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S. HRG. 110–143

DISCUSSION DRAFT LEGISLATION REGARDING THE

REGULATION OF CLASS III GAMING

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JUNE 28, 2007

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

TOM COBURN, M.D., Oklahoma 

PETE V. DOMENICI, New Mexico 

GORDON H. SMITH, Oregon 

RICHARD BURR, North Carolina 

SARA G. GARLAND, Majority Staff Director 

DAVID A. MULLON JR. Minority Staff Director 

(III)

C O N T E N T S 

Page 

Hearing held on June 28, 2007 ............................................................................... 1

Statement of Senator Dorgan ................................................................................. 1 

Statement of Senator Inouye .................................................................................. 74

Statement of Senator Murkowski ........................................................................... 3

WITNESSES

Allen, W. Ron, Chairman, Washington Indian Gaming Association and Chairman, Jamestown S’Klallam Tribe ....................................................................... 54

Prepared statement with attachments ........................................................... 56

Hogen, Philip N., Chairman, National Indian Gaming Commission .................. 5

Prepared statement with attachments ........................................................... 7

Pearson, Myra, Chairwoman, Great Plains Indian Gaming Association; Chairwoman, Spirit Lake Sioux Tribe; accompanied by Kurt Luger, Executive 

Director, Great Plains Indian Gaming Association ........................................... 24

Prepared statement with attachments ........................................................... 27

Shelton, Dean, Chairman, California Gambling Control Commission; on behalf of Governor Arnold Schwarzenegger .......................................................... 22

Prepared statement .......................................................................................... 23

Welsh-Tahbo, Valerie, Council Member, Colorado River Indian Tribes Tribal 

Council .................................................................................................................. 65

Prepared statement .......................................................................................... 67

APPENDIX

Burris, Tracy, Gaming Commissioner of the Chickasaw Nation, prepared 

statement .............................................................................................................. 79

Crooks, Stanley R., Chairman of the Shakopee Mdewakanton Sioux Community, prepared statement ..................................................................................... 81

(1)

DISCUSSION DRAFT LEGISLATION

REGARDING THE REGULATION OF CLASS 

III GAMING 

THURSDAY, JUNE 28, 2007

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m. in room 

485, Senate Russell Office Building, Hon. Byron L. Dorgan, Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. BYRON L. DORGAN,

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. I will call the hearing to order. This is a hearing 

of the Indian Affairs Committee on a draft piece of legislation regarding the regulation of Class III gaming. 

I want to begin on time. We will have a vote somewhere around 

10:45 a.m. to 11 a.m., and we may have to break at that point, but 

I want to begin on time and see how long this will consume this 

morning. 

We are going to hold a hearing today to hear views on draft legislation to regulate Class III Indian gaming. Let me make clear 

that you have seen from the array of hearings that we have held 

in this Committee, the principal and great concerns that I have on 

Indian issues deal with Indian education, health care, housing, law 

enforcement, methamphetamine, teen suicide, and similar issues. 

That will remain our consuming ambition on this Committee, to 

address those issues as a primary responsibility. 

I am holding a hearing today on a draft piece of legislation dealing with the issue of regulation of Class III gaming. Let me make 

a few early points. Last year, a Federal court held that the Indian 

Gaming Regulatory Act did not provide the National Indian Gaming Commission with the authority to regulate day to day operations of Class III Indian gaming. Specifically, the court held that 

the commission could not enforce minimum internal control standards on tribes’ Class III gaming operations. These are the standards that were designed to regulate the day to day operations of 

a gaming facility, including how cash is handled, surveillance, customer credit, and many other aspects of a gaming operation’s daily 

activities. 

Indian gaming has been a great success for many tribes, literally 

bringing tribes a substantial additional stream of revenue with 

which to address many of their social problems and with which to 

2

provide needed investment in areas that are of interest and concern to tribes and tribal members. The industry has come a great 

distance from when the Regulatory Act was first passed by Congress, a great distance from the Cabazon decision by the Supreme 

Court. 

Last year, the gaming industry for Native Americans generated 

over $25 billion. Ninety percent of this revenue was generated from 

Class III gaming, the category of Indian gaming that includes slot 

machines, house banked card games, and so on. This is the category of gaming that the Federal court ruled that the National Indian Gaming Commission lacked authority to regulate on a day to 

day basis. 

Now, I believe that the regulation of Indian gaming, including 

adequate internal controls within a gaming facility, is critical to 

the preservation, integrity and success of Indian gaming. I think 

all stakeholders in this industry agree with that statement. I also 

believe that some entity separate from the gaming facility owner 

should have regulatory oversight over the facility. 

That doesn’t mean that we should over-regulate the industry, but 

there should be two layers, in my judgment, of regulation. The first 

layer should be the Tribal Gaming Commission and the second 

should be the Federal Government or State Government providing 

effective oversight and regulation. 

Now, I have offered a draft piece of legislation. We have not introduced it. I have made it a discussion draft for a very specific 

reason. I am holding a hearing on the discussion draft. We have 

invited select witnesses to testify and we would invite anyone else 

who wishes to submit testimony on that draft to submit it within 

2 weeks of this hearing, and we will consider that as well. 

The draft proposal is a proposal that would provide a different 

approach. As you know, a proposal during the last Congress was 

offered. It was much broader than the draft discussion proposal I 

have offered here. But the discussion and decision about where we 

will move to address this will depend on what we learn at these 

hearings and what we hear from the stakeholders. 

I do make the point that I understand the Colorado River Indian 

Tribe’s intention in bringing their lawsuit to clarify the authority 

of the National Indian Gaming Commission. The tribe had every 

right to do that. The result of the case I think has created some 

gaps in the regulation of Indian gaming, and those gaps are of concern to me. 

The purpose of this hearing and draft legislation and the discussion of this is not to imply or suggest in any way that there is a 

systemic problem with respect to Indian gaming. I don’t believe 

that exists. I certainly don’t ever want it to exist, and the discussions about how we make certain there is effective regulation in 

every area here is to make certain that we don’t have a problem 

in the future. 

As I indicated when I started, the priorities of this Committee 

will remain priorities dealing with healthcare, housing, education, 

teen suicide, methamphetamine, law enforcement and the range of 

issues that we have spent a great deal of time working on. But I 

did want to continue a discussion about the issue of the regulatory 

3

authority with respect to the Colorado decision and its impact on 

Indian gaming, and that is the purpose of this hearing. 

We don’t know what we will do following this hearing because it 

will take some time to digest and try to understand and think 

through the comments that we will hear today. 

I am pleased that the Acting Vice Chair, Senator Murkowski, is 

with us, and I would call on her for any opening comments. 

STATEMENT OF HON. LISA MURKOWSKI,

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. I appreciate 

your comments in laying out the priorities here as the Chairman 

of this Committee. 

Since the days of President Nixon, it has been this Nation’s policy to encourage Indian tribes to take control of their own destiny. 

President Nixon ushered in the Federal policy of self-determination 

over 30 years ago, and that legacy of self-determination is not limited to the compacting and contracting of government programs. It 

has also led many tribes to take control of their economic destinies, 

to find ways to stimulate economic development within Indian 

Country. 

Some of these economic development efforts have succeeded. Others have failed. And we all know that this isn’t surprising since the 

odds against success of any new business venture are pretty high. 

But I am told that no single industry has succeeded in Indian 

Country as well as gaming, conducted under the regulatory framework of the Indian Gaming Regulatory Act. More than 24.5 million 

Americans have visited tribal gaming establishments and we know 

that that number is growing. 

The National Indian Gaming Association reports that 225 tribes 

in 28 States are involved in Indian gaming activities. These enterprises have created 670,000 jobs, generated $8.6 billion in Federal 

taxes, $2.4 billion in State payments, and more than $100 million 

in payments to local governments. The data strongly suggests that 

Indian gaming is the dominant driver of economic opportunity in 

many corners of Indian Country. 

The issue before the Committee today, in my view, is whether 

the current system for protecting the integrity of Indian gaming is 

adequate. Is it adequate to ensure the integrity of the tribal gaming enterprise? Is it adequate to ensure that tribal casinos do not 

fall vulnerable to organized crime and money laundering? And is 

it adequate to ensure that Indian gaming operations maintain the 

level of public confidence that brings more than 24.5 million Americans to their doors? 

The current regulatory system has been profoundly influenced by 

the Colorado River Indian Tribe’s decision. That decision does not 

permit the National Indian Gaming Commission to require that 

Class III gaming establishments adhere to the commission’s standards of minimum internal controls. Now, I understand that some 

who will testify today think that that is a good thing. They say that 

the existing two-tiered system of tribal regulation and State enforcement of tribal State compacts adequately protect the interests 

of the tribe and the public. 

4

I have heard concerns that the National Indian Gaming Commission, if given a mandate to regulate Class III gaming, will see the 

opportunity to impose broader, more proscriptive controls on the 

tribes over and above those in the minimum internal control standards, and pass those costs along to the regulated entity. 

But I have also heard concerns that uniformity in the regulation 

of gaming is important to maintain that public confidence and to 

allow the tribes to continue to grow their enterprises. We have 

been asked to consider the possibility that in some instances, reliance on State tribal compacts for regulatory oversight may not be 

adequate. Ideally, the tribes, the States and the NIGC would reach 

consensus on a regulatory scheme, a regulatory scheme that ensures compliance with applicable laws and that maintains public 

confidence in tribes and their enterprises. 

I don’t know whether this is possible, but I do commend you, Mr. 

Chairman, for bringing a very diverse group of voices to the table 

to pursue that question. I am approaching the hearing this morning with an open mind. I look forward to the testimony and to the 

opportunity to question the witnesses. 

The CHAIRMAN. Senator Murkowski, thank you very much. I appreciate your service as Acting Vice Chair. As we have said previously, all of us continue to miss and will miss our late colleague, 

Senator Craig Thomas, the former Vice Chair, but I am very 

pleased that we have an Acting Vice Chair that has a background 

on Native American issues and she has a very special interest with 

respect to Alaska Natives. So I think this will be a real contribution to our Committee as well. 

Because we have a vote that will occur about 11 o’clock, and if 

we break then, it will be a rather lengthy break because this is a 

consequential vote that is going to go on for some while, what I am 

going to do is ask the witnesses to adhere to the 5-minute limit. 

What we do, as you know, for our Committee witnesses as a routine matter at every hearing is say that your entire statement will 

be made a part of the record, and we ask that you summarize. 

I am going to ask the first two witnesses, the Honorable Philip 

Hogen, Chairman of the National Indian Gaming Commission, and 

Dean Shelton, Chairman of the California Gambling Control Commission, who is testifying on behalf of Governor Arnold 

Schwarzenegger, I am going to ask you to testify first. 

Then before we ask questions, with the permission of Senator 

Murkowski, I am going to ask the three additional witnesses, and 

one of our four witnesses has canceled because of an airplane problem, to come forward and provide their testimony, following which 

I would like to have all five at the table so that we may ask questions of all of the witnesses. Perhaps we will complete the hearing 

by 11 o’clock. My hope is that that will be the case. 

We have trap doors under the witness chairs, and I have a button. 

[Laughter.] 

The CHAIRMAN. I have a button that I am able to push after 5 

minutes. Mr. Hogen if you will keep that in mind. 

[Laughter.] 

The CHAIRMAN. Let me be serious and thank you for your chairmanship of the National Indian Gaming Commission. We appreVerDate 0ct 09 2002 12:33 Sep 25, 2007 Jkt 037531 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\DOCS\37531.TXT JACKF PsN: JACK
5

ciate that you have testified here a good number of times. We appreciate your coming today. You may proceed. 

STATEMENT OF PHILIP N. HOGEN, CHAIRMAN, NATIONAL 

INDIAN GAMING COMMISSION 

Mr. HOGEN. Good morning and thank you, Chairman Dorgan and 

Senator Murkowski. I bring you greetings on behalf of the National 

Indian Gaming Commission. Commissioner Choney is out in Oklahoma today. Commissioner DesRosiers is meeting with our Tribal 

Advisory Committee working on minimum internal control standards out at a meeting in Dallas. So they can’t be here today. 

For the most part, I think regulators, like children, ought to be 

seen and not heard. But nevertheless, I am here again and I may 

be sounding like a broken record because I have been here a number of times talking about a similar concern, but it may be a little 

more shrill today and a little more urgent. 

I think much of what I want to say will be echoed by the tribes. 

That is, while IGRA, the Indian Gaming Regulatory Act, was an 

intrusion into tribal sovereignty, that tribal sovereignty for the 

most part is still intact, and tribes ought to fight to protect that 

and ward off needless intrusions into sovereignty. 

IGRA intended that the tribes be the primary regulators of Indian gaming, and they are. They are spending significant dollars 

providing for this regulation, not just the regulation they do, but 

reimbursing States for the role they play under compacts and being 

the sole funder of the National Indian Gaming Commission. 

Most tribes are desperate for dollars to fund their programs and 

meet the needs of their tribal members. And so tribal gaming regulation that they pay for needs to be efficient, and we will strive to 

help them do that. I think overall the quality of tribal gaming regulation is very good. I think where I may differ from some of my 

tribal counterparts is whether and to what extent the overall integrity of regulation or tribal gaming is enhanced by having an outside, perhaps more objective party, participate in that regulation. 

When there is unity between the ownership and the regulation 

of a gambling operation, I think there is some cause for concern. 

When the Indian Gaming Regulatory Act was written back in 1988, 

Bingo was the primary vehicle. NIGC was given a role with respect 

to the regulation of it. But as it turned out, what developed in 

terms of the Indian gaming industry is most of it is now casino 

gaming, Class III gaming. There is a role pursuant to the compact 

process for State participation in that regulation. 

However, that State participation is very uneven. That is, there 

are places where States intensely participate, spend a lot of money, 

the tribes’ money, participating in the regulation pursuant to the 

compacts, and other places where the States really didn’t show up. 

There are a number of reasons for that. I think primarily the reason is when it got started, the States really had no experience in 

the regulation of casino gaming. There were places they did, in Nevada and New Jersey, but back in 1988, most States didn’t have 

casino gaming. 

Now, that has changed over the years, but the State regulatory 

role has not caught up and in many cases those tribal-State comVerDate 0ct 09 2002 12:33 Sep 25, 2007 Jkt 037531 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\DOCS\37531.TXT JACKF PsN: JACK
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pacts are carved in stone. Some of them are written in perpetuity 

and the State can’t change their role. 

So it was in that environment back in the 1990s when there was 

this tremendous growth of Indian gaming, that the National Indian 

Gaming Commission saw fit to draft minimum internal control 

standards, which we have done. They gave us the yardstick with 

which to measure the performance in the regulation of tribal gaming in Class II and Class III, and a rulebook the tribes could play 

by. Under that structure, Indian gaming grew to over a $25 billion 

a year industry, as the numbers were reported last year. 

So I think there is still a need for a strong uniform set of Federal 

standards to govern or help govern this major part of tribal gaming 

regulation. The Colorado River Indian Tribes, the CRIT decision, 

took that tool away from the National Indian Gaming Commission, 

and I think we need it back. I don’t think the system was broken. 

I don’t disagree that the court made a wise decision, but the thing 

is, what was kind of on the drawing board I think changed. 

Now, we have a huge Class III casino gaming industry out there, 

and in many cases the States are not equipped or are not inclined 

to participate, and it is useful to have somebody else, to wit, the 

National Indian Gaming Commission, there to give validity to that 

good job that the tribal gaming commissions do. 

When we find ourselves in different models, we tailor our involvement. That is, in Arizona and Washington State, where there 

is great intensive State participation in the regulation, we are less 

involved in those kinds of things. 

Now, it is said that there are three levels of regulation and there 

are. This chart that we have over here, and maybe Joe you can put 

that up, shows the dollars that tribes spend on this. You can see 

that of course the vast majority of the $400 million the tribes spend 

to regulate is for their own primary tribal regulation. And then 

they spend about $70 million reimbursing States for what they do. 

We are there on the top, $12 million in the year that that was reported. So we are hardly big enough to be dangerous, but we do 

play a significant role. We just validate that good job, and where 

there are soft spots, where there are weaknesses, we step in and 

play that role. 

So if a tribe is doing a great job, and the State is helping, that 

is great. But if down the street in the next State, some scandal occurs, it is going to affect all of the Indian gaming and that is where 

we give them some insurance. Now, section two of the draft legislation would in effect restore what we were doing from 1999 to 2006, 

and we are very supportive of section two. 

Section three would create this Committee to, in effect, permit 

States and tribes to opt out if they have an arrangement that 

would satisfactorily address that, but I think there are some concerns about the way it is written. We already tailor our role with 

respect to the State involvement. We have a lot of other Class III 

duties like approving ordinances, monitoring use of gaming revenue. We don’t know how this section would affect that. We don’t 

really know what that committee would write. Would they write 

their own minimum internal control standards or what? 

So we think we need that authority back. The industry will be 

stronger if we get it. But in terms of having that committee there, 

7

we would like an opportunity to discuss that. Tribal sovereignty is 

the strongest today as it has been in 100 years, primarily because 

of Indian gaming. We have been part of the reason that occurred 

because of the confidence the public has in the gaming, and we 

want to keep it that way if we can. 

Thank you. 

[The prepared statement of Mr. Hogen follows:]

PREPARED STATEMENT OF PHILIP N. HOGEN, CHAIRMAN, NATIONAL INDIAN GAMING

COMMISSION

Good morning Chairman Dorgan and Members of the Committee. 

My name is Philip Hogen, and I am a member of the Oglala Sioux Tribe from 

South Dakota. I have had the privilege of chairing the National Indian Gaming 

Commission (NIGC) since December of 2002. 

Thank you for inviting me to discuss the draft legislation regarding the regulation 

of Class III gaming. I would like to offer some preliminary thoughts about it, and 

as you will see, those thoughts are informed by the role NIGC plays in the regulation of Class III gaming and the impact of the Colorado River Indian Tribes decision 

on NIGC’s regulation of the Indian gaming industry. 

The NIGC strongly supports Section 2 of the bill, which clarifies NIGC’s regulatory authority over Class III gaming. In addition, NIGC has some concerns about 

Section 3 of the bill, which sets up a new mechanism for the regulation of Class 

III gaming. I must emphasize that those concerns are preliminary as the Commission is still reviewing and analyzing the draft. We stand ready to work with the 

Committee and the Committee staff to further review this concept and to best 

produce an effective structure to insure the continued integrity of the Indian gaming 

industry and its regulation. 

The Draft Legislation 

The draft legislation contains three short sections. The first simply names the act. 

The second section is what we have come, internally, to call a ‘‘CRIT fix.’’ This refers 

to a recent decision by the United States Court of Appeals for the District of Columbia Circuit in Colorado River Indian Tribes v. National Indian Gaming Commission,

466 F.3d 134 (D.C. Dir. 2006). The second section would clarify that NIGC generally 

has the same oversight authority over Class III gaming that it has over Class II 

gaming and specifically that it has authority to issue and enforce MICS for Class 

III gaming operations. 

The third and final section of the proposed legislation provides an alternative to 

NIGC regulation over some parts of Class III gaming. A ‘‘Regulatory Committee’’ appointed by the Secretary of the Interior would draft ‘‘minimum standards’’ for the 

regulation of Class III gaming. If NIGC then certifies that the regulatory standards 

in a tribal-state gaming compact meet or exceed those ‘‘minimum standards,’’ this 

‘‘shall preempt the regulation of Class III gaming by the Commission’’ at the operation that is the subject of the compact. 

As to Section 3, the Commission has not yet fully analyzed its provisions, but I 

have a few preliminary observations. We will send you a further and more complete 

analysis shortly. 

I am aware of the appropriate concern that tribes and states may have regarding 

how far NIGC might extend its oversight into Class III gaming activities if the 

changes proposed in Sections 1 and 2 of the draft legislation are enacted. I believe 

that the ‘‘Class III Regulatory Committee’’ created by Section 3 of the draft legislation is there, in part, to address this concern. The Committee would identify criteria 

that tribal-state compacts could meet and thus preclude NIGC’s further participation in the oversight of that tribe’s Class III gaming. 

First, I think that history and past practice demonstrates that NIGC has always 

been careful to tailor its oversight of compacted gaming to complement, not duplicate, the regulation that compacts provide. As noted above, there is much diversity 

among compacts, and no doubt as future compacts are written, they too will vary 

from those now in effect. 

NIGC is a relatively small organization, and the depth and breadth of Indian 

gaming already tax its resources. Thus, where adequate oversight arrangements are 

addressed and implemented by compact, the Commission is careful not to replicate 

them. This practice saves budget dollars for the Commission and of course saves dollars for the tribes whose fees ultimately fund the Commission’s efforts. 

8

Second, history has revealed that in a number of instances, what is provided for 

in the compacts (in many cases in permissive rather than mandatory form) by way 

of a State oversight role is implemented only minimally, if at all. In those instances, 

NIGC has found it appropriate to be more engaged than it otherwise would. Were 

Section 3 of the proposed legislation enacted, it is possible that standards written 

by the Regulatory Committee could be met in approved compact language, but if 

those standards are not implemented, a serious regulatory oversight vacuum would 

develop, thereby impairing the integrity of the compacted operation. 

Third and finally, IGRA tasks NIGC with many regulatory tasks for Class III 

gaming that are wholly independent from the NIGC MICS. These include:

• Approve and enforce provisions of Class III gaming ordinances.

• Approve and ensure compliance with Class III management contracts.

• Ensure that Class III gaming is conducted in conformance with a compact.

• Ensure that Class III gaming is occurring on Indian lands.

• Ensure that net gaming revenues are used for the purposes outlined in IGRA.

