Friday, September 20, 2002
Court Lifts Order Blocking Expansion of Indian Gaming
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals yesterday overturned an order that was blocking Arizona’s governor from negotiating Indian gaming compacts without the Legislature’s consent.
A divided panel ruled that the District Court lacked jurisdiction to hear the suit, which named Gov. Jane Hull and other officials as defendants, because the tribes are indispensable parties and cannot be joined because of sovereign immunity.
Senior Judge William C. Canby Jr. wrote the opinion, joined by visiting Judge William O. Bertelsman, a senior district judge for the Eastern District of Kentucky. Judge Pamela Ann Rymer dissented, arguing that the tribes’ did not have a protected legal interest in the outcome.
The long-term impact of the decision could be minimal, as three new gambling measures have qualified for the November ballot. If one wins, that measure is expected to guide Arizona’s gambling future.
“If a ballot measure passes, it would supersede the old laws that are the subject of this lawsuit,” said Neil Vincent Wake, an attorney for the dog racing industry that sought to limit Hull’s powers and the gaming rights of Indians. “If none of them pass, then the old laws, with their uncertainty as to whether they’re valid, remain in play.”
Wake said he was considering appealing the decision, which does not become final for about six weeks.
David LaSarte, executive director of the Arizona Indian Gaming Association, applauded the San Francisco-based court’s decision. Still, despite the ruling, he said it is now up to the electorate to craft the state’s gaming regulations.
“It’s time for the people to make a clear statement,” LaSarte said.
The dispute began as a challenge to Indian gaming interests by the dog and horse racing industry, which fears Indian gaming is eating up its profits.
The racing industry, also eager to expand its gambling opportunities, sued the governor on assertions that she did not have the authority to negotiate 10-year gaming compacts with 16 Arizona tribes in the Legislature’s absence. The current compacts were set to begin expiring next year.
A measure allowing the governor to unilaterally negotiate and renew gaming compacts is unconstitutional, the plaintiffs charged, because it infringes upon the separation of powers by granting excessive discretion to the executive. The plaintiffs also asserted that even if the legislation is constitutional, the compacts violate federal law because they allow slot machines, Las Vegas-style blackjack, and other forms of gambling which are not permitted on non-Indian lands anywhere in the state.
Judge Robert S. Bloomfield of the District of Arizona agreed. He enjoined the governor from entering into any new compacts pursuant to the legislation, from renewing any existing compacts, and from modifying any compact so as to permit an expansion of gaming.
One ballot proposal, backed by a host of tribes, is nearly identical to the compacts Hull agreed to and would give the state 8 percent of profits. A second initiative, backed by the Colorado River Indian Tribe, would allow a wider range of table games, such as craps and roulette, and grant the state 3 percent of profits.
The final initiative, sponsored by the state’s horse and dog tracks, would allow slot machines at race tracks and give the state 40 percent of the take. The measure also would require tribal casinos to give 8 percent of gaming profits to the state.
A measure must get a majority of votes to pass. If more than one gets a majority, the one with the most votes becomes law.
Under the Ninth Circuit ruling, if none passes, Arizona’s next governor would have the power to negotiate Indian gaming compacts unless another court intervened.
Hull is not running for office in November. Democratic Attorney General Janet Napolitano, a defendant in the lawsuit, and Republican former U.S. Rep. Matt Salmon are expected to win their respective parties’ nominations.
The case is American Greyhound Racing, Inc. v. Hull, 01-16672.
Copyright 2002, Metropolitan News Company