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Senate Committee Hearing Focuses on What Wire Act Opinion Means for Indian Tribes

Senate Hearing

Poker got its first public attention on Capitol Hill for 2012 on Thursday with a second hearing in the Senate Committee on Indian Affairs.

Following up on an initial November hearing, the Senate committee discussed what the Justice Department opinion that the Wire Act applies only to sports betting means for Indian tribes.

Witnesses for the hearing were broken into three groups (written testimony linked): representing the Indian tribes, Robert Odawi Porter, president of the Seneca Nation of Indians; scholars Kevin Washburn, dean of the School of Law Administration at the University of New Mexico, I. Nelson Rose, professor at Whittier Law School, and Alex Skibine, professor of law at the University of Utah; and lawyers Patrick Fleming, litigation support director for the Poker Players Alliance, and Glenn Feldman, from the Phoenix-based law firm Marsical, Weeks, McIntyre and Friedlander.

Porter set up the tribal concerns by framing the discussion around two questions: "Will the decisions of Congress on Internet gaming support or destroy Indian gaming jobs held by our tribal citizens and our neighbors and will your decisions support or erode our gaming revenue that tribal nations use to fund essential government programs and services?"

Fleming suggested that Internet poker is not a threat to tribal gaming interests because, according to a 2010 Spectrum Study prepared for the National Indian Gaming Association, Tribal poker operations account for only 1 percent of Tribal gaming revenue.

The DOJ opinion has opened up the opportunity for states to address Internet gaming, and some of them, like New Jersey, are considering other forms of casino gaming that would be direct competition to Indian casino interests. Fleming also pointed out that, years ago, there were hardly any poker rooms in Las Vegas or Atlantic City until the Internet poker boom came along and generated interest from people who wanted to play live in a social environment.

"What I think is very important is that we realize that Internet poker functions differently from slot machines, Internet roulette and other traditional casino games," Fleming said. "It presents not a threat, in my opinion, but an opportunity. They can use Internet poker to help bring people into their land-based casinos and support their operations."

Porter's other concern was that Indian tribes are allowed to participate as equal partners. He called out gaming interests in Nevada and New Jersey for pushing for monopolistic control of Internet gaming.

"This brazen power grab is based on a lie, a fiction, that big-Nevada and New Jersey interests alone are sophisticated enough and strong enough to operate Internet gaming businesses," Porter said. "They are determined to shove Indian gaming away from the table."

The general conclusion at the hearing, which lasted about an hour and 20 minutes, seemed to be that federal legislation to regulate Internet poker was needed to ensure that online gambling is limited to poker and that the Indian tribes are permitted to participate in a competitive market.

Rose warned that the states will move on Internet gaming individually and that, depending on the state, tribes could be forced to compete for a limited number of licenses. This wouldn't be an issue for larger, more powerful tribes, but small tribes not near cities could be vulnerable. Also, the Indian Gaming Regulatory Act limits tribes to taking bets from people on the reservation, meaning the ability to take bets from people on the Internet would be a privilege granted by the state and not a right.

"The speed of change on the Internet is like dog years," Rose said. "Within much less than one decade, we're going to see Internet gambling legalized by all the states. Unless Congress figures out a way to protect particularly the small states, I think a lot of tribes are going to be out of luck."

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