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THURSDAY, SEPTEMBER 20, 2001

A controversial proposal to change the way casino games are defined has drawn the opposition of nearly two dozen states and the concerns of the Justice Department, whose latest plea to keep an open mind about the rules has been rejected by the National Indian Gaming Commission.

In a highly charged letter sent to the commission, the attorneys general from a number of states voiced their objections to regulations offered in June. The proposal, said the states, is "ill-advised, unnecessary and legally flawed."

"There is no reason," to change gaming policy, wrote the states. To do so would hinder tribal-state compact negotiations and allow tribes to offer "questionable" games that might otherwise be prohibited, they claimed.

And despite assertions by the commission that the proposal would resolve conflicts over the definition of certain gaming devices, the states said it would only result in "protracted litigation."

The Department of Justice, too, has raised concerns. In order to allow interested parties more time to respond, the criminal division has asked the NIGC twice to keep open the public comment period about the rules.

The first time, the three-member commission agreed and extended the comment period an additional month. When the second request came in, however, Commissioners Liz Homer and Teresa Poust late last month out-voted Chairman Montie Deer and stopped accepting comments.

Deer is siding with the states and has publicly opposed the proposal. But his objections had been overruled by Homer and Poust, who have since defended the suggested changes before Congress.

At issue is the definition of Class II games under federal law. Under the Indian Gaming Regulatory Act (IGRA), tribes can offer Class II games without negotiating a compact with the state.

But since some states forbid more lucrative Class III games and are unwilling to negotiate compacts, tribes have offered alternative devices. In most cases, though, they have been prosecuted by the government and have ordered to shut down games because they lack a Class III compact.

At the same time, the government has not always succeeded in pursuing tribes and has lost a number of cases in federal court. To end the apparent confusion, the NIGC -- in a move supported by the National Indian Gaming Association and the Oklahoma Indian Gaming Association -- wants to revise the Class II definition.

To date, the NIGC has received 75 sets of comments about the proposal, said general counsel Kevin Washburn. Not all tribes support the changes, he noted.

Washburn also said the Justice Department, as a government agency, can send in its own comments about the rules any time. No other request to keep the response period was made, he said.

"It didn't seem like anyone else was clamoring for the period to be kept open," said Washburn.

The commission is currently reviewing the comments and might make a decision within the next six months, although no timetable has been set.

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Relevant Links:
Classification Opinions, NIGC - http://www.nigc.gov/opinion.htm
National Indian Gaming Commission - http://www.nigc.gov

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