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California tribes spar over gaming machine distinctions
Tuesday, January 24, 2006

The Bush administration's controversial Indian gaming legislation is causing controversy among California tribes, with a handful lining in support of the goals of the measure.

The overwhelming majority of tribes in the state, along with most in Indian Country, oppose the proposal. They argue that it will hurt the $19 billion Indian gaming industry and weaken their hands in dealing with the state.

"We believe in Indian Country that this not about justice but about the governors' association trying to get one hand up on Indians in Florida, California, Oklahoma, and in all those states where we use Class II gaming to force the states to come to the table and do what federal law requires them to do: negotiate in good faith," Michael Lombardo, a prominent gaming commissioner, said at the Western Indian Gaming Conference earlier this month.

But shortly after Lombardi and other member tribes of the California Nations Indian Gaming Association spoke against the legislation, a small inter-tribal group said it stands behind efforts to clarify the difference between Class II and Class III machines. The California Tribal Business Alliance wrote to Gov. Arnold Schwarzenegger (R) within days of the critical comments made at the conference.

"Rapidly advancing technology has now led to the development of electronic 'Class II bingo' machines very close in appearance and play to the Class III slot machines that are subject to the limits and regulations of the compacts," Paula Lorenzo, the chair of the group and leader of the Rumsey Band of Wintun Indians, said in the January 17 letter. She suggested that other tribes were operating "several thousand" machines in violation of the tribal-state compact.

That drew a heated response from CNIGA. On January 20, chairman Anthony Miranda, a member of the Pechanga Band of Luiseno Indians, called Lorenzo's comments "inappropriate, inflammatory, and insulting" to other tribes.

"California's tribal governments have been unjustly attacked and deserve an apology from the California Tribal Business Alliance," he said. CNIGA represents more than 60 tribes while CTBA consists of six tribes, nearly all of whom are represented by the same attorney.

The Pechanga Band issued its own statement in support of its right to offer Class II machines free of state approval. But the tribe offers many more Class II games -- such as slot machines -- that are subject to the tribal-state compact.

"Any suggestion that Pechanga is ignoring our commitment to the greater community is totally without merit," the statement read. "We have provided our neighboring communities with $8 million for road widening, sound walls, and other improvements."

The sparring comes as the comment period is set to close at the end of this month on the Department of Justice's proposal to amend the Johnson Act. Bush administration officials say they will rework the bill and look for a sponsor in the coming months.

The legislation would do what the members of the CTBA and the Schwarzenegger administration want. It would prevent tribes from offering certain technologically-advanced gaming devices that may resemble slot machines without a tribal-state compact.

In her letter, Lorenzo said that other tribes "have a powerful incentive to operate devices that push and may exceed the definition of a Class II game to avoid revenue share payments, increase the number of machines beyond those authorized by their compacts, and avoid the mitigation of environmental impacts and other protections afforded by the compacts."

All six members of the CTBA signed new compacts with the Schwarzenegger administration that allow them to operate more slot machines -- in exchange for sharing more revenues with the state. The CNIGA tribes have resisted such demands.

The Schwarzenegger administration stood with the Department of Justice in seeking U.S. Supreme Court review of decisions that favored tribes who offer technologically-advanced machines. The state argue that it would lose revenues unless the justices acted to draw a line between Class II and Class III machines.

But when the top court refused to take the case, Bush administration officials turned to Congress for help. They have received sympathetic hearings from Sen. John McCain (R-Arizona), the chairman of the Senate Indian Affairs Committee and one of the sponsors of the Indian Gaming Regulatory Act of 1988.

"Being one of the authors of the legislation, we envisioned Class II to be the standard bingo game, the standard pull tab -- not an electronic device that closely resembles a slot machine," he said at a hearing last April.

In California, Class II machines are not highly prevalent and are not as popular as slot machines. But to tribes, they are a strong bargaining chip because they don't fall under state regulatory control.

In other states, especially Oklahoma and Florida, the machines are the bread and butter of tribal casino operations. That has led state officials who have traditionally avoided gaming to come to the table and negotiate agreements.

At the same time, federal officials say tribes are pushing the limits. Phil Hogen, the chairman of the National Indian Gaming Commission, said that may prompt states to legalize non-Indian forms of gaming, something that has happened in Oklahoma and Florida.

The disagreement among the California tribes is not new. CTBA and its general counsel, Howard Dickstein, who also represents most of the CTBA members, recently criticized CNIGA for considering a policy on tribal-state compacts.

California Gaming Battle:
CTBA Letter | CNIGA Response | Pechanga Band Statement

Relevant Links:
California Nations Indian Gaming Association - http://www.cniga.com
California Tribal Business Alliance - http://www.caltba.org

Relevant Links:
Johnson Act Amendments, Office of Tribal Justice - http://www.usdoj.gov/otj/johnson.html
National Indian Gaming Commission - http://www.nigc.gov