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IN recent months, Washington has been abuzz with the scandal of lobbyist Jack Abramoff, who has been accused of bilking Native American tribes. To understand the roots of this scandal--and of a very, very sleazy business--it's a good idea to go to northwestern Connecticut, and visit Kent, a town of 3,000 people. Kent is, by all accounts, an idyllic place--a rural community containing three state parks, two state forests, two wildlife sanctuaries, and a corridor of the Appalachian Trail.

What Kent lacks is a casino.

Indeed, if you were a resident of Kent who wanted to build a casino, state law would forbid your doing so--unless you belonged to the Schaghticoke Tribal Nation, a band of about 300 Indians with a 400-acre reservation in Kent. In that case, the laws of Connecticut would have nothing to say about your importing a piece of Las Vegas to their state. Your plans would instead be subject to the whim of Washington bureaucrats who--fortunately for you--have seemed quite willing to advance your interests over the objections of Kent's residents, Kent's congresswoman, and Kent's senators, not to mention the state legislature and governor of Connecticut.

That such a thing is possible is a case study in the curiosities that follow from poorly crafted legislation. In 1988, Congress passed the Indian Gaming Regulatory Act (IGRA). This law was meant to clarify the oversight of gambling on tribal lands after a series of court cases saw Indian tribes and state governments at odds over whether states had the authority to restrict Indian gambling. (The tribes said no, invoking the limited sovereignty that exempts them from such things as local building codes and taxes.) The intent of IGRA was to let tribes conduct casino-style gambling only in states where such gambling was already permitted. But courts have construed IGRA as saying that, even if a state permits no more than a lottery or gambling for charitable fundraisers, Indians must be allowed to build full-blown casinos. There are now about 300 Indian casinos in the U.S., often in states whose criminal statutes would lead to the prosecution of non- Indians operating the same facilities.

Alexis Johnson, a lawyer and expert on Indian law, sees this outcome as a departure from the purpose of IGRA: "The whole idea was to import to tribes the ability to conduct kinds of gambling that the states already had--mirror images is what this was supposed to be about. Congress couldn't have intended that tribes build full-scale casinos on the green felt of church-basement bingo."

But that is precisely what has happened--often to the detriment of local and state governments, which are powerless to collect taxes from Indian casinos but must bear the costs associated with them: increased traffic and the accompanying pollution and road damage, demographic shifts, higher crime rates. That states must accept this concatenation of ills without any democratic mechanisms to control them is an affront to federalism. Almost as appalling is the poverty of federal oversight. In order for a tribe to open a casino, the federal government must recognize it as a sovereign entity entitled to government-to-government relations with the United States. While such authorization can be bestowed by Congress, it has, in the past two decades, been the near-exclusive province of the Interior Department's Bureau of Indian Affairs. Although Congress has never given the BIA specific authority to recognize new tribes, the bureau has done so on the basis of its general power to manage Indian affairs and relations.

GREED: THE TIE THAT BINDS

While the bureau's internal policy sets forth seven criteria that a tribe must meet in order to be recognized, the BIA's politically appointed staff is free to disregard these requirements as it pleases. In recent years, it has done so with abandon. What is worse, there are no rules to prevent ex parte contacts between BIA officials and tribal lobbyists (that is to say, contacts that take place without the participation of third parties); nor are there rules to prevent departing BIA officials from becoming lobbyists the very day of their departure. All this, combined with the enormous lucre to be had from Indian gambling, has tainted the objectivity of the tribal-recognition process to such an extent that many now view the BIA as little more than a cesspool of influence peddling and shady deals.

And there are deals aplenty. A BIA spokesman--who declines to offer any response to criticisms of his department--says that 294 tribal-recognition cases are now pending. Jeff Benedict, president of the Connecticut Alliance Against Casino Expansion, estimates that casino investors are funding some two-thirds of the pending cases. These investors, hoping to cash in on the profits of a $20-billion-a-year industry, are rarely Indians, and are bound to the tribes by no adhesive but greed. Johnson sums up the situation with delightful bluntness: "Inside the Beltway--that's Indian country for purposes of gambling. The tribe that's being served is made up of lobbyists and lawyers. I'd love saying to them, 'I've never seen so many middleaged white men interested in the education of poor Indian children.' Because they're not. They're interested in their suits, their crocodile-skin bulls**t, their Gucci purses."

