IN the legal thicket where the rights of Indians are entangled with states rights and the laws of the federal government, the most pressing question has become: How should the phenomenally successful native-American gambling industry be regulated?
Congress passed the Indian Gaming Regulatory Act (IGRA) in 1988. But disputes between tribes and states over interpretations of the regulations arose almost immediately. A number of issues are still unresolved in several states.
The United States Senate Committee on Indian Affairs has proposed legislation to clarify and tighten Indian gambling regulations for three reasons: To protect the honesty and integrity of Indian gaming, to resolve wrangling over the kinds of gaming allowed by states, and to address the issue of states using the 10th and 11th amendments to the US Constitution to avoid negotiating gambling compacts with tribes.
Some 120 tribes in the US offer various kinds of gambling today, with many reservations operating high stakes, casino-style gambling. This week, the governor of Massachusetts signed an agreement with the Wampanoag tribe to build a casino, but the pact is subject to legislative approval. The net revenue from all US reservations, an estimated $750 million last year out of more than $5 billion wagered, has become the largest source of economic activity for Indians. It continues to grow as more and more Americans gamble.
``The proposed regulation is mainly an ounce of prevention,'' says Eric Eberhard, minority counsel for the Senate Committee on Indian Affairs. ``There is not any substantial or significant organized or unorganized criminal activity in Indian gaming today, but there is interest in setting minimum standards to ensure that funds continue to be adequately accounted for and the games are fairly played.''
Many tribes that were locked in poverty for a century or more are now prosperous, with huge profits from casinos and bingo halls. In addition to Congress, some states are concerned that criminal elements, attracted by the profits, could gain access to the money.
Most tribes are not opposed to the idea of federal standards. Some resist the possible expanded role of the current Indian Gaming Commission, created by Congress, as more encroachment on Indian sovereignty. The tribes ask: Will it be another oppressive regulatory bureaucracy? They also insist that tribes should have a greater voice in creating any standards.
Marge Anderson, chairwoman of the Mille Lacs Band of Chippewa in Minnesota, which has two tribal casinos open 24 hours a day, told the Senate committee in a statement that her tribe would resist turning ``regulation of our casinos over to some distant bureaucrat.''
``Jurisdiction is parceled out all over the place now,'' says Tony Hope, chairman of the Indian Gaming Commission. ``The tribes have some. I have some. The states have some, and the federal government has some - therefore, nobody really does anything. It's close to chaos.''
BUT the National Indian Gaming Association, a nonprofit organization of 94 tribes, says Indian gaming is more heavily regulated than commercial gaming. Tribal governments regulate gambling through tribal ordinances, the states do it through tribal/state compacts, and the federal government through the Justice Department and the Indian Gaming Commission.
``I think most of the tribes now understand that minimum federal standards are in the best interests of everyone,'' Mr. Eberhard says.
California has been embroiled in a battle with tribes over regulation of gambling since 1991, when authorities in San Diego County seized about 400 slot machines on three reservations. ``The tribes were successful in getting a federal court injunction to prevent more seizures,'' says Kathy Christian, a California deputy attorney general. The state appealed the ruling, and the case is now before the US Ninth Circuit Court.
With the case in legal limbo, thousands of slot machines have been in operation on California reservations. ``While the case is pending,'' Ms. Christian says, ``the federal authorities have taken no action to prevent their operation. What we have is a situation where more and more tribes feel emboldened to use the slot machines, because no enforcement action will be taken.''
Even when the case is decided, the issue of a state compact with Indians will remain unresolved. If the circuit court rules in favor of Indian gaming, the state then will have to negotiate a compact with each tribe to determine the method of regulation as well as the kinds of gambling allowed.
``In our view,'' Christian says, ``there aren't any tribes here that are capable of the kind of regulation necessary to deal with casino gambling. The tribes are small; the largest has some 200 members. And yet, under law, they may be entitled to offer all sorts of gambling that requires an intensive amount of regulation to prevent criminal corruption.''