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9th Circuit rules against CdA Tribe in Texas Hold ‘Em poker case

The 9th Circuit U. S. Court of Appeals has ruled against the Coeur d’Alene Tribe’s bid to offer Texas Hold ‘Em poker at its reservation casino in Worley, finding that poker is “explicitly prohibited by Idaho law.” The tribe contended that Texas Hold ‘Em is a game of skill, not just chance, so should be allowed under Idaho’s Constitution. It also argued that Texas Hold ‘Em is widely played already around Idaho, from charity events to big tournaments.

U.S. District Judge B. Lynn Winmill issued a preliminary injunction against the poker games at the Coeur d’Alene Casino in September; the tribe appealed to the 9th Circuit. Today, the appeals court sided with Winmill.

“The Tribe’s interpretations of Idaho law are not persuasive,” wrote 9th Circuit Judge Michael Daly Hawkins, writing for a unanimous three-judge panel. “Though skill undoubtedly plays a role in Hold’em, the game does not qualify for the statutory exemption for bona fide contests of skill, speed, strength or endurance. A contrary reading would impermissibly place the statute in conflict with the constitution’s prohibition on poker.” You can read my full story here at spokesman.com, and read the 9th Circuit decision here.

Chief Allan, chairman of the Coeur d’Alene Tribe, issued this statement in response to the ruling:

“We are, of course, disappointed with the decision issued today by the 9th Circuit concerning the Coeur d’Alene Tribe’s right to offer Texas Hold’em. Ironically, the very provision of the Idaho Constitution the State argued should be strictly interpreted to oppose the expansion of gaming, is overlooked by the state in the governor’s efforts to expand casino gaming at horse and dog tracks around Idaho.” 

Supreme Court agrees to allow Leroy to offer arguments in instant racing case

The Idaho Supreme Court has agreed to allow former Idaho Attorney General David Leroy, attorney for Coeur d’Alene Racing, operator of the Greyhound Park Event Center in Post Falls, to participate in oral arguments in the instant racing case on Aug. 11. Previously, the court had allowed various parties, including Gov. Butch Otter, the operators of Les Bois Park, and the operators of the Double Down Betting Bar & Grill in Idaho Falls, to submit friend-of-the-court briefs, but not to participate in the oral arguments, which were to feature only the attorneys for the Coeur d’Alene Tribe and Idaho Secretary of State Lawerence Denney.

Leroy had asked to participate in arguments earlier, and the court had said no. But after he submitted a second request noting that the Secretary of State’s attorney, Deputy Attorney General Brian Kane, took “no position” on the issue of whether the tribe had standing to bring the lawsuit, the court agreed to allow Leroy to participate in the arguments – with the time he takes deducted from Kane’s time to argue.

Leroy noted in his second request that all three of the parties filing amicus briefs argued the standing issue, but the original target of the lawsuit, Denney, didn’t. “This procedural situation presents the likelihood that this substantial, critical and threshold issue will not be fully addressed and examined orally before the Court, if the Respondent only is allowed to argue,” he wrote, noting that the tribe responded to the standing argument in its response brief.

He also laid out other arguments he pressed in his friend-of-the-court brief, including a separation-of-powers argument saying the court can’t tell the Senate what to do, if the Senate wants to accept a veto as valid.

SB 1011, the bill to ban “instant racing” machines, which the Legislature had just authorized two years earlier, was among the most-lobbied bills of this year’s legislative session. It passed both the House and Senate by more than two-thirds margins. Gov. Butch Otter issued a veto, but didn’t send the vetoed bill back to the Senate until two days after the constitutionally-set five-day deadline. The Senate then took a veto override vote, which drew a majority, but not the two-thirds required for an override. The Coeur d’Alene Tribe, which proposed the bill, said the bill had become law without the governor’s signature when the veto deadline passed, and requested Denney to assign it a code section number and file it as a law. Denney refused, saying he didn’t think he had the authority to do that unless someone – the Senate or the court – told him to. So the tribe sued.

The arguments are set for Aug. 11 at 10 a.m.

Idaho tribes call ‘instant racing’ machines an ‘illegal hoax’

The chairmen of four Idaho Indian tribes are calling on the state’s governor and Attorney General to end the spread of so-called “instant racing” betting machines – like those at the Greyhound Park in Post Falls and Les Bois Park near Boise – saying they violating Idaho’s gambling laws.

The machines purport to be a new form of “pari-mutuel” betting on horse races, which is legal in Idaho; that’s betting where a pool of bettors splits the winnings. But the machines don’t display current horse races; they show a snippet of the end of an unidentified past horse race. The tribal chairmen called the spread of the new machines an “illegal hoax.” They were approved by state lawmakers the year before last at the urging of Idaho’s horse racing industry, which said allowing betting on past, or “historical” horse races, would help cash-strapped racetracks continue to be able to offer live racing.

When the slot machine-like machines, which have tiny screens on which the last few seconds of one horse race after another is shown while operators bet and reels spin with symbols, started showing up at Idaho tracks last spring, some lawmakers said they’d been “duped.” So far, the instant racing machines have been installed at the Greyhound Park, Les Bois Park near Boise and an off-track sports bar in Idaho Falls.

