Wednesday, January 01, 2003
Copyright © Las Vegas Review-Journal

Court ruling boosts tribal gaming stance

Expansion expected in urban areas

American Indian casinos in California are getting carte blanche from the legal system to proceed full speed ahead with expansion.

State Attorney General Bill Lockyer Monday filed a friend-of-the-court brief arguing, in part, that urban, landless American Indian casinos may proceed, whatever the intent of voters may have been in passing Proposition 1A in 2000.

"The attorney general said that while it was never the intent (of voters) to allow urban casinos, that wasn't written into the law so there will now be urban casinos, although not many," said Nelson Rose, gaming law expert at Whittier Law School in Los Angeles.

The amicus brief was filed in support of card room owners who want to stop the conversion of Casino San Pablo to a gaming hall with slot machines and block its redevelopment into an American Indian casino in western Contra Costa County.

Prop 1A "was hastily done without protections. They could have written into the law a geographical limit (on the location of American Indian casinos) and they did not do that," Rose said.

Card room operators had claimed that the state constitution's tribal gaming provision as set forth by Proposition 1A was unconstitutional because it let only American Indians conduct Nevada-style gaming.

U.S. District Judge David Levi of Sacramento, however, upheld Proposition 1A in July.

Similarly, an appeals court last week found that California's compacts with tribes allowing them to offer certain types of gambling on American Indian land is constitutional.

Hustler magazine publisher Larry Flynt had sued the California Gaming Control Commission and the state attorney general in November 2001.

He had argued that letting tribes offer certain games, including slot machines and banked and percentage games, but not letting card rooms offer them created a monopoly and put card rooms at a competitive disadvantage.

The appeals court ruled that granting recognized tribes gaming rights through tribal-state compacts is not a denial of constitutional equal protection rights.

"Every time that's been brought up, it's failed. Governments are sovereign and the U.S. Supreme Court has continually said the issue is closed," Rose said.

And from Nevada's perspective, there is a two-part question, he said. The plaintiff would have to win, which would be tough, and the court would have to order a remedy that rules and compacts are illegal and stops tribal casinos.

"That would be great news for Nevada, but it's never going to happen," Rose said.

For one thing, too many people would be thrown out of work, and the courts would order a stay during which American Indian casinos could seek a political solution. And for another, any such order would fly in the face of years of case law upholding the development of tribal casinos, he said.

Howard Dickstein, an attorney representing California Indian tribes, said that would be equivalent to the U.S. Supreme Court saying the "United States can't enter into a treaty with Britain without equal terms for Iraq."

The same issues previously had been raised in another case in California, Artichoke Joe's v. Norton, and dismissed in federal court.

The appeals court in the Flynt case found no reason to reverse the previous decision in federal court.

The implication is that the development of American Indian casinos will be "business as usual" and proceed without impediment from the courts, Dickstein said.

Las Vegas professor and casino industry expert Bill Thompson said that "nothing will close Indian casinos down. Their power in terms of money won't let anything like that happen."

However, there is also a silver lining for Nevada in the Flynt case decision, he said.

"The courts found there is no justification for the card rooms as opposed to anyone else getting the right to compete with Indian casinos.

"That's good news for Nevada. It at least confines the expansion of gaming in California to Indian casinos," Thompson said. "And we know who our competition is going to be. It's the Indians."