Las Vegas Sun

March 29, 2024

Court inaction leaves Indian-gaming puzzle

Interior Secretary Bruce Babbitt is looking for help in deciding what to do about Indian gaming.

Babbitt had hoped an Alabama appeal would clarify the Supreme Court's recent decision barring a Seminole tribe from suing Florida to allow gambling on reservation lands.

The Florida ruling apparently allowed tribes to circumvent federal courts entirely and appeal directly to the Interior Department to decide disputed issues.

But the court declined to hear the Alabama request, which sought guidance on the scope of Babbitt's authority to negotiate directly with Indian tribes. This prompted Babbitt to announce plans to seek public comment and sparked a scramble among lawyers eager to capitalize on the confusion.

"We are in a position of having to implement the Indian Gaming Regulatory Act, and the Supreme Court has said part of it is unconstitutional," said Interior spokeswoman Stephanie Hanna.

"We are going to lay out parameters of what we're considering doing about this and will ask for formal comment from state legislators, state attorneys general, tribes, the public, anyone who has an interest," she said.

In April, the Supreme Court ruled tribes can't sue states in federal court. But it didn't indicate whether Indians could go directly to the Interior Department for permission to operate gaming ventures on reservations.

"The court deemed a portion of the act unconstitutional and ruled out the possibility of a mediated settlement, but didn't say what the secretary's authority is in cases where states and tribes have reached an impasse," said Hanna. "The justices basically chose not to get involved."

The Alabama appeal might have clarified the issue, but the court declined to hear it. That led to Babbitt's decision to seek public comment on the scope of its authority.

The comment period, generally 60 days long, begins once Interior publishes notice in the Federal Register -- an action expected within two weeks. The suggestions would be analyzed for possible inclusion in a draft regulation detailing the procedure for handling disputes. The proposed regulation would be subject to an additional comment period.

Hanna said "the vast majority" of Indian-state compacts are negotiated in good faith. She noted that 146 gaming compacts between tribes and 24 states have been completed.

Disputes are limited to "a tiny minority of cases where states have refused to negotiate," she said, including Florida and Rhode Island.

"I don't think Nevada has any kind of dog in this fight because it had a good regulatory structure in place when the act was passed," she said.

But the few disputes, coupled with confusion over the Supreme Court's ruling, could prove lucrative for the legal community. "I've had more calls from more Washington, D.C., lawyers' offices than I can count," Hanna said.

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