Tribal corporation secures victory in gaming initiative dispute

Friday, September 11, 2020

A decision by the Nebraska Supreme Court on Thursday approving three related gaming initiatives will pave the way for casino gambling at racetracks if approved by voters in November.

The 4-3 ruling overturned an August 25 determination made by Nebraska Secretary of State Bob Evnen, who refused to allow the three gaming initiatives to be included on the general election ballot, despite the initiatives’ supporters gaining enough signatures to add them to the ballot.

“We’re very pleased with the court’s decision and that Nebraskans will have the opportunity to vote FOR on all three ballot initiatives,” said Lynne McNally, secretary/treasurer for Keep the Money in Nebraska, the organization sponsoring the measures. “This is more than a win for the initiatives; it’s a win for Nebraska’s referendum process.”

Ho-Chunk Inc., the economic development corporation of the Winnebago Tribe, partnered with the Nebraska Horsemen’s Benevolent and Protective Association and Omaha Exposition and Racing to support Keep the Money in Nebraska.

Petitions to place the gambling issue on the ballot were signed by 475,000 Nebraskans, and Evnen hasn’t suggested that the petition drive didn’t gather enough signatures.

If passed, the measures will create 4,600 jobs and generate more than $45 million in property tax relief annually, according to Keep the Money in Nebraska.

The three initiatives included a constitutional amendment to legalize casino gambling at racetracks, as well as proposed legislation to regulate and tax casino gambling. Racetracks in or near Omaha, Lincoln, South Sioux City, Grand Island, Hastings and Columbus would be able to conduct casino gambling under the proposal.

Ho-Chunk Inc owns and operates the Atokad Park in South Sioux City, where casino-style gaming could take place if voters approve the ballot initiatives.

Evnen had argued the proposals failed to comply with a single-subject rule set forth in the state constitution and that the proposals contained a “hidden authorization” of expanded gambling on tribal lands in Nebraska because under the federal Indian Gaming Regulatory Act the state would be required to negotiate to allow the same kind of gambling on tribal lands.

The court rejected Evnen’s argument that the initiatives violated the state’s single-subject rule by having two subjects: one, permitting the “conduct of games of chance by authorized operators, and second, that such activity is permitted only at racetracks.” The court ruled that because the three initiatives are presented separately voters will have the opportunity to vote for on initiative but not the other.

“Because voters can vote differently on each separate initiative, we conclude and hold that single subject review should focus on the specific initiative being reviewed without reference to the content of another initiative that is submitted separately,” the court said.

As for Evnen’s argument that the proposals would allow expanded tribal gaming, the court said a legal review can only focus on the text of the proposed initiatives, not on issues that might arise through approval of the proposals.

“We have stated that the power of initiative must be liberally construed to promote the democratic process,” the court said. “Whether or not games of chance conducted at racetracks should become the law is for the people to decide.”

The petitions submitted by the backers of Keep the Money in Nebraska are: Games of Chance – Constitutional Amendment Petition, Games of Chance – Racetrack Petition and Games of Chance – Tax Petition.

Besides Ho-Chunk Inc., the sponsors of the petitions are the Nebraska Horsemen’s Benevolent and Protective Association and Omaha Exposition and Racing.

Ho-Chunk Inc. owns Indianz.Com. The website operates independently is not involved in the activities of the corporation.