“All you have to do is go play them and ask yourself if you are actually betting on a horse race,” said Chief Allan, chairman of the Coeur d’Alene Tribe. “It’s a hoax that has consistently been found illegal in other states and these machines will continue to make a mockery out of the law until Idaho does something to stop it.” You can read my full story here at spokesman.com.

Tribe plans emergency appeal, says court may have misunderstood about arbitration process

The Coeur d’Alene Tribe says it will immediately file a motion to stay Judge Lynn Winmill’s ruling today granting an injunction ordering the tribe to shut down the poker room at its Worley casino, and will file an emergency appeal to the 9th Circuit U.S. Court of Appeals. “We still believe that we have valid legal arguments under federal law for offering poker at our casino and the court’s decision did not fully consider some of those arguments,” said tribal attorney Eric Van Orden.

Helo Hancock, tribal legislative affairs director, said the tribe didn’t decide against arbitration and didn’t want to litigate the issue. “It appears there may be a misunderstanding by the court,” he said. “Because our compact is clear that it is the aggrieved party that is supposed to file or provide notice of their intent to arbitrate. And we’re not the aggrieved party. We don’t think we’re doing anything wrong. We think we’re well within our rights. It was the state who sued us, and accordingly it would be the state’s responsibility as the aggrieved party to file notice of their intent to arbitrate. That really isn’t on the tribe.”

Hancock said that issue will be addressed in the motions the tribe will file today both with the U.S. District Court and the 9th Circuit. “They’re being drafted now,” he said. Casino officials are awaiting advice from counsel on whether the poker room will stay open or not as the emergency appeal is filed.

Chief Allan, tribal chairman, said, “Obviously, we’re very disappointed in Judge Winmill’s decision. Poker is so widely played across the state by so many different people and organizations that it sounds ridiculous to say that everyone playing poker in the State of Idaho is breaking the law, but that is what this decision says.”

Judge orders shutdown of CdA Tribe’s poker tournaments at casino

U.S. District Judge Lynn Winmill issued an injunction today ordering a halt to “Texas Hold ‘Em” poker tournaments at the Coeur d’Alene Casino at Worley, saying the tourneys violate Idaho’s ban on poker; you can read my full story here at spokesman.com. The tribe argued that its tournaments are a game of skill, not chance, and that they don’t fit under the ban. In June, Winmill rejected the state’s bid for an injunction, instead calling for the state and tribe to go to arbitration over the issue, as provided for in their state-tribal gaming compact.

However, the judge wrote in his ruling today, “The Tribe changed its mind and decided it would prefer to litigate.” So Winmill considered the pending motions in the case – the tribe’s motion to dismiss the state’s lawsuit, and the state’s motion for an injunction shutting down the poker games. He rejected the tribe’s motion and granted the state’s.

“The Tribe believes it has the right to offer the poker tournaments and apparently will continue to do so absent an injunction,” Winmill wrote. “These poker tournaments violate Idaho gambling law. The upshot is that unless an injunction issues, the State will be left without any effective remedy.”

The tribe started offering the tournaments in May, prompting the state to file the lawsuit. The judge wrote that the lawsuit can go forward and the injunction will remain in place “until such time as this matter is heard and decided on the merits.” You can read the judge’s 24-page decision here. Winmill found that the state "will almost certainly succeed on the merits of its claims," and held that chance is a key part of poker.

Gov. Butch Otter welcomed the ruling. “I appreciate the initial determination that the Coeur d’Alenes’ decision to conduct Texas Hold ’em games violates state law and the Idaho Constitution,” Otter said in a statement. “The Legislature and the people of Idaho have made it clear what kind of gambling they will accept. That does not include poker. And no matter how much the Tribe insists otherwise, Texas Hold ’em is poker.”

Task Force Denounces Hate Crime

Spokeswoman Heather Keen of the Coeur d'Alene Indian Tribe reports that the Idaho Department of Transportation has already replaced the historical market contaminated with racist graffiti. She encourages anyone with information about this incident to call the Idaho State Police or Crime Stoppers at 1800-222-8477. (Courtesy photo: Coeur d'Alene Tribe)

Tony Stewart of the Kootenai County Task Force on Human Relations sent the following letter to the Coeur d'Alene Indian Tribe re: racist vandalism found on the DeSmet Mission historical marker over the weekend: "It is with great sadness and concern that we have learned about the hate message scrawled on the Coeur d’Alene Tribal historical sign. It is obvious that the perpetrator or perpetrators have engaged in the most hideous form of racism that has emerged from their deep seated bigotry and prejudice. This is clearly a hate crime with the intent to promote anger and hatred directed at the good people of the Coeur d’Alene Tribe. It is unfortunately another example to remind us that we still have a challenge in eradicating racism from the world’s society. We condemn and denounce in the strongest terms this act of hatred." Full letter here. (Courtesy photo of vandalism: Coeur d'Alene Indian Tribe)

Question: Do you consider the vandalism to the DeSmet Mission historical marker to be a hate crime?

