WESTERN ATTORNEYS GENERAL SEEK OPINION ON SCOPE OF LEGAL GAMING ON INDIAN LANDS
GROUP WANTS TO CLARIFY THE EFFECT OF STATE LAWS ON RESERVATION ACTIVITIES.Claiming the number and frequency of political and judicial conflicts surrounding gaming on Indian lands have dramatically increased, the Conference of Western Attorneys Generals has asked the secretary of the interior to seek a federal solicitor's opinion on the Indian Gaming Regulatory Act of 1988.
Specifically, the attorneys general want an opinion which addresses Class III gaming under the regulatory act. Class III games include house banking games, such as black jack or baccarat, slot machines and pari-mutuel wagering on horse races, dog races and jai alai.The attorneys say the conflict regards the scope of legal gaming on Indian lands and the effect of state law upon such gaming. The organization asserts that a 1991 Wisconsin case could be interpreted to allow Indian tribes to conduct all Class III gaming activities if a state permits any Class III gaming, despite criminal prohibition on other gaming activities in the state.
Utah Attorney General Paul Van Dam said the federal court's findings in Lac du Flambeau of Lake Superior Chippewa Indians v. Wisconsin should be of particular interest to Utahns, who will decide in November whether to legal-ize gambling on horse races.
"It was clear to me from our meeting up there this is a real issue, not something dreamed up in Utah to defeat pari-mutuel gaming," Van Dam said. Sixteen attorneys general from the western U.S. signed the resolution, which, in part, states: "The U.S. District Court decision in Wisconsin has generated substantial uncertainty and litigation in several states."
Van Dam said pari-mutuel betting was permitted in Utah in the 1920s after the Utah Supreme Court defined the activity as a game of skill, rather than a game of chance.
"It's rather confusing when you think whether or not that interpretation is still valid and whether or not it would be overturned and subject the state to other forms of gaming. It's not that far fetched of a scenario in the sense it's happening in other states," Van Dam said.
Patricia O'Rorke, spokeswoman and counsel to Citizens to Put Utah First, the organization backing the pari-mutuel initiative, has prepared a 19-page opinion on the issue.
"Every federal court that has considered the issue has held that the authorization of gaming on Indian reservations under the federal act is game specific," she wrote.
That means if voters authorize the counties to conduct elections on whether to allow pari-mutuel gaming in specific counties, Indians on Utah's reservations also would be entitled to conduct horse-race betting, she said.
Since the Utah Constitution and Criminal Code specifically prohibit lotteries or games of chance, such activity would be restricted on reservations, she said.
"None of these cases even remotely suggests that a gaming activity that is prohibited by Utah law could be conducted on the state's Indian reservations," she wrote.
O'Rorke said one significant difference between Utah and other states such as Wisconsin is that Wisconsin has amended its constitutional prohibitions against lotteries on four different occasions.
"By the time of the lawsuit, it had no prohibition whatsoever against any state-operated game, scheme or plan involving a prize, chance or consideration and was conducting numerous lotteries. The trial court found that Wisconsin did not prohibit particular gaming activities at issue and that there was no real difference between the games operated by the state and games the tribe wanted to conduct."
Therefore, the court found the state was required to negotiate a compact with the tribe "not prohibited expressly by the Wisconsin Constitution or state law," O'Rorke wrote.