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U.S. Supreme Court nominee backed limits on gaming

In the 1990s, U.S. Supreme Court nominee Harriet E. Miers led efforts to restrict the use of electronic gaming machines, an issue of critical importance to the $19 billion tribal casino industry and one that is behind a controversial new Bush administration proposal.

As the head of the Texas Lottery Commission, Miers led her colleagues in rejecting a proposal that would allow bingo halls to use electronic machines that resembled slot machines. She said it was "clear" that state law prohibited the much more lucrative slot machines, according to her public statements at the time.

"If the people of Texas don't want slot machines in their state, then they don't want something people can go play that looks like slot machines," Miers said after the 3-0 vote on January 8, 1996.

The statement closely reflected the views of the politician who appointed her to the post -- then governor George W. Bush. He said he approved legislation to legalize electronic aids to bingo machines and nothing more.

"I signed a bill that I thought would expedite the disbursement of bingo paraphernalia ... and evidently bingo is being redefined to mean three lemons equals bingo," he said in December 1995 in advance of the commission vote.

"That's not my understanding of bingo," Bush added, according to a report from The Austin American-Statesman. "My bingo is five dots in a row."

A decade later, Miers and Bush are putting their words into action through new legislation recently unveiled by the Department of Justice. The administration is proposing to amend existing law to prevent tribes from operating gaming machines -- including electronic aids to bingo -- that look like or resemble slot machines without approval from the state.

U.S. Attorney Tom Heffelfinger, a Bush appointee, has told tribal and gaming leaders that the legislation will benefit Indian gaming in the long run and lead to stability within the industry. Although it has lost every case, the Department of Justice has taken tribes court over the use of certain gaming machines, and the National Indian Gaming Commission has threatened tribes with regulatory action over certain games.

But the proposal will clearly benefit states -- a stance favored by Bush who came under fire during the 2000 presidential campaign for arguing that tribes in Texas who were operating casinos should fall under state law. If the law is approved, states will be able to impose their own limits on tribal gaming and will be able to seek a share of gaming revenues through the compacting process.

The proposal also speaks to the willingness of Miers, a close confidant of Bush, to side with her boss on critical state issues. During her tenure at the Texas Lottery Commission, she sought to protect state lottery revenues amid attempts by private bingo halls to beef up their sagging returns.

At the same time, the Tigua Tribe and the Alabama-Coushatta Tribe began operating gaming facilities. They argued that they should be entitled to offer Class III machines because the state had legalized certain games.

Had Miers not voted against the lottery rules, it could have given the tribes stronger ammunition in their fight to keep the casinos open. Elsewhere, tribes have been allowed to operate a wide range of games based on what is allowed in the state.

"I guess I'm just trying to figure out what Texas is complaining about," said retired Sen. Ben Nighthorse Campbell (R-Colorado) during a June 2002 Senate hearing on the issue. Both the Tigua and Alabama-Coushatta casinos were shut down that year due to state lawsuits.

While at the lottery, Miers also cracked down on so-called "eight-liner" machines that were being offered by certain establishments. She believed the games -- which resembled slot machines -- were cutting into the lottery's revenues and ordered the removal of 4,400 such games.

Whether this action translates into Miers' judicial philosophy or her views on tribal issues, however, is open for debate. The lack of a public record on Miers has frustrated Republicans and Democrats who have questioned whether she is qualified to sit on the nation's highest court.

Beyond her tenure at the lottery and one term in public office, Miers has stayed behind the scenes. Since the start of the Bush administration in 2001, she has served as a White House aide and as counsel to the president.

The counsel position, though, is key because Miers is responsible for informing Bush and the White House on the legal issues behind their initiatives. The gaming law proposal is one such proposal -- it is being spearheaded by the administration's legal team and not by the NIGC, the independent regulatory body whose regulatory approach to resolving the debate was opposed by the Department of Justice.

If she is confirmed as a justice, Miers could very well be asked to consider the legality of the proposal her aides are promoting. Last year, the Department of Justice asked the Supreme Court to enter the debate over the legality of certain slot machines.

The case, which had been decided in favor of tribes, was rejected. And while some gaming law experts say the Supreme Court isn't interested in defining what is and what isn't a slot machine, the possibility of new limits on Indian casinos has tribal leaders and their advocates worried. The Chippewa Cree Tribe of Montana has already scaled back plans for a new casino over the legislation, The Havre Daily News reported this week. One tribal lawyer has equated the proposal to "economic termination."

The proposed gaming amendments can be found at DOJ's Office of Tribal Justice website at The documents are currently only available in WordPerfect format.

An HTML version, converted by Indianz.Com, can be found at

From the Indianz.Com Archive:
Supreme Court won't review Texas casino case (October 8, 2002)
Texas tribe fights casino shutdown order (July 23, 2002)
Texas battles against tribes questioned (June 19, 2002)
Tribe ordered to close casino (June 26, 2002)
Supreme Court lets Tigua Tribe be sued (June 5, 2001)
Tigua Tribe loses gaming appeal (November 3, 2000)