Catching up on the news…

Catching up on some of the news I missed while off last week, it’s striking how the big political story in Idaho – rift and strife within the state’s supermajority Republican Party – remains the same. Over the course of the week, two dueling dates were set for a party Central Committee meeting: Aug. 2, set as a result of a petition from county party committees, and Aug. 9, set by embattled party Chairman Barry Peterson, who maintains he’s still the chairman despite the lack of an election of officers at the party’s failed state convention in Moscow in mid-June. The central committee meeting – one of them, anyway – ostensibly would decide where the party goes from here.

Mary Tipps Smith, the sole remaining paid staffer at the troubled party’s central office, resigned mid-week as finance director, asking people on Facebook to “pray for the Party during a difficult time.” This was the week after the departure of executive director Trevor Thorpe, whom Peterson said had left to pursue a master’s degree; at that point, Peterson also changed the locks at the party offices.

The day after Tipps Smith’s depature, Peterson hired Judy Gowen, former political director for Sen. Russ Fulcher’s unsuccessful primary challenge to GOP Gov. Butch Otter, as the party’s new executive director. Idaho Statesman columnist Dan Popkey has the rundown at his blog here, at which he also reports that Peterson told KIDO radio’s Kevin Miller on Friday that Otter was angry “because the party would not bend over” to his wishes on a state health insurance exchange.

Meanwhile, the Idaho Transportation Department announced last Monday that every rural stretch of interstate freeway in southern Idaho that’s now 75 mph would rise to 80 mph on July 1, as soon as it could get the new speed-limit signs posted, causing consternation for AAA, which had raised safety concerns about the new law that passed this year – and been assured that only after extensive and specific traffic and safety studies would any particular stretch of freeway see the higher speed limit. On Friday, ITD back-pedaled, announcing that the speed limit increase would be delayed to allow the department to “review input expressed since the announcement.” Now, the ITD board will review the traffic and safety analyses at its July 11 meeting in Coeur d’Alene.

Gov. Butch Otter announced reforms to the state’s Workforce Development Training program, initiated by his new state Labor director, Ken Edmunds; they include higher standards for companies to qualify for aid under the program, aimed at avoiding repeats of instances where companies have gotten lots of money for specific job training for workers, then later failed and laid off those same workers.

With Coeur d’Alene, Boise and Idaho Falls all in competition to get the first mental health crisis center in the state – since the Legislature this year chose to fund only one instead of all three – the announcement came that Idaho Falls would get the center.

And U.S. District Judge B. Lynn Winmill tossed out the state’s lawsuit against the Coeur d’Alene Tribe for opening a poker room at its Coeur d’Alene Casino, calling it premature; the tribe and the state have a gaming compact that calls for arbitration of disputes before any lawsuits can be filed. The tribe argued that the Texas Hold ‘Em tournament play it was offering was legal in Idaho; the state maintained it wasn’t. Rather than enter a 60-day arbitration period, the state filed suit. “The state jumped the gun and violated the provisions of our agreement when it raced to the courthouse with this unnecessary lawsuit,” tribal attorney Eric Van Orden said in a statement; you can read a full report here from S-R reporter Becky Kramer.

This year’s final episode of “Idaho Reports” aired Friday on Idaho Public TV, with analysis of both the comparatively smooth Idaho Democratic Party convention in Moscow and the earlier GOP fiasco and a look ahead to new laws taking effect this week and the election season ahead; you can watch online here.

Judge hears arguments in tribal poker case

U.S. District Judge Lynn Winmill heard from both the Coeur d’Alene Tribe and the state of Idaho today in the state’s bid to shut down the tribe’s poker room at its Worley casino, but issued no immediate ruling. The federal judge is considering motions from the state for a temporary restraining order to halt the poker play and for injunctive action to block it in the future; and from the tribe to dismiss the state’s lawsuit.

The state contends that all poker is banned in Idaho, both in the Constitution and by state law. But the tribe argues that the type of poker it’s offering – Texas Hold ‘Em tournament play – falls under a legal definition for games of skill, not illegal gambling. That would mean if anyone else in the state is authorized to offer it, the tribe could too, under its gaming compact with the state. You can read my full story here at spokesman.com; the poker room at the Coeur d’Alene Casino opened May 2, and tribal officials said it’s proven popular.

State reply to tribe: Golf tourneys ‘bear no resemblance to poker,’ and Texas Hold ‘Em illegal even if others in state play it

The state of Idaho has filed its reply as its lawsuit against the Coeur d’Alene Tribe over the new poker room at the tribe’s Worley casino heads to a court hearing next week. In the latest filing, the state argues that events like golf tournaments “bear no resemblance to poker where chance is an essentially element of the game.” The tribe is arguing that the type of poker it’s offering, Texas Hold ‘Em tournament play, qualifies as a contest of skill – like a golf tournament – bringing it under an exemption in Idaho’s anti-gambling laws. Even though Idaho bans poker, the tribe argues, that prohibition doesn't apply if the game in question is one of skill, not just luck.

