Regulatory Updates

2006 NIGA Legislative Summit: Interview with Senator Tim Johnson (D-SD)

Senator Tim Johnson
Senator Tim Johnson

by AJ Naff, Editor
Indian Gaming Magazine

First and foremost, tribes need to strongly voice their views with the National Indian Gaming Commission. The NIGC has some upcoming consultation meetings going on. They plan on six consultation sessions that are going to take place all over the country. The first of these was scheduled to coincide with NIGA's Legislative Summit. The potential reclassification of some of the Class II devices as Class III devices would require state regulation and open the door to revenue sharing under state tribal compacts.

When IGRA was originally passed in 1988, Congress intended to allow tribes to take advantage of new technologies and I'm concerned about any attempts that unfairly restrict tribes' ability to operate successful casinos. Currently the Class II regulations still have to go through the NIGC consultation and comment period. In the past we've seen proposed regulations significantly altered or abandoned based on consultation and comments, but we've also seen, at times, the tribal perspectives ignored. In the future, I would like to see tribes consulted much earlier in the process of developing the regulations, as the NIGC has worked on the regulations for close to two years now. One measure that I have supported and has come up in the past two sessions is referred to as the “Seminole Fix,” which would go a long way toward restoring the original intent of IGRA and put tribes at a more equal footing when negotiating with the states. While this would not directly address the line between Class II and Class III games, it would allow tribes to better negotiate with states over the regulation of all Class III gaming.

I opposed S.2078 when it was voted out of the Indian Affairs Committee. The bill has almost universal opposition from tribes across the country and has encountered some bipartisan opposition in the Senate. I think there are several troubling provisions about the bill and even the NIGC has indicated it would be difficult to implement in its current form. One major portion of the bill would fix the court's decision in the Colorado River Indian Tribe's case to clarify that the NIGC has authority over Class III gaming. When the bill was considered in committee I voted in favor of an amendment offered by Senator Inoye to also fix the decision in the Seminole Tribe of Florida case. This was where the Supreme Court invalidated the provision of IGRA that permitted tribes to sue states for failure to negotiate. I think if we're going to be serious about protecting the original intent of IGRA, efforts to fix cases that tribes want should also be accompanied by fixes to the cases tribes have lost.

This DOJ proposal and the proposed NIGC regulations are both trying to expand regulatory authority over Class II technological aids. For some time now the Department of Justice has sought a role in tribal gaming through the judicial process. This current attempt to amend the Johnson Act (named after Senator Hiram Johnson from 1934) has been proposed by the DOJ, but no member of the House or Senate has agreed to sponsor the legislation. None. Due to the relatively little amount of time left in this Senate session and our current work on the IGRA amendments bill, I doubt that the “Proposed Gambling Devices Act Amendments of 2006” will even be considered before the session ends. Regardless, I'm skeptical about legislation that would essentially overturn federal court decisions in order to allow the DOJ to become further involved with Indian gaming.

I don't believe the bill would necessarily create a stranglehold on the industry, but it would certainly have the potential to be overly burdensome. The most successful casinos would probably remain profitable, but my concern is how this could potentially affect the eight tribes in my state that operate casinos. These are not the wildly successful operations that exist in your large population centers. They operate much closer to the margins, a lot of them only breaking even, but provide jobs to tribal members and modest economic development to very rural parts of the country. While it's impossible to understand the full impact this may have, I am definitely concerned about the potential effects several provisions of the bill may have on the industry. Burdensome regulation has hindered development in many areas of Indian country, such as with BIA land leasing and subleasing. I am especially wary of legislation that could create still more additional regulations in the industry, which has proven to be the most successful engine of tribal economic development.

Currently none of these proposed changes has been put into effect, which is due almost entirely to the response of tribes and industry professionals. I think it's very important to remain engaged in the political process to ensure tribal perspectives are represented at all points. When administration efforts and legislation ignore tribal consultation, tribes have been doing a very good job and need to continue to fight these efforts both on principle and on their merits. In just the last ten years, tribes have substantially increased their presence and influence in Washington, largely because of voter turnout, which has shown tribes truly do have the power to turn elections and ensure that we only elect officials who afford the proper respect to tribal sovereignty.

Recently the Senate Indian Affairs Committee released their report on the Abramoff investigation and made several recommendations, mainly that there is no need for new or revised federal legislation to address contracting for legal, lobbying or other professional services. I believe this committee report confirms my long-held belief that this was a lobbying scandal and not a tribal scandal. Lost in most of the discussion on this scandal is the fact that the vast majority of tribes are not getting rich from gaming, but achieving modest economic development and job growth, as over 80% of those employed by South Dakota gaming are tribal members. In this sense IGRA is working exactly as Congress intended.

Senator Tim Johnson (D-SD) can be contacted through his email form at His website can be viewed at