• Ensure that tribal revenue allocation plans are followed.

• Ensure that tribes have the sole proprietary interest in their gaming activity.

• Ensure that tribes provide annual audits to the NIGC.

• Ensure that tribes issue facility licenses for their gaming facilities.

• Ensure that gaming facilities are constructed and operated in a manner that 

adequately protects the environment, public health and safety.

• Ensure that background investigations are conducted on primary management 

officials and key employees of gaming operations.

Presumably there is not an intention in the draft legislation to displace NIGC in 

those areas, but if the concept of a Regulatory Committee remains in the legislation, 

clarity should be brought to this area. 

Draft Legislation § 2, CRIT fix 

As to Section 2, the need for a CRIT solution is paramount for the NIGC. I have 

testified to the facts and figures many times before your Committee. Recently, I testified before the California General Assembly Government Organization Committee 

on the need for MICS in an effective regulatory regime. 

The battle in California over the need for MICS in their new compacts highlights 

the importance of the Federal role in a balanced approach to the regulation of Indian gaming. 

IGRA envisioned a three legged stool, where balance depended upon all three legs. 

With the NIGC leg now off the stool, the imbalance has the very real prospect of 

upsetting the gains gaming has made for Indian people. 

In my view, what is at stake is the integrity of Indian gaming. This is not meant 

to criticize either the tribes or the states. Rather, it is a statement of the obvious. 

Gaming depends on the public perception and belief in the integrity of operations 

they choose to patronize. A balanced regulatory approach includes: (l) tribes as the 

primary regulator with the day-to-day responsibilities and heavy lifting; (2) states 

having whatever role is provided in the tribal-state compact, usually oversight insuring state policy and applicable laws are adhered to as well as assuring that any 

revenue sharing payments agreed to are properly calculated and made; and (3) 

NIGC having the role of making sure that the overall regulation is consistent and 

fair. Consistent, fair and stable regulation and oversight will continue to foster the 

growth of Indian gaming. The model envisioned by IGRA worked for 18 years producing $25 billion in gaming revenue in 2006. The NIGC has the advantage of seeing Indian gaming all over 

the country enabling it to spot trends and react to negatives in ways that tribes and 

states are not usually equipped to do. Further, the NIGC provides a clearinghouse 

for vital information sharing between the three parties and other stakeholders, such 

as law enforcement and public safety agencies. 

It is the combination of the three that provides the balanced approach that has 

allowed Indian gaming to succeed and thrive. The proposed legislation in Section 

2 addresses this concern by clearly giving the NIGC authority to promulgate and 

enforce MICS for Class III gaming. 

As background about the CRIT case, in early 2001, NIGC attempted to audit a 

Class II and III gaming operation owned by the Colorado River Indian Tribes 

(CRIT). NIGC was looking to check compliance with minimum internal control 

standards or ‘‘MICS,’’ 25. C.F.R. Part 542. 

The MICS provide, in considerable detail, minimum standards that tribes must 

follow when conducting Class II and III gaming. They are intended to embody acVerDate 0ct 09 2002 12:33 Sep 25, 2007 Jkt 037531 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 S:\DOCS\37531.TXT JACKF PsN: JACK
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cepted practices of the gaming industry. To choose a few of many possible examples, 

the MICS prescribe methods for removing money from gaming machines and gaming tables and counting it so as best to prevent theft; they prescribe methods for 

the storage and use of playing cards so as best to prevent fraud and cheating; and 

they prescribe minimum resolutions and floor area coverage for casino surveillance 

cameras. Attached as Exhibit 1 is a copy of the MICS table of contents, which provides a more detailed overview of their comprehensive scope. More than this, 

though, the MICS attempt to embody overall controls that reasonably assure gaming transactions are appropriately authorized, recognized and recorded. They thereby assure the integrity of games and safeguard tribal assets, and they do so without 

displacing internal control requirements that tribes and states have negotiated into 

their compacts. In the event of a direct conflict between the terms of a compact and 

the MICS, the MICS specifically state that it is the compact terms that prevail and 

bind the operation. 

In any event, CRIT refused to give NIGC access to its Class III gaming records. 

The NIGC Chairman responded with a notice of violation and civil fine. CRIT appealed to the full Commission, which upheld the Chairman’s actions. On appeal, the 

District Court for the District of Columbia granted summary judgment in favor of 

CRIT, finding that IGRA does not confer upon NIGC the authority to issue or enforce MICS for Class III gaming. The District Court found that while IGRA grants 

NIGC authority over certain aspects of Class III gaming, MICS are not among them. 

On October 20, 2006, the U.S. Court of Appeals for the District of Columbia affirmed the District Court. Though some read the CRIT decision to say that the 

NIGC has no authority over Class III gaming, the actual holding was narrow: Congress did not give the NIGC the authority to promulgate minimum internal control 

standards for Class III gaming. 

Background 

I would like to attempt to explain, in somewhat more detail, my position through 

the history of the development and implementation of the regulation of this segment 

of the Indian gaming industry; the tools NIGC has developed and used over the 

years in which Class III gaming has grown to its present size; how the aforementioned court ruling has had a significant impact on this regulation; and how I think 

legislation might help insure that the integrity in the operation and regulation of 

Class III gaming, which has permitted it to become so successful, might be best 

maintained. As NIGC recently reported, in 2006, tribal gaming generated over $25 

billion in gross gaming revenues. While precise numbers are not required in this 

connection, NIGC and those who closely watch the Indian gaming industry estimate 

that nearly 90 percent of this revenue is generated by compacted, Class III gaming—far and away the dominant means by which tribes generate gaming revenues. 

History of IGRA 

It is the NIGC’s belief that in IGRA, Congress intended that the Federal entity 

established to provide oversight of Indian gaming would have an oversight role with 

respect to the dominant form of gaming in the industry, whether bingo in 1988 or 

Class III gaming now. If the NIGC’s role with respect to its minimum internal control standards and Class III gaming is not clarified by the courts or legislation, most 

tribes will continue to operate first-rate, well-regulated facilities, and their tribal 

gaming regulatory entities will perform effectively. Others likely will not. 

When the NIGC came on the scene in October 1988, it believed—and still believes—that its mission was to provide effective oversight of tribal gaming. IGRA 

states that it established the NIGC as an independent Federal regulatory authority 

over Indian gaming in order to address Congressional concerns about gaming and 

to advance IGRA’s overriding purposes. These are to ensure that tribal gaming promotes tribal economic development, self-sufficiency and strong tribal governments; 

to shield gaming from organized crime and other corrupting influences; to ensure 

that the tribes are the primary beneficiaries of their gaming operations; and to ensure that gaming is conducted fairly and honestly by both the tribal gaming operations and its customers. IGRA therefore authorizes the Chairman to penalize, by 

fine or closure, violations of the Act, the NIGC’s own regulations, and approved tribal gaming ordinances. 

Historically, casino gaming has been a target for illicit influences. Nevada’s experience provides a classic case study of the evolution of strong, effective regulation. 

It was not until Nevada established a strong regulatory structure—independent 

from the ownership and operation of the casinos themselves—and developed techniques such as full-time surveillance of the gaming operations that most 

potentialities for criminal involvement were eliminated from the gaming industry 

10

there. All jurisdictions that have subsequently legalized gaming have looked to Nevada’s experience to help guide their own regulation and oversight. 

Regulation of Tribal Gaming 

IGRA mandates that tribes may conduct Class III gaming only in states where 

such activity is permissible under state law and where the tribes enter into compacts with states relating to this activity, which compacts require approval of the 

Secretary of the Interior. Compacts might include specific regulatory structures and 

give regulatory responsibility to the tribe, to the state, or to both in some combination of responsibilities. Since the passage of IGRA, 232 tribes have executed 249 

Class III compacts with 22 states, and the allocation of regulatory responsibility, if 

addressed at all, is as diverse as the states and tribes that have negotiated them. 

In 1987, the Supreme Court decided the Cabazon case and clarified that tribes 

had the right to regulate gambling on their reservations, provided that the states 

wherein they were located did not criminally prohibit that activity. At that time, 

large-scale casino gaming operations existed only in Nevada and New Jersey. The 

Indian Gaming Regulatory Act was passed in 1988 and established the framework 

for the regulation of tribal gaming. That same year, Florida became the first state 

in the southeastern United States, and the 25th overall, to create a state lottery. 

In 1989, South Dakota legalized gambling in the historic gold mining town of Deadwood, and Iowa and Illinois legalized riverboat gambling. The following year, Colorado legalized gambling in some of its old mining towns, and in 1991, Missouri legalized riverboat gambling. By that time, 32 states operated lotteries, while tribes 

ran 58 gaming operations. Thus, not just in Indian country but throughout the 

United States there was at that time a manifest social and political acceptance of 

gambling as a source of governmental revenue. What is also evident is that when 

IGRA was adopted in 1988, very few states had experience in the regulation of casino gaming. 

When IGRA was enacted, those tribes then engaged in gaming were primarily offering bingo. While there may have been an expectation in Congress that there 

would be a dramatic change in the games tribes would offer, I think it is reasonable 

to assume many expected tribal gaming would continue to be primarily Class II, or 

non-compacted, gaming. After 1988, when tribes began negotiating compacts for casinos with slot machines and banked card games, most of the states they negotiated 

with had little or no experience in regulating full-time casino operations. Michigan, 

for example, first compacted with Tribes in 1993 but didn’t create its own Gaming 

Control Board or authorize commercial gaming until the end of 1996. Minnesota 

began compacting with tribes in 1990 and to this day has no non-Indian casinos 

within its borders. 

A review of compacts approved since 1989 shows that the more recent compacts 

often address the mechanics of the oversight and regulation of the gaming quite specifically but those earlier compacts, some of which were entered into in perpetuity, 

do not. Further, the dispute resolution provisions to resolve issues identified by a 

State’s oversight authority in the compacts often employ cumbersome and time-consuming procedures like mediation or arbitration that do not necessarily foster effective regulation. For example, in the 22 states with Class III gaming, 12 provide for 

some form of mediation or arbitration with varying degrees of specificity and enforceability. Attached as Exhibit 2 is a chart summarizing the internal control and 

dispute resolution provisions of the compacts in these 22 states. 

Typically, the regulatory role a particular state undertakes in its compact was 

taken from and modeled on that state’s experience with the regulation of its own 

legalized gaming at the time the compact was negotiated. Where such states develop 

effective regulatory programs, the need for NIGC oversight is greatly reduced. For 

example, in states where the tribal-state compacts call for regular state oversight, 

institute technical standards and testing protocols for gaming machines and establish internal control requirements, the NIGC’s oversight role will be limited. This 

is the case, for example, in Arizona. Some states such as Michigan and North Dakota, however, have assumed a minimal regulatory role. In some cases, compacts 

have become little more than a revenue sharing agreement between the state and 

the tribe. Consequently, under circumstances where the states do not have a significant regulatory presence, the NIGC must be in place to undertake a broader range 

of oversight and enforcement activities. 

The History of MICS 

The diversity of tribal gaming operations is great. Both rural weekly bingo games 

and the largest casinos in the world are operated by Indian tribes under IGRA. As 

the industry grew from its modest beginnings, NIGC needed the appropriate tools 

to implement its oversight responsibilities. What the Commission lacked was a rule 

11

book for the conduct of professional gaming operations and a yardstick by which the 

operation and regulation of tribal gaming could be measured. During the early 

stages of the dramatic growth of the Indian gaming industry, some in Congress expressed concerns that uniform minimum internal control standards, which were 

common in other established gaming jurisdictions, were lacking in tribal gaming. 

The industry itself was sensitive and responsive to those concerns and a joint National Indian Gaming Association—National Congress of American Indians task 

force recommended a model set of internal control standards. 

Using this model as a starting point, in 1996, the NIGC assembled a tribal advisory committee to assist us in drafting minimum internal control standards applicable to Class II and Class III gaming. These were first proposed on August 11, 1998, 

and eventually became effective on February 4, 1999. With the adoption of the 

NIGC’s MICS, all tribes were required to meet or exceed the standards therein, and 

the vast majority of the tribes acted to do so. NIGC’s approach during that time was 

to assist and educate tribes in this regard, not to cite violations and penalize. When 

shortcomings were encountered by NIGC at tribal operations, NIGC’s assistance 

was offered and grace periods were established to permit compliance. 

I served as an Associate Commissioner on the NIGC from 1995 through mid-1999, 

and I participated in the decision to adopt and implement the MICS. I have now 

served as the Chairman since December of 2002. It is my confirmed view that the 

Minimum Internal Control Standards—given the tribes’ strong effort to meet and 

exceed them and the inspections and audits that NIGC conducts to ensure compliance—have been the single most effective tool that our Federal oversight body has 

had to utilize to ensure professionalism and integrity in tribal gaming. The NIGC 

MICS were embraced by state regulators, several of whom adopted or incorporated 

NIGC MICS, or compliance therewith, in their compacts. 

For 6 years, NIGC oversight of Class II and Class III gaming with the use of minimum internal control standards went quite smoothly. When necessary, NIGC revised its MICS, and it employed the assistance of tribal advisory committees in 

doing so. At the time of adoption, of course, many tribal gaming operations and tribal regulatory authorities were already far ahead of the minimums set forth in the 

MICS. Other tribes, however, had no such standards, and for the first time they had 

the necessary rule book by which to operate. 

NIGC Enforcement of MICS 

NIGC employed three methods of monitoring tribal compliance with its MICS. 

First, the MICS required the tribe to engage an independent Certified Pubic Accountant to perform what are called ‘‘agreed upon procedures’’ to evaluate the gaming operation’s compliance with the regulations. The NIGC recommended testing criteria to be used by the external accountant. The results were provided to the tribe 

and NIGC within 120 days of the gaming operation’s fiscal year end. Next, on a regular basis, NIGC investigators and auditors made site visits to tribal gaming facilities and spot checked tribal compliance. Finally, NIGC auditors conducted a comprehensive MICS audit of a number of tribal facilities each year. Typically those audits identified instances wherein tribes are not in compliance with specific minimum 

internal control standards. Almost always, the non-compliance was then successfully 

resolved by the tribe. As a result, NIGC was pleased that tribes have a stronger 

regulatory structure, and tribes were pleased that they have plugged gaps that 

might have permitted a drain on tribal assets and revenues. Although there have 

been instances where the non-compliance with the MICS was not resolved, in those 

instances the tribes were persuaded to voluntarily close their facilities until the 

shortcomings were rectified. NIGC has never issued a closure order or taken an enforcement action resulting in a fine for tribal non-compliance with NIGC MICS. It 

is worth noting that the NIGC recognizes that its success in ensuring tribal gaming 

operations function in a manner sufficient to safeguard the interests of the stakeholders depends upon the tribes’ voluntary compliance. Consequently, the ultimate 

objective of our audits was to persuade. 

Although drawing conclusions based solely on the number of MICS compliance exceptions detected in an audit can be misleading, a look at some of our numbers in 

this regard can be instructive. Audit reports have reflected as few as ten findings 

and others over a hundred. However, of the 51 comprehensive audits conducted, 

only a few have not revealed material internal control weakness. Attached as Exhibit 3 is a table summarizing the number and kinds of MICS violations found from 

January 2001 through February 2006. Attached as well are representative MICS 

compliance audit reports. 

12

MICS Compliance 

The oversight responsibilities of the NIGC give it a unique view from which to 

report the variety of challenges confronting Indian gaming in terms of regulatory 

violations and enforcement actions taken. As said above, the primary responsibility 

for meeting these challenges is and ought to be on the shoulders of the tribes. The 

NIGC encourages strong tribal regulation and applauds the resources that Indian 

gaming currently applies to regulation and other oversight activities. As Indian 

gaming continues to grow and the sophistication of operations expands and as the 

levels of the revenues increase accordingly, regulation must stay ahead of this 

growth if the integrity of the industry is to be protected. I have attached as Exhibits 

4 and 5 a timeline and growth chart depicting the growth of tribal gaming operations and revenues, the growth of the National Indian Gaming Commission’s staff, 

and some of the benchmark developments that have occurred during this history. 

It is in this context that the following examples of the numbers and types of MICS 

violations the NIGC has uncovered are offered. 

The NIGC has compiled the following review of Minimum Internal Control Standards (‘‘MICS’’) Compliance Audits—January 2000 to May 2007. The number of tribal 

gaming operations is taken from those reporting financial information to NIGC.

Gaming Operations Number of NIGC Audits Total MICS Violations Average MICS Violations 

367 51 3,335 65

Findings common to most compliance audits:

• Lack of statistical game analysis;

• Ineffective key control procedures;

• Failure to secure gaming machine jackpot/fill system;

• Failure to effectively investigate cash variances/missing supporting documentation for the cage accountability/failure to reconcile cage accountability to general 

ledger on a monthly basis;

• Inadequate segregation of duties and authorization of player tracking system 

account adjustments;

• Ineffective internal audit department audit programs, testing procedures, report 

writing and/or follow-up;

• Deficient surveillance coverage and recordings;

• Noncompliance with Internal Revenue Service regulation 31 CFR Part 103;

• Failure to exercise technical oversight or control over the computerized gaming 

machine systems, including the maintenance requirements for personnel access;

• Failure to properly document receipt and withdrawal transactions involving 

pari-mutuel patrons’ funds and a lack of a comprehensive audit procedures of 

all pari-mutuel transactions;

• Failure to adequately secure and account for sensitive inventory items, including playing cards, dice, bingo paper and keno/bingo balls; and

• Failure to adopt appropriate overall information technology controls specific to 

hardware and software access to ensure gambling games and related functions 

are adequately protected.

Although exact data is not available regarding losses to tribal gaming operations 

resulting from the above control deficiencies, based on the past experience of commercial gaming, we can conclude the amount to be in the millions each year. These 

violations show that certain tribes are not adequately protecting their gaming assets. 

In California, for example, between 2002 and 2006, the NIGC conducted 8 audits 

that produced findings indicating that one gaming operation possessed an exemplary system of internal controls, four were reasonably effective but had multiple 

material control weaknesses and three had a system of internal controls considered 

to be dysfunctional. 

Breakdown in Tribal Regulation 

Beyond the MICS, the NIGC oversight has uncovered serious breakdowns in regulation at Class II and Class III tribal gaming operations throughout the country. 

This is true even where there is apparent adequate tribal regulation and control in 

place.

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Examples of instances where tribal gaming operational and regulatory efforts 

have been found deficient include the following:

• During the course of investigations and MICS compliance audits, NIGC investigators and auditors discovered that an extraordinary amount of money was 

flowing through two Class III off track betting (OTB) operations on two reservations. The amount of money was so high in comparison to the amount that 

could reasonably flow through such OTB operations that our investigators immediately suspected money laundering or similar activities. These two operations were the first referrals to the FBI’s working group in which we participate. The FBI investigations found that these operations were part of a wide 

spread network of such operations with organized crime links and several Federal criminal law violations. Unfortunately, the tribes’ gaming management allowed them to gain access and operate as part of their Class III tribal gaming 

operations, and the tribes’ gaming regulators completely failed to take any action against these illegal OTB operations.

• There are also examples where tribes continued to operate, without modification 

or correction, a gaming facility that permitted gaming activities to be conducted 

by companies owned by individuals with known criminal associations; distributed large amounts of gaming revenues without requisite approved revenue allocation plans or the financial controls necessary to account for them; knowingly 

operated gaming machines that were plainly illegal; and appointed gaming commissioners and regulatory employees and licensed and employed gaming employees whose criminal histories indicated that they were unsuitable and serious risks to the tribes’ gaming enterprise. An accurate assessment of Indian 

gaming regulation must also reflect the unfortunate examples of tribes that are 

so politically divided that they are unable to adequately regulate their gaming 

activities, as well as instances where tribal officials have personally benefited 

from gaming revenues at the expense of the tribe itself. In addition, there have 

been many instances where apparent conflicts of interest have undermined the 

integrity and effectiveness of tribal gaming regulation. In all of these troubling 

situations, it was necessary for the NIGC to step in to address the problems. 

The above examples illustrate that Indian gaming has many regulatory challenges that without comprehensive, well informed oversight and enforcement 

the integrity of the industry would be in jeopardy.

The NIGC has compiled a list of potential risks to Indian gaming if strong oversight is not maintained:

• Risk of not detecting employee embezzlement;

• Risk of not detecting manipulations and/or theft from gaming machines;

• Risk of not detecting criminal activity or the presence of organized crime influence;

• Risk of not detecting misuse of gaming revenues by tribal officials;

• Inability to effectively determine whether third parties are managing the gaming facility without an approved contract;

• Inability to effectively determine whether imminent jeopardy exists with regard 

to the safety of employees and patrons of the gaming establishment;

• Inability to effectively determine whether individuals other than the recognized 

tribal government are asserting authority over the gaming operation;

• Inability to effectively determine whether outside investors have unduly influenced tribal decision-making or made improper payments to tribal officials;

• Inability to effectively perform operational audits, which track the movement of 

money throughout the casino;

• Risk that tribal surveillance and gaming commission funding could decrease 

rapidly, as these are expensive and are not seen as increasing the casino bottom 

line.

Potential Impact of CRIT Decision 

Finally, I would like once again to return the significance of the CRIT decision 

and the importance that NIGC places upon a CRIT fix. IGRA, in effect, anticipated 

the wide range of regulatory structures in the various tribal-state compacts through 

the establishment of the NIGC as an independent Federal regulatory authority for 

gaming on Indian lands. With respect to NIGC’s regulatory oversight responsibilities, IGRA authorized the Commission to penalize violations of the Act, violations 

of the Commission’s own regulations, and violations of the Commission-approved 

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tribal gaming ordinances by the way of imposition of civil fines and orders for closure of tribal gaming facilities. 