In its reply, the state argues that “any variant of ‘poker’ is plausibly, indeed necessarily, encompassed.” It also argues that the binding arbitration clause of the state-tribal gaming compact doesn’t foreclose it from filing this lawsuit, and discounts the tribe’s contention that Texas Hold ‘Em is widely played in Idaho.  “The fact that the law is violated commonly … does not eliminate the illegality,” the state’s attorneys write. “Were the contrary true, speed limits would become legal fictions.” You can read the state reply here. U.S. District Judge Lynn Winmill will hear arguments in the case Tuesday in Coeur d’Alene, on the state’s motion for a temporary restraining order to shut the poker room down.

Tribe equates Texas Hold ‘Em and golf

BOISE – Texas Hold ’Em poker is no different than golf under Idaho law, the Coeur d’Alene Tribe contends as it fights a lawsuit filed by the state.

Poker is a game of skill, in which players can pay fees to enter tournaments and win prizes for how well they do, according to the tribe, which opened a card room in its casino.

The state of Idaho sued the Coeur d’Alene Tribe in federal court May 2.

The state argued that poker is illegal in Idaho, prohibited both by the state constitution and the law. But the tribe said the type of poker it’s offering – Texas Hold ’Em tournament play – is legal and is widely played in Idaho.

“As long as the state permits a single person, organization or entity to operate a game at any location in the state, whether for charity purposes or otherwise, the tribe is entitled to operate such games in its gaming facility,” the tribe argued. Betsy Russell, SR

Agree or disagree with the Tribe's contention that Texas Hold 'Em is no different than golf?

CdA Tribe’s response to state lawsuit: Legally, Texas Hold ‘Em poker is like golf

Texas Hold ‘Em poker is no different than golf under Idaho law, the Coeur d’Alene Tribe argues in its response to a lawsuit from the state – it’s a game of skill, in which players can pay fees to enter tournaments and win prizes for how well they do. “As the statute provides, even if the game of poker is prohibited, that prohibition does not apply if the game can be shown to be a ‘contest of skill,’” the tribe wrote in legal arguments submitted in court Friday; you can read my full story here at spokesman.com.

The state of Idaho sued the Coeur d’Alene Tribe in federal court on May 2, after the tribe opened a poker room at its Coeur d’Alene Casino in Worley. The state argued that poker is flat illegal in Idaho, prohibited both by the state Constitution and law. But the tribe said the type of poker it’s offering – Texas Hold ‘Em tournament play – is legal, and is widely played in Idaho. That makes it a type of Class II gaming, not Class III, under federal law, the tribe argues, so if anyone else can offer it in the state, tribes legally can, too.

Tribal officials say they first learned of state’s lawsuit against them from this blog

Coeur d’Alene Tribe officials said late this afternoon that the state never told them it was filing a lawsuit against the tribe, and they've not yet been served with the suit. “We found out from your blog,” tribal legislative liaison Helo Hancock said. “It’s frustrating to have to learn in that manner. This lawsuit is completely unnecessary.”

Tribal Chairman Chief Allan said, “We believe we are well within our right to offer poker. If the state has a problem with our legal analyses, they can invoke dispute resolution under our gaming compact – that’s why we have it – so we can negotiate our differences in a professional setting.” You can read my updated full story here at spokesman.com.

Hancock said, “We thought we were going to discuss this on a government-to-government basis as the compact contemplates, sit down. There’s obviously a legal disagreement here, and I think it’s something clearly reasonable minds could disagree on. We think the state statute has a clear exemption for contests of skill. And anybody who’s ever played poker knows that it’s not just a game of chance – people who are good at poker consistently win at poker. It’s kind of like golf. And certainly there are elements of chance in a lot of things, but this we believe is a contest of skills – courts around the country have been finding that.”

Hancock added, “We were in agreement to go through the dispute resolution process.” The tribe had just sent a letter to state Lottery Director Jeff Anderson today saying it would agree to an expedited process dispute-resolution process and binding arbitration, and proposing a meeting on May 9. Said Hancock, “It’s frustrating to see the state jump the gun on this.” The tribe issued a full statement on the lawsuit early this evening; you can read it here.

Tribe: State misunderstands its plans for limited poker tournament play

Coeur d’Alene Tribal Chairman Chief Allan, in an April 28 letter to state Lottery Commission Director Jeff Anderson, said the state’s objections the tribe’s plans to offer poker games at its Coeur d’Alene Casino appear to stem from “a misunderstanding of both the games that the Tribe plans to offer and the Tribe’s federal rights under the Indian Gaming Regulatory Act.”

Wrote Allan, “The Tribe’s Gaming Board has taken a very conservative approach and has authorized only a limited type of poker tournament.”

He noted, “There is no question that such tournaments are conducted at many locations throughout the State. … We believe that the State’s concerns will be resolved once it understands the limited nature of the poker tournaments to be offered by the Tribe and the legal authority for such tournaments.”

Plus, Allan added that the tribe would like to discuss with the Lottery Commission the implications of the passage of legislation this year authorizing betting on slot-machine-like “instant racing” machines at several locations in the state, including the Greyhound Park in Post Falls. Years ago, the tribe sought to operate a casino there, but backed off after then-Gov. Phil Batt objected. Allan wrote that this year’s legislation will “dramatically expand gaming in Idaho.”

