Casino Enterprise Management

Indian country ended the final days of the 1st Congressional session in a strong position as Congress took its annual summer recess. Indian country, like the rest of the United States, continues to be affected by the economic downturn.

Tribal governments face the very same problems as state and local governments: a diminishment in revenue to fund essential services to our citizens; rising unemployment; and lack of funding for critical infrastructure. Tribes know they are not exempt from these hardships, and Indian country is just as concerned about its neighbors’ well-being as it is about its own reservation communities. Given the fabric and influence of tribal gaming operations, if gaming suffers, that means our schools, police, fire and health care will suffer. As we head into the summer congressional break, all governments must plan their revenue projections accordingly but with the knowledge and optimism that Indian gaming has been and will continue to be a resilient and strong industry that is capable of adapting to the economic situation.

Indian Health Care Improvement Act
It has been 16 years since Congress last performed a comprehensive review of the Indian Health Care Improvement Act (IHCIA). IHCIA reauthorization proposals have been introduced in the last five Congresses, but none have passed. It is disappointing to tribal governments that both the House and Senate are poised to pass a national health care bill this year with less than a few months of deliberation, yet Indian country has been held in limbo for 16 years. Congress now has a new opportunity to reauthorize the IHCIA during the 111th Congress. It is way past time to do so.

The IHCIA contains a number of provisions that authorize appropriation of funds to support the programs set forth in the law; however, the life of these provisions ended in fiscal year 2001. Fortunately, the Snyder Act of 1921 provides permanent authority for the appropriation of funds for Indian health, so Congress can and does continue to appropriate funds for these programs. Nonetheless, Congress should act to officially extend the life of the IHCIA authorization and to update the bill to reflect current needs of Indian health.

Since 1992 when the act was last reauthorized, the American health care delivery system has been revolutionized while the Indian health care system has not. For example, mainstream American health care has moved out of hospitals and into people's homes; focus on prevention has been recognized as both a priority and a treatment; and coordinating mental health, substance abuse, domestic violence, and child abuse services into comprehensive behavioral health programs is now standard practice. We are proud of the work that tribes and IHS have done to incorporate these innovations into the reauthorization. Now it is time for Congress to act and pass an Indian health care act that reflects improvements for Indian country.
 
Employee Free Choice Act
On March 10, the Employee Free Choice Act of 2009 (EFCA) was introduced in both the House and Senate (S.560). Tribes are united in opposing EFCA unless it is amended to treat Indian tribes as governments. At the National Congress of American Indians (NCAI) mid-year conference in Niagara Falls, tribes came together to pass a resolution opposing the EFCA unless it contains an amendment treating tribes as governments under the NLRA. 

Indian country has a long history of support for union members. Many tribes have worked out agreements with the building trades in constructing gaming and hotel facilities. Indian tribes have always supported employee rights within the context of tribal law and tribal self-government.

However, there is no room for negotiating tribal sovereignty. We are confident that with our unified position and the Amendment offered by Sen. Daniel Inouye (D-Hawaii), Indian country is moving ahead, protecting tribal sovereignty and securing treatment on par with state and federal governments under our nation’s labor laws.

Carcieri vs. Salazar
On Feb. 24, 2009, the Supreme Court decided in Carcieri v. Salazar, that the Secretary of the Interior has authority to take land into trust under the Indian Reorganization Act (25 U.S.C. secs. 465, 479) only for Indian tribes that were under federal jurisdiction at the time of its passage in 1934. The Narragansett Tribe admittedly was not under federal jurisdiction in 1934. Accordingly, the Supreme Court held that the secretary erred by acquiring land in trust for the Narragansett Tribe under 25 U.S.C. sec. 465.

For lands held in trust for Indian tribes recognized after 1934, if the lands were taken in trust more than six years ago, the statute of limitations should bar any challenge to the trust status of the land.

NIGA and NCAI are calling on the Secretary of the Interior to apply this case prospectively and defend all existing land holdings, and to honor his trust responsibility.

Second, NIGA is working with Indian country urging Congress to amend the Indian Reorganization Act to restore the justifiable expectations of Indian country and to recognize the fact that all federally recognized Indian tribes should have the right to acquire trust land for governmental and community purposes.

Congress must pass an amendment to section 5 of the IRA striking the word “now” from the phrase “now under Federal jurisdiction.” This would remove any doubt that it intended the IRA to apply broadly to all tribes regardless of the time of their federal recognition and would invalidate future use of this decision when attempting to limit the secretary’s authority to take land into trust for tribes.

Taxation of Health Care Benefits
Federal agencies have a responsibility to respect the letter and spirit of the United States Constitution, treaties, current federal laws and executive orders, regarding the federal government’s relationship with tribal governments. After years of inadequate federal funding for tribal health care, education and housing, many tribes in Indian country have instituted programs to provide supplemental health care, education and housing to their tribal citizens.

In the course of reauthorizing the Indian Health Care Improvement Act and the Native American Housing Assistance and Self-Determination Act, Congress has discovered that the IRS is auditing the health benefits provided to individual tribal citizens by their tribe through private insurers, and housing and education benefits provided to individual tribal citizens by their tribe. Recently, for example, the IRS regional office in California recommended to IRS headquarters in Washington that health care benefits provided by a number of tribes to their members should be taxed as reportable income.

California Congressmen Devin Nunes and Xavier Becerra are currently seeking legislation to amend the Internal Revenue Code of 1986 to codify the exclusion from gross income of health coverage and other benefits provided to Indians by Indian tribes. If Congress does not provide comprehensive guidance for tribal government benefits and services, the IRS will take the guidance related to health care as authority to audit and tax other tribal benefits and services. Indian country must come together to support a measure to treat tribal government health care and other benefits as an aspect of tribal self-government and tribal civic life, not personal income to individual tribal members.

Native American Heritage Day
As the summer session ended, Indian country’s combined efforts led to the passage of legislation that helps raise awareness of Indian country’s sacrifices in the building of this great nation. President Barack Obama signed into law last month H.J. Res 40, the Native American Heritage Day bill. This is the culmination of more than a decade of work by tribal leaders and tribal organizations requesting that Congress designate a day to honor and acknowledge the achievements and contributions of Native Americans to this country. This day will help educate the public about the true story of tribal governments and individual Indian people to the United States.

As I meet with tribal leaders, I know Indian country stands committed to being a part of rejuvenating our national economy. Indian country knows firsthand about the challenge of overcoming a poor economy. As we continue to build upon our recent successes, Indian country is committed to being a part of getting America back on its feet. 

Revenues from Indian gaming enterprises are being used to help diversify our economies, and I am hopeful that in the long term our industry will learn from this current crisis and continue to build upon those aspects that make gaming in Indian country unique. This includes continued diversification into cultural and environmental tourism. There are very few places in America that people can visit and experience top-flight entertainment while learning about the culture, traditions and history of America’s first people.

We have a lot of work ahead of us, whether it is with maintaining the strength of our existing operations or working with tribes that are still working to find economic sustainability. In the second half of 2009, we will continue to work as a united front with tribal leaders and other national Indian organizations to advance the lives of Indian people economically, socially and politically.

I am confident that our efforts on Capitol Hill will translate to new policies and a fresh outlook on Indian affairs. Our biggest challenges remain, but working together with a strong sense of unity NIGA will meet this and future challenges with the deepest sense of responsibility, dignity and strength that is representative of Indian country. 

Ernie Stevens Jr. is Chairman of the National Indian Gaming Association and a member of the Oneida Tribe of Indians of Wisconsin. He can be reached at (202) 546-7711.