A luxury that tribal gaming regulators have, when contrasted to the NIGC and 

state regulators, is that ordinarily their regulatory responsibility is confined to one, 

or in some cases several, tribal gaming facilities. The laser-focus this permits undoubtedly has advantages. However, states, and NIGC, have an advantage not permitted in such an arrangement, and that is ability to look at a broad range of gaming operations, permitting them to contrast and compare methodologies and trends, 

and perhaps thereby identifying issues that would not be apparent to a regulator 

with primary exposure to only one operation. (Such operation being owned by the 

entity which controls the purse strings for the tribal regulatory body itself.) Thus, 

the combined approach—tribes having the heavy lifting—the all day, every day responsibility and the NIGC and the states having a less immediate but independent 

oversight perspective, seeing multiple operations, affords an important perspective 

which would otherwise not be available. In an arrangement where states do not 

bring this perspective to the arrangement—or where NIGC cannot bring it, this synergy envisioned by the authors of IGRA is lost. 

More specifically, since the Colorado River Indian Tribes decision, the NIGC has 

discontinued the practice of Class III gaming reviews conducted by our auditors. 

There will be temptations, generated by demands for per capita payments or other 

tribal needs, to pare down tribal regulatory efforts and bring more dollars to the 

bottom line. There will be no Federal standard that will stand in tribes’ way should 

this occur. For the most part, the NIGC will become an advisory commission rather 

than a regulatory commission for the vast majority of tribal gaming. The very integrity of the now-smoothly-operating regulatory system, shared by tribal, state and 

Federal regulators, will be disrupted. If there is one imperative change that needs 

to be made in the Indian Gaming Regulatory Act, in the view of this NIGC Chairman and consistent with the legislative proposal that the NIGC sent to this Congress in May of 2007, it is the clarification that NIGC has a role in the regulation 

of Class III gaming. 

Not everyone agrees, of course. Some tribes argue that the CRIT decision should 

be read broadly to eliminate any NIGC authority over Class III gaming. This interpretation may impact on the ability ofthe NIGC to enforce its regulations as follows:

Activity Impact 

Bingo Unchanged 

Pull-Tabs Unchanged 

Card Games Unchanged 

Keno No enforcement authority 

Pari-Mutuel Wagering No enforcement authority 

Table Games No enforcement authority 

Gaming Machines No enforcement authority 

Cage Scope limited—Bingo/Pull—Tab/Card Game Inventory 

Items 

Credit Scope limited—Bingo/Pull—Tab/Card Game Inventory 

Items 

Information Technology Scope limited—Bingo/Pull—Tab/Card Game Related 

Software and Hardware 

Complimentary Services and Items Scope limited—Bingo/Pull—Tab/Card Game Transactions 

Drop and Count Scope limited—Bingo/Pull—Tab/Card Game Cash, Cash 

Equivalents and Documents 

Surveillance Scope limited—Bingo/Pull—Tab/Card Game Areas 

Internal Audit Scope limited—Bingo/Pull—Tab/Card Game Transactions 

One of the daunting challenges facing the NIGC is answering the question: 

‘‘Where does the Class II end and the Class III begin? ’’ In most Indian gaming establishments there is no segregation of internal controls between Class II and Class 

III. We can audit Class II games without auditing Class III, for instance bingo 

versus blackjack. However, when it comes to comps and surveillance and other more 

general areas it gets tricky. In most instances, the proceeds are combined or commingled and auditors then can’t look at one revenue stream without observing the 

other. This gray area has the potential to hinder our mission. 

The above examples illustrate that the regulation of Indian gaming is a complicated matter. At the tribal level it can often be impacted by political discord that 

may lead to uneven enforcement or at times little effect regulation regardless of 

15

overall intention. It is nevertheless clear that tribes have a very strong interest in 

assuring that their operations are adequately regulated. 

Challenges to the Independence of Tribal Regulation 

That said, some gaming commissions are not sufficiently independent of the tribal 

governments or the managers that operate the gaming operation. In this connection, 

the history of Nevada’s regulatory structure may be instructive. Effective gaming 

regulatory authority in Nevada was a process that evolved over a forty year period 

and is continuing to improve and respond to change today. Only after creation of 

a separate gaming regulatory authority did oversight of the industry have an effective champion. Beginning in the late 70s, significant progress was made into the 

identification and removal of individuals and entities intent upon exploitation and 

corruption. Although many factors contributed to corruptive influences in Nevada, 

one aspect stood out. At the time gaming was legalized in Nevada, the state and 

local governments were in a rather deprived financial position therefore the governmental agencies charged with regulatory oversight were also dependent, albeit desperate, for the potential revenues this growing industry could provide. The Nevada 

experience demonstrates a critical policy question when gaming regulations are considered: that as the government charged with regulation becomes increasingly dependent upon the profitability of the industry being regulated, the effectiveness of 

the regulatory effort may diminish. 

Generally, in tribal gaming, the tribal council is the ultimate governmental authority responsible for ensuring the gaming operation generates the greatest return 

on investment and that, in doing so, is effectively regulated. Such an organizational 

structure has challenges because the motivations lack congruity. Inevitably, from 

time to time, one objective may be foregone in pursuit of the other and, many times 

it is the oversight function. Although some tribes have recognized the organizational 

weakness and have installed procedures to counteract its effect, others have not 

and, as a result, the effectiveness of their regulatory processes is significantly diminished. 

In sum, the result of the CRIT decision is that Class III gaming is left with tribalstate compacts as the remaining vehicle for oversight and enforcement. The information I have attempted to present here shows, I believe, many of the structural 

weaknesses of that situation. While NIGC has no role, compacts are lacking in the 

area of enforcement. Compacts might include specific regulatory structures and give 

regulatory responsibility to the tribe, to the state, or to both in some combination 

of responsibilities. In two states, Arizona and Washington, the tribal-state compacts 

call for regular state oversight, institute technical standards and testing protocols 

for gaming machines, and establish internal control requirements. Most states, however, have assumed a minimal regulatory role. In many cases, compacts have become little more than a revenue sharing agreement between the state and the Tribe. 

The absence of the NIGC in the regulation of Class III gaming removes an essential 

component of oversight and enforcement.

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The CHAIRMAN. Chairman Hogen, thank you very much for summarizing. We appreciate your testimony. 

Next, we will hear from the Chairman of the California Gambling Control Commission, Mr. Dean Shelton, who is appearing, as 

I understand it, on behalf of Governor Arnold Schwarzenegger. 

STATEMENT OF DEAN SHELTON, CHAIRMAN, CALIFORNIA 

GAMBLING CONTROL COMMISSION; ON BEHALF OF

GOVERNOR ARNOLD SCHWARZENEGGER 

Mr. SHELTON. Yes. I will read a short statement. I am sure we 

will follow it up with a lengthier written statement in the 2-week 

period. 

Good morning, Mr. Chairman and Vice Chairperson, my name is 

Dean Shelton. I am the Chairman of the California Gambling Control Commission. Governor Arnold Schwarzenegger has requested I 

appear on his behalf in support of language in the draft bill that 

clarifies the National Indian Gaming Commission’s authority over 

Class III minimum control standards. 

California is unique in that it has 107 federally recognized Indian tribes. At present, 66 of those tribes have tribal-State gaming 

compacts. There are 57 tribal casinos in operation in California and 

several more casinos are in the planning and development stage. 

The Gambling Control Commission has responsibility of oversight of tribal casinos to the extent authorized under the tribal–

State gaming compacts and performs fiduciary and audit responsibilities associated with tribal gaming. Given the number of gaming tribes and the scale of the tribal gaming industry in California, 

this draft bill has a potential to significantly impact our State. 

Governor Schwarzenegger believes that NIGC should be authorized to formally inspect and enforce the MICS, as they have done 

in the past. His position is based on the belief that strong State, 

Federal and tribal regulation and oversight of Class III gaming 

best serves the public interest and serves the goals of the Indian 

Gaming Regulatory Act. This three- prong approach has worked 

well in our State, creating a good balance among the three sovereign responsibilities for regulation and oversight of tribal gaming. We would encourage and support enhanced coordination and 

open lines of communication among all of these regulators. 

I personally have enjoyed a professional relationship with Chairman Hogen. He has been most cooperative. His agency has assisted 

us. We coordinate our activities and we don’t trample on one another. While we support language in the draft bill that clarifies 

NIGC’s authority with respect to Class III gaming, we believe that 

section three of the proposed bill is unnecessary. As we understand 

it, the proposed language would authorize the commission to determine whether it should be preempted from regulatory Class III 

gaming in the State based on its review of regulatory activity 

under a tribal-State compact. 

This review would be based on the standards to be established 

by a newly created Class III Regulatory Committee. The Committee also would develop minimum standards for regulations of 

Class III gaming. We see no need to develop this additional layer 

of bureaucracy. We believe the NIGC has the expertise to carry out 

23

its responsibilities and creation of the committee is unnecessary at 

this time. 

Additionally, given the number of gaming tribes in the State of 

California, we believe there is more than enough room for both 

Federal and State oversight of Class III gaming and that preemption also is unnecessary. Our approach in California has been to 

complement NIGC’s activities, rather than duplicate them. 

We will continue that approach, and according to this position, 

only section one and two of the draft bills should be created at this 

time. 

This is a short statement, and I will be available for questions 

later as you have asked. 

[The prepared statement of Mr. Shelton follows:]

PREPARED STATEMENT OF DEAN SHELTON, CHAIRMAN, CALIFORNIA GAMBLING

CONTROL COMMISSION; ON BEHALF OF GOVERNOR ARNOLD SCHWARZENEGGER

Good morning Mr. Chairman and Members of the Committee. My name is Dean 

Shelton and I am the Chairman of the California Gambling Control Commission. 

Governor Arnold Schwarzenegger has requested that I appear on his behalf in 

support of language in the draft bill that clarifies the National Indian Gaming Commission’s authority over the Class III Minimum Internal Control Standards or 

MICS. 

California is unique in that it has 107 federally-recognized Indian tribes. At 

present, 66 of those tribes have tribal-state gaming compacts. There are 57 tribal 

casinos in operation in California and several more casinos are in the planning and 

development stage. The Gambling Control Commission has the responsibility of 

oversight of tribal casinos to the extent authorized under the tribal-state gaming 

compacts, and performs fiduciary and audit responsibilities associated with tribal 

gaming. 

Given the number of gaming tribes and the scale of the tribal gaming industry 

in California, this draft bill has the potential to significantly impact our state. Governor Schwarzenegger believes that NICG should be authorized to formally inspect 

and enforce the MICS as they have done in the past. His position is based on his 

belief that strong state, Federal, and tribal regulation and oversight of class III 

gaming best serves the public interest and furthers the goals of the Indian Gaming 

Regulatory Act. This three-pronged approach has worked well in our state, creating 

a good balance among the three sovereigns responsible for regulation and oversight 

of tribal gaming. We would encourage and support enhanced coordination and open 

lines of communication among all of these regulators. 

I personally have enjoyed a professional relationship with NIGC and find Chairman Phil Hogan and his staff to be open and cooperative with our commission. We 

believe that the past work of NIGC has helped promote, and increase public confidence in, the integrity of gambling on Indian land. 

While we support language in the draft bill that clarifies NIGC’s authority with 

respect to Class III gaming, we believe that section 3 of the proposed bill is unnecessary. As we understand it, the proposed language would authorize the Commission 

to determine whether it should be preempted from regulating Class III gaming in 

a state based on its review of the regulatory activity required under tribal-state 

compacts. This review would be based on standards to be established by a newly 

created Class III Regulatory Committee. The Committee also would develop minimum standards for the regulation of Class III gaming. 

We see no need to develop this additional layer of bureaucracy. We believe NIGC 

has the expertise to carry out its responsibilities and that creation of the committee 

is unnecessary. Additionally, given the number of gaming tribes in the State of California, we believe there is more than enough room for both Federal and state oversight of Class III gaming and that preemption also is unnecessary. Our approach 

in California has been to complement NIGC’s activities, rather than duplicate them, 

and we will continue to follow that approach. Accordingly, it is our position that 

only sections 1 and 2 of the draft bill should be enacted. 

Thank you for the opportunity to speak today on this important matter. I would 

be pleased to answer any questions you may have.

24

The CHAIRMAN. Mr. Shelton, thank you very much for coming 

from California to give us your views. 

Mr. SHELTON. Our pleasure. 

The CHAIRMAN. What I would like to do now is to call the additional witnesses to the table. Chairman Hogen and Chairman 

Shelton, if you would remain available, then I would have you 

come back and we will have questions for all of the witnesses. 

The next panel will be the Honorable Myra Pearson, the Chairman of the Great Plains Indian Gaming Association, the Chair of 

the Spirit Lake Tribe in Fort Totten, North Dakota, accompanied 

by Kurt Luger, Executive Director of the Great Plains Indian Gaming Association, Bismarck, North Dakota; the Honorable W. Ron 

Allen, Chairman, Washington Indian Gaming Association, and 

Chairman of the Jamestown S’Klallam Tribe in the State of Washington; the Honorable Valerie Welsh-Tahbo, Council Member of the 

Colorado River Indian Tribal Council at Parker, Arizona. 

I appreciate very much all of you being here. I did mention that 

Tracy Burris, who is the Commissioner of the Chickasaw Nation 

Gaming Commission in Norman, Oklahoma had an airplane problem this morning and is not able to be here for this testimony. 

We have been joined by our colleague from Hawaii, the former 

Chairman of this Committee for many, many years, Senator 

Inouye. Senator Inouye, would you like to make any comments? 

Senator INOUYE. No, thank you, Mr. Chairman. 

The CHAIRMAN. I think everyone understands the contribution 

Senator Inouye has made over so many decades on this Committee, 

and we appreciate very much your being here, Senator. 

Why don’t we begin with you, Myra Pearson, who is the Chairman of the Great Plains Indian Gaming Association. Welcome and 

why don’t you proceed? We would ask what we have asked of the 

previous panel, if you would be willing to summarize in about 5 

minutes. We have all had the opportunity to read the entire statement and all of the entire statement will be part of the permanent 

record. 

STATEMENT OF MYRA PEARSON, CHAIRWOMAN, GREAT 

PLAINS INDIAN GAMING ASSOCIATION; CHAIRWOMAN,

SPIRIT LAKE SIOUX TRIBE; ACCOMPANIED BY KURT LUGER, 

EXECUTIVE DIRECTOR, GREAT PLAINS INDIAN GAMING

ASSOCIATION 

Ms. PEARSON. Thank you and good morning, Chairman Dorgan, 

Vice Chairwoman Murkowski, and Members of the Committee. 

My name is Myra Pearson and I am Chairwoman for the Spirit 

Lake Sioux Tribe in North Dakota, and I am also the Chairperson 

for the Great Plains Indian Gaming Association, which includes 28 

Indian nations from North and South Dakota, Nebraska, Iowa and 

Kansas. Accompanying me this morning is Kurt Luger, Executive 

Director of the Great Plains Indian Gaming Association, and a 

member of the Cheyenne River Sioux Tribe, who has a family home 

on the Standing Rock Indian Reservation in North Dakota. 

Before I begin my comments, I would like to take a few seconds 

to recognize the troops and their families in the war, who are currently fighting for our freedom. I want to express my gratitude, and 

that comes from Indian Country, Senator. Thank you for that. 

25

The CHAIRMAN. Thank you very much. 

Ms. PEARSON. This morning, I am here to comment on the discussion draft of a bill to amend IGRA. Before I comment on the 

draft, I would first like to talk about Indian gaming and what it 

is doing for the citizens of North Dakota. There is no question that 

Indian gaming has had a significant and positive impact on all the 

citizens of North Dakota. Tribal governments have created 2,400 

direct jobs through Indian gaming. These jobs help families on reservations that face greater than 80 percent unemployment rates. 

While the majority of these jobs go to tribal citizens, many help 

employ non–Indians living near the reservations. Tribal government payrolls contribute $121 million annually to 

the North Dakota economy. Tribal government gaming operations 

purchased over $40 million in goods and services in North Dakota. 

Without these sales, the State of North Dakota would lose $70 million of economic activity each year. The total economic impact of 

the Indian gaming in the State since 1997 exceeds $1.2 billion. 

These are only some of the reasons why the tribes of North Dakota and throughout the Great Plains are opposed to amending the 

Indian Gaming Regulatory Act. Now, I understand that the primary purpose of this hearing is to address concerns with the regulation of Indian gaming in light of the recent Colorado River Indian 

Tribes decision. 

Mr. Chairman, I want you to know that Indian tribes in North 

Dakota and throughout the Nation are fully committed to strong 

regulation. Our tribal leaders understand that we need solid regulation to protect the government revenue that Indian gaming provides. As you know, we run relatively modest operations. However, 

in 2006 alone, tribal governments spent $7.4 million on tribal and 

State regulation and employed more than 325 tribal regulators and 

staff. 

Our tribal regulators work hand in hand with State Attorney 

Generals’ offices to address Class III gaming regulatory issues. Our 

compacts provide for a strong partnership between the tribes and 

the States. Our tribe expressly adopted minimum internal control 

standards through our tribal–State compacts, which incorporate 

the NIGC MICS by reference. 

The tribes in North Dakota have worked very hard to preserve 

the relationship with the State and the State, for its part, has 

worked in good faith with the tribes. As you will see in our submitted testimony, Attorney General Stenjhem has complimented 

the tribal governments on our record of strong regulation and has 

cooperated with the tribal regulatory agencies to apprehend and 

prosecute those who attempt to cheat our casinos. 

From our point of view, we don’t see a need to amend IGRA. 

Nothing changed after the CRIT decision with regard to regulating 

Indian gaming in North Dakota. Regulation of Indian gaming remains as strong as ever, not only in North Dakota, but throughout 

the Great Plains region. 

We believe that the Act is working as intended. However, when 

we heard that the Committee was considering amending IGRA to 

address the CRIT decision, we put it to a vote of our 28 member 

tribes. The Great Plains Indian Gaming Association met in May of 

this year. The association passed a resolution opposing any amendVerDate 0ct 09 2002 12:33 Sep 25, 2007 Jkt 037531 PO 00000 Frm 00029 Fmt 6633 Sfmt 6601 S:\DOCS\37531.TXT JACKF PsN: JACK
26

ments to IGRA. We think that any NIGC issues can be addressed 

through model tribal ordinance provisions under existing law. 

If this Committee moves forward, we will oppose any legislation 

unless several conditions are met. Congress should respect the existing framework of IGRA, tribal-State compacts, and tribal ordinances established in regulatory rules for Class III gaming, not 

Federal regulation. NIGC oversees tribal enforcement of tribal ordinances, so any substantive standards should be included in tribal 

ordinances. 

Congress must guarantee protection of the integrity of IGRA, and 

commit to moving legislation through regular order. IGRA amendments must include provisions to address the Seminole decision. 

We also request a provision to affirm Class II technological aids 

and Congress should require NIGC to work with tribes on a basis 

of government-to-government relations and use negotiated rulemaking. 

Finally, any amendments should grandfather existing tribalState compacts. 

While we appreciate that the Committee has offered the bill as 

a draft, in our view the bill does not promote strong tribal government as IGRA does, because it relies on Federal rulemaking and 

ignores tribal lawmaking. The existing tribal ordinance process 

should be respected. NIGC approves our tribal ordinances process 

as consistent with minimum Federal statutory standards and retains authority to enforce against any violations of IGRA, proper 

NIGC regulations, and tribal ordinances. 

Furthermore, the provision to address the Seminole case falls far 

short of what is needed to restore the balance to the compacting 

process. The discussion draft bill overturns the existing tribal-State 

compact process by giving NIGC blanket unchecked authority over 

all aspects of Class III gaming. This unchecked authority will endanger the future of Indian gaming under NIGC leadership. That 

doesn’t honor the existing tribal–State compact process and tribal 

ordinance process. 

My second point in opposition to the draft is that it will feed the 

Federal bureaucracy at the expense of local tribe and State decisionmaking. The bill would create a new compact committee within 

the Department of Interior and grant the NIGC authority to approve regulatory provisions in tribal-State compacts. This will further complicate the already burdensome compacting process and it 

permits the NIGC to judge the reach of its own jurisdiction. Under 

the provisions of the bill, NIGC would never cede authority to State 

regulators and tribal gaming commissions. It would keep its new 

Federal authority across the board. 

No other form of gaming in North Dakota is subject to Federal 

agency regulation. Indian gaming is fully regulated. Chairman 

Hogen testified before the California Assembly that even in light 

of the CRIT decision, the NIGC has the authority to regulate Class 

III gaming. 

We ask that the Committee help us to look for opportunities 

short of legislation to address NIGC concerns, and we are willing 

to work cooperatively on model tribal ordinance provisions that respects the existing statutory framework of IGRA and honors the seVerDate 0ct 09 2002 12:33 Sep 25, 2007 Jkt 037531 PO 00000 Frm 00030 Fmt 6633 Sfmt 6601 S:\DOCS\37531.TXT JACKF PsN: JACK
27

rious commitment that both States and tribal governments have 

vested in the tribal-State compact process. 

In other words, please look to address any concerns within the 

existing framework of IGRA. Congress could simply call upon our 

tribal governments to maintain MICS in our tribal ordinances. Indeed, we can do this on a voluntary government-to-government 

basis. This would preserve tribal law-making authority, create an 

objective statutory standard, and ensure that tribal governments 

are not subjected to the whims of a bureaucracy. 

The CHAIRMAN. Are you nearly done? I have to ask that you summarize. 

