Interior drafting rules to help tribes get casinos

Deborah Baker

Thursday, Dec. 4, 1997 | 9:53 a.m.

SANTA FE, N.M. -- A federal agency is working on rules that could allow Indian casinos to open even when states say no.

The proposal could clear its first big hurdle soon. But after that, there's a long, rocky road ahead.

The U.S. Supreme Court ruled in 1996 that tribes cannot sue states that refuse to negotiate gaming agreements -- unless the states agree to be sued.

That decision in a Florida case means that although federal law requires states to negotiate in good faith, tribes have no recourse when they don't.

"What the department would like to do is restore that balance in some way and give the tribes some leverage in dealing with a recalcitrant state government," said Kevin Gover, the Interior Department's new assistant secretary for Indian affairs.

Indian gaming is a $6 billion industry nationwide; 147 tribes have signed a total of 158 compacts with 24 states, and most were negotiated without major problems.

But the Interior Department proposes that when there are breakdowns, tribes would be able to turn to the agency for help.

Although details are still under wraps, the process is expected to rely heavily on mediation, with the goal of getting states and tribes to agree.

The objective is "not to cut the states out. It's not to punish the states," Gover said.

States "will be given every opportunity to be heard and to have their concerns met in that process," he said.

If a state simply refused to negotiate, however, it's expected the proposed rules would allow the Interior secretary to authorize casino-type gaming on tribal lands, with certain conditions.

Interior Secretary Bruce Babbitt has not approved the proposal. If he does -- and that decision could be made within the next couple of weeks -- it would be shipped to the Office of Management and Budget, which could approve it, change it or even kill it.

If it survived OMB review, the package of proposals would be open to public comment before the final rules were issued.

And the department fully expects that once the rules were finalized, states would sue.

When the department last year invited comment on the proposed rulemaking, dozens of tribes urged the secretary to do it, arguing that Congress never meant states to have veto power over Indian gaming.

But attorneys general from more than two dozen states, along with at least eight governors, argued that the secretary lacks the authority to set up the process.

Interior officials say even if the rules were finalized next year, the secretary couldn't give the go-ahead to any tribe to open a casino in the absence of a compact.

An amendment to the Interior appropriations bill offered by Sen. Mike Enzi, R-Wyo., prohibits the secretary from issuing procedures in the fiscal year that ends Sept. 30, 1998.

"He didn't want the secretary of Interior circumventing the process and excluding states," said Coy Knobel, a spokesman for Enzi.

"If the states don't want gambling ... it's not really something that the federal government should come in and force upon them," Knobel said in a telephone interview.

Federal law says tribes may conduct casino-type gaming if a state allows it off-reservation, if the state and the tribe enter into a compact setting conditions and if the Interior secretary approves the compact.

In a state with no legal gaming -- Utah, for example -- tribes may not have casinos.

The federal Indian Gaming Regulatory Act also provided a remedy when tribes claimed states wouldn't negotiate in good faith. The tribe could go to federal court; the court could order the state and tribe to agree on a compact; if they didn't, a court-appointed mediator would choose a compact from versions submitted by each side.

If the state refused to accept the mediator's choice, the Interior secretary would "prescribe procedures" -- essentially, authorize the tribal gaming and set its conditions.

Because the U.S. Supreme Court said a tribe may not sue a state against its will in such situations, the mediation process outlined in the federal law cannot be triggered.

The proposed rules are expected to set up a similar mediation procedure, but outside the court system.

"We've been 10 years trying to get a compact with the state of California, so we need something to give us some sort of remedy," said Mary Ann Andreas, chairwoman of the Morongo Band of Mission Indians.

"We have to have an alternative to provide parity, and the tribes don't have that now," she said.

More than 30 California tribes, none with compacts, have casinos with video gaming machines that state officials say are not allowed by law. The state has refused to negotiate with tribes it says are conducting illegal gaming, although negotiations are under way with one tribe that does not have a casino.

Even staunch supporters of Indian gaming say the Interior secretary would be put in a delicate position to have to decide whether a state had acted in good faith or whether a certain type of gaming was allowed.

It's a "potentially politically horrible" situation for the secretary to be in, said Richard Hughes, a lawyer for New Mexico gaming tribes.

"If the secretary wants to take the heat and come with something that works, and that would be of benefit to the tribes, more power to him," Hughes said.