underscored enough. Clearly we wouldn’t be here without his persistence and efforts.”
Hayward started a very successful high-stakes bingo operation in 1986. After the Cabazon ruling in 1987 and the passage of IGRA in 1988, the nation began its pursuit of a casino. By 1993, the bingo operation had evolved into the full-fledged Foxwoods Resort Casino. Hayward had envisioned Foxwoods as the first world-class, family-oriented destination resort casino. “That was a tremendous credit to him and where he wanted it to grow,” Butler says.
Foxwoods’s spectacular success has stood as an inspirational story for all of Indian country, he adds. “Here’s this small tribe from Connecticut now owning one of the largest casinos in the world—we can all do that, right? Well, we can’t all do that, but just the inspiration and hope that it provided, I think, was a big influence on Indian gaming.”
MYSTIC LAKE
The Shakopee Mdwakanton Sioux (Dakota) Community in Minnesota was treading a similar path to Indian gaming success in the early 1980s. The poverty-stricken tribe opened a high-stakes bingo hall in 1982, which laid the groundwork for the development of Mystic Lake Casino a decade later. Leonard Prescott, a founding member of the National Indian Gaming Association in 1985, became the Shakopee chairman in 1987. “I built Mystic Lake Casino in 1991, 1992,” Prescott says. Under his leadership the Shakopee and other Minnesota tribes negotiated the first tribal state gaming compacts in the country in 1989. “The compacts are perpetual,” he says. “We have no time limits. We have no jackpot limits. We pay copy0,000 per tribal government which means today we pay copy50,000 to the state of Minnesota for a $2.5 billion business.”
The Mystic Lake Casino Hotel is one of the most successful in the country, providing the less than 400 citizens of the nation with more than copy million annually in payments. The nation also has a philanthropic program that has distributed hundreds of millions of dollars to local governments, organizations and people in Indian country. Last year, Shakopee donated $29 million.
Prescott says he is astounded at the tribe’s transformation. “When we first developed our bingo hall, we had a dirt road, we were making tracks to our building that sold welfare products, we had no sewer and water. So coming from there to where we are today is miraculous.”
WEST COAST FAST-TRACK
California developed the largest number of Indian gaming facilities in the shortest amount of time in the 1980s and 1990s, and even now—with 62 gaming tribes—it has the highest number of gaming tribes in the country, according to Casino City’s Indian Gaming Industry Report for 2013. The Pechanga Band of Luiseño Indians opened its casino in 1995, the last tribe to do in the state during that early era, said Pechanga Chairman Mark Macarro. Numerous California tribes had successful bingo operations in the 1980s—the San Manuel, Morongo, Cabazon, Barona, and Viejas, Sycuan and Yocha Dehe. “These were the first and therefore the trailblazers,” Macarro says.
Several California tribal gaming facilities were shut down in the 1980s by sheriffs eager to prove tribal gaming was illegal under state laws. Those raids led directly to the watershed ruling in Cabazon, “which then rather quickly was contained and abridged in October of 1988 by the Indian Gaming Regulatory Act,” Macarro says.
But state opposition didn’t stop even after Cabazon and IGRA. Then-governor Pete Wilson disliked gaming and refused to negotiate with the tribes, despite IGRA’s mandate that he do so. Wilson complained about tribal gaming to anyone who’d listen—federal and state officials, Congress, U.S, attorneys, law enforcement, Macarro recalls. Finally, in March 1997, U.S. Attorney Nora M. Manella took action. “Each tribal chair (myself included) was issued a summons to appear in Los Angeles Federal District Court. Our machines had been legally seized, i.e. they were arrested—it’s called in rem seizure.”
The tribal leaders didn’t go to jail, and they called for a huge demonstration. Around 5,000 to 7,000 employees and supporters rallied and shut down the streets of downtown Los Angeles, Macarro says. “The point was: Shut us down? Do so and lose a huge economic engine and these thousands of people go unemployed. The high-point of this rally was when all the tribal chairs stood literally in unity on the top step of the courthouse—summons in hand—and spoke to the crowd. It galvanized us as a group and forged a strong bond which became the keystone for the first statewide ballot proposition battle—Prop 5—in 1988. This was the next major evolution for tribal cohesion and became a watershed period.” Macarro says. Prop 5 passed with 62 percent of the vote and established tribal-state compacts that allowed, among other things, slot machines in tribal casinos.
DOUBLING DOWN
This has been only a partial look at the early Indian gaming “heroes”—it would be impossible to acknowledge the contributions of everyone who worked to make Indian gaming a reality. But no list of Indian gaming trailblazers would be complete without mention of two great women of gaming: Marge Anderson, of the Mille Lacs Band of Ojibwe in Minnesota, was the driving force behind the opening of Grand Casino Mille Lacs and Grand Casino Hinckley within four years of the passage of the Indian Gaming Regulatory Act in 1988; Jana McKeag, of the Cherokee Nation of Oklahoma, was one of the commissioners on the newly created National Indian Gaming Commission in 1991 and began the commission’s first task—writing the regulations that govern Indian gaming.
In the years since the passage of IGRA, Indian gaming has grown to a $27 billion-plus a year industry, giving tribal governments the means to build their nations and provide services for their citizens. It has also infused the U.S. economy with hundreds of billions of dollars and almost 700,000 jobs. While there are potential threats to Indian gaming in the long-term, the industry is likely to continue its success into the mid-term future, says economist Alan Meister, author of Casino City’s Indian Gaming Industry Report for 2013. “The economy will continue to improve over time, bringing back disposable income, consumer confidence and spending on casino gambling.” So, in the words of former Shakopee chairman Leonard Prescott, it is likely the country will be able to enjoy the miraculous phenomenon of Indian gaming for the foreseeable future.
![From left: Hayward, Tommie and Halbritter (Courtesy Seminole Tribune/Seminole Tribe of Florida [Tommie]; courtesy Mashantucket Pequot Tribal Nation [Hayward]; Onieda Indian Nation [Halbritter])](http://ictmncdn1.tgpstage1.com/sites/default/files/default/files/uploads/screen_shot_2013-03-26_at_4.03.54_pm.png)
![Clockwise, top left: Wendell Chino, Jana McKeag, Leonard Prescott, Marge Anderson (Richard Pipes/Albuquerque Journal [Chino]; courtesy Leonard Prescott](http://ictmncdn1.tgpstage1.com/sites/default/files/default/files/uploads/screen_shot_2013-03-26_at_4.04.07_pm.png)