That is a strong statement. But an examination of recent cases suggests it is not an inaccurate one. Some of the dirtiest dealing in the BIA took place during the Clinton administration, when BIA appointees were hell-bent on recognizing tribes regardless of the merits of their claims. Clinton's BIA chief, Kevin Gover, deserves points at least for honesty: Near the beginning of his tenure, he told his staff that "acknowledgment decisions are political." This outlook was given practical application in the case of the Golden Hill Paugussetts, an 82-member group that wanted to build a casino in Bridgeport, Conn. According to the press secretary of a Connecticut congressman, their bid for recognition had already been turned down three times by BIA staff; but when Gover--who once represented the tribe--was appointed to head the BIA, he took the unprecedented step of reopening the case. Gover recused himself from the decision, and the petition was denied after he left office; but that the case was reopened at all is suggestive.

Things got worse in the waning hours of Clinton's presidency, when Gover and his deputies pushed through a flurry of decisions so questionable that they led to an investigation by the inspector general of the Department of the Interior. Here is a summary of that investigation's findings: "Using a consultant with questionable credentials to bolster their position, BIA officials Kevin Gover, Michael Anderson, and Loretta Tuell were determined to recognize the six tribes that BAR [i.e., the Branch of Acknowledgment and Research--the BIA's career research staff] had concluded did not meet regulatory criteria." The staff was so upset by the ukases it was receiving to rewrite its decisions that one mid-level BIA official expected a bout of fisticuffs, and remained present at a late-night meeting on the final day of Clinton's term lest somebody "get slapped."

With the election of George W. Bush, BIA critics hoped for reform. Bush had, as governor of Texas, tried to shut down an Indian casino in El Paso, and during the presidential campaign had cast himself as a foe of gambling. "Because Bush had been antigambling in Texas, we thought we'd get a break," says the Rev. Tom Grey, executive director of the National Coalition Against Legalized Gambling. "But the last four years have been a disaster." In those years, the most severe criticisms of the BIA have focused on two decisions, both of them concerning tribes in Connecticut. In one case, two tribes--the Paucatuck Eastern Pequots and the Eastern Pequots--applied for federal recognition; neither, however, could provide sufficient evidence that it satisfied the BIA's seven requirements. The BIA found a novel solution, as Jeff Benedict explained to the House Resources Committee in 2004: "The BIA took the incredible step of forcibly joining [the two tribes] into a single tribe, over the strong objections of the smaller group. Only by doing so was the BIA able to find enough evidence to create a new tribe." Problem solved.

In another case--that of the Schaghticokes, the tribe in Kent-an internal BIA memo dated January 12, 2004, acknowledges that "evidence of political influence and authority"--one of the seven criteria--"is absent or insufficient for two substantial historical periods." It also says that denying recognition would maintain "the current interpretations of the regulations and established precedents." Incredibly, the memo goes on to recommend departing from those precedents, and suggests new evidentiary standards that would justify recognizing the tribes.

These decisions united Connecticut's governor, attorney general, and congressional delegation in opposition. Richard Blumenthal, the attorney general, appealed to the Interior Board of Indian Affairs, a panel of administrative judges within the Interior Department that is responsible for reviewing challenges to BIA decisions. The judges sided with Connecticut, vacated the BIA's decisions, and remanded them for reconsideration.

BAD CHOICES

Now there is nothing remarkable about a bureaucracy's making bad decisions; that is just what bureaucracy is for. What is remarkable is the willfulness of the BIA's advocacy--its deliberate choice to throw aside precedent and turn a blind eye toward gaps in the evidence.

Such arbitrariness begins to look suspicious when one considers the political and financial forces assembled behind the tribes. The non-Indian investors who spent millions of dollars bankrolling the tribes' recognition efforts enlisted the services of lobbyists who were well connected to both the BIA and the administration in general. According to Jeff Benedict, the Eastern Pequots paid some $645,000 to Ronald Kaufman, the brother-in-law of White House chief of staff Andrew Card. The Schaghticokes were advised by Paul J. Manafort, a former business partner of Roger Stone, who helped Bush's transition team staff the BIA, and who wrote in a prospectus to Indian tribes, "We believe that based on our superior political contacts we could win all necessary approvals in a time between 8 and 16 months."