Ms. PEARSON. OK. I am going to jump right down to the bottom. 

In conclusion, I want to say that Indian gaming is doing well. It 

is working and Indian gaming in North Dakota and throughout the 

Great Plains is beginning to rebuild their economies. It is doing 

something great for the Indian people and we hope that we can see 

that continue. 

Thank you very much for this opportunity, Senator Dorgan. 

[The prepared statement of Ms. Pearson follows:]

PREPARED STATEMENT OF MYRA PEARSON, CHAIRWOMAN, GREAT PLAINS INDIAN

GAMING ASSOCIATION; CHAIRWOMAN, SPIRIT LAKE SIOUX TRIBE; ACCOMPANIED BY

KURT LUGER, EXECUTIVE DIRECTOR, GREAT PLAINS INDIAN GAMING ASSOCIATION

Introduction 

Good Morning. Chairman Dorgan and Members of the Committee thank you for 

inviting me to testify today concerning the regulation of Indian gaming and the authority of NIGC to regulate Class III gaming. 

My name is Myra Pearson and I am Chairwoman of the Spirit Lake Sioux Tribe 

in North Dakota. I also serve as Chair of the Great Plains Indian Gaming Association, which includes 28 Indian nations from North and South Dakota, Nebraska, 

Iowa, and Kansas. We work closely with both the National Indian Gaming Association and other regional Indian gaming associations, including the Minnesota Indian 

Gaming Association. 

I am accompanied by Kurt Luger, Executive Director of the Great Plains Indian 

Gaming Association. Kurt is a member of the Cheyenne River Sioux Tribe but he 

and his family maintain their home and ranch on the Standing Rock Sioux Reservation in North Dakota. At Great Plains Indian Gaming Association, his job is to work 

with our Member Tribes to address challenges that we face in Indian gaming and 

to provide training and technical assistance to our tribal government officials, tribal 

gaming commissioners, gaming management and staff. 

At the outset, let me say that Indian gaming is working in rural areas of America. 

Indian tribes that faced 50, 60, and even 70 percent unemployment are now generating jobs not only for their own tribal members, but for neighboring non-Indians 

as well. I live and work in North Dakota so I will use the North Dakota Tribes as 

a representative example. 

In North Dakota, Indian gaming has a significant economic impact. Our tribal 

government gaming operations provide employment, essential tribal government 

revenue that funds essential services and community infrastructure, and generates 

much needed revenue for communities statewide through the economic multiplier effect. Our Tribes have created 2,400 direct, full-time jobs with pension and health 

care benefits. The payroll from the gaming operations exceeds $39 million, and approximately $30 million of that payroll goes to tribal members who live in rural 

North Dakota. More than 70 percent of our gaming employees are Native Americans 

and 40 percent of our employees were formerly unemployed and survived on welfare. 

Our tribal government payroll contributes $121 million annually to the total economy of the state. Tribal government gaming operations purchased over $40 million 

in goods and services within North Dakota. Purchases were made in 93 communities 

throughout the state. Without these sales, the state would lose $70 million of economic activity in cities throughout the state. We have estimated our total economic 

impact in the state since 1997 to have exceeded $1.2 billion. 

28

In short, we believe that it is not necessary to give the NIGC a new role under 

IGRA. They merely want to expand their agency authority, when our tribal governments have already adopted either the MICS standards through tribal ordinance, 

negotiated Tribal-State Compacts to address these issues, or both. We believe the 

NIGC should sit down with us and work out issues they have through model tribal 

ordinance provisions because that is what the existing framework of IGRA calls for. 

It is wrong to ask us to both negotiate a regulatory framework with the state, which 

equals or exceeds state law requirements for gaming, and then to add on a new 

layer of Federal bureaucracy on top of that. We take our Tribal-State Compact requirements seriously and they are working. 

Indian Tribes in North Dakota 

In North Dakota, 5 tribal governments operate Indian gaming facilities: the Three 

Affiliated Tribes of Fort Berthold—Mandan, Hidatsa, and Arikara; the Spirit Lake 

Sioux Tribe, the Turtle Mountain Chippewa Tribe, the Standing Rock Sioux Tribe 

and the Sisseton-Wahpeton Sioux Tribe. Both the Standing Rock Sioux Tribe’s reservation and the Sisseton-Wahpeton Sioux Tribe’s reservation straddle the border 

with South Dakota. 

Three Affiliated Tribes. The Three Affiliated Tribes, Mandan, Hidatsa, and 

Arikara, operate as a unified tribal government. These Tribes have occupied the 

Missouri valley for hundreds and thousands of years, planted corn, squash, and 

beans on the fertile flood plains, and hunted buffalo and wild game. Living in 

stockaded villages, the Three Affiliated Tribes were devastated by smallpox 

epidemics in 1792, 1836, and 1837. 

Early on, the Three Affiliated Tribes established friendly relationships with the 

United States. They welcomed the Lewis and Clark expedition into their villages 

and assisted them on their journey. In 1825, the Mandan, Hidatsa, and Arikara 

Tribes entered into Treaties of Friendship and Trade with the United States, which 

states:

Henceforth, there shall be a firm and lasting peace between the United States 

and the [Mandan, Hidatsa, and Arikara Tribes] . . .. The United 

States... receive the [Tribes] into their friendship and under their protection.

The United States’ treaty pledges of protection forms the basis for the Federal Indian trust responsibility. The traditional lands of the Mandan, Hidatsa, and Arikara 

encompassed an area of 12 million acres from eastern North Dakota to Montana and 

as far south as Nebraska and Wyoming. The Fort Laramie Treaty of 1851, congressional acts and executive orders reduced the Tribes’ lands to 1,000,000 acres in 

western North Dakota. 

In the early 1950s, the Three Affiliated Tribes were asked to undertake a tremendous sacrifice by allowing the United States to dam the Missouri River and flood 

their reservation. The original tribal headquarters was flooded and families were 

moved away from the fertile Missouri River flood plain up on to the high prairie. 

When Lake Sakakawea was formed by the dam, the new lake divided the reservation into three parts. The Tribes suffered an enormous loss of natural resources, including the most fertile land on the reservation, their community was divided and 

the small village life that many had known along the Missouri River was gone. The 

tribal headquarters were relocated four miles away in New Town, North Dakota. 

Today, the tribal population is about 10,000 with about 5,000 living on the reservation. 

Spirit Lake Sioux Tribe. The Spirit Lake Sioux Tribe is composed of the SissetonWahpeton and Yankton bands of the Dakota or Sioux Nation. Originally residing 

in Minnesota and eastern North Dakota, the Spirit Lake Sioux Reservation was established by the Treaty of 1867 with the United States. The Treaty of 1867 provides 

that: ‘‘The... Sioux Indians, represented in council, will continue... friendly 

relations with the Government and people of the United States . . ..’’ The Treaty 

recognizes the Spirit Lake Sioux Reservation as the ‘‘permanent’’ reservation of the 

Tribe. 

The Tribe has worked to develop jobs through manufacturing, providing Kevlar 

helmets and military vests to the Pentagon through Sioux Manufacturing Corporation, yet with a reservation population of over 6,000 people, the Tribe has struggled 

with 59 percent unemployment as the Defense Department budget was cut in the 

1990s. The Spirit Lake Reservation encompasses 405 square miles north of the 

Sheyenne River in northeastern North Dakota. 

Turtle Mountain Chippewa Tribe. The Chippewa or Ojibwe people originally inhabited the Great Lakes Region and began to hunt and trade in North Dakota in 

the late 18th and early 19th Centuries. Historically, the Chippewa and the Dakota 

29

fought wars with each other, but they settled their differences through the Treaty 

of Sweet Corn in 1858. 

In 1882, Congress set aside a 32 mile tract in Northeastern North Dakota for the 

Turtle Mountain Band of Chippewa 11 miles from the Canadian border. With the 

passing of the great buffalo herds, the Chippewa turned to agriculture and ranching, and faced many difficulties due to encroachment by settlers. Today, almost 

20,000 tribal members live on the 6×12 mile Turtle Mountain reservation, and 

Belcourt, North Dakota has become the 5th largest city in the state. 

Standing Rock Sioux Tribe. The Standing Rock Sioux Tribe is composed of Sitting 

Bull’s Band, the Hunkpapa, and the Yanktonai, with some Black Foot Sioux on the 

South Dakota side. In the Fort Laramie Treaty of 1868, the United States pledged 

that: ‘‘The Government of the United States desires peace and its honor is hereby 

pledged to keep it.’’ The Treaty also provides that the Great Sioux Reservation was 

to serve as the ‘‘permanent home’’ of the Sioux Nation. 

Yet, in 1876, General Custer and the 7th Cavalry came out to Sioux country to 

force the Sioux tribes on to diminished reservations. In 1889, the Federal Government once again called on the Sioux Nation to cede millions more acres of reservation lands, and the Standing Rock Sioux Reservation was established by the Act of 

March 2, 1889. Sitting Bull had opposed the land cession and in 1890, he was murdered by BIA police acting in concert with the U.S. Cavalry. 

The Standing Rock Sioux Reservation is composed of 2.3 million acres of land 

lying across the North and South Dakota border in the central area of the state. 

Like the Three Affiliated Tribes, the Standing Rock Sioux Tribe was asked to make 

a substantial sacrifice for flood control and ceded almost 56,000 acres of the best 

reservation land for Lake Sakakawea. Tribal members were removed from their traditional homes along the Missouri River flood plain and relocated well up above the 

river. Today, the population of resident tribal members is almost 10,000. 

Sisseton-Wahpeton Sioux Tribe. Located in Southeastern North Dakota and 

Northeastern South Dakota, the Sisseton-Wahpeton Sioux Tribe has a total enrollment of over 10,000 tribal members and a resident population of about 5,000 tribal 

members. The Tribe was originally located in Minnesota, but pressure from white 

settlers pushed the Tribe westward. The Treaty of 1858 with the United States established the Sisseton-Wahpeton Sioux Reservation, which today has approximately 

250,000 acres in North and South Dakota. 

Indian Gaming in North Dakota 

Since the beginning of tribal gaming in North Dakota, the primary function has 

been to provide employment and economic development opportunities. Indian gaming has also provided vital funding for tribal government infrastructure, essential 

services including police and fire protection, education, and water and sewer services, and tribal programs, such as health care, elderly nutrition, and child care. 

There are five Indian gaming facilities in the state—Four Bears Casino & Lodge 

(Three Affiliated Tribes), Sky Dancer Casino & Lodge (Turtle Mountain), Spirit 

Lake Casino (Spirit Lake Sioux), Dakota Magic Casino (Sisseton-Wahpeton), and 

Prairie Knights Casino & Lodge (Standing Rock). 

The Tribal-State Compact Process in North Dakota 

In North Dakota, tribal governments have worked hard to maintain our sovereign 

authority and territorial integrity, so that we can provide a life for our people on 

our own homelands. The Indian Gaming Regulatory Act acknowledges the governmental status of Indian tribes and seeks to promote ‘‘tribal economic development, 

self-sufficiency, and strong tribal governments.’’

Historically, state law does not apply to Indian tribes or Indians on Indian lands 

in the absence of an express congressional delegation of authority. That means that 

under general principles of Indian sovereignty, Indian tribes are able to conduct 

gaming under tribal law, not state law. Yet, through the Indian Gaming Regulatory 

Act, Congress made a compromise between tribal interests and state interests and 

established the Tribal-State Compact process for the regulation of Class III gaming. 

The Senate Committee Report explains:

It is a long and well-established principle of Federal Indian law as expressed 

in the United States Constitution... that unless authorized by act of Congress, the jurisdiction of State governments and the application of state laws 

do not extend to Indian lands . . .. [U]nless a tribe affirmatively elects to have 

State laws and State jurisdiction extend to tribal lands, the Congress will not 

unilaterally impose or allow State jurisdiction on Indian lands for the regulation 

of Indian gaming activities. The mechanism for facilitating the unusual relationship in which a tribe might affirmatively seek the... application of state 

laws . . . is a Tribal-State Compact.

30

The Administration Expressly Rejected a Primary Federal Regulatory Role 

Recognizing that the extension of State jurisdiction on Indian lands has traditionally been inimical to Indian interests, some have suggested the creation of a Federal 

Regulatory Agency to regulate Class II and Class III gaming activities on Indian 

lands. Justice Department officials were opposed to this approach, arguing that the 

expertise to regulate gaming activities and to enforce laws related to gaming could 

be found in state agencies, and thus there was no need to duplicate those mechanisms on a Federal level. 

Senate Report No. 100–497 at 5–7 (1988) 

Accordingly, when tribal governments conduct Class III gaming, IGRA first requires three things: (1) a tribal gaming regulatory ordinance that meets minimum 

statutory standards, approved by the NIGC; (2) the Tribe is located in a state where 

Class III gaming is allowed for any purpose by any person, entity or organization; 

and (3) a Tribal-State Compact. The Tribal-State Compact provides the rules for 

Class III gaming:

(i) the application of the criminal and civil laws of the Indian tribe or the State 

that are directly related to, and necessary for, the licensing and regulation of 

such activity;

(ii) the allocation of criminal and civil jurisdiction between the State and the 

Indian tribe necessary for the enforcement of such laws and regulations;

(iii) the assessment by the State of such activities in such amounts as are necessary to defray the costs of regulating such activity;

(iv) taxation by the Indian tribe of such activity in such amounts comparable 

to amounts assessed by the State for comparable activities;

(v) remedies for breach of contract;

(vi) standards for the operation of such activity and maintenance of the gaming 

facility, including licensing; and

(vii) other subjects that are directly related to the operation of gaming activities.

25 U.S.C. sec. 2710(d)(3) 

Tribal gaming regulatory ordinances support the Tribal-State Compact provisions. 

Tribal gaming ordinances must include: (1) the tribe has sole ownership of the gaming facility; (2) net revenues are used first and foremost for essential government 

purposes and tribal infrastructure; (3) annual audits are provided to NIGC (including independent review of contracts in excess of $25,000); (4) standards for construction and maintenance of the facility; and (5) a background check and licensing system for management and key employees. The tribal ordinance process is intended 

to provide a measure of respect for tribal law-making authority, so the NIGC can 

only disapprove of a tribal ordinance if it does not meet the statutory criteria. 

North Dakota Tribal-State Relations 

In North Dakota, both our Tribes and the States have taken the Tribal-State 

Compact very seriously. Our first Tribal-State Compacts were approved in 1992 and 

they were renewed in 1999. We follow a broad, inclusive process of negotiation 

where all 5 Tribes work together and we negotiate with the Executive Branch, including the Governor’s office and the Attorney General. The State Senate Majority 

and Minority Leaders and the State House Majority and Minority Leaders are invited to sit in on our compact negotiation meetings. The Tribes participate in six 

public hearings throughout the state to gather public input. Then our Tribal-State 

Compacts are approved through the normal legislative process, including committee 

hearings and approval by a vote of the State Legislature. 

All of the North Dakota tribes have worked to maintain positive government-togovernment relationships with the State of North Dakota. We meet every 2 years 

with the same group of state officials that negotiate Tribal-State Compacts to review 

tribal progress and any regulatory or implementation issues that may arise. 

Our Tribes expressly adopted Minimum Internal Control Standards through our 

Tribal-State Compacts—which incorporate the NIGC MICS by reference: 

Minimum Internal Control Standards 

‘‘Tribes shall abide with such Minimum Internal Control Standards as are 

adopted, published, and finalized by the National Indian Gaming Commission 

and as may be in current effect.’’

The State Attorney General is vested with authority to regulate gaming under 

state law, so Attorney General has expertise in this area:

31

The State Attorney General regulates the State Lottery, horse-racing and charitable gaming, alcoholic beverages, tobacco retailers, enforces consumer protection laws, and operates the Bureau of Criminal Investigations. The Attorney 

General’s Gaming Division regulates, enforces and administers charitable gaming in North Dakota. The division provides training, performs audits and investigations of gaming organizations; reviews gaming tax returns; issues administrative complaints; conducts criminal history record checks of gaming employees 

and Indian casino employees; and ensures compliance with tribal-state casino 

gaming compacts.

The Attorney General’s office works with our tribal gaming commissions to address any significant issues that arise in Class III gaming conducted pursuant to 

our compacts. Our compacts provide: (1) GAAP and IGRA standards for accounting; 

(2) regulation, testing and reporting for electronic machines to the state; (3) regulation for table games; (4) background checks conducted by the State Attorney General’s office and licensing standards for our tribal gaming commissions; and (5) random inspections by the State Attorney General’s office and tribal gaming commissions. The Tribes in North Dakota have worked very hard to preserve a strong relationship with the State, and the State for, its part, has worked in good faith with 

the Tribes. 

In North Dakota, tribal governments employ more than 325 tribal regulators and staff. In 2006, tribal governments spent $7.4 million on tribal and state regulation 

of Indian gaming in North Dakota. That’s $1.48 million per tribal government and 

we run relatively modest operations. We just had our biennial meeting with state 

officials and no regulatory issues or deficiencies were identified by any party. The 

Attorney General has said that his office is comfortable that we have achieved our 

original intention to create a safe, secure and effective tribal-state regulatory system. 

Attorney General Stenjhem has complimented the tribal governments on our 

record of strong regulation and has cooperated with the tribal regulatory agencies 

to apprehend and prosecute those who attempt to cheat our casinos. The Attorney 

General has recognized that Indian gaming has created important jobs and generated vital revenue for tribal self-government. He made it clear that he is proud 

that the State has not asked for revenue sharing. State officials in North Dakota 

know that tribal governments have many unmet needs and it helps the whole state, 

when tribal governments have a way to create jobs and generate essential governmental revenue. 

Summary of the Discussion Draft 

Senator Dorgan’s bill would amend IGRA to grant the NIGC the following authority over Class III gaming:

1. To monitor Class III gaming conducted on Indian lands on a continuing basis;

2. To inspect and examine all premises located on Indian lands on which Class 

III gaming is conducted; and

3. To demand access to and inspect, examine, photocopy, and audit all papers, 

books, and records respecting gross revenues of Class III gaming conducted on 

Indian lands and any other matters necessary to carry out the duties of the 

Commission under this chapter.

By granting the NIGC this new authority, Senator Dorgan’s bill would overturn 

the Federal Court’s decision in Colorado River Indian Tribes, which reflects the correct understanding of existing law. As a result, NIGC would then argue that its 

rulemaking authority for Class III gaming has increased. 

The bill also calls for the establishment of a new Class III Regulatory Committee 

made up of regulators with either 1 year experience in regulating Class III gaming 

or at least 3 years experience at a tribal gaming operation. This Committee will be 

tasked with developing ‘‘minimum standards for the regulation of Class III gaming,’’ 

which could cover anything including scope of games, bet and wager limits, hours 

of operation, etc. In other words, this new Federal regulatory authority—although 

couched as ‘‘minimum standards’’—would actually completely duplicate the issues 

already covered under our Tribal-State Compacts required by existing law. 

The bill requires the NIGC to then establish a process for certifying that tribes 

meet the minimum standards developed by this new committee. The draft bill also 

provides tribes with the ability to ‘‘opt-out’’ of the scheme if NIGC ‘‘certifies that the 

regulatory activity required under the Tribal-State compact meets the standards established by the Class III Regulatory Committee.’’ Actual experience shows that the 

NIGC would not cede jurisdiction willingly. For almost 20 years, the NIGC has not 

done so for Class II gaming under the self-regulation provisions. 

32

Finally, the Senator’s proposed bill appears to provide for a ‘‘Seminole fix.’’ However, the proposal does not address the States’ 11th Amendment immunity to suit 

and is far short of the remedy needed to truly address the imbalance in Tribal-State 

compact negotiations. 

Problems With the Discussion Draft 

First, we are concerned that the NIGC itself has failed to comply with the NIGC 

Accountability Act of 2006, enacted by Congress last year as part of Public Law No. 

109–221 (2006). That Act increases NIGC authority to impose regulatory fees on 

tribal governments of .080 percent of gross Indian gaming revenues and requires 

NIGC to establish a 5 year plan, including a technical assistance and training program, in consultation with tribal governments. The NIGC is using its increased fee 

authority to raise fees to increase its personnel levels, yet the NIGC has not begun 

the consultations mandated by the statute. Before new legislation is introduced, we 

believe that Congress should ensure that NIGC has fulfilled the mandate of Public 

Law No. 109–221. Proper implementation of Federal technical assistance could minimize or eliminate the need for legislation. 

Second and most importantly, IGRA Amendments are not necessary at this time. 

As our example from North Dakota shows, Tribes already have strong regulatory 

rules in place through Tribal-State Compacts and tribal ordinances. We have 

worked hard to develop a working relationship with the state and our compacts include reference to state law and practice as well as the NIGC MICS. In North Dakota, the Tribal-State Compact negotiation process works well, without the intervention of new Federal rules or agencies. 

The NIGC does not need new authority to work with us in North Dakota. We already have tribal gaming regulatory ordinances that meet IGRA’s minimum statutory standards and have the approval of the NIGC. (Our Tribal-State Compacts also 

require that our tribal gaming ordinance be at least as stringent as the compacts.) 

Under IGRA, 25 U.S.C. sec. 2713, the NIGC has authority to come to our facilities 

and meet with the tribal gaming commission to ensure that our tribal ordinances 

are enforced. Section 2713 provides:

[T]he Chairman shall have authority to levy and collect appropriate civil fines, 

not to exceed $25,000 per violation, against the tribal operator of an Indian 

gaming or a management contractor engaged in gaming for any violation of this 

chapter, any regulation prescribed by the Commission . . . or tribal regulations, ordinances, or resolutions approved under section 2710 or 2712 of this 

title.

