PHOENIX – The National Indian Gaming Association has called for the immediate resignation of National Indian Gaming Commission Chairman Philip Hogen and asked the Obama administration to ensure that future appointees respect tribal governments by following the laws governing federal agencies.

The NIGA’s member tribes unanimously passed a resolution April 15 during the association’s annual Trade Show and Convention, titled “To Call Upon the Obama Administration to Ensure that the National Indian Gaming Commission follows the Rules and Regulations Governing Federal Agencies, including the Department of the Interior.”

The title’s implication that the current commission does not follow the rules is followed by even bolder and more explicit language expressing tribal leaders’ unhappiness with the direction in which Hogen has led the commission.

What prompted the resolution was the election of Barack Obama, NIGA Chairman Ernie Stevens Jr. said.

“We had to fight tooth and nail to defend aggressive positions against our tribal sovereignty, a lack of consultation and things of that nature,” he said. “In my personal opinion, his (Hogen’s) era is over. It’s time to move on.”

The call for Hogen’s resignation comes after two years of harsh criticism from tribes as Hogen tried to push through a controversial set of regulations that would have drawn what he called “a bright line” between Class II and Class III gaming. The bright line would have classified virtually all Class II machines as Class III machines, requiring tribes without Class III compacts to pay states a cut of their profits. Hogen withdrew the proposed regulations last fall.

The resolution says NIGC claims exemption from executive orders requiring tribal consultation, the Unfunded Mandates Act, the Regulatory Flexibility Act, the Small Business Regulatory Flexibility Act, the Federal Advisory Committee Act, the Indian Gaming Regulatory Act’s mandates that protect tribal self-government, and the Federal Indian Employment Preference laws.

The tribes have called on NIGC to follow these laws, but the commission has failed to do so, the resolution says.

The resolution says Hogen continues to collect comments on new regulatory proposals, develop budgets for future years, hire people and reorganize regional offices in contravention of the former Bush administration’s directives, with no oversight from the Obama administration, no real consultation with tribal governments; and despite the fact that his term expired long ago.

The resolution calls upon the Obama administration to “recognize that Indian gaming is the single largest governmental revenue generating activity in Indian country and to act expeditiously to name a new NIGC chairman and commissioner and immediately call for the resignation of the current chairman who is holding over since the expiration of his term in December 2005.”

It calls on the Obama administration to ensure that appointees to the NIGC will act with respect for tribal governments by recognizing tribal governments and their law-making prerogatives and regulatory and licensing authority under IGRA; by adhering to Indian preference in hiring; by practicing government-to-government consultation; and by following the statutes.

The resolution also tells NIGC to change its focus from issuing bureaucratic mandates, “many of which contravene the language and spirit of the IGRA,” to an emphasis on training and technical assistance for tribal governments and tribal regulatory agencies.

The tribes said the new NIGC should withdraw the Class II regulations and facility license regulations that were drawn up “with insufficient consultation, collaboration and consensus with tribal governments.”

The resolution, which was not announced earlier in the week, came two days after Hogen presented an update on NIGC activities.

Tribal leaders were not pleased with some of the information for reasons similar to those presented in the resolution – lack of consultation, disregard for tribal sovereignty, and an attitude tribal leaders said is disrespectful.

Chairman Ron Allen, of the Jamestown S’Klallam Tribe, took issue at the news that NIGC is in the process of updating standards for Minimum Internal Controls for Class III gaming despite the fact that the commission has no enforcement authority.

“My worry is if you go to Congress and say we have these standards for Class III operations and we have no power to enforce them, creating a perception to congress that they should make some legislative measure to empower you. … so it does concern me with what I believe is mischief on the part of NIGC,” Allen said.

The commission did have enforcement authority until it was struck down in court several years ago.

“My experience has been that things worked very well when NIGC’s MICs authority wasn’t challenged,” Hogen said. “I’ve often thought that was a good model and we’d be well served if we went back to those days,” adding “that’s not the object at all.”

Allen also challenged Hogen on NIGC’s lack of initiative to help tribes become self-regulating.

“I just think that’s one of the things NIGC should be advancing, to start minimizing what I see as an intrusion on the regulatory oversight of our gaming activities and eliminating more and more of the federal role.”

But that would affect NIGC’s budget, according to Hogen.

“It may be the place of NIGC to lead that charge, but one of the things that, certainly as a bureaucrat has troubled me about that approach, is we’re funded by the tribes and if all of a sudden all these tribes are self-regulated and they’re not paying any fees, we won’t be able to operate.”

“That doesn’t work for me,” Allen replied.

NIGA Executive Director Mark Van Norman said the tribes were concerned about the U.S. Supreme Court’s Carcieri decision, which ruled the interior could not take land into trust for tribes not under federal jurisdiction in 1934. Most tribes think the case was wrongly decided.

“Well, the Supreme Court may have got it wrong, but they are the Supreme Court,” Hogen replied.

He dismissed Van Norman’s concern that NIGC was drawing up a list of tribes that would not qualify for land into trust under the court ruling.

“We think that’s very premature because the concurrence in the case indicates that the questions of federal jurisdiction in 1934 should be looked at broadly and, let’s face it, we know that all Indian tribes were here before the United States. It’s hard to say that the constitutional authority over Indian affairs would not extend to all Indian tribes,” Van Norman said. He said the tribes would like to know what position NIGC would take and suggested consultation.

Hogen said the commission was consulting with the departments of justice and interior in the hope that the “federal family” would speak with one voice.

“Nevertheless, life goes on. In terms of preparing a list, it seems to me to make sense to make a list of those tribes recognized after 1934 just to find out what that universe is,” Hogen said.