State: Tribe’s ‘newly discovered’ idea that it can offer poker just about money

In its memorandum supporting its motion for a temporary restraining order to halt the Coeur d’Alene Casino’s new poker games, the state of Idaho argues that poker has never been allowed under its gaming compact with the tribe, and the tribe is now citing new interpretations of clauses having to do with games of skill and tournaments.

“The compact has existed for over 21 years, and yet the Tribe waited 20 years before ever suggesting that poker was a permissible form of gaming,” the state’s lawyers wrote. “This newly-discovered gaming entitlement has as its roots not a change in the law but the Tribe’s pursuit of revenue. Idaho does not begrudge the Tribe’s attempting to maximize the Casino’s economic benefit; it does object to any gaming activity that violates the Compact. … Parties to contracts ought honor their promises and adhere to the law.” You can read the state’s 18-page memorandum here.

The Coeur d’Alene Casino’s poker room is now open daily from 11 a.m. to close. “Our Poker Room is the newest addition to our world class gaming experience, located in the Red Tail Bar and Grill,” the Casino says on its website. “Come enjoy live action Poker with a wide betting range to suit your choice of game and experience.” Tribal officials were not immediately available for comment; it's not clear if they've been served with the lawsuit yet.

Idaho sues CdA Tribe in federal court over casino poker games

The state of Idaho has sued the Coeur d’Alene Tribe in U.S. District Court to block the tribe’s launch of poker games today at the Coeur d’Alene Casino. Idaho Gov. Butch Otter and Attorney General Wasden filed the lawsuit, saying Idaho bans poker and the tribe’s move would violate its gaming compact with the state.

“Article III Section 20 of the Idaho Constitution is clear, and it’s my duty to enforce and defend the Constitution and the laws of Idaho,” Otter said. “Despite discussions with tribal leaders and our best efforts at avoiding this situation, we have no choice but to act. I will continue working with the Attorney General to uphold our laws and resolve this issue.” You can read my full story here at spokesman.com.

Tribal casino’s plan to offer poker draws legal objections from state

The Coeur d’Alene Casino in Worley, operated by the Coeur d’Alene Tribe, is advertising a May 2 opening date for its new poker room, saying Idaho’s constitutional ban on poker games doesn’t apply to the tribal-owned casino. The tribe plans to offer Texas Hold ‘Em and Omaha games; poker is widely offered at commercial card rooms across the North Idaho state line in Washington and at tribal casinos in that state. But the Idaho Lottery Commission is objecting, and has requested a review from the National Indian Gaming Commission. “Poker is specifically prohibited in Idaho,” said Jeff Anderson, lottery commission director. You can read our full story here by S-R reporter Becky Kramer.

Christie: Celebrate CdA Tribe

Christie Wood (RE: Fort Sherman Park to be Cheamkwet): Many years ago the NIC Board of Trustees (before my time) entered a nine-point agreement with the CDA Tribe that essentially recognizes their historic contribution to our wonderful site. Prior to the 75th Anniversary of NIC the Tribe did a beautiful dedication of the NIC beach. When Micheal Burke was President they contributed to, dedicated, and blessed our Rose Garden.They have also provided tribal names for our facilities. Every year they grace us with their presence at graduation and say a traditional prayer in their tribal language. I remember listening to a tribal student give an address a few years ago. She thanked the college for making her feel welcome on campus and explained that for many years tribal students felt like they were not wanted. It was heartbreaking to hear that. I could not be more pleased with the relationship we have with the Cda Tribe and I look forward to next weeks celebration of 80 years!

  • Also: The renaming of Fort Sherman Park to Cheamkwet Park will take place at the 80th anniversary celebration of North Idaho College from 5 to 9 p.m. today.

Question: I'm of the opinion that many Coeur d'Alene residents still don't understand the enormous contributions the Coeur d'Alene Tribe makes to its non-Indian neighbors and North Idaho. Do you?

Idaho justices delve into tribal sovereignty, cigarette sales on reservation…

Idaho Supreme Court justices delved into the details of tribal jurisdiction this morning, during arguments on an appeal from Native Wholesale Supply Co., which has sold more than 100 million cigarettes to an Indian-owned business, Warpath, on the Coeur d'Alene Reservation, without complying with Idaho state laws regarding a national tobacco settlement that require payments into a fund. The company is owned by an enrolled member of the Seneca tribe in New York, where it operates on a reservation; it imports the cigarettes from a native-owned manufacturer in Canada.

NWS contends the state has no jurisdiction to regulate its sales, as they're between tribal members on reservations, and there's no evidence the cigarettes ever entered any part of Idaho outside the Coeur d'Alene Reservation - since the reservation touches the state of Washington.

"Native Wholesale Supply has never sold to any Idaho consumer," attorney Samuel Diddle told the justices. The wholesale sales to Warpath "may not be regulated by the state because of tribal sovereignty," he said.

Deputy Idaho Attorney General Brett DeLange told the justices, "Our Legislature has spent a lot of time adopting a very comprehensive set of statutes and rules to regulate cigarette sales in Idaho. One of them is before those cigarettes can be sold, they need to be approved for sale. The Attorney General needs to know who that manufacturer is. … Native Wholesale Supply just wants to ignore all that. They don't want to comply with the state's efforts of comprehensively regulating cigarette sales in our state."

