Friday, July 20, 2001 | 10:47 a.m.
PHOENIX -- Arizona's Indian casino quandary is increasingly likely to be settled in one of two places: the Legislature or the ballot box.
Both have been tried with mixed results in neighboring states.
The California model has the tribes writing their own gaming compacts and submitting them as a voter initiative, which led to a constitutional snafu and a vast expansion of Indian gaming in that state.
The New Mexico model has the Legislature giving itself the final say over agreements with Indian tribes, a solution that led to tribal complaints of excessive taxation by the state government.
Arizona's Indians have not yet decided what strategy to advocate, but several tribal representatives are meeting to discuss their options in the aftermath of a recent federal court ruling invalidating Gov. Jane Hull's power to negotiate gambling compacts by herself.
One strong possibility is the tribes will take their case straight to voters in November 2002.
"Nationally, Indian tribes have generally been very successful with referendums," said I. Nelson Rose, an expert on gaming law at the Whittier School of Law in Whittier, Calif. "It is the saner way to do it."
The idea was on the table long before U.S. District Judge Robert Broomfield's July 3 ruling. Paul Mandabach, a Santa Monica, Calif., political consultant who engineered a successful 1998 ballot initiative on behalf of 40 California tribes, has been on retainer to the Arizona Indian Gaming Association since February.
Running an initiative would allow tribes to dictate their own terms, keep a check on state regulation and craft a sympathetic television message.
Initiatives can also be expensive: The 1998 measure in California cost tribes there $67 million.
But even a costly media-heavy campaign might be a bargain for Arizona tribes, which rake in an estimated $830 million every year in a business they are determined to keep alive at all costs.
Arizona voters also have a history of making compacts with Indians by ballot. In 1996, the Salt River Pima-Maricopa Indian Community took its gripes with then-Gov. Fife Symington to an initiative, spending $2 million to win the right to run casino-style games on its land. Mandabach was the architect of that effort.
If Arizona's 15 gaming tribes were able to pass their own compact, it almost certainly would add blackjack games and the right of rural tribes to trade away their slot machine allotments to urban tribes.
The Indians' willingness to go this route will depend on advance polling data and the spending money available to the tribes as well as the perceived friendliness -- or lack thereof -- of the Arizona Legislature, according to Andy Hurwitz, an attorney for the Salt River Pima-Maricopa Indian Community.
Independent polls have shown an approximately 66 percent level of support for limited gaming on reservation lands.
But a small coterie of Arizona legislators thinks the New Mexico model is a better idea than an initiative.
At least two state lawmakers, Senate President Randall Gnant and Sen. Scott Bundgaard, both Republicans, have already called for a special session to give the Legislature powers of approval over the compacts that Hull negotiates.
"It is important to give the Indian communities the tools they need to improve their economic situation," Bundgaard wrote Hull in a July 5 letter. "However, it is also important to provide these tools within the framework of our law."
This would seem to satisfy the concerns of Broomfield, who said the constitutional tangle over Indian gaming could "readily be cured by the Arizona Legislature."
It was a decision remarkably similar to one in 1995 from the New Mexico Supreme Court, which ruled that Gov. Gary Johnson had no standing to make agreements with tribes.
The New Mexico Legislature reacted by taking 15 compacts Johnson had already negotiated and running them through the legislative process during the 1997 session as if they were bills. Critics complained the state's share of 16 percent from casino profits was too high and several tribes refused to pay.
New negotiations were smoothed with the passage of the Compact Negotiation Act in 1999. A 16-member panel of legislators was created to sign off on agreements reached by the governor.
This year, the state is close to signing 14-year agreements that would give the state an 8 percent cut of revenue.
"The consensus was that this was a good way to manage what would have been a set of five- or six-way negotiations," said John Yaeger of the New Mexico Legislative Counsel Service.
In California, tribes walked away from the negotiating table in 1998 after federal prosecutors told them to accept a "model compact" from the state or close down their casinos.
Political consultants were hired to get the tribe's own compact, which legalized video slots, blackjack and coin-dispensing slots, onto the November 1998 ballot. Professional signature-gatherers were paid up to $2 per signature in the effort.
The campaign, waged largely through television ads, set records for the most amount ever spent on an initiative by both sides: $92.1 million.
Citizens approved Proposition 5 with 62 percent of the vote, but the following year the California Supreme Court declared it unconstitutional, based on technical language.
Tribes were forced to spend an additional $23 million to amend the state's constitution with the March 2000 passage of Proposition 1A. It sealed the intent of Proposition 5, and the state has since experienced a boom in Indian gaming expansion. California tribes and their financial backers poured an estimated $2 billion into new casino operations that same year.
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