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State, Tribes Hope Supreme Court Will Clear Up Gambling Issue High Court Hearing Florida Case That Parallels Fight By Spokanes

Sun., Jan. 29, 1995

The Supreme Court likely will resolve a procedural roadblock in a contentious dispute between Washington state and Indian tribes when it rules on reservation gambling, spokesmen for both sides say.

But it is doubtful the high court’s ruling will permanently settle the long-running issue, they said.

The high court last week agreed to decide in a Florida case whether federal courts have authority to step into gambling negotiations between states and Indian tribes.

The move was hailed as a step toward breaking an impasse between Washington state and the Spokane Tribe of Indians, who have been at loggerheads over slot machines on the reservation northwest of Spokane.

The stakes are high.

Legalized gambling is a $1.6 billion industry in Washington state. Indian tribes see casino gambling as the economic salvation for reservations that typically have been pockets of poverty and high unemployment.

“Everybody’s looking at the Supreme Court case. It’s a major case,” said Washington State Gambling Commission Director Frank Miller. “It’s going to have an impact on our negotiations” with Indian tribes.

The Colville Confederated Tribes also offer slots at their casino near Lake Chelan.

The state contends the hundreds of slot machines operating on the Eastern Washington reservations are illegal under state and federal laws and refuses to discuss them in negotiating gambling compacts with the tribes.

The Spokane tribe contends the state has not negotiated in good faith and sued in U.S. District Court in Spokane. That case is before the 9th U.S. Circuit Court of Appeals in San Francisco.

Federal appeals courts have split on the issue of whether tribes can sue states for failing to negotiate gambling compacts in good faith.

In the case the Supreme Court has agreed to review, Florida officials contend the state cannot be sued by the Seminole tribe because the Constitution’s 11th Amendment gives states immunity from being sued without their consent.

The U.S. 11th Circuit Court of Appeals ruled that Congress lacked power to strip states of their immunity under the Indian Gaming Regulatory Act of 1988.

“The issue likely to be decided is precisely the same issue that the 9th Circuit decided last July in litigation between the Spokane Tribe and Washington state,” said Scott Crowell, a Bellevue attorney representing the tribe. “There’s a very real possibility the decision in the Seminole case will have an impact on the litigation of the Spokanes.”

The high court agreed to study the case during its 1995-96 term, meaning a ruling is likely sometime in 1996.

“We’re pleased with that decision,” Miller said. “It’s an issue that needs to be resolved at that level.”

Jonathan McCoy, an assistant state attorney general and lead counsel for the Gambling Commission, said the San Francisco-based federal appeals court sided with Washington state’s position in a recent California case.

The court “agreed with our position that it is a game-by-game analysis,” McCoy said. “If a state prohibits an activity, then it is not allowed.”

The Spokanes interpret another federal court ruling, which involved the Colvilles, to mean they can offer any type of gambling they choose if the state fails to negotiate a compact.

Should the states lose the procedural argument over 11th Amendment immunity, “we’ll go back to court and argue the cases on merits,” McCoy said. “I have no doubt we’ll win.”

Should the tribes lose, the appeals court offered an alternative, Crowell contended.

The 11th Circuit justices concluded that tribes can circumvent the state’s involvement in on-reservation gambling by an appeal to the Interior Secretary, who can impose regulations for reservation gambling, he said.

“Hopefully, it will help in bringing this to some kind of final closure,” Crowell said. “The tribe is confident that, win or lose, it will be able to continue to offer the games it wants.”

Whatever the outcome, the Spokanes will continue to press for development of their proposed Two Rivers Resort at the confluence of the Columbia and Spokane rivers, Crowell said.

“Win or lose on the 11th Amendment challenge to the Indian Gaming Regulatory Act, the tribes are entitled to go forward with their plans,” Crowell said.

The act “held it is the sovereign right of tribes to determine what activities are allowed, so long as they don’t blatantly offend the public policy of the state,” he said.

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