Retired Justice Linda Copple-Trout, who is sitting in the case, said, "I know the cigarettes say that they are to be resold on the reservation, but that certainly is not a limitation against who may ultimately end up with the product." She noted that the state's interest in its laws regarding the tobacco settlement was to recover funds from those selling "a dangerous product" to cover the state's costs for health care services related to its use.

DeLange said, "Native Wholesale Supply has introduced into Idaho over 100 million cigarettes that are not legal to be introduced and sold and imported into our state, and did all of it at wholesale." He compared the case to an earlier one in which a Native American seller from New York sold cigarettes via the Internet to buyers in Caldwell, Boise and elsewhere in Idaho. But Diddle said this case is different, because the sales didn't occur off the reservation.

Justice Joel Horton noted that the lower court decision, which NWS is appealing, enjoined the firm not only from selling cigarettes that don't comply with Idaho laws relating to the tobacco settlement agreement, but also from selling cigarettes without an Idaho wholesaler's permit. However, he read from Idaho's law regarding the tax stamps required under Idaho's wholesaler's permits; it doesn't apply to reservation sales. "If they haven't made any sales of cigarettes subject to tax, they can't hold a permit," Horton said.

NWS has tangled with multiple states over regulatory and tax issues. The firm also was a target of a criminal case in Seattle regarding the sale of contraband cigarettes by members of a Washington tribe without paying that state's sales tax. The Idaho case arose from a 2008 lawsuit the state filed against NWS, seeking to stop its sales in Idaho and seize profits from sales already made.

At the close of today's arguments, Chief Justice Roger Burdick said, "The matter is now under advisement and we will render a decision." You can read my full story here at spokesman.com.

Idaho killer returns to prison for assault

A convicted killer who left prison in 2008 is headed back there after a jury in southwest Idaho convicted him of assaulting a family member with a large knife.

Donald Leonard Houser, 39, was living in Plummer in 1995 when he shot his former girlfriend, Angela LeSarte, to death in front of Bobbie's Bar in Plummer.

LeSarte's father is former longtime Coeur d’Alene Tribal Chairman Bernard LeSarte. She was the mother of four children.

Houser was sentenced to 15 years in prison in February 1996 for second-degree murder and possession of a firearm during a crime of violence. He began his five-year probation period on Oct. 30, 2008, and worked part-time on a ranch in Washington County and at a hardware store in Weiser, according to the U.S. Attorney's Office. He started working full-time as a self-employed mechanic in November 2010.

Houser was arrested on Aug. 22 for aggravated assault. He was sentenced in April to two to three years in state prison. He was sentenced today to two years in federal prison for violating his probation on the murder conviction. One year of his federal sentence will run concurrent to the state sentence, the other will run consecutive, according to the U.S. Attorney's Office.

Coeur d’Alene Tribe Denounces Recall

In a statement from the Coeur d'Alene Indian Tribe this afternoon, tribal Chairman Chief Allan denounced the recall attempt against Mayor Sandi Bloem and three council members: "As leaders, we do the best we can to gather community input and weigh the options. But at the end of the day, leadership must make difficult and often controversial decisions based on what is in the best interest of the greater community. As an elected official myself, I know the difficulties that come from representing a diverse constituency.  Disagreement and differences in opinion are natural in politics no matter where you go and compromise on both sides is necessary. The democratic process has checks and balances already in place for unhappy constituents- they’re called elections." More here.


AM: Tribe Reclaims Jazz Singer Bailey

Jazz singer Mildred Bailey performs at Carnegie Hall in New York City. Bailey was known as the “Mrs. Swing,” one of the great white jazz singers of the 1930s and 1940s. But when she died penniless in Poughkeepsie, N.Y., in 1951, few knew her real roots. Now, the Coeur d’Alene Indian Tribe hopes to set the record straight: Bailey was was an enrolled member who spent her childhood on the reservation near DeSmet before hitting it big in Los Angeles. Jim Kershner SR story here. (April 1947 AP Photo/ The Library of Congress, William Gottlieb)

CdA Tribe Touts ‘Mrs. Swing’s’ Roots

Mildred Rinker Bailey was known to fans as "Mrs. Swing," whose slight, throaty voice won her acclaim as one of the great white jazz singers of the 1930s and 1940s. But the Coeur d'Alene Indian Tribe is now hoping to set the record straight once and for all: Bailey, who died impoverished in Poughkeepsie, N.Y., in 1951, was an American Indian who spent her childhood on the reservation near DeSmet, Idaho. This week, the tribe introduced a resolution honoring Bailey in the Idaho Legislature, in part to convince the Jazz at Lincoln Center Hall of Fame in New York City to add her to its inductees — on grounds she helped blaze a trail for better-known singers like Ella Fitzgerald and Billie Holiday. "Mildred was a pioneer," said Coeur d'Alene Tribal Chairman Chief J. Allan. "She paved the way for many other female singers to follow"/AP. More here. (Photo: Mildred Bailey images Web site)

Question: I sometimes listen to my old vinyls of Billie Holiday while writing my Huckleberries print column. She's my favorite female jazz singer. Who's yours?

