It’s hard to believe that 2013 will mark 25 years since the passage of the Indian Gaming Regulatory Act (IGRA). There will likely be a number of stories recounting the evolution of the industry. The social and economic impacts will be touted with numerous statistics cited relative to revenues, employment, charitable works and contributions, community developments, etc., all of which are incredible success stories for the positive and progressive impacts and improvements in previously impoverished Native American communities.
For so many years now, the common everyday references to IGRA is a presumption that it is the Indian Gaming Act—the act that legalized Indian gaming. Of course legal scholars know that the U.S. Supreme Court is what actually “legalized” Indian gaming in the Cabazon v. California decision. What so often seems to be overlooked is the fact that the “R” in IGRA stands for “Regulatory.”
When asked to consider writing an article for the 25th anniversary of IGRA, it occurred to me that to date, I have not seen an essay recounting the evolution of Indian gaming regulation since the passage of IGRA. Having had the privilege of being actively involved in that evolution (and there has been a very dramatic evolution), I thought I would share my recollection of the journey that started for me in early 1993—20 years ago.
At that time, the National Indian Gaming Commission (NIGC) was a couple of years old and had only a skeleton staff. Field investigators (at least out West) worked out of their homes and cars and hotel rooms. There were no NIGC regulations, Parts 518, 542, 543, 547, 559, 571, 573 or 580–585. The hardworking staff that did exist was just learning the trade along with the rest of the newly emerging throng of tribal regulators. I was frequently on the phone with the D.C. office seeking consensus on how to interpret and implement various 25 CFR provisions, and I found my federal counterparts to always be reasonable, courteous and open-minded toward logical interpretations. At that time there were no regulatory procedural guidebooks, and it seemed like every effort to implement compliance was a process of trial and error, learning what worked and what didn’t. In my frustration once at a public conference, I criticized the NIGC by commenting on how good they were at telling us what to do, but they were woefully lacking in telling us how to do it.
In retrospect, after all these years, I now regret that critical comment. It was better that they did not tell us how to do it. It was best left up to each tribal government to determine what would work for them. However, it became quite clear early on that it was important and very helpful for tribal regulators to occasionally assemble, compare notes and share experiences, best practices, successes and failures, so that we could all advance as quickly and competently as possible. During those early years, Indian gaming was most vulnerable to allegations that tribes could not “self regulate.”
It was an honor to be invited to testify before the U.S. Senate and House committees on how tribal regulators were succeeding, and in some cases, were having a direct effect on proposed legislation relative to Indian gaming. Likewise, it was a privilege to sit on several NIGC advisory committees helping to shape regulations. We also took every opportunity to submit public comment on proposed regulations.
It was undoubtedly the highlight of my regulatory career to accept an appointment as an NIGC commissioner by the Secretary of the Interior, Dirk Kempthorne. It was an incredibly valuable experience to participate in the process of promulgating regulations from a federal perspective. While there were some bumps in the road to developing the NIGC regulations, we owe a great deal of appreciation to the hard work and good intentions of the NIGC staff and commissioners before, during and after my tenure. The task of keeping regulations up to date with the changing times and technologies is a huge challenge. I have always advocated that it is in the best interest of Indian gaming to have firm, fair and effective regulations at every level.
Perhaps even more challenging was the evolution of gaming regulation at the state level. This involved a very interesting set of dynamics unique to state jurisdictions. Prior to IGRA, there were essentially only two gaming jurisdictions: Nevada and New Jersey. So there was a relatively small pool of experienced gaming regulators. With the passage of IGRA, there was a sudden explosion of gaming jurisdictions. Virtually overnight there was an immediate need for gaming regulators for more than 100 tribal governmental regulatory agencies and dozens of state gaming agencies.
Many states found themselves having an unanticipated but important role in the regulation of legalized gambling within their borders, although on Indian lands. These roles manifested themselves in many ways, as defined in the IGRA-mandated compacting process. Not all compacts were created equal. Inexperience on both sides of the compact negotiating table resulted in some occasionally bizarre, albeit well-intended, compact regulatory provisions. While many of these provisions may have looked good on paper, when handed to state and tribal regulators, they often proved challenging, if not impossible, to sensibly implement or enforce. There have been many compact amendments over the last 25 years to accommodate more rational regulatory considerations.
The other immense challenge, as aforementioned, was the huge shortage of experienced gaming regulators to fill the needs of all of these emerging jurisdictions. At the state level, the typical response to fill that void was to simply reassign people from state law enforcement agencies to gaming regulatory agencies. Imagine that one day you are a policeman, and the next day you are a gaming regulator. Additionally, many lawyers working in various state agencies were appointed to lead and counsel the new state gaming regulatory agencies. Even today, some states retain gaming regulatory enforcement responsibilities in divisions or departments of the state police.
This created two major problems. First, the vast majority of these law enforcement officers did not have a clue as to how a casino was operated, how games were conducted, how internal controls functioned and how a host of other gaming related regulatory considerations were all interrelated. It is worthy to note here that such ignorance and naiveté was not confined only to state personnel. The same could be said of the hundreds of people suddenly thrust into positions as tribal regulators, including myself. In my experience, as well as that of many of my colleagues, we once again found ourselves all having to start from scratch and learn together.
The other, and perhaps more serious, challenge that materialized was trying to develop genuinely mutually respectful relationships between state and tribal regulators. The state law enforcement frame of mind had traditionally put those personnel in positions of having the “ultimate” enforcement authority within their state, and every other person or agency was therefore considered subordinate. An Indian casino was simply considered just another business subject to state authority and oversight.
The concept of equal government-to-government relations was totally alien to state authorities. This “superior-subordinate” mindset created many contentious situations in the first decade (and beyond, in some jurisdictions) of gaming regulations. It wasn’t entirely their fault; they simply had not been schooled or experienced in the concept (legal reality) of the sovereignty of tribal governments and the equality of their regulatory agencies.
Fortunately, after a long and steep learning curve, I am convinced that in most jurisdictions, the evolution of those relationships has proven that we all have matured and generally enjoy genuine mutually respectful relationships. In most cases, we are now partners in regulating Indian gaming with equally shared goals and interests. Tribal regulators should take great pride in the fact that they have played a vital role in protecting Indian gaming from major scandals and from the infiltration of organized crime. While there have been attempts at infiltration or internal thefts, in essentially every case they were quickly uncovered and remedied by the diligence of tribal regulators and the occasional assistance of the appropriate outside agencies.
It has been a genuine privilege to have been in the right places at the right times to enjoy a front row seat in the evolution and development of Indian gaming regulation at every level. We have journeyed far in the last 25 years, and I am certain that this evolution will continue substantially in the next 25 years in an ever-changing gaming landscape.