The Idaho House began hearings on a bill by Rep. Tom Loertscher that would have banned tribal slot machine, with one tribal member declaring “We shouldn’t have to defend our economic growth.” An opposing lawmaker said the bill appeared to have the goal of bringing tribes “to their knees.”
The bill failed narrowly when it failed to pass a House committee by a vote of 8-7.
Horse racing interests who testified in favor the bill, as do those who oppose gaming in Idaho. Representatives of the state’s four gaming tribes were firmly opposed.
Loertscher says his bill, HB 127, is an attempt to make the Idaho State Code comply with the Idaho Constitution, which bans most forms of gaming. That was changed in 2002 when voters approved an initiative that classified the video slot machines used in tribal casinos as not being slot machines, if they met certain requirements.
Loertscher, the House State Affairs Committee chairman, argued that the machines are being advertised a slot machines by the tribes, and points to billboards leading to some tribal casinos.
Explaining the logic behind his bill, Loertscher said the federal Indian Gaming Regulatory Act (IGRA) “said that the tribes could do whatever the states allowed,” and added, “That centers around, of course, the discussion of what the constitution of the state of Idaho says, and that is that it prohibits the use of slot machines. For all of the things that have happened, there was an initiative passed, that basically said that whatever tribal gaming machines there were, they were not slot machines. So, that’s what the discussion today is about, whether or not this is in compliance with the constitution of the state of Idaho, and whether or not we ought to continue down the road that we are, or if we ought to make a policy expression about whether we’re going to have slot machines in the state.”
Doug Okuniewicz, general manager of Coeur d’Alene Racing, a facility that once deployed the instant racing terminals the tribes argued were too-slot like— which led to them being banned—testified that as an expert in slots the machines tribal casinos put on their floors sometimes meet the constitutional definition, while some don’t.
Okuniewicz argues that the “instant racing” terminals are not slot machines, because players compete against each other in a system like pari-mutuel betting, which is allowed by the state constitution.
On the other hand, he said, many of the tribe’s machines a “house banked” where bets are made against the house.
Minority Leader Ilana Rubel commented “I’m certainly concerned about the tribes, this seems like an effort to bring them to their knees.”
The tribes argue that the bill threatens their sovereignty, their main source of income for schools, roads and vital services. They said they should be part of the discussion, instead of simply the target of the bill. They called for a government-to-government discussion.
Darrell Shay, vice chairman of the Fort Hall Business Council of the Shoshone-Bannock Tribes, spoke against the bill. He told the committee, “I appeal to your sense of fair play.” He said that before gaming the tribe’s unemployment rates was as high as 30 percent. “The rug is always jerked out from under us,” he said.
Blaine Edmo, chairman of the Fort Hall Business Council predicted, Sadly, this bill, if passed, will drag the state of Idaho and the tribes back into court, where the state already has an 0-3 record on this matter.” He later added, “This misguided effort to unilaterally change a legally agreed upon compact without input from the tribes stands only to waste taxpayer dollars and everyone’s time.”
An attorney for the tribe, Scott Crowell, said the state’s constitutional ban did not apply to tribes. “The constitutional prohibition on slots does not apply to Indian lands,” he said. He said he was confident the tribe would win if it challenged the law in court. “The legislation is an illegal attempt to unilaterally amend tribal gaming compacts,” he said.
Rep. Steven Harris asked Crowell why, if the tribes could ignore the bill, what harm would it do?
Crowell replied, “The law attempts to amend the compact; that’s not the way to go about it. That’s the process concern.” He added, “I believe that even if the state’s intention is for this bill to have benign effect upon tribal gaming, it will be used as a tool by others, as the vice chair of the Nez Perce said, to file frivolous lawsuits and bog the tribes down to where we’re fighting off these interpretations. The real purpose of this bill is to outlaw tribal video gaming machines.”
When asked if the state is required to meet with the tribes before changing the law regarding slots, Crowell said, “Yes, I do. The Shoshone-Bannock compact was amended as a result of litigation.”
He added later, “The legislative body decides what it can and can’t do off Indian lands,” and can draw fine lines about what’s allowed there. But federal law, particularly the Indian Gaming Regulatory Act, does not allow states to draw those fine lines when they’re dealing with tribes, unless they can defend those fine lines based on strong public policy grounds, and I don’t see it here.”
Shannon Wheeler, a member of the Nez Perce Tribal Executive Committee, told the committee, “Tribal gaming does not operate in a vacuum. It is the most heavily regulated gaming in the United States. Tribal gaming in Idaho is regulated through the National Indian Gaming Commission, the state through the Idaho Lottery, and each independent tribe’s own gaming commission.” Changing the wording of the law would encourage “frivolous lawsuits against tribes.”
Wheeler added “Instead of working together cooperatively, it feels like tribes are having to hustle to respond to a bill after it has been printed rather than before it reaches the committee. We shouldn’t have to defend our economic growth.”
The state Attorney General’s office issued two opinions on the proposed bill that because of drafting errors it was likely to end up being challenged in court.
Assistant Chief Deputy Attorney General Brian Kane recommended three changes. One of them was to repeal the 2002 voters’ initiative instead of trying to amend it. He suggested the legislators approach the governor, C.L. “Butch” Otter about reopening negotiations with the tribes to revisit parts of the tribal state gaming compact. He conceded that the tribes were not required to renegotiate the pacts, but might be persuaded to do so to avoid the threat of repeal by Loertscher’s bill.
A third way to address the situation, said Kane, was by looking at oversight mechanisms employed by the Lottery Commission, which oversees tribal gaming.
Litigation over tribal gaming was the father over the 2002 ballot initiative that amended the law to allow on-reservation video gaming as long as it was done without coins and the machines didn’t have levers. Loertscher’s bill would eliminate this part of the law and even ban machines that don’t have levers and only dispense tickets.
Lottery Secrecy Bill
In a separate but related development, a bill that would provide more confidentiality for lottery winners was approved by the Idaho House State Affairs Committee. If it becomes law Idaho would join six other states that provide some anonymity to lottery winners.
The bill is opposed by the Idaho State Lottery Commission, which uses the names of lottery winners as a marketing tool.
Rep. Lynn Luker, the bill’s author, said she was inspired by a constituent, a senior who won the lottery only to be harassed by phone calls and people showing up at her door once her name was announced. The law would apply to people who win $600 or more. Winners could choose to have their names withheld.
Jeff Anderson, director of the Lottery, told lawmakers, “Currently, people have to let us know if they don’t want us to use their identity. This legislation reverses that, to where people would have to opt in for us to use their identity. They’re playing a public game.”
Anderson said he had never heard of any winners being harassed.
Skip Smyser, who says he is a lobbyist for the Idaho press corps, said “the bill attack’s the lottery’s transparency. Transparency is important. Idahoans want to know if Idahoans are actually winning the lottery.”