If a Civil fine is not sufficient, the Chairman may issue a temporary closure order. 

If the problem is not resolved, the Chairman may then issue a permanent closure 

order. There has never been a permanent closure order issued in the Great Plains 

because Tribes have always worked with the NIGC on the rare occasion when a 

temporary closure order was issued. 

Our tribal gaming ordinances are incorporated by reference into our compacts, so 

the State Attorney General also has enforcement authority for violations of our tribal regulatory ordinance. We work cooperatively with the Attorney General, so generally our tribal gaming commissions have an opportunity to resolve the issue after 

notifying the Attorney General. Then we notify the Attorney General of the resolution. 

It would complicate our Tribal-State Compact negotiations if the NIGC were given 

new authority to issue Federal regulations for Class III Indian gaming. That would 

happen if the NIGC were given authority to ‘‘monitor’’ Class III gaming on a ‘‘continuing basis,’’ as the draft bill recommends, because it would overturn the Colorado 

River Indian Tribes decision and trigger the NIGC’s existing rulemaking power. 

Adding in a new Department of Interior Committee to develop MICS regulations 

would just be a duplication of existing efforts and promotes wasteful bureaucracy. 

Furthermore, the bill would leave the NIGC to judge the reach of its own jurisdiction, and it is not likely to give deference to our Tribal-State system since the Interior Committee will be developing new standards. 

If the Senate Committee wants to give the NIGC authority to regulate Class III 

Indian gaming, then it should do away with the Tribal-State Compact process and 

take the State out of the picture. Our guess is that the Committee does not want 

to do that because our State Governor, Attorney General, and State Legislature 

have invested a lot of time and effort under the current Tribal-State Compact system. 

Another question arises. NIGC seems to be seeking expanded authority for Class 

III gaming—is the Senate going to treat all gaming fairly and adopt a policy of Federal oversight for other gaming. Working with the North Dakota Attorney General 

33

we have at least as good a system as any state licensed gaming, so why should we 

be required to have more Federal regulation than state licensees? 

Alternative Legislative Provisions 

If the Committee decides to go forward despite our objections, then we strongly 

believe that it should avoid new Federal rulemaking that would interfere with Tribal-State Compacts. Instead, Congress should simply call upon our tribal governments to maintain MICS in our tribal ordinances. This would preserve tribal lawmaking authority, create an objective statutory standard and ensure that tribal governments are not subjected to the whims of a, sometimes, arbitrary bureaucracy. At 

times, it seems as though the NIGC writes new rules just to keep busy. 

If the Committee goes forward with legislation requiring Tribes to call upon tribal 

governments to maintain MICS in our tribal ordinances, then it should also address 

the following issues that Tribes are concerned about:

• Seminole Fix—Provide access to secretarial procedures in lieu of compact when 

a state raises and 11th Amendment defense to good faith negotiation. While the 

proposed bill appears to provide for a ‘‘Seminole fix,’’ the proposal does not address the States’ 11th Amendment immunity to suit. This is far short of the 

remedy needed to restore the imbalance in Tribal-State compact negotiations;

• Class II Technologic Aids—Affirm the IGRA and Federal Court of Appeals decisions that allow the use of technologic aids for Class II gaming;

• Grandfather existing Tribal-State Compacts and Grandfather Tribal Ordinances 

that already address the MICS; and

• Require NIGC to work with Tribes on a government-to-government basis, including negotiated rulemaking with tribal governments.

Conclusion 

Instead of looking to Congress to legislatively overturn this decision, the NIGC 

should rely on its ability to provide technical assistance to Tribal regulators to fulfill 

any perceived gaps in its authority. Increased technical assistance and consultation 

by the NIGC will avoid the need for any amendments to the Indian Gaming Regulatory Act. 

Naturally, if legislation goes forward, we ask that the Senate Committee on Indian Affairs defend its jurisdiction to prevent ‘‘legislative riders’’ on Appropriations 

bills. We are firmly opposed to such riders because historically they have done much 

mischief in Indian country. Indeed, it was an Appropriations ‘‘rider’’ that ended treaty-making with Indian tribes in 1871. Thereafter, we were relegated to congressional agreements. This is not asking too much, since Congress has pledged to do 

so under its procedural reform efforts. We also ask that the Committee proceed in 

a deliberative manner, with hearings after any bill is introduced, and such a bill 

should move as a technical bill through regular order on the unanimous consent calendar. IGRA should not be subject to amendments in an ‘‘ad hoc’’ manner on the 

floor of the Senate. 

Moreover, any legislation to amend IGRA must respect the existing Tribal-State 

Class III regulatory framework and tribal law-making authority. We have worked 

too hard to fulfill IGRA’s mandates to see the existing framework of the Act overturned. The Federal Court ruling in CRIT simply held that the NIGC may not draw 

up new Federal standards for the operation of Class III Indian gaming over and 

above Tribal-State Compacts. The Federal Court left in place the original understanding of IGRA and that understanding should be maintained. Any amendments 

can rest on tribal ordinances, which respect tribal law-making. We reject Federal 

regulatory mandates to be imposed on sovereigns who have worked in ‘‘good faith’’ 

to fulfill congressional purposes. 

Thank you for considering our views. We look forward to working with you to preserve the existing framework of the Indian Gaming Regulatory Act. Pidamaya. 

Attachments 

STATE OF NORTH DAKOTA OFFICE OF ATTORNEY GENERAL

Bismarck, ND, September 18, 2006 

Hon. BYRON L. DORGAN, 

Chairman, 

Senate Committee on Indian Affairs, 

Washington, DC.

Dear Senator Dorgan:

Provisions of S. 2078 fail to recognize that some tribal/state gaming compacts and 

some tribal/state relationships adequately address problems the bill seeks to solve. 

34

In particular, the bill significantly expands the National Indian Gaming Commission’s (NIGC) authority to regulate Class III gaming. 

I cannot comment on the effectiveness of gaming oversight in other states, and 

whether there is a need for added regulation, but I do know about the efforts my 

office undertakes in working with tribal casinos here in North Dakota. North Dakota gaming compacts provide for considerable regulation of Class III gaming. Another regulatory layer is questionable, at least in North Dakota. 

The Senate Report 109–261 that accompanies S. 2078 states that ‘‘many Indian 

tribes and states developed sophisticated regulatory frameworks to oversee tribal 

gaming operations,’’ and describes such frameworks as ‘‘effective.’’ North Dakota has 

developed an effective regulatory regime overseeing Class III gaming. Furthermore, 

and of equal importance, when regulatory issues arise, North Dakota tribes cooperate with state officials. In my experience, issues are routinely resolved promptly and 

effectively. 

If the Senate finds a need to expand NIGC’s regulatory authority, I suggest an 

exception should be considered for those tribes being adequately regulated under 

their gaming compacts. If not, the bill will burden an agency with unnecessary 

work, subject well-run casinos to unnecessary oversight, and compromise tribal selfgovernment and the compact process. 

I also question provisions in the S. 2078 giving NIGC authority to review ‘‘gaming 

related contracts’’ that tribes may wish to enter. The paternalism of these provisions 

expresses a policy long ago abandoned by the Federal Government. In my discussions and negotiations with tribal officials on a variety of matters, they bring sophisticated, talented resources to the table. They are able to negotiate contracts without 

Federal oversight. 

I appreciate an opportunity to offer some thoughts on efforts in Congress to 

strengthen oversights of Indian gaming. 

Sincerely, 

35

WAYNE STENEHJEM, 

Attorney General. 


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The CHAIRMAN. Thank you very much. We appreciate your testimony. 

Next, we will hear from the Honorable Ron Allen, Chairman of 

the Washington Indian Gaming Association. Chairman Allen, you 

may proceed. 

STATEMENT OF W. RON ALLEN, CHAIRMAN, WASHINGTON

INDIAN GAMING ASSOCIATION AND CHAIRMAN,

JAMESTOWN S’KLALLAM TRIBE 

Mr. ALLEN. Thank you, Mr. Chairman. It is always an honor to 

come before this Committee to testify on a variety of legislative 

issues that affect our tribes across the United States. 

I am the Chair of the Jamestown S’Klallam Tribe up in Western 

Washington. I have been Chair for 30 years, and I have been very 

active in Indian Country on many levels. I do want to thank you 

and Senator Murkowski and Senator Inouye and the others who 

have been very strong champions for us over the years. 

The question of the day here is, and you have our testimony that 

identifies some of the issues that concern us and that are in the 

testimony that we have identified with our colleagues in Washington State. But the question of the day is should IGRA be 

amended. Quite frankly, in my opinion, all legislation needs to be 

amended. There isn’t any perfect legislation out there. There never 

was and never will be. 

We come to you regularly talking about legislation that needs to 

be improved. The Health Care Improvement Act, you know of all 

the different provisions that we have talked about in that Act 

alone. The SDA, the Self–Determination Act, we improved with the 

self-governance legislation. And these pieces of legislation all are 

about empowering the tribes to exercise our sovereignty, our governmental authority, our jurisdiction as tribal governments so that 

we can control our destiny, as you and the Senator have advocated. 

So with regard to gaming, the jury is already in with regard to 

its success. It is successful and you know it. You know it is true 

all across Indian Country. Are there blemishes and are there issues 

out there? Yes, there are issues out there, and you can say that everywhere. You can say that with regard to the gaming industry in 

Nevada. You can say it in New Jersey or Louisiana. You can say 

it everywhere. 

So gaming has its challenges like any other industry. Is it being 

well regulated? The answer to that is yes. I think that it is a credit 

to our tribal governments. It is a credit to you in Congress who 

have empowered the tribes and have elevated our governmental capacity to be able to administer our responsibilities and regulate 

these affairs. We all care about the integrity of the gaming industry on our reservations, and we all care about it because no one is 

more beat on by the public or the general perception than Indian 

Country. Nobody is beat up by the general public and media more 

than we are. 

And so we have a great interest in this legislation, in the integrity of our gaming, and our right to be able to advance its agenda. 

Nothing Congress or the State or anyone has ever done has made 

a difference in our community like gaming. So we want to protect 

our rights. 

55

But we also want to be treated fairly, and we want to be treated 

fairly with respect to our ability to engage in regulatory oversight 

over the game. We are the primary regulators and we have done 

an absolutely fabulous job. Chairman Hogen has pointed out the 

hundreds of millions of dollars we spend on regulation at all levels. 

So we are doing our job. The compacts that we are negotiating, 

not all compacts address this thing, but the majority of the compacts are addressing exactly what IGRA envisions. IGRA intended 

that the States would have a role. It was recognizing the sovereignty of the State and their responsibility with regard to their 

relationship with the tribes as it applies to this industry. So it envisioned this relationship and it envisioned that it would be addressing those internal controls. My testimony talks about how it 

is successful out in Washington State, and I know it is successful 

elsewhere as well. 

So the bottom line is as we approach legislation, the issue is 

what should be corrected. How much power should NIGC have? We 

do not want to empower them with the provision that basically 

says that the tribes and the States have to come to this agency and 

say ‘‘mother may I.’’ We do not want that kind of legislation, because they could go awry. We have examples where, quite frankly, 

we believe that they have misused their authority. 

So the issue is what is their role. We have to be very careful 

when we design legislation that amends a regulatory oversight’s 

authority and what that role should be so that it is not unnecessarily burden our industry. That is just reasonable. I think that 

with regard to this matter, are we doing the same thing to Nevada? 

Are we doing the same thing to New Jersey? No, we are not. I can 

tell you that we would need a bigger room if they were at the table 

with the same matter. 

But the issue here, Senator, is what are we going to do about it. 

I think that your draft legislation poses some questions. I would remind you that Senator Inouye had proposed a couple of amendments in the last session with the same issue that was being raised 

with regard to the Seminole case, which has to be fixed so the 

States don’t have the right to not in good faith negotiate with the 

tribes, so that they can exercise their rights. So that issue is out 

there to be corrected. 

What are the conditions? You have a number of conditions that 

you have identified in some sections in your proposed bill that need 

to be thoroughly discussed in terms of how would it really act, how 

would it really function in the field at the tribes and/or the States 

interface with this agency with respect to the quality and the integrity of these internal controls. 

So the bottom line here is are we supportive of amendments to 

the Act? Yes, but we have to be very careful. I will close with, it 

is not just being careful about the empowerment of NIGC; it is also 

being careful about all those other mischievous pieces of legislation 

that want to be attached to these proposed legislative amendments 

to put more tentacles around Indian Country, to continue to badger 

us with a historical paternalism that we have been experiencing. 

We can’t go down that road. 

Thank you, Senator. 

[The prepared statement of Mr. Allen follows:]

56

PREPARED STATEMENT OF W. RON ALLEN, CHAIRMAN, WASHINGTON INDIAN GAMING

ASSOCIATION AND CHAIRMAN, JAMESTOWN S’KLALLAM TRIBE

Senator Dorgan, Members of the Committee, my name is Ron Allen and I am 

Chairman of the Jamestown S’Klallam Tribe of Sequim, Washington and Chairman 

of the Washington Indian Gaming Association, an organization of 25 federally recognized tribes who have entered into gaming compacts with the State of Washington 

and one tribe currently in negotiations. I also serve on the Board of the National 

Congress of American Indians. I am here today, on very short notice, to discuss a 

discussion draft of amendments to the Indian Gaming Regulatory Act. 

When the original IGRA legislation was being considered by Congress, Indian 

tribes fought very hard to preserve, to the greatest extent possible, our sovereign 

right of self-government and our right to regulate our own affairs. State governments fought very hard to include a regulatory role for themselves over gaming in 

Indian Country within their borders. The resulting Act was a compromise which established a regulatory framework between Tribal, State, and Federal governments. 

IGRA clearly delineated Class II gaming regulation as a matter for Tribal gaming 

agencies and the National Indian Gaming Commission and reserved Class III gaming regulation as a matter for Tribal-State gaming compacts. 

Nonetheless, we are here today because the D.C. Court of Appeals addressed 

something that states attorneys general and tribes thought they already knew—

whether or not the Indian Gaming Regulatory Act gave the National Indian Gaming 

Commission authority to promulgate regulations establishing mandatory operating 

procedures for Class III gaming in tribal casinos. The court said it did not. We 

agree. 

We do not disagree with NIGC over the importance of gaming control standards 

or regulations. We simply agree with the court—that Congress intended that the 

state-tribal compact process would govern the operation of Class III gaming and 

that is how the Indian Gaming Regulatory Act (IGRA) was constructed. Every gaming compact for a tribal casino in Washington requires minimum internal control 

standards which are negotiated between each Tribal gaming agency and the Washington State Gambling Commission. I have attached two exhibits to my testimony 

from the compacts which list the subject areas for operational standards for table 

games and the tribal lottery system (electronic games).1,2 These cover all of the 

areas that NIGC is concerned about—accounting, audits, cash handling, security, 

surveillance, game standards, and player relations. These are just the Table of Contents—the actual documents are huge, and written specifically for each gaming facility. 

In addition, each tribal gaming operation is subject to an annual audit by an independent certified public accountant, in accordance with the auditing and accounting 

standards for audits of casinos of the American Institute of Certified Public Accountants. 

The bill under consideration today, ‘‘Indian Gaming Regulatory Act Amendments 

of 2007,’’ would create a confusing, unnecessary, and ultimately conflicting construction of regulations between three government jurisdictions—Tribal, State, and Federal. 

And it is completely unnecessary. NIGC has substantial existing authority: IGRA 

authorizes the NIGC to review and approve tribal gaming regulatory laws, review 

tribal background checks and gaming licenses, receive independent annual audits of 

tribal gaming facilities, approve management contracts, and work with tribal gaming regulatory agencies to promote tribal implementation of tribal gaming regulatory ordinances. 

In Colorado River Indian Tribes v. NIGC, which has inspired this bill, the court 

held that IGRA does not authorize the NIGC to promulgate or enforce Minimum Internal Control Standards (MICS) over Class III Indian gaming. NIGC apparently 

believes that a national standard is necessary for every aspect of Indian gaming. 

Senator Dorgan, let me give you an example of NIGC’s MICS cited by the court:

‘‘The regulations take up more than eighty pages in the Code of Federal Regulations. No operational detail is overlooked. The rules establish standards for individual games, see, e.g., 25 C.F.R. § 542.7, .8, .10, customer credit, id. § 542.15, 

information technology, id. § 542.16, complimentary services, id. § 542.17, and 

many other aspects of gaming. To illustrate, tribes must establish ‘‘a reasonable 

time period’’ not to exceed 7 days for removing playing cards from play, but ‘‘if 

a gaming operation uses plastic cards (not plastic-coated cards), the cards may 

be used for up to three (3) months if the plastic cards are routinely inspected, 

and washed or cleaned in a manner and timeframe approved by the Tribal gaming regulatory authority.’’ Id. § 542.9(d), (e).

57

We know that cleaning or replacing playing cards in order to prevent players from 

‘‘marking’’ cards and thereby cheating is an important operating procedure, but is 

a national standard really necessary to address this? Why has NIGC established 7 

days to replace cards? What if the tribal gaming agency and the state gaming agency said 10 days? We would be out of compliance. Why aren’t we considering standards for all the commercial casinos as well? Wouldn’t the Nevada Gaming Commission benefit from similar Federal oversight that this bill would place on the Washington State Gambling Commission and every tribal gaming commission in the 

state? Or would it be more reasonable to implement internal controls in a TribalState co-regulatory process that IGRA created? We think it would. 

All of the operational areas that NIGC is concerned about are addressed in the 

internal control standards developed jointly between the Washington Tribal gaming 

agencies and the Washington State Gambling Commission. They are specific to the 

games and the gaming facilities. They are updated for changes in technology or new 

game play features, in a process that is continuous and ongoing. In fact, new internal controls are being written by our regulators as we discuss this, to accommodate 

new game features of the compact amendments for 27 tribes which were approved 

by the Department of Interior on May 30, 2007. 

I would like to include for the record copies of letters written by the Chairman 

of Washington State Gambling Commission, Curtis Ludwig, and Washington Governor Christine Gregoire addressing this same issue (MICS), but in the context of 

S. 2078 introduced by Senator McCain last year3,4,5 (attached). 

Governor Gregoire (who is also a former three-term state attorney general) states 

in her March 28, 2006 letter to Sen. McCain,

‘‘[a]n additional level of enforcement will negatively impact our state’s longstanding relationship with the tribes regarding Class III gaming, without providing any substantial benefit, and will interfere in our state’s authority to regulate gambling activity.’’

Washington Gambling Commission Chairman Curtis Ludwig writes on January 

13, 2006:

‘‘Pursuant to the compacts with Washington Tribes, Commission staff has been 

involved with Class III gaming regulation for more than 13 years. Our Tribal 

Gaming Unit has 19 agents, whose work is solely devoted to tribal gaming, and 

an Electronic Gambling Lab that tests and approves all Class III electronic 

games offered in tribal casinos.

The Commission believes that an additional layer of regulation is unnecessary 

for Washington’s Tribal casinos. Although the MICS provide a starting point for 

internal controls and should be available as a resource for states and Tribes, 

they are not specific to Washington gaming. Moreover, they do not provide regulations for some critical gaming activities, such as our State’s electronic Tribal 

Lottery System, which we regulate according to a detailed, 46-page appendix to 

each compact.’’

Senator Dorgan, the Washington State Gambling Commission says that the national standards in NIGC’s MICS are not specific to Washington gaming and do not 

cover some critical gaming activities. However, the internal controls established by 

the Tribal gaming Agencies and the State gaming agency are specific and address 

all gaming activities. 

And yes, Senator, I do understand that the draft language of this bill includes an 

‘‘opt-out’’ clause giving NIGC the option of excusing from NIGC regulation, a tribe 

with a tribal-state compact which includes minimum standards that meets the 

standards established by NIGC. So, if you follow that circular reasoning, NIGC still 

sets the standards, regardless of the standards that the tribal and state regulators 

establish in the compacts. The only language that tribes would support is if the option to ‘‘opt-out’’ would be a decision of the tribe, not NIGC. As I said before, we 

believe that internal controls should be specific to games, technology, and facilities, 

and that can best be done by tribal and state regulators working together. 

Finally, we have not seen any record established that shows that Indian tribes 

are incapable of regulating their own affairs. We have seen no record established 

that there is a crisis or scandal in Indian gaming operations. The amendments in 

this discussion draft are unnecessary. Thank you. 

Attachments 

1. Standards of Operation and Management for Class III Activities.

2. Rules Governing Tribal Lottery Systems.

3. Letter from Governor Gregoire to Sen. John McCain, March 28, 2006.

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4. Letter to Governor Gregoire from Gambling Commission Chairman Curtis 

Ludwig, January 13, 2006.

5. Chart of Gaming Jurisdiction Subject areas by Washington State Gambling 

Commission, April 2006.

Appendix A—Confederated Tribes of The Chehalis Reservation (State of Washington)—

Standards of Operation and Management for Class III Gaming 

Section Subject Matter Page 

1 Definitions A–1 

2 Accounting Records A–3 

3 System of Internal Control A–3 

4 Forms, Records, Documents and Retention A–4 

5 Annual Audit and Other Reports A–5 

6 Cosed Circuit Television System A–6 

7 Organization of the Tribal Operation A–7 

8 Personnel Assigned to the Operation and Conduct 

of Class III Gaming Activities 

A–10 

9 Cashier’s Cage A–11 

10 Accounting Control Within the Cashier’s Cage A–12 

11 Drop Boxes A–13

12 Drop Boxes, Transportation To and From Gaming 

Stations and Storage in the Count Room 

A–14 

13 Procedure For Exchange of Checks Submitted by 

Gaming Patrons 

A–14 

14 Procedure For Depositing Checks Received From 

Gaming Patrons 

A–16 

15 Procedure For Collecting and Recording Checks 

Returned to the Gaming Operation After Deposit 

A–16 

16 Procedure For Accepting Cash at Gaming Stations A–17 

17 Acceptance of Gratuities From Patrons A–17

18 Adoption of Rules For Class III Activities A–18

19 Station Inventories and Procedure For Opening 

Stations For Gaming 

A–20

20 Procedure For Distributing Gaming Chips and 

Coins to Gaming Stations 

A–21

21 Procedure For Removing Gaming Chips and Coins 

From Gaming Stations 

A–24

22 A. Procedure For Shift Changes at Gaming Stations A–26

B. Procedure For Closing Gaming Stations A–27

23 Count Room: Characteristics A–29

24 Procedure For Counting and Recording Contents of 

Drop Boxes 

A–30

25 Signatures A–33

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STATE OF WASHINGTON OFFICE OF THE GOVERNOR

Olympia, WA, March 28, 2006

Hon. JOHN MCCAIN, 

Chairman, 

Senate Committee on Indian Affairs, 

Washington, DC.

Dear Senator McCain:

I am writing to share my concerns and those of the Washington State Gambling 

Commission (WSGC) about action the Senate Indian Affairs Committee will soon 

take on S. 2078 regarding the Indian Gaming Regulatory Act (IGRA). 

A critical component of IGRA is the local control that it provides for negotiating 

state-tribal gaming compacts, particularly in relation to Class III gaming. Washington has entered into gaming compacts with 27 of our state’s 29 federally recognized tribes. Each compact has been negotiated in a government-to-government 

manner, taking into account the unique circumstances present in Washington and 

in the local communities where tribal casinos will be located. 

The WSGC has successfully regulated Class III gaming, in cooperation with the 

local tribes, for more than 13 years. The WSGC has a specific Tribal Gaming Unit 

composed of 19 agents, whose work is solely devoted to tribal gaming regulation. 

This unit has developed an expertise in the regulation of Class III gaming within 

Washington and works closely with each tribal gaming authority. In addition, the 

WSGC operates a state-of-the-art Electronic Gambling Lab, which tests and approves every Class III electronic game offered in a Washington tribal casino. 

Increasing the National Indian Gaming Commission (NIGC) authority to regulate 

Class III gaming infringes upon local control and is unnecessary, considering Washington’s strong regulatory controls. The NIGC internal controls are not specific to 

Washington gaming and do not provide regulations for some critical gaming activities in our state. For example, our electronic Tribal Lottery System, which we regulate according to a detailed, 46-page appendix to each compact, would not be regulated under NIGC controls. An additional level of enforcement will negatively impact our state’s long-standing relationship with the tribes regarding Class III gaming, without providing any substantial benefit, and will interfere in our state’s authority to regulate gambling activity. 

I hope you will reconsider expanding the authority of the NIGC over Class III 

gaming in Washington. Our state is proud of its tribal gaming regulatory program 

and believes local control over Class III gaming is in its best interest, having proven 

successful for the past l3 years. 

Again, thank you for your consideration of this matter. 

Sincerely, 

CHRISTINE O. GREGOIRE, 

Governor.

cc: Senator Patty Murray, Washington State; Senator Maria Cantwell, Washington State; and Senator Byron Dorgan, Vice Chair, Committee on Indian Affairs. 


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STATE OF WASHINGTON GAMBLING COMMISSION

January 13, 2006

Hon. CHRISTINE GREGOIRE, Washington State Governor, 

Olympia, WA.

Dear Governor Gregoire:

We are writing to seek your assistance in expressing our concerns regarding two 

current legislative efforts in Congress which would subject Washington Tribes to an 

increase in fees paid to the National Indian Gaming Commission (NIGC), and would 

authorize an unnecessary expansion in the regulatory authority of the NIGC. We 

respectfully request your assistance in contacting Washington’s Congressional delegation and lobbyist regarding these problems. 

First, Senate Bill 1295, which was passed by the U.S. Senate on December 12, 

2005, contains a provision that would authorize the NIGC to impose a fee on each 

compacted gaming Tribe not to exceed 0.080 percent of the gross gaming revenues 

for all tribal gaming operations. Washington Tribes could pay close to $1 million in 

additional Federal regulatory fees each year under this proposal. 

Under its compacts with Washington’s Tribes, regulatory enforcement in Tribal 

casinos is accomplished through a partnership between the Tribes and the Washington State Gambling Commission (‘‘Commission’’). Each Tribe is required to have 

its own Tribal Gaming Agency (TGA), independent from the Tribe, which provides 

on-site regulation for casino operations. Under the compacts, the Tribes reimburse 

the Commission for the costs that the Commission incurs in its regulatory work 

with the Tribes. The Commission incurred over $1.4 million for state costs to regulate Class III gaming for the l2-month period between October 2004 and September 

2005. These costs were billed to the Washington Tribes. These fees do not include 

amounts paid by the Tribes for their own on-site regulatory programs. 

Second, the Commission is even more concerned about the NIGC’s request to 

‘‘clarify its authority’’ over Class III gaming activity. During a hearing before the 

Senate Committee on Indian Affairs, the NIGC Chairman testified that his Commission had submitted a draft bill to Congress to ‘‘clarify the NIGC’s authority to regulate Class III gaming generally, and to promulgate and enforce its MICS (Minimum 

Internal Control Standards) regulations for Class III gaming specifically.’’

This request was in response to the decision by the U.S. District Court in Washington D.C., where the court held that the NIGC’s MICS for Class III gaming exceeded the agency’s statutory authority. Colorado River Indian Tribes v. National 

Indian Gaming Commission, (2005 WL 2035946). The court recognized that, under 

the Indian Gaming Regulatory Act, Class III gambling is subject to regulation by 

Tribes and states pursuant to the provisions of compacts between the Tribes and 

states. The NIGC has extensive regulatory authority over Class II gaming, but none 

over Class III gaming. 

Pursuant to the compacts with Washington Tribes, Commission staff has been involved with Class III gaming regulation for more than thirteen years. Our Tribal 

Gaming Unit has 19 agents, whose work is solely devoted to tribal gaming, and an 

Electronic Gambling Lab that tests and approves all Class III electronic games offered in tribal casinos. 

The Commission believes that an additional layer of regulation is unnecessary for 

Washington’s Tribal casinos. Although the MICS provide a starting point for internal controls and should be available as a resource for states and Tribes, they are 

not specific to Washington gaming. Moreover, they do not provide regulations for 

some critical gaming activities, such as our State’s electronic Tribal Lottery System, 

which we regulate according to a detailed, 46-page appendix to each compact. 

Because of the strong regulatory structure in our gaming compacts, the Commission believes that fee increases and an additional level of internal control enforcement will negatively impact the Tribal-State relationship without providing any 

substantial benefit. If these proposals are passed in either pending or future legislation, the Commission would strongly urge that states like Washington that have effective Tribal-State regulatory programs be exempted from such requirements. We 

respectfully request your assistance in contacting Washington’s Congressional delegation and lobbyist regarding these concerns. 

Sincerely, 

CURTIS LUDWIG, 

Commission Chair.

cc: Senator John McCain, United States Congress—Arizona; Senator Maria 

Cantwell, United States Congress—Washington State; Senator Patty Murray, 

United States Congress—Washington State; Representative Jay Inslee, United 

64

States Congress—1st Congressional District; Representative Rick Larsen, 

United States Congress—2nd Congressional District; Representative Brian 

Baird, United States Congress—3rd Congressional District; Representative Doc 

Hastings, United States Congress—4th Congressional District; Representative 

Cathy McMorris, United States Congress—5th Congressional District; Representative Norm Dicks, United States Congress—6th Congressional District; 

Representative Jim McDermott, United States Congress—7th Congressional 

District; Representative Dave Reichert, United States Congress—8th Congressional District; Philip Hogen, Chairman—National Indian Gaming Commission; 

Randy Sitton, Regional Director—Region 1—National Indian Gaming Commission; and John Lane, Governor’s Executive Policy Office—Washington State 

Gambling Commission. 

The CHAIRMAN. Mr. Allen, thank you very much for being with 

us, and your testimony today. 


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Next, we will call on the Honorable Valerie Welsh-Tahbo, I hope 

I have pronounced that correctly, who is a Council Member of the 

Colorado River Indian Tribes Tribal Council in Parker, Arizona. 

You may proceed. 

STATEMENT OF VALERIE WELSH–TAHBO, COUNCIL MEMBER, 

COLORADO RIVER INDIAN TRIBES TRIBAL COUNCIL 

Ms. WELSH-TAHBO. Thank you, Senator. Good morning, Mr. 

Chairman and Members of the Committee. Thank you for providing 

the Colorado River Indian Tribes with the opportunity to testify 

this morning. My name is Valerie Welsh-Tahbo. I am of the Chiricahua-Apache Tribes, as well as the Mojave Tribe, which is the indigenous nation of the Colorado River Indian Reservation. I am 

currently the tribal Secretary. 

At the outset, I wish to express our gratitude for your willingness 

to work with the tribes in exploring a possible amendment of 

IGRA. We understand that the Federal court’s decision in our litigation against the National Indian Gaming Commission have rightly or wrongly fed the perception that there is a need for increased 

Federal regulation of Class III gaming. 

Before directly addressing that question, I would like to very 

briefly describe that litigation before I do that. From time to time, 

deficiencies are identified. CRIT wants to address comments previously made by Chairman Hogen regarding the length of time 

taken to address these deficiencies. We want to assure the Committee that each of these deficiencies were addressed as expeditiously and thoroughly as possible. 

The background of CRIT v. NIGC, as we have repeatedly 

stressed, CRIT did not seek out its challenge to the NIGC’s regulatory authority. Like every other tribe in the Country, we questioned the commission’s statutory authority to mandate Class III 

minimum internal control standards. When the NIGC began an 

audit of our compliance with its MICS in January of 2001, we attempted to discuss with the audit team the statutory basis for its 

audit. Tempers flared. The audit team left with its audit unfinished 

and the NIGC issued a notice of violation and assessed a $10,000 

fine against the tribes. 

At that point, we had no choice but to defend ourselves. Our defense was a simple legal position that we shared with most other 

tribes: The commission did not have the authority under the Indian 

Gaming Regulatory Act to mandate Class III MICS. The Federal 

District Court agreed with our position and the Court of Appeals 

of the District of Columbia circuit affirmed that decision last fall. 

As a result of those court decisions, some members of this Committee and others have expressed concern that their now exists a 

regulatory void, requiring the grant of increased powers of NIGC 

to regulate Class III gaming. Certainly in our case there is no regulatory void. CRIT’s gaming activity is vigorously regulated by both 

the tribe under tribal law and by the State of Arizona through the 

mechanisms of the tribal-state compact required by IGRA. 

The draft bill, in considering legislation to address the CRIT decision, it is important to bring the discussion back to the limited 

subject of what our litigation involved and what the courts actually 

held. We did not claim that the courts did not hold that the NIGC 

66

has no regulatory authority over Class III gaming. They held only 

that the NIGC lacked the authority to impose mandatory minimal 

internal control standards on Class III gaming. Those standards 

regulate the details of how Class III games are conducted for the 

sole purpose of ensuring that gaming revenues are properly tracked 

and accounted for. 

The fix for the CRIT ruling, if needed at all, is quite narrow. Expressly authorize the commission to adopt and require such standards, subject to an opt-out provision for tribes whose tribal law and 

compacts are sufficiently rigorous. The draft bill we address today 

goes far beyond that limited need. Indeed, it would authorize the 

regulatory committee and the NIGC to develop minimum standards 

for the regulation of Class III gaming. This scope of regulation goes 

far beyond minimum internal control standards and would confer 

Class III regulatory authority that not even the NIGC has previously claimed or sought. 

The draft bill’s grant of authority for the regulation of Class III 

gaming encompasses every aspect of the tribe’s Class III gaming 

operation. It would give the NIGC the broad authority to adopt 

whatever regulation it wished, subject only to a requirement that 

it be rationally related to the purpose of IGRA. The elephant gun 

of total regulation is disproportionate to the perceived flea of control standards. It would also eliminate, for all practical purposes 

the regulatory role of the tribes and the compacting role of the 

States. 

It is unnecessary, overbreadth, and the draft bill also incorporates one of the most troubling aspects of Senate 2078 considered 

by this Committee during last session. The mere addition of the 

words of ‘‘Class III gaming’’ to subsections 2706(b)(1)(2) and (4) effectively guts the tripartite scheme of the statute as originally conceived by giving NIGC equal or preemptively superior regulatory 

authority over the tribes and the States. This seemingly straightforward amendment would set up the likelihood of inconsistent regulations and render much of the compacting process meaningless. 

We would propose instead an amendment limited to the issues 

of minimum internal controls incorporated through the existing ordinance approval process. We submitted proposed language to the 

Committee last year and would be happy to provide it again. We 

did also submit as part of our testimony recommendations to the 

draft bill. 

We would like to close on a positive note. We are pleased that 

the draft bill recognizes that many compacts impose rigorous tribal 

regulations and State oversight that does not need an additionally 

expensive layer of Federal activity. If the opt-out process contemplated by the draft bill is ultimately adopted, we hope to participate actively in formulating a procedure that fully respects the 

experience and wisdom developed by the tribes and the States and 

avoids needless intergovernmental conflict. 

I thank you again for giving CRIT the opportunity to offer its 

views on the important issue. We look forward to working closely 

with the Committee to develop a bill that satisfactorily addresses 

the issue on internal controls, without destroying the delicate intergovernmental balance that has largely worked extraordinarily well 

for nearly 20 years. 

67

Thank you, Senator. 

[The prepared statement of Ms. Welsh-Tahbo follows:]

PREPARED STATEMENT OF VALERIE WELSH-TAHBO, COUNCIL MEMBER, COLORADO

RIVER INDIAN TRIBES TRIBAL COUNCIL

Good Morning Mr. Chairman and Members of the Committee. Thank you for providing the Colorado River Indian Tribes with the opportunity to testify this morning. My name is Valerie Welsh-Tahbo, and I am a member of the Tribal Council 

of the Colorado River Indian Tribes (CRIT). 

At the outset, I wish to express our gratitude for your willingness to work with 

the tribes in exploring the possible amendment of IGRA. We understand that the 

Federal courts’ decisions in our litigation against the National Indian Gaming Commission have, rightly or wrongly, fed the perception that there is a need for increased Federal regulation of Class III gaming. Before directly addressing that question, I’d like very briefly to describe that litigation for those members new to this 

Committee. 

Background of the CRIT v. NIGC Litigation 

As we have repeatedly stressed, CRIT did not seek out its challenge to the NIGC’s 

regulatory authority. Like every other tribe in the country, we questioned the Commission’s statutory authority to mandate Class III Minimum Internal Control 

Standards (MICS). When the NlGC began an audit of our compliance with its MICS 

in January of 2001, we attempted to discuss with the audit team the statutory basis 

for its audit. Tempers flared, the audit team left with its audit unfinished, and the 

NIGC issued a notice of violation and assessed a $lO,OOO fine against the tribe. 

At that point, we had no choice but to defend ourselves. Our defense was the simple 

legal position that we shared with most other tribes: the Commission did not have 

the authority under the Indian Gaming Regulatory Act to mandate Class III MICS. 

The Federal district court agreed with our position, and the Court of Appeals for 

the District of Columbia Circuit affirmed that decision last fall. 

As a result of those court decisions, some Members of this Committee and others 

have expressed concern that there now exists a regulatory void, requiring the grant 

of increased powers the NIGC to regulate Class III gaming. Certainly in our case, 

there is no regulatory void. CRIT’s gaming activity is vigorously regulated by both 

the Tribe under tribal law and by the State of Arizona through the mechanism of 

the tribal-state compact required by IGRA. 

The Draft Bill 

In considering legislation to address the CRIT decision, it is important to bring 

the discussion back to the limited subject of what our litigation involved and what 

the courts actually held. We did not claim, and the courts did not hold, that the 

NIGC has no regulatory authority over Class III gaming; they held only that the 

NIGC lacked the authority to impose mandatory minimal internal control standards

on Class III gaming. Those standards regulate the details of how Class III games 

are conducted for the sole purpose of ensuring that gaming revenues are properly 

tracked and accounted for. 

The ‘‘fix’’ for the CRlT ruling, if needed at all, is quite narrow: expressly authorize 

the Commission to adopt and require such standards, subject to an opt-out provision 

for the tribes whose tribal law and compacts are sufficiently rigorous. 

The Draft Bill we address today goes far beyond that limited need. Indeed, it 

would authorize the Regulatory Committee—and the NIGC—to develop ‘‘minimum 

standards for the regulation of Class III gaming.’’ This scope of regulation goes far 

beyond minimum internal control standards, and would confer Class III regulatory 

authority that not even the NIGC has previously claimed or sought. The Draft Bill’s 

grant of authority ‘‘for the regulation of Class III gaming’’ encompasses every aspect 

of a tribe’s Class III gaming operation. It would give the NIGC the broad authority 

to adopt whatever regulation it wished, subject only to a requirement that it be rationally related to the purposes of IGRA. The elephant gun of total regulation is disproportionate to the perceived flea—minimum internal control standards. It would 

also eliminate for all practical purposes the primary regulatory role of the tribes and 

the compacting role of the states. 

In its unnecessary overbreadth, the Draft Bill also incorporates one of the most 

troubling aspects of S. 2078, considered by this Committee during the last session. 

The ‘‘mere’’ addition of the words ‘‘and Class III gaming’’ to subsections 2706(b)(1), 

(2) and (4) effectively guts the tripartite scheme of the statute as originally conceived. By giving the NIGC equal (or preemptively superior) regulatory authority 

with the tribes and the states, a seemingly straightforward amendment would set 

68

up the likelihood of inconsistent regulations and render much of the compacting 

process meaningless. 

We would propose instead an amendment limited to the issue of minimum internal controls, incorporated through the existing ordinance approval process. We submitted proposed language to the Committee last year and would be happy to provide 

it again. 

Other Comments 

Bearing in mind that the Draft Bill is the opening point of the discussion, we have 

a number of additional comments. 

First: We believe that a minimum of 1 year’s experience in the regulation of Class 

III gaming is insufficient for service on the proposed Class III Regulatory Committee. We recommend that the minimum be at least 3 years. 

Second: We strongly recommend that the Bill require that at least two members 

of the Committee be Native Americans. 

Third: If constitutionally permissible, we propose that the Committee be comprised of five individuals, one individual being appointed by each of the Secretary, 

the Senate Majority Leader, the Senate Minority Leader, the Speaker of the House, 

and the House Minority Leader. 

Fourth: We recommend that the prohibition on Committee members being Commission employees be expanded, to prohibit Committee membership for anyone employed by the Commission within the immediately preceeding 12 months. 

Finally: We close on a positive note. We are pleased that the Draft Bill recognizes 

that many Compacts impose rigorous tribal regulation and state oversight that does 

not need an additional—and additionally expensive—layer of Federal activity. If the 

opt-out process contemplated by the Draft Bill is ultimately adopted, we hope to 

participate actively in formulating a procedure that fully respects the experience 

and wisdom developed by the tribes and states, and avoids needless intergovernmental conflicts. 

I thank you again for giving CRIT the opportunity to offer its views on this important issue. We look forward to working closely with the Committee to develop a Bill 

that satisfactorily addresses the issue of internal control standards without destroying the delicate intergovernmental balance that has largely worked extraordinarily 

well for nearly twenty years. 

I would be happy to answer any questions the Committee may have.

The CHAIRMAN. Ms. Tahbo, thank you very much for your testimony. 

I would like to ask if we could have Chairman Hogen come back 

to the witness table, and Mr. Shelton as well. Take a couple of 

chairs. I apologize that we are a little bit cramped there, but I appreciate very much all of you being willing to stay and be available 

for questions. 

Let me begin by stating that, this issue of regulation or the regulatory mechanism for gaming is a very important issue. We have 

a lot of experience, for example, with the development of a gaming 

industry in Las Vegas, Nevada, which kind of became the first and 

the largest. We have a lot of experience with this issue of what 

kind of regulation is needed with respect to Las Vegas, for example, when someone builds a major new facility with gaming. I assume they provide for their own regulatory capability inside the facility. 

And then in addition to that, there is a very stringent regulatory 

system by the State of Nevada, by a control board of some sort. So 

you have two different levels. If Mr. Wynn, for example, who is a 

very big builder there, he opens up a new facility with gaming, he 

I am sure, with his professional people, are creating their level of 

regulatory schematics inside the company, and then the State has 

a very certain regulatory capability. 

In my opening statement, I talked about the need to have regulatory oversight outside of the entity that owns the facility itself. 

69

The entity that owns the facility in almost all cases will have the 

best opportunity to create standards, but there needs to be another 

level. 

Now, Mr. Allen, first of all, do you agree with that, and second, 

if that is the case, the second level in most cases with respect to 

the compact would be State governments. Am I correct about that? 

Mr. ALLEN. Yes. The way you characterized it isn’t quite right. 

The owner, Mr. Wynn, or the tribe, will have their own internal 

controls and accountability and security measures, so the system 

will be structured to account for the management of our assets and 

the operation of the business. Then you are going to the regulatory 

oversight to assure you are compliant with all regulations and any 

agreements that the tribes have made with the State and then subsequently compliant with IGRA. 

So then our regulatory agency is insulated and it is independent. 

It is commissioned by the tribe as a government regulatory agency 

to do that. The States do the same thing. Nevada does the same 

thing. So that is how they are authorized in order to provide that 

regulatory oversight. Then the State, for us, oversees how well we 

have done that, and how well we have committed to the agreement 

that we have had with regard to the regulatory oversight of the operation. 

The CHAIRMAN. I want to understand that. Mr. Wynn doesn’t create his own oversight system. 

Mr. ALLEN. No, he doesn’t. 

The CHAIRMAN. It is the State of Nevada that then provides that 

oversight. 

Mr. ALLEN. That is correct. 

The CHAIRMAN. My question is this. With respect to the tribes 

that own the casinos themselves, they provide their own internal 

systems and then the States, according to the compact, would provide its oversight system. Is that correct? 

Mr. ALLEN. Well, it is two-fold. Imagine the business itself as one 

level. The regulatory oversight, as a government, because we are 

the government just like the State of Nevada, so we have our own 

regulatory agency that we established. 

The CHAIRMAN. But you are a government that owns the facility. 

Mr. ALLEN. Yes, that is true. But then so States who run lotteries provide the same oversight for their lotteries. It is the same. 

They are establishing independent regulatory oversight of their 

own gaming operation. They own the lottery, so it is the same with 

them. And no one questions their integrity, so that is our point. We 

think that we are doing a good job. 

Now, are they meeting the standards? The question of the day 

is are we meeting the standards to provide credibility and integrity 

with regard to the public interest. That is the question. We think 

that IGRA is requiring that. 

Now, I know Phil has raised issues about there are some areas 

where the compacts don’t address that, and the issue is what is the 

appropriate course of action to try to improve those areas where 

the compacts don’t address those internal controls. 

The CHAIRMAN. Mr. Shelton, in the State of California, describe 

to me the system in the State of California that now exists. 

70

Mr. SHELTON. At this time, the first compacts were issued in 

1999 to address and recognize IGRA and the role of NIGC as approving regulations that the tribes submit. California believes in 

the compacts. We have the authority to do the oversight, but at 

this time what we have done is financial audits for the special distribution fund that comes to the State and is distributed to different entities. 

Doing that, we do look at internal control standards around financial issues, but we have not gone further. The Division of Gambling Control, which comes under another constitutional officer, 

which is the Attorney General, has sworn personnel that do go out 

and do spot checks on minimum control standards, but not to the 

extent neither of us have done due to resources that NIGC has 

done. 

So we felt and believe strongly that they complement what we 

do. We don’t question the integrity of the tribes. As a matter of 

fact, the audits that we have performed have shown great operations, great integrity. But the Governor believes transparency is 

very necessary for the gaming public to have, and we need the 

oversight to do that and do the inspections to verify what is actually occurring. 

The CHAIRMAN. Mr. Hogen, respond to Mr. Allen’s point. Mr. Allen’s point is that you have lotteries out there that are run by the 

States. No one is overseeing that, or no one is coming back at a 

second level. Why should it exist with respect to tribal casinos? 

Mr. HOGEN. I think there are certainly some parallels that can 

be drawn, but I think there are more differences than there are 

similarities. That is, for the most part in tribal gaming, tribal gaming is if not the only, the principal source of funding. So the tribe 

in many cases is almost totally dependent on that revenue stream. 

So the significance of the dollars is different. 

I think it is also economies of scale, trying to compare the St. Augustine Rancheria and its membership and ability to regulate and 

manage and separate those, with the State of Texas and their 

State lottery, I think it is quite a stark contrast. The State lotteries 

are a little different in terms of the gaming that they operate. They 

don’t deal blackjack. They don’t run slot machines. They don’t do 

slot machines drops and so forth. 

So I think the principle is the same, but there are significant differences, enough differences that I think that it is very important 

and appropriate to have that independent oversight. 

The CHAIRMAN. Mr. Hogen, other testimony has indicated this 

morning that they feel you do retain some authority over Class III 

gaming. In your judgment, is that accurate? Tell me how you view 

that testimony. 

Mr. HOGEN. Yes, we absolutely have and continue to have after 

the CRIT decision authority to do a number of things. Most of 

those, however, deal with the actual operation of the gambling activity. We look at the use of gaming revenues; the adoption of the 

tribal gaming ordinance. We continue to get audits reflecting the 

report on an annual basis. 

But in terms of that tool that we had, the minimum internal control standards, that dealt with where the surveillance cameras are, 

what the resolution has to be, how you protect the playing cards 

71

and things like that, we have been kind of ejected from that arena. 

And that is really important with respect to the integrity of the 

gaming. I think Nevada learned first the hard way that you have 

really got to have those rules and that control. 

The CHAIRMAN. Myra Pearson, in your testimony you described 

the opposition of the Great Plains organization. How many tribes 

exist in that organization? 

Ms. PEARSON. Twenty-eight. 

The CHAIRMAN. I think you made the point, and I would echo the 

point that all of you have made, this hearing isn’t held for the purpose of describing some significant national problem that exists in 

Indian gaming. That is not the case and people should understand 

that. 

The question is, with respect to the CRIT decision, has that decision impacted the oversight or the regulatory capability with respect to Indian gaming in a manner that should suggest this Committee adopt some modifications or some legislative changes. That 

is the purpose of this inquiry. I appreciate the comments, and I will 

have a couple of additional questions, but let me call on the Vice 

Chair, Senator Murkowski. 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

Mr. Hogen, I want to go back to you. We have heard here this 

morning, and certainly previously, that this CRIT fix is not necessary because the compacts include within their provisions, provisions or standards that are similar to these minimum controls or 

these MICS standards. In your judgment, are the States in any 

way hindered from enforcing the internal control standards of their 

compacts? 

Mr. HOGEN. I don’t believe that there is a legal hindrance there. 

I think there is, for a multitude of reasons, a lack of inclination in 

many cases to be very involved or very effective. In some cases, the 

language of the compact just doesn’t provide for that. In other 

cases, while the language may address it, it is permissive. And second, the States have not really devoted much resources to do that. 

Senator MURKOWSKI. So it would vary from State to State, depending on the priority or the compact. Is that your suggestion? 

Mr. HOGEN. Absolutely. There is a huge variety there. We have 

compacts in 22 States and none of them are identical. Some have 

some similarities. Some in fact adopt the NIGC minimum internal 

control standards, but one size certainly does not fit all. 

Senator MURKOWSKI. Let me ask a question, and I perhaps suggested this in my opening remarks. With the language that we 

have before us in this bill, there is some concern that perhaps the 

NIGC could gain additional authority to regulate the Class III establishments over and above the compliance with the MICS. Is that 

your understanding? Is that what the NIGC is seeking, that broader or more expansive authority? 

Mr. HOGEN. When I last testified about this subject, I think the 

language I used was ‘‘let me be crystal clear.’’ We are not trying 

to expand our authority at all. We just want to keep doing what 

we at that time were doing, drafting, requiring compliance with 

minimum internal control standards and having the ability to go 

out there and audit to see if there was compliance, and when there 

72

wasn’t compliance, to try and help tribes fix it, or if necessary to 

take enforcement action. 

Senator MURKOWSKI. As you have done that in these audits, 

have you surveyed the States that have entered into Class III compacts to determine whether or not they would welcome a mandate 

that would allow these Class III establishments to comply with or 

to follow the MIC standards? Has that type of a survey of the 

States been done? 

Mr. HOGEN. I don’t know that we have had a specific discussion 

with each and every of those 22 States, but for example, Mr. 

Shelton’s agency, we often discuss this sort of thing and we have 

in many places. I just returned from the North American Gaming 

Regulators Association that had their annual meeting in Kansas 

City. There, we meet with the State regulatory agencies. We have 

a good open relationship with those agencies, and I think for the 

most part they are supportive. 

Certainly, nobody wants to give up their turf, so to speak, but 

when we go out and do our audits, we literally never run into or 

stumble across or duplicate what States are doing. Where States 

address those kinds of issues, we do it less often. One of the requirements in our minimum internal control standards is when the 

tribes do their annual audit, they have to follow the auditors, the 

independent outside auditors, follow agreed upon procedures. They 

have to look, is the tribe in compliance with NIGC’s minimum internal control standards. They give that report to the tribe. They 

give it to us. That is how we focus on those places that we go to 

do the audits, and literally, we have never been there while the 

State was doing the same thing, and I don’t know any States that 

do exactly what we do when we do the minimum internal control 

standards audits. 

We have never closed a facility for their failure to comply with 

the MICS. When we found shortcomings, we have said, let us help 

you fix it, and for the most part, that has worked. 

Senator MURKOWSKI. Well, let me ask you, Mr. Shelton, it is not 

very often that we get somebody coming from the State actually 

asking or urging us to step in and regulate in areas that the court 

has determined that the Federal Government should perhaps stay 

out of. So it is kind of unusual to have you coming in and I appreciate the perspective that you have shared with California. But can 

you tell me what the difference is here, and perhaps answer my 

question? To the best that you know, are there other States that 

are in the same situation as California, where you are suggesting 

that the Federal Government should have an increased role there? 

Mr. SHELTON. I wouldn’t be presumptuous to speak for the other 

States, but I came to Kansas City with Mr. Hogen at the same 

time, and several States and Canada were represented. NIGC received a wonderful welcome there in their reaction. 

California has grown so immensely in gaming, from $1 billion 

and some in 2001, to 2006 over $7 billion. We had not geared up 

to do what we should be doing. The tribes have been very open. 

They are great to work with and we have great communications, 

but the Governor sees NIGC filling a void at this time, and it is 

very necessary. They have been just recently in our State and did 

73

an audit. I don’t know of any ramifications from that audit that 

would be negative. 

Most of the tribes I talk to, and I believe to the major tribes in 

California, I have a good rapport with, and they told me that we 

don’t know which one we want in. We enjoy NIGC coming in. We 

haven’t experienced in the State of California a full MICS inspection at this time. What we fear is both of you coming in at the 

same time. 

We understand that. Chairman Hogen and I have discussed that. 

As long as we at the point California is at, we would coordinate our 

activities. That is not what any of us want to do. The Governor 

would not want that. He would not allow that. He doesn’t want the 

heavy-handedness. His respect for sovereignty is too great. So I believe it is a good marriage that works out. 

Senator MURKOWSKI. Let me ask you, probably Mr. Allen, you 

had mentioned in your comments the need for just the openness 

and the integrity, or an acknowledgment that in your opinion these 

are attributes that we are staying with, in the content of the gaming that is going on. We have not heard anything to dispute that. 

In fact, I understand that there are some polls out there that have 

been conducted for the National Indian Gaming Association that 

say Indian gaming has an approval rating between 61 percent and 

75 percent, depending on the question asked. 

We would only dream of those kinds of approval ratings here in 

the Congress. 

[Laughter.] 

Senator MURKOWSKI. We recognize that whether you are the 

Congress or whether a business enterprise, everybody stands before 

that court of public opinion. And where we recognize that sometimes that public opinion is a fragile base, how important is it that 

the Indian gaming industry adhere to a uniform national and kind 

of best practices set of standards for the internal control, to maintain this integrity that you currently have? 

Mr. ALLEN. Well, it is important that there is a set of standards 

that the general public and the policymakers know that the tribes 

are adhering to, without a doubt. Many of us believe that NIGC 

has sufficient authority right now in terms of its oversight. They 

have to approve our tribal regulations with our gaming agencies. 

So they review them, so they know exactly what that is. 

This whole process is a dynamic process in terms of our regulatory independent agencies with regard to that regulatory oversight. The issue before us is should NIGC approve the standard internal controls that would be adhered to with the tribes and/or the 

States with respect to that matter. The question is, how that would 

be imposed. 

The dialogue and debate is about is it an additional layer. That 

is our concern, that the way it is being structured right now, and 

what we are advocating with the Chair, is be careful here because 

you could be adding a layer, even though it appears like it is not 

a layer. 

So the question is, if NIGC is given this authority and it says 

that it has to have these internal control standards for Class III 

activities, then now the issue is are they going to now being engaged in our negotiations with our compacts, so that those requireVerDate 0ct 09 2002 12:33 Sep 25, 2007 Jkt 037531 PO 00000 Frm 00077 Fmt 6633 Sfmt 6601 S:\DOCS\37531.TXT JACKF PsN: JACK
74

ments are now in our compacts? So now it is no longer a State-tribal relationship as authorized by IGRA. Now, there is an NIGC role 

in that forum. You have this triangular negotiation about what is 

acceptable and not acceptable. It can be a little bit presumptuous. 

Now, we are growing. Here is the fact. We are 20 years old now 

in this industry. We have been growing together at the same time. 

It is not about one entity or one agency has greater superiority 

than the other. We have been growing. The only one who has 

greater superiority or experience is Nevada and New Jersey, et 

cetera. But the rest of us have grown and have the same kind of 

expertise as anyone else. 

So the question is, if the Act is amended, how is it structured so 

that it is not paternalistic toward the tribe, and is respectful of the 

tribal governments, as we impose these conditions? And make sure 

you know exactly what is going on out there, because the integrity 

of oversight, as we have all testified, is at a very high level. There 

are no problems, as the Chairman has pointed out. There aren’t 

very many problems out there. There is this concern that Phil and 

his staff can point to. 

I have some examples. You have to have some examples. But 

what is the kind of corrective action you should take, and do you 

already have the authority to do that, to fix those things? How 

should you be encouraging higher levels of internal controls and 

standards? 

Senator MURKOWSKI. Thank you. 

Thank you, Mr. Chairman. I may have some additional questions 

to submit for the record. 

The CHAIRMAN. Senator Inouye? 

Senator INOUYE. Thank you very much. 

May I make a statement in lieu of asking questions? 

The CHAIRMAN. Absolutely. 

STATEMENT OF HON. DANIEL K. INOUYE,

U.S. SENATOR FROM HAWAII 

Senator INOUYE. Mr. Chairman, I have had the pleasure of serving on this Committee for many years, as either Chairman or 

Ranking Member, since 1986. The first challenge that this Committee faced was the Cabazon case. The Cabazon case was decided 

by the Supreme Court in 1985, and it once again reestablished and 

affirmed the sovereignty of Indian nations. It was not considered 

an important case because you hardly saw this matter being reported in the press. 

When this Committee realized that we had a problem before us, 

we immediately conferred with the Government of the United 

States because it was our belief that the sovereignty of Indian nations required a government-to-government relationship not with 

the States, but with the Federal Government. At that time, the Attorney General, the White House, all said no, we don’t want any 

part of this, and so we conferred with the States. 

Mr. Chairman, I had the privilege of meeting every Governor to 

discuss this matter because it was obvious to me that this matter 

will someday become big. In the beginning, this Committee, and for 

that matter the Congress of the United States, with the Administration, had very little concern or interest in Indian gaming. As one 

75

told me, well, these simple folks won’t know what to do. They just 

want to run bingo games and such. 

And the Indian tribes because they were not receiving any help 

from the financial institutions of the United States, because their 

lands could not be alienated, they could not put it up for mortgage. 

They couldn’t borrow any money. They had to go elsewhere to borrow money, at times from unscrupulous people, many times, across 

the ocean to foreign lands, paying high interest rates, unheard of, 

outrageous regulations. But they did this. 

Mr. Chairman, I supported the Indians because I believe in their 

sovereignty. And second, we have not kept up our side of the bargain. There have been many treaties in which we promised Indian 

Country that we would do this and that. Keep in mind that this 

Country was once owned by the Indians, and they gave up jurisdiction over these lands on the promise that they would be cared for. 

And the way we have cared for Indians is just a blight upon the 

democracy of this land. We should be ashamed. 

So when this came about, I said, here is an opportunity where 

the Indians may be able to help themselves. Well, they began doing 

well. They regulated their industries they went into, and said, OK, 

we will live with these outrageous compacts, but we will go ahead 

and do it. They paid extraordinarily large interest rates, but they 

still made money. And they set up hospitals and schools and housing, something that we should have been doing. 

Now, Mr. Chairman, I don’t wish to be part of any move that 

would in any way erode the sovereignty that they have. And so you 

will find me on the other side. I think the Indian nations have done 

extremely well. We haven’t had any major scandal. Compare that 

with the so-called well-run activities of New Jersey and Las Vegas, 

and see how the Indians have done. The one big scandal that involved Indian gaming came about because non–Indians tried to 

scam and con Indians. It wasn’t initiated by the Indians. 

So Mr. Chairman, I think this is a good hearing. I should tell you 

that I will do everything possible to see that this bill disappears. 

Incidentally, there are two States in the union that prohibit any 

form of gambling, Utah and Hawaii. I am against gambling. I don’t 

think that is the way to make money. But I respect the sovereignty 

of Indian nations. 

Thank you. 

The CHAIRMAN. Senator Inouye, thank you very much. 

[Applause.] 

The CHAIRMAN. That is a wonderful description of the history 

going back to the Cabazon case that has changed the landscape 

with respect to the issue of Indian gaming, the opportunity to develop a stream of income to be helpful to Indian tribes around the 

Country. And your description of the compacts and so on is an apt 

description. 

One of the things that we have tried to make certain in this 

Committee is about consultation and the Committee is about understanding and recognizing sovereignty. That is very important. 

Those are two things that I believe when people take a look 

through the rearview mirror of history about this Committee, they 

will understand, starting long, long ago, with the stewardship of 

Senator Inouye, and I hope up to and including now with Senator 

76

Murkowski and myself and many other Members of the Committee, 

that people understand this Committee was about consultation and 

respecting and recognizing the sovereignty that exists. 

Let me just ask one additional question. Mr. Luger, you are the 

Executive Director of the Great Plains organization. You accompanied Chairwoman Pearson today. Let me finally just ask a question. I am going to submit questions to a number of you. 

One of the reasons for a continuing discussion about this is the 

need, or the feeling that there is a need for more than one level 

of regulation. My understanding is that in some cases in the Country, that there is common membership in the tribal council and 

also the gaming authority, the regulatory authority for that tribe’s 

gaming facility. I don’t know that that is the case in many circumstances, but I understand it is in some. If that is the case, then 

you don’t have an arm’s length regulatory oversight of the gaming 

facility. 

Is it your feeling and Chairman Pearson’s feeling that there 

needs to be at least two levels? I think in previous discussions, you 

have indicated that there is with the State compact a State level 

of regulatory authority, and the tribe. Is there a feeling that there 

needs to be at least two levels of regulatory authority? 

Mr. LUGER. Yes. The short answer is yes. We, as you know better 

than I, the hard work of all of these. And the frustrating part is 

that because of the Seminole decision, we have put all of our time 

and energy in beefing up our own tribal gaming commissions and 

our relationship with the States. 

Quite frankly, and I will be very brief, as long as Phil is here, 

it is something that just never comes up and it is a constant consternation to Indian Country, and that is with technical assistance, 

a lot of this would have been minimized or eliminated. They have 

done poorly in that area. It is hurtful, especially for your tribes at 

home, Senator Dorgan. I can’t call up NIGC. I have 14 training and 

regulatory seminars last year. I have called the Minneapolis area 

every time, John Peterson, and every time I get the same response: 

I don’t have an expert in that field, or I don’t have the travel time, 

or what have you. 

I have to go back out into Indian Country to find those experts 

in that regulatory area. I don’t think there is a tribe in here that 

wouldn’t disagree with me that the technical assistance aspect of 

NIGC has been less than star quality. 

The CHAIRMAN. Mr. Hogen, you are welcome to respond to that 

in writing if you wish. 

Let me make a final point today. Senator Inouye, you offered an 

amendment dealing with the Seminole case, which I supported. 

That failed on a tie vote in this Committee. I don’t disagree that 

we need to resolve and deal with the Seminole case. That is a related issue that we should be considering. 

Our future discussions will ensue from the information we have 

now received from our witnesses. I think the witness table is probably a pretty accurate reflection of the division that exists in the 

country on this subject. I am talking now about Indian Country. As 

I indicated, we will digest and evaluate what we have heard today, 

and what we feel we should do to respond. 

77

Having had this hearing, and now being able to study over some 

period of time in the future the information we have received, I 

want you all to understand again that the principal priority of this 

Committee is going to remain health care, housing, education, teen 

suicide, methamphetamine, and law enforcement. Those are the 

items that will consume a substantial amount of the passion and 

energy of this Committee because we have a full-blown crisis in Indian Country on those issues. 

I did think it was important to have this hearing in order to consider how to move forward with respect to this issue of regulatory 

authority for Indian gaming. Indian gaming is very important. It 

produces a very substantial $25 billion revenue stream for Indian 

tribes, and it has been desperately needed in much of this country. 

So I think no one in this room who comes to this subject wishes 

in any way to injure or to cast doubt upon these issues. We believe 

that this issue is a very important issue and a very important 

source of much-needed revenue for American Indians. 

One final point, I would agree with my colleague, Senator 

Inouye, that the Congress of the United States over many, many 

decades has I think shamefully ignored its responsibility to address 

the very issues I have described with tribes in many ways. I think 

Presidents and Congresses have failed with people living in Third 

World conditions in this Country on Indian reservations, and it is 

shameful that that continues to exist. 

This Committee and many others have a responsibility to address it and address it aggressively, and that will remain the major 

agenda for this Committee. 

Let me thank the witnesses for coming. Let me thank my colleagues for being here as well. 

This hearing is adjourned. 

[Whereupon, at 10:50 a.m. the Committee was adjourned.] 

(79)

APPENDIX

PREPARED STATEMENT OF TRACY BURRIS, GAMING COMMISSIONER OF THE

CHICKASAW NATION

Good morning Chairman Dorgan and distinguished Members of the Committee. 

On behalf of the Chickasaw Nation, allow me to extend our deep appreciation for 

this opportunity to comment on this important legislative proposal. My name is 

Tracy Burris and I serve as the Commissioner of Gaming for the Chickasaw Nation, 

a post I have held for approximately 12 years. The Chickasaw Nation strives always 

to provide constructive comments, and I am honored to deliver the Chickasaw Nation’s view in relation to the proposed amendment on the issue of the NIGC’s authority over Class III gaming. We hope the Committee finds our testimony today 

useful in its deliberations on this important issue. 

Let me open with the observation that there is no debate in Indian Country about 

the need for sound internal control standards. Effective internal control standards 

represent a critical tool in safeguarding critical tribal gaming revenues and ensuring 

operational integrity. Neither is there a question as to the importance of regulatory 

oversight and the enforcement of regulations designed to serve these purposes. As 

a front line gaming regulator, the utility and necessity of internal control standards 

is clear and we work hard to ensure operational compliance at the Chickasaw Nation’s gaming facilities. 

In our view, the issue before us today is NOT whether regulatory oversight is important or whether internal control standards are necessary, but rather how best 

to allocate regulatory responsibilities essential to the fulfillment of the purposes for 

which IGRA was enacted. First and foremost, IGRA was enacted to establish a comprehensive regulatory framework for tribal government gaming. The act reflects a 

balance between the competing governmental interests by assigning regulatory roles 

to tribal, state and Federal agencies based on a classification system dividing gaming activities into three classes with regulatory roles distributed among tribal, state 

and federal governments in accordance with the class of the gaming activity. 

Class I gaming consists of traditional tribal social games. In light of the superior 

tribal governmental interest in matters of culture and tradition, tribal governments 

were accorded exclusive regulatory authority over Class I games. Class II games include bingo, lotto, pull-tabs, games similar to bingo and certain other enumerated 

games as well as certain non-banking card games. Though similar, Congress accorded greater weight to the tribal interest in Class II games, according tribal government primary regulatory authority, though establishing a Federal regulatory 

agency charged with regulatory oversight responsibilities. 

With regard to Class III gaming, which includes slot machines, facsimiles, house 

banked card and table games and other wagering activities, Congress did something 

novel. It created a consensual mechanism, and then left tribal and state governments to work out their differences. If negotiations succeeded in producing a tribalstate gaming compact, and the compact met with the approval of the Secretary of 

the Interior, tribal governments could lawfully engage in Class III gaming activities. 

In the beginning, there was considerable discontent on both sides. Over the years, 

however, tribal and state governments for the most part have succeeded in working 

through the compacting process. As a result, the Class III gaming industry comprises most of the tribal gaming industry. This fact underscores how effective IGRA 

has been in altering the course of the tribal-state relationship in a more positive 

direction. Given the tensions that once characterized the tribal-state relationship 

over gaming, it’s almost surprising that the issue that brings us here today is the 

Federal interest in Class III gaming. 

The crux of the matter is a decision by the Federal Circuit Court of Appeals for 

the District of Columbia affirming the lower court’s ruling that IGRA does not authorize the NIGC to regulate Class III gaming nor to promulgate and enforce its 

minimum internal control standards in relation to Class III gaming activities. The 

committee is now considering whether to amend IGRA to broaden its authority to 

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encompass Class III gaming. Bill language to do so has been drafted and we thank 

Chairman Dorgan for the courtesy of circulating a discussion draft. 

We note that the bill would also establish an alternative rulemaking process for 

the development of Class III minimum internal control standards. To some extent, 

the fact that language is drafted and a hearing convened would indicate that there 

is to some degree a sense that the amendment is warranted. The purpose of this 

hearing is to aid the committee in deciding if this is so and whether the proposed 

language is acceptable to tribal and federal governments. 

We see the proposal as an effort to again strike a balance between competing governmental interests, yet it is important to recognize that the amendment will alter 

the regulatory framework and the balance reflected in it. We would prefer to avoid 

amending IGRA in this manner because IGRA represents a compromise that has 

finally been accepted after a very long and difficult period of time. Statutory amendments introduce complexities and create uncertainties, which is not conducive to a 

stable business environment. Moreover, it is not possible to foresee every ramification, particularly where the amendment effects such fundamental change. We know 

that where multiple jurisdictions have overlapping functions and responsibilities, inefficiencies inevitably result and costs increase. Redundancy is also conducive to 

conflict, which creates instability. 

By all indications, the tribal gaming industry is healthy. It has enjoyed double 

digit growth in productivity each year for more than a decade. On the whole the 

industry enjoys a wholesome public image and maintains considerable public support. Tribal regulatory capacity and expertise have strengthened over the years and 

tribal regulatory agencies continue to achieve ever increasing levels of sophistication. In every respect IGRA represents one of the most successful and important 

pieces of Indian legislation ever enacted by the Congress. It has provided tribal governments a substitute for the tax base they lack, and in so doing, it has strengthened tribal governments economically and institutionally. 

In light of the success and importance of gaming to tribal governments, it is only 

natural that tribal officials will have misgivings about amending IGRA. Tribal officials are equally apprehensive in relation to proposed rules, particularly regulations 

such as the MICS which are legislative in nature and highly detailed technically. 

In the first place, the responsibility for implementing, monitoring and enforcing 

such regulations falls most heavily on tribal gaming regulatory agencies. Yet, the 

NIGC’s policies with regard to tribal participation in the drafting process have been 

erratic. There have been periods when the NIGC has welcomed participation and 

others where it has been unreceptive. We believe that the quality and workability 

of regulations suffers when those most directly affected by the regulations, particularly those responsible for on-the-ground implementation are not given a seat at the 

drafting table. The development of internal control standards requires an intimate 

working knowledge about the gaming environment as well as expertise in all aspects of gaming operations. 

The MICS have been the subject of longstanding complaints from both the regulatory and the operational sides of the industry. In reviewing the draft bill, we appreciated that a provision was included to address these tribal concerns and felt 

that we might offer some insight that may aid the committee’s deliberations on the 

subject. 

The dissatisfaction with the MICS arose soon after they were first adopted. In implementing the MICS it soon became evident that the standards were flawed in several respects. First, they were largely borrowed from the Nevada Gaming Control 

Board’s regulations at a time when the industry was undergoing a period of significant technological advancement. As a result, the MICS were already stale in several 

areas at the time of adoption. They were also poorly suited to the Class II gaming 

environment, though the NIGC resisted this premise based on its belief that electronically aided Class II games are indistinguishable from Class III gambling machines. 

Another flaw was that the MICS initially reflected a one-size-fits-all approach. 

The same standards applied to all tribal gaming activities regardless of the size of 

the operation, which in Indian Country ranges from some of the world’s largest 

gaming operations to some of its tiniest. The rigidity of the MICS was frustrating 

to regulators and operators. Moreover, compliance with the MICS presented so 

many practical difficulties that tribal governments were alarmed by the implications. Federal enforcement action, as a result of these difficult to implement provisions of the MICS was the concern that prompted tribes to begin questioning the 

NIGC’s authority to promulgate and enforce the standards. 

In 2000, tribal leaders and regulators approached the NIGC about the problems. 

The commission agreed to review the MICS and consider revisions to address the 

practical problems tribal governments were experiencing. A tribal advisory comVerDate 0ct 09 2002 12:33 Sep 25, 2007 Jkt 037531 PO 00000 Frm 00084 Fmt 6601 Sfmt 6621 S:\DOCS\37531.TXT JACKF PsN: JACK
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mittee was assembled and a significant revision resulted, but the issue of the 

NIGC’s authority was not resolved until the decision in the Colorado River case. 

We are aware of the NIGC’s strong concerns about the court’s decision and its desire for a legislative solution. We can also understand the committee’s interest in 

discerning whether the court’s decision creates a regulatory gap. At the same time 

we know that tribal governments are not so irresponsible as to abandon their internal control standards. To do so would deprive them of their most valuable regulatory tool and render operations vulnerable to panoply of harms. Tribal governments are competent to promulgate and enforce tribal standards without a statutory 

or regulatory mandate or the threat of enforcement. Tribal governments desire 

strong effective internal control standards because they are in the best interest of 

the tribe. 

On the question of whether the rule making function should remain with the 

NIGC or be delegate to a specially created entity, we view this decision as less important from our perspective than ensuring that tribal officials have a seat at the 

drafting table. Unless the provision guarantees that a specially created entity would 

be more receptive to collaborative processes than the NIGC has been we cannot see 

its value. The draft does not mandate that tribal officials will be accorded meaningful participation or ensure that the committee members will have expertise and experience that will allow them to participate in meaningful discussion. We encourage 

the committee to consider a slightly different approach. As drafted, the proposed bill 

establishes a drafting committee, but offers very little procedural guidance. The Negotiated Rulemaking Act and the Federal Advisory Committee Act, on the other 

hand, each contains procedures that if applied would go far in alleviating our concerns. 

We strongly believe that all rule making under IGRA should be subject to collaborative processes. Besides the expertise tribal gaming regulators can provide, they 

have important insights to offer as to the practical strengths and weaknesses of the 

regulations. They will also be better equipped to identify areas in need of attention. 

Moreover, it is illogical to exclude tribal gaming regulators from the drafting process, given that tribal regulatory agencies will have primary responsibility for implementing, monitoring and enforcing the regulation plus approving the necessary operating procedures. Providing oral or written feedback on draft regulations is of limited use. Once a draft is prepared, there is typically limited interest in exploring 

alternative approaches or effecting significant revision. Too much time and effort 

has been invested and important choices have already been made. 

I will close where I began. Tribal officials well understand the importance of internal control standard and effective regulations. Tribal governments rely on gaming 

revenues to fund essential governmental functions, services and programs. These 

revenues fuel the economic engine driving tribal economic growth and development. 

Gaming provides permanent jobs, fair wages and benefits. Thanks to gaming, there 

are business opportunities within the community. These jobs and opportunities stay 

right where they are and this knowledge increases confidence and stability in the 

economy which fosters continued growth. 

These successes were not easily accomplished. Years of hard work have been invested, and years more will be needed to achieve the standard of living and quality 

of life our leaders envision for ourselves and our posterity. As Governor Bill 

Anoatubby has observed many times, we do not see the accumulation of wealth from 

gaming as an end in itself, but as a means of achieving the goals to which we aspire 

on behalf of the Chickasaw Nation. 

Thank you. 

PREPARED STATEMENT OF STANLEY R. CROOKS, CHAIRMAN OF THE SHAKOPEE

MDEWAKANTON SIOUX COMMUNITY

Good morning Chairman Dorgan, Vice Chairman Murkowski, and Members of the 

Committee. My name is Stanley R. Crooks, and I am the Chairman of the Shakopee 

Mdewakanton Sioux Community (‘‘Community’’), a federally recognized Indian tribe 

located in the State of Minnesota. On behalf of the Community, I appreciate the opportunity to provide this written testimony on the draft legislation (‘‘Draft Bill’’) 

that would amend the Indian Gaming Regulatory Act of 1988 (‘‘IGRA’’). 

As explained in more detail below, because the Draft Bill would give the National 

Indian Gaming Commission (‘‘NIGC’’) general regulatory authority over Class III 

gaming, the Community does not believe that the amendments to IGRA set forth 

in the Draft Bill are warranted or necessary. Although the Community disagrees 

with the Draft Bill, we would also like to provide the Committee with specific comVerDate 0ct 09 2002 12:33 Sep 25, 2007 Jkt 037531 PO 00000 Frm 00085 Fmt 6601 Sfmt 6621 S:\DOCS\37531.TXT JACKF PsN: JACK
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ments on why we believe the Draft Bill in its current form is overbroad, vague, and 

would prove unworkable in practice. 

Notwithstanding the Community’s objections, we look forward to working with the 

Committee in a cooperative manner to ensure that any concerns with the regulation 

of Indian gaming are addressed in a manner consistent with the congressional intent of IGRA and are in the best interests of all applicable regulatory authorities. 

General Federal Regulatory Authority Over Class III Gaming is

Unwarranted 

Among other things, the Draft Bill deviates from IGRA’s careful regulatory balance by insinuating the NIGC into matters that are now within the exclusive domain of the states and the tribes. The Draft Bill would do this by granting to the 

NIGC new, general regulatory authority to regulate Class III gaming. As the Committee is aware, IGRA in its current form does not provide the NIGC with such general authority. As the U.S. District Court for the District of Columbia noted in a 

case brought by the Colorado River Indian Tribes:

Upon a careful review of the text, the structure, and the legislative history of 

the IGRA, and the entire record in this case, the Court is compelled to agree 

with Colorado River that the [IGRA] statute does not confer upon the NIGC the 

authority to issue or enforce [minimum internal control standards] for Class III 

gaming.. . . [T]he NIGC has overstepped its bounds.

Colorado River Indian Tribes v. National Indian Gaming Commission, 383 F. 

Supp. 2d 123 (D. D.C. 2005), aff’d, 466 F.3d 134 (D.C. Cir. 2006)(hereinafter, 

‘‘CRIT’’). In affirming the CRIT decision, the D.C. Circuit Court of Appeals concluded its analysis by posing a question and then answering it: ‘‘[W]hat is the statutory basis empowering the [NIGC] to regulate class III gaming operations? Finding 

none, we affirm.’’ 446 F.3d at 140. 

When Congress enacted IGRA in 1988, it was careful to ensure that IGRA’s statutory framework clearly enumerated the authority of the NIGC with respect to Class 

II and Class III gaming. Because Indian tribes that conduct Class III gaming must 

have in place valid, executed Tribal-State compacts, Congress did not believe that 

a third layer of Federal regulation for Class III gaming was necessary. Furthermore, 

the Federal Government—through the Department of Justice—argued against such 

Federal regulatory authority over Class III when Congress was considering IGRA. 

The legislative history to IGRA states:

Recognizing that the extension of State jurisdiction on Indian lands has traditionally been inimical to Indian interests, some have suggested the creation of 

a Federal regulatory agency to regulate Class II and Class III gaming activities 

on Indian lands. Justice Department officials were opposed to this approach, arguing that the expertise to regulate gaming activities and to enforce laws related to gaming could be found in state agencies, and thus that there was no 

need to duplicate those mechanisms on a Federal level.

S. Rep. No. 100–446, at 5 (1988)(emphasis added). 

Careful enumeration by Congress in 1988 of the NIGC’s authority over the various classes of gaming authorized by IGRA has proven to be an effective and efficient regulatory scheme, and one that has transformed Indian gaming into the most 

heavily regulated form of gaming in the United States. The Tribal-State compact 

mechanism, although not perfect, has allowed Indian tribes and state governments 

to negotiate and allocate regulatory duties in a single document. These compacts, 

some of which—such as the Community’s compacts with the State of Minnesota—

are long term or are perpetual in duration—were entered into on the basis of the 

assumption that Class III gaming would be regulated exclusively by tribes and the 

states. 

Just as the hearing record fails to support the creation of yet another layer of regulation for Class III gaming, there is no justification for the added regulatory costs 

the NIGC would undoubtedly seek to impose on tribes. Indian tribes currently pay 

all costs of tribal gaming commissions, the costs of state regulation under the Tribal-State compacts, and the entire budget for the NIGC through the NIGC’s annual 

assessment of fees. To now provide the NIGC with blanket Class III regulatory authority, as the Draft Bill would do, would upset the delicate balance Congress struck 

in 1988 and that tribes and states have relied on ever since. 

If the NIGC is concerned that the CRIT decision may limit its ability to audit 

Class III gaming facilities or ensure that Indian tribes have adopted minimum internal control standards (‘‘MICS’’), the Community believes that these issues can be 

addressed in a more narrowly tailored manner and through direct consultation with 

tribal leaders. 

83

The Community’s Comments on the Draft Bill 

Section 1 of the Draft Bill sets forth the purpose of the legislation, and Section 

2 would generally provide the NIGC with authority to regulate Class III gaming. 

Section 3 of the Draft Bill would establish a mechanism whereby the NIGC’s regulatory authority over Class III might be preempted if the NIGC itself certifies that 

the regulatory activity required under the Tribal-State compact meets the standards 

established by the Class III Regulatory Committee (‘‘Class III Committee’’). Section 

3 further grants the Secretary of the Interior authority to establish the Class III 

Committee, which would consist of five to eight members appointed by the Secretary. No member of the Class III Committee could be an employee of the NIGC, 

and the NIGC would pay the Class III Committee’s operating expenses. 

The Community believes that even if the apparent assumption upon which the 

Draft Bill was written—that a need exists to provide the NIGC with regulatory authority over Class III gaming—was valid, which it is not, the Draft Bill in its current form is flawed and unworkable. Some examples include the following: 

(1) The Class III Committee Would Have Unfettered Discretion to Adopt Regulatory Standards. The Draft Bill provides the Class III Committee with nearly unrestricted authority to promulgate substantive regulatory standards. Indeed, the Draft 

Bill states that the Class III Committee shall ‘‘develop minimum standards for the 

regulation of Class III gaming.’’ In addition to providing the Class III Committee 

with authority to establish standards for the operation of Class III games, the Draft 

Bill’s open-ended charge might also be construed by some as granting the NIGC authority to venture—among other areas—into scope of games issues and gaming classification standards. 

The NIGC’s unilateral efforts to establish gaming classification regulations have 

been universally opposed by tribes as conflicting with IGRA’s stated purpose to promote ‘‘tribal economic development, self-sufficiency, and strong tribal governments.’’ 

25 U.S.C. § 2702(1). The broad scope of the Class III Committee authority, however, 

might provide an avenue for that Committee to establish substantive standards in 

areas where the NIGC has thus far been unsuccessful. 

Also, the Class III Committee might use its broad mandate to create substantive 

environmental, health and safety standards, a regulatory area that IGRA reserves 

to Indian tribes. As a condition precedent to the lawful operation of gaming activities on Indian lands, an Indian tribe must adopt a gaming ordinance which must 

be approved by the NIGC. 25 U.S.C. § 2710. Among other requirements, tribal gaming ordinances must contain provisions ensuring that ‘‘the construction and maintenance of the gaming operation, and the operation of that gaming is conducted in 

a manner that adequately protects the environment and the public health and safety.’’ 25 U.S.C. § 2710 (b)(2)(E). 

Although IGRA grants the NIGC the authority to approve gaming ordinances that 

satisfy these broad criteria, it does not grant the NIGC authority to prescribe the 

substance of these environmental, health or safety regulations. These decisions rest 

with the individual tribes. In 2002, the NIGC attempted to impose on tribal gaming 

operations substantive environmental, health and safety criteria, but abandoned the 

effort in the face of widespread tribal opposition. The broad discretion granted to 

the Class III Committee in the Draft Bill would establish a mechanism for the 

NIGC to use the Class III Committee as a proxy to regulate in these and other 

areas in which the text and structure of IGRA do not allow. 

(2) No Grace Period for NIGC to Review Existing Tribal-State Compacts and No 

Deadlines for Implementation of Class III Committee. Section 2 of the Draft Bill 

grants the NIGC new authority to regulate Class III gaming, while Section 3 establishes the Class III Committee that will later develop standards that may provide 

a basis for a tribe or a state to be exempt from the new authority provided in Section 2. The Draft Bill, however, does not contain any time frames for when the new 

NIGC authority in Section 2 will become effective. Presumably, Section 2 will be effective immediately upon enactment of the legislation into law. 

Operating under this presumption, all Indian tribes will be subjected to the 

NIGC’s general Class III regulatory power until the Class III Committee is established, the Class III Committee promulgates standards, and the NIGC acts to certify 

Tribal-State compacts. Without any deadlines for the establishment of the Class III 

Committee, the promulgation of that Committee’s standards, or for the NIGC to act 

to certify a given Tribal-State compact, it will likely take years before an Indian 

tribe—through no fault of its own—can be exempted from the NIGC’s Class III regulatory authority. The absence of a grace period or associated deadlines for implementation renders the purported exemption in Section 3 of the Draft Bill nothing 

more than an illusion. 

(3) No Process for Appealing the NIGC’s Refusal to Certify a Tribal-State Compact.

The Draft Bill provides no mechanism for a tribe to appeal a determination by the 

84

NIGC that a Tribal-State compact does not satisfy the standards established by the 

Class III Committee. 

(4) Status of Nonconforming Tribal-State Compacts Unclear: The Draft Bill does 

not address the status of those Tribal-State compacts that the NIGC determines do 

not comply with the Class III Committee’s standards. This might lead some to demand that these ‘‘nonconforming’’ compacts be reopened for negotiation. This, in 

turn, could create an opening for states that are parties to such compacts to demand 

new or increased ‘‘revenue sharing’’ in exchange for the tribes’ continued ability to 

conduct gaming. At the very least, this omission would create a cloud over the legality of these compacts. The Draft Bill should explicitly state that compacts that the 

NIGC determines do not conform to the Class III Committee’s standards are not 

subject to amendment or to renegotiation without the written consent of all parties 

to the compacts. 

If Congress opts to have the NIGC assume all regulatory control over Class III 

tribal gaming, as the Draft Bill would do, then there is no need for the Tribal-State 

compacting process that is now an integral part of the IGRA. The Community does 

not believe that this is the result the Committee intends. 

Rather, the Community believes that to the extent the Committee believes that 

a legislative response to the CRIT decision is necessary, the Committee should consider including MICS as a component of tribal gaming ordinances rather than handing the NIGC broad regulatory authority. The Community, however, has grave concerns about the wisdom of any attempt to amend IGRA in the current political climate. 

I appreciate the opportunity to provide the Community’s views on the Draft Bill. 

The Community stands ready to work with the Committee and its members on this 

and other issues affecting Indian gaming.

Æ