Babbitt’s gaming role questioned

Friday, March 29, 1996 | 11:59 a.m.

The Bureau of Indian Affairs has jumped into the battle over tribal gaming, vowing to "protect this American Indian right" that a divided Supreme Court attempted to limit this week.

The BIA statement, issued following a meeting by Nevada's senators with Interior Secretary Bruce Babbitt Thursday, further fuels the controversy over the high court's action that barred tribes from taking states opposing casino gaming on Indian reservations into federal courts.

While Babbitt has been recognized as a proponent of Indian gaming, he's also a former Arizona governor with a reputation for recognizing the importance of compromise in highly charged political disputes. But the statement by the BIA, an agency of the Interior Department, appears to leave little room for maneuvering.

"This decision is not only a strike against American Indians ... but jeopardizes the rights of all Americans to use the federal courts to ensure that states comply with federal law," said Ada Deer, the Interior Department's assistant secretary for Indian Affairs.

"The Bureau of Indian Affairs stands staunchly behind the Indian tribes and their right to conduct Indian gaming," she said. "We will protect this American Indian right and exercise our trust responsibility to assist Indian tribes to engage in authorized gaming."

Deer's statement pointedly referred to the "557 federal recognized Indian tribes which would be allowed to conduct Indian gaming" under the Indian Gaming Regulatory Act. The Supreme Court struck down the provision in the act that authorized tribes to sue in federal courts to resolve gaming disputes against states.

"But currently there are only 282 tribes that are actively conducting Indian gaming," the Deer statement said, implying other tribes may follow their lead. If so, any disputes with states over gaming would likely end up on Babbitt's desk.

Nevada Senators Harry Reid and Richard Bryan met Thursday with Babbitt to express concern over what actions he might take should a flood of Indian gaming appeals cross his desk.

"While (the) decision was an important victory for states' rights, there was some uncertainty raised about what the role of the secretary of the Interior would be when it comes to Indian gaming," Reid said.

"We met to make sure he understood the position of the states and governors and didn't have any intention of actively subverting the court's decision."

Babbitt was "very cognizant and concerned, though he hadn't read the court's ruling," a Reid spokesman said. "Basically he said, 'I hear your message and understand where you're coming from.'"

"Tribes should have the same rights to offer gaming as other entities," Bryan said. "But in cases where certain types of gaming aren't allowed in a state, the state should not be forced into permitting Indian tribes to offer these types of games. From a public-policy perspective, that would be a disaster.

"I don't think he's determined how he'll proceed," Bryan said. "I fully anticipate tribes will be going to him and maintaining that since they can no longer file suit, he'll have to negotiate on their behalf. It was important for him to understand that state governors need to be consulted and involved."

The court's ruling on Wednesday left open the issue of whether Congress can authorize tribes to appeal to the Interior secretary when states balk at their plans for gambling operations. That is the question posed in appeals by Kansas, Florida and Alabama that the Supreme Court may consider.

Kansas is seeking to overturn an appeals court ruling that said Congress has power under the Constitution's supremacy clause to let tribes seek the Interior secretary's help if states won't negotiate or if tribes lose in court.

Alabama and Florida want the justices to overturn part of another appeals court decision that also said the tribes can seek redress from Interior. The 1988 federal statute was passed in response to a 1987 Supreme Court ruling that said states cannot ban games of chance on Indian land that are legal elsewhere inside their borders.

Michael Cox, general counsel for the National Indian Gaming Commission, noted that the Supreme Court's latest ruling did not address the issue of the Interior secretary's role.

"The court expressed no opinion on this substitute remedy," Cox said. "So I think that is what is going to happen. The tribes will go to the secretary of Interior."

But lawyers for the states said tribes cannot seek the Interior secretary's help because federal law makes that help available only if a federal court rules against a tribe -- and this week's ruling bars federal courts from hearing tribal suits to compel states to negotiate.

"I think the remedy of going to the secretary of the Interior is the last step in a process," said Jonathan Glogau, an assistant attorney general of Florida. "The beginning of that process is the courthouse door. The courthouse door is now closed, so we can't get to the Interior secretary."

"For the secretary of Interior to approve Indian gambling where the governor is in opposition is almost unimaginable," said Rep. Robert Torricelli, D-N.J. "It would be an infringement on the state and clearly untenable."

Torricelli is sponsoring legislation, backed by Atlantic City casino owner Donald Trump and other private gambling interests, that would give states new power to oversee Indian gambling. Torricelli's bill also would impose a new two-year moratorium on Indian gaming.

A rival measure sponsored by Senate Indian Affairs Committee Chairman John McCain, R-Ariz., would still require tribal-state negotiations but vest ultimate authority to referee Indian gambling disputes with the Interior secretary.