Friday, April 3, 1998 | 10:06 a.m.
Supporters and opponents of gambling on Indian reservations reacted tepidly at best to a proposal floated by Sen. Harry Reid, D-Nev., to designate a government official independent of the Interior Department to arbitrate conflicts between tribes and states.
"These are just ideas being floated," said Gregory Smith, a Washington attorney who works closely with many tribes on gaming issues. "It's hard to say whether it's likely or not."
"I don't know," Tom White, a Florida state official, said when asked how states that oppose Indian gambling were reacting to the proposal. "States haven't really explored that in great detail."
Reid has historically opposed Indian gaming, believing it hurts Nevada's gaming industry. His proposal can be explained in part by his belief that the Interior Department acts as an advocate of Indian interests, and cannot be trusted to fairly arbitrate tribe/state disputes.
Indian tribes were first granted the right to conduct gaming operations on their reservations by a 1987 Supreme Court decision widely known as the Cabazon decision. That right was codified in 1988's Indian Gaming Regulatory Act (IGRA).
Under IGRA, tribes wanting gaming operations on their reservations must negotiate agreements -- or compacts -- with their states detailing the rules governing gaming and the fees they must pay the states to cover regulatory and infrastructure costs.
If states try to block Indian gambling by refusing to negotiate, according to IGRA, tribes have a right to sue. A judge can then appoint an arbitrator to resolve the dispute. Under IGRA, all compacts have to be approved by the interior secretary.
IGRA began to crumble in 1996, when the U.S. Supreme Court held that states were protected from lawsuits under the 11th Amendment's sovereign immunity provisions. All sides agree that this decision, which came in a suit filed against Florida by the Seminole Nation, dealt IGRA a serious blow, and threw the question of Indian gaming wide open.
"That took a chunk out of the IGRA, out of the law," White said.
The problem is that states can essentially block Indian gaming operations by refusing to negotiate compacts.
"We've been at an impasse for years (over) who makes a decision if a state is not negotiating in good faith," Reid said in an interview.
Into the gap left by the Seminole decision stepped Interior Secretary Bruce Babbitt, who earlier this year proposed making the Interior Department the final arbiter of state/tribe disputes.
The states have serious problems with that proposal, citing 19th century laws that designated the interior secretary as the official federal champion of Indian rights.
"To have a secretary of interior who is put in the place of being on the side of the tribes come out with a regulation that says that he is now going to be the judge, in essence, between the tribes and the states is just not correct," White said.
Said Reid: "The secretary of interior has a tribal and fiduciary responsibility that runs to the tribe. This prevents him or her from arbitrating these types of contentious disputes in a fair and impartial manner."
So Reid proposed designating an official like the attorney general, or a panel of officials, to judge disputes between Indian tribes and states.
"My proposal is that someone other than the secretary of the interior would make that decision," Reid said.
Reid's proposal came at Wednesday's meeting of the Senate Indian Affairs Committee while he was questioning Interior Department officials. Kevin Gover, assistant secretary for Indian affairs, said the Interior Department was open to the suggestion, and that the department has discussed a similar proposal with officials from the Conference of Western Attorney's General and with the National Governor's Association.
"I gave them two weeks to get back to me with proposals," Reid said.
Smith said the proposal is "worth evaluating," but that Indian tribes feel the federal government can enforce IGRA right now by simply suing states that refuse to negotiate.
"While the United States sits around doing nothing, the tribes are out there with no remedy," Smith said.
But White said IGRA gave the federal government no authority to sue states who refuse to negotiate with tribes. Babbitt has "tried to fill a void," in the law, but has no legal authorization to do so, White said.
The states will have to study Reid's proposal before taking a position, White said.
Whether there is a designated arbitrator or not, White said many states will continue to dispute the notion that IGRA gave Indian tribes the right to run any type of gambling operation they desire. Florida's stance is that Indian tribes should not be allowed to operate gaming operations that are banned elsewhere in the state, White said.
"If it's illegal for other citizens in the state, why should it be any different for Indian tribes?" he asked.
Reid agrees, saying the best "fix" to the problem is "scope of gaming" legislation clearly delineating what type of gambling is allowed on Indian reservations.
"If we have learned any lesson from IGRA, it's that we should not allow the scope of gaming to be decided by the courts," Reid said.
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