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Neb. tribe calls for rejection of gaming dispute
Friday, February 13, 2004

Later this month, the U.S. Supreme Court will decide whether to hear a dispute that has the federal government and several states raising alarm over regulation of the $14 billion industry but tribes wondering what the fuss is about.

Briefs have been accepted in two cases that the Bush administration wants to overturn. The first one, U.S. v. Santee Sioux Tribe, originated from the 8th Circuit and the second, U.S. v. Seneca-Cayuga Tribe, started in the 10th Circuit.

The two circuits cover dozens of tribes in several Western and Northern Plains states. But if the cases are accepted, tribes nationwide could be affected.

That's the angle government lawyers and several states, led by California, are pushing. In separate briefs, they argue that tribes threaten state and federal law by offering electronic casino machines that resemble slot machines.

But as the Santee Sioux Tribe of Nebraska points out, the federal government is not speaking with one mind on the matter. In its brief, the tribe highlights the dispute between National Indian Gaming Commission, the federal agency charged with regulating tribal casinos, and the Department of Justice.

NIGC, the brief observes, has taken a different view of the casino machines in question, first by encouraging their use at the tribe's casino, and second by issuing new regulations that seek to clarify advances in gaming technology.

"[T]he fact that the government cannot present a unified position to the court itself constitutes a compelling reason to deny" the appeal, the tribe wrote on January 26.

On the other hand, Justice lawyers and their U.S. Attorney colleagues have taken a hard stance against the tribe, which started gaming in 1996 in hopes of stimulating the local economy. The Ohiya Casino isn't big or flashy, but it has provided jobs on a reservation where unemployment hovers around 74 percent.

Prosecution by the Justice Department led to seizure of the tribe's assets in the dead of winter and contempt sanctions and fines against tribal leaders. The tribe then removed the machines that prompted its legal troubles, replacing them with a game, called Lucky Tab II, that NIGC recommended.

That didn't convince government lawyers who took the tribe to court, contending that Lucky Tab II is a slot machine. The 8th Circuit Court of Appeals didn't agree, though. In a unanimous March 2003 decision, the court ruled that the machines were legal for the tribe to operate without state or federal interference.

Since then, NIGC has revised its regulations to take into account changes in gaming technology. The rules, finalized in June 2002, were designed to clear up confusion and end litigation in cases just like the Santee Sioux one.

And earlier this year, NIGC chairman Phil Hogen, a Bush administration appointee, announced the formation of a tribal advisory council to recommend even more changes. "The entire Indian gaming industry will be better served if clarity can be brought to this challenging area," he said last month. He is now selecting the members of that panel.

Leaders of the Indian gaming industry have called attention to the Santee and Seneca-Cayuga cases. Earlier this month, Mark Van Norman, executive director of the National Indian Gaming Association, said they were "very critical." "The Justice Department is really coming in to say that there really is no viable Class II technologic aid," he told the United South and Eastern Tribes (USET). "[It's] a very sweeping position."

Only one tribe, the Choctaw Nation of Oklahoma, has entered the dispute. The tribe filed a friend of the court brief last week in the Santee Sioux case.

Now that all the briefs from the parties have been accepted, the Supreme Court justices are reviewing the matter. They will meet for a conference February 27 before announcing whether to take the cases.

Relevant Documents:
Petition: U.S. v. Santee Sioux Tribe | Petition: U.S. v. Seneca-Cayuga Tribe

Docket Sheets:
U.S. v. Santee Sioux Tribe | U.S. v. Seneca-Cayuga Tribe

Lower Court Decisions:
U.S. v. Santee Sioux Tribe (March 20, 2003) | Seneca-Cayuga Tribe of Oklahoma v. National Indian Gaming Commission (April 17, 2003)

Relevant Links:
The Santee Sioux Tribe - http://www.santeedakota.org
National Indian Gaming Commission - http://www.nigc.gov