13 States Ask Appeals Court To Uphold Casino Ruling

Wednesday, Oct. 23, 1996 | 11:59 a.m.

The attorneys general filed a brief in the case that is scheduled for a hearing Nov. 20 before the 10th U.S. Circuit Court of Appeals.

The other states were attracted by the federalism issues involved in the case, said Thomas Gede, a special assistant attorney general in California who filed the document.

States "jealously guard their power under the Constitution" and when it appears the federal government might tread on that, "we tend to show up," Gede said Tuesday in an interview.

The states said U.S. District Judge Martha Vazquez was correct when she ruled that federal approval did not validate state-tribal compacts that were invalid under state law.

Deciding otherwise - that federal approval somehow finalized the compacts - would pre-empt state laws and threaten states' integrity, the 13 states said.

Nine tribes have asked the federal appellate court to overturn the ruling Vazquez issued in July. She said compacts signed by tribal leaders and Gov. Gary Johnson in 1995 that sanctioned the casinos are invalid because Johnson didn't consult the Legislature.

Ten of New Mexico's 11 tribally operated casinos were allowed by courts to remain open while Vazquez's ruling is appealed.

The brief was filed by Alabama, Arizona, California, Florida, Hawaii, Idaho, Kansas, Massachusetts, Michigan, Nevada, Oklahoma, Rhode Island and Vermont.

The states did not take a position on whether Johnson had the authority to enter into the compacts. But they agreed that's something that should be determined by state law, not by a federal official.

The 1988 Indian Gaming Regulatory Act says "the state" shall negotiate with an Indian tribe that wants a compact. No state agency or official is specified, and states handle it in a variety of ways.

"The federal courts should defer to state law on the question of who should negotiate these compacts," Gede said.

The 13 states include at least two - Hawaii and Vermont - that have no federally recognized Indian tribes and therefore no Indian gambling.

The New Mexico pueblos that appealed Vazquez's decision argue that once the Secretary of Interior approved the compacts, they were final.

Allowing after-the-fact challenges could unsettle the finality of compacts everywhere and leave tribes "totally vulnerable to shifting state political winds," the tribes said in their brief.

But the states say that "the integrity of the states' independent constitutional schemes is threatened by a determination that the Secretary's approval is somehow 'final' in all respects."