There is no obvious conspiracy here, and no reason to think anything illegal was done: Making that case would probably require the special investigative and analytic gifts of Michael Moore. Kaufman has strongly denied contacting anyone at the White House on behalf of his Indian clients. Yet one cannot help but ask: What kind of access did these lobbyists have to BIA officials? Attorney General Blumenthal has an idea. He declines to name names, but says, "We think there is evidence of ex parte contacts between the financial backers and their lobbyists and officials at the BIA.... We don't have tape recordings or smoking-gun documents, but we have reports of conversations that seem credible."

That is worrisome to Frank Wolf, a Republican congressman from Virginia. "If you look at most of the BIA people, they go out and lobby the next day [after leaving the agency]," Wolf says. "I would be surprised if anyone has left BIA who does not have ties. Anybody in town knows it's a very political process." Wolf wrote President Bush in May, asking him to issue an executive order placing a moratorium on the opening of new tribal casinos until Congress can review IGRA. The reply he got was disappointing: "We got a letter back that said they don't have the authority to do very much. My response is that they should then send up the legislation that gives them that authority. Administrations are never reluctant to ask for additional authority."

In fact, a Congressional Research Service memo dated May 9, 2005, suggests that the president has authority to do even more than Wolf requested: Because there has never been "a special delegation from Congress to the Secretary of the Interior to make determinations as to whether or not groups satisfy specified criteria requiring recognition as Indian tribes," the president could "issue a directive withdrawing from [the Department of the Interior] the power to recognize groups as Indian tribes." What is lacking, it seems, is not legal authority, but political will.

CLEANING UP THE SYSTEM

That may be changing--if not in the White House, then in Congress. John McCain has in recent days held hearings on tribal recognition, with the aim of introducing legislation to reform IGRA. At a minimum, Congress should require tribes applying for recognition to disclose their financial backers, as well as their expenditures on lobbyists and consultants. In addition, tribes should be statutorily required to meet all seven of the BIA's criteria before they are granted recognition. Congress should provide precise definitions of the evidentiary thresholds that must be passed in order for the criteria to be met; this would guard against the near-artistic creativity with which the BIA weighs evidence.

Congress should also revoke the statutory exemption that allows ex-BIA employees to represent Indian tribes before the government: These employees should be subject to the same conflict--of-interest rules as all other federal workers. The current exemption was enacted at a time when tribes lacked effective representation--something that is manifestly no longer the case. Attorney General Blumenthal proposes the creation of an independent commission to consider tribal-recognition claims--a body whose members would be appointed to staggered terms, approved by Congress, and bound by strict rules against ex parte contacts. While there is no guarantee that such commissioners would behave with uniform saintliness, Blumenthal notes that "whatever you say about the vigor and competence of the FTC and the SEC, their commissioners would never think of picking up the phone and talking to someone who has a case pending before them."

Others, such as Alexis Johnson, wish entirely to sever the question of tribal recognition from thoughts of gambling profits. Johnson would accomplish this by imposing a 25-year moratorium on gambling in all newly recognized tribes. Such a moratorium might seem patronizing toward Indians, but Johnson replies, "It's patronizing to the point of insisting on authenticity." Given the BIA's recent attempt to glue two tribes together and create a single entity that neither group sought, this concern for authenticity is more than rhetorical.

If Johnson's proposal sounds too extreme, here is an alternative: Amend IGRA to forbid any tribe to open a casino absent the consent of the state's governor and legislature, and clarify that IGRA shall not be construed as requiring a state to allow Indian casinos purely in virtue of state lotteries or gambling for charitable fundraisers. These changes would dispel confidence in newly recognized tribes' ability to build casinos, and would correspondingly dilute the expectation of easy profits that now draws lawyers, lobbyists, and financiers to tribes like sharks to blood.

That feeding frenzy would never have been possible without the recklessness and caprice of the BIA. But this recklessness and caprice are possible only because Congress has allowed the BIA to exceed its authority. To Congress, then, falls the task of wresting that authority back--and subjecting the BIA to the federalism by which it should have been restrained all along.

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