TOGA Senate Hearing Reveals Little; NIGC Reveals Even Less

We don’t know any more about the Tribal Online Gaming Act (TOGA) than we did before the Senate Committee on Indian Affairs held its oversight hearing on the discussion draft of the legislation last week. What we do know is that the NIGC is going to have be pushed into the fray if it is to have any regulatory role in online gaming. Despite wise reflection from Elizabeth Homer that the NIGC is the proper federal regulatory authority for online Indian gaming, the NIGC continues to bury its head in the sand – perhaps by political design.

For months, the NIGC has refused to openly involve itself in any manner in online Indian gaming, because: “None of the Internet gaming bills currently pending before Congress provide NIGC with a regulatory role. NIGC is not in a position to speculate on the particulars of any legislative proposal for which there is no clear role contemplated for NIGC,” as NIGC General Counsel Larry Roberts put it last November.

Last week’s input by the NIGC was even more empty. Despite a discussion draft of TOGA that included Department of Commerce oversight, the NIGC did not comment substantively on the arrival of online Indian gaming. Chairwoman Stevens did not mention Internet gaming once in her prepared comments, and deflected questions as Mr. Roberts had previously.

Instead, the NIGC’s input was limited to discussing the status of tribal gaming and an update on the Commission’s progress in achieving its four priorities: consultation and relationship building; training and technical assistance; regulatory review; and agency operations. In other words, the NIGC was totally off-topic – which is a shame because Internet gaming is coming to Indian Country, whether we like it or not, and because internet gaming falls squarely within the NIGC’s mission: regulating Indian gaming, shielding tribes from corrupt influences, ensuring fair play, and, most importantly, ensuring that Indian tribes are the primary beneficiaries of gaming revenue.

Recall that the NIGC routinely involves itself in situations where it has no legal authority to do so. Why? Because it is necessary to support tribal governmental gaming, per the agency’s mission. Take for instance the NIGC’s post-CRIT advancement of Class III MICS. In Colorado River Indian Tribes v. NIGC (CRIT), 383 F. Supp. 2d 123 (D.D.C. 2005), NIGC’s authority to enforce Class III MICS was struck down because “while surely well- intentioned, the NIGC ha[d] overstepped its bounds” in promulgating and enforcing the MICS. Yet last week – again in an Internet gaming hearing – the NIGC reported that it is still using the MICS to provide technical assistance and training. Again, Class III MICS, while potentially prudent as an advisory mechanism, are gratuitous and are much further afield from the NIGC’s core authority than involvement in Internet Indian Gaming. The NIGC must “protect [Indian] gaming as a means of generating tribal revenue.” 25 U.S.C. § 2702(3).

Why then does it refuse to champion tribal governmental gaming in the Internet context, when it clearly could? Only time will tell.

Anthony Broadman is a partner at Galanda Broadman PLLC and focuses his practice on issues critical to Indian Country. He can be reached at 206.321.2672 and