The Bush administration is debating whether to appeal a gaming case that could hurt tribes who want to upgrade their casinos.
On Aug. 17, the 5th Circuit Court of Appeals blocked a Texas tribe from offering Class III or Las Vegas-style casino games without the state’s approval. Though the decision only affected the Kickapoo Tribe, it invalidated a disputed Interior Department regulation that is being used throughout Indian Country.
Those efforts are now in jeopardy if the decision stands. In Texas, the Tigua Tribe and the Alabama-Coushatta Tribe want to offer Class III games under the disputed regulation because state officials — including former governor and current president George W. Bush — have refused to negotiate a compact.
The conservative 5th Circuit also includes Louisiana, where the Jena Band of Choctaw Indians hopes to open a Class III casino in a state proliferated with casinos. But Gov. Kathleen Blanco is refusing to negotiate and is facing a lawsuit.
The Poarch Band of Creek Indians has been having an equally difficult time with Alabama. Though some types of Class III gaming are legal in the state, every governor for the last 15 years has refused to come to the table and work out a deal.
In Florida, the picture looks a bit brighter for the Seminole Tribe and the Miccosukee Tribe. The Seminoles are actively negotiating a compact with Gov. Charlie Crist for slot machines and possibly other Class III games such as craps and roulette.
Up in Nebraska, however, the state remains adamantly opposed to Class III gaming. The Santee Sioux Tribe has been locked in a court battle with the state over which games are and aren’t legal.
In all these cases, the tribes turned to the Interior Department for help. They cited a regulation that allows the federal government to step in and issue "secretarial procedures" for Class III games only when states refuse to negotiate in good faith.
The regulation was written in response to a U.S. Supreme Court case involving the Seminole Tribe. The justices said states can invoke their sovereign immunity to avoid lawsuits over their refusal to participate in the compacting process.
But in the Kickapoo case, the 5th Circuit said the secretarial procedures violate the intent of the Indian Gaming Regulatory Act. The only way a tribe can offer Class III games without state approval is when a court — not the Interior Department — finds a state to be in bad faith.
"The [Interior] Secretary may not decide the state’s good faith; may not require or name a mediator; and may not pull out of thin air the compact provisions that he is empowered to enforce," the 5th Circuit ruled.
The decision means a tribe must overcome two major hurdles in order to offer Class III games. First, the state must consent to a lawsuit, and second, the tribe must show that the state has been negotiating in bad faith.
The first hurdle is nearly impossible to overcome as most states will never waive their sovereign immunity. But it’s not unheard of — in Wyoming, the state consented to the Northern Arapaho Tribe’s lawsuit over Class III gaming.
The tribe ended up proving that the state was in bad faith, a decision upheld by the 10th Circuit Court of Appeals. The tribe is now offering Class III games at facilities on the Wind River Reservation in Wyoming.
But the three tribes in Texas won’t be able to get that far because the state has raised the sovereign immunity defense. That stops future court proceedings and bars the use of the secretarial procedures under the 5th Circuit’s ruling.
The Office of Indian Gaming Management at the Bureau of Indian Affairs has been working on secretarial procedures for the tribes in Texas, Alabama, Louisiana, Nebraska and Florida for several years. "The process was developed when compact negotiations broke down," deputy director Paula Hart said at the 2006 Global Gaming Expo.
Assistant secretary Carl Artman said Bush administration officials are discussing their next step in the Kickapoo dispute. He declined to discuss the effect the decision has had on the secretarial procedures.
"I’m going to withhold any comments on that," Artman told Indianz.Com in an interview last month.
Separately, Artman is wrapping up work on new regulations for taking land-into-trust for casinos. "We are putting the final dots on the I’s and crosses on the T’s," he said. He expects the rule to be published in the Federal Register within the next 90 days.
Casino goes with
automated poker tables
One by one, it seems that Northern California casinos and cardrooms are embracing automated poker.
The latest to embrace the new tables is Black Oak Casino in Tuolumne. The venue, which never had a poker room, opened one Sept. 13 with tables from PokerPro, an automated poker manufacturer based in North Carolina.
In doing so, Black Oak became the first Native American casino in the country to switch to PokerPro. The new tables are part of a multimillion-dollar, 16,000-square-foot expansion, set for completion in September 2008.
The tables mark Black Oak’s foray into poker. The casino plans to go from four tables to 12 this time next year.
The technology behind these tables eliminates human dealers with the help of touch screens and software that conducts a 10-handed poker game automatically. The game is played virtually, with players checking their cards on the touch screens in front of them. At the center of the table, a large screen displays the communal cards.
Even the bets are made with virtual chips. Money is stored on a PokerPro debit card that players can refill whenever they wish.
Mitch Goldstein, director of gaming, says the technology makes the game quicker, increasing the number of hands per hour from 30 at a manual table to roughly 46. He adds that PokerPro players also don’t have to put up with everyday errors such as opponents betting out of turn, misdeals or exposed cards.
"In many ways, what we’ve installed is poker in its purest form," Goldstein says. "We, the house, save money. Players save money. There are more hands."
Larry Anderson, who plays other games regularly at Black Oak and has traveled to Reno for poker, says he enjoys the new dealer-free experience. He likens it to another type of poker with which he’s intimately familiar: Internet poker.
"It’s kind of like playing online, but you get to see the players you’re playing against so that makes it a lot better," he said.
Black Oak isn’t the first Northern California casino to embrace PokerPro. The Folsom Lake Bowl and Casino in Folsom (Sacramento County) also invested in some of the new tables this year. There, the automated tables replaced traditional poker tables.
With the new tables in place, Black Oak has set up a modest tournament schedule. The casino hosts a $20 buy-in, no-limit Texas hold ”˜em tournament at 11 a.m. daily and $60 buy-in tournaments at 7 p.m. Fridays and Saturdays and 4 p.m. Sundays. The casino also has instituted a bad beat jackpot for anything better than Aces over Jacks.