Tiny Tribe Stands Its Ground Frustrated Shoalwaters Install Slot Machines At Coastal Casino

One of the state’s smallest and most impoverished Indian tribes thumbed its nose at the state Gambling Commission on Tuesday by installing numerous slot machines at its casino.

The act of defiance sets up a legal confrontation between two sovereign nations: the Shoalwater Bay Tribe and the U.S. government.

Fed up with what it calls “bad-faith” negotiations with the state Gambling Commission over its casino operations, the Shoalwater Bay Tribe sneaked the slots onto its reservation to prevent their seizure, said Herbert Whitish, chairman of the 170-member tribe.

Once the one-armed bandits arrived on the tiny reservation at the picturesque confluence of Willapa Bay and the Pacific, the state had no power to seize the slots, which are outlawed in Washington.

Wednesday, a handful of players, who risk no sanctions for playing the slots, fed the machines inside the small casino on state Route 105.

Asked if the slot machines would be seized, Assistant U.S. Attorney Harry McCarthy said: “We’re not ruling out any particular approach, but the preferred way is a civil solution - a lawsuit either by the tribes or the government to get the matter before a court on the legality of these machines.”

Wednesday, the Shoalwater Bay Tribe obliged by filing a suit in U.S. District Court in Seattle.

If the tribe prevails in court, it could force the United States to come up with new procedures when gaming negotiations break down between tribes and states. Or, it could invalidate the federal Indian Gaming Regulatory Act. The act establishes procedures by which states and tribes negotiate over the establishment of casinos.

If the gaming act is invalidated, tribes could set up casinos without regard to state law, according to attorney Scott Crowell, who represents the Shoalwaters.

While the Shoalwaters’ act was certainly bold, it was not precipitous. Since 1990, on-again, off-again negotiations between the tribe and state gambling officials have taken place.

Before the tribal casino opened in March, unemployment was more than 50 percent and per capita income below $3,000. Ninety percent of the tribe lives below the federal poverty line.

And the tribe has been facing a bleak future with infant mortality rates more closely resembling those of sub-Saharan Africa than the United States.

The tribe is betting that adding slot machines to its casino will assure its continued existence.

Chairman Whitish complained Wednesday that the years of negotiations have failed to produce a compact with the state on operating a casino.

But Gambling Commission public affairs manager Amy Patjens said that the agency met twice last year with the tribe and had planned a third meeting in December, which the tribe canceled. Since then, she said, the tribe has not contacted the state to set up further negotiations. In 1994, talks broke down over issues of machine gambling and jurisdiction.

Under the gaming act, states get regulatory authority over casinos on Indian reservations. In return, tribes get to have a broader variety of games and more liberal rules of operation then they would without a compact.

But Whitish claims the state was far too restrictive and arbitrary on what it would and wouldn’t allow.

“The tribal council was not willing to sign away its sovereignty to the state for a few gaming tables,” said Whitish. “All the state would allow was a glorified card room that would not create the revenue the tribe needs to make a difference.”

Finally, its patience at an end, the tribe opened a limited casino this spring that did not require a state compact. The impact on the tribe was immediate and dramatic, Whitish said.

“I believe the unemployment rate fell to no more than 5 or 10 percent,” said Whitish as electronic dings and dongs of the slot machines punctuated his point. “It really raised the selfesteem of the tribe and the people on the reservation,” he said.

But the limited casino has not been enough of a draw to pull gamblers to its remote coastal location, he said. The casino has been losing thousands of dollars every week, he said. So in the last few days, the tribe sneaked the slot machines onto the reservation and also installed new tables for blackjack and poker.

The state has no jurisdiction to enter tribal land to seize machines, so it has tried in the past to intercept trucks hauling gambling devices before they reach reservation casinos.

The Shoalwaters were emboldened in March when the 9th U.S. Circuit Court of Appeals ruled that the Spokane Tribe, also represented by Crowell, could keep its slot machines despite operating without a state compact. Their slots continue to operate, as do those of the Colville Confederated Tribes.

The court said a 1996 U.S. Supreme Court ruling, barring tribes from suing states for refusing to negotiate compacts, did not authorize federal prosecutors to shut down reservation gambling after a state stopped negotiating.

Slot machines are illegal in Washington under state law. Nevertheless, three tribes - the Spokanes, Colvilles, and now the Shoalwaters - have put them in place.

Crowell calls it a confrontation between sovereign nations. He says that because the state has not negotiated in good faith, the tribes are simply asserting their own governmental authority. And he said that since the gaming act’s dispute resolution is worthless, the tribes have little choice.

When Congress passed the gaming act, it provided that if there is an impasse, a tribe may bring suit in federal court and a court-appointed mediator would address the issues.

But the Supreme Court ruling barring tribes from suing states because state governments have sovereign immunity from suit has rendered the provision virtually meaningless.

LOCAL PRECEDENT In July 1996, 96 slot machines were seized by state gambling agents from a truck that had just crossed the Idaho border on Interstate 90. They were to be delivered to the Colville Indian Reservation. In 1994, state Gambling Commission agents seized a truck carrying 55 slot machines near the Idaho border. The machines were being transported to a Spokane tribal casino.

Seattle Post-Intelligencer