Posted at request of Harold Monteau, Chippewa Cree.
I read the articles in the Missoulian and other Montana papers regarding the Class III Tribal State Gaming Compact negotiations between the Confederated Salish and Kootenai Tribes (CSKT) and the Governor. Some of the legal positions that the governor takes, on the advice of the Attorney General I presume, are way out of sync with the Indian Gaming Regulatory Act (IGRA) that Congress passed in 1988 and the case law that has developed in the Federal Courts since. The IGRA applies to “Indian Country” and explicitly includes all lands within the boundary of any Indian Reservation irregardless of whether it is in trust or in fee, owned by non-Indians, the state, the tribe or tribal members. The IGRA does not “give” jurisdiction over gaming within the boundary of the reservation to the tribe. The IGRA recognizes that tribes already have that jurisdiction to the exclusion of the state. The IGRA allows for a state to “assume” jurisdiction over gaming within a reservation if the tribe consents in a Class III Tribal State Compact. If the tribe does not consent it keeps the jurisdiction. The state has no authority unless the tribe gives it to the state. The tribes can continue to have Class II Gaming even in the absence of a Class III Tribal State Compact. The tribes can also allow taverns, bars, restaurants and convenience stores on the reservation to have Class II machine gaming as long as the tribes own the games and receives an adequate percentage of the revenue. The State licensees who will have to shut down their poker and keno machines this week can ask the tribe to place tribally owned Class II devices in their establishments. These tribally owned devices would be part of the nationwide system the Class II devices are hooked into and that allow for prizes into the millions of dollars. As long as the tribes own the devices and not the establishment, they would be legal under the IGRA. A The tavern, restaurant, liquor store and convenience store owners would have to seek a Class II license from the tribe and the Tribal Gaming Ordinance would have to provide for such licenses. There is nothing in the IGRA that prevents this. The taverns, bars, restaurants and convenience stores can also ask the tribes to place Class III games in their establishments or to grant them a license to conduct Class III gaming as long as a reasonable percentage goes back to the tribes and the Tribal Gaming Ordinance permits it. The IGRA permits tribal licensing of non-tribally owned Class III gaming as long as the Tribal Gaming Ordinance permits it and there is a Class III Tribal State Compact in place. If the Tribal State Compact allows for all Class III devices within the reservation to have unlimited numbers, bets and prizes, then the non-Indian owners could have them as long as the tribe gets a reasonable percentage of the revenue. Montana’s Class III Tribal State Gaming Compacts are out of sync with the other Tribal State Compacts around the country and are out of sync with the IGRA and the case law decided under the IGRA. In no other state, except South Dakota, are the compacts so restrictive. Even there the tribes don’t have to put up with the draconian limitations forced on the Montana Tribes by a succession of Republican Governors. For those with short memories, a little history; Several Montana Tribes sued Governor Racicot and the state under the “bad faith” provisions of the IGRA back in the late 1980’s and early 1990’s. The State of Montana hid behind its sovereign immunity and the cases were dismissed after the U.S. Supreme Court ruled in Seminole V. Florida that when Congress passed the IGRA it did not waive the States’ sovereign immunity and it remained intact unless the state waived it. Several states, in an effort to resolve Class III Tribal State Compact negotiations deadlock, did waive their immunity and allowed Federal Courts to hear and decide the issues. This practice led to Compacts in almost every other state (not counting Hawaii and Utah where there is no state authorized gaming) except Montana and Oklahoma. Oklahoma passed a “Legislative Compact” that if the tribes accept; they can endorse and send up to the Secretary of Interior for approval. Montana now has the distinction of having the worst Tribal State Gaming Compact in the nation. There is really no reason for this issue to destroy tribal state relations in Montana, which it will if it is not resolved. The “State” has several choices as does the Governor as he is the Chief Executive of the State. They are: • Continue to maintain the present position and tear tribal-state relations apart.