Paternalism or Protection? HLS panel looks at federal review of Indian gaming
March 26, 2008
In the modern era of Indian sovereignty and self-governance, what role should the federal government play in the oversight of tribal gaming decisions?
That was the subject of a panel discussion at HLS on March 20, moderated by Kevin Washburn, Oneida Indian Nation Visiting Professor of Law at HLS. Panelists included: Philip N. Hogen, chairman of the National Indian Gaming Commission; Barry W. Brandon, senior vice president and general counsel, Seneca Gaming Corporation; and Vanya S. Hogen, a lawyer whose St. Paul, Minnesota firm represents Indian tribes.
The panel focused on how the commission regulates tribal business relationships in Indian gaming. The commission—created in 1988 to enforce the Indian Gaming Regulatory Act —oversees gaming on Indian lands to shield tribes from organized crime and other corrupt influences, and to ensure that gaming is fair and honest and that tribes are the primary beneficiaries of revenues.
Recently, the NIGC has given special scrutiny to tribal contracts with outside investors and developers because of contractual terms that pay them fees based on percentages of gaming revenues. In the commission’s view, these terms violate the Act’s directive that tribes retain “sole proprietary interest” in those revenues.
“Our job is not to get in their way but to fulfill the task to which we’ve been statutorily assigned,” said NIGC chairman (Phil) Hogen.
But tribal representatives have complained that the NIGC’s review process is too lengthy and too protective. “Getting a fee by itself cannot constitute a propriety interest in the casino,” said Vanya Hogen, adding that the NIGC should take “a backseat” in regulating the economic decisions of tribes and instead focus on investigating criminal activity.
Brandon, of the Seneca Gaming Corporation, acknowledged the NIGC’s concern that many non-Indian parties and investors are taking money out of the hands of the tribes, but he said tribes understand the risks of their investment deals and are savvy in negotiating them.
The panel event was sponsored by HLS, Harvard University’s Native American Program and the Native American Law Students Association.
Watch a webcast of the panel discussion. (RealPlayer Required)