Allan: Carlson Wrong Re: Donations

Before I respond to Chris Carlson’s recent column attacking the Coeur d’Alene Tribe and Indian Gaming, I want to start by disclosing a few things. First, I support Indian gaming. I have seen first-hand how gaming on the Coeur d’Alene Reservation has transformed this community and delivered our people from abject poverty and a century-long dearth of opportunity. I see the pride in our people that comes from the hope and opportunity that gaming provides. That is precisely the reason Indian gaming was embraced by the United States and the state of Idaho. Second, I echo what many wonderful people in this community have already expressed; I too am tired of the hostility directed toward the tribe based on false information and inaccurate half-truths. That type of hate-inspired rhetoric should not and cannot be tolerated any longer/Chief Allan, Coeur d'Alene Tribe chairman. More here.

DFO: Chief Allan of the Coeur d'Alene Tribe is at odds with Publisher Dan Hammes of the St. Maries Gazette Record and Chris Carlson, who writes for the weekly newspaper, re: state oversight of required donations of gaming proceeds to area schools. Carlson has also question the propriety of the tribe contributing designated school donations to the Coeur d'Alene Kroc Center.

Carlson: Still Tribal Gaming Questions

Late last month readers of The Spokesman-Review and the Coeur d’Alene Press may have seen full page ads taken out by the Coeur d’Alene Tribe claiming they had kept the promise made to voters in 1992 to give back 5 percent of the annual gaming net revenues to the support of education. Yes and No. Yes, they have contributed $17 million by their account but it is misleading to say it all falls under the rubric of education. It stretches credulity to see where funds donated to the Kroc Center or to Mark Few’s Coaches vs. Cancer annual fund drive complies with initiative language that pledged the 5 percent would go to support education in surrounding school districts. Money listed for Gonzaga, for example, includes the annual payment for the tribe’s private box at McCarthy Arena/Chris Carlson, Ridenbaugh Press. More here.

Question: Do you think the Coeur d'Alene Tribe has been open enough re: the amount of money it's mandated by law to give from gambling proceeds to public education?

CdA Tribe details education donations from gaming proceeds

When the Coeur d’Alene Tribe first signed a gaming compact with the state of Idaho in 1992, tribal leaders insisted on donating 5 percent of net casino gaming proceeds to education on or near their reservation – a gesture that has added up to $16.8 million in donations since 1994, including $1.5 million this year and $1.8 million last year. “The tribe originated the idea,” said David High, the now-retired deputy Idaho attorney general who for years oversaw negotiations with the state’s Indian tribes over gaming. “They didn’t have to do it.” In fact, High said, the National Indian Gaming Regulatory Act forbids states from taxing or assessing any kind of fees on the proceeds of tribal gaming. “Congress intended the tribes to get the financial benefit of Indian gaming and did not want the states trying to take a piece of that,” he said. But in the case of the Coeur d’Alenes, “The tribe has agreed to it is the thing,” High said.

Later, the tribe wrote the 5 percent contribution into a tribal gaming initiative that Idaho voters strongly approved in 2002, prompting two other Idaho tribes, the Kootenai and Nez Perce, to add it to their compacts as well. The result has been millions donated to schools and educational programs; you can read my full story here from Sunday's Spokesman-Review. The Coeur d'Alenes agreed to open their books on their educational donations for this article; the largest recipient over the years has been the Plummer/Worley School District.

Idaho's fourth gaming tribe, the Shoshone-Bannock Tribes in eastern Idaho, doesn't have a 5 percent donation clause in its compact. The Sho-Bans signed their compact with the state in 2000, and included a clause calling for a federal court case looking into which gambling machines were legal and which weren't. But their compact also included a clause saying if any other tribe got permission to operate specific machines, they could have them too.

The court case hadn't proceeded far when the initiative passed in 2002. The state tried to get the Sho-Bans to amend their compact to comply with the 2002 initiative, which not only included the 5 percent education donations, but also imposed limits on growth in the allowed number of gaming machines. The Sho-Bans went to federal court, and the 9th Circuit U.S. Court of Appeals sided with them in 2006, saying they didn't have to amend their compact. That left the Sho-Bans without either the 5 percent contribution requirement or the initiative's growth limits.

The success of the Coeur d'Alene Casino Resort Hotel, which has made the North Idaho tribe the second-largest employer in North Idaho, behind only Kootenai Medical Center, has prompted some grumbling in recent years over who got how much of the education money. That prompted the tribe to stop holding formal ceremonies announcing the donations for the past two years, which then led to speculation that the tribe no longer was making them, despite a statement from the director of the state Lottery Commission, which oversees tribal gaming, that the 5 percent pledge had been been met.

The hubbub prompted a series of public records requests to the Lottery Commission; most sought a breakdown of who got how much money from the Coeur d'Alenes' 5 percent donations, but the lottery doesn't have that information. Both the tribe's compact with the state and the 2002 initiative say the donations are handed out "at the sole discretion of the tribe."

The only information the tribes hand over to the Lottery Commission is their audited financial statement, which shows the 5 percent figure, along with other proprietary information about their gaming operations, such as, in some cases, background checks on employees and information about security procedures. The Coeur d'Alene Tribe's compact with the state notes that the information the tribe hands over to the state is exempt from public disclosure under the trade secrets clause of the Idaho Public Records Law; it also states that if a court finds otherwise, the tribe no longer has to supply the documents to the state. Compacts between the state and the other tribes contain similar trade-secrets confidentiality provisions.

CDA Tribe donates $35,000 to Post Falls weekend student food program

The Coeur d’Alene Tribe will donate $35,000 to the Post Falls Food Bank Weekend Nutrition Backpack Program, which aids  Post Falls students who don't have reliable access to good food on weekends.  

“Hearing about kids who go without food all weekend really tugs at your heart, so when we heard about this program, we just had to help. We want our donation to ensure that the food bank can continue to feed the kids who have already been identified for this year’s program and that the program will be financially able to feed even more children if the schools uncover a greater need,” said Tribal Chairman Chief Allan, in a press release.
The program will allot supplemental food items to students in the Post Falls School District to reduce weekend hunger and provide additional nutritional assistance, according to the handout.

Olson: Negotiate Tribe Hunting Rights

Native and non-native residents of the Coeur d’Alene Indian Reservation are going to have to work out a local solution to their latest conflict over the right of tribal members to hunt on private property if they want to avoid a drawn-out court battle, a federal official said Tuesday evening. Speaking at a confrontational meeting at the Plummer Community Hall, Wendy Olson (pictured), U.S. attorney for Idaho, said there is no single source of law that answers the question of whether tribal hunters are trespassing on nontribal land. “I don’t get to make that decision,” Olson said in response to those in the crowd looking for an immediate resolution to a decades-old bone of contention. “Ultimately,” she said, “it will be resolved through litigation.” But the federal government’s highest law enforcement officer in Idaho advised leaders on both sides to not go down that long trail/Kevin Graman, SR. More here.

Question: Do you think it possible for Benewah County to negotiate in good faith with the Coeur d'Alene Tribe?

St. Maries Paper Wants Tribe Records

The Idaho State Lottery refused to provide records sought by this newspaper under a public records request. The Gazette Record requested public records related to the lottery commission’s oversight of the Coeur d’Alene Tribe’s compliance with state law relating to its casino. The Gazette Record hired the law office of Christensen & Doman of St. Maries to pursue the request following the newspaper’s reports last month about the tribe’s mandated contributions to local public schools. The tribe is required by law to donate “5 percent of its annual net gaming income for the support of local educational programs and schools on or near the reservation.” Area schools had not received money from the tribe since 2009. When questioned, tribal officials said donations had been made, but would not reveal which school districts received the contributions. Shortly after the story broke, the tribe gave $210,000 to the Plummer/Worley school district/St. Maries Record Gazette. More here. (Courtesy photo: Coeur d'Alene Casino)

Question: If the tribe is required by law to provide a certain level of gaming profits to area schools, shouldn't the record of disbursements be public?

Coeur d’Alene Tribe asserting right to hunt

TRIBAL HUNTING – The Benewah County prosecutor was incorrect to say the Coeur d’Alene Tribe in North Idaho does not have the right to hunt or fish on reservation land owned by non-tribal members, tribal officials say.

“Any explanation or advice to people that tribal members can’t hunt and fish anywhere on the reservation is wrong, and potentially dangerous,” said Helo Hancock, tribe spokesman in a report by the Coeur d’Alene Press. “I think it misleads people and could lead to people getting into a conflict situation.”

Hancock said the tribe owns about 3,500 acres in the reservation, or about 25 percent of the land. He told the Coeur d’Alene Press that the rest is state, federal or privately owned.

Doug Payne, the county’s prosecutor, said a 1960 opinion by the Solicitor General of the Department of the Interior said the executive order that created the reservation didn’t reserve to tribal members the right to hunt and fish on the land.

But Hancock said that the opinion Payne referred to had been overturned by the U.S. Supreme Court in 1968.

Read on for more of the story.

Tribe Not Talking To St. Maries Paper

You read over the weekend about the old claim resurrected by Benewah County Prosecutor Doug Payne that the Coeur d'Alene Indian Tribe doesn't have hunting rights on non-Indian property on its reservation. Several commented in a thread about the story. But did you see that the tribe refused to comment to the St. Maries Gazette Record. Toward the end of the story about a meeting to discuss the matter, the Gazette reports: "The tribe’s legislative director, Helo Hancock, said the tribe would not comment because they feel they are treated unfairly by this newspaper. “We see a clear pattern involving the tribe in your newspaper,” Mr. Hancock said. “The articles are unfair, biased and frankly defaming of the tribe and until that changes we will be withholding comment.” (St. Maries Gazette Record photo: Approximately 20 people, including local property owners, Rep. Dick Harwood, Benewah County Prosecuting Attorney Doug Payne and Sheriff Bob Kirts attended a meeting on trespassing and hunting on the reservation Sept. 8 at the Plummer Library.)

Question: Is it good policy by the Coeur d'Alene Tribe to withhold comment from a newspaper that it claims reports stories in an "unfair, biased and frankly defaming of the tribe"?