Attorney: ‘The legislation is an illegal attempt to unilaterally amend tribal gaming compacts’
Scott Crowell, attorney for the Shoshone-Bannock Tribes, told lawmakers, “The legislation is an illegal attempt to unilaterally amend tribal gaming compacts.” If HB 127 were to pass, he said, the state would quickly have another lawsuit. “This legislation, if it’s passed, will result in a lawsuit in which the state is unlikely to prevail, based upon precedent from the last 15 years.” He explained the complex interplay of state and federal law on gaming activities by sovereign tribes. When Idaho approved a state lottery, that allowed tribes to negotiate compacts to offer their own Class III gaming on their reservations.
Rep. Steven Harris, R-Meridian, asked Crowell, “If the authority is already established, what harm is done by ... the bill?” Crowell responded, “Twofold.” First, he said, “The law attempts to amend the compact; that’s not the way to go about it. That’s the process concern.” Secondly, he said, “The substantive concern I have is really the first speaker’s answer, I believe it was to Rep. Armstrong’s question ... suggesting that the difference (between machines) is a night and day difference. I believe that even if the state’s intention is for this bill to have benign effect upon tribal gaming, it will be used as a tool by others, as the vice chair of the Nez Perce said, to file frivolous lawsuits and bog the tribes down to where we’re fighting off these interpretations. The real purpose of this bill is to outlaw tribal video gaming machines.”
In response to continued questioning, Crowell said, “Slot machine, especially as used in the Idaho Constitution, is not a clear term.” That’s why the law delineates what tribal gaming machines are and that they’re not slot machines, he said. “You did the same thing in authorizing a state lottery – these devices are not slot machines.”
He added, “The Legislature has characterized them as not slot machines, the 9th Circuit has accepted that interpretation.”
Rep. Priscilla Giddings, R-White Bird, asked Crowell, “Do you think that the Legislature needs to meet with the tribe before we change Idaho law?” He responded that in this case, “Yes I do. The Shoshone-Bannock compact was amended as a result of litigation.” Because the Sho-Bans weren’t part of the tribal gaming initiative in 2002, the state took the position that they weren’t authorized to conduct gaming, he said. Federal courts ruled that because sovereign tribes can conduct any class of gaming that’s already legal in the state, and Idaho had authorized tribal gaming, the Sho-Bans could negotiate a compact to conduct it as well.
Crowell said the issue is simpler, for example, in Hawaii, which bans all forms of gambling. Idaho allows a state lottery, charitable bingo and pari-mutuel betting, which opens the door to legal interpretations as to whether a particular type of gaming falls into one of those categories or not. “Whether a game is permitted to any person or entity for any purpose provides the floor on which a state must negotiate with an Indian tribe on tribal compacts,” Crowell said. “It does not provide a ceiling.” He added that in the litigation that upheld Idaho tribal gaming, “The court expressly noted that the constitutional provision does not apply to Indian lands.”
Rep. Lynn Luker, R-Boise, said, “What I hear you saying is that our constitutional language is pretty much worthless?”
“Of course not,” Crowell replied. “The legislative body decides what it can and can’t do off Indian lands,” and can draw fine lines about what’s allowed there, he said. “But federal law, particularly the Indian Gaming Regulatory Act, does not allow states to draw those fine lines when they’re dealing with tribes, unless they can defend those fine lines based on strong public policy grounds, and I don’t see it here.”
