Legislature again asked to waive Idaho’s sovereign immunity

Mark Warbis

Thursday, Feb. 24, 2000 | 4:29 a.m.

BOISE, Idaho - The Legislature is being asked again to allow a federal judge to assess the legality of video pull-tab gambling machines on the Shoshone-Bannock tribes' southeastern Idaho reservation.

But the outcome of such a ruling could mean the end of the lucrative casino-style electronic gambling operations being run by three northern Idaho tribes.

So Indian leaders on Thursday urged lawmakers at least to delay implementation of the state's agreement with the Shoshone-Bannock for a year while their talks continue with the Kempthorne administration on an out-of-court resolution.

"If the Legislature will allow this negotiation to continue until they meet again in 2001, this issue that pulls us apart can be solved in such a way that will bring us together," the chairmen of the Nez Perce, Coeur d'Alene and Kootenai tribes wrote in a letter to House State Affairs Chairman Bill Deal, who as vice chairman last year led opposition to essentially the same bill heard Thursday.

This time the Nampa Republican's committee agreed to introduce the legislation that would ratify a federally required gambling compact with the Shoshone-Bannock, and includes a provision waiving Idaho's sovereign immunity from being sued so the state and tribes can seek a judge's ruling on the controversial machines.

Only two committee members opposed introducing the bill, at least in part out of fear that a judge's ruling might go beyond what games are legal in reservation casinos under the federal Indian Gaming Regulatory Act.

"We've been surprised by the court's rulings before against the state, and I'm just not comfortable waiving it," Republican Rep. Shirley McKague of Meridian said. "I don't trust the judicial system."

The complex Shoshone-Bannock compact came before State Affairs near the end of last year's legislative session and died in committee. The Nez Perce, Coeur d'Alene and Kootenai at that time flatly opposed referring the question of video pull-tab and other slot machine-type games to a judge because such machines had become an important part of their reservation casinos.

Indian leaders still argue their machines only offer an electronic version of the state Lottery's scratch-off tickets that have included such themes as poker, craps and other casino-style games. Any form of gambling allowed by the state also is authorized on their reservations.

The state and anti-gambling activists contend that the tribes are violating the Idaho Constitution's limited acceptance of gambling. But as the boon to depressed reservation economies becomes increasingly evident, negotiations have gotten under way with Gov. Dirk Kempthorne's office on a middle ground.

Indications are that the governor may be willing to accept the status quo. But if a judge rules against the Shoshone-Bannock before an agreement is reached, the other tribes' chances to at least preserve what they have might be forfeited.

Jaime Pinkham, treasurer of the Nez Perce Tribal Executive Committee, said a judge's ruling against the Shoshone-Bannock also would require more costly litigation to determine whether the decision could be applied to the other Idaho tribes.

"Going to court always involves a risk," Pinkham said. "It's an unnecessary risk if both the tribes and the governor continue to work towards a negotiated solution."

Deputy Attorney General David High said if the legislation is approved as written he expects legal action to begin within a month but a federal court ruling could be at least a year away.

Republican Rep. Julie Ellsworth of Boise told her State Affairs colleagues she was confident based on court precedent that the state would prevail and the gambling machines would be found illegal. But her cosponsor, GOP Rep. Kent Kunz of Pocatello said the potential for certainty was worth the risk.

"As gentlemen and civilized people we will resolve our differences in federal court," he said. "If we do nothing here today then all of your fears will be projected on into the future."