Law Blog: Indian Tribes and Friends in Congress Stand Firm against Proposed Internet Gaming Bills

Topics: Epic Poker League, Law Blog, Legislation, Politics, Online Poker [+]

Amidst rumors and speculation of a fast-tracked federal online gaming bill ready to sweep through Congress at the first opportunity, Indian tribes are becoming more vocal about their opposition. Even without an invitation to the table, tribes may be able to defeat any effort by Senators Harry Reid (D-NV) and Jon Kyl (R-AZ) to move a bill too quickly.

Last week, the focus of online gaming legislation was in the U.S. Senate Committee on Indian Affairs. The February 9 hearing, chaired by Senator Daniel Kahikina Akaka (D-HI), included testimony from many important interests on federal legislation and its impact on Indian tribes.

The first speaker, the Honorable Robert Odawi Porter, President of the Seneca Nation of Indians in New York, asked Congress to keep two questions in mind: (1) Will the decision of Congress to pursue federal Internet gaming legislation support or destroy Indian gaming jobs? (2) Will that decision support or erode gaming revenue upon which tribes depend? Internet gaming, Porter insisted, must be controlled locally, by tribes, and state control will result only in monopolies that shove Indian tribes out of the way. “My request is simple,” he said, “We will not tolerate any legal authority that shoves aside tribal gaming operations from the table. We already own the table.”

The second panel consisted of Kevin Washburn of the University of New Mexico, I. Nelson Rose of Whittier Law School, and Alex Skibbins of the University of Utah. Washburn focused on the need for federal legislation that will protect Indian tribes, whereas state legislation will undermine them and be tougher to control. Rose reiterated that sentiment, stating that only the largest of tribes with compacts will be able to protect themselves under state regulatory schemes, but the Congress can protect all tribes if Internet gaming is federally regulated. Skibine focused on the rights of tribes as sovereign nations to regulate Internet gaming across state lines and without taxation or the need for prior compacts.

The third and final panel started with Patrick Fleming of the Poker Players Alliance, who spoke focusing on Internet poker regulations rather than broader gaming regulations. With poker classified as a game of skill and not a threat to tribal gaming interests, he asserted that federally regulated Internet poker will benefit tribes by bringing players to their land-based casinos for poker tournaments, which will translate into other business. Attorney Glenn Feldman, who advises tribal clients, said there should be no rush to enact legislation. Although he advises clients that Internet gaming is inevitable, they must participate in debates and be flexible moving forward. “Anything without tribal inclusion is unacceptable,” he said of the importance of Indian nations in active discussions.

Senator Akaka and Rep. Mary Bono Mack (R-CA) reiterated this message in an opinion piece that in the Congress Blog of The Hill. The article title presented the conclusion: “Failing to consult with stakeholders on Internet gaming is an unacceptable gamble.” The first paragraph specified Indian tribes as the stakeholder, and stated: “Out of fundamental fairness, we must make sure that the unique circumstances surrounding tribal gaming and tribal sovereignty are ultimately respected in any future legislation. It’s not our job to pick winners and losers; it’s our job to make sure everyone gets a fair shot. And right now, we believe Native Americans are facing a stacked deck.”

Meanwhile, more rumors have surfaced that Senators Reid and Kyl have constructed an amendment that could be attached to a piece of must-pass legislation in the Senate. There was talk of an add-on to the payroll tax extension, and then word that the Senate’s cybersecurity bill would be an ideal place for it.  No confirmations have been forthcoming, however, and the payroll tax bill seems to be moving forward quickly with no Internet gaming attachment.

Should Reid and Kyl attempt such a feat, however, without proper provisions in a bill to respect Indian tribes and their demands and concerns, some say it will be defeated in the House or vetoed by President Obama.

One such analyst, Victor Rocha of Pechanga.net, asserts there is no way for federal legislation to be pushed through to law without consultation with Indian country. “First of all, there has been no outreach from Senator Reid whatsoever. It’s been very patronizing, but this is the way the game is played with the tribes. But the tribes, with last week’s hearing, are letting people know that they can stop a bill from going through. And the longer there is no federal bill, the stronger the tribes become. Tribes are being told that anything coming from Reid will be bad, and they’re preparing for it.”

Further, Indian tribes have a very strong relationship with President Obama, so Rocha suggests that he could veto any bill that doesn’t have the tribes’ best interest in writing. The bottom line is that tribes have power and are willing to use it should they be ignored in an online gaming bill. “Harry Reid’s actions are a political power push,” said Rocha. “They’re trying to keep tribes out of it, and that